' JUSTICE (RETD.) SHEIKH AHMAD FAROOQ, CHAIRMAN.--- Through this single consolidated order, we intend to decide the titled Misc. Petitions as an identical question of law is involved therein. In all the appeals, from which these Misc. Petitions emanate, the appellants, who were admittedly civil servants died during the pendency of their appeals. Thus a question has arisen as to whether the appeals filed by the said civil servants during their life-time would abate on their death or their legal heirs, who are not civil servants, could legally pursue the same.
2. The facts essential for the adjudication of the /is in hand, are as follows:---
(a) MP.No.159/2015 in Appeal No.120(L)CE/2002 ' Muhammad Tufail---versus---National Bank of Pakistan ' In this appeal, the appellant impugned the order dated 12-1-2002 whereby major penalty of dismissal from service was imposed upon him with consequential relief of reinstatement in service with full back benefits. The appellant died during the pendency of this appeal and his legal heirs moved the instant petition for becoming party in the aforesaid appeal.
(b) MP.No.23/2015 in Appeal No.99(L)CE/2004 ' Rana Ejaz Ahmad --- versus --- National Bank of Pakistan ' In this appeal, the appellant was degraded from Officer Grade-III to lower stage of pay by 3 steps in his pay. The appellant thus prayed for the setting aside of the aforesaid penalty and for payment of full wages. The appellant died on 13-7-2013 during the pendency of this appeal and his legal heirs moved the instant petition for being impleaded as party in this appeal.
(c) Misc. Petition No.70/2015 in Appeal No.110(L)CS/2013 ' M.P.No.173/2013 in Appeal No.2770(R)CS/2012 ' Tayyab Yazdani Malik---versus---Post Office ' The appellant was an officer of Postal Service. He tendered resignation which was accepted.
Thereafter, he applied for withdrawal of resignation and his application was accepted. However, his colleague Badar Zaman filed a Writ Petition against the withdrawal of his resignation. His Writ Petition was dismissed and an ICA filed against the said order was also dismissed. The matter was taken to the Hon'ble Supreme Court of Pakistan which directed the appellant to avail the legal remedy before the appropriate forum against the acceptance of his resignation. His prayer was partially allowed and the appellant was restored in. BS-18 and not in BS-19 and the intervening period was treated as leave. The appellant thus filed the aforesaid appeal wherein he prayed for the setting aside of the aforesaid impugned order with consequential relief of back benefits, salary, seniority and for consideration of promotion to BS-20. He died during the pendency of the appeal on 19-10-2014 and his legal heirs filed the instant petition for being impleaded as party.
(d) M.P. No. 133/2015 in MP.No.131/2012 ' in Appeal No.37(L)CS/2011 ' Muhammad Mushtaq --- versus --- GHQ ' The appellant had filed appeal before this Tribunal for his pensionary benefits. His appeal was accepted by this Tribunal. Thereafter he filed Misc: Petition No.131/2012 for implementation of the judgment dated 1-7-2011. During the pendency of the aforesaid Misc: Petition the petitioner expired on 22-4-2015. His legal heirs applied for being impleaded as party in the aforesaid appeal through the instant petition for implementation of judgment of this Tribunal.
(f) MP.No.212/2015 in Appeal No.159(L)CS/2014 ' [MP.No.84/2014 in Appeal No.439(L)CS/2014] ' Muhammad Younas --- versus --- National Highway and Motorway Police ' The appellant assailed the order dated 13-6-2014 passed by respondent No.2 whereby his absorption was cancelled and subsequent order dated 22-9-2014 whereby his repatriation was ordered. The appellant thus prayed for the setting aside of the aforesaid orders dated 13-6-2014 and 22-9-2014. The appellant died during the pendency of the appeal on 29-3-2015 and his legal heirs submitted the instant petition for being impleaded as party.
(g) Misc: Petition No.38/2015 in Appeal No.387(L)CS/2012 ' Fazal Hussain --- versus ---Pakistan Railways ' In this case, the appellant was an Accounts Officer working in the Office of the General Manager, Postal Life Insurance (Northern Pakistan) Lahore. He was sent on deputation to Pakistan Railways.
