' SYED ALLY MADAD SHAH (CHAIRMAN).---Appellant Mr. Masihuzzaman Khan, who retired from service as an Assistant Registrar of Trade Unions (B-17), National Institute of Labour Administration Training, Karachi on attaining the age of 60 years on 1-6-1985, preferred this appeal for payment of arrears of his pay etc. Amounting to Rs,2,33,994 with interest thereon from 16-12-1971 to 30-9-1983.
2. The brief history of the service of the appellant is outlined in judgment of a Bench of this Tribunal dated 22-2-1983 in Appeal No,137(K) of 1980. He had entered the service of the erstwhile Government of India as a Clerk. On Independence of 1')Icistan, he opted to serve the Government of Pakistan. He was absorbed in the Department of Central Labour Commissioner under the Ministry of Labour, Government of Pakistan and was also confirmed there. He was promoted to the post of Labour Officer on 6-12-1958. In the year 1962, the work of administration and implementation of Labour Laws was decentralised and assigned to the Provinces. His services were placed at the disposal of the Government of East Pakistan. He was posted in the Department of Central Labour Commissioner, Dacca, as an Assistant Registrar of Trade Unions. He lost his job on the fall of East Pakistan in 1971 Indo-Pakistan War. He escaped to the West Wing of Pakistan which is now the territory of Pakistan on the world map. He faced dilemma of his absorption in the service of Pakistan. He could not find his absorption in service. He, therefore, preferred Appeal No,137(K) of 1980 before this Tribunal. His appeal was allowed by judgment, dated 20-2-1983 and it was directed that the Federal Government should reconsider his case for his absorption in service. His case was re-examined and ultimately a decision was taken which is reflected in following letter dated 24-9-1983 addressed to the A.G.P.R., Islamabad from the Ministry of Labour, Manpower and Overseas Pakistanis (Labour Division) Annexure 'A-3', at page 14 of the memo. Of appeal:-- "GOVERNMENT OF PAKISTAN MINISTRY OF LABOUR, MANPOWER AND OVERSEAS PAKISTANIS (LABOUR DIVISION)
No, LR.4(2)/76 Islamabad the 24th September, 1983 ' From ' Mr. S.A. Aziz, Section Officer, Phone: 28390 ' To ' The Accountant-General, Pakistan Revenues, Islamabad.
' SUBJECT: CREATION OF A SUPERNUMERARY POST OF ASSISTANT REGISTRAR, TRADE UNIONS IN NATIONAL INSTITUTE OF LABOUR ADMINISTRATION TRAINING, KARACHI, UNDER THE LABOUR DIVISION.
Sir, ' I am directed to convey the sanction of the President to the creation of a supernumerary post of Assistant Registrar of Trade Unions with effect from the 16th December, 1971 in National Institute of Labour Administration Training, Karachi, under Labour Division to absorb Mr. Masih-uz-Zaman Khan, which he held prior to his repatriation from East Pakistan. The post of Assistant Registrar of Trade Unions shall carry the usual scale of pay applicable to junior Class-I post under the defunct Government of East Pakistan and the pay of Mr. Masih-uz-Zaman Khan shall be fixed under the normal rules by A.G.P.R. In the corresponding Scale of Pay No,17 on the introduction of National Pay Scales 1972, 1977 and Basic Pay Scales, 1983 on 1st March, 1972, 1st May, 1977 and 1st July, 1983.
(2) The above-sanctioned post of Assistant Registrar of Trade Unions shall stand abolished from the date Mr. Masih-uz-Z,aman Khan is adjusted against an ex-cadre post in any attached/subordinate Office of Labour Division.
(3) The expenditure involved will be debited to the object classification No,400-Social Services 440- Manpower and Labour Management 441-Administration, 445-Vocational and Manpower Training Scheme for Training of Labour Officers and will be met either from within the budget grant of the N.I.LA.T. Karachi or by reappropriation/supplementary grant.
(4) This issues with the concurrence of Finance Division (Regulation Wing) through whom a copy is being endorsed. Your obedient servant, (Sd.) S.A. Aziz Section Officer."
' Pursuant to the aforesaid decision, following notification dated 31-10-1983 was issued in respect of the assumption of duty by the appellant (Annexure `A-4', page 16 of the memo. Of appeal):-- "TO BE PUBLISHED IN PART I OF THE NEXT ISSUE OF GAZETTE OF PAKISTAN GOVERNMENT OF PAKISTAN MINISTRY OF LABOUR, MANPOWER AND OVERSEAS PAKISTANIS (LABOUR DIVISION)
Islamabad, the 31st October, 1983.
NOTIFICATION No,LR-4(2)/76: Consequent upon the creation of a supernumerary post of Assistant Registrar of Trade Unions in B-17 in the National Institute of Labour Administration Training, Karachi with effect from the 16th December, 1971 under Labour Division's letter of even number dated the 24th September, 1983 to absorb Mr. Masih-uz-Zaman Khan, he formally assumed charge of his post on the forenoon of 1st October, 1983. He shall continue to hold the post of Assistant Registrar of Trade Unions in National Institute of Labour Administration Training, Karachi, until further orders.
(Sd.) S.A. Aziz Section Officer."
' The appellant held the aforesaid post until he retired from service on superannuation on 1-6-1985.
