1. ' Allah Dad petitioner was a Chaukidar in service of Attock Refinery Limited respondent No, 2 in the writ petition. On 30-12-1980, he was dismissed from service on account of misconduct being absent from duty. He served a grievance notice upon his employer and receiving no satisfactory response filed a petition under section 25-A of Industrial Relations Ordinance, 1969 before Punjab Labour Court No, 6 at Rawalpindi. Respondent contested the grievance petition. On 21-2-1982, Labour Court ordered petitioner's reinstatement in service with full back benefits. Respondent filed an appeal before Labour Appellate Tribunal. Learned Tribunal found against the appellant on merits but gave relief to them on the ground that Labour Court because of application of the Pakistan Essential Services (Maintenance) Act, 1952 had no jurisdiction to entertain the dispute and that only remedy for the workman was to file an application under section 7 of the above Act.
2. Consequent upon these conclusions, appeal was allowed on 23-10-1983 and it was ordered that grievance petition be returned to the workman for its presentation to a proper forum. Against this decision, Allah Dad filed a petition under Article 199 of the Constitution in the High Court. To examine the point relating to jurisdiction of the Labour Court, writ petition was admitted to hearing on 5-11-1983. Unfortunately, before the writ petition could receive hearing on merits, petitioner breathed his last. With the happening of the above event, his legal representatives applied for being substituted for him on record so as to further prosecute the fis instituted by their predecessor-in-interest. There is no dispute that the heirs given in Civil Miscellaneous 462 of 1989 are the true legal representatives of the deceased petitioner and I see no legal bar to order their substitution. It was contended by the employer's learned counsel that with the death of the petitioner, cause has abated altogether and right to sue does not survive to the legal representatives. It was submitted that it was a personal action which vanished with the natural death of the petitioner. In the altered circumstances, neither reinstatement in service was possible nor the consequent benefits could be awarded. In this behalf, learned counsel for the respondent referred to section 306 of the Succession Act, 1925 and relied upon the cases of Pakistan Railways v.
3. Sibghatullah Khan 1980 PLC 514, Mrs. Iqbal Begum v. Lawrencepur Woollen & Textile Mills 1980 PLC 1102. To rebut the plea of abatement of the grievance, learned counsel for the legal representatives of deceased petitioner heavily relied upon the decision in case of Muhammad Afzal (through legal heirs) v. House Building Finance Corporation, Karachi PLD 1976 Kar. 1121 in which Zafar Hussain Mirza, J., as his Lordship then was observed that a cause in the suit for recovery of arrears of salary accruing by way of consequential relief upon death of the claimant survived to his legal representatives to prosecute the claim to its logical end. Upon close reading, it is clear that the ratio decided of the case law relied upon by the learned counsel for the respondent is not in point to the facts arising for decision in the present writ petition. Real question is whether the right to sue survives in the present case to the heirs and legal representatives of the original petitioner. The words 'right to sue' must be interpreted to mean the right to seek relief which the deceased had prayed for. The relief sought by the deceased petitioner for reinstatement in service was purely personal to him and such personal right which really involved the continuance in service or otherwise of a person would not survive to his legal representatives. This was too obvious to require any legal argument in support of it but if it is found that dismissal of the deceased petitioner was invalid or improper, in that eventuality, his legal representatives would be entitled to recover from the employer such emoluments and other monetary benefits which the delinquent employee would have been entitled to during the period, he was kept out of the employment. An identical question fell for consideration before a Division Bench of Gujarat High Court (India) in Ibrahimbhai Karimbhai and others v. State of Gujarat AIR 1968 Guj. 202, in which it was held that right to sue survived to the legal heirs. In taking this view, the Gujarat High Court distinguished a case from Madras High Court reported as AIR 1966 Mad.
260. In AIR Manual (Vol. V), Note 16 (at pages 314-315) an extract from the decision reported as 1972 Serv. L R 852 (854) (Punj.) is recorded. It reads:--" Where the reliefs claimed were reinstatement in service and arrears of salary the legal representatives of the deceased are entitled to be brought on record as they have interest in the salary of the deceased till his death in case the order of termination of service is set aside but the right of the deceased to continue in service was personal to the deceased". Similarly, in AIR Manual (Vol. XXXIII), Note 3, under section 306 of Succession Act, 1925, at page 287, following extract from 20 Guj. L R 335 is recorded. It reads that "on the death of the workman even when the reference is of an individual dispute under section 2-A of the Industrial Disputes Act, the heirs and legal representatives can agitate the question firstly whether the termination of the deceased workman was just, legal and proper and secondly, if it was wrongful and invalid, then what compensation in terms of money could have been given to the workman from a particular date fixed by the tribunal". These decisions from which the extracts were taken were not available in the High Court Library and, therefore, 1 had not the advantage of reading these decisions. Nonetheless, above extracts appear to enunciate correct statement of law with which I agree. In the instant case, petitioner himself was grieved by his dismissal from service. After taking required preliminary steps, he took his grievance to the Labour Court which gave him the relief for reinstatement in service as also the back benefits.
4. Employer filed an appeal. Learned Appellate Tribunal declined relief to the workman on the sole ground that the Labour Court had no jurisdiction because the provisions in the Essential Services (Maintenance) Act, 1952 barred its jurisdiction. As for merits, learned Appellate Tribunal explicitly observed that the appellant before it had no case. In this background, petitioner approached the High Court. Unfortunately, nature did not allow him enough time to see the result of his writ petition and reap its fruits. In case, as was found by the Labour Court that dismissal was bad and defective, the petitioner if alive would have been entitled to reinstatement in service and also ancillary benefits but now, when he is dead, he cannot be put in service but it is difficult to deny the benefits flowing from the successful avoidance of the dismissal, to his legal heirs. Therefore, neither the writ petition abates nor the legal cause leading to it.
5. ' Next question that falls for decision is whether the Court had jurisdiction to entertain the labour dispute. In holding that it had no jurisdiction, learned Appellate Tribunal relied upon the decision of the Supreme Court in Karachi Electric Supply Corporation Ltd. v. National Industrial Relations Commission and another PLD 1982 SC 113. In a more recent decision of the Supreme Court in Civil Appeals Nos. 290 to 293 of 1981 decided on 10-12-1988, it was held that adjudicatory jurisdiction of the Labour Court is not ousted by application of the Pakistan Essential Services (Maintenance) Act, 1952 to a particular Establishment. In this view, judgment impugned cannot be upheld. Accordingly, it is set aside and is declared to be of no legal effect. Result is that the appeal filed by Attock Refinery Limited shall be deemed to be pending requiring decision afresh in accordance with law by the learned labour Appellate Tribunal. AS the decision of the writ petition proceeded in accordance with the change in law, I make no order as to costs.