Entitlement
Entitlement legal meaning, translation and judicial precedents.
Meaning & Judicial Interpretation: (اردو مفہوم اور قانونی تشریح)
He acquired an LLB degree in 1992 and thereafter sought grant of two advance increments under the incentive scheme for railways officers and subordinates, 1966, and the 'general scheme for grant of advance increments, 1996'
Respondent's representation was rejected by the finance department on the ground that the 1966 Scheme had been abolished and that his qualification did not fall within the 1996 Scheme, whereupon the Federal Service Tribunal allowed his claim under the 1966 Scheme
The issue requiring determination before the Supreme Court was “whether the accounts officer of the 'audit department' holding an LLB degree was legally entitled to advance increments under either of the aforesaid schemes”?
Held: No benefit under the Scheme, 1966 had been extended to officers of the audit department, and an LLB qualification was not recognized under the General Scheme, 1996, therefore, the respondent's case did not fall within the scope of either scheme
The benefit extended by the Service Tribunal under the Scheme, 1966 was thus unsustainable
Moreover, an LLB degree was not equivalent to a master's degree
Respondent was not entitled to advance increments under either of the schemes
Petitions were converted into appeals and allowed, in circumstances.
Briefly, the respondents were appointed as 'sub engineers' in the year 1986 and were later upgraded to BPS-16 from BPS-12
Upon becoming eligible under the then-applicable service rules, their working papers for promotion to the post of 'assistant engineer' in BPS-17 were prepared, but the meeting of the Departmental Promotion Committee (DPC) was deferred by the department on the ground that new promotion rules were under consideration, subsequently, revised rules were notified, under which the respondents were declared ineligible for promotion, while their departmental appeals remained undecided, leading them to file service appeals before the service tribunal, which were allowed, holding them entitled to promotion in accordance with the rules applicable at the time they became eligible
The said judgment of service tribunal was challenged by the department before the Supreme Court through present civil petitions for leave to appeal
Held: Respondents had satisfied the eligibility criteria for promotion pursuant to the rules enforced at the time of their initial appointment
Consequently, their cases were fully ripe for consideration by DPC
The subsequent delay in convening meeting of the DPC was an administrative failure attributable solely to the department and could not be imputed to the respondents
The subsequently amended rules were to operate prospectively unless a contrary intimation was manifestly evident from the statute
Question of whether the amended rules were to be applied retrospectively or prospectively was beyond the scope of DPC's mandate
The DPC also did not have the authority to delay the meeting while waiting for amendment of the rules
Leave was declined and present petition was dismissed, in circumstances.
The petitioner joined the Oil and Gas Development Corporation (OGDC) as Accounts Assistant in 1995 after serving in the Pakistan Military Accounts Department
Upon reorganization under the Oil and Gas Development Corporation (Reorganization) Ordinance, 2001, the corporation was converted into the Oil and Gas Development Company Limited (OGDCL), and the petitioner became an employee of the new company by operation of law
He retired as 'senior accountant' on 17 June 2021 after serving for about 40 years and 10 months, including his earlier government service
He claimed entitlement to "additional pension" under Regulation 15(1A) of the Pension Regulations 1985, providing an extra 2% of gross pension for each year of service beyond 30 years, up to a 10% maximum
The company rejected his claim through an office memorandum, which the High Court upheld on, leading to the present appeal before the Supreme Court
Held: It was an admitted position between the parties that the Pension and Service Regulations made under the erstwhile Ordinance continued to regulate the affairs of the Company
Even otherwise, Supreme Court had already affirmed the continuing enforceability of said Regulations even after promulgation of Ordinance, 2001
Besides, under Section 24 of the General Clauses Act 1897, the Regulations were deemed to have been issued under Ordinance, 2001 unless inconsistent with the said Ordinance
Section 5 of the Ordinance 2001 provided that "all employees of the Corporation shall on the date of incorporation of the company be deemed to be the employees of the company on the same remuneration and other conditions of service, rights and privileges including the pension, provident fund and gratuity as were applicable to them before the conversion of the corporation into the company"
This provision saved and protected the terms and conditions of the employees of the erstwhile corporation
Under Regulation 15(1A) of the Pension Regulations, the benefit of "additional pension" was extended to the employees of the Corporation on 19.04.1987
As per the respondents, the benefit of additional pension had been withdrawn under the office memorandum dated 04.09.2001 which being a directive/instruction of the federal government was binding on the company under Regulation 265 of the Service Regulation
The office memorandum dated 04.09.2001 could not be constructed as a directive or instruction issued to the company by the federal government under Regulation 265
Any decision of board of directors, which without reference to the office memorandum stated that board of directors had resolved that the maximum scale of gross pension would continue to be equal to 70% of the pensionable salary upon completion of 30 years or more service at the time of retirement, was inconsequential as the same was in violation of Section 5 of the Ordinance 2001 read with Regulation 15(1A) of the Pensions Regulation
Moreover, the office memorandum whereby company declined claim of the petitioner was set aside keeping in view the statutory framework regulating the working of the company
Ordinance, 2001, not only recognized but also protected pension by ensuring that the terms and conditions of service of the employees of the erstwhile Corporation, and now of the successor Company, could not be altered to their disadvantage
Impugned judgment was set aside by declaring that the petitioner was entitled to "additional Pension" under Section 5 of the Ordinance, 2001 read with Regulation 15(1A) of the Pension Regulations with the direction to the company to pay the "additional pension" to the petitioner in accordance with the Pension Regulations
Petition was converted into an appeal and was allowed, in circumstances.
The petitioner joined the Oil and Gas Development Corporation (OGDC) as Accounts Assistant in 1995 after serving in the Pakistan Military Accounts Department
Upon reorganization under the Oil and Gas Development Corporation (Reorganization) Ordinance, 2001, the corporation was converted into the Oil and Gas Development Company Limited (OGDCL), and the petitioner became an employee of the new company by operation of law
He retired as 'senior accountant' on 17 June 2021 after serving for about 40 years and 10 months, including his earlier government service
He claimed entitlement to "additional pension" under Regulation 15(1A) of the Pension Regulations 1985, providing an extra 2% of gross pension for each year of service beyond 30 years, up to a 10% maximum
The company rejected his claim through an office memorandum, which the High Court upheld on, leading to the present appeal before the Supreme Court
Held: It was an admitted position between the parties that the Pension and Service Regulations made under the erstwhile Ordinance continued to regulate the affairs of the Company
Even otherwise, Supreme Court had already affirmed the continuing enforceability of said Regulations even after promulgation of Ordinance, 2001
Besides, under Section 24 of the General Clauses Act 1897, the Regulations were deemed to have been issued under Ordinance, 2001 unless inconsistent with the said Ordinance
Section 5 of the Ordinance 2001 provided that "all employees of the Corporation shall on the date of incorporation of the company be deemed to be the employees of the company on the same remuneration and other conditions of service, rights and privileges including the pension, provident fund and gratuity as were applicable to them before the conversion of the corporation into the company"
This provision saved and protected the terms and conditions of the employees of the erstwhile corporation
Under Regulation 15(1A) of the Pension Regulations, the benefit of "additional pension" was extended to the employees of the Corporation on 19.04.1987
As per the respondents, the benefit of additional pension had been withdrawn under the office memorandum dated 04.09.2001 which being a directive/instruction of the federal government was binding on the company under Regulation 265 of the Service Regulation
The office memorandum dated 04.09.2001 could not be constructed as a directive or instruction issued to the company by the federal government under Regulation 265
Any decision of board of directors, which without reference to the office memorandum stated that board of directors had resolved that the maximum scale of gross pension would continue to be equal to 70% of the pensionable salary upon completion of 30 years or more service at the time of retirement, was inconsequential as the same was in violation of Section 5 of the Ordinance 2001 read with Regulation 15(1A) of the Pensions Regulation
Moreover, the office memorandum whereby company declined claim of the petitioner was set aside keeping in view the statutory framework regulating the working of the company
Ordinance, 2001, not only recognized but also protected pension by ensuring that the terms and conditions of service of the employees of the erstwhile Corporation, and now of the successor Company, could not be altered to their disadvantage
Impugned judgment was set aside by declaring that the petitioner was entitled to "additional Pension" under Section 5 of the Ordinance, 2001 read with Regulation 15(1A) of the Pension Regulations with the direction to the company to pay the "additional pension" to the petitioner in accordance with the Pension Regulations
Petition was converted into an appeal and was allowed, in circumstances.
