2012 PLP 419 (PLC)

MUHAMMAD KHALID MEHMOOD KHAN, J.

Through this writ petition, the petitioner has prayed as under:

"In view of the above, it is humbly prayed that this writ petition may graciously be accepted and order dated 25-3-2008 passed by respondent No.1 and order dated 22-9-2007 passed by respondent No.3 may kindly be declared null and void, without jurisdiction and be quashed/set aside and respondent No.3 may kindly be directed to issue the pension card to the petitioner to receive family pension under the Pension Payment Order Claim in accordance with law."

2. Briefly stated the facts of case are, the petitioner is the widow of deceased Haq Nawaz son of Allah Ditta who was the employee of respondent No.4 and was working as a Jober. He died on 23-1-1983 during his service with respondent No.4; the deceased served respondent No.4 for 19 years; he was the registered member of respondent No.2; respondent No.4 and deceased were paying contribution for old age employees benefits to employee according to law; the petitioner after the death of her husband, filed an application with respondent No.4 for payment of the insured claim to her being the widow of deceased but the respondent No.2 declined the application being barred by time. The petitioner assailed the said order before respondent No.1 who vide order dated 25-3-2008 dismissed the petition affirming the objection of respondent No.2 to the effect that petitioner's application is barred by time.

3. Notices were issued, the respondents filed their report and parawise comments and claimed that petitioner's remedy lies under sections 33, 34, 35 of the Employees' Old Age Benefits Act, 1976 (hereinafter referred to as "Act of 1976"); and as such, the Constitutional petition is not maintainable. Further raised the objection that petitioner's husband was insured by respondent No.4 and, as such, she may receive the insurance claim from respondent No.4. It is also stated that under section 26 of the Act of 1976, right to claim benefit stands extinguished as the same has not been made within 12 months from the date of death of deceased.

4. Learned counsel for the petitioner submits that petitioner being an illiterate lady was never informed by respondent No.4 about her husband insurance claim as well as old age benefit. He further submits that it is an admitted fact that deceased nor his employer is defaulter, hence claim is due and payable to petitioner. He further submits that under section 26 of the Act of 1976, the discretion is available to respondent No.2 for condoning delay, if any, the respondent No.1 has failed to give any reason except that application is time barred.

5. Learned counsel for the respondents submits that petitioner's husband died on 23-11-1983 but the petitioner approached Old Age Benefits Institution (hereinafter referred to as "Institution") after the lapse of 24 years and, as such, under section 26 of the Act of 1976 the right of the petitioner stand extinguished within 12 months from the date of death, further she has not availed the remedy of appeal and as such the petition is not maintainable.

6. Heard and record perused.

7. It is not a dispute between the parties that deceased was not an insured person in terms of Act of 1976. It is also not denied that respondent No.4 the employer of deceased was paying the contribution to the respondent on behalf of deceased and the deceased was not obliged under law to get him registered personally in exclusion of respondent No.4 and as such the respondents Nos.4 and 2 are the relevant parties in dispute.

8. The purpose of the Act of 1976 is to help the employee of Industry or establishment after his retirement and in case of his death, to his legal heirs or dependants. Under the Act of 1976, all industry or establishment being the employer are bound to get registered itself under the Act of 1976 and to pay and deposit the contribution with the respondent No.2 on behalf of its employees and if the employer fail to pay the contribution, the respondent will take action against the defaulted employer and as such the scheme of Act of 1976 is that employer should be made liable to contribute certain amount for payment of its employee in case of his death or retirement, that is the reason the employer has been made liable to deposit the contribution with the Institution in spite of the fact the employee is also contributing his share.

9. Under the Act of 1976, it is the duty of the employer to deduct the amount of contribution from the salary of employee and by adding its share deposit the same with the Institution.

10. Under section 11 of the Act of 1976, every establishment/ employer is bound to get it registered before the expiry of 30 days from the date of which the Act becomes applicable to the industry or establishment. 1l. The industry or establishment is bound to provide list and particulars of its employees and in case of non-compliance, the employer is liable to pay penalty.