He was denied Special Deputation Pay. As such he filed the aforesaid Service Appeal wherein he sought a direction to the respondent-Department to allow six months' Deputation Pay (I.D.C) and also include the Deputation Pay so allowed in his pension. He also prayed for arrears thus accrued.
During the pendency of the appeal, the appellant breathed his last. Thus his legal heirs filed the instant petition for impleading them as party to this appeal.
(h) Misc: Petition No.142-A/2015 in Appeal No.9(L)CS/2010 ' Rasheed Ahmad --- versus --- Controller General of Accounts ' In this appeal, the appellant prayed for Move-over from BS-16 to BS-17 with effect from 1-12-1999 instead of 1-12-2000 along with consequential benefits. In this case too, the appellant died during the pendency of this appeal and as such, his widow Raj Begum prayed for being impleaded as party in the said appeal.
3. All the aforementioned Misc. Petitions were resisted by the respondents, primarily on the ground that the legal heirs of a deceased civil servant, cannot approach, this Tribunal for redressal of grievance according to the provisions of Service Tribunals Act, 1973.
4. Mian Mahmood Hussain, Advocate learned counsel for the appellant in his cogent and persuasive style has contended that within the scope of Section 5-A of the Service Tribunals Act, 1973 provisions of the C.P.C. Are applicable to the proceedings before this Tribunal. Learned counsel has referred to Order XXII, Rules 1 and 11, C.P.C. To contend that upon the demise of a party to the lis, the appeal will not abate and his legal heirs will be impleaded as party. Learned counsel placed reliance on various pronouncements of the Superior Courts to which we will advert a bit later. Rana Muhammad Mehtab, Advocate learned counsel for one of the appellants mainly adopted the arguments of Mian Mahmood Hussain, Advocate. However, he relied upon Balochistan Civil Servants (Appeal) Rules, 2013 wherein it has been provided that upon the demise of a civil servant during the pendency of appeal, the appeal will be pursued by his legal heirs. Learned counsel has also referred to some judgments from Indian jurisdiction to support his contention.
5. As against this, Mian Qamar-uz-Zaman, Syed Fazal Mahmood, Advocates and Mr. Ehsan-ul-Haq Mughal, learned Standing counsel for the respondents have contended that Service Tribunals Act, 1973 is a special-law and as such, has to be construed strictly. Learned counsel have emphasised that in the said law, no remedy has been provided to the legal heirs of a civil servant and as such, legal heirs of a civil servant cannot be impleaded as party. Learned counsel have amplified that this Tribunal has jurisdiction to hear appeals of civil servants concerning their terms and conditions. Learned counsel have thus maintained that legal heirs of a civil servant, being not civil servants, cannot pursue the appeal filed by their predecessor (civil servant). To support their contentions, learned counsel have also referred to various pronouncements of the Superior Courts to which we will advert in the subsequent paras.
6. We have heard the learned counsel for the parties at considerable length and gone through the available record and carefully perused the judgments of the Superior Courts on the point in issue with the able assistance of the learned counsel for the parties.
7. For proper appreciation of the controversy involved in these cases, it would be apt and imperative to seek guidance from the case-law. In Mst. Ghazala Tariq v. Federation of Pakistan through Secretary/Chairman Railway Board and another [2005 PLC (C.S.) 271] services of a civil servant were terminated. He filed appeal before the Service Tribunal and during the pendency of the appeal the civil servant died. His widow moved application for early hearing of the appeal, but the said application and even the appeal filed by the deceased civil servant was dismissed as abated. A Writ Petition was filed in the Lahore High Court, Lahore to assail the aforesaid order. It was held that if employee had remained alive, he might have been successful before the Service Tribunal and as such upon his demise his legal heirs could survive the cause of action and to agitate showing that the order of termination of deceased employee was illegal and void. In Mst.
