P L D 1987 Karachi 153 (PLP)

There is no dispute about the fact that petitioners Rice Export Corporation of Pakistan Limited are specified by name as such by the Federal Government to be a body corporate or organisation as contemplat ed under section 2 (4) (e) of the Federal Employees Benevolent Fund and Group Insurance Act, 1969 (11 of 1969) hereinafter to be referred as the said Insurance Act) vide Notification, dated 18th August, 1969. Now if the said Insurance Act applies then under subsection (4) thereof Board of Trustees has been set up, which is further empowered under subsection (7) to settle all claims for benevolent grant and sums assured under the said Act and all matters connected with such claims and to sanction grant from the Benevolent Fund to the employees or their families in accordance with the provisions of the said Act and the rules and powers have been given for several other functions with regard to Insurance Fund as well. So far Group Insurance is concerned, section 15 provides that in the event of death of an employee, occurring by whatsoever cause, during the continuance of his employment, the Board shall pay to the family of the deceased employee a sum specified in the Second Schedule. Section 17 further provides that there shall be established a fund to be called the Federal Employees Insurance Fund which shall vest in and be held and administered by the Board. Section 19 further provides that on the death of an employee, the sum assured shall be paid to such member or members of his family as he might have nominated in accordance with the rules in full or in the shares specified by him at the time of making the nomination. Subsection (2) of section 19 further provides that where no valid nomination made by the employee subsists at the time of his death, the sum assured shall be paid to such member or members of his family subject to such conditions imposed with a view to ensuring that the sum is justly and equitably, utilized for the maintenance and benefit of all the members of the family as may be prescribed or may consistently with the rules, be determined by the Board or any officer authorised by the Board in that behalf. Going back to section 15 which relates to Group Insurance it is stated therein that in the event of the death of an employee, the Board shall pay to the family of the deceased a sum specified in the Second Schedule. In the Second Schedule on one side classes of employees are mentioned with reference to their last pay and on the other side sums are specified to be paid as Group Insurance. In the circumstances it appears that factually it has to be ascertained as to what was the last salary of the deceased and on that basis sum of Group Insurance could be determined for payment. From what is stated above, I am of the view that contention-of the employers is right that in this case claim had to be entertained by the Board under the Insurance Law mentioned above. I have also seen claim of Muhammad Rasib having been rejected by the Board vide Order, dated 4th June, 1985 on the ground that Messrs Muhammad Rasib /find Muhammad Tahsib both sons of late Khuda Bux are major and self-dependent, hence they are not covered by the definition of family members as provided under section 2 (5) (a) of the said Insurance Act, 1969. I am afraid that inter pretation assumed by the Board is both factually and legally incorrect. Section 2 (5) of the said Act defines "family" to mean- (a) in the case of a male employee, the wife or wives, and in the case of a female employee the husband of the employee; and (b) the legitimate children, parents, minor brothers, unmarried, divorced or widowed sisters of the employee wholly dependent upon him." The Board has wrongly assumed that the requirement in the definition excludes adult sons because protection is given to minor sons only. This is incorrect for the reason that only minor brothers of -deceased are includ ed and protected which means adult brothers will not be entitled. Definition gives complete cover to all legitimate children of deceased irrespective of age relating to which rider of minority is not provided. It was obviously, therefore, wrong on the part of Board to have given a finding that because sons of deceased were major and self-dependent as such they were excluded from the definition of family. In the record of this constitutional petition Annexure 'C' is photocopy of form of nomination which was filled by the deceased employee before his death and was filed in the office. This form shows that he had nominat ed only his one son Muhammad Rasib. This action of the deceased was in accord with section 19 (1) of the said Insurance Act which allows nomination in full or in shares specified by the deceased at the time of making nomination. Subsection (2) of section 19 further provides that where no valid nomination made by the employee subsists at the time of his death, the sum assured shall be paid to such member or members of his family subject to such conditions imposed with a view to ensuring that the sum is justly and equitably, utilised for the maintenance and benefit of all members of the family as may be prescribed or may consistently with the rules be determined by the Board or any officer authorised by the Board in that behalf. This clearly shows that it is the bounden duty of the Board to determine the claim finally and the same cannot be rejected out of hand B on the ground that nomination made by deceased in the relevant form was defective. Even if nomination is defective, still the Board is duty bound to determine and pay the claim in accordance with the procedure mentioned above. The controversial point in this petition is that according to Mr. Obaidur Rehman, this case is governed by the Insurance Act mentioned above and section 10-B of the Standing Order is barred and would not be attracted. On the other hand Mr. Chowdhry Rasheed Ahmad contends against the proposition mentioned above and according to him section 10-B of the Standing Order is available regardless of the fact whether the said Insurance Act applies or not. In order to determine this question, it is necessary to examine the history of both these enactments. The Federal Employees Benevolent Fund and Group Insurance Act No. 11 of 1969 is a Federal Law and was promulgated in the year 1969. The preamble of this Act shows that it was promulgated to establish a Benevo lent Fund for the common benefit of employees of the Federal Government and certain autonomous bodies to provide for their Group Insurance. "Group Insurance" is not specifically defined in this Act but the scheme of the Act indicates that it is joint insurance of Group or Groups of em ployees for common benefit. As against this West Pakistan Industrial