1984 PLP 1323 (PLC)

2. The facts in the background for the purpose of disposal of this appeal, briefly stated, are that the Sind Employees' Social Security Institu tion called upon the management of the appellants to pay Social Security Contribution on the incentive bonus paid to the workers. The appellants informed the Sind Employees' Social Security Institution that the payment of the incentive bonus did not constitute part of wages and, as such, no contribution was payable thereon. The matter was referred to the Com missioner, Sind Employees' Social Security Institution, Karachi, who, by his order, dated 2nd November, 1982, held that the incentive bonus paid to the workers does carry benefit of Social Security contribution. This order has been called in question in appeal before the Sind Employees' Social Security Court No. 1, Karachi. The learned Presiding Officer of the Court, by his order, dated 22nd February, 1983, has stayed the proceedings sine die on the ground that the order of Commissioner, Sind Employees' Social Security Institution, impugned in the appeal, is based on the judgment of the High Court of Sind in M. As. Nos. 94, 95 and 102/79 in the cases of SESSI v. Messrs Brooke Bond (Pakistan) Ltd. and Messrs Lipton (Pakistan) Ltd. and Bergar Paints (Pakistan) Ltd., which has been appealed against before the Supreme Court and its operation has been stayed. The order has been appealed against by the Sind Employees' Social Security Institution.

3. The learned counsel appearing for (he appellant institution has urged that pendency of the appeal in the Supreme Court or even the order of the Supreme Court staying the operation of the judgment of the High Court does not warrant stay of proceedings of identical nature pending at the lower forum. He has placed reliance on P L D 1963 Lah. 11 ; P L D 1974 Kar. 29 and P L D 1980 Kar. 492.

4. On the other hand, the learned Advocate for the respondent has contended that the impugned order is not the decision of the case and it is not appealable under section 64 of the Sind Employees' Social Security Ordinance, 1965. He has made reference to A I R 1935 All. 476 and P L D 1975 S C

32. He has further contended that the impugned order does pot suffer from any illegality,

5. It is not disputed that the legal question involved in the app before the Sind Employees' Social Security Appellate Court, viz. connotation of the term "production/incentive bonus" was considered by the Hi Court of Sind in Miscellaneous Applications No. 94/1979 SESSI v. Mesa Brooke Bond (Pakistan) Ltd., 95/79 Messrs Liptons (Pakistan) Ltd. a No. 102/79 Bergar Paints (Pakistan) Ltd., and it was held that the production/incentive bonus does not fall within the meaning of "wages" as define in the Sind Employees' Social Security Ordinance, 1965, and no contribution is payable to the Social Security Institution thereon. It is also not disputed that the decision of the High Court in these appeals has been appeal against before the Supreme Court and its operation has been stayed. In the circumstances, the only question for determination in this appeal is "whether filing of the appeal in the Supreme Court and the operation of the impugn judgment of the High Court having been stayed are valid grounds for ad-journing sine die the hearing of the appeal before the Sind Employees' Social Security Appellate Court."

6. Under Article 201 of the Constitution, decisions of the High Court on the question of law are binding on the subordinate Courts. As such the decision of the High Court in the aforesaid Miscellaneous Application is binding on the 1st Appellate Court under the Sind Employees' Social Security Ordinance, 1965 and it has to be followed in appeal pending before it. The learned counsel for the appellant has urged that the Supreme Court has admitted the appeal against the decision of the High Court an stayed its operation and it does not, therefore, bind the subordinate Courts to follow it. The learned counsel for the respondent has disagree with that proposition ; and has further argued that even if it may b assumed without conceding that by virtue of stay of the operation of that judgment, the subordinate Courts are not bound to follow the judgment of the High Court, there is another judgment on the same question of lay in Miscellaneous Application No. 7/82, the operation of which has not bee stayed and the subordinate Courts are bound to follow it. Such question was considered in a number of cases, some of which are mentioned below, and concensus of the opinion is that mere filing of appeal does not make the impugned judgment/order ineffective.

7. In a case Muhammad 1qbal Khan v. The Chief Settlement and Rehabilitation Commissioner and another (P L D 1963 Lah. 11) it was held that decision o1 a writ petition could not be withheld on the ground that the question of law involved therein was awaiting determination in Supreme Court.

