2005 PLP 102 (PLC)

Muhammad Mujahid Ahmad for Respondents. The brief facts out of which present revision petition arises are that the petitioner filed a suit to the effect that Gazette Notification No.DEV‑1/PESSI/2‑15/93 (P‑III), dated 13‑2‑1999, and subsequent demand of the Social Security Contribution by the defendant No.2 through Notice dated 8‑7‑1999 and 13‑4‑2000, are illegal, without lawful authority and being mala fides are not attracted to the plaintiff Institution i.e. Seerat Public School, Sargodha Road, Faisalabad with consequential relief that the defendants should cancel the Notification and refrain from demanding Social Security Contribution from the plaintiffs' Institution forever, in the Court of Civil Judge 1st Class, Faisalabad, who returned the plaint to the petitioner to be presented before the competent Court under the provisions of Punjab Social Security Ordinance, 1965. The petitioner being aggrieved filed an appeal before the learned Addl: District Judge, Faisalabad, who dismissed the same vide impugned judgment and decree dated 14‑4‑2004, wherein the order of the learned trial Court was upheld. The petitioner being aggrieved filed this revision petition.

2. The learned counsel for the petitioner submits that both the Courts below returned the plaint to the petitioner without application of mind. He further submits that the impugned judgment of the first appellate Court and order of the learned trial Court are not in consonance with provisions of Employees Social Security Ordinance. 1965. He further submits that the petitioner has challenged the vires of Notification issued by the Provincial Government under section 3(1) of the Ordinance, therefore, the petitioner has no alternative remedy to file appeal under the provisions of the Ordinance in view of section 57 read with sections 58 and 61 of the Ordinance. He further submits that the order and judgment are not in consonance with law laid down by the Honourable Supreme Court. In support of his contention, he relied upon "M/s. Standard Printing Press. v. Sindh Employees Social Security Institution" (1988 SCMR 91).

3. The learned counsel for the respondents submits that the petitioner has not challenged the Notification of one year after judgment of the competent Court under section 3 (1) of the said Ordinance. He further submits that the contents of plaint do not reveal that the petitioner has challenged the vires of Notification in the plaint. In fact, the petitioner has challenged the vires of demand notice issued by the respondents to the petitioner, therefore, both the Courts below were justified to return the plaint to the petitioner to be presented before the competent Court under the provisions of aforesaid Ordinance. He further submits that the petitioner has more than one alternative remedies under the provisions of said Ordinance, therefore, both the Courts below were justified to return the plaint to the petitioner. He further submits that the impugned order and judgment are inconsonance with law laid down by the superior Courts. In support of his contention, he relied upon "M/s. Rupali Ltd., Sheikhupura through Personnel Manager. v. Deputy Director, Punjab Employees Social Security Institution, Sheikhupura and 2 others." 2003 PLC 399). He further submits that the Honourable Supreme Court has laid down principle in the aforesaid judgment i.e. "M/s. Standard Printing Press. v. Sindh Employees Social Security Institution" (1988 SCMR 91) in which the' petitioner submits that the petitioner has right to challenge the vires of Notification in Constitutional jurisdiction and not before Civil Court. He further submits that the Honourable Supreme Court accepted the, same as Provincial Government was not impleaded as party in the proceedings therefore, the case relied by the learned counsel of the petitioner is distinguished on facts and law.

4. I have given my anxious consideration to the contentions of learned counsel of the parties and perused the record.

5. The question of law has been settled by the Honourable Supreme Court in "M/s. Standard Printing Press. v. Sindh Employees Social Security Institution" (1988 SCMR 91). The relevant observation is as follows:‑‑ "The up‑shot of the above discussion is that the right of appeal conferred on the Social Security by section 59 of the Ordinance is by statute limited to matters enunciated in section 57 of the Ordinance. A further appeal on a "substantial question of law" to High Court under, section 64 of the Ordinance does not enlarge, rather it limits, the scope of appeals arising on adjudications under section 57 of the Ordinance. Constitutional question of the vires of enacted law and notifications thereunder could not be agitated under section 57 before the Social Security Institution Court in further appeal under section 59 before the Social Security Court in further appeal under section 64 before the High Court." The judgment relied by the learned counsel of the respondents is distinguished, on facts and law as the assumption of jurisdiction by the Court under the provisions of Social Security Ordinance, 1965 was not agitated and decided. It is pertinent to mention here that the petitioner has challenged the vires of Notification in the suit as is evident from the heading of the suit mentioned above and paragraph No.3 of the plaint, which are at pages 10 and 11 of the file. It is settled principle of law that Civil Court has ultimate jurisdiction by virtue of section 9 of C.P.C. as per law laid down by the Honourable Supreme Court in "Zafar‑ul‑Ahsan's case" (PLD 1960 SC 113). The impugned order and judgment of both the Courts below are in violation of law laid down by the Honourable Supreme Court in the aforesaid judgment. This concept of jurisdiction and illegality had been considered by the Honourable Supreme Court in "Knawal Nain's case" (PLD 1983 SC 53) to cover the cases where the decision on facts is based on no evidence or inadmissible evidence or is so perverse with grave injustice would result therefrom, therefore, both the Courts below have committed material irregularity. This Court has ample jurisdiction to disturb the findings of Courts below in such situation, as per principle laid down by the Honourable Supreme Court in "Saukat Nawaz's case" (1988 SCMR 851).

6. In view of what has been discussed above, this revision petition is accepted with no order as to costs. Resultantly, the impugned order of the learned trial Court and judgment of the first appellate Court are set aside. Parties are directed to appear before the learned trial Court on 20‑12‑2004. The learned trial Court is directed to decide the matter afresh on merits in accordance with law as expeditiously as possible. With these observations, this revision petition is disposed of. M.H./A‑335/L Case remanded.