1996 PLP 342 (PLC(CS))

4. Since the work continued from the year 1980 to the year 1988 it cannot be said to be of temporary nature. Thus, the Company had been appointing the worker and terminating his services for 27 times from 11‑I1‑1980 to 3‑11‑1988, though according to the learned Advocate for the Company the appointment was not always for the job of Packer but he was employed in different categories of work. In any case his work cannot be said to be of temporary nature. It is true that under S.O. 12(3) of the Ordinance the services of a worker whether temporary or permanent can be terminated for explicit reasons in writing but in this case apparently the reasons were to circumvent the Standing Orders Ordinance and the Industrial Relations Ordinance.

5. Unfortunately while the appellant worker was persuing his remedies by filing a petition under section 25‑A of the I.R.O. after his termination on 3‑1 1 1988 and after dismissal of this petition by persuing his appeal before the Tribunal, he died on 22‑2‑1992, while his appeal was pending before the Tribunal. The appellant had mentioned in his affidavit that after termination of his employment he was not gainfully employed and this fact had not been controverted by the Pharmaceutical Company. His basic pay was said to be Rs.1,100 per month.

6. Standing Order 12(3) of the Standing Orders does not specify the type of worker, and it is applicable to all categories of worker whether temporary or permanent. The reasons given for termination are however stereotyped as the circumstances of his repeated appointments show that the Company carried on manufacturing work continuously and there was no re‑organisation or retrenchment.

7. However the appellant died pending these proceedings and the question arises whether the appeal will abate or will survive for the benefits of his heirs.

8. The law commonly applied is, that the personal action also dies with the person: Actio personalis morter cum persona'. In some decisions by this Tribunal it has been held that the decision has to be beneficial to labour and where there is any doubt the labour shall succeed. That accordingly action will continue for the benefit of the legal representatives. This has been held in 1991 PLC 722 Mst. Noorjehan v. Sindh Road Transport Corporation. It was held by Ahmed Ali U. Qureshi, J. as Appellate Tribunal that labour laws having been enacted for welfare of the workers, Labour Appellate Tribunal and Labour Courts should accept the construction that was favourable to workman. That in the absence of specific provision as to whether in such case the rights of the petitioner would lapse or continue, the Tribunal and Labour Courts would accept the proposition favourable to the workman.

9. But in the above case apart from the question of decision being favourable to workman the objective law has not been discussed whether the action should continue or lapse and whether the heirs of the worker could be heard by the Labour Courts in place of the worker. Since under I.R.O. the scope of section 25‑A is very much limited and even when the worker ceases to be a worker after his resignation or retirement, he cannot continue to prosecute his remedies before the Labour Courts.

10. The learned counsel for the Company is however of the view that after death of the worker his legal representatives not being workers cannot pursue the proceedings initiated by the worker because the labour laws allow only a worker to seek the remedy before the Labour Court as LRs. not being workers can approach ordinary Civil Courts for redress. On this point the learned Advocate has referred me to a decision of my learned predecessor Z.A. Channa, J. as Appellate Tribunal in Pakistan Railways v. Sibghatullah 1980 PLC

514. In that case the LRs. of .the deceased Worker were allowed to prosecute the grievance petition before the Labour Court for payment of Group Insurance. It was held by the Tribunal that the grievance petition abates on death of the petitioner. The idea being that only a workman had the right to approach the Labour Court or the Tribunal for any grievance. The Labour Appellate Tribunal Punjab has also taken the same view, in the case of Shabbir Hussain Shah v. Pakistan Railways reported in 1984 PLC 1160. In that case the Labour Court dismissed the grievance petition praying for re‑instatement and back benefits of the workman. The worker died after the decision of the Labour Court. It was held in appeal by the Tribunal that the appeal was not maintainable by legal heirs of the deceased workman. It was also remarked by the Supreme Court in Muhammad Habib Khan v. Pakistan Tobacco Company PLD 1991 SC 183, that the Sindh High Court, had held that the special remedy under section 25‑A, I.R.O., 1969 would only be available to the workman, though under the Workmen's Compensation Act the Commissioner had jurisdiction to adjudicate on the claim preferred by the heirs of the deceased. A claim under the Standing Order 10‑B is admissible to the workman as well as in the case of his death, to his heirs. The question before the Supreme Court was for payment of compensation to the heirs of the deceased worker on account of disability, suffered by the worker. The Supreme Court accordingly held that Commissioner under the Workmen's Compensation Act can award compensation to the heirs of the deceased worker. The observation whether the special remedy under section 25‑A of the Industrial Relations Ordinance would be only available to the workman and not to his heirs was not a matter in issue and the question remained undecided.