Letter of administration filed by the respondents was issued in their favour whereas to the extent of pre-deceased brother's children (interveners / petitioners ) , the same was concurrently declined
Validity
Section 4 of the Muslim Family Laws Ordinance, 1961, being on the statute book at the time of filing of the application for grant of Letter of Administration, was not applicable to the present case because it only provides for per stripes share on opening of succession to the children of deceased son and daughter of the propositus; which (Section 4) explicitly was not applicable to the pre-deceased brother's children rather said provision only attracted to the sons and daughters and the relations, who are specifically mentioned in it
As regards the question of analogy, notably, the matter of inheritance among Muslims is strictly governed by law and its provisions are well-defined leaving no ambiguity about the persons who are entitled to inheritance in the estate of the deceased
In the present case, deceased was survived by brothers and sisters and also two sons of pre-deceased brother
In terms of the table of sharers provided in the Mohammadan Law, a full sister is shown to be 1/2 sharer while table of residuaries include full brother's son; the son of pre-deceased sister is not mentioned in the table of sharer nor in the table of residuaries; the children of a pre-deceased sister are included in subsection (2) of S.68 of Mulla's Mohammadan Law, which lays down the list of distant kindred
The distant kindred only inherits when there are no residuaries
Under such circumstances, the properties and other assets of the deceased are required to be distributed amongst the brothers and sisters, who survived deceased and if anything is left for distribution, only then it can be given to the distant kindred
In the present case, since the deceased was survived by siblings, resultantly nothing would be left for its distribution amongst the legal heirs of predeceased brothers and sisters
Thus, the Courts below had rightly declined the application of the petitioners, which being well reasoned were not open for interference by High Court
Revision was dismissed, in circumstances.
Supreme Court has persistently deprecated the common practice of depriving female legal heirs from their Shari shares on one or another pretext
Female legal heirs are ,in addition to their Shari shares , also entitled to mesne profits.
Petitioner claimed to be citizen of Pakistan by birth and lineage but a POR card had been recorded against her namein NADRA database and she had been refused CNIC
Validity
No person can be deprived of citizenship of country merely on a dent of implication or ramification of having entry in NADRA database as Afghan citizen
Such inference is not provided in any law by express words or necessary intendment and the same cannot be taken against a person who proves himself to be original citizen of Pakistan
Requirement of S.14-A of Pakistan Citizenship Act 1951, has not been mandated during such process
Requirements of naturalization certificate are not valid in case of Pakistani citizens and are only valid in case of Afghan citizens, who are holders of ACC cards and desirous of obtaining Pakistan citizenship card
High Court directed the petitioner apply to Regional Verification Board and the Board would consider her case for cancellation of ACC card and then issuance of ACC in accordance with law and rules of NADRA after verification of her claim, as she was claiming to be a Pakistani citizen and whose entries had been effected as Afghan citizen by issuing ACC card
Constitutional petition was disposed of accordingly.
Record transpired that insurance claim was lodged by the respondents / plaintiffs with the appellants (Insurance Company) by complying with all procedural requirements, however, the appellants (Insurance Company) had badly failed to make due payment within time (i.e. a period of ninety days) as prescribed under S. 118 of Insurance Ordinance, 2000
Thus, the Trial Court had rightly decreed the suit for recovery of claim along with liquidated damages
No illegality, therefore, existed in the impugned judgment and decree calling for interference
Appeal filed by the Insurance Company, being merit-less, was dismissed.
Notification No. SO(ERB)5-44/2019/WC-DW-Policy dated 29.01.2021 issued by the Government of Punjab, Services and General Administration Department (Regulations / O&M Wing)
Constitution of Pakistan, Arts. 4, 10A & 25
Permanent employee / workman
Entitlement
Petitioners, undisputedly, were working on daily wages basis with the respondents for several years and, admittedly, had been receiving monthly salaries as per the settled terms and conditions outlined in their appointment letters
During the service of petitioners, no adverse remarks or disciplinary action were reported against them
The nature of their duties was manual, thus, placing them squarely within the protection of labour laws
If the nature of work for which a person is employed is of a permanent nature, then he may become permanent upon the expiry of the period of nine months mentioned in terms of clause (b) of paragraph 1 of the Schedule to Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 ('the Ordinance'), provided that he is covered by the definition of the term "worker" given in S. 2(i) thereof ; but if the work is not of permanent nature and is not likely to last for more than nine months, then he is not covered by the above provision
In the present case, the petitioners had been continuously serving against various posts for several years, albeit with artificial breaks
The duration of their employment far exceeded the nine-months threshold, clearly indicating that their work was of a permanent nature
Pertinently , the respondents did not claim that the petitioners were terminated upon completion of a task, project, or due to the abolition of posts
Pertinently, the Government of Punjab, Services and General Administration Department (Regulations/O&M Wing), issued a Notification No. SO(ERB)5- 44/2019/WC-DW-Policy dated 29.01.2021, clarifying the status of work-charged employees, daily wagers, and contingent paid staff; according to the which (notification) daily wagers who have completed nine months of service may be considered as permanent workmen under S. 1(b) of the Ordinance and were entitled to all rights and benefits afforded/granted to permanent workmen
The continued denial of rights to the petitioners was not only legally untenable but also ethically indefensible
Petitioners had fulfilled all statutory requirements to attain the status of permanent workmen, and the refusal to recognize their lawful status constituted a breach of mandatory legal provisions
Moreover, the failure to follow lawful termination procedures violated both statutory law and fundamental rights guaranteed under Arts. 4, 10A & 25 of the Constitution
High Court set-aside the impugned judgment passed by the Labour Appellate Tribunal declaring the verbal termination of the petitioners to be illegal and unlawful, directing the respondents to reinstate the petitioners into service as "permanent workmen"
Constitutional petitions were allowed accordingly.
Appeal was filed by the Department against order passed by Commissioner Inland Revenue-Appeals/CIR(A) whereby the tax liability (of Rs. 1,973,470/- ) created under S. 161 of the Income Tax Ordinance , 2001 by the Officer Inland Revenue/OIR against the Taxpayer /Company (engaged in the business of Tanning and Processing of Leather, as a withholding agent) was deleted by holding that the OIR should have identified the specific default on the part of the taxpayer/ Company
Validity
Record revealed that Respondent was confronted qua non-deduction against payments under as many as eighteen Heads ( such as 'Purchases', 'Addition in Fixed Assets', 'Salaries/wages', 'Salaries-Cost of Sales', 'Salaries -Administrative ' , ' Directors remunerations', 'Cost of Sales', 'Administrative expenses', 'Forwarding and Commission', 'Packing expenses', 'Travelling Staff', 'Travelling Director', 'Vehicle running expenses', 'Stationary/Printing / Photocopies', 'Legal and Professional Charges', 'Auditors Remuneration', 'Other expenses', 'Default surcharge')
In the present case, the OIR, after examining the explanation/evidence produced by the respondent (taxpayer/withholding agent), vacated the charge under many heads which showed that the explanation/evidence was properly thrashed out and where the non-deduction was established on the part of the taxpayer tax was charged
Appellate Tribunal Inland Revenue set-aside the impugned order passed by the CIR(A) modifying the original order to the effect that charge of tax imposed by OIR on five heads (Purchases, Salaries-Administrative, Cost of Sale, Packing Expenses and Vehicle Running Expenses) was modified while charge on two heads (Addition in fixed Assets and Otherwise Expenses) was restored/upheld
Appeal, filed by the Department, was partly allowed accordingly.
