P L D 1975 Supreme Court 32 (PLP)

S. A. Sarwana, Advocate Supreme Court instructed by A. Aziz Khan, Advocate-on-Record for Appellants. Khurshid Anwar Shaikh, Advocate Supreme Court instructed by Ali Akbar Advocate on-Record for Respondent. Date of hearing: 20th September 1974. MUHAMMAD GUL, J. This appeal, by special leave, raises a question of law of general importance namely, whether a Social Security Court seizin of an appeal under section 59 of the West Pakistan Employees' Social Security Ordinance, 1965 (W. P. Ordinance No. X of 1965) has, in the absence of an express provision in that behalf in the Ordinance, jurisdiction to stay the execution of the order appealed against, during the pendency of the appeal? The question has been answered in the affirmative by that Court and on appeal by the High Court vide its judgment dated 21-8-1973. The appellant herein, is a statutory Institution established under section 3 of the Ordinance, hereinafter called the Institution. The respondent herein is a company incorporated under the Companies Act, 1913, with its head office at Chundrigar Road, Karachi which owns a textile mill at Landhi, a suburb of Karachi. By