8. In a case Muhammad Ismail v. State (P L D 1974 Kar. 29) Mr. Justice Abdul Hayee Qureshi, J (now Chief Justice) made the following observations on a similar question raised before his Lordship. "

10. The learned Advocate for the petitioner has placed before me several orders passed by this High Court whereby even such persons who were facing trial before the Special Tribunal had been released on bail. In that context I may initially say that my learned brother Mir Khuda Bakhsh Marri, J. had in the case of Illahi Bux Soomro dealt with a question of jurisdiction of the High Court in the .matter of grant of bail under section 498, Cr. P. C. in cases pending before the Special Tribunal. This bail application No. 266 of 1973 was rejected by my learned brother on the ground of lack of jurisdiction. I wag informed at the Bar that an appeal has been filed against the order of my learned brother and leave has been granted by the Supreme Court vide P. S. L. A. No. K‑45 of 1973. On that premises the learned Advocate has stated that the matter being sub-judice in the Supreme Court I should not follow that judg ment. No doubt the matter reopens in the Supreme Court as soon as the appeal is entertained. In that context I would like to make it clear that a Single Bench decision of my learned brother is not binding on me but I can certainly take note of it till such time that judgment is set aside and when their Lordships of the Supreme Court do so decide I will of course loyally and obediently follow such judgment of the Supreme Court. On the other hand, I am not prepared to assume that simply because leave has been granted against a judgment that judgment cease to be good or necessarily wrong We will accept the law as laid down by the Supreme Court but until such law is laid down the mere grant of leave will not pre clude me from referring to such judgment and even following it to some event to even adopting the reasons on which the judgment of my learned brother is based".

9. In a case Yousif A. Mitha and 3 others v. Abubakar and 2 others (P L D 1980 Kar. 492), Mr. Justice Tanzilur Rehman adopted the view that decision of a Division Bench of the Court in the case Razak v. Usman (P L D 1975 Kar. 944) although stayed by the Supreme Court was binding upon him unless reversed by the Supreme Court of course, the view adopted in this case was not approved of by a Division Bench in a case Mrs. Jamila Bai Namit v. Mian Abdul Waheed (P L D 1981 Kar. 138).

10. It follows from review of the cases refereed to above that a judg ment of the High Court appealed against does not lose its binding force on the subordinate Courts unless it is set aside by the Supreme Court. Stay of operation of impugned judgment during the pendency of appeal operates between the parties thereto. As such, the learned Presiding Judge, Appellate Court under the Sind Employees' Social Security Ordinance, 1955, cannot hold a view different from that held by the High Court of Sind in Miscellaneous Appeals No. 94/79, 95/79 and 102/79 referred to above. In that case, the aggrieved party can challenge the decision in appeal and there is bound to be multiplicity of proceedings. In the circumstances, adjourn ment of appeal sine die to await verdict of the Supreme Court on the question of law is the appropriate order.

11. As regards the maintainability of appeal, it has been filed under section 64 of the Sind Employees' Social Security Ordinance, 1965, which lays down that no appeal shall lie from an order of Social Security Court unless it involves a substantial question of law. In this appeal, the question involved is‑"Whether admission of appeal in Supreme Court against the judgment of High Court on the question of law involved in the appeal before the 1st Appellate Social Security Court and stay of operation of the judgment of the High Court warrant adjournment of the .proceedings sine die to await the decision of the Supreme Court" and appeal does lie for considering the question.

12. The cases referred to by the learned counsel for the respondent viz. Simath v. Mata Prasad and others (A I R 1935 All. 476) and Sind Employees' Social Security Institution and another v. Adamjee Cotton Mills Ltd. (P L D 1975 S C 32) are not to the point under consideration. In the Indian High Court case, a question of adjournment under the provisions of Order XVI1, C. P. C. was con sidered. In the case reported in P L D 1975 S C 32 the question of stay order in an appeal under section 59 of the Social Security Ordinance was considered.

13. For the aforesaid reasons, the impugned order does not suffer from any legal infirmity and does not call for interference. Appeal is dismissed with no order as to costs. M. Z. M. Appeal dismissed.