and Commercial Employment (Star-ding Orders) Ordinance, 1968 was in force as a provincial law and subsequently in the year 1969 Martial Law was pro claimed and the Constitution of 1962, which was operative at that time, was abrogated. In the year 1970 Province of West Pakistan (Dissolution) Order, 1970 was promulgated, whereunder Province of West Pakistan then in existence was dissolved and in its place four new Provinces were set up. Article 19 of that Order envisaged continuation of all existing laws, so far as applicable and with necessary adaptation, until altered, repealed or amended by the appropriate Legislature or other competent authority. Labour Laws (Amendment) Ordinance IX of 1972 was promulgated by the President of Pakistan, preamble of which is as under :- "Whereas it is expedient further to amend certain laws relating to industrial relations and the welfare of workers ; And whereas the national interest of Pakistan in relation to the economic and financial stability of Pakistan and the achievement of uniformity requires Central legislation in the matter ; Now, therefore, in pursuance of the Proclamation of the 25th day of March, 1969, read with the Proclamation of the 20th day of Decem ber, 1971, and the Provisional Constitution Order, and in exercise of all powers enabling him in that behalf, the President is pleased to make and promulgate the following Ordinance." In the preamble mentioned above proclamation of 25th day of March, 1969 contemplates declaration of imposition of Martial Law in the country by General Agha Muhammad Yahya Khan which further provides in paragraph 5 (a) that all laws before the abrogation of the Constitution shall continue in force. Second proclamation dated 20th day of December, 1971 mentioned in the preamble as stated above, relates to the assumption of powers of Chief Martial Law Administrator and the command of all armed forces of Pakistan by Mr. Zulfikar Ali Bhutto. The third enabling provision mentioned in the preamble stated above is Provisional Constitu tion Order which was promulgated on 4th April, 1969 by the Chief Martial Law Administrator providing that notwithstanding the abrogation of the Constitution, the State of Pakistan shall be governed as nearly as may be in accordance with that Constitution subject to any Regulation of Order passed by the Chief Martial Law Administrator providing further that the fundamental rights set out in Chapter I of Part II of the said Constitution shall stand abrogated. It appears that from the time when Labour Laws (Amendment) Ordi nance, 1972 was promulgated, status of the West Pakistan Industial and Commercial Employment (Standing Orders) Ordinance, 1968 changed and it became a central law. Subsequently, this subject of labour laws was brought on the concurrent legislative list in the Interim Constitution of 1972 and the Constitution of Islamic Republic of Pakistan, 1973. It can now be said that Standing Orders 10-A and 10-B were added as Central Law for the first time on 13th April 1972 by Ordinance IX of 1972 making amendment in the old law namely West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance VI of 1968. As against this the Federal Employees Benevolent Fund and Group Insurance Act, 1969 which was promulgated on 3rd February, 1969 was already in' existence before coming into being of Standing Orders 10-A and 10-B. Both are central laws and cover the same subject-matter of Group Insurance. Act No. 11 of 1969 mentioned above is not only prior in point of time but is a special law for the reason that it covers Federal employees. Com pared to this 10-B Standing Order is general in nature and has not repealed Act No. II of 1969. Subject-matter of both the laws stated above is same which is Group Insurance. Minute reading of both these laws will show that the said Insurance Act of 1969 will undoubtedly apply to the petitioner's Corpora tion which is specified for that purpose specifically as contemplated under section 2 (4) (e) of that Act. Section 3 of the said Insurance Act of 1969 further provides that provisions of this Act and rules framed thereunder shall have effect notwithstanding anything contained in any other law, rule, order, notification, contract or other document or instrument ; but nothing herein contained shall affect the right to receive any pension, provident, fund, gratuity or other benefits accruing to the employee on his retirement or invalidation or to his family upon his death, otherwise than under this Act. Attempt was made to interpret section 3 as stated above to mean that it does not bar receipt of `other benefits" accruing to the employee upon his death as such Standing Order 10-B shall apply regardless of the fact whether Group Insurance can be obtained under the said Insurance Act, or not. 'this interpretation is unacceptable for the reason that perusal of contents of both the laws show that the intention of the law-makers is to give one particular benefit only under one law and it cannot be repeated under two or more laws. Keeping this principle in view if section 3 of the said Insurance Act is read carefully then it would appear that if a parti cular benefit like Group Insurance is recoverable under the said Act then only that law will apply but if there are other benefits, not obtainable under the said Insurance Act but obtainable under any other law relating to pension, provident fund, gratuity then such benefits can be recovered under that other law. Such intention is prominently clear because at the end of this section the words used are "otherwise than under this Act". It is now clear that there is no conflict between the two laws mentioned above and both laws can apply side by side. The question will arise as to which law will apply in a particular case. If it is resolved that the case is covered by the Insurance Act No. II of 1969 then that law will apply to the exclusion of Standing Order 10-B particularly when recovery relates to Group Insurance. In the instant case I hold that the said Insurance Act No. II of 1969 will apply and Group Insurance can be claimed from the Board set up under section 4 thereof. Impugned orders dated 10-12-1984 and 2-2-1986 passed by respondent No. 3 are hereby quashed as having been passed without lawful authority and respondent No. 2 namely Board of Trustees, D Federal Employees Benevolent and Group Insurance Funds is directed to) consider the claim of respondent No. 1 Muhammad Rasib strictly according to the provisions of the said Group Insurance Act and rules framed thereunder within, one month from the date of this order as has been observed in earlier paragraphs of this judgment. In the result, this petition is allowed but there will be no order as to costs. M. Y. H./5081/K Petition allowed.