During the pendency of this appeal, the appellant joined the majority. Resultantly, the CM Application No, 410/2017 was filed by the legal heirs (his widow Nazia Qamer and son Syed Muhammad Majahat through his mother) of the appellant (deceased) with the prayer to implead theth as necessary parties. Thus, a question arose as to whether, the appeal filed by the appellant during his life time would abate on his death and his legal heirs who are not civil servants could legally be impleaded as necessary party in this appeal?
2. The facts of this case essential for the adjudication of this lis as available on the record and in hand are as infra for ready reference:
3. The appellant, applied for the post of "Computer Operator" in response to an advertisement published in the daily newspaper in the year, 2007. Competitive examinations were conducted for the process of selection and the appellant was appointed against the post of a Computer Operator (BS-15) on contract basis, vide, order, dated 17.07.2007, on the recommendations of the District Recruitment .Committee. Accordingly, he joined the service and had been performing his duties but suddenly, after passing of about one and half years of continuous service on contract basis, he was surprisingly terminated through an order dated 20.01.2009 with the objection of lack of requisite qualifications and experience. The appellant being aggrieved challenged the above termination order before the Hon'ble Lahore High Court, Lahore through a Writ Petition No, 1336/2009 whereby, the Hon'ble High Court was pleased to decide the matter vide, judgment dated 18.03 .2009 and set aside the termination order. Consequently, the appellant was reinstated in service. It is pertinent to mention here that the order ibid was not assailed by the respondent department and had attained finality. In the year 2009, the Government of the Punjab, announced a Regularization Policy for its contract employees across the Province. The appellant applied for regularization of his post in light of that notification No, DS(O&M)5- 3/2004/Contract(MF) dated 14.10.2009 but request was not considered, therefore, the appellant again approached the Hon'ble Lahore High Court, Lahore for redressal of his grievance.
4. Consequently, the Health Department after assessing the appellant eligibility, suitability, fitness and qualification etc, regularized him, vide, order, dated 2.7.2010, whereby, in pursuance of the above said notification dated 14.10.2009, the appellant alongwith 14 other colleagues were regularized w,e,f, 14.10.2009. Thereafter, the EDO (Health) Sargodha vide, his order, dated 15.7.2010 withdrew his earlier order dated 2.7.2010. The appellant feeling aggrieved, filed a Writ Petition No, 18828/2010 in the Honourable Lahore High Court, Lahore and the same was disposed of, vide, order, dated 26.10.2010. Consequently, the EDO Health, Sargodha again passed an order dated 12.11.2010 in compliance with the order of the honourble Lahore High Court, whereby the services of the appellant were regularized w,e,f, 14.10.2009. Surprisingly, in the year 2013 the appellant was served a show-cause notice dated 16.4.2013 by the Executive District Officer (Health), Sargodha, containing the following allegations: "Government of the Punjab, Health Department, Lahore Order No, SLO/WP-16853/2012 dated 22.2.2013 that the equivalency of qualifications may be obtained from the University concerned.
The matter was referred to the University of Sargodha. The University of Sargodha has informed vide Letter No, UOS/Acad/426 dated 8.4.2012 your degree of B.Sc course with one subject of computer; science (14 years education) is not equivalent to BCS),"
5. The appellant submitted his defence reply which was found not satisfactory. As a result thereof, the appellant was awarded a major penalty of a removal from service vide, impugned order, dated 1.11.2013. The appellant feeling again aggrieved, filed a departmental appeal before the District Coordination Officer, Sargodha in which the DCO, suspended the order dated 1.11.2013 till the decision of the representation pending before the Secretary Health and allowed the appellant to continue till further order. The Secretary Health, rejected the departmental appeal vide impugned order dated 20.9.2014, hence, this appeal.
6. Notices were issued to the respondents. Arguments had been heard by the then learned Member-IV but appeal was kept for orders on 23.11.2015, 7.1.2016, 18.2.2016, 13.7.2016, and 5.10.2016 by the then learned Member-IV but he retired from the service after attaining the age of superannuation in March, 2016 without announcement of the final judgment. Then the matter was entrusted to the undersigned.
