Full Judgment Text & Judicial Ruling

2015 P L C (C.S.) 1255

[Peshawar High Court]

Before Haider Ali Khan, J

DAWA KHAN

versus

SECRETARY (SARFOON) GOVERNMENT OF PAKISTAN, ISLAMABAD and 14 others

C.R. No.606-M of 2013, decided on 4th May, 2015.

West Pakistan Civil Servants Pension Rules, 1963---

----Rs. 4.7 & 4.10---Pension-cum-Gratuity Scheme, 1954---Specific Relief Act (I of 1877), S. 42----Suit for declaration---Gratuity---Family pension---Right of inheritance in shahada fund, gratuity and pension---Scope---"Family"---Definition---Plaintiffs filed suit for declaration claiming that they, along with defendants, all being legal heirs of deceased, who had embraced martyrdom, were entitled to their shares in amounts on account of shahada package, gratuity and pension---Both trial court and appellate court dismissed the suit on ground that only widow and children were entitled to share in disputed amount---Contention raised by plaintiffs was that as Guardian Court had issued succession certificate in favour of said persons regarding amount left by deceased, which was lying with Bank, so they were also entitled to share disputed amount---Respondents took plea that under Rr.4.7 & 4.10 of West Pakistan Civil Servants Pension Rules, 1963, only wife and children of deceased civil servant were entitled to pension and gratuity, and that disputed amount on account of shahada package was in shape of grant which had been awarded after death of deceased and the same, therefore, could not be treated as inheritable by all legal heirs of deceased, except widow and children of deceased--- Validity---Shahada package was service benefit and was not due to deceased during his life, and the same was in nature of grant payable after his death---Shahada package, therefore, could not be treated inheritable by all legal heirs, except widow and children, who were nearer beneficiaries and remained dependent mainly on deceased---Widow and children of deceased deserved to receive benefit of shahada package to exclusion of other legal heirs, including plaintiffs---Amount on account of shahada package , gratuity and pension were not legacy of deceased employee as he was not owner of the same during his life, and only widow and children were entitled to the same---Under Pension-cum-Gratuity Scheme, 1954, word 'family' had been defined as consisting of husband, widow and children, who were entitled to gratuity and pension in case of death of employee---Plaintiffs, as parents of deceased employee, were not entitled to get any share in shahada fund, pension and gratuity---No illegality, infirmity misreading or non-reading was pointed out in concurrent findings of courts below---Revision petition was dismissed in circumstances.

PLD 1991 SC 731 and 2014 CLC 126 ref.

2011 CLC 1528 rel.

Naeem-ud-Din for Petitioners.

Mian Hussain Ali, Deputy Attorney-General, Sabir Shah, A.A-G. and Abdul Ghaffar for Respondents.

Date of hearing: 4th May, 2015.

JUDGMENT

HAIDER ALI KHAN, J.--- Petitioners have moved the instant revision petition under section 115, C.P.C. against the judgment and decree dated 14-9-2013 of the learned District Judge/Zilla Qazi, Malakand at Batkhela, whereby appeal of the petitioners against the judgment and decree dated 3-6-2013 of the learned Civil Judge/Illaqa Qazi, Malakand at Batkhela, has been dismissed.

2. Brief but necessary facts of the case are that petitioners/plaintiffs filed a suit for declaration against the respondents/defendants to the effect that they are entitled to their Shari shares in legacy/amounts, detail of which is annexed with the plaint, left by late Hassan Khan. The suit was contested by the respondents Nos.1 and 12 by filing their written statement whereas respondents Nos.14 and 15 also contested the same through their separate written statement. The trial Court framed necessary issues on the basis of divergent pleadings of the parties whereon the parties to the suit produced their respective evidence. After hearing the arguments, the trial Court dismissed suit of the petitioners/plaintiff vide judgment and decree dated 3-6-2013. Being aggrieved, the petitioner preferred appeal against the judgment and decree of the trial Court which was also dismissed by the appellate Court vide judgment and decree dated 14-9-2013. Hence, the instant revision petition.

