2012 PLP 880 (CLC)

ABDUS SATTAR ASGHAR, J.

Principal, Sadiq Public School Bahawalpur, the appellant, through this Intra-Court Appeal under section 3 of the Law Reforms Ordinance, 1972, has impugned the order dated 31-5-2010 passed in Writ Petition No.3499 of 2000/Bwp by learned Single Judge in Chamber, whereby the said writ petition was disposed of with the following observations:

"In the light of above, this writ petition is disposed of with the direction to the petitioner that he should avail alternate remedy under sections 33, 34 and 35 of the Employees Old-age Benefits Act, 1974 and the ground raised by the petitioner in this writ petition along with others if any available be raised before the authorities under above sections. However, if the petitioner approaches concerned authority for redressal of his grievance in the large interest of justice the authority shall first decide the grievance of petitioner and then shall proceed for recovery of amount as shows in the impugned notice."

2. It is argued by learned counsel for the appellant that the appellant school does not fall within the purview of terms 'establishment' or 'organizations' used in section 2(e) of the Employees Old-Age Benefit Act, 1976 as amended, therefore, respondents have no lawful authority to register the appellant school under section 11(3) of the Act and that impugned certificate of registration dated 14-3-2000 and subsequent letter dated 20-4-2000 as well as letter dated 28-6-2000 pertaining to assessment of Employees Old-Age Benefit contribution are against law and facts, without lawful authority and liable to set aside. He has added that since the appellant school does not fall within the purview of the Act, therefore, observation of learned Single judge in Chamber passed in the impugned order with regard to maintainability of the writ petition under Article 199 of the Constitution due to availability of alternate remedy under sections 33, 34 arid 35 of the Act is against law and facts and not tenable in the eye of law and liable to set aside.

3. It is resisted by learned counsel for the respondents with the arguments that appellant school falls within the mischief of 'Establishment' defined under section 2(e) of the Act. It is further added by learned counsel for the respondents that in case of any question or dispute with regard to registration of an 'Establishment' the remedy is provided under section 33 of the Act by filing a complaint before the Institution established under sections 4 and 5 of the Act mentioned op.cit. Learned counsel for the respondents have further maintained that since the efficacious remedy under the Act is available to the appellant school, therefore, constitutional jurisdiction of this Court under Article 199 cannot be invoked and thus impugned order does not suffer from any legal infirmity.

4. We have given patient hearing to learned counsel for the parties and gone through the record.

5. The term 'Establishment' is defined in section 2(e) of the Act, which is reproduced as under:

"Establishment means:- (i) an establishment to which the West Pakistan Shops and Establishments Ordinance, 1969 (West Pakistan Ordinance No. VIII of 1969), for the time being applies, and, notwithstanding anything contained in section 5 thereof, includes clubs, hostels, organizations and messes, not maintained for profit or gain and establishments, including hospitals, for the treatment or care of sick, infirm destitute or mentally unfit persons;"

6. Black's Law Dictionary (Sixth Education) defines the words 'Establishment" and 'Organization' as under:

Establishment.

An institution or place of business with its fixtures and organized staff. Organization.

As term is used in commercial law, includes a corporation, government or governmental sub-division or agency, business trust, estate, trust, partnership or association, two or more persons having a joint or common interest, or any other legal or commercial entity.

7. Learned counsel for the appellant has argued that the appellant school is not running for profit or gain and therefore, cannot be included in the definition of `establishment' or 'organization' used in the Act. There is no cavil to the fact that Employees Old-Age Benefits Act 1976 as amended is a beneficial legislation, aimed to give benefit to employees in their old-age. The word `includes' used in the above quoted definition of 'establishment' as provided in the Act manifests the spirit of legislation to broaden application of the provisions of the Act even to those Establishments and Organizations working not for earning profit or gain. Needless to mention that the word `include' is generally used in interpretation of a clause to enlarge the meaning of words and phrases existing in the body of statute. The argument of learned counsel for the appellant is devoid of any force for the simple reason that clubs, hostels and messes included in the definition of the `establishment' given in the Act generally do not work for profit or gain. Therefore, keeping in view the beneficial and remedial spirit of the legislation under the Act, the appellant school cannot be excluded from the purview of 'establishment' or 'oraganizations' as defined in the Act.

8. Learned counsel for the appellant has also laid much emphasis on his argument that the appellant school is giving numerous benefits to its employees including pension etc. In this regard suffice to say that scheme of legislation in the Act does not make the benefits under the Act dependent to availability or non-availability of benefits of the like nature to the employees of an `establishment' or 'organization' falling within the purview of the Act, therefore, by providing some other benefits to its teachers and employees the appellant school cannot be absolved of the liability to pay the contribution under the Act. Reliance is made upon Don Basco High School v. The Assistant Director E.O.B.I. and others (PLD 1989 Supreme Court 128).

9. For the forgoing discussion and reasons we are of the considered view that appellant school falls within the mischief of the Act. Therefore, in case of any question or dispute in this regard appellant school has got efficacious remedy under sections 33 to 35 of the Act ibid and thus cannot invoke the constitutional jurisdiction of this court. The writ petition under Article 199 of the Constitution, therefore is not maintainable.

10. As a sequel to the above we do not find any legal infirmity in the order dated 31-5-2010 passed by learned Single Judge in Chamber. This I.C.A. having no merit is hereby dismissed. H.B.T./P-3/L Appeal dismissed.