WALTON TOBACCO COMPANY (PVT.) LTD Versus AZAD GOVERNMENT OF THE STATE OF JAMMU& KASHMIR

Brief facts for filing of this revision petition are that one Rozi Khan, the father of the petitioners was appointed as Beldar with effect from 30‑6‑1975 and served as such till 30‑6‑1973 on work‑charge basis and from 1‑7‑1973 his services were regularised as Beldar.

2. On 17‑11‑1982 services of late Rozi Khan were transferred by the Executive Engineer, Irrigation, Sibi to the Chairman, Town Committee, Harnai vide Letter No. 5253, dated 17‑11‑1982 under S.D.O., Irrigation Harnai. Accordingly he reported for his duties and remained serving there as Beldar till he expired on 17‑4‑1986 at Harnai. The widow of late Rozi Khan also expired thereafter. The petitioners are the children of late Rozi Khan. They requested for the pension, G.P. Fund, Group insurance and other dues from the respondents by moving an application in order to fix the family pension and other dues but the respondents instead of determining the pension and other dues of late Rozi Khan started shifting the burden upon each other. Consequently the Chief Engineer, Irrigation, Balochistan wrote a letter to Executive Engineer, Irrigation, Sibi to determine the pension liabilities in consultation with respondent No. 2. However, vide Letter No. 2259‑L Executive Engineer wrote to the Chairman, Town Committee, Harnai that he was liable to pay the pension and other dues..

3. Under such circumstances the petitioners filed a civil suit in the Court of Civil Judge, Sibi with the following prayer:‑‑

"In these circumstances it is prayed that the Honourable Court be pleased to pass a decree in favour of the plaintiffs declaring that their late father was a permanent employee under defendant No. 1's Department at Sibi/Harnai and as such defendant No. 1 is liable to pay the family pension, G.P. Fund, six months' pay, Insurance etc. to the plaintiffs or as an alternative such relief may kindly be granted against the defendant No. 2 and consequently the concerned defendant may kindly be ordered to pay the said dues to the plaintiffs in the interest of justice. Costs be also allowed."

4. Respondents Nos. 3 and 4 contested the suit by filing written statement, raising a preliminary objection regarding jurisdiction of the Court to entertain and decide the suit. Following issues were framed by the Civil Judge, Sibi:‑‑

"(i) Whether this Court has no jurisdiction over the matter?

(ii) Whether the suit is bad for non‑joinder of necessary parties?

(iii) Whether the deceased Rozi Khan was a permanent employee of Irrigation Department?

(iv) Whether the services of late Rozi Khan transferred to Town Committee Harnai since 31‑8‑1982?

(v) Whether the defendant No. 1 or the defendant No. 2 is bound to pay the pension of the deceased, Rozi Khan to plaintiffs?

(vi) Whether the plaintiffs are entiled to the relief claimed?"

5. After recording statements of the attorney of the plaintiffs and representative of the department, the leared Civil Judge, Sibi decreed the suit on 30‑9‑1991 in favour of the petitioners. However, said decree was challenged by respondent No. 3 in an appeal before the District Judge, Sibi. Learned District Judge, Sibi vide impugned judgment and decree dated 25‑2‑1993 allowed the appeal and set aside the judgment and decree of the Civil Judge. Hence this petition.

6. Heard Mr. Khushnood Ahmed, Advocate for the petitioners and Mr. Shakil Ahmed, Advocate and learned Additional Advocate‑General for the official respondents.

7. It may be seen that the fact that late Rozi Khan was a regular employee is not denied. So also the fact that he was entitled to pension benefits, G.P. Fund and other dues is also not contested. The main ground, however, for setting aside the judgment and decree of the Civil Judge, Sibi by the District Judge was that the Civil Court had no jurisdiction because matter pertains to the domain of Service Tribunal. This fact is supported from the observations made by the learned District Judge in the impugned judgment which for the sake of convenience may be produced here in below:‑‑

"It is a service matter and jurisdiction of Civil Court is ousted in such matters. It has also been prayed that the Court pass a decree that the late father of respondents was a permanent employee, this is also out of the scope of Civil Court, therefore, the appeal is accepted and judgment/decree dated 30‑9‑1991 passed by the learned Civil Judge, Sibi is set aside. Decree‑sheet be drawn."