Primary objective of family pension is rooted in the principles of social welfare and economic protection, ensuring that those who were financially dependent on deceased during his lifetime are not left in hardship or destitution after his demise
Interpreting pension laws, Courts must be guided by such broader social and economic purpose, eschewing a narrow or overly technical approach especially in situations, where an apparent limited scope of a particular provision of law may result in a situation that may defeat the very purpose of that law
Pension is not a gratuitous benefit or an act of charity; it is a rightful and earned entitlement, representing deferred remuneration for services rendered by the employee, which becomes payable upon retirement or death
Language of Regln. 22 of Oil and Gas Development Corporation Pension and Gratuity Regulations, 1985 must be construed in a manner that ensures equitable extension of benefits to all children, irrespective of marital status
Divorced daughter, having reverted to an unmarried status upon dissolution of her marriage, falls within the ambit of "unmarried daughter" and cannot be excluded solely on the basis of her prior marital status
Letter issued by respondent / company was fraught with legal and Constitutional infirmities by purporting to interpret and restrict the scope of Regln. 22 of Oil and Gas Development Corporation Pension and Gratuity Regulations, 1985
Respondent / company through letter in question engaged in an unauthorized executive act that had effectively amended Oil and Gas Development Corporation Pension and Gratuity Regulations, 1985 by administrative authorization, exceeding its lawful authority
Letter in question introduced a discriminatory classification by excluding divorced daughters from eligibility, despite absence of any such express restriction in Regln. 22 of Oil and Gas Development Corporation Pension and Gratuity Regulations, 1985
High Court declared the Letter issued by respondent / company as without lawful authority and of no legal effect
High Court directed respondent / company to transfer family pension of deceased in favour of petitioner
High Court further directed respondent / company to restore and disburse commuted portion of deceased's pension, along with all increases accrued since year 2016, to the petitioner, with effect from the due date
Constitutional petition was allowed accordingly.
Defendant filed an application before the Deputy Commissioner for closing school owned / run by plaintiff alleging it to be illegal and unregistered
Plaintiff took the stance that the said application was filed with mala fide intention to humiliate him in the society and damage his reputation
Validity
In the present case, as per probe by Ehtesab Bureau as well as Education Department, the initial registration of the school was not found in the record and the report made by Education Officer was declared false, thus, it was established that the plaintiff was running school without registration and the application filed on behalf of defendant before the Deputy Commissioner was also to the same effect that the plaintiff was running an unregistered school, so it could not be said that the defendant filed an application with mala fide intention to humiliate the plaintiff in the society and damage his reputation rather the defendant through said application brought the actual situation into the notice of the Deputy Commissioner for legal proceedings
Merely filing of an application before the competent authority for taking legal action could not be termed as malicious prosecution
It was the responsibility of the plaintiff to prove that the application was false and was filed with mala fide intention
For award of decree for general damages, it was the responsibility of the plaintiff to prove by producing cogent evidence that application filed by defendant was false and his school was properly registered and the application was filed just to humiliate him in the society, however the plaintiff failed to place on record any reliable document in support of his contention that the school was registered under law but during inquiry, it was found that the basic registration of the school was not available in the record of the concerned department, thus it cannot be held by any stretch of imagination that the filing of application by the defendant/appellant was an outcome of malice; rather it can safely be held that the defendant through the application brought an illegal action of plaintiff into the notice of concerned authority for which he could not be penalized
High Court set-aside the impugned judgment and decree; consequently, the suit filed by plaintiff/appellant stood dismissed for want of proof
Appeal, filed by defendant, was accepted.
Record revealed that the school of the plaintiff was not closed on the application of defendant/appellant rather after an inquiry the application was disallowed by declaring it as false without inquiring into the matter that whether the school of plaintiff was registered or not
Thus, the question of special damages as claimed by the plaintiff did not arise
Even otherwise, the plaintiff failed to mention in theplaint the calculable exact special damages suffered by him due to action of defendants
High Court set-aside the impugned judgment and decree ; consequently, the suit filed by plaintiff/appellant stood dismissed for want of proof
Appeal , filed by defendant, was accepted.
Collector Customs challenged the decision of the Customs Appellate Tribunal, which had upheld the refund of 1% excess Federal Excise Duty (FED) to respondent
The respondent imported edible oil and was charged 17% FED during a period when the applicable rate was 16%
The collector had denied the refund, arguing the burden had been passed to the consumer
However, the respondent proved through sales records that product prices remained unchanged, hence the burden was not transferred
Validity
Only controversy between the parties was as to "whether the excess recovered FED was refundable to respondent or not?"
Held: Careful perusal of S. 11 of Federal Excise Act, 2005 (the Act, 2005) revealed that the refund claim for excess payable/paid duty was not admissible if the incidence of such excess paid duty had passed on to the consumer
The petitioners took the stance that under S. 19A of the Customs Act, 1969, it would be presumed that the incidence had been shifted to consumer
Presumption under S. 19A ibid only prevailed when the person paying duty had failed to prove that the incidence of excess paid duty was not passed on to buyer
In the present case, the situation was, however, different
The Collectorate of Customs (Appeals), Islamabad, during hearing of appeal, required the respondents to produce their Sales Tax Register for the month of relevant period wherein it was found that the sale price of the final product was not enhanced by them
Accordingly, it was rightly held by the Collectorate of Customs (Appeals) that the respondent had not passed on the excess paid duty to consumer
In the present case, there was no proof that the excess paid duty was passed on to the buyer, rather it was proved that the duty was recovered on raw material before manufacturing of final product and it was paid by the manufacturer himself and the rates were not enhanced as a consequence of payment of such excess duty
Secondly the proviso to S. 33 of the Customs Act, 1969 would become redundant when the refunds becomes due in consequence of any decision by the appropriate officer of Customs or Board, or the Appellate Tribunal or the Court
Refund in question became due upon order passed by the Collectorate of Customs (Appeals), Islamabad, as such benefit could not be claimed by the petitioners under Proviso to S. 33 of the Customs Act, 1969
Excess duty recovered by the petitioners from respondents was refundable because its burden was not passed on to intermediary or end consumer
Present tax reference was dismissed, in circumstances.
Property was privately partitioned and as a result of such partition, all co-owners were assigned specific portions of properties
Such private partition was further strengthened through mutation and after getting their specific portions of holdings, the parties remained in constant possession in exclusion of other co-owners
Private partition was a bona fide transaction and no co-owner ever questioned its validity
As a result of such private partition, respondents/objectors were given property which was later on acquired
Petitioners were excluded from questioning such private settlement
Referee Judge had rightly held that respondents/objectors were entitled to receive amount of compensation of land by answering reference under S. 30 of Land Acquisition Act, 1894, in positive
High Court in exercise of appellate jurisdiction declined to interfere in the order passed by Referee Judge
Appeal was dismissed, in circumstances.
Petitioners (Sugar Mills) filed constitutional petition against non-release of subsidy/ amount by State Bank of Pakistan (respondent)
Assertion of the State Bank of Pakistan was that petitioners (Sugar Mills) were bound to export sugar within 60 days
Whether export of sugar by the petitioners to Afghanistan beyond 60 days could be treated as ineligibility
Held: It is admitted position that approval in favour of the petitioners for export of sugar to Afghanistan was granted on 03.06.2019, meaning thereby that the same was before closing of fiscal year
From contents of the Office Memorandum, dated 10.12.2018, issued by Ministry of Commerce and Taxation, Government of Pakistan, it was clear that there was no stipulation of export of sugar within 60 days from the sanction
The said decision of the Ministry of Commerce and Taxation was notified by the State Bank of Pakistan through EPD Circular letter No. 22 dated 18. 12.2018; even in the said circular, there was condition regarding export of sugar within a specific period
In this background the assertion of counsel representing State Bank of Pakistan that petitioners were bound to export sugar within 60 day, being contrary to record, could not be given any weightage
Notably, record reveals that payments were made in the months of July, 2019 and August, 2019, thus assertion of counsel, representing respondent-State Bank of Pakistan, that no payment could be made after 30.06.2019, ran contrary to the record
It was a matter of record that subsidy claim was introduced, pursuant to the said Office Memorandum, issued by the Federal Government and the same could only be halted pursuant to decision of the competent authority which was properly notified
State Bank of Pakistan could not withhold payment of the petitioners on any other basis (official communication /decision)
Report submitted by respondents showed that the payments were made in favour of Sugar Mills (petitioner No.1) in the months of July and August, 2019
Thus, the respondents failed to justify withholding of outstanding amount of the petitioners (Sugar Mills)
High Court directed respondents to release outstanding amounts in favour of petitioners(Sugar Mills)
Constitutional petition, filed by Sugar Mills, was allowed accordingly.
