SALAHUDDIN PANHW AR, J. Captioned petitions have been filed by the different retired officers/of ficials of vario us Departments of the Government of Sindh and involving identical issue hence the same are being decided by this common judgment . The Petitioner of the leading petition bearing No.C.P D-6344/2019 has prayed that :-
(1) To declare that the petitioners are entitled for refund of amount deducted from their salaries for contribution to Group Insurance with profit at Bank Rate.
(2) Be further pleased to direct the respondents to implement the judgment of the Hon?ble Supreme Court of Pakistan in Civil Petition No.1 1-P/2017 and Civil Review Petition No.36/2018 in letter and spirit.
(3) Be please to grant any other relief as may be deemed fit and proper under the circumstances of the petition and not prayed for by the petitioners .
2. It has been contended through subject petitions that as per rules the premium for the Group insurance is being deduced from the salaries of the Government employees according to their pay scale and they are insured during their service and up to 05 years of their retirement; the Group insurance is meant for assurance of life and was to be paid to the Civil Servant' s legal heirs in event of his death. Whereas the respondent State Life Insurance Corporation is dealing in the business of the life insurance and as per their own policy the premium whatsoever has to be paid by the assured person, the same is to be returned with full profit when policy becomes mature , and after such payment said respondent is not responsible for any payment in case of incident. Moreover , the State Life Insurance Corporation is under legal obligation to return the amount of the Government employees being obtained on account of the insurance premium for certain period, however the same has been usurped. Whereas some of the Civil servants of the Province of KPK as well had filed a Writ before the Peshawar High Court on same controversy which has been allowed, conversely the Civil Petition as well as subsequent Review Petition filed before apex court have been dismissed hence the KPK Government has refunded the amount of the Group insurance to those civil servants. Nonetheless the Province of Balochistan has already promulgated the Balochistan Provincial Employees Group Insurance Act, 2009 , whereby all the Government employees serving in the province have to be paid at the time of their retirement the contribution made by them on account of the Group insurance from their salaries. Similarly , the judgment of the apex court has also been implemented by the Province of the Punjab, but the Government of Sindh has failed to do so; hence these petitions.
3. Conversely Respondent- Secretary , Finance Department, Government of Sindh, filed his comments stating therein that the Government of Sindh is providing the Group Insurance facilities to the legal heirs of the Civil Servants who expire during their service or five years after retirement i.e. up to the age of 65 years, as the case may be, in the light of the existing law/ rules i.e "The Sindh Civil Servants Welfare Fund Ordinance 1979 and the Rules 1980 ", being risk covers only, and the rationale behind this Group Insurance Policy is to look after the welfare aspects of the Civil Servants and their families, especially once they are no more alive after serving the State for their entire life. In this backdrop, the Government has planned Group insurance policy in such a way that all the employees from BS-1 to BS-22 contribute a very nominal amount per month from their salaries; and in return a substantial grade-wise compensation package being provided to the legal heirs of the deceased employees. It is also stated that the sum assured is greater than contribution made in this behalf by the employees and the same is paid even if the entire contribution is not made during the course of the employment or in case of early death of such Civil Servants therefore no benefits including the maturity is admissible to the Government Servant on attaining the age of superannuation under the existing Group Insurance Policy , but only the facility is provided in case of death during service or 5 years after retirement. Besides , that the Government of Sindh is also providing the compensation/Financial Assistance package to the family of the Civil Servant who dies while in service, for which, no amount being deducted from the salaries of the Civil Servants respectively . As far as, deductions from the salaries of the pensioners are concerned, the Civil Servant once retired is benefited with various emoluments e.g. monthly pension , commuted value of pension, Superannuation Encashment of L.P.R as well as Reimbursement of Medical Charges. So far as, the prayers of the petitioners are concerned, this decision has been apparently applicable to the KPK Government and they have added Sub-Section (I)after Section 9 in the Khyber Pukhtunkhwa Civil Servant Retirement Benefits and Death Compensation Act 2014 (Act No.XXVII of 2014) through Khyber Pakhtunkhwa Civil Servants Retirement Benefits and Death Compensation (amendment) Act No.V of 2016. Moreover , a Provincial Welfare Board I & II meeting was held under the chairmanship of the Chief Secretary Sindh, being chairman of the Boards on 06.10.2021 , and the Board has directed to expedite the settlement of the claims by the State Life Insurance Corporation of Pakistan. The Board further observed that according to existing rules there is no provision for refund of the amount at the time of the retirement, and also Government of Sindh cannot afford the huge burden of refund of the amount on the basis of maturity . Thus, there is no provision in the existing law/rules for the repayment of the deductions of the Group Insurance to the surviving retired Civil Servant of the Province of Sindh.