8. Both, learned Additional Advocate‑General, as well as Mr. Shakil Ahmed, Advocate opposed this petition on the ground of jurisdiction. However, respondent No. 3 filed counter‑affidavit/comments with the same effect but further contended that late Rozi Khan was a regular employee of Irrigation Department and when his services were transferred by Irrigation Department to the Town Committee, no pension contributions, G.P. Fund, Group Insurance etc. were transferred to the Town Committee. Similarly after arguments the comments of Secretary, Local Government Department were also filed in which the claim was admitted but it was stated that plaintiff was entitled to relief from the Irrigation Department.

9. From the aforementioned resume of the facts, it becomes clear that two important questions require determination in this petition; firstly, whether Civil Court had jurisdiction to entertain the suit and secondly, which department was responsible for payment of pension, gratuity fund etc. to the plaintiffs.

10. The question of jurisdiction is very pertinent because the decree of the Civil Court, was set aside for the sole reason of lack of jurisdiction.

11. It may be observed that as far as entitlement of family pension is concerned, the same is guaranteed under Balochistan Civil Servants Act section 19(2) of the said Act lays down: "In the event of the death of a civil servant, whether before or after retirement, his family shall be entitled to receive such pension, or gratuity, or both as 'nay be prescribed".

12. Similarly sections 20 and 21 provide for the provident fund and benevolent fund as well as group insurance for the family of the deceased civil servant.

13. Thus as far as entitlement of the family of late Rozi Khan is concerned the same is entitled under law to receive the pension, gratuity, group insurance, G.P. fund etc.

14. However, question still remains which forum is competent to determine the issue

15. The learned District Judge while setting aside the decree passed by Civil judge has advanced no reasons whatsoever as to how Civil Court had no jurisdiction. He concluded so on the simple reason that the matter was a service matter. To my mind, the learned District Judge approached the matter in a cursory view without dilating as to whether petitioners who were not civil servants but who were entitled as per law to receive the pension and other benefits could file an appeal before the Service Tribunal? In this respect reference may be made to the relevant sections providing for appeals to Tribunals. Section 4 starts with the words "Any civil servant aggrieved by any final order whether original or appellate made by departmental authority in respect of any of the terms of conditions of his service may prefer an appeal to the tribunal". Thus, from plain reading of the said section it appears that the civil servants have been given the right of appeal. Petitioners admittedly are ant civil servants but they are entitled to receive the benefit of their late father. Therefore, they sought a declaration of their entitlement rightly before a Civil Court.

16. It may further be observed that the legal heirs of a civil servant, to enforce his terms and conditions of service, cannot agitate before the Service Tribunal because an appeal abates on the death of appellant and is not maintainable by legal heirs. Reference in this respect may be made to 1982 PLC (C.S.) 743 as well as PLD 1977 Supreme Court 182.

17. The problem may be looked into from another angle, i.e., the determination of terms and conditions of service of late Rozi Khan. None of the respondents has contested that late Rozi Khan was not entitled to pension and other benefits. However, they shifted the responsibility to each other. Thus the precise issue was not to settle terms and conditions of late Rozi Khan but as to which of the department's i.e. Irrigation Department or the Local Government Department was responsible for settling the pension and other benefits to be further paid to his family members. In other words the moot question for determination was whether the parent department of the late civil servant, i.e., Irrigation and Power Department was responsible for settling the pension of late Rozi Khan or it was the Local Government Department because he was then sent to serve Town Committee, Harnai. This issue definitely does not lie within the domain of Service Tribunal but it had to be declared by a Court of competent civil jurisdiction. To sum up the discussion it is concluded that the question for determination did not relate to the terms and conditions of late Rozi Khan but as to which of the two departments was liable to pay pension and other emoluments to the family of late Rozi Khan. Hence the Civil Court had the jurisdiction to resolve the issue and the decree could not have been set aside by the learned District Judge on the point of lack of jurisdiction.

