' ABDUL GHIAS NOUSHERWANI, MEMBER --- This appeal is directed against the Order/Judgment passed by learned District and Session Judge 1st Labour Court, Balochistan dated 29.8.2007 whereby the application under Section 46 of IRO, 2002 filed by the applicant has been dismissed.
2. For disposal of appeal brief facts of the instant appeal are that the appellant was appointed in Muslim Commercial Bank as Officer Grade-III, on 27.12.1977 and served at various branches. During his service a number of cash award and letters of appreciation were given to him, however, when he was working as Manager at Masjid Road branch Quetta in February 2003 he was succeeded by one Mr. Muhammad Riaz Officer Grade-III, who was working in the said branch for the last ten years and during that time he was involved in parallel banking and misappropriation and according to the applicant when he informed about the said parallel banking and misappropriations to the higher authorities, the authorities had not listen to him, because the successor Muhammad Riaz was a close relative of higher authorities of the bank and during that time Muhammad Riaz had also removed the relevant record, cheques and other documents from the branch. Thereafter a charge-sheet dated 22.2.2003 was served to the applicant levelling the said allegations on him to which he had given reply, thereafter another supplementary letter of charge-sheet dated 16.5.2003 was given to him, to which he submitted reply, denying the charge levelled against him. Thereafter an inquiry was held, which was not in accordance with law and he was not allowed to defend and cross-examine the witness. He was dismissed from service by the respondent bank through order dated 01.12.2003, against which he had filed an appeal before the Federal Service Tribunal, however due to the Judgment of the honourable Supreme Court of Pakistan of dated 24.6.2006, in connection to Section 2-A of the Service Tribunal Act, 1973, his case was returned to him.
3. Record reveal that the counsel for respondent filed a miscellaneous application containing the preliminary legal objection that the grievance application of the applicant is badly hit by time and have been filed approximately after delay of two years and nine months. In rebuttal the counsel for the applicant submitted that his case was returned/abetted from the Federal Service Tribunal, Islamabad, hence is entertainable in this Court and this Court is empower to condone the delay, if any as he has already filed an application for condonation of delay along-with his grievance application.
4. The learned counsel for appellant contended that the inquiry has not been conducted in proper manner and no opportunity has been provided to decease appellant in his defense. Secondly contended that after dismissal the departmental appeal he approached the learned Federal Service Tribunal where his appeal was pending till 9th July, 2006 when a notice was received by the Registrar of Federal Service Tribunal wherein the appeal was abated in view of the Judgment of Honourable Supreme Court of Pakistan in Civil Appeals No, 792 to 816 2005 etc. And thereafter in time he approached the learned Labour Court. Next contended that the legal heirs have the full right to peruse the appeal in view of the circumstances of the case. Lastly submitted that the learned Labour Court without framing issues and recorded statements dismissed the grievance application. On the other hand the learned counsel for respondent contended that the legal heirs of decease appellant has no right to be impleaded in appeal. Secondly submitted that the grievance notice has not been served and grievance petition was hopelessly time-barred. Lastly he supported the impugned Judgment.
5. It appears from available record that the learned Labour Court dismissed the grievance application on the preliminary legal objection of respondent with the following observations:- ' "In view of the above-cited above legal position and the circumstances as the under reference grievance application filed by the applicant Abdul Razaq is time-barred, which computed to more than 2 years, whereas the time limitation provided under the subsection (3) of Section 46 of the IRO, 2002 is two months, hence by accepting the misc. Application of respondent of dated 23.12.2006, thus grievance application being barred by time limitation is dismissed herewith in accordance with law".
6. After hearing the learned counsels for the parities and gone through the available record the following points need consideration: A. Whether the legal heirs has the right to be impleaded as party after the death of deceased appellant?
B. Whether the notice of Federal Service Tribunal covered the limitation?
C. If above point answered in negative then what about the application of applicant/appellant under Section 5 of Limitation Act?
D. Whether the inquiry was conducted in proper manner?
E. Whether the punishment of dismissal is reasonable under the circumstances of the case?
7. With regard to point A the learned counsel for appellant contended that if the appeal is allowed then the legal heirs has the right to claim for the pension and other benefits which were permissible to deceased appellant. On the other hand the learned counsel for respondent contended that neither BIRA nor CPC allow the legal representative to be impleaded as party.
8. Record reveals that during pendency of appeal appellant was expired on 9.11.2010 and the legal heirs of deceased approached this Tribunal by means of an application with request that they be impleaded as appellants. It appears that the notice of above application was ordered to be supplied to the respondent but from perusal of record no reply of above application has been submitted nor a proper order was passed. Furthermore no amendments has been made in the memo. Of appeal.
' However the Vakalat Mama of the counsel on behalf of legal heirs had been accepted and according to order sheets they were appearing in various hearing but no such objection has been raised by the learned counsel for respondents. On assuming the charge of this Tribunal, fresh notices were issued to the parties on 13.12.2011 whereof the legal heirs appeared. Meaning thereby that such application has not been disposed of by my predecessor in Court. Therefore in view of a Judgment of Honourable Supreme Court of Pakistan I allow the application of legal heirs of deceased applicant, reported in 2006 SCM R 1287 wherein the petitioner/appellant was employee with respondent bank and expired during pendency of petition before Honourable High Court which was dismissed solely on the ground that employees had died during pendency of petition.
