2011 PLP (C (PLC)

MUHAMMAD ALI MAZHAR, J.

This constitutional petition is brought to seek the following relief(s):

(i)??? To recalculate the service gratuity of the deceased servant Gulzar Ahmed and to make payment of the same to the heirs as per shares according to Mohammedan Law viz. 1/4th to widow and residue to mother and father (now deceased); (ii)?? To make full payment of service gratuity instead of reducing the same to 50% which is arbitrary by its nature and violation of existing, rules; (iii)?? Group term insurance Rs.60,000 may also be paid as per scheduled shares. (iv)? Any suitable relief which this court deems fit along with costs of the petition. 1.??? Brief facts of the case are that petitioner's son Gulzar Ahmed was a regular-employee of Pakistan Railways with 22 years service at his credit and was posted as Assistant Fitter (S.S. Fitter). He married with respondent No.3, Mst. Fareedah but died issueless just after 22 days of marriage. The petitioner and her husband were fully dependent upon late Gulzar Ahmed, who was the only earning member of the joint family. After the death of Gulzar Ahmed, heirship certificate was issued by Mukhtiarkar Rohri in which name of the petitioner, her husband and the widow of the deceased were mentioned. After the death of Gulzar Ahmed, petitioner along with her husband filed necessary documents with his employer for the payment of his full and final settlement dues amongst the legal heirs. As per Rules the following payments were to be made to the heirs of deceased:

(i) General Provident Fund Rs.15,982 (ii) Service Gratuity Rs.2,00,000 (iii) Group Term Insurance Rs.60,000 (iv) Staff Benevolent Fund per month Rs.750 p.m. (v) Monthly pension (As per Schedule) 2.??? It is also stated in the petition that the amount in question was to be treated as "property" of deceased and to be paid to the heirs of deceased according to Muslim Law of Inheritance. An application dated 22-2-2003 was submitted to the Railway Management for payment, but they refused to make payment and suggested to approach a court for settlement between heirs. The petitioner along with her husband filed an application for payment of dues under section 15 of the Payment of Wages Act, 1936. 3.??? The respondents Nos.1 and 2 contested the matter and submitted their written statement. During the pendency of application before the Authority under Payment of Wages Act, the respondents Nos.1 and 2 with the collusion of clerical staff made the payment of Rs.77,459 as service gratuity and Rs.15,982 under the Head of G.P. Fund to the widow of the late Gulzar Ahmed on 1-11-2003. It is also stated that petitioner's husband/father of deceased Gulzar Ahmed died during the pendency of the case before the Authority under Payment of Wages Act. The Authority decided the case in favour of the petitioner and directed the respondents Nos.1 and 2 for payment according to Islamic Law of Inheritance. 4.??? The respondents filed an appeal under section 17 of Payment of Wages Act and the learned Labour Court decided the appeal in favour of Pakistan Railway and passed orders on 23-5-2007, through which, the petitioner was directed to seek her share from respondent No.3 through private suit. It is also stated that the learned Labour Court has not appreciated the law of Inheritance and provisions of section 15 of Payment of Wages Act, 1936 have been overlooked. 5.??? We have heard the arguments of the learned counsel for the parties and perused the material available on record. To start with, the learned counsel for the petitioner relied upon a judgment pronounced by the honourable Supreme Court in Suo Motu Case No.9 of 2010, reported in 2010 PLC (C.S.) 1241. This suo motu case was taken up on the request of one Mst. Bushra Bibi, widow of Syed Yousaf Shah and the grievance highlighted was in respect of payment of revised rate of monthly benevolent fund grant after 20% increase effective from 1st December, 2003. On notice, the Chairman Pakistan Railways appeared in the honourable Supreme Court and placed on record a Notification dated 21st July, 2010 in which it was mentioned that the rate of disbursement of benevolent fund grant as applicable in Federal Government Employees Benevolent Fund and Group Insurance Rules, 1972 are adopted in the Ministry of Railways and its attached Departments and Subordinate Offices, w.e.f. 1-12-2003. Any increase in the rate of benevolent fund grants in future by the Federal Government shall be adopted in Railways. In pursuance of the aforesaid Notification, the families of the retired railway employees for the purpose of the payment of benevolent fund and group insurance have been brought at par with retrospective effect. The aforesaid suo motu case was disposed with the directions that the petitioner along with other widows shall also receive the benevolent fund at the same rate which is being paid to the employees of the Federal Government. 