Ltrat Zahida and others v. President, A.B.L. And others (2006 SCMR 1287), a Bank employee was dismissed from service on the allegation of misconduct. He agitated the matter before the Labour Court which set aside the order of dismissal. But Labour Appellate Tribunal allowed the appeal of Bank and restored the order of dismissal. Order of Labour Appellate Tribunal was assailed before the High Court in Constitutional Petition which was dismissed solely on the ground that the employee had died during the pendency of the petition. The matter was taken to the Hon'ble Supreme Court of Pakistan and it was held that any "action" might abate on the death of a party but cause of action might survive his death. It was amplified that "Death" in such context did not mean a civil death. It was explained that it was the nature of cause of action which could determine its survival. It was thus held 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-ininterest would have been restored. It was as such held that even after the death of the employee, legal heirs would have inherited pensionary benefits in such eventuality. It was thus held that Constitutional Petition could not have abated in circumstances and legal heirs had a right to be impleaded as a party and to pray for a decision on merit. In Lt. Col. (R) Arshad Mehmood Ch. v. Karakurum International University through Acting Registrar and 3 others [2010 PLC (C.S.) 245], it was held that if the order of termination of services of the deceased civil servant was found by the Court to be illegal and without lawful authority, relief regarding payment of dues of salaries for the period from the date of termination of services till the date of his death would be admissible under the law as inheritable right of his legal heirs. In Chief Secretary, Government of Punjab and others v. Ch. Iftikhar Ahmad (2013 SCMR 392), Service Tribunal had directed the competent Authority to consider reconstitution of Selection Board to assess the suitability of civil servant for regularization of her services. The direction was not complied with and the civil servant died without getting any relief. Matter was pursued by husband/legal heir of civil servant. It was held that peculiar benefits to which legal heirs of a civil servant were entitled did not abate upon the death of a civil servant. In Rakhshinda Habib v. Federation of Pakistan and others [2014 PLC (C.S.) 247] a civil servant was superseded and he had filed .Appeal before the Service Tribunal.
During the pendency of the appeal the civil servant died and his wife filed a Constitutional Petition seeking promotion of her late husband. It was held that civil servant could not be promoted after the death. However, pensionary benefits of promotion could be extended to the legal heirs of the deceased employee. Thus a direction was issued to the authorities to consider the case of deceased civil servant for promotion and if he would be found entitled, the benefits of promotion be extended to legal heirs. In Rameshwar Manjhi v. Management of Sangaramgarh Colliery, decided by the Supreme Court of India vide judgment dated 16-11-1993 [Equivalent citations: 1994 AIR 1176, 1994 SCC (1) 292] the question before the Court was whether the industrial dispute survives when the workman concerned dies during its pendency and can proceedings before the Tribunal/Labour Court be continued by the legal heirs of the deceased workman. It was held that only a cause of action of personal injury or in the case of defamation or assault or battery or malicious prosecution which cannot be said to survive after the death of person concerned. It was thus held that upon the death of a workman the Tribunal will not become functus officio and the reference will not abate.
8. As against this in Muhammad Nawaz, Special Secretary, Cabinet Division, through his Legal Heirs (1991 SCMR 1192), it was held that the Service Tribunals Act, 1973 does not provide any remedy to successor-in-interest of a civil servant. It was thus held that upon the demise of a civil servant the Service Appeal filed by him would abate. In Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad and another v. Syed Fazal Muhammad Farooq and another (C.A 1071 of 1998) Dr. Qamar-uzZaman Ch. v. Syed Fazal Muhammad Farooq and others (C.A. 1082 of 1998) [2005 PLC (C.S.) 1424] after the death of the employee his legal heirs had not been joined as party. It was thus held that in absence of legal heirs of deceased employee it would not be fair to dilate upon the matter of the case. It was, however, held that if the deceased employee was found to be entitled for promotion-to the post of Director General in accordance with law, then pensionary benefits could be extended to his legal heirs. In Muhammad Ashfaq v.
Member (Revenue) Board of Revenue, Punjab, Lahore and another (PLD 2008 SC 703), it was held that right of appeal has been given to a civil servant and there is no provision of Service Tribunals Act, 1973 to provide a remedy to his successor-in-interest. It was thus held that upon the death of a civil servant the appeal would abate.
