ORDER SHEET
IN THE HIGH COURT OF SINDH BENCH AT
SUKKUR
Constt.
Petition No.D-1519 of 2011
|
Date |
Order with signature of Judge |
Present:
Mr. Justice Aqeel Ahmed Abbasi &
Mr. Justice Muhammad Faisal Kamal Alam
Date of hearing: 13.04.2016
Date of
announcement:
Mr. Sohail Ahmed Khoso,
Advocate for petitioner
Mr. Liaquat Ali Shar, Addl:
A.G.
J
U D G M E N T
MUHAMMAD
FAISAL KAMAL ALAM, J. Petitioner through
the instant petition while impugning the letter dated 28.5.2010
[reference No.SOF (Admn) 2 (362)/2010], whereby the claim for payment of group
insurance to petitioner has been refused, is also seeking processing the claim
of Financial Assistance by Respondents and its payment to Petitioner.
2. Material
facts leading to the filing of the present constitutional petition are that
that the petitioner’s uncle deceased Allah Dino, son of, Abdul Ghafoor was
serving as Chowkidar in BS-02 in the Food department of Government of Sindh,
that is, Respondents.
3. The
undisputed facts are that the above named Allah Dino passed away on 1.10.2007
and his wife had earlier expired in the year 1987 and they were issueless.
During his life time the deceased Allah Dino has nominated his nephew, the
present petitioner as nominee in his group insurance policy, which is available
on page 49 of the case file. As per petitioner, his uncle by executing an
affidavit made the present petitioner as nominee as well as beneficiary in
respect of GP fund and other service benefits. In the said affidavit the
present petitioner has also been acknowledged as a legal heir.
4. After
the death of above named Allah Dino, the present petitioner approached the
respondents and initially two cheques were issued to the present petitioner by
respondent No.5 on account of GP funds and last salary in the sum of Rs.5464/-
(five thousand, four hundred, sixty four) and Rs.29213/- (twenty nine thousand,
two hundred thirteen) respectively. However, with regard to the claim of group
insurance, respondent No.4 [Deputy Director Food, Sukkur Region] forwarded the
request of petitioner to State Life Insurance Corporation {SLIC}. In the
intervening period, the petitioner preferred a Succession Petition bearing
number 17 of 2009 in the Court of learned IInd-Senior Civil Jude Sukkur, in
which, inter alia, he has disclosed the names of his siblings, being the only
surviving legal heirs of afore named Allah Dino [late], which names are
mentioned herein below:-
1. Abdul Ghafoor
2. Mst.Ameer Khaton
3. Mst. Imam Khatoon:
5. Subsequently,
the said petition was granted vide order dated 11.8.2009 and the petitioner’s
plea for collecting the group insurance claim of Rs.150,000/- [rupees one
hundred and fifty thousand only] from SLIC and financial assistance of Rs.200,000/-
[rupees two hundred thousand only] from Government of Sindh was allowed, inter
alia, by observing that the petitioner’s brothers and sisters have also sworn
their respective affidavits in favour of present petitioner.
6. Present
constitutional petition is contested by respondents No.3 and 4, whereas
respondent No.5 (District Food Controller, Sukkur) has submitted a formal reply
and did not question the entitlement of petitioner.
7. The
main stance of contesting respondents is that under the Pension Rules 1963, the
petitioner is not entitled to get service benefits of the deceased, as
nephews/nieces are not recognized by the said rules as beneficiary. Both the
respondents have supported the issuance of above mentioned impugned letter of
refusal [dated 28.5.2010].
8. The
counsel of petitioner (Mr. Sohail Ahmed Khoso) has argued that status of
present petitioner is not only of a nominee but he is also a surviving legal
heir of his deceased uncle who died issueless. In support of his contention, he
has relied upon the following case law:
1). PLD 1984
2).
PLD 1999 CLC [Civil Law Cases] page 806
3).
PLD 1991 Supreme Court page 731
9. Dicta
laid down in the aforementioned decision clarifies that the group insurance
being not part of inheritance (Tarka) and the same is payable to the nominee
mentioned therein. Since, it is an admitted position as also supported by the
documentary evidence mentioned hereinabove
(annexure-N, page 49 of the case file) the present petitioner has been
mentioned as nominee in the Nomination Form of State Life Insurance Corporation,
therefore, he is entitled to the amount of group insurance, which the
respondents are liable to pay to the present petitioner.
10. Similarly
in the above cited judgment the Shariat Appellate Bench of the Honourable
Supreme Court (PLD 1991 SC 731) has expounded the position about inheritance
vis-ŕ-vis service dues. This was further explained in subsequent judgment of
this Court reported in PLD 2010 Karachi page 153, inter alia, by holding, that
benefits such as, special benefit of retirement, special compensation, group
insurance under provident policy and benefits that fall within purview of grant
and concession and only payable after the death of the employee, cannot be
treated as heritable by all heirs, but the same are required to be distributed
in accordance with relevant service rules and regulation of the employer
organization.
11. The
present case is of peculiar nature because here the petitioner is not only a
nominee of the deceased Allah Dino but considering the facts that the said
deceased was issueless and whose wife pre-deceased him, the present petitioner
and his siblings mentioned hereinabove do fall within the purview of heirship
of the said deceased. Learned Additional Advocate General (Mr. Liaquat Ali
Shar) has relied upon Rules 4.6 and 4.7 of the West Pakistan Civil Services
Pension Rules, 1963, in support of his arguments that the word/term ‘family’
mentioned in the said rules although includes daughter-in-law and even sister
of the deceased government servant, but it does not include nephews and nieces.
The Pension Rules have been taken into account and it can be seen that Rules
4.8, 4.9 and 4.10 provide answer to the present issue. According to these Rules,
particularly clause (d) of Rule 4.8 provides that when a government servant
leaves no family then the
gratuity amount can either be given to a person who has been validly nominated (under lining
is for emphases) and/or if that is not the case, then to the following relatives of the deceased government
servant:-
"(i) brothers below the age of 21 years;
(ii) un-married and widowed sisters;
(iii) father; and
(iv) mother."
12. The above Rule is applicable mutatis mutandis in case of
family pension. Secondly, in all these years except for the present petitioner
no one else has come forward for claiming the post death service dues of the
above named deceased, which factor further fortifies the case of present
petitioner. Therefore, the objection of respondents in this regard is not
tenable.
13. It is also noteworthy that the above mentioned impugned
letter has only disallowed the group insurance claim of the petitioner but has
not mentioned the other claim relating to financial assistance, therefore, in
view of the above discussion the said impugned letter of 28.5.2010 is set
aside.
15. The other aspect of the case is that petitioner is claiming
amount lying with respondents under the head of financial assistance. Gist of
the aforementioned case law is that the amount payable under the head of
financial assistance/ financial benefits does not form part of heritable estate
of a deceased but is payable/distributable only to those members of deceased
family who are entitled to the same as per rule and regulation of service.
Since respondents have neither disputed that petitioner is not a valid nominee
of the deceased Allah Dino, nor they have agitated any other express
prohibition under the rules, therefore, amount payable under financial assistance
and other service dues shall be payable by respondents to petitioner. Consequently,
we accept the instant constitutional petition and direct that amounts toward group
insurance and financial assistance be paid by the respondents to the petitioner,
after fulfillment of codal formalities.
JUDGE
JUDGE
Suleman Khan/PA