1. AZHAR SALEEM BABAR, ACJ. Preliminary arguments heard.
2. Facts leading to the instant constitutional petition are that Muhammad Tufail Qureshi, an employee of Public Health Department as Electrician died during service on 19.08.2017. He left behind father, mother and a minor daughter. A certificate under Succession Act has been issued by the learned District Judge Muzaffarabad on 17.04.2018 which ascertains shares of the legal heirs as well. Abdul Khaliq Qureshi, father of the deceased employee has been appointed as guardian of property of minor daughter of the deceased and Naseem Anwar; the mother has been appointed as guardian of the person of Saber Tufail, the minor. There is some amount payable in relation to the benevolent fund and group insurance which is a bone of contention between the parties. The petitioners are respectively father and mother of the deceased employee whereas Sehar Tufail, the respondent is minor daughter of the deceased. It is the claim of the petitioners that amount of benevolent fund and group insurance is a right of all the legal heirs as per their shares ascertained through Succession Certificate.
3. On the other hand, the private respondent claims that it is the right of minor daughter to get the mentioned amount. It may be added here that Board of Trustees AJK Employees Benevolent Fund and Group Insurance (Non-Gazetted) Muzaffarabad has sanctioned benevolent fund amounting to Rs.4000/- per month in favour of Sehar Tufail and a sum of Rs.5,20,000/- as group insurance. It is also worth adding that in an appeal filed by Mst. Naseem Anwar Hon'ble Supreme Court of Azad Jammu and Kashmir vide order dated 14.03.2019 directed that Abdul Khalid Qureshi, the grandfather of the minor shall collect the pensionary benefits falling in the share of minor from the concerned department and shall deposit the same in the court of Guardian Judge, who will release the same on the request of minor through her mother, after judging the needs of the minor and pass appropriate orders for its release. The department has deposited the amount in the Court of Guardian Judge Muzaffarabad through cheaque dated 29.06.2020. In order to resolve the controversy the provisions of The Azad Jammu and Kashmir Employees Benevolent Food and Group Insurance Act, 1971 have to be adhered to. Under section 4 of the mentioned Act the term "family" has been defied as under:- "4). 'Family' means:-
(a) In the case of male employee, the wife or wives, and in the case of female employee, the husband of employee: and
(b) The legitimate children, parents, minor brothers, un-married, divorced or widow sisters of the employee residing with and wholly dependent upon him."
4. It is an admitted position that Naseem Anwar, the respondent had been divorced by the deceased employee during his life time. Abdul Khaliq Qureshi, the petitioner was inquired by the Court about his profession during arguments whereupon he replied that he runs a shop in Capital City Muzaffarabad. He further stated that his two other sons are Govt. employees. A husband is obviously responsible for maintenance of his wife, so Abdul Khalid Qureshi, the petitioner is legally responsible for maintaining Mumtaz Bibi, his wife. Mumtaz Bibi, the petitioner cannot be termed as dependent on the deceased employee in presence of a working husband and so is the case of husband.
5. In view of afore-stated position the petitioners do not fall within the meanings of "Family" mentioned in Section 4(a)(b) of the Benevolent Fund and Group Insurance Act, 1971 because they are not dependants on the deceased employee. It may be reiterated here that the children, parents, minor brothers etc. wholly dependent upon deceased employee fall within the meanings of the term "Family" for the purpose of grant of benevolent fund and group insurance. The petitioners have misconceived the meanings of the term "family" by considering them members of family of the deceased employees for the purpose of grant of benevolent fund and group insurance. The writ petition is not maintainable on this sole ground.
6. The Supreme Court of Pakistan in a case reported as PLD 1991 Supreme Court 731 (Shariat Appellate Bench) has defined the term while keeping in view the provisions of Benevolent Fund and Group Insurance Act. In a detailed and remarkable judgment the Supreme Court held that benevolent fund and group insurance did not fall within legacy of a deceased employee. It has been explained that if a grant is issued after death of an employee, it would be a gift and the employee has every right to nominate any person or persons to receive such grant. Hon'ble Supreme Court, therefore, declared that Section 2(5) of the Benevolent Fund and Group Insurance Act, 1969 is not violative of Quran and Sunnah.
7. The Govt. of Azad Jammu and Kashmir has established two funds to be called:- a. The Azad Jammu and Kashmir gazetted employees benevolent fund. b. The Azad Jammu and Kashmir non-gazetted employees benevolent fund.
8. In Chapter III of the Azad Jammu and Kashmir Employees Benevolent Fund and Group Insurance Act, 1971 different donor have been mentioned to deposit subscriptions to the benevolent fund which include the Government, autonomous bodies, organizations, institutions and private individuals. A Board of Trustees has already been established under the chair of Chief Secretary and five other members for carrying out the purposes of the Act. It is therefore obvious that an employee is not owner of the monitory benefits in relation to benevolent fund and group insurance during his life time or afterwards. It has also been provided that a Govt. employee may get benevolent fund in case of his disability and such grant is acceptable to a person nominated by an employee after his death. It is also clear that if the deceased employee has not nominated any person then his family members wholly dependent upon him are entitled to such grant.
9. In view of judgment reported as PLD 1991 SC 731 (Shariat Appellate Bench) it can be safely concluded that a grant under benevolent fund and group insurance is not dividable among all the legal heirs. However, it has already been mentioned in the earlier part of this order that for the purpose of grant of benevolent fund and group insurance a member of family of the deceased employee may be held entitled to such grant provided such member was wholly dependent upon the deceased civil servant.
10. In the instant case Muhammad Tufail Qureshi, deceased left behind father, mother and a minor daughter. Abdul Khaliq Qureshi, the father is a self-employed business man. He along with Mumtaz Bibi (his wife) cannot be termed as dependent upon the deceased employee. Obviously Sehar Tufail, the minor is only member of the family of the deceased who is entitled to receive the grant under the head of benevolent fund and group insurance.
11. It may be added here that the shares ascertained by the learned District Judge do not affect the right of minor daughter in view of fact that benevolent fund and group insurance do not fall within the definition of .
12. For the forgoing reasons the writ petition is dismissed in limine.