1990PLC21 (PLP)

3. On the other hand Mr. Muhammad Riaz Ahmad, learned standing counsel appearing for the respondents strenuously contended that notice of the arrears issued by respondent is quite legal, valid and with jurisdiction. Respondents are competent to direct petitioner or other organizations to produce original record. Learned counsel further argued that alternative remedies were available to the petitioners under Sections 33, 34 and 35 of the Employees' Old Age Benefits Act 1976 and relevant rules concerning the same, therefore present Constitutional Petition is not maintainable.

4. We have carefully considered the arguments addressed by learned counsel for parties. Primary question which arises for determination would be whether amount of arrears claimed by respondents from petitioner in respect of average short‑fall from September, 1982 till February, 1989 was properly determined by the competent authority under prescribed procedure; and whether or not proceeding initiated by respondent No. 2, for effecting recovery as arrears of land revenue were proper and justified under the law. It may be seen that record and documents of every Industry or establishment registered with Employees Old Age Benefit Institution in accordance with Section 11 of "Employees Old Age Benefit Act XIV of 1976 "(hereinafter referred to as THE ACT") can be checked by the officials of Department duly authorised in this behalf within the limits prescribed by section

12. Accordingly authorised official would be entitled to examine only such record and documents of the Establishment or Industry, which clearly relate to employment of the persons, payment of wages to employees or matters connected therewith. Evidently according to section, the contribution is payable by employees from month to month basis, and on failure to deposit the same by due date, increase upto 50% of the amount due could be lawfully claimed. Section 13(2) of "The Act" indicates powers for recovering arrears as land revenue. Documents on record which have not been controverted, suggest that petitioner has been regularly depositing certain amounts towards contribution from the date of its registration with the institution, (Respondent No. 1). It is not understandable how respondent without any complaint or ostensible basis, suddenly vociferously started claiming huge arrears allegedly accumulated in the last seven years. Suspicious manner in which demand appears to have been raised obviously provided a legitimate right to ask for details forming basis of said arrears. It is surprising that instead of supplying necessary information the respondents started threatening petitioner by forcing production of certain documents some of which i.e. Income Tax returns of General ledgers could not be legitimately examined under `The Act'. Such conduct of the official was apparently contrary to normal discipline and principle of fair play. No doubt, law vests authority in respondents for compelling petitioner to produce certain record and books but the limits thereof have been obviously specified under section 12 of `The Act', which thereafter could not be transgressed. It may also be noted, that though period for which dispute could be raised for determination before the institution is not mentioned in the law nevertheless section 5 of Employees 01d Age Benefits (General) Regulations, 1980 regulates maintenance of record and submission of return by the employees whereby under subsection (2) record pertaining to persons in the insurable employment of employer was to be maintainable for two years or till persons under insurable employment are hued Pl‑03 Card, whichever is later. It is not disputed that P1‑03 Cards have not been issued to the employees of petitioner so far. But at the same time no issuance of same when admittedly petitioner's establishment was registered with the institution (i.e. Respondent No.l) towards September, 1982 would cast reflection on the conduct of respondent rather than penalising the petitioner. Thus considering relevant provisions of `The Act' and Regulations, 1980 we are I prone to observe that Assistant Director Hub Region could seek inspection and examination of only those documents, which are prescribed under section 12, or any other express provision of law. Accordingly directions contained in letters dated 6‑4‑1989 and 9‑4‑1989 are defective. It may further be seen that details supplied by respondent vide letter dated 9 4‑1989 are vague and scanty. It is not indicative whether demand thus raised relates to average short payment; total amount payable by the petitioners from September, 1982 till date; or balance payable after adjusting various amounts deposited by petitioner during said period. Factual position that demand for payment of arrears was raised for the first time through notice dated 11‑3‑1989 is not disputed on record. Therefore it was incumbent upon the respondent to have taken into consideration petitioner's objections and stand concerning deposits continuously made in this behalf, as well as claim for adjustment of that amount. Besides some basis ought to have been mentioned for straightaway demanding maximum increase of the contribution, which in spite of the protest of petitioner, unfortunately has not been explained. Additionally, before directing recovery as arrears of land revenue, it was obligatory, that amount to be realised from petitioner should have been determined. Since objections are expressly raised by petitioner and payment of the amount or at least a part thereof was specifically asserted, therefore, factum of real amount payable by petitioner needed consideration and categories determination by the Institution (Respondent No. 1), or its lawful delegates. It maybe seen that hasty and hostile manner in which proceedings for recovery by way of land revenue are being pressed without pr: pearly determining amount due, is not only unjust but also smells of mala tides. We are also fortified by the broad principle of law enunciated in the following reported judgments:‑ (1) Abdul Latif v. Government of West of Pakistan and others (P L D 1962 S C 384). (2) The Province of West Pakistan v. Muhammad Ayub Khoro P L D 1967 Karachi 673). (3) Ark Ocean Lines Ltd. (A Private Company) Karachi v. The Director of Industries and Mineral Development (Coal Control Wing) and another (P L D 1976 Karachi 610). (4) Zakria A. Bawani v. City Deputy Collector Karachi and two others (P L D 1974 Karachi 1008). From the above discussion we are inclined to hold that notice of demand and proceedings initiated by the respondents without determining the amount validly due from petitioner, are unlawful and in excess of jurisdiction vested in them. Besides Assistant Director Hub has flagrantly disregarded law by raising demand of arrears without providing details to petitioner and compelling production of documents not sanctioned by the statute in addition to misusing powers prescribed by law. The proceedings thus drawn up by respondents being patently illegal are declared to be without lawful authority and of no legal effect. However, we may observe that respondents, on providing fair opportunity to petitioner will be at liberty to raise proper demand, and may also examine relevant record to the expect permissible, and thus draw proceedings for recovery as contemplated by law. The petition is accordingly accepted in the above terms. Parties are however, left to bear their own costs. H.B.T./339/Q Petition accepted.