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Petitioner: Mst. ZAITOON BIBI VS Respondent: ACCOUNTANT-GENERAL, PUNJAB, LAHORE
2002 P L C (C
2002 P L C (C.S.) 634
[Lahore High Court]
Before Muhammad Sair Ali, J
Mst. ZAITOON BIBI
versus
ACCOUNTANT‑GENERAL, PUNJAB, LAHORE and 2 others
Writ Petition No.4751 of 1994, heard on 11th June, 2001.
(a) Punjab Civil Servants Act (VBI of 1974)‑‑‑
‑‑‑‑S. 18‑‑‑Civil Services Pension Rules, 1963, Rr.4.7 & 4.9‑‑‑Pension and gratuity‑‑‑Family of civil servant‑‑‑Entitlement‑‑‑Family of a Government servant is entitled to receive gratuity from the Government after his death under the provisions of S. 18 of Punjab Civil Servants Act, 1974, and R.4.9 of Civil Services Pension Rules, 1963‑‑‑Where the deceased Government servant does not leave a valid nomination or a‑family as defined in R.4.7(1) of Civil Services Pension Rules, 1963, the Government is not obliged to pay such gratuity.
(b) Punjab Civil Servants Act (VIII of 1974)‑‑‑
‑‑‑‑S.‑18‑‑‑Civil Services Pension Rules, 1963, R.4.7(l)(c)(d) ‑‑‑ Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Gratuity, payment of‑‑‑"Family"‑‑‑Definition‑‑‑Children and widow of deceased Government servant are included in definition of family in ternV of cls. (c) & (d) of R.4.7(1) of Civil Services Pension Rules, 1963‑‑‑Government servant died just after few days of his retirement‑‑‑Children and widow of the deceased Government servant were denied payment of gratuity by Authorities‑‑-Validity‑‑‑Children and widow of the Government servant are included in the definition of family as defined under cls. (c) & (d) of Civil Servants Pension Rules, 1963, and they are entitled to receive gratuity after the death of the Government servant‑‑‑Where the deceased Government servant was unable to apply and fulfil the formality, such inability could not be equated with inaction or failure‑‑‑Procedural technicality should not be allowed to stand in the way of substantial justice and grant of right‑‑‑Constitutional petition was allowed accordingly.
(c) Words and phrases‑‑‑
‑‑‑‑"Failure to perform act"‑‑‑Connotation "Failure" in law involves neglect inaction; inordinate delay, indolence and deliberate non‑performance.
Abdul Aziz Qureshi for Petitioner.
Mrs. Salma Malik, A.A.G. for Respondent.
Date of hearing: 11th June, 2001.
JUDGMENT
In order to seek gratuity on the death of a civil servant husband immediately after his retirement, the petitioner filed the present Constitutional petition in January, 1994.
The admitted facts of the case are that petitioner's husband i.e. Munshi Hurmat Khan, Patwari, was retired from Government service with effect from 5‑2‑1992 at his own request. Immediately thereafter, he expired on 1‑3‑1992, leaving behind the petitioner, two sons and three daughters as his legal heirs. The petitioner after her husband's death applied for pension as well as gratuity in lieu of her husband, who unfortunately could not sign necessary papers/documents for commutation of pension/gratuity between 5‑2‑1992 to 1‑3‑1992.
2. Learned counsel for the petitioner has argued that under subsection (2) of section 18 of the Punjab Civil Servants Act, 1974, the petitioner as widow of a civil servant is entitled to receive gratuity and action of respondents in delaying the matter amounts to non‑payment thereto. He further contended that such action of respondents being contrary to expressed provisions of law is without lawful authority and needs to be rectified by direction to respondents for a decision on payment of gratuity to the petitioner.
3. Contrarily, the learned Assistant Advocate‑General reiterated the stand of respondents taken in parawise comments, and stated that the matter was regulated by Rule 4.9 of the Civil Services Pension Rules, 1963 and since the deceased husband of the petitioner did not leave a valid nomination or a family as per sub‑rule (1) of Rule 4.7, therefore, the petitioner was not entitled to any gratuity.