11. Since there is conflict of decisions on the point whether the legal representatives of deceased workman can continue the petition or appeal, initiated by the deceased worker, it would be expedient to trace the history of the basic principle governing this law. The rational basis of this law is the legal maxim "actio personalis moritur cum persona". The maxim was to use at common law in U.K. The use has gradually been restricted to criminal law only and some branches of civil law where the right to sue does not survive.

12. The abatement of action by death of the plaintiff has been greatly reduced by Law Reform Act, 1934 and the application of this maxim has been discontinued in cases under Law of Torts, where the right of action do not survive on the death of the party Distinction has, however, been made between the two principles of punishment and compensation while with regard to punishment the liability terminate with the life of the wrong‑doer the claim for compensation survive. It has been stated by Sir John Salmond in Salmond on Jurisprudence' as under: ‑‑ "It is now considered that although liability to afford redress ought to depend in point of origin upon the requirement of punishment, it should depend in point of continuance upon those of compensation., For this form of liability has once come into existence, it is a valuable right of the person wronged; and it is expedient that such rights should be held on a secure tenure, and should not be subject to extinction by a mere irrelevant accident such as the death of the offender. There is no sufficient reason for drawing any distinction in point of survival between a right of a creditor to recover his debt and the right of a man who has been injured by assault of defamation to recover compensation for the loss so suffered by him .. According to the common law an action for penal redress died not merely with the wrongdoer but also with the person wronged. This rule has been abrogated by statute in part only. There can, however, be little doubt that in all ordinary cases, if it is right to punish a person at all, his liability should not cease simply by reason of the death of him against whom his offence was committed. A right of the person injured to receive redress should second to his representative like any other proprietary interest."

13. The law regarding affect of death of the plaintiff or defendant in its application in civil matters is provided in Civil Procedure Code. Rule 1 of Order XXII provides that‑ "the death of plaintiff or defendant shall not cause the suit to abate if the right to sue survives." Right to sue is based upon facts, which go to make up what is called "the cause of action". It includes a right to appeal or right to obtain relief by means of legal procedure. The right of service is purely personal and comes to an end on death of the person claiming it, but if there is a claim for compensation or damages also, the right devolves on the legal representative of the deceased but under the Civil Procedure Code the party must claim in time to bring the legal representative on record. If this right is provided for the common man there is no reason why the labour class should be deprived of this right in the Labour Laws specially when these laws are enacted to provide special benefits to labour who are mostly illiterate and illequipped to file litigation in Court. Mere accident of death of a worker should not result in defendant/management being absolved of the liability to pay the compensation of back benefits to legal representative of the deceased worker. I, therefore, agree with the proposition that the worker's appeal relating to payment of compensation does not abate although the prayer with regard to re‑instatement gets extinguished on account of death of the worker being a personal privilege not capable of assignment.

14. In the result the requirement of section 25‑A of the I.R.O. is to be liberally construed in favour of the worker. If the worker has brought his grievance in Court the claim regarding payment of back benefits does not abate on his death if it is, sought to be continued for the benefits of his L.Rs. The action is brought by the worker and not by the L.Rs. or non‑worker. On death of the worker by legal fiction the action continues and the L.Rs. are merely substituted for the deceased worker. The original action continue and no new action is brought by the heirs of the deceased being non‑workers. There is, therefore, no bar under section 25‑A of the I.R.O., 1969.

15. The deceased appellant has, thus, been deprived of his compensation merely on the ground of non‑continuance of the cause of action. He was a permanent worker but even otherwise his services as any type of worker, could not be terminated under S.O. 12(3) of the Standing Orders Ordinance, 1968, without an order in writing explicitly stating the reasons for the termination. His termination is, therefore, unlawful.

16. The order of the Labour Court is, accordingly, set aside and it is directed that the back benefits counted from the date of termination until the death of worker, may be paid to his legal heirs within thirty days. The appeal is allowed in terms of the above orders. H.B.T./2569/Lb.S Appeal allowed.