12. Section 26 of the Act of 1976 is reproduced as under:

"Extinguishment of benefits.

A right to *[any benefit] shall stand extinguished where a claim therefore is not made within twelve months of the date on which the *[benefit] becomes payable: 72[Provided that the Institution may condone the delay and admit the claim if it is satisfied that the delay was caused for reasons beyond the control of the insured person or the **[survivor].

13. The application of above provision of law is twofold, one is that it is the duty of employer to inform the Institution about the fact of death of its employee and to lodge a claim of deceased employee. After the death of employee, the payment of contribution has to be discontinued, when the Institution will not receive the contribution, the role of institution will start. The Institution if came to know about the death of insured, the Institution became duty bound to ask the employer for providing the details required for processing the claim and the employer is bound to provide the said details at its own end and the widow of deceased has no role to play.

14. It is the employer who has to maintain the record of its deceased employee with reference to the contribution payments. The bare reading of the above provision of law will show that, the survivor is not find mention in it. The said provision of law only says that right to (any benefit) shall stand extinguished where the claim is not made within 12 months of the date on which the benefit became payable.

15. It is not the case of Institution that they on coming to know the fact of death of insured asked the details from respondent No.4 nor it is their claim that they asked the respondent No.4 and they have failed to submit the claim within 12 months from the date of maturing of claim, but the Institution claim is that petitioner has failed to submit the claim within 12 months. In the above said circumstances, it is an established fact on record that neither Institution called any claim from the respondent No.4 nor the respondent No.4 forwarded the petitioner's claim to Institution. The words used in section 26 that "claim is not made" the question is who has to made the claim the insured or survivor or the employer, the argument of learned counsel for respondent is that claim has to be made by the insured or survivor, if it was the intention of law maker that insured has to make the claim then word of insured should have been "claim is not made by the insured" and as such in the absence of specific word of insured, specially when the claim is payable to insured subject to verification and authentication of employer, the intention of law maker is clear that it is the employer who has to make the claim for the simple reason that entire details necessary for payment of claim are with the employer for payment and deposit the contribution with the employer and in case the employer is not depositing the contribution it will the default of employer and not the employee.

16. The record shows that petitioner's husband died on 23-11-1983 and the widow of deceased applied to the Labour Officer of respondent No.4 requesting the employer for issuance of service certificate of his deceased husband and widow pension be issued. The documents available on record as Annex-A. to F, show that on the petitioner's application, the respondent No.4 has issued request certificates on 27-7-2007 and 2-8-2007, it is pertinent to mention here that without these certificates, the claim could not be processed, and the claim was submitted to the Institution without delay of a single day. It is also an admitted fact on record that "Claim Form" is a printed Form and is the property of Institution, the said claim can only be countersigned, verified and authenticated by the employer only as is evident from the verification and authentication of employer on 31-7-2007 and 2-8-2007, this shows that on the application of petitioner dated 2-11-1984, which is within 12 months of death of deceased, the labour officer of respondent No.4 called the Claim Form and application for issuance of pension and the Institution provided the same to him in July, 2007 who after completing the same sent to Institution in August, 2007 as the impugned order dated 22-9-2007 passed by Institution shows that it is addressed to petitioner, whereas the petitioner on 2-11-1984 applied to respondent No.4 only and not the Institution. If for the sake of arguments, it is admitted that application Annex-C is the application submitted by the petitioner to Institution even then argument of learned counsel for respondent is not tenable for the simple reason as no date is available on it; however, the date on employer certificate is mentioned as 31-7-2007, there is an other document the "Certificate" issued by respondent No.4 which confirm that no claim has been paid to petitioner up to 2-8-2007, if the argument of learned counsel for respondent is accepted then it means that two separate applications were filed, one for payment of pension and other for issuance of claim, but this is again not the case of respondents. From the above said facts, it is a proven fact that the petitioner applied to respondent No.4 who continued in contact with the Institution and due to not taking timely action on their part, the petitioner's claim remain pending with them up to July, 2007, and after that the claim was processed by Institution and passed the impugned order. The certificate issued and authentication of respondent No.4 shows that it is the respondent No.4 who has to submit the claim in response to the asking of Institution.