4. Whereas the respondent State Life Insurance Corporation contended that the Group Term Life Insurance is kind of an insurance whereby the Employer arranges the Group Life insurance of his employees through an Insurance company by paying the Insurance premium, whether from his pocket or by collecting the premiu m from the employees . Similarly , in case of death of the insured employee, his death claim is to be paid to the Employer for onward payment to the deceased employees' family/legal heirs. This Group Life Insurance is Term Insurance and is renewable every year by paying the Premium by the Employer and for this Group Term Life Insurance, a Master Policy Agreement is executed between the Employer and the Insurer . Whereas there is no direct contract between the employee and the Insurance company during this entire process. It is very clearly mentioned in the Master Policy Agreement that under this Group Term Life Insurance arrangement , the Insurance benefit is payable only in case of death of the employee during his service or within the agreed specified period after retirement , and that it does not have any bonus/ maturity / surrender value bene fit. It is very much clear that no premium amount has been received by the State Life directly from any individual employee(s) of the respective Government/commercial institutions. And as mentioned above, in case of the death of the employee , the legal heirs of that employee gets benefit from the insurer through the employer in the shape of the death claim ( sum assured ) agreed between the parties(ie) the Insurer and the Employer .
5. It was further contended that the Islamabad High Court at Para No. 12 of the unreported Judgment dated 13th September , 2019 passed in Writ Petition No.4132/2016 has observed that "bare reading of Section 19 and other related provisions of the Act of 1969 show that it does not amount to any extortion. Insurance policy is for the benefit of the civil servant / Government employees and the sum assured shall be paid only in case of their death. The sum assured is greater to the contribution made and same is paid even if the entire contrib ution is not made during the course of employment and in case of early death of a civil servant / Gover nment employee same is still paid to the family of deceased " and dismissed the petition being without merit, by citing the reason that the subject petition was bad in the eye of law.
Whereas similar kind of Petitions are also pending adjudication before the High Court (s) of the Islamabad, Lahore and Sindh containing the similar facts and circumstances and the State Life Insurance Corporation is contesting all these petitions before all forums with a clear and single judicious stance that the Petitioners have no cause of action to file these Petitions against them. It is asserted that the petitioners are deliberately and intentionally trying to mislead this Court by intermingling two different kinds of the insurance i.e. Individual Life Insurance and Group Term Life Insurance arrangement , whereas in former an Individual enters into an Agreement with the Insurance Company for various terms e.g. 10, 20, or 25 years etc., which commenced up to 20 years, for which the individual pays the premium from his own pocket, which is much higher than the Group Insurance premium.
6. Heard learned counsel for the respective parties as well A.G. Sindh and Secretary , Welfare Boards (Secretary , Finance Department) respectively .
7. We shall come to the merits of the instant petition a little later, but would prefer to make direct referral to the "The Sindh Civil Servants Welfare Fund Ordinance, 1979 ? (hereinafter to be referred The Ordinance ), which, prima facie , is the subject of the all the petition (s) in hand and the preamble of thereof reads as:- "WHEREAS it is expedient to establish a welfare fund to provide financial security and assistance for the civil servants and their families ;
8. The preamble leaves nothing ambiguous that the aim and object of the Ordinance was/is to first establish a welfare fund with sole purpose and object to provide the financial security & assistance to the Civil Servants and their families. The term fund ?, per Section- 2(c) of the Ordinance, is defined as:- "fund " means the Fund established under section 3 ;"
The Section 3 thereof reads as:- "Welfare Fund .--(1) There shall be established a Fund to be called the Sindh Civil Servants W elfare Fund .
(2) The Fund shall consist of two parts; one for civil servants in (basic scale) 16 and above and other for civil servants in (basic scale) 15 and below and each part shall be maintained and administered separately .
(3) Each part of the Fund shall include -
(a) Contributions made under section 4 by the civil servants in (basic scale) 16 and above in case of Part I and civil servants in (basic scale) 15 and below in case of Part II;
(b) contributions made by Government;
(c) profits or interest accruing on the amount of the Fund.
Whereas Section 4 of the ordinance reads as under ;
(4) The moneys of the Fund shall be deposited in such bank or banks as Government may direct.