Record revealed that predecessor-in-interest of (eight) defendants /petitioners acted in accordance with stipulated terms and conditions of 1st agreement to sell by executing the 2nd agreement to sell in favour of plaintiff/respondent
Said predecessor-in -interest was legally authorized to execute the 2nd agreement to sell in favour of plaintiff/respondent and after executing the 2nd agreement to sell voluntarily, his successors-in-interest (defendants /petitioners) could not wriggle out of the commitment of late predecessor-in-interest
No misreading or non-reading of evidence nor any infirmity, legal or factual, had been noticed in the impugned judgments and decrees passed by the both Courts below
Revision petition was dismissed, in circumstances.
Respondents/plaintiffs assailed mutation of inheritance attested in favour of petitioners/defendants on the plea of change of faith
Suit and appeal were concurrently decided in favour of respondents/ plaintiffs
Validity
Canon of the Quran and Sunnah were applicable to inheritance of estate of deceased Muslim
Non-Muslim was not entitled to inherit any share from the estate of his Muslim relative as successor or predecessor
Predecessor-in-interest of petitioners/ defendants was Qadiani at the time of incorporation of inheritance mutation whereas his father who was owner of suit land was a Muslim
Predecessor-in-interest of petitioners/defendants was not entitled to inherit from the estate of his Muslim father
Trial Court rightly decreed suit of respondents/plaintiffs which decision was lawfully upheld by Lower Appellate Court
High Court in exercise of revisional jurisdiction declined to interfere in concurrent findings of facts by two Courts below, as the petitioners/defendants could not point out any illegality or material irregularity in judgments and decrees passed by two Courts below, neither there was any jurisdictional defect
Revision was dismissed, in circumstances.
Facts in brevity were that the petitioner while establishing a new food manufacturing plant in the special economic zone (SEZ), imported prefabricated building structures and overhead cranes, claiming exemption from customs duties and sales tax under S. 37 of the Special Economic Zones Act, 2012, read with SRO 41(I)/2009 and Chapter 9917(2) of the Customs Tariff as "Capital Goods"
Customs authorities denied the exemption through an assessment order, which decision was upheld by both the collector (appeals) and the customs appellate tribunal
Petitioner argued that prefabricated buildings qualified as capital goods under the Customs Act, 1969 and existing SROs, relying on the case reported as (2011 PTD 569), where similar exemptions were upheld
Pivotal point for consideration by the High Court was as to "Whether the prefabricated building structures imported by the petitioner for setting up a manufacturing facility in a notified Special Economic Zone (SEZ) qualified as "capital goods" and were therefore entitled to exemption from customs duties and sales tax under S. 37 of the SEZ Act, 2012, read with SRO 41(I)/2009 and Chapter 9917(2) of the Customs Tariff, notwithstanding a contrary interpretation by the Federal Board of Revenue?"
Held: Insofar as the definition of "Capital Goods" was concerned, it had been interpreted expansively to hold that prefabricated buildings and sheds, so imported, fell within the definition of either machinery, plant, equipment, apparatus or capital goods; and therefore, qualified for exemption under SRO 575(I)/2006
Once it had been held categorically by a Division Bench of the High Court that prefabricated buildings and sheds fell within the definition of plant, equipment, machinery and capital goods, then how could the department or for that matter the Tribunal disagree with such view merely for change in the SRO or classification of goods under some special Chapter (9917) of the Customs Tariff or under the 5th Schedule to the Customs Act
Till such time the definition remained the same, the dicta laid down in the case reported as (2011 PTD 569) was to remain applicable and any deviation thereof, in fact, was contemptuous on the part of the department
Accordingly, this aspect of the matter stood answered and the finding of the Tribunal in this context was not in accordance with the law
Similarly, Tribunal's observations while dealing with Serial No. 19 of the 6th Schedule of the Sales Tax Act, 1990 in respect of exemption of sales tax that the applicant was not a zone developer, but had set-up its industrial unit in special economic zone, hence not entitled for any exemption, was incorrect and without proper appreciation of law and facts
The said provision was pari materia to what had been provided under Special Classification Chapter 9917(2) and therefore, the applicant was not only entitled for exemption of duties on the goods in question being Capital Goods under Chapter 9917(2) read with the Preamble of Part-I of the Fifth Schedule to the Customs Act, 1969; but so also from Sales Tax against Serial No.19 of the Sixth Schedule to the Sales Tax Act, 1990
It was of paramount importance to note that an exemption was also provided under S. 37 of the Special Economic Zones Act, 2012 read with SRO 41(I)/2009 dated 19.01.2009 which was available for establishing projects in SEZ's
Such exemption was provided in terms of S. 19 of the Customs Act, 1969 read with S. 13 of the Sales Tax Act, 1990 on the import of capital equipment (i.e. plant, machinery, equipment and accessories), whereas, in the said notification, it was only machinery, which had been defined and it was silent about as to what was plant, equipment and accessories
In the considered view of the High Court the claim of the applicant for exemption under SRO 41(I)/2009 was also valid by treating the goods in question as capital equipment as provided in the said SRO
The Tribunal's rejection in providing exemption to the petitioner was based on FBR's opinion that prefabricated buildings were not "plant, machinery or equipment
The Tribunal had erred in this regard by placing reliance on the directions of FBR and its interpretation in respect of capital goods viz a viz exemption claimed by the applicant
Reference application was allowed, in circumstances.
Customs Appellate Tribunal ('Tribunal') concurred that, in view of FBR's letter dated 13.08.2012, the Applicant was not entitled to claim any exemption from duties and surcharge on the re-importation of goods, which were sent abroad for repairs
Validity
Findings of the Tribunal revealed that the Tribunal had merely relied upon FBR's letter dated 13.08.2012 and had not made any effort to give its own reasoning
Record further showed that earlier on 09.08.2012 another letter was issued by the FBR, whereby exemption was extended on the re-importation of goods after repair
From perusal of the said two letters, which were contrary to each other, it reflected that the subsequent letter had on its own inserted words “ before commencing of the Project”, which appeared to be contrary to the provisions of Clause 13.2 of Article (XIII) of the Implementation Agreement between the Applicant and Government of Pakistan ('Agreement')
Even otherwise, any goods which required repair would naturally be after the commencement of the Project and not prior to that
Clause 13.2 of Article (XIII) of the Agreement stated that the Applicant shall be entitled to export without restriction all items of Plant and Machinery imported by it under Section 13.1 for the purposes of repair or re-furbishment outside Pakistan and to re-import the same without restriction and without payment of Customs Duties and other Surcharges and this Clause did not provide any time limit as stated by the FBR in its letter dated 13.08.2012; till such time the agreement subsisted, the exemption of such goods sent abroad for repair would be admissible
Thus, the proposed question was answered in the affirmative i.e. in favour of the Applicant and against the Respondent /Collectorate
High Court set-aside the impugned judgments of the forums below
Special Customs Reference Application was allowed.
Section 64 of the Contract Act, 1872, stipulates that the party rescinding a voidable contract shall, if he has received any benefit there under from another party to such contract, restore such benefit, so far as may be, to the person from whom it was received
In view of said provision, the appellant / vendee was entitled to receive back Rs. 1 million that she had paid as advance money, which was to be returned to her with a mark-up of 5% per annum by vendor / respondent
Appeal was disposed of accordingly.
Applicant, who had filed an application under S. 12(2), C.P.C., died while he had assailed dismissal of his application against ex-parte decree by way of filing revision application before the Appellate/District Court
Petitioner/plaintiff assailed judgment passed by appellate/District Court, which, while setting aside ex-parte decree sent the matter for trial to be contested by the parties including legal heirs of the applicant
Validity
Record revealed that performance was sought by the petitioner/plaintiff in the suit against the person (defendant/respondent), who prima facie was only a partner in the business and not the co-owner of the land/project ('property-in-question'); said defendant might have a dispute with the co-partner within their partnership business related to accounts but could not prima facie be deemed to bean owner of the property-in-question
The preferential right of the parties in relation to the property-in-question, if at all pressed, could only be determined during trial in presence of the legal heirs of respondent (applicant under section 12(2) C.P.C.) and not otherwise
The suit in the shape of a claim of the petitioner being pending would be defended by the parties including the legal heirs of applicant under section 12(2), C.P.C., and fresh evidence in this regard may be recorded by the trial court in the said suit, if so desired
No interference was required in the impugned judgment passed by the Appellate/District Court ordering to send the case for trial while setting-aside ex-parte decree
Constitutional petition was dismissed, in circumstances.