6.??? The learned counsel for the petitioner further argued that the deceased Gulzar Ahmed died issueless and since the respondents Nos.1 and 2 did not make the payment, therefore the petitioner filed an application under section 15 of the Payment of Wages Act and the Authority appointed under the Payment of Wages Act decided the case in favour of the petitioner and directed the respondents Nos.1 and 2 to make the payment as per Islamic Law but on appeal preferred by the Pakistan Railways, the learned Labour Court set aside the order passed by the authority and the petitioner was advised to collect her share from respondent No.3. He further argued that the full gratuity of deceased was Rs.1,54,918 but the same was reduced to 50 per cent whereas there is no rule to reduce service gratuity of widow or heir of the deceased employee but pension is to be paid at 50 per cent rate. He further argued that group term insurance has not been paid so far. He further argued that though the present petition was filed in the year 2007 but the monthly amount of benevolent fund may be paid in pursuance of the Notification No.16/1/2005-E-I, dated 21st July, 2010 since after the judgment of the honourable Supreme Court, it is made clear that w.e.f. 1-12-2003 all the widows of railways employees shall also receive the benevolent fund at the same rate which is being paid to the employees of the Federal Government. 7.??? The present petition has not been filed by the widow of the deceased Gulzar Ahmed but his mother Mst. Dadli and in the same petition the widow of deceased Gulzar Ahmed has been arrayed as respondent No.3. The petitioner being mother of the deceased has prayed to this court to recalculate the service gratuity of the deceased and make payment of the same to the legal heirs as per shares according to Mohammedan Law with further prayer to make full payment of service gratuity instead of reducing the same to 50 per cent which is arbitrary by its nature and violation of existing rules. It is further prayed that group insurance Rs.60,000 may also be paid as per scheduled shares. 8.??? In rebuttal, the learned counsel for the respondent No.2 argued that the widow of deceased i.e. the respondent No.3 has already been paid general provident fund Rs.15,982 on 20-12-2003 and full amount of gratuity Rs.77,459 on 1-11-2003. As per Railways gratuity Rules, provided under the Railways Establishment Code, it is clear that if a Railway servant dies in service, his widow will be granted full amount of gratuity which has been paid to her and Mohammadan Law is not applicable for distribution of gratuity. It is further argued that the petitioner has to first obtain succession certificate in order to finalize her remaining claim, if any. The learned counsel for the respondent further pointed out a statement filed in Court on 12-4-2010 in which it has been stated? that? the? deceased? was? appointed? on? 11-9-1980? who? died? on 14-10-2001 and he served approximately 20 years. In the same statement, it was further stated that the gratuity amount of Rs.77,459 was? paid? on? 1-11-2003,? Group? Insurance? Rs.15,000? was? paid? on 30-6-2004 and benevolent? fund? at? the? rate? of? Rs.780? per? month? was? paid? up? to 31-12-2009 to the widow of deceased Mst. Fareeda. 9.??? The order of this Court passed on 10-5-2010, also shows that the learned counsel representing the respondents Nos.1 and 2 submitted a cheque dated 30-4-2010 amounting to Rs.30,000 in the name of petitioner and office is directed to hand over the same cheque to the petitioner after proper verification. The learned counsel for the respondent No.2 concluded his arguments that no amount is due to the petitioner and the petition is liable to be dismissed. 10.? In the Application No.5/2004, filed by the petitioner under section 15 of the Payment of Wages Act, Sukkur Zone, before the Authority, the full and final settlement dues were claimed in different heads such as service gratuity, group term insurance, G.P. Fund, monthly pension and staff benevolent fund. It appears from the order of the Authority that during the pendency of application, under section 15 of the Payment of Wages Act, the respondent made some payments to the widow? and? in? paragraph? 15? of? the? order? the? learned? Authority? went on to hold that since the entire payment has not been made to the widow, therefore following payments be made to the applicant Mst. Dadli:

(i)??? Service gratuity after deduction of share of widow; (ii)?? G.P. Fund Rs.15,982 after deduction of 1/4th share of widow; (iii)?? Group Term Insurance Rs.45,000 after deduction of 1/4th share of widow; and (iv)? Month subsistence allowance and pension as per scheduled rates bifurcating the shares of widow of deceased, if she has not re-married. 11.? The application was disposed of with the direction to the respondents to calculate the amount and deposit in the court within 30 days from the date of announcement of the order. I2.?? The? respondents? Nos.1? and? 2? preferred? an? appeal? under? section 17 of the Payment of Wages Act in the Sindh Labour Court No.VII at Sukkur, which was decided on 23-5-2007. The Labour Court allowed the appeal on the ground that whatever amount of deceased has already been paid to the widow of deceased Gulzar Ahmed and according to the Labour Court, the only question whether the petitioner, mother of the deceased is also entitled to the share from the benefits of deceased was beyond the scope of the Authority to decide the claim under section 15 of the Payment of Wages Act and the direction in connection with the amount of group insurance was also beyond the scope of section 15 of the Payment of Wages Act. The appeal was allowed and the order passed by the Authority under, section 15 of the Payment of Wages Act was set aside with further observation that if Mst. Dadli has any claim being mother of deceased Gulzar Ahmed, then she can recover the amount from the widow of deceased Mst. Fareeda through competent court of law as the entire claim has been paid by respondent No.3 as per Railways Rules and the respondents Nos.1 and 2 cannot be forced to make any double payment to Mst. Dadli being mother of the deceased Gulzar Ahmed and the petitioner was advised to approach the proper forum. 13.? According to section 15 of the Payment of Wages Act, it is clear that the Authority appointed under the Act has jurisdiction to hear and decide for any specified area all claims arising out of deductions from the wages or non-payment of dues relating to provident fund or gratuity payable under any law or delay in the payment of wages, of persons employed or paid in that area. Subsection (2) of section 15, further provides that where contrary to the provisions of this Act any deduction has been made from the wages of an employed person, or any payment of wages or of any dues relating to provident fund or gratuity payable under any law has been delayed, such person himself, or any legal practitioner, or any official of a registered trade union authorized in writing to act on his behalf or any Inspector under this Act or of any heirs of an employed person who had died or any other person acting with the permission of the authority appointed under subsection (1) may apply to such authority for direction. 14.? After carefully examining section 15 of the Payment of Wages Act, it is clear in our mind that petitioner being one of the legal heirs of the deceased of Gulzar Ahmed had right to file petition under section 15 and? since? it? is? clearly? mentioned? that? apart? from? the? wages? defined under? the? Payment? of? Wages? Act,? section? 15? also? gives? right? to apply for non-payment of dues relating to provident fund or gratuity payable under any law. Therefore, the finding of the Labour Court whether petitioner is also entitled to her share from the benefits of deceased was beyond the scope of Authority is not correct finding and not supported by the expression provisions of section 15 of the Payment of Wages Act, in which it is clearly mentioned that any of the legal heirs has also right and authority to file application under section 15 of the aforesaid Act. 15.? We have carefully gone through the order passed by the Labour Court and are of the firm view that while allowing the appeal, the learned Labour Court did not consider the entire facts of the case and advised? the? petitioner? to? file? separate? proceedings? against? the respondent? No.3? for? the? recovery? of? amount.? The? Authority appointed? under? the? Payment? of? Wages? Act? had? categorically? mentioned the amount in its order for payment and while deciding the appeal the learned Labour Court has not considered the important aspect of the case as to what amount actually paid during the pendency of the application under Section 15 of the Payment of Wages Act and he has simply observed that the department cannot be forced to make any double payment to the petitioner who is claiming the share according to Sharia and if she is entitled, she can approach the proper forum regarding her claim. 16.? The learned Labour Court simply relied upon the statement of respondents Nos.1 and 2 and mentioned some amount allegedly paid to the widow of the deceased against gratuity and group insurance but there is no exact finding given by the Labour Court regarding the actual amount liable to be paid by the Railways to the legal heirs of deceased employee and simply dismissed the appeal on the notion that the entire amount has already been paid to the widow of deceased and no plausible reasons were assigned as to why the order passed by the Authority was set aside and failed to appreciate the clear provisions of law which permits and authorizes a legal heir of any deceased employee to file application under section 15 of the Payment of Wages Act. Being an appellate court, the learned labour court ought to give cogent and rational findings for its disagreement on the head of dues and amount adjudicated by the Authority under the Payment of Wages Act. The labour court has also ignored to deal with the effect of making payment of Rs.93,434 by the respondents to the widow of deceased during the pendency of the application before the Authority under section 15 of the Payment of Wages Act, in which she was arrayed one of the respondents on which, the Authority specifically directed the respondents to probe into the matter and initiate disciplinary action against the concerned staff. We are also of the view that when the matter was sub judice before the competent forum having jurisdiction to decide the matter, then there was no justification or logic to make the payment to the widow of the deceased. 17.? So far as the monthly payment/disbursement of benevolent fund grant is concerned, the honourable Supreme Court has already held in the Suo Motu Case No.9/2010 (supra) that by virtue of Notification dated 21st July, 2010 any increase in the rate of benevolent grants in future by the Federal Government shall also be adopted in Railways Department and widows of Pakistan Railways employees shall also receive the benevolent fund at the same rate which is being paid to the employees of the Federal Government with effect from 1-12-2003 which is quite applicable in the present case and the widow of deceased will be treated at par for the payment of benevolent fund from the effective date of notification as held in the aforesaid judgment of the honourable Supreme Court. 17-A. The petitioner want us to pass an order for payment of dues on the basis of calculation shown in the petition which involve factual controversy. However, we are of the firm view that since the petitioner had adopted an appropriate legal remedy by filing the application under section 15 of the Payment of Wages Act and her application was also allowed but the order was set aside in appeal without appreciating and examining the claim, we therefore, deem it proper to set aside the order in appeal and remand the matter back to the learned Labour Court No.VII, Sukkur to decide the appeal afresh after giving ample opportunity to the parties. The respondent Nos.1 and 2 are directed to file up to date statement in the labour court of entire dues and the amount paid to the petitioner and the widow of deceased. The learned labour court will examine the entire claim including its maintainability under different heads and payments made to the petitioner and payments made to the widow of the deceased by the respondents. The labour court after hearing the parties shall pass an appropriate order preferably within a period of three months with compliance report to this court. ?????? The petition along with pending applications is disposed of in the above terms. M.H./D-6/K???????????????????????????????????????????????????????????????????????????????????????? Case remanded.