17. The argument of learned counsel for the petitioner is that petitioner has applied to respondent No.4 for payment of claim of her deceased husband and it was the duty of employer of deceased to arrange the issuance of benefits to her payable being death claim of her husband. The Adjudicating Officer while deciding the petitioner's application passed the impugned order without giving any reason why he is not satisfied by the explanation given by the petitioner and the respondent No.4. This argument of learned counsel has a force for the following reasons:

(i) the deceased employee was not depositing the amount of contribution himself; (ii) it is the respondent No.4, the employer who as per law is bound to deposit the contribution on behalf of employee.

18. It means that the day when the employee died, his employer stand relieved from its duty to deposit the contribution with respondent No.2 and, as such, when the respondent No.1 has not received the contribution, they were legally bound to ask the reasons from respondent No.4 for non-payment of their member's contribution, and if they asked then respondent No.4 was bound to inform them. Respondent No.2 on coming to know the fact of death of insured, was bound to prepare the claim payable to deceased insured's widow or otherwise. It is matter between the respondent No.2 and respondent No.4 and the deceased was not party for depositing the contribution. The intention for framer of law is to provide financial help to insured person's legal heirs. The law is a welfare law meant for the welfare of the employees of private organizations who are not enjoying any protection for their future; hence for implementing the provisions of said law, the duty casts on the official of respondent No.2 to pay the claim to the insured person themselves or at least deposit the same with the employer of deceased. The officials respondent No.2 are the trustees of the funds deposited by the employee of a organization on the assurance of law maker that his funds will be in the safe hands and will be paid to him or his survivor.

19. Under section 25 of the Act of 1976, the claim has to be regulated under the regulations, section 2(n) provides that regulations have to be framed by the Board. The Board constituted under section 6 is headed by a Chairman. Under section 7 of the Act of 1976, the Board is called the Board of Trustee. The President of Board is Additional Secretary of Lahore Division and Federal Government, the Provincial Government, Employer, representatives of employee, official of institution are its members. The constitution of Board shows that it is a high powered Board who has to look after the funds of labours/employees working in private owned, semi-government and government owned business concerns. The funds collected by the institution are in trust with them and the sole responsibility of the Board is to look after the rights of the beneficiaries of trusted funds and it is the principle of equity that trusted amount could not be confiscated under the garb of limitation.

20. It is also an admitted fact that amount deposited with the respondent No.2 is meant for the welfare of insured/survivor hence no clog of limitation could be imposed against the basic right of insured which accrued on the assurance of Government that his contribution will be paid to him in his hard days of his life and after his death to his survivor.

21. The other aspect of this case that Institution is not paying any thing from its pocket. It is the contribution of petitioner's deceased husband as well as its employer and the law provides the protection of the retired employee as well as his survivor in case of his death and, as such, on the technical ground of delay, the right of the widow of deceased employee could not be denied. If on the technical ground the claims are being denied, the very purpose of enacting the law will fail. The law provides protection to the old retired employees of a industry and also in case of death of employee, the pension and other benefits to widow of deceased employee. It is an established principle of law that laws are enacted for the welfare of subjects and not to usurp their legitimate rights recognized by law.

22. It is proven fact that in our society, the illiterate citizens of Pakistan have not enjoying legal advice free of any costs. The Adjudicating Officer has ignored all the above said facts and passed the impugned order without application of his judicial mind.

23. The objection of learned counsel for respondent, that right of appeal is available and thus the petition is not maintainable. It is now settled law where the remedy of appeal is not efficacious, the constitutional petition is maintainable in appropriate cases.

24. The upshot of the above discussion is that the impugned order is not sustainable in the eye of law and is hereby set aside and declared without lawful authority. The respondent No.2 is directed to pay the benefits to petitioner for which she becomes entitled due to the death of her husband. The petition is allowed. HBT/S-104/L Petition accepted.