2004 PLP 106 (PLC)

SAIYED SAEED ASHHAD, CJ

In this Constitutional Petition the petitioners have sought the following reliefs: (i) That the impugned order dated 7-1-1996 passed by respondent No. l on the basis 'of order dated 29-7-1992 passed by respondent No.2 and the notice dated 24-10-1991 issued by respondent No.3, is illegal, void, mala fide and without lawful authority and may kindly be set aside. (ii) It is further prayed that this Hon'ble Court may kindly declare that the petitioner-Company is riot liable to pay Rs.16,87,500 (Rupees Sixteen lacs eighty-seven thousand five hundred only) as demanded by the respondents. (iii) And other relief this Hon'ble Court may deem fit under the circumstances The grievance of the petitioners is with regard to the Notices dated 24-10-1991 and 19-12-1991, Annexures-I & J, respectively issued by the respondents calling upon the petitioners to make payment of contribution in respect of the workers employed by the Contractors engaged by the petitioners. The petitioners assailed the afore-said notices before the Adjudicating Authority established under the Employees' Old-Age Benefits Act, 1976 (hereinafter referred to as the EOB Act) by means of Petition No.45 of 1992, In this petition, the petitioners disowned its liability to make payment of contribution in respect of the workers employed by the independent Contractors on the ground that the definition and meaning of the word "workers" appearing in the EOB Act did not include employees employed by the Contractor. The contention of the petitioners was rejected by the Adjudicating Authority and it was held that the employees/workers engaged through the Contractors fell within the definition of "workers" as defined in section 2(bb) of the EOB Act and the petitioners were held liable for payment of contribution in respect of the employees engaged through the Contractor. The decision of the Adjudicating Authority dated 19-7-1992 was assailed by way of an appeal before the Board of Trustees of the Employee's Old-Age Benefits Institution. The Board of Trustees by their order dated 7-1-1996 dismissed the appeal upholding the decision of the Adjudicating Authority. Again feeling aggrieved and dissatisfied by the decision of the Appellate Authority the petitioners have invoked the Constitutional jurisdiction to assail the same. We have heard the arguments of Mr. Sohail Muzaffar learned counsel for the petitioners and Mr. M.A.M. Namazie, learner: counsel for the respondents and have also perused the material on record as well as the case-law referred to us by Mr. M.A.M. Namazie. Learned counsel for the petitioners contended that the petitioners were not liable or responsible for making payment by way of contribution tinder the E013 Act to the Institution in respect of the employees engaged by independent Contractor for the purpose of executing the work in the establishment of the petitioners. He further contended that the employees/workers engaged by the independent Contractors were the employees of such independent contractors and could not be considered to be the employees of the petitioner's establishment so as to come within the definition of the "workers" as defined under section 2(bb) of the EOB Act. Learned counsel for the respondent No. 1, on the other hand, vehemently refuted the contentions raised by the learned counsel for the petitioners and submitted that the "workers" employed by the' independent Contractors who carried out or executed the work in their premises would fall within the definition of "workers" as defined under section 2(bb) of the EOB Act inasmuch as the definition of the "workers" was very wide and would include all employees engaged to perform work in any industry/establishment either directly or indirectly in connection with the affairs of the industry/establishment. Thus, making petitioners responsible and/or liable to make contribution under the EOB Act on behalf of the employees allegedly engaged through or by independent Contractors. In support of his contentions, he placed reliance on the pronouncement made by the Supreme Court in the case of Sindh Employees Social Security Institution v. Consolidated Sugar Mills, Limited, reported in 1988 SCMR 888 and by the Lahore High Court in B the case of Crescent Textile Mills Limited v. The Board of Trustees, Employees Old-Age Benefits Institution and 2 others, reported in 2003 PLC

41. We have considered the respective arguments advanced by the learned counsel for the parties and have perused the case-law relied upon by the learned counsel for the respondent No.

1. In the case of Messrs Sindh Employees Social Security Institution v. Consolidated Sugar Mills Limited (supra) the Supreme Court, while examining the question as to whether the employees/labourers employed by a Contractor for purposes of executing the work on behalf of the owners/establishment/industry, on the premises of the industry/ establishment would be covered by the definition of term "employee" as defined in the West Pakistan Employees Social Security Ordinance, 1965 (hereinafter referred .to as tire Ordinance of 1965) observed that:-- "The definition of the "employee" as appearing it section 2 (viii) of the Ordinance of 1965 was very wide and would encompass within its workers/labourers employed or engaged through a Contractor." It was further held that:-- "The owner of the industry/establishment would be under an obligation to contribute to the Social Security Funds for such employees. " In the case of Messrs Crescent Textile Mills Limited v. Board of Trustees, Employees' Old-Age Benefits Institution (supra) the High Court of Lahore while examining this issue by placing reliance on the case of Messrs Sindh Employees Social Security Institution v. Consolidated Sugar Mills Limited (supra) held the workers/employees/ employed/engaged by Contractors as worker in the industry in connection with the affairs of the industry/establishment to be the employees as defined in section 2(bb) of the EOB Act further holding the industry/establishment to be responsible/liable for making payment of the contribution on their behalf in the Old-Age Employees Benefit Fund. Upon the above discussion, this petition was found to be without any substance. By a short order dated 27-11-2002 it was dismissed in man limine alongwith the miscellaneous application pending therein for reasons to be recorded later on. These are the reasons for the said dismissal. H.B.T./A-12/K Petition dismissed.