On representation filed on their behalf, the Commissioner Workmen's Compensation and Authority under Payment of Wages Act ('Authority') was pleased to allow the amount of insurance under the provisions of S.12 of Sindh Terms of Employment (Standing Orders) Act, 2015, ('the statute'), whereby group insurance amount was payable and in case insurance was not available the amount was to be paid by the employer
Petitioner / employer filed Constitutional petition being aggrieved of said order passed by the Authority
Whether in case of death would the restrictive period provided in the statute come in the way of treating him eligible or otherwise
Held: The registration of the deceased with the Employees Old Age Benefits Institution (E.O.B.I), though present on record, was apparently only for period for continuation of service
Admittedly, the deceased had not completed the requirement of period mentioned in statute
Undoubtedly, it is basic element of interpretation that words cannot be read into the statute
Apparently in the present matter the statute did not discuss the ultimate period to be met by a worker and as to whether the said period would go against him or in his favour as there was no restriction also
For the very purpose, perhaps, the statute was for normal employees, however, since it was a beneficial statute only in the case of the employees meeting death the same was liable to be so interpreted, as no one could say negatively or positively about the completion of the required period
Not only the Authority had referred to death as ultimate in its order but nothing to be otherwise presumed had been shown to the High Court
The beneficial interpretation of the subject statute was further supported by the fact that according to the said statute the minimum period was provided as a mandate and the parties were not restricted from entering into any agreement better than what had been provided in the statute
Constitution petition, filed by the employer , was dismissed accordingly.
Company /Establishment filed constitutional petition as the National Industrial Relations Commission (NIRC) re-instated the respondents concluding that the respondents (thirteen in number) had produced sufficient material to show that they were permanent workers who had been working in petitioner /establishment as workers for the last several years
Validity
Record, revealed that the respondents only produced the I.D Card / attendance card issued by the petitioner /company where they were shown to be casual workers
Evidence adduced by respondents also revealed their certain adverse admissions relating to different respondents (as grievance petitioners) like not attaching the copy of the I.D card, not signing the grievance petition, no authority letter, casual workers written on the duty card, not being aware whether grievance notices were sent to the petitioner company or otherwise and not signing power of attorney
Thus, entire burden ought not to have been shifted upon the petitioner / company alone by the NIRC, whereas the respondents were set free as they failed to prove through cogent material that they rendered their services for the petitioner / company for more than nine months as required under the law
In the absence of such material, the petitioner / company could not be directed to reinstate their services which were of a temporary nature
National Industrial Relations Commission had erroneously granted the benefit of reinstatement of service to the respondents by holding that the respondents fall within the definition of permanent 'workmen', which findings were based on guesswork, conjectures and suffered from misreading of evidence and record, resulting in gross miscarriage of justice
High Court set-aide impugned orders passed by NIRC
Constitutional petition, filed by Company / Establishment, was allowed, in circumstance.
Company / Establishment filed constitutional petition as the National Industrial Relations Commission re-instated the respondents
Held, that definition 2(g) of the Industrial and Commercial Employment (Standing Order) Ordinance, 1968, ('the Ordinance, 1968') provides the classification of the workman, which is sub-divided into six categories i.e. (i) permanent, (ii) probationers, (iii) badlis, (iv) temporary, (v) apprentice and (vi) contract workers
A temporary workman is defined in the Schedule to the Ordinance, 1968 as a workman who has been engaged for work of a temporary nature, which is likely to be finished within a period not exceeding nine months
The protection of the, daily wagers who have been performing their duties against permanent posts for a long period is Para 1(b) of the Schedule attached to the Ordinance, 1968
Standing Order 12 of the Ordinance 1968 provides that no temporary workmen (whether monthly rated, weekly rated daily rated or piece rated and no probational or badali shall be entitled to any notice if his services are terminated by the employer, nor shall any such workman be required to give any notice or pay wages in lieu thereof to the employer if he leaves the employment of his own accord
However, the situation is quite different than the permanent workman under Standing Order 12(3) of the Ordinance, 1968
Thus, NIRC had erroneously granted the benefit of reinstatement of service to the respondents by holding that the respondents fell within the definition of permanent 'workmen', which findings were based on guesswork, conjectures and suffered from misreading of evidence and record, resulting in gross miscarriage of justice
High Court set-aide impugned orders passed by NIRC
Constitutional petition, filed by Company / Establishment, was allowed, in circumstance.
The challenge in the present Constitutional petition was "whether a daily wage employee, appointed without statutory backing or sanctioned post, could lawfully claim reinstatement and regularization of service on the basis of equality with another individual allegedly regularized under similar circumstances"
Held: Contention of the petitioner that since another employee had been regularized she too was entitled to similar treatment under Art. 25 of the Constitution was a flawed argument
Article 25 of the Constitution did not permit extension of benefits arising from illegal or irregular actions
Petitioner was appointed on daily wages basis without adherence to any codified recruitment procedure or advertisement for specific period
Appointments made on daily wages or ad hoc basis did not confer any legal right for regularization unless the appointment was supported by statutory rule or made against a sanctioned post following proper process
Present petition being without substance was dismissed, in circumstances.
Legislature in its own wisdom incorporated the word "shall" in S. 20 of the Sindh Civil Servants Act, 1973 that on retirement, a civil servant "shall be entitled" to receive pension and gratuity, impliedly casting a duty upon the authority superintending the service of the retired employee to forthwith sanction pensionary benefits
In case the department is of the view that the retired employee caused a loss through fraud, the department is competent under the law to initiate proceedings for such recovery but in no case the pensionary benefits be withheld.
Petitioner (widow of deceased employee) instituted the present Constitutional petition seeking release of benevolent grant, group insurance and pensionary benefits arising from the services of her deceased husband, who joined the respondent company in 1982 and retired in 2008 under the Voluntary Surrender of Service (VSS) Scheme, in pursuance of which he was paid under the VSS agreement, but monthly pension was denied on the ground that he fell short of the 20 years qualifying service requirement
He had served 19 years and 7 months in regular service
Respondent company later introduced a 'separation bonus scheme' for employees falling short of 20 years, which was credited to his account
After death of petitioner's husband in 2015, petitioner (widow) filed the present petition upon rejection of pensionary claims by respondent company by asserting that the shortfall of months should have been condoned and that she was entitled to benevolent grant and group insurance
Held: Case of the petitioner (widow) fell in the same category of case which had been decided by the Supreme Court in Civil Appeal No.2506 of 2016 whereby the Supreme Court held that the appellants had no valid grievance as they had voluntarily opted for the VSS (Voluntary Separation Scheme), accepted the separation bonus (which was only available to those with less than 20 years of qualifying service), and signed the waiver forms; they did not disclose the said facts in their petitions, which amounted to a non-disclosure of material facts; that if the appellants truly believed they had completed 20 years of service and were entitled to pension, they should not have accepted the separation bonus or should have refunded it before pursuing pension claims; that their conduct barred them from seeking pension under the doctrine of estoppel
Whereas, provisions of the Federal Employees Benevolent Fund and Group Insurance Act, 1969 (the "Act 1969") entitled the petitioner to receive benevolent grant for her life for a period starting from date of death of her husband as he died after retirement but before attaining the age of seventy years
Petitioner was also entitled to receive sum assured on account of premium contributed towards group insurance in terms of Ss. 13 & 19 of the Act, 1969
With respect to the objection regarding applicability of laches in the present petition allegedly being filed after 12 years of VSS agreement, same was without force for the reason that doctrine of laches could not applied in every case as a hard and fast rule without examining dictates of justice, equity and fair play
In the present case, respondent Nos.1 to 3 were required to act fairly and justly to discharge their duties by forwarding the application of petitioner for payment of benevolent grant and group insurance if found entitled and inaction on the part of respondents to act upon application filed by the petitioner created a recurring cause of action in her favour for which no limitation applied
In the present case there was a recurring cause of action for the petitioner to knock at the doors of justice and petitioner could not be dismissed on account of mere delay
Petitioner being widow of deceased employee was entitled to receive benevolent grant for life, she was also entitled for grant of group insurance for the sum assured against the life of her deceased husband
Petitioner failed to make out a case for grant of monthly pension
Constitutional petition was partly allowed, in circumstances.
