1990 PLP 235 (MLD)

‑‑‑S.64‑‑‑Appeal‑‑‑Social Security Court's finding that Ordinance X of 1965 was applicable to the appellant establishment only on the ground that it was working in the same premises in which the previous establishment was working, by itself, was not conclusive and the other aspect of the matter as to whether or not the organisation was the same should have been adverted to‑‑‑No finding to that effect having been recorded either by the Social Security Institution or by the Social Security Court, impugned orders were not maintainable; thus necessitating remand of case to Social Security Court for re‑determination‑‑‑Case remanded. Sahibzada Riaz Anwar for Appellant. Iftikhar Ahmad Dar for Respondent. Date of hearing: 28th May, 1989. This first appeal under section 64 of the Punjab Employee's Social Security Ordinance (X of 1965), calls in question the order dated 17th of January, 1988 passed by Judge, Social Security Court, Lahore whereby he dismissed the appeal filed under section 59 of the Ordinance by the appellant.

2. The appellant is running a restaurant, under the name of M/s. Kwong Fah Chinese Restaurant, in a part of property No.6‑K Main Buileward Gulberg III, Lahore. On the inspection of these premises, it was found by Social Security institute that no contribution was being paid by the appellant in respect of certain employees. A notice was, therefore, issued to the appellant demanding a sum of Rs. 30,240 on account of the unpaid contributions‑for the period September, 1982 to December, 1983. Dissatisfied with this demand the appellant filed a complaint before the Commissioner, Punjab Employees Social Security Institution, Lahore under section 51 of the Ordinance. This complaint was partly accepted and the demand was reduced from Rs. 30,240 to Rs. 11,472 by the Commissioner vide his order dated 11th July, 1987. This order was challenged by the appellant by filing' an appeal before the Social Security Court Punjab, inter‑alia on the ground that the establishment of the appellant had not been notified under section 1(3) of the Ordinance and, therefore, the Ordinance was not applicable to the appellant. This plea was however, repelled by the Social Security Court in view of the notification issued by the Government of the Punjab dated 21st bf October, 1975. The appeal was found to be without any merit and dismissed on 17th of January, 1988. The appellant has now assailed this order by filing the present appeal.

3. The only question which falls for determination in the present appeal is regarding the applicability of the Ordinance. Sahibzada Riaz Anwar, the learned counsel for the appellant has contended that as no notification in terms of section 1(3) has been issued in respect of the establishment of the appellant, the Ordinance was not applicable and no contribution was, therefore, payable by the appellant. Mr. Iftikhar Ahmad Dar, learned counsel for the respondent has however relied upon a notification issued by the Provincial Government on 21st of October, 1975 to contend that establishments of the appellant is a "notified establishment" and as such the appellant was required to pay the Social Security Contribution.

4. According to section 1(3) of the Ordinance, it applies to such areas, classes of persons, industries or establishment from such date or dates as the Government may by notification specify in this behalf. It is thus obvious that, the Ordinance does not by its own force apply to any establishment or industry but its applicability is dependent upon the issuance of a notification by the Provincial Government. The notification dated 21st of October, 1975 relied upon by the respondent reads as under:‑‑ "In exercise of the powers conferred by sub‑section (3) of section 1 of the West Pakistan Employees' Social Security Ordinance, 1965 (West Pakistan Ordinance X of 1965) the Governor of the Punjab is pleased to direct that the said Ordinance shall continue to apply to all covered establishments including those found working within the premises of such establishments under any other name, with immediate effect:' A reading of the above would show that no establishment stands specified in the notification but it provides for continuance of operation of the Ordinance to those establishments to which it was already applicable including those working under any other name in the same premises. The case of the respondent on the strength of this notification is that previously an establishment under the name of M/s. Kouchi Chinese Restaurant was being run in the same premises to which the Ordinance had been made applicable and as the establishment of the appellant Is situated in the same premises it would be covered by the above notification irrespective of the fact whether or not the previous business was owned by the same person. I am, however, not in a position to accept such a wide interpretation of the notification as is being placed by the learned counsel for the respondent. Section 1 (3) of the Ordinance makes the issuance of a notification a condition precedent to the applicability of the Ordinance and it authorises the Government to specify by Notification establishments, industries, areas or classes of persons to whom the provisions of the Ordinance are to apply. The notification relied upon by the respondent provides that the provisions of the Ordinance shall continue to apply to the establishment previously covered by the Ordinance if working in the same premises, even under a different name. Establishment has been defined in section 1 (11) of the Ordinance as an organisation whether industrial, commercial agricultural or otherwise. In Ballentine's Law Dictionary (Third Edition) organisation has been defined as 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. Similar definition appears in Black's Law Dictionary (Fifth Edition) at page

991. Read in the light of above definitions it becomes abundantly clear that the notification continues to apply, to an establishment so long as the organisation i.e. the entity remains the same notwithstanding any change in its nomenclature or business. If however the organisation itself undergoes a change and becomes different in character or composition, it would not fall within the purview of the notification in question oven though it may be carrying on the same business in the same premises. The case of the appellant in the present case, was that the organisation being previously run under the name of M/s. Kouchi Chinese Restaurant was a separate entity with which the petitioner had no concern 'or connection. The Social Security Court proceeded to hold that the Ordinance was applicable to the appellants only on the ground that the restaurant was working in the same premises in which Kouchi Chinese Restaurant was run. This fact, as already held, was by itself not conclusive and the other aspect of the matter as to whether or not the organisation was the same should have been adverted to. Unfortunately however, no finding in this respect was recorded either by the Social Security Institute or by the Social Security Court. In the circumstances the impugned orders, are clearly not sustainable and the matter will have to be remanded back to the Social Security Court for re-determination. In view of what has been stated above this appeal is accepted, the impugned order of the Social Security Court is set aside and the appeal of tile respondent is remanded for its decision afresh in accordance with law keeping in view the observations made in this judgment. A.A./K‑208/L Case remanded.