9. Prior to dilating upon the core issue i.e. Entitlement of the legal heirs of a deceased civil servant to pursue an appeal, we would like to clarify that Misc. Petition No.159/2015 and Misc. Petition No.23/2015 in Appeals Nos.120(L)CE/2002 and 99(L)CE/2004 respectively, have been filed by the legal heirs of the employees of National Bank of Pakistan (NBP), whose predecessor-in-interest did not fall within the definition of civil servant after the deletion of section 2-A of the Service Tribunals Act, 1973. In this regard, suffice to observe that the aforementioned two appeals were filed prior to the repeal/omission of section 2-A ibid from the statute book. The Hon'ble Supreme Court of Pakistan in its landmark judgment reported as 2013 SCMR 314 has declared that change in substantive law, which divested and adversely affected the vested rights of the parties should always have prospective application unless by express word of the legislation and/or by necessary intendment/implication such law made applicable retrospectively. It was further held that vested and substantive rights should be decided according to law, which was prevalent when the action was initiated and the door of the Court was knocked, and/or machinery of the Court was set in motion. All the appeals, which were filed in the FST prior to repeal/omission of section 2-A ibid were deemed to be pending before this Tribunal and the Apex Court of the country directed that the same should be decided according to law, which was in field at the commencement of the lis. In view of the aforementioned authoritative judgment of the Hon'ble Supreme Court of Pakistan, the Misc. Petitions, filed by the legal heirs of the deceased employees of the NBP, cannot be dismissed summarily on the ground of repeal of section 2-A of the Service Tribunals Act, 1973.
10. Adverting to the merits of the instant Misc. Petitions, there is no denying of the fact that only a civil servant, aggrieved by any order, whether original or appellate, made by a department authority in respect of any terms and conditions of his service, could file an appeal in light of section 4 of the Service Tribunals Act, 1973. In this context, it would be relevant to high-light that all the appeals, wherein the Misc. Petitions under adjudication have been moved, were filed by the civil servant during their life-time. The legal heirs are merely soliciting to be impleaded as a party in the appeals, which were already filed by their predecessor-in-interest and were not decided till the time of their death.
11. Before proceeding further, we would like to make it clear in an unequivocal term that the legal heirs of a deceased civil servant cannot file a fresh appeal in the FST under section-4 of the Service Tribunals Act, 1973. We are also conscious of the fact that there is no provision in the Service Tribunals Act, 1973, which explicitly provide that upon the death of the appellant/civil servant, his appeal shall abate. In the absence of any prohibitory provision in the Service Tribunals Act, 1973, we would examine the provisions of Code of Civil Procedure (C.P.C.), which have been made applicable to the Tribunal for the purpose of deciding an appeal. In this regard, it would be advantageous to reproduce hereunder the relevant provisions of the Service Tribunals Act, 1973, as well as C.P.C.
"Section 5(2) of the Service Tribunals Act, 1973.-- A Tribunal shall, for the purpose of deciding any appeal, be deemed to be a Civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure, 1908 (Act V of 1908), ' Order XXII, Rules 1 and 11 of C.P.C.
1. No abatement by party's death if right to sue survives.--- The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.
11. Application of order to appeals.--- In the application of this Order to appeals, so far as may be, the word "plaintiff" shall be held to include an appellant, the word "defendant" a respondent, and the word "suit" an appeal."
' In order to invoke the provisions of Order XXII, Rules 1 and 11, C.P.C., pre- requisite is that as to whether "right to sue" survived. The term "right to sue" refers to the right to seek the same relief, which the deceased civil servant was seeking at the time of his death. Where the cause of action survives, the appeal may be continued by the legal representatives to the extent of inheritable rights. The general rule is that all rights of action existing in favour of a person survive except personal actions connected with the individuality of the 'deceased civil servant. There is no cavil to the legal proposition that personal rights of action die with the person. Normally a civil servant knocks the door of this Tribunal whenever he is aggrieved of an order in respect of terms and conditions of his service. These terms and conditions obviously include pay, promotion, allowances, pension, seniority etc. All these entail financial benefits, which are inheritable and thus upon the demise of a civil servants devolve upon his legal heirs.