Proviso to F.R. 17 was omitted by Finance Division, as such benefit of proforma promotion under F.R. 17 was only available to civil servants retiring before cut-off date and as the petitioner retired after the cut-off date of the said notification, thus, such benefit was not available to him
Concept of proforma promotion or promotion with retrospective effect to a retired civil servant is alien to the scheme of law
Sindh Civil Servants Act, 1973 and Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, being governing laws in matters of appointment and promotions do not contain any provision entitling a civil servant for proforma promotion after retirement and in absence of any laws conferring rights of proforma promotion to the retired civil servants, High Court cannot issue writ directing the public sector organizations/entities/departments to do an act otherwise not permissible under the law.
Claim of the (insurance) petitioners (general store) was that they got loan facility from the Bank (HBL) for their business and on the requirements of the Respondent/Bank they got insured their properties and stock in the general store from respondent (insurance company); that they were entitled for a loss of Rs.945000/-suffered due to fire at their godown/building
Ground taken by the respondent (insurance company) was that they had no contract of insurance with the petitioners; that they sold the policy to the Respondent /Bank who had not filed any petition against them, thus, the present petition was incompetent
Validity
Relevant exhibited policy documents showed the name of insured as the concerned Bank (HBL) as mortgagees while the petitioners (M/s Ijaz Brothers General Store) were shown as mortgagors
It was evident that said agreement was tripartite in which the loan of the Bank was secured and the stock of general store items and building of shop belonging to the insured under lien were insured
Admittedly, the insurance claim was made by the Petitioners (M/s Ijaz Brothers), which was the affected party in the tripartite agreement
Thus, the claim of the petitioners could not be rejected on the ground that they were not party in the insurance contract
However, the insured description mentioned in the copy of the relevant primary cover note (having been produced as Mark-B) showed that temporary fire cover note was valid only for 30 days and that the building of house and stock of general merchandise were only insured and no separate description of shop or godown was given
Record (exhibited documents) revealed that after expiry of the cover note, the petitioners got regular insurance policy for the year 2008-2009 and thereafter, they got insurance policy from 30.06.2009 to 30.06.2010
Incident of fire on 19.04.2010 in the godown was not denied but the description of the insured property in the insurance policy showed that only the building of the shop and the stock lying in it were insured
Under Art. 102 of the Qanun-e-Shahadat Order, 1984, the documentary evidence excluded the oral evidence, therefore, when the godown was not insured in the contract of insurance policy, the claim regarding the same could not be granted
However, the amount of Rs.45000/- already offered by the respondents (insurance company) to the petitioners would remain intact
Insurance petition was dismissed, in circumstances.
Denial of payment of commutation amounts (pensionary benefit) to retired employees of Pakistan Television Corporation (PTVC), challenge to
Entitlement
Pensionary benefits and entitlements
Fundamental right
Pensionary benefits equated to and are protected as part of right to life under Art. 9 of the Constitution
Right to pension and commutation, grant of
Significance and essence stated
The main issue in the present petition was withholding of commutation amounts (pensionary benefits) by Pakistan Television Corporation from its retired employees
The case revolved around whether the denial in releasing these commutation benefits (pensionary benefits) was lawful and sustainable, and whether such benefits formed part of the retired employees' constitutionally protected right to life and livelihood
Held: The petitioners, though employees of a Corporation, had performed public functions under the substantial administrative and financial control of the State, in such circumstances, the denial of commutation amount (pensionary benefit), by the respondent No.4 (Finance Division) on the pretext that PTVC employees were limited to CPF instead of GPF or statutory pension and by the respondents Nos.2 and 3 on the pretext of an ongoing financial crisis was also both arbitrary and unjust and it also amounted to unfair discrimination and violated the settled principles of fairness, equality, and legitimate expectation
Stance of the respondents created an unjustified distinction between employees of the Federal Government and those serving in State-owned entities
Such a classification, without reasonable and objective justification, offended the mandate of Art. 25 of the Constitution, which guaranteed equality before law and equal protection of law
Prima facie, the petitioners possessed the requisite qualifying service and were duly retired in accordance with the applicable rules
The right to receive pension and its allied benefits, including commutation, was not merely a statutory entitlement but formed part of the fundamental right to life as envisaged under Art.9 of the Constitution
A retired employee, upon superannuation, was ordinarily bereft of alternate sources of income and was wholly dependent on pension for sustenance, dignity, and survival
Pension, much like salary, constituted a continuous and legitimate source of livelihood
As such, it fell squarely within the protective ambit of the fundamental right to life guaranteed under Art. 9 of the Constitution as right to life inherently encompassed the right to livelihood
Consequently, this right could not be subjected to the whims, discretion, or arbitrary inclinations of those in positions of authority
Public employment, and the benefits flowing therefrom, was not a charitable concession or bounty granted by the State or its functionaries, nor could its continuity be left to their mercy
Rather, it was a legally enforceable right, grounded in law, justice, and constitutional protections
Upon superannuation or retirement, the pensionary entitlements of an employee, including commutation, must be processed during service and disbursed promptly upon retirement, without any unwarranted delay
Consequently the right of commutation amount vested in favour of the petitioners, and they were entitled to its release
The respondents were directed to process the case of petitioners for grant of commutation amount according to law without any failure of time
However, the remaining relief, in respect of the prayer to restrain the respondents from utilizing the amount received from the encashment of NIT Units, was beyond the purview of the High Court's jurisdiction under Art. 199 of the Constitution, as the petitioners had an alternate efficacious remedy available under the Companies Ordinance 1984, having its own Memorandum of Association and Articles of Association, therefore, this relief was declined
Present Constitutional petition was partially allowed, in circumstances.
Father of the deceased employee assailed concurrent findings whereby the widow of the deceased was held entitled for financial benefits
Validity
Term "Tarka" is the grant / benefit which an employee shall be entitled to / can claim during his lifetime / period of service; and the non-tarka are the benefits which have not accrued to the employee while he was alive or in service but accrue or become payable to him after his demise/service, for which nominated legal heirs of employee become entitled after his death
Pension Rules, 2018, while dealing with the matter of Gratuity and Family Pension, provide that same will be given to the wife or wives, in case of a male Government servant ; husband, in case of a female Government servant; children of the Government servant; widow or widows and children of a deceased son of the Government servant; and similarly family pension is also liable to be paid to widow of the deceased Government servant
Petitioner (father of the deceased Government employee) had failed to make any submissions on the point as to how the concurrent orders passed by both the Courts below were not in consonance with law or were without jurisdiction or in excess of jurisdiction
Constitutional petition, filed by father of the deceased Government employee, was dismissed, in circumstances.
Written statement submitted by the official respondents showed that they (official respondents) had admitted that the petitioner was still serving as ad hoc Section Officer and he has not been relieved by the competent authority
Thus, there appeared no justified reason to stop salary of the petitioner and respondents were bound to pay his salary
Furthermore, his ad hoc service shall not be disturbed till the permanent appointment in due process of law
High Court directed respondents to do needful qua payment of remaining/outstanding monthly salary of the petitioner in his capacity of Section Officer
Writ petition was allowed accordingly.
Admittedly, the petitioner was real brother of deceased and the children of deceased were minor, therefore, they were not eligible for appointment against the post of Sub Engineer (BS-11) while the widow of the deceased was not willing to be appointed against the said post, rather she had nominated the petitioner for appointment against the said post as he (petitioner) was the sole bread earner of the family
Moreover, the petitioner was looking after the children of the deceased, therefore, he was entitled for appointment against the post of Sub-Engineer (BS-11) [under the Prime Minister Family Assistant Package]
Furthermore, record transpired that the respondents, previously, on two instances, had appointed real brothers of deceased employees
Thus, act of the respondents against the present petitioner was discriminatory, unacceptable and misappropriate
Petitioner, being eligible and having relevant qualification/ degree, was entitled for appointment against the post of Sub Engineer (BS-11) under the PM Family Assistance Package admissible to the family members of Government employees who died during their services
Chief Court directed the respondents to appoint the petitioner against the post of Sub-Engineer (BS-11) under the Prime Minister Family Assistant Package
Writ petition was allowed.