9. Prima facie , the reading of the above section makes it quite clear that firstly the Sindh Civil Servants Welfare Fund ? shall be established wherein the civil servants, parted in two groups i.e.16 and above and 15 and below , shall make their contributions , as required by Section 4 of the Ordinance. Needful to add that such contributions shall also include the contribution, made by the Government which (moneys of fund) shall be deposited in such Bank or Banks as the Government may direct.
10. The bare reading of the Section 4(ibid) of the Ordinance makes it clear that the Civil Servant was / is under mandatory obligation to pay the contribution which, if not paid, is liable to be recovered qua deducted from his pay with interest . Secondly comes Section 5 of the Ordinance which describes the 'Utilization of the Fund' . The same, being relevant, is reproduced hereunder:- "Utilization of fund .--The Fund shall first be utilized for payin g the premia for insurance of the civil servants to the insurance company or any other insurer and meeting other expenses on the arrangements made with such company or insurer , and thereafter if any amount is left in the Fund, it shall be utilized for such welfare and benefits of the civil servants as may be prescribed."
11. The above provision, prima facie , leaves nothing to doubt that first obligation of the Welfare Fund ? shall be to pay the 'premia' for insurance of the civil servants to insurance company or any other insurer and then to utilize the amount, if left/available in the fund, for welfare and benefits of the civil servants. The above provisio n also leaves room that it is not necessary that 'all contributions' (as defined by section 3(3) of Ordinance ) needs not necessarily to pay the 'premia' because payment thereof was / is subject to arrangement with insurance company or any other insurer . The provision of Section 6 of the Ordinance also puts the Governme nt under obligation that it (the Government ) shall constitute two Boards for administration of the Fund , one for Part I of the Fund, known as Provincial Welfare Board No.1 , and other for Part II of the Fund known as Provincial Welfare Board No.2 which, per Section 6 (3)(a)(b) & (c): "(a) shall arrange for insurance of the civil servants with whom such Board is concerned, in the sums specified in the Schedule , or in the sum as may from time to time be notified by Government , with such insurance company or any other insurer , as the Board deems fit;
(b) shall have the power to sanction expenditure incurred on the administration and management of the respective Part of the Fund with which the Board is concerned; and
(c) may do or cause to be done such other things as are ancillary or incidental to any of the aforesaid powers or to the purposes of the Fund ."
12. We are in no doubts that since per law itself it is the Fund ? (Sindh Civil Servants Welfare Fund) alone is competent for performing both said detailed obligations/duties, then non-establishment thereof shall cause serious consequences on the purpose and the object of the Ordinance . Here, it is worth referring that the Secretary , Finance Department acknowledged that there is no separate Boards and Funds established by the Government of Sindh so far and all the deductions are transferred to the general account of the Government of Sindh. Such acknowledgment , we shall emphasis, is not worth appreciating, because the same was / is likely to cause serious prejudice to the aim and the object of the Fund as well the Ordinance itself because the purpose and object whereof is not confined to the insurance of the civil servant but welfare and benefits of the Civil servants and their families by using the left / available fund after paying premia .
13. In addition, with regard to fund-II the Ordinance speaks that the Government shall be itself contributory of the fund as well, because the concept of the legislature was to help out the low paid employees. It has also come on record that on different pretexts and occasions the Boards which is to be chaired by the Chief Secretary and as well as the Secretary of the Finance Department failed to sign MoU with Insurance companies.
14. Apparently from the year 2018 there is no agreement in field between the trustees of the funds and the insurance companies. In that period amount of rupees 2.5 billion remained in general fund of the Government of Sindh which amount has been collected from the income of the Civil Servants working on different posts, prima facie , brought no fruit as was / is aimed by the Ordinance . This shows authorities have deliberately remained silent for the period of 50 years and have allowed the amount to remain in general account . The presumption, we are sorry to add, could be nothing, but to delay in establishing the welfare funds of the two groups was not with clear intention rather was / is to frustrate the object and aim of the Ordinance which includes timely payment of the assured sum as well as utilization of available fund for the benefits of Civil servants and their families.
15. Since , such failure/ negligence is in direct conflict with the object and purpose of the Ordinance itself and even was/is causing prejudice to the aims and objects of the Ordinance therefore, the same can't be allowed to be continued any further . Accordingly , the Government shall ensure the compliance of the Section 3&6 of the Ordinance in its letter and in spirit which, too, within three months from date of this order .