12. As discussed above, preponderance of judicial pronouncements of the Superior Courts is in favour of the impleadment of the legal heirs of the deceased civil servants in the pending appeals.
The Hon'ble Supreme Court of Pakistan in the judgment delivered in the case of Chief Secretary, Government of Punjab and others v. Ch. Iftikhar Ahmad reported as 2013 SCMR 392 has held as under:--- "... Peculiar benefits to which legal heirs of a civil servant were entitled did not abate upon death of a civil servant."
' In a case reported as Rakhshinda Habib v. Federation of Pakistan and others and 2014 PLC (C.S.)
247, the Hon'ble Islamabad High Court, Islamabad has held that:- "Civil servant could not be promoted after his death, however, pensionary benefits of promotion could be extended to the legal heirs of the deceased employee...."
' Incidentally, a specific provision is available in Balochistan Service Tribunal (Appeal) Rules, 2013, i.e. Rule 9(4), which permits the legal heirs of a deceased civil servant to pursue the appeal filed by their predecessors-in-interest provided that the benefits likely to accrue on the acceptance of such an appeal are admissible to such legal heirs under the rules. The said rule is being reproduced as under for ready reference:--- "Where the aggrieved civil servant has died, the appeal may be filed, or if already filed by such civil servant before his death, may be pursued, by his legal heir or heirs; provided that the benefit likely to accrue on the acceptance of such appeal is admissible to such legal heir or heirs under any rule for the time being applicable to civil servants."
' No doubt, a similar rule is not available in the Service Tribunals (Procedure) Rules, 1974, but there is no prohibitory provision also. The said omission is legally and adequately filled by the legislatures by making the provisions of the C.P.C. Applicable to the proceedings before the Service Tribunal. At the cost of repetition, we may mention that Order XXII, Rules 1 and 11, C.P.C. Do not provide the abatement of a suit/appeal on the death of the plaintiff/appeal, if the right to sue survive. In this regard, we would like to refer to the judgment of the IG Hon'ble Supreme Court of Pakistan, reported as PLD 1969 SC 65 wherein it is laid down as under:--- "The court ought not to act on the principle that every procedure is to be taken as prohibited unless it is expressly provided for. The Court should proceed on the principle that every procedure which furthers administration of justice is permissible."
' The views of the Indian Supreme Court as expressed in the judgment delivered in the case of Rameshwar Manjhi v. Management of Sangaramgarh Colliery, (supra) is in congruence with the overwhelming pronouncements of Superior Courts of Pakistan.
14. Now we come to the merits of these petitions. In all these cases excepting Misc: Petition No.212/2015 in Appeal No.159(L)CS/2014 the deceased civil servants had filed appeals before this Tribunal concerning the terms and conditions of services which entailed financial benefits inheritable by the legal heirs of the civil servant upon their demise. As such in all these cases the legal heirs are entitled to be impleaded as party to pursue their cases to the logical conclusion.
However, in Misc: Petition No.212/2015 in Appeal No.159(L)CS/2014, as mentioned above, the civil servant had merely challenged his absorption and consequent repatriation. Such a grievance was personal to the civil servant and could not conceivably trickle down to his legal heirs. As such in that case legal heirs cannot be impleaded as party.
15. The upshot of above discussion and observation is that in case, right to sue survives an appeal will not abate on the death of a party. Consequently it is held that the legal heirs of a deceased civil servant could be impleaded as a party to the appeals filed by their predecessor-in-interest regarding their terms and conditions of service entailing financial benefits, which are inheritable by them on the demise of civil servant.
16. For the foregoing reasons, we accept all the titled Misc: Petitions except Misc: Petition No.212/2015 in Appeal No.159(L)CS/2014 and thereby direct the impleadment of the legal heirs of the deceased civil servant as parties in the respective appeals filed by their predecessor-in-interest. However, we dismiss Misc: Petition No. 212/2015 in Appeal No.159(L)CS/2014 being misconceived. We also dismiss Appeal No. 159(L)CS/2014 as having been abated.
17. Parties be informed accordingly.