Convict (confined in a district jail) filed an application before the High Court for shifting him to Jail of another District
High Court while accepting said application issued direction to the concerned jail authorities as prayed for
Jail authorities assailed said order before the Supreme Court
Held that it cannot be left on the choice of the convicts to choose any jail ,rather the concerned authorities may take any decision in said regard while taking into account the safety measures and other relevant factors
There was no reason to compel the concerned authorities to shift the convict in an overcrowded jail where the security situation was not up to mark
Supreme Court set aside the impugned shifting order passed by the High Court
Petition filed by the jail authorities was allowed accordingly.
Appellant assailed order passed by respondent (Registrar High Court), whereby his request for grant of proforma promotion as District and Sessions Judge was declined
Validity
Argument of respondent (Registrar High Court) was that appellant's representation was time barred
Validity
Record revealed that disciplinary proceedings were started against appellant in the year 2009 and remained pending when he attained the age of superannuation, however, culminated into judgment passed in the year 2017 by way of conversion of compulsory retirement into censure, and regarding back benefits ; and the Supreme Court of Pakistan vide order passed in the year 2017 directed the authority to decide the same, and ultimately, back benefits were granted
As the appellant was entitled to the grant of proforma promotion, the objection qua limitation was not tenable
Subordinate Judiciary Service Tribunal set-aside impugned rejection order passed by the Registrar High Court while declaring that the Appellant was entitled to the grant of proforma promotion and consequent monetary benefits
Appeal, was allowed.
Independent returned candidates, backed by another political party which was not allowed to participate in elections by Election Commission of Pakistan, joined the petitioner party
Petitioner party claimed its right to allocation of reserved seats
Validity
Reserved seats for women and non-Muslims under the mandate of Art. 51(6)(d) of the Constitution, were to be allocated amongst the political parties present in National Assembly
Procedure for allocation of such seats has been provided under S. 104 of Elections Act, 2017 and mechanism for its allocation under Rr. 92 & 94 of Election Rules, 2017 respectively
Election Commission was a Constitutional body invested with mandate to conduct elections to Assemblies and to ensure the same was conduced in accordance with the letter of Constitution
It has the jurisdiction under S. 4 of Elections Act, 2017, to issue directions or orders as were necessary for the performance of its functions and duties, including order for doing complete justice in any matter pending before it
Order of Election Commission of allocating/distributing reserved seats for women and non-Muslims amongst the political parties that were present in Assembly by securing seats through contest was held to be in accordance with the letter of Art. 51 of the Constitution
Petitioner party was not entitled for any share in reserved seats for women, therefore, request for filing list of candidates for reserved seats at a belated stage did not arise
Petitioner party assailed interpretation of S. 104 of Elections Act, 2017 done by Election Commission of Pakistan which was not a substantive provision rather it merely provided a mechanism for effective conduct of election
High Court declined to interfere in allocation of reserved seats
Constitutional petition was dismissed in circumstances.
Lower Appellate Court declined back benefits to petitioner / employee, who during pendency of proceedings attained age of superannuation
Effect
During pendency of matter, petitioner / employee had already crossed age of superannuation, therefore, his reinstatement could not be ordered rather he was entitled for pensionary emoluments
If petitioner / employee was involved in any subversive activities, he could be proceeded against Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, but non-adherence to the provisions could not be condoned
It is mandate of the Constitution that everybody should be dealt with in accordance with law and any violation on the part of the delinquent cannot be let unnoticed
High Court in exercise of Constitutional jurisdiction declined to interfere in findings of two fora below regarding reinstatement of petitioner / employee as the same were concurrent in nature which findings were neither perverse nor were result of some misreading or non-reading of material available on record
Petitioner / employee was not gainfully employed elsewhere with effect from his termination of service and such fact was not denied by respondent / employer
Penultimate order was passed by respondent / employer in clear violation of S. 15 of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, against petitioner / employee
Punjab Labour Appellate Tribunal did not give any persuasive reasons while declining back benefits to petitioner / employee
High Court set aside judgment passed by Punjab Labour Appellate Tribunal and restored that of Labour Court
High Court directed Labour Court to ensure implementation of its decision
Constitutional petition was allowed accordingly.
Competent authority scrutinized the case of the petitioner and concluded that the contractual period of the petitioner could not be extended after culminating date of earlier contractual period
Record reflected that the petitioner was informed via an official letter regarding the expiry of his contractual period of service
Thus, such an appointment would be deemed to have been terminated on the expiry of the contract period or any extended period on the choice of the employer or the appointing authority.
Policy decision of the Government regarding regularization of the post of the petitioner or otherwise could not be challenged in constitutional jurisdiction of the High Court on the purported plea that he had been condemned unheard by the respondent-SEF before passing the impugned orders, therefore, the service of the petitioner could not be regularized and his contractual period had already expired in the year 2018
High Court does not act as an appellate authority ; its jurisdiction is circumscribed by limits of judicially correcting errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice
In the present case, the contractual period of the petitioner expired in the year 2018, and still, he was insisting to continue on the subject post and claimed violation of natural justice
However , an opportunity of show-cause can be given to the employee of the department, who is holding a permanent post, whereas the record did not reflect that the petitioner was a permanent employee of respondent-SEF, therefore, the petitioner could not claim vested right to be either reinstated, regularized and given extension in his contractual period
Service of the temporary employee can be terminated on 14 days' notice or pay in lieu thereof
There was no material to conclude that the non-extension of the contract of the petitioner had wrongly been issued by the Respondent-SEF
Petitioner had failed to establish that he had any fundamental/vested right to remain on the temporary/contractual post, therefore, the submission of the petitioner that he was not heard before issuance of letters was not tenable in the eye of law
Since the petitioner was facing the NAB reference based on moral turpitude, High Court could not order the competent authority to continue his service
No illegality, infirmity, or material irregularity was found in the impugned letters issued by the respondent-SEF
Constitutional petition was dismissed in limine, in circumstances.
Notifications O.M. No. F.13(16)-Reg 6/2017-516 dated 19-06-2018 & O.M. No. F.1 (13)-Reg 6/83, dated 23-10-1983, issued by Federal Government Finance Division (Regulation Wing)
Pensionary right
Widow daughter of deceased pensioner
Entitlement
Petitioner was a widow daughter of deceased pensioner and she was denied right of family pension as her unmarried sister was alive
Validity
Issue relating to family pension of civil servant had already been decided by Federal Government by way of substitution in paras 8(1)(2)(a)(ii)(iii)(iv)(v) of O.M. No. F.1 (13)-Reg 6/83, dated 23-10-1983, issued by Federal Government Finance Division (Regulation Wing)
Petitioner was a divorced daughter of deceased employee who sought pension as per rules
High Court directed the authorities to act in accordance with O.M. No. F.13(16)-Reg.6/2017-516 dated 19-06-2018 issued by Federal Government Finance Division (Regulation Wing), as pension was a fundamental right
High Court directed the authorities to divide family pension of deceased employee amongst surviving unmarried daughter and divorced daughter, equally till marriage / re-marriage
Constitutional petition was allowed accordingly.
Petitioners claimed that they were deputed to a Foreign Aided Project in the year 2015 and were entitled to project allowance from the date of commencement of the project but the department had discriminately granted the project allowance from the year 2017
Writ petition was dismissed by the High Court
Validity
No reason was listed for not giving the project allowance to the appellants from the date of commencement of the project
Date mentioned in the notification was discriminatory
Appeal was accepted and the authorities were directed to make payment of the project allowance to the appellants for the period they remained posted and had served in the project
Appeal was accepted by the Supreme Court.
Petitioners/plaintiffs claimed to have purchased suit-property through agreement from the father of respondents/defendants who allegedly had further alienated the property
Respondents/defendants claimed that not only suit-property was an unsettled property but the alleged agreement was an un-registered document ; and even the suit was time-barred
Trial Court dismissed the suit declaring the same as not maintainable, which judgment was maintained by the Appellate Court
Validity
Record revealed that agreement-in-question was an un-registered document
No right was accrued to the petitioners / plaintiffs on the basis of un-registered document as mere agreement to sell did not confer any right in favour of the buyer in view of "sale" as well as "sale how made" having been defined and stipulated in S.54 of the Transfer of Property Act, 1882 and S.49 of the Registration Act, 1908
Un-registered agreement would not create any title or interest in the suit-property, thus a declaratory suit under S. 42 of the Specific Relief Act, 1877, on the basis of deed-in-question was not maintainable
Even if the suit of the petitioners / plaintiffs was to be considered as one that of specific performance, then under law of limitation, the period of filing a suit for specific performance of a contract was three years, whereas they had filed present suit after the lapse of seven years, therefore, their suit was hopelessly time-barred especially when they had not uttered a single word in their plaint as to when they got the cause of action against the respondents / defendants
Both the parties even admitted that the property-in-question was a unsettled property ; the same was neither in the name of father of the respondents / defendants nor in the name of the petitioners/plaintiffs, thus a suit for the declaration was not permissible without any entitlement with property-in-question
No illegality or infirmity was found in the concurrent findings of both the Courts below declaring the suit instituted by the petitioners/plaintiffs as not maintainable
Revision petition was dismissed, in circumstances.
