2025 PLP 121 (PLC)

ANWAAR HUSSAIN, J.

This constitutional petition is directed against, letter dated 18.08.2022 issued, and, order dated 15.09.2022 passed, by the respondent-EOBI whereby the claim of the petitioner to the family pension qua widow of the deceased Ghulam Akbar/pensioner has been rejected, on the ground that the petitioner got married with deceased Ghulam Akbar/pensioner, at the age of 60 years which is not covered in terms of Section 22B (2) of the Employees' Old-Age Benefits Act, 1976 ("the Act"), pertaining to the survivors' pension.

2. Admittedly, the husband of the petitioner, namely, Ghulam Akbar was born on 15.01.1932. He became entitled to old age pension, on 01.02.1987, through Claim No. K5167. He was married to one Mst. Razia Begum when he got entitled to the old age pension. After the death of Ghulam Akbar in the year 2019, Mst. Razia Begum along with the petitioner filed application for grant of survivors' pension as widows, however, the pension was only awarded to Mst. Razia Begum who had been receiving the survivors' pension. Admittedly, Mst. Razia Begum has also expired. The petitioner was earlier intimated through letter bearing No.EOBI/RO/CKL/1394, dated 18.02.2020, that she does not fulfil the criteria laid down in Section 22B (2) of the Act, whereafter again through impugned letter No. EOBI/RO/CKL/518 dated 18.08.2022, her claim has been rejected. These facts are not disputed except that the petitioner denies receipt of letter dated 18.02.2020.

3. Learned counsel for the petitioner submits that Section 22B (2) of the Act has been misinterpreted by the respondent-EOBI inasmuch as nowhere under the said provision, it has been envisaged that a woman cannot contract marriage with the employee at the age of 60 years and therefore, cannot claim pension.

4. Conversely, learned counsel for the respondent-EOBI has supported the impugned order.

5. Heard. Record perused.

6. Primarily, the lis involves the interpretation and scope of Section 22B (2) of the Act. It is underscored right away that as the vires of the said provision have not been challenged through the instant petition, this Court would neither look into the vires nor comment upon this aspect of the matter. Before addressing the core legal issue, it will be advantageous to examine the aim, object and scope of the Act. Earlier, an Ordinance with the title of "Employees' Old-Age Pension Ordinance (Ordinance X of 1972)" was promulgated by virtue of which, for the first time, in Pakistan, the Government indicated its desire to introduce a social security scheme for the betterment of the employees of the private sector, which was later on replaced by "the Employees' Old-Age Benefits Ordinance (Ordinance XXVII of 1975)" and thereafter with the Act. Section 22 of the Act, governs the grant of the pension to an insured person in the following terms: "

22. Old-Age Pension An insured person shall be entitled to a monthly old-age pension at the rate specified in the schedule: Provided that: - (a) he is over [sixty] years of age, or [fifty-five] years in the case of a woman; and (b) contributions in respect of him were [paid] for not less than fifteen years: Provided further that the age specified in clause (a) will be reduced by five years in the case of an insured person employed in the occupation of mining for at least ten years immediately preceding retirement; Provided also that where the employee was insured under the provisions of this Act on or before 30th June 2002, and contributions payable under the Act by the employer prior to 30th June, 2002, in respect of said insured person had not been paid, the insured person shall enjoy the rights under this Act as if for the word "payable" the word "paid" were not substituted: Provided further that where the contribution under section 9B is paid regularly by the insured person himself in accordance with prescribed procedure, his entitlement to the benefit shall not be affected by default in payment of employer's share of contribution under section 9." Upon the death of the insured person, Section 22B comes into play, which governs grant of survivors' pension. For facilities of reference, the same is reproduced as under: "22B Survivors' Pension (1) (1A)..... (2) In the case of the death of an insured person who had become entitled to old-age pension or invalidity pension, before his death, the surviving spouse shall, if the spouse had married the deceased person before he had attained the minimum age prescribed for old-age pension, receive a life pension equal to the pension of such person." (Emphasis supplied) The survivors' pension is granted to eligible family members of a person who, at the time of death of the pensioner, held the established entitlement to the old-age pension or met the requirements to receive it or held the established entitlement to the disability pension or met the requirements for its award. In this regard, the language in which Section 22B (2) is couched clearly exhibits the intention and wisdom of the legislature by putting a condition that only such spouse will be entitled to survivors' pension who had married the deceased pensioner/employee before he attained the minimum age prescribed for the old age pension.

7. Suffice to observe that the law has not put any clog on the right of the employee to contract multiple marriages, as per his personal law, but only regulated the award of the pension to surviving spouse, by stipulating the conditions of entitlement. Hence, the nub of the matter is to examine whether said restriction as to the time when the marriage took place is valid or not.

8. Such conditions and restrictions do exist across the world in different jurisdictions. Even the International Labour Organization ("ILO"), which provides standards of labour practices, social protection and social justice both in public and private sector while bringing together stake-holders such as the employers, workers and the institutions like EOBI, has convened and passed different conventions from time to time in order to establish standardized behaviour pattern, labour practices and social justice and practices regarding the labour and work force regulating the old age pension/survivors' benefits. The Invalidity, Old-Age and Survivors Benefits Convention, 1967 ("the Convention, 1967") is one such convention which consolidated by way of the revision of the Old-Age Insurance (Industry, etc.) Convention, 1933, the Old-Age Insurance (Agriculture) Convention, 1933, the Invalidity Insurance (Industry, etc.) Convention, 1933, the Invalidity Insurance (Agriculture) Convention, 1933, the Survivors' Insurance (Industry, etc.) Convention, 1933, and the Survivors' Insurance (Agriculture) Convention, 1933. The Convention, 1967 lays down the standards to be followed by the Members and Ratifying States with respect to the rights and duties of employer and workers in the area of invalidity, old-age and survivors' benefit. Part IV of the Convention, 1967 deals with the survivors' benefit, which is relevant for the controversy in the instant case. Article 20 of the Convention, 1967 contemplates as under: "Article 20 Each Member for which this Part of this Convention is in force shall secure to the persons protected the provision of survivors' benefit in accordance with the following Articles of this Part." Similarly, Article 21 of the same Convention reads as under: "Article 21

1. The contingency covered shall include the loss of support suffered by the widow or child as the result of the death of the breadwinner.