The Honourable Supreme Court in this Judgment held,--- ' "Plea raised by petitioner was that the proceedings could not have abated on account of death of their predecessor-in-interest---Validity---Question whether after death of plaintiff or petitioner, proceedings would abate primarily depended on the nature of cause of action---Any "action" might abate on the death of a party but cause of action might survive his death-- "Death" in such context did not mean a civil death---Irrespective of the nature of proceedings whether criminal or civil, it was the nature of cause of action which could determine its survival---Predecessor-in- interest of petitioners was seeking enforcement of his service/civil rights---Labour Court having considered the entire evidence led during departmental proceedings set aside order of dismissal from service and reinstated him---Labour Appellate Tribunal set aside judgment of Labour Court and the same had been challenged through Constitutional petition---If Constitutional petition had been allowed, the order of Labour Appellate Tribunal would have been set aside and order of Labour Court reinstating the predecessor-in-interest would have been restored---Even after the death of the employee, legal heirs would have inherited pensionary benefits in such eventuality--- Constitutional petition could not have abated in circumstances and legal heirs had right to be impleaded as party and to pray for a dicision on merits---Supreme Court converted petition for have to appeal into appeal and remanded the matter to High Court for deciding Constitutional petition afresh".
B. Adverting to the point of limitation, according to the learned counsel for appellant that his appeal was abetted in Federal Service Tribunal in the light of judgment of Honourable Supreme Court of Pakistan (as mentioned herein above) wherein the appellant was allowed to approach the leaned Labour Court within the period of 90 days. On contrary the learned counsel for respondent agitated that in view of notification dated 08.9.1991 the employees of Muslim Commercial Bank having no right to approach the learned Federal Service Tribunal therefore the appellant wrongly approached the same forum. The abetment order of the appeal of the appellant has not been challenged by the respondents. However in such a matter the Honourable Supreme Court of Pakistan in a reported judgment in SBLR 2008 Supreme Court 40 held,--- ' "Civil Service---Abetment of appeals before the Federal Service Tribunal---Such order was conveyed by the Registrar to the parties---Such order cannot be considered as Judicial Order--- Consequently the appeal is deem pending and required to be disposed of afresh appeal is allowed."
9. In view of this judgment the order on abated appeal is not favourable to the appellant. However the proceedings before learned Labour Court completed earlier said appeal is the continuation of that proceedings. Upshot of above discussion is that the order of abetment of appeal of appellant does not cover the limitation.
C. Record reveals that alongwith grievance application an application. Under Section 5 of Limitation Act has been submitted for condonation of delay which was neither rejected nor it was discussed in order impugned. Under the circumstances of the case which is longer on since 2006 I intend to allow the application under Section 5 of Limitation Act in the light of an unreported Judgment of Honourable High Court of Balochistan in CP No, 54/2011, dated 2.2.2012. Wherein held,- -- ' "Even otherwise the superior Courts have always encouraged decision of cases on merits instead of non-suiting litigants on technical reasons including the ground of limitation. Reference in this regard to the case of Muhammad Hanif Bukhari versus President National Bank of Pakistan 2004 PLC (Supreme Court) 1014".
D. The dismissal order dated 01.12.2003 indicates that deceased appellant was dismissed on the ground of misconduct. Before letter of termination the deceased appellant was charged by means of letter of charge dated 22nd March, 2003. Again supplementary letter of charge issued on 17.5.2003, 04.8.2003 and 27th August, 2003. In all above charge letters no loss has been mentioned and in all above charge letters the main allegation is reproduced herein under, ' "The above-mentioned acts alleged has been committed by you amount to gross misconduct and are in violation of Bank Staff Service Rules which warrants disciplinary action by the Management against you".
' Likewise letter of dismissal also did not indicate any financial loss, the operative portion of the same is reproduced as follow,- ' "On receipt of reports from the inquiry officer the matter was placed before disciplinary action committee in its meeting held on 12.11.2003. The committee after considering all the aspects of the case has been found you guilty which under the preview of law is considered as misconduct and as such decided to dismiss you from bank".
' The inquiry report and its proceedings are not available on record. The learned counsel for appellant stated that inspite of his repeated request the same has not supplied to him. The respondent also did not produce the same neither inquiry officer appeared in the Court. In such circumstances it is presumes that the inquiry has not been conducted in proper manner. E. Coming to the point of punishment awarded to the deceased appellant, is harsh, for the reason that the deceased appellant served the bank for a long period of 26 years and awarded with many appreciating letters and cash award during his service. The respondent bank while dismissing him was under obligation to consider the previous satisfactory service of the deceased appellant. A similar case of Bank Cashier came before Honourable Supreme Court of Pakistan wherein the charge was will full negligence for encashment of cheques allowed by Cashier without obtaining signatures and verifying, identity of person who presented cheques the Honourable Supreme Court of Pakistan in 2007 PLC 671 held,--- ' "Loss caused to bank in terms of money and reputation by such acts of Cashier. Dismissal of grievance petition by Labour Court affirmed by Labour Appellate Tribunal for bank having proved such charge against Cashier---Reinstatement in service of Cashier with back benefits by High Court---Validity--Tribunal instead of dismissing appeal should have proposed minor penalty commensurating with the nature of charge minor penalty of stoppage of two increments without accumulative effect would be sufficient to meet the end of Justice---Supreme Court partly accepted appeal and modified judgment of Tribunal in such terms".
10. Taking the advantage of this Judgment, letter of charges and dismissal order on ground of misconduct, having resemblance with above-mentioned Judgment the dismissal order dated 1.12.2003 is modified to the compulsory retirement with effect from the date of termination with the benefit admissible under the Bank Rules to the deceased appellant. Consequently appeal is partly allowed with above modification.
11. The copy of order alongwith original record of Trial Court be sent to Trial Court. Case after completion be consigned to record.