7. Unluckily, the appellant joined the majority on 29.7.2016, leaving behind his widow and son i,e, the petitioners. Resultantly, they filed instant Application No, 410/2017 on 6.4.2017 agitating for their rights.
8. As per Section 4 of the Punjab Service Tribunal Act, 1974 any civil servant aggrieved of any final order, whether original or appellate made by the departmental authority in respect of the any terms and conditions of service may within 30 days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal.
9. The appellant being aggrieved of the first impugned order dated 01.11.2013 and lastly by impugned order passed in the departmental appeal dated 20.9.2014 filed the instant appeal on 20.10.2014 which was well within time.
10.It would be important to mention here that the honourable Supreme Court of Pakistan in Constitutional Petition Nos, 53/2007 and 83/2012 reported as PLD 2013 SC 501, Riaz-ul-Haq Case, held as under: "41. It is pertinent to mention here that as the service tribunals are not only deemed to be a civil Court but also exercise judicial powers, therefore, they are included in the term "Court" mentioned in Article 175 of the Constitution."
In this view of the matter, Punjab Service Tribunal squarely falls within the definition of a Court. It is also settled law that 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 the justice is permissible. Reliance is placed on PLD 1969 SC 65.
11. It is no doubt that there is no specific provision provided in the Punjab Service Tribunals Act, 1974 that in case the appellant joins the majority during the pendency of the appeal and his legal heirs were to be given the right to become a party' in the lis. In light of the Section 5(2) of the Punjab Service Tribunals Act, 1974, a tribunal shall be deemed to be a civil Court and shall have the same powers as vested in such under the Code, of Civil Procedure 1908 (Act V of 1908). So, in absence of any specific provision as mentioned above, it will not be presumed that the Court is always prohibited to adopt the principles as given in the Civil Procedure Code of 1908. It is a settled law that the Court is not supposed to be a silent spectator and shall not shun his hands prohibiting himself to decide any lis unless expressly provided for. So, taking the wisdom and guideline from the above celebrated judgments I would like to reproduce the order XXII Rules 1 and 11 of CPC: "1. No abatement by party's death if right to sue survive. The death of a plaintiff for defendant shall not cause the suit to abate if the right to sue survive.
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, CPC 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 representative 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.In light the celebrated judgments of the honourable Superior Courts as cited above and the codified law regarding the impleadment of the legal heirs of the deceased civil servants in the pending appeals, the preponderances are in favour of the deceased civil servants. It has also been held in the case of Chief Secretary, Government of the 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 held entitled, did not abate upon the death of a civil servant."
It has also been held in a case titled as Rakhshanda Habib vs. Federation of Pakistan and others and 2014 PLC (CS) 247, as under: "A Civil servant could not be promoted after his death, however, the pensionary benefits of promotion could be extended to the legal heirs of the deceased employee."
Moreover, it would be apt and imperative to seek guidance from the case law in Mst. Ghazala Tariq vs. Federation of Pakistan through Secretary Chairman Railway Board and others 2005 PLC (CS)
271: "Where a civil servant was terminated from the services, he filed an appeal before the service tribunal, during the pendency of the appeal -the civil servant expired. His wife as a widow moved an application for early hearing of the appeal but the application' and the appeal were dismissed as abated. Then in continuation of the said appeal and order of abatement, a writ petition was filed before the honourable Lahore High Court, Lahore challenging the legality of the said abatement order. It was held that if the employee had remained alive he might have won his case successfully before the service tribunal and as such after his death his legal heirs can survive the cause of action to agitate substantiating that order of termination of the employee deceased was illegal and void."
13.In 2006 SCMR 1287 in case of Mst. Zuldid and others vs. President ABL and others, a where a bank employee was dismissed on the allegation of misconduct he agitated the matter before the learned labour Court who set aside the order of dismissal. The matter was assailed before the learned Labour Appellate Tribunal by the bank in an appeal wherein the learned Labour Appellate Tribunal restored the order of dismissal. The order of learned Labour Appellate Tribunal was challenged before the honourable High Court through a constitutional petition which was dismissed solely on the ground that the employee had died during the pendency of the appeal.
