This Intra-Court Appeal is directed against the judgment dated 08.04.2019 by learned Single Judge-in -Chambers whereby the W rit Petition filed by the appellant was dismissed.
2. Briefly the facts, necessary for adjudication of this appeal, are that appellant being the father of the deceased namely Abdul Ghaf far who died while serving as Constable in Pakistan Rangers through writ petition seeks declaration against letter dated 16.02.2017, whereby it was intimated to the appellant that except the claim of benevolent fund [which was directed to be paid to the appellant upon contracting of marriage by the widow] all other claims / amounts payable, were accordingly paid to the widow , being nominee of the deceased. The appellant seeks recovery of the amounts paid, claiming its share therein being one of the legal heirs of the deceased.
3. The heart of the controversy is that whether the Amount, being service benefits, claimed by the appellant already paid to the respondent No.3 were to be treated as inheritable claims, as part of the estate of the deceased, and same be distributed amongst the legal heirs as per the dictates of Sharia. There is no dispute regarding the fact that respondent No.3 was the nominee of the deceased. The service benefits comprising of claim regarding Rangers Welfare Fund, compensation and six months pay and amounts paid in respect thereof are in the nature of grant or compensation, which are neither inheritable do not form part of "Tarka" nor form part of the estate of the deceased.
The respondent department submitted report and para-wise comments, wherein entitlement of the appellant was denied on the premise that neither said claims can be construed as 'Tarka' nor payable in view of applicable rules and regulations. We are fortified in our view on the basis of the ratio of the judgment reported as Federal Government of Pakistan v. Public-At-Large (PLD 1991 SC 731) The contention that Federal Government of Pakistan, case, supra, has been revisited in judgment reported as Mst. Ameeran Khatoon v. Mst. Shamim Akhtar and others (2005 SCMR 512), is misplaced. In Mst. Ameeran Khatoon's case, the Hon'ble Supreme Court has relied upon the reasoning / ratio of the law laid down in case reported as Federal Government of Pakistan v. Public- At Large (PLD 1991 SC 731). No reasoning / ground was discussed or elucidated in Mst. Ameeran Khatoon' s case, to support the decision taken therein, rather the ratio / reasoning in the case of Federal Government of Pakistan v.
Public-At-Large (PLD 1991 SC 731) was referred and relied upon. In view of the above, most respectfully , it is observed that no law has been enunciated in Mst. Ameeran Khatoon' s case, supra, having binding effect in terms of Article 189 of the Constitution of Islamic Republic of Pakistan 1973. A similar issue came up in the case of; In Re: Succession of the Assets Securities, Properties and Accounts of late Javed Iqbal Ghaznavi (PLD 2010 Karachi 153), wherein it was held as:
8. In the case reported in PLD 1991 Supreme Court 731 the five member 's benc h of the Shariat Appellate Court while discussing entitlement of benevolent fund held that had the employee reached his age of superannuation and thereafter died, nothing would have become payable form the Benevolent Fund and therefore such a benefit which does not translate into a debt of the deceased employee against the employer cannot form part of the estate of the deceased so as to become distributable among all his heirs.
9. In the case reported in 2005 SCMR 512 the Division Bench of the Honourable Supreme Court while recognizing the principle laid down by the five member bench of the Shariat Appellate Bench of the Supreme Court in the case of Federal Government of Pakistan v. Public at-large reported in PLD 1991 Supreme Court 731, mistakenly interpreted it conversely which appears to be typographical error as service benefits granted towards Benevolent Fund or Group Insurance were not treated as heritable benefits in terms of the principle laid down in PLD 1991 Supreme Court 731.
12. Thus any financial benefit which an employee can claim from his employer in his lifetime and have also become payable in his lifetime is to be treated as an absolute right of the employee and if any benefit or any part of it remains unpaid during his lifetime when the same becomes heritable and is to be distributed amongst all his heirs.
However , a service benefit, which has not fallen due to an employee in the lifetime of an employee and being a grant or concession on the part of the employer , then whatever amount that become payable after the death of the employee is to be distributed only to those members of his family who are entitled for the same as per the rules and regulations of service. It is the discretion of the employer to make rules and regul ations in relation to any grant or concession that is intended to give an employee or after his death to any member of his family .
13. Thus benefits such as special retirement benefits, special compensation group insurance under term insurance policy and group insurance under provide nt fund policy benefits definable as grant and concession on the part of employee and payable after the death of the employee cannot be treated as heritable by all heirs of the employee but are to be distributed to those who are entitled to it under the rules and regulations of service provided by the employer...
4. In terms of the law enunciated in Federal Government of Pakistan v. Public-At-Large (PLD 1991 SC 731, it is clear that only such benefits are inheritable that become receivable by the deceased during his lifetime, i.e. payable to employee before his death. And such service benefits, as given by an employer as grant / compensation, in lieu of death of an employee and made payable to a nominee or family - as defined under the relevant rules and regulations - such grant or compensatio n, by its very nature, is not heritable and cannot be treated as "Tarka" estate of the deceased. In these circumstances, the service benefits claimed cannot be treated as heritable, being a grant / compensation accrued after the death of deceased employee. Reference is also made to an unreported judgment dated 28.01.2019 [announced on 07.02.2019] in Writ Petition No.4167 of 2012 in case of "Shahbaz Wali Khan v . Government of Pakistan, Establishment Division, Regional Board Federal Employees".
5. We have reviewed the judgment by the learned Single Judge in Chambers and do not find any illegality , jurisdictional defect and mis-application of law, relevant rules and regulations. The appellant has no entitlement to claim subject matter service benefits, being legal-heir of the deceased, which rightly fell to the entitlement of the respondent No.3, being duly nominated nominee. The claim of benevolent fund was already directed to be transferred to the appellant in wake of re-marriage of the widow .
6. In view of the above, this Intra-Court Appeal is without any merit and the same is, therefore, dismissed.