2. In the case of a widow the right to a survivors' benefit may be made conditional on the attainment of a prescribed age. Such age shall not be higher than the age prescribed for old-age benefit.

3. No requirement as to age may be made if the widow- (a) is invalid, as may be prescribed; or (b) is caring for a dependent child of the deceased.

4. In order that a widow who is without a child may be entitled to a survivors' benefit, a minimum duration of marriage may be required." (Emphasis supplied) For the purpose of present controversy, perusal of the above-produced Articles in general and Article 21 in particular brings illumination as clause (2) of Article 21 lays down that the attainment of a specific age may be prescribed in order for qualifying a surviving widow to survivors' benefit. However, the succeeding clause i.e., clause (3) of Article 21 places a curtailment on clause (2) as it prohibits the provision of any such age in cases where widow is herself invalid or she takes care of a dependent child of the deceased. It is clause (4) of Article 21 which is directly related to the issue involved in the instant case. Clause (4) of Article 21 lays down that a minimum duration of marriage may be required for a widow to be entitled to survivors' benefit if she is without a child. At this juncture, it is important to observe that the standards set out by ILO are to be juxtaposed with the economic development of a particular country and the Courts cannot lose sight of the same. It can also be seen that clause (4) of Article 21 of the Convention, 1967 stipulates that a minimum period of duration of marriage "may be required" which shows that it is a directory provision regarding which Member States have been left with the choice to provide for such a provision or not considering the level of economic development of such State.

9. Similarly, in Canada, survivors' pension is dealt with under the provisions of Canada Pension Plan, R.S.C., 1985, c. C-8 ("the Act 1985")-- An Act to establish a comprehensive program of old age pensions and supplementary benefits in Canada payable to and in respect of the contributors. Section 44 (1)(d) of the Act, 1985 reads as under: "(d) a survivor's pension shall be paid (i) before 2019, to the survivor of a deceased contributor who has made base contributions for not less than the minimum qualifying period, if the survivor (A) has reached 65 years of age, or (B) in the case of a survivor who has not reached 65 years of age, (1) had at the time of the death of the contributor reached 35 years of age, (II) was at the time of the death of the contributor a survivor with dependent children, or (III) is disabled....." Moreover, Section 63 of the Act 1985 reads as under: "63 (7) Where a contributor dies within one year after his marriage, no survivor's pension is payable to his survivor if the Minister is not satisfied that the contributor was at the time of his marriage in such a condition of health as to justify him in having an expectation of surviving for at least one year thereafter." Though the scale of economic development of both Pakistan and Canada vary to a great degree from any standard adopted, perusal of the above quoted provisions of the Act, 1985 depicts that despite great economic development, even Canada has set out qualifying period of marriage to qualify survivors' pension by a widow.

10. Although Pakistan has not ratified the Convention 1967, however, it appears that regulating the award of survivors' pension is permissible by stipulating certain conditions. Such conditions are contemplated keeping in view the economic development of the country, which is gauged on the basis of different standards including but not limited to per capita income. Pakistan is not economically developed and/or advanced country rather a developing country with limited resources. While the legislature has provided for the survivors' benefit to a widow but has placed a curtailment on such benefit, that same shall not be permissible to a widow who married a deceased after a particular age prescribed in this regard, which is intended to save the respondent-EOBI from an unnecessary burden in view of the limited resources for provision of survivors' benefit. At this juncture, suffice to observe that even though pension is not a bounty from the employer but as analyzed hereinabove, across the globe, different States have devised and set out mechanisms and regulatory framework by way of imposing limitations regarding the time when the marriage took place, length of the marriage, age differences -- to avoid the obvious unfair exploitation of the scheme by marrying (employee) on one's death bed or after a particular prescribed age, that puts burden on limited financial resources of the institution. The plain language used by the legislature in Section 22B (2) leaves no room for further exercise by this Court by resort to any other artillery of interpretation except principle of literal interpretation. Section 22B (2) of the Act does not run against such standards set out by the ILO and laws of other jurisdictions. Thus, this Court finds no illegality in the impugned order.

11. The matter can be examined from another angle. After the death of Ghulam Akbar, Mst. Razia Begum along with the petitioner filed application for grant of survivors' pension as widows, however, the pension was only awarded to Mst. Razia Begum who had been receiving the survivors pension without any objection from the petitioner till the death of Mst. Razia Begum. The petitioner was earlier intimated through letter No. EOBI/RO/CKL/1394 dated 18.02.2020 that she does not fulfil the criteria laid down in Section 22B (2) of the Act whereafter again through impugned letter No. EOBI/RO/CKL/518 dated 18.08.2022 her claim has been rejected. Though the petitioner did not acknowledge receipt of said letter but mere fact that the petitioner remained silent since death of Ghulam Akbar and has acquiesced to the receipt of pension exclusively by Mst. Razia Begum since 2019, the petitioner is estopped from claiming the survivors' pension, after death of Mst. Razia Begum.

12. In view of the above discussion, the impugned order has been passed in consonance with the provisions of the Act. This petition has no merits, hence, dismissed. No order as to costs. SA/T-7/L Petition dismissed.