However, the question of payment of arrears of pay etc. Remained unsettled. The appellant went on making representations and there was inter-departmental correspondence. The appellant did not get any relief and his case was closed by the following memorandum dated 18-8-1985, addressed to him by Ministry of Labour, Manpower and Overseas Pakistanis (Labour Division)
(Annexure `A-1', page 5 of the memo of appeal).
"GOVERNMENT OF PAKISTAN MINISTRARY OF LABOUR, MANPOWER AND OVERSEAS PAKISTANIS (LABOUR DIVISION)
No, LR-4(2)/76 Islamabad, the 18th August, 1985.
MEMORANDUM Subject: GRANT OF ARREARS OF PAY AND ALLOWANCES TO MR. MASIHUZZAMAN KHAN.
ASSISTANT REGISTRAR OF TRADE UNIONS. NATIONAL INSTITUTE OF LABOUR ADMINISTRATION TRAINING KARACHI FOR THE PERIOD FROM 16-12-1971 TO 30-9-1983.
' Reference his appeal dated 25-4-1985 addressed to the Establishment Secretary on the above subject Mr. Masihuzzaman Khan, Ex-Assistant Registrar of Trade Unions, National Institute of Labour Administration Training, Karachi, is informed that the Establishment Division has sent the following reply in the matter:- "The case has been examined in this Division and found that the Establishment Division has nothing to decide as to grant of arrears of pay and allowances to Mr. Masihuzzaman Khan for the period from 16-12-1971 to 30-9-1983."
(Sd.) Ch. Mushtaq Ahmad Section Officer."
' He then preferred this appeal on 18-9-1985.
3. The appellant died during the pendency of appeal, leaving behind a widow, Mst. Rahmatunnisa Khanam; son Asaduzzaman Khan, and three daughters - Farhat Khanam, Nighat Khanam and Lubna Khanam. They made an application dated 12-7-1989, through an Advocate, that they may be substituted in place of the appellant as legal representatives. The application was allowed by order, dated 26-6-1990.
4. The appellant has placed reliance on the decision of this Tribunal in Appeal No,137(K)/80, already referred to above, and the sanction of the President conveyed under letter dated 24-9-1983, the creation of a supernumerary post of Assistant Registrar of Trade Unions, with effect from 16-12-1969 for hi absorption, and placed reliance on a decision of the Supreme Court reported I PLD 1970 SC at page 415 and certain inter-departmental correspondence. The same grounds were reiterated at the hearing by the learned Advocate who appeared on behalf of the legal representatives of the deceased appellant.
5. The respondents have failed to file written objections in time, but only a copy of an unsigned draft was produced at the hearing. The learned counsel representing the respondents could not urge any grounds in opposition to the appeal except what is stated in the draft objections that the appellant was not entitled to arrears of pay in view of the provisions of the Ex-Employees of the Former Government of East Pakistan (Appointment to Federal Posts) Ordinance, 1983.
6. The deceased appellant had misfortune of suffering misery in his service career. On Independence of Pakistan, he had to migrate to Pakistan and seek employment. Consequent to change in the service set up, he was allocated to East Pakistan. On fall of Dacca in 1971 Indo- Pakistan War, he had to escape to West Pakistan (now Pakistan) and could find absorption in service only in the year 1983. The determination of his emoluments for the intervening period depends upon the sanction of the President as contained in the letter dated 24-9-1983 addressed to the A.G.P.R. From the Labour Division, reproduced above. It would appear from the letter that the supernumerary post of Assistant Registrar of Trade Unions was created for absorption of the appellant in service with effect from 16-12-1971 and his pay was to be fixed by the A.G.P.R. In accordance with the relevant rules "in the expenditure to be debited to the object classification No,400 Social Services, 440 Manpower and Labour Management, 441 Administration, 445- Vocational and Manpower Training Scheme for Training of Labour Officers and it was to be incurred either from within the budget grant of the N.I.L.A.T., Karachi, or by appropriation/supplementary grant. 4 The aforesaid order of the President was in accordance with the provisions of the Ex- Employees of the Former Government of East Pakistan (Appointment to Federal Posts) Ordinance, 1983 and the appellant was entitled to get the arrears of pay etc. From 16-12-1971. His arrears were worked out by the National Institute of Labour Administration Training at Rs,2,33,994 for the period from 16-12-1971 to 30-9-1983 as per letter dated 24-12-1984 by the Principal of N.I.LA.T to the Labour Division. The appellant has also filed a copy of Office Memorandum dated 4-1-1973 (Annexure `A-6' page 25 of the memo. Of appeal) to the effect that the President had been pleased to decide that in the case of Central Government servants who were serving in the Province of East Pakistan at the time of its occupation by the enemy and had left Pakistan on or after 1612-1971 and had reached West Pakistan, the period of their absence from 1612-1971 upto the date of resumption of duty in West Pakistan was to be treated as period spent on duty. Thus, there seems no doubt that the appellant was entitled to the arrears of pay as determined by the Institute. The cause of action for claiming payment of the so determined sum of Rs,2,33,994 did survive to his legal heirs as already held vide order dated 26-6-1990. The appeal is allowed accordingly. The appellant's claim for interest over the arrears is Ilusory and is not sustainable and is rejected. The appeal stands disposed of I Accordingly.