18. After answering the first question I now attend to the issue whether pension should be paid to the family members of Rozi Khan by the Irrigation and Power Department or by the Local Government Department. Learned Civil Judge after assessing the evidence on record came to the conclusion that the defendant No3 Town Committee Harnai was liable to pay pension, G.P. Fund, six months' pay and other dues to the legal heirs of deceased Rozi Khan. Local Government Department in its comments filed in this Court has taken the plea that maintenance charges and salary of the staff of Water Supply Scheme was paid out of the grant‑in‑aid released by the Provincial Government through Finance Department and not out of the Town Committee, Harnai fund. It was further pleaded that although services of Rozi Khan were transferred on 31‑8‑1982 to Town Committee, Harnai but no pension, contribution, G.P. Fund and other emoluments of the official were transferred to the Town Committee and that late Rozi Khan served Irrigation Department for more than 11 years, therefore, Irrigation Department is liable to pay the pension, G.P. Fund etc. to the legal heirs of late Rozi Khan. In the end it has been mentioned that said Water Supply Scheme at Harnai alongwith staff has now been transferred to Public Health Department, Government of Balochistan on 31‑8‑1988.

19. The pleas of Departments have been considered by learned Civil Judge in the light of the evidence and documents they produced before him. Learned Civil Judge has reproduced in his order the terms and conditions of transfer of the scheme i.e. Urban Water Supply Scheme from Irrigation Department to Municipal/Town Committees which read as under:‑‑

(a) Only the responsibility for the maintenance of the water supply schemes will be transferred to the Urban Local Councils. Once they are so transferred, Irrigation and Power Department will not take them back.

(b) The budget allocation of Irrigation and Power Department for 1982‑83 for these Schemes will be transferred to the Urban Councils, alongwith the maintenance staff.

(c) The maintenance stores purchased for a particular scheme by the Irrigation and Power Department will also be transferred to the Urban Councils, but it would not mean that all the maintenance stores of Irrigation and Power Department would go to the Urban Councils. The transfer would be only for the stores purchased against the allocation for a particular scheme.

(d) The Urban Councils will have to accept the staff presently employed by the Irrigation and Power Department for every such scheme. Once the staff is transferred, the Urban Councils will have full administrative control over the staff. If they later feel that some members of the staff are not rendering proper services or are not required the Urban Council may take action against such persons and if necessary remove them."

On the basis of evidence on record learned Civil Judge came to the conclusion that Town Committee, Harnai was responsible to pay the family pension, six months' pay and other emoluments to the legal heirs of late Rozi Khan.

20. There is no cavil to the proposition that services of Rozi Khan were transferred from Irrigation and Power Department to Town Committee, Harnai on 31‑8‑1982 and he was administratively controlled for all intents and purposes by the Local Government Department. He expired on 17‑4‑1986 while serving the Local Government Department, his services being at the disposal of Chairman, Town Committee, Harnai. He was entitled to pension benefits which is hot denied. His family members cannot be deprived of this right. However, as per contention of the Local Government Department his Pension, G.P. Fund and other emoluments have not been transferred to the said Department, if that be so then it is an inter‑departmental issue which should be sorted out by the two Departments with consultation of the Finance Department. But it will not deprive the family members of late Rozi Khan to get the pension and other benefits as decreed by the Civil Court. Said Departments are directed to settle this issue inter‑departmentally and pay pension and all the dues as decreed by the Civil Judge to the petitioners. I see no reason to differ from the conclusions of learned Civil Judge. However, in the light of the above observations the Departments should take steps and We Irrigation' Department shall immediately transfer G.P. Fund and other emoluments of late Rozi Khan to Local Government Department and ultimately his family members shall be entitled to get all due benefits as decreed by Civil Judge, from the Local Government Department.

The Revision is thus accepted, the judgment and decree of District Judge, dated 25th February, 1993 is set aside and the judgment and decree of Civil Judge, Sibi is upheld with the observations as mentioned in the preceding para. However, there shall be no orders as to costs.

A.A./455/Q Order accordingly.