4. I have considered the arguments of the parties, the record and the facts of the case. The perspective requires reproduction of subsections (1) and (2) of section 18 of the Punjab Civil Servants Act, 1974. The abovesaid provision reads as under:‑‑;.
(1)??????? "Pension and gratuity: ‑‑‑On retirement from service, a civil servant shall be entitled to receive such pension or gratuity as may be prescribed.
(2)??????? In the event of death of a civil servant whether before or after retirement, his family shall be entitled to receive such pensibn or gratuity or both, as may be prescribed."
The abovequoted sub‑rule (2) provides for the entitlement of the family of a deceased civil servant to pension or gratuity. The bare reading thereof shows that the family of a deceased is entitled to "receive such pension, or gratuity, or both, as may be prescribed". The grant of pension/gratuity is prescribed in Civil Services Pension Rules, 1963. Rule 4.9 on the subject of gratuity reads as under:‑‑
4.9.????? "No gratuity will be payable by Government after the death of Government servant if he/she does not leave a valid nomination or a family as defined in sub‑rule (1) of Rule 4.7 or an eligible dependent relative or relatives specified in clause (d) of rule 4.8. "
5.???????? Cumulative effect of abovequoted section 18 .of Punjab Civil Servants Act, 1974 and Rule 4.9 of Civil Services Pension Rules, 1963 is that if permissible under the law and Rules, "family" of a Government servant shall be entitled to receive gratuity from the Government after the death of such Government servant and that the Government will not be A obliged to pay such gratuity, if the deceased Government servant does not leave a valid nomination or a family as defined in sub‑rule (1) of Rule 4.7 of 1963 Rules.
6.???????? In the present case, the deceased Government servant was survived by a "family" in terms of clauses (c) and (d) of sub‑rule (1) of Rule 4.7; which for the purposes of payment of gratuity includes "children" of the Government servant and the "widow" in the definition of "family". As such the family of deceased Hurmat Khan was entitled to rectrive gratuity after the death of the said Government servant.
7. In their parawise comments, respondents Le. Accountant General, Punjab, Lahore and Assistant Commissoner/Colletor Sub‑Division, Kasur have not stated that the deceased Government _servantwas not entitled to gratuity, instead their plea is that the gratuity was admissible only if the Government servant had "himself applied for it" and "as retired official had failed to submit his pension papers to the Pension Sanctioning Authority during his lifetime", his widow was not entitled to the gratuity as laid down in Rule 4.9 of 1963 Rules. It was further stated in parawise comments of learned Accountant‑General, Punjab that "petitioner was also advised to move Government of the Punjab, Finance Department for relaxation of relevant Rules in her favour". Similar arguments were raised by learned Assistant Advocate‑General that owing to non‑submission of pension papers by Hurmat Khan during his lifetime, his widow/family is not entitled to any gratuity.
8. The arguments and pleas of the respondent amount to traversity of law an Rules. They have failed to consider the all important compelling and overriding circumstance of the present case. Hurmat Khan died within 24 days of his retirement. Death did not allow him time to fill necessary forms, complete all possible formalities, sign and Submit the form through the relevant office for sanction by Pension Sanctioning Authority. Government Departments and Offices are well‑known for procedural handicaps and bureaucratic formalities.
9.???????? In view thereof, it is unfair to plead that deceased Hurmat Khan failed to apply for pension/gratuity. Failure, in law, involves neglect, inaction, inordinate delay, indolence and deliberate non‑performance. Under the circumstances, Hurmat Khan cannot be accused of failure. Death took away even a reasonable breathing span and action time from late Hurmant Khan. He was thus "unable" to apply and fulfil the formalities. Such inability cannot be equated with inaction or failure. In view thereof the procedural technicality should not be allowed to stand in the way of substantial justice and the grant of a right.
10. This petition is, therefore, accepted and action of respondents in delaying decision to grant gratuity to the petitioner is declared to be without lawful authority and of no legal effect. The respondents are directed to decide the matter keeping in view the observations hereinabove given, within a period of one month on the basis of record available with them or placed on record of this petition by the petitioner. The parties are let to bear their own costs.
Q.M.H./M.A.K./Z‑57/L ????????????????????????????????????????????????????????????????????? Petition allowed