That, the order of the honourable High Court was challenged before the honourable Supreme Court of Pakistan, by the legal heirs and it was held that any 'action' might abate on the death of the party but cause of action might survive his death. It was implified that the death in such context did not mean a "civil death". It was explained that it was the nature of the cause of action which could determine its survival and was held if the constitutional petition has been allowed. The order, of the learned Labour Appellate Tribunal would have been set aside. And the order of the learned Labour Court reinstating the predecessor in interest had been restored. It was such held that even after the death of the employee, legal heirs would have inherited pensionary benefits. It was thus held that the Constitutional petition could not have abated. .In the circumstances the legal heirs had a right to be impleaded and to pray for judgment on merits.
14. In another case 2010 PLC (CS) 245 in Ltd. Col Rtd Arshad Mahmood Ch. vs. Karakurm International University through acting Registrar and 3 others, it was held that in case the order of termination of service of a civil servant (deceased) was observed by the Court to be illegal and without lawful authority, then the relief about payment of salaries due for the period from the date of termination from services till the date of his death would be granted under the law as an inheritable right of legal heirs of the deceased.
15. It has also been held, in 2013 SCMR 392 in a case, Chief Secretary, Government of the Punjab and others vs. Iftikhar Ahmad, wherein the Service Tribunal directed the Competent Authority for reconstitution of selection board to examine the right of the civil servant for regularization of her services which was not complied with because, the civil servant expired during the pendency of lis.
The husband as a legal heirs of the civil servant pursued the matter then the honourable Supreme Court observed and held that peculiar benefits to which the legal heirs of civil servant were entitled did not abate upon the death of the civil servants.
16. It was also settled in 2014 PLC (CS) 247 in a case Rakhshanda Habib case vs. Federation of Pakistan and others a civil servant was wherein a civil servant was superseded had filed. appeal before the Service Tribunal the said civil servant died during the pendency of appeal which was pursued by his wife after institution of a 'constitution petition to seek the promotion of her deceased husband. Then it was held that a civil servant could not be promoted after his death, however, pensionary benefits of the promotion could be extended to the legal heirs of the civil servant deceased employee. A direction' was issued to the respondent to look into the case of the deceased civil savant for promotion in case he would be found entitled the benefits of the promotion be extended to the legal heirs of the deceased.
17.It was also held in 1994 sec (1) 292, 1994 AIR 1176 that in case of Rameshwar Manjhi vs. Management of Sangramgarh Colliery, decided by the Supreme Court of India dated 16.11.1993, there was a question before the Court that, whether the industrial dispute survives when the work man dies during the pendency of the lis and proceedings before the labour Court can be continued by the legal heirs of the deceased employee workman? Then, it was settled that only a cause of action of personal injury or in case of defamation or assault or betray or malicious prosecution cannot be continued after the death of deceased employee. It was thus held that upon the death of the workman the tribunal will not become "functus officio" and reference will not be abated.
18.As against this, it has been held in 1991 SCMR 1192 titled Muhammad Nawaz Special Secretary, Cabinet through his legal heirs vs. Ministry of Finance, Government of Pakistan through its Secretary Islamabad decided on 6.10.1990: "The appellants admittedly are the legal heirs of the deceased civil, servants and there being no provision in the Service Tribunals Act, 1973 to provide any remedy to the successors in inters of civil servant the learned Tribunal in our view was correct in holding that the appeal before it stood abated the same is hereby maintained.
Before parting with the judgment, we may, however, add that the appellants are liberty to approach a civil Court of competent jurisdiction to seek their redress if so advised. Thus appeal fails and the same is dismissed no orders as to costs."
In a CA 1071 of 1998 titled Federation of Pakistan through Secretary Establishment Division Govt of Pakistan Islamabad and others vs. Syed Fazal Muhammad Farooq and another, C .A 1082 of 1998 2005 PLC (CS) 1424 Dr. Qamer uz Zaman vs. Fazal Farooq and others where after the death of the civil servant the legal heirs were not joined as party it was held that in absence of the legal heirs of the deceased employee it would not be a fair to dilate upon the natter of the case. It was however, held that if the deceased was found to be entitled for promotion to the post of D.G then his pensionary benefits