3. Mr. Naeem Uddin, Advocate, appearing on behalf of the petitioners contended that the petitioners and respondents Nos.14 and 15 are the legal heirs of late Hassan Khan who was a Levy Official and embraced martyrdom on 28-5-2009 while performing duty at Levy Post Alla Dhand. The learned counsel argued that the Guardian Judge has issued Succession Certificate in the names of the petitioners and respondents Nos.14 and 15 with regard to legacy of the deceased, thus the petitioners are entitled to their Shari shares in the Shuhada Package and other amount left by the deceased. The learned counsel produced a copy of guidelines drafted by Shuhada Cell W&R Directorate, G.H.Q Rawalpindi under the heading and contended that as per the referred guidelines, the petitioners are entitled to their Shari share in the Shuhada Package and other packages announced by the Government for heirs of Shuhada. He also produced copies of bank cheques issued in respect of another package for legal heirs of the shaheed and contended that issuance of the bank cheques in the names of the petitioners clearly shows that they are entitled to get their respective shares in all the packages.

4. Mr. Mian Hussain Ali, learned Deputy Attorney-General appearing on behalf of official respondents Nos.1 and 2 referred to Rules 4.7 and 4.10 of the West Pakistan Civil Servants Pension Rules, 1963 and contended that only wife and children of the deceased civil servants are deserved for pension and graduity.

5. Mr. Sabir Shah, the learned A.A.-G. appearing on behalf of official respondents Nos.3 to 12 contended that the disputed amount is in the shape of grants which have been awarded after the death of the shaheed employee. He further contended that the amount of packages and grants were not the ownership of the employee during his life, therefore, the same cannot be treated as heritable by all heirs of the employee. Reliance was placed on PLD 1991 SC 731 and 2014 CLC Peshawar 126.

6. Mr. Abdul Ghaffar, Advocate appearing on behalf of private respondents Nos.14 and 15 contended that Shuhada Package has not been challenged by the petitioners in their plaint, therefore, they are not entitled to receive any share therein. He prayed that the instant revision petition be dismissed.

7. I have heard arguments of learned counsel for the parties and perused the record.

8. According to pleadings and facts of the case, subject-matter of the present controversy is the amounts on account of Shaheed Package, G.P Fund and Pension. Record shows that the petitioners have received their respective shares per Succession Certificate in the remaining Tarka i.e. amount deposited by the deceased in Banks. From the arguments of learned counsel for official and private respondents and the case law produced by them, it is crystal clear that the amount in the shape of Shaheed Package, G.P. Fund and Pension are not the legacy of the deceased employee as he was not the owner of the same amount during his life and only his widow and children are entitled to the same. The question involved in the present case is purely of legal nature and this Court has to determine whether the Package, G.F. Fund and Pension of the deceased is Tarka of the deceased or not. Admittedly, the Shaheed Package is the service benefit and was not due to the deceased during his life which is in the nature of grant and is payable after his death, therefore, could not be treated as heritable by all his heirs. No doubt, widow and the minor are the nearest beneficiaries who depended mainly on the deceased and keeping in view their such status, they deserve to receive the same benefit to the exclusion of other legal heirs of the deceased. Reliance in this regard can be placed on 2011 CLC 1528. So far share of the petitioners in the pension and G.F. Fund is concerned, suffice it to say that in Pension-cum-Graduity Scheme, 1954 the word Family has been defined for the purpose of payment of Graduity and Pension, according to which husband, widows and children constitute the family and they are entitled to gradutiy and pension in case of death of the employee. In the present case, as widow and minor exist, therefore, the parents are excluded and they are not entitled to get any share in the pension and graduity.

9. The concurrent findings of both the Courts below are well reasoned and the learned counsel for the petitioners was unable to point out any illegality, infirmity, misreading or non-reading therein. Therefore, this revision petition, being devoid of merit, is hereby dismissed.

SL/318/P Petition dismissed.

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