Petitioner filed a suit for declaration to the effect that she being the widow of predeceased son of propositus was entitled in the legacy of her father-in-law
Validity
Section 4 of Muslim Family Laws Ordinance, 1961 clearly reflected the intention of legislature that in order to cater the suffering of sons or daughters of predeceased son, they could get their share as if the predeceased son or daughter was alive at the time of death of his/her propositus
Question as to whether other legal heirs of predeceased son or daughter could also be benefited from the provisions of S. 4, remained controversial, however, S. 4 could not be interpreted other than as it was and for whose benefit it was promulgated
In fact, the benefit was provided to the sons and daughters of a predeceased in the legacy of their propositus whereas the other legal heirs of a predeceased son/daughter might not be the legal heirs of grandfather or grandmother either in accordance with the text of the Holy Quran or tables provided by Islamic Law, especially the widow of predeceased son with relation to the legacy of her father-in-law or mother-in-law, had got no concerned, whatsoever
Neither she was sharer nor residuary
Legacy of her father-in-law or mother-in-law, in the event of the death of her husband in the lifetime of his father/mother, being predeceased son is not entitled
Revision petition was dismissed.
New development projects, not approved by Defunct Local Government, by Administrator, on recommendation of MNAs and MPAs or otherwise were without lawful authority
Appointment of Administrators and assigning of functions and power under Notification dated 21-10-2022, by Chief Minister Punjab, without approval of Cabinet was without lawful authority
Functions, not powers to be exercised by elected Local Government, could be ratified and continued by the Administrators appointed in accordance with law
All new development projects, not approved by Defunct Local Government, were declared without lawful authority, which could only be continued if ratified and approved, in accordance with law by Local Government, to be constituted after forthcoming elections
Any executive order, allocating grants to MNAs and MPAs for development work within the domain of a Local Government, was illegal and any regulation or law permitting allocation of such grant was unenforceable in view of S. 4 of Punjab Local Government Act, 2022, in force
High Court directed Election Commission to hold elections forthwith, on completion of delimitation as scheduled, in accordance with relevant provision under Punjab Local Government Act, 2022, in force, read with the Constitution and in light of judgments by Supreme Court
Constitutional petition was disposed of accordingly.
Dispute was with regard to allotment of additional plot to Secretaries and respondent claimed that he had been discriminated as four other officials similarly placed had been allotted plots
Judge in Chambers of High Court directed Federal Government to allot an additional plot to respondent
Plea raised by authorities was that though respondent was promoted as Secretary but his services were placed on the disposal of Provincial Government and he did not hold office of Federal Secretary, therefore, he was not entitled to allotment of such plot
Validity
Respondent was promoted as Secretary to the Government of Pakistan and retired as such therefore he had one year service at his credit, as a Secretary
For holding of an office as a Federal Secretary it was the prerogative of Prime Minister who could place services of a Secretary, BS-22, where he wanted or had thought appropriate
Postings of respondent at different provincial departments could not snatch rank and status of a Secretary, BS-22, because it had been awarded to him by Government of Pakistan
Every Division, under R.4 of Rules of Business, 1973, consisted of a Secretary to the Government and such other officials subordinate to him as the Government could determine and the Secretary was the official head of such Division
Amongst the other four allottees who after having been promoted as Secretaries Government of Pakistan were re-employed after their superannuation and were allowed the package but respondent was refused
According to Schedule I read with Schedule II of Rules of Business, 1973, National Security Council was not listed as a Division where one of the four allottees served and then retired, yet he was allotted an additional plot
Similarly, other three allottees though had been working as Secretaries but whether they served as head of the Divisions had not been disclosed
Allotments made to the said four officials was discrimination with respondent
Respondent after having been promoted and posted as Secretary (BS-22) under the order of competent authority had become eligible for allotment of an additional plot as were granted to other four Secretaries, whose cases were at par with that of the respondent
It was not justifiable to deprive respondent from a facility/benefit which had been awarded to those standing on the same footings
Division Bench of High Court declined to interfere in judgment passed by Judge in Chambers as there was no illegality in it
Intra Court Appeal was dismissed, in circumstances.
Petitioners were aggrieved of refusal of respondent to vacate portion of suit property in her possession, in the light of preliminary decree passed by Trial Court
Plea raised by respondent was that she had retained possession in lieu of partition of agriculture land still to be partitioned
Trial Court and Lower Appellate Court declined to deliver possession to petitioners
Validity
Fact that agriculture land remained to be partitioned or sold had no co-relation to settlement and distribution of shares in relation to other properties that had formed part of partition suit
Preliminary decree was a final decree in relation to properties in relation to which respective shares stood distributed between co-sharers
Merely because it was a preliminary decree in relation to agriculture land that remained to be distributed and/or sold did not make such decree a preliminary decree in relation to properties, the distribution of which had already taken place and constituted a matter that required no further adjudication
High Court directed the respondent to hand over possession to petitioner and set aside orders passed by Trial Court and Lower Appellate Court
High Court declared that petitioners were entitled to receive rent from respondent to be determined by Executing Court for the period respondent declined handing over of the possession till such possession would be handed over
Revision was allowed, in circumstances.
Widow of deceased civil servant sought her succession to pension which was allowed by Trial Court but claim of son was denied
Validity
Widow was dependent on her deceased husband who was a government servant and she was entitled for pension amount
High Court declined to interfere in the order passed by Trial Court as there was no illegality or irregularity committed by the Court
Appeal was dismissed, in circumstances.
Right to recover actual cost of litigation in a proceeding before Court belongs to party and not to party's counsel.
Such accused cannot be given remission under the laws of Pakistan for the period of his sentence served abroad prior to his transfer to Pakistan.
"Entitlement", Pakistan Law Portal, available at: https://paklawportal.com/words-terms-maxims/15211
Precedents & Case Laws citing "Entitlement"
1999 C L C 10
FAZIL NOOR KHAN and 6 others‑‑‑Petitioners Versus ASSISTANT COMMISSIONER, TEHSIL SHORKOT,
Court:1992 C L C 1318
C.S.C. and others‑‑‑Petitioners Versus Major (Retd.) Ch. SAEED‑UR‑REHMAN and others‑‑‑Respondents
Court: Lahore2006 P L C 164
Ms ZAIB-UN-NISA KHAN LODHI Versus Messrs AVARI INTERNATIONAL HOTELS through General Manager and 3 others
Court: Lahore High Court1999 P
ROSHAN ALI MANGI Versus SECRETARY, FINANCE DIVISION, GOVERNMENT OF PAKISTAN, ISLAMABAD and another
Court: Federal Service TribunalP L D 1989 Lahore 245
GHULAM DASTGIR KHAN and 2 others‑‑Petitioners Versus MEMBER. BOARD OF REVENUE. PUNJAB LAHORE
Court:1999 C L C 1432
Mst. NAEEMA BEGUM‑‑‑Petitioner Versus IQBAL ALI KHAN and others‑‑‑Respondents
Court: Lahore1987 M L D 1052
AMANAT ALI and others — Petitioners Versus BOARD OF REVENUE and others — Respondents
Court: LahoreP L D 1987 Lahore 25
DEENU alias ALIM Din-Petitioner Versus GHULAM RASUL AND ANOTHER-Respondents
Court:P L D 1984 Karachi 85
Petitioners Versus SETTLEMENT COMMISSIONER (LANDS) AND
Court:2026 C L C 120
NOOR MUHAMMAD — Deceased Versus Ms. AMNA ASHFAQ — Petitioner
Court: Sindh