16. Further , the contributions, per Section4 of the Ordinance , shall be deposited directly into the Welfare Funds per section 3(4) of the Ordinance as well per Rule 4(1) of Sindh Civil Servants Welfare Fund Rules , 1980 which requires that such contribution first shall be remitted to the Accountant General Sindh and then same shall immediately be credited into the Fund. Nevertheless the Rule 4(1) of the Sindh Civil Servants Welfare Fund Rules, 1980 speaks as:- "4(1) The contribution payable under sub-sect ion (2) of section 4 shall in the case of a civil servant in Grade-16 or above be remitted to the Accountant General, Sindh under intimation to his Head Office or Department and in the case of other civil servants to their respective Heads of Offices or Departments, and the sum so received shall immediately be credited into the Fund."
17. Accordingly , the Welfare Board shall establish a "Welfare Fund " while seeking assistance by the finance experts, including experts of Takaful Fund , preferably within three months , and shall transfer all the amount deducted from the salaries , to that welfare fund .
18. We would add that from so far discussion as well referral of the relevant provision s, it has become crystal clear that the investment of the fund for the insurance even is not to be made to a specific insurance company , but it is the prerogative of the Welfare Boards (to be constituted under section 6 of the Ordinance ) to make the arrangement with the insurance company or any other insurer for such purpose. Such prerogative appears to be purposeful because only after a comparative analysis of the scheme(s) of the different insurance companies or insurer it can only be tested as to which offer / scheme is in the best interest/welfare of the Civil Servants and their families with regard to premia , being of fered by such insurance companies and insurers.
19. However , the picture surfaced, prima facie , showed that 'Fund ? has never been established yet the arrangement was made by the Government with the State Life Insurance Company alone which, too, without any comparison of the 'premia ? being offered or could have been offered by the other insurance companies or insurers possibly through competitive process.
20. At this juncture, the Secretary , Finance Department stated that that they have provided rupees 2.5 billion to the State Life Insurance Corporation for last two years. Suffice to say that this is big number and the Civil servants are 500,000 approximately hence on death ratio the Secretary Finance Department has assisted this Court, is at an average of 2700 deaths per year. By that the number of the premium is high, whereas the insurance of some different category is not attractive, hence the Secretary Finance Department suggests that this Court may direct that experts /financial experts be hired by the Board to negotiate with different companies competing in the market enabling the Civil Servant for maximum death claim and other coverage like lethal diseases and injury received in accident etc. Accordingly , the Welfare Board ? shall ensure exercise of prerogative thereof, as was/is aimed by the Ordinance itself and the fund/contribution be saved after paying premia ? so that same could be used for other welfare and benefits of the Civil Servants and their families.
For such exercise, the Board can competently , hire the financial experts, if they find so necessary , but without hurting / burdening the contribution in such engagement / hiring.
21. Another aspect which came to surface is that in pursuance to the earlier order , the Secretary Finance Department, submitted deduction of the specific amount from the salaries of the Civil servants as contribution for welfare fund. Break up of last three years is that :- YEARDEDUCTION (Rupees)
2018-2019 1.38 billion 2019-2020 1.38 billion 2020-2021 1.45 billion Total of last three years 4.21 billion and as per new MoU , the amount scale-wise payable on the death of civil servant is:- BPS AMOUNT 1-4 3,75,000 5-10 4,37,500 11-15 7,50,000 16 11,25,000 17 15,00,000 18 21,87,500 22 31,25,000
22. It was also contended by the Secretary Finance Department that the MoU , singed with the State Life Insurance Corporation, includes that if the premium, paid to them, is higher than the amount/comp ensation being given to the legal heirs of the deceased employee, in such eventuality after deduction of 10% they (SLIC ) are bound to return the same to the Government. However , record is silent that in previous ten years what quantum of the amount has been returned by the State Life Insurance Corporation. We would refrain ourselves from making any comment onto legality of the MoU which obligation, otherwise , was / is to be made by the Welfare Boards .
Needless to add that the Welfare Boards , shall also press such clause of the MoU thereby shall ensure that same is recovered / received and is used for the welfare/benefits of the Civil Servants and their families, also review/re- examine the MOU . Besides, Secretary finance Department contended that Rupees 2.5 billion have been paid to the State Life Insurance Corporation which chart shows deducted amount is more than rupees 4 billion hence residue amount and further deduction, even on monthly basis shall be transferred to the Fund within fifteen days after establishment of fund as referred in paragraph 16 (supra).
23. It has also come on record that 4,477 claims of employees who have passed away within the prescribed age limit are pending since 2018 and the legal heirs are pursuing, howev er they are facing great hardship owing to objections/ formalities and out of that only 635 compensations have been settled, whereas rest of the claims are due. This is not a worth appreciation situation which, even, is in negation to what Rule-10 of the Sindh Civil Servants Welfare Fund Rules , 1980 demands. The same reads as:- "10(1) As soon as may be after the death of a civil servant the Head of Office or Department shall furnish to the Insurance Company
(i) a certificate in the form set out in Annexure 'B' or 'C' as the case may be, certifying the death of the civil servant indicating the Grade in which he was placed immediately before his death;
(ii) ..................................
(iii) .................................
(iv) .................................
(2) On receipt of the documents referred to in sub-rule (1) the Insurance Company shall make arrangement for immediate payment of the assured sum."
24. The above leaves nothing ambiguous that the Insurance Company on receipt of the documents, as required by Rule 10(1), shall ensure immediate payment of the sum assured . However , the picture, so surfaced on record that out of '4477 pending claims only '635? claims are satisfied by the Insurance Company so far .
25. When confronted, the Secretary Finance Department contends that they have simplified the procedure and within 15 days they will submit 4,000 cases with the State Life Insurance Corporation. Accordingly , the State Life Insurance Corporation, on receipt of the claims verified by the department, shall issue cheques within fifteen days thereby assuring that the amounts are received by the legal heirs (be transmitted into the Bank account of the deceased employee wherefrom last pay drawn in case of delay in issuance of the succession certificate or declaration of the legal heirs). In case of failure, they can be liable for legal action in accordance with law.
Nonetheless such sum assured was / is the right of the families of the civil servant (s) hence the delay , if any, by the department (s) or the Insurance company can't be accepted. Accordingly , all the department (s) of the Sindh Government, having application of the Sindh Civil Servants Welfare Fund Ordinance, 1979 shall ensure immediate submission of the required form (s) to the Insurance Company which, without any delay , shall ensure immediate payment of the assured sum. Any negligence shall be considered as negation to law, rather be considered as criminal negligence which shall give right to aggrieved to claim consequences of suffering because of delay .
26. However , reverting to the prayer clause (s)/merits of these petition(s), it would suffice to add that recently this Court (Bench at Sukkur) has dismissed the petition (s) with similar prayers/relief(s). The concluding paras thereof are reproduced hereunder:- "10. As to reliance on the judgment of the learned Peshawar High Court in the case of Fida Muhammad Durrani (supra) is concerned, it would suffice to observe that the law in consideration had been amended by the KPK government, and the amended law very clearly provided that the amount in question shall be paid to the retiring employee in accordance with formula pursuant to the amendment carried out in the year 2014; hence, the ratio of said judgment is not applicable to present petitioners case, as the provisions of both the laws are not pari material.
11. Insofar as the judgment of Islamabad High Court in the case of Muhammad Rehan Khan (Supra) is concerned, the same is applicable on all foursto the case of petitioners insofar as merits of the case is concerned. However , as to reliance on para-13 of the said judgment by the petitioners Counsel, as an alternate plea regarding issuance of directions for amending the law, we may observe that issuance of directions for legislating something in a prescribed manner , is not the domain and authority of this Court as it is always the prerogative of the legislature to do so. There is no impediment for such purposes, couple with the fact that one Province has already done so way back in 2014. At best, the Petitioners could approach the Government and seek redressal of their grievance regarding any amendment in the law .
12. In view of hereinabove facts and circumstances of the case, we do not see any reason to exercise any discretion in favour of the petitioners as they have failed to make a case for indulgence, as the law is very clear on the subject, whereas, such law by itself is not under challenge before us, hence, all the listed petitions dismissed with pending applications, if any ."
Sd/-
27. In existence of above, there is no room for entertaining or re adjudicating the decided issue. Without prejudice to above, it is pertinent to mention that Welfare Boards are competent forum to redress the issue of Civil Servants, serving and retired including petitioner(s), hence Boards shall examine all preva iling laws and amendments by other Provinces, thereafter shall be competent to make their recommendations to the Government of Sindh. Hence, we may add that the Government would appreciate emerging of new situation i.e demand of refund of deposited amount while keeping in view the amendments , already made by the KPK Government, because the legislation is, undeniably , domain of the government. Accordingly , learned A.G. Sindh when confronted with the legal proposition has contended that after going through the referred Judgments and enactment by the KPK Government he will submit his advice to the Government of Sindh with regard to amendment if any. In consequence of what has been discussed above, the instant petitions are disposed of, however , as petition (s), regarding the prayer clause (a) and (b), being decided one, are dismissed.
Office: copy of this judgment shall be communicated to Chief Secretary Sindh, Secretary Finance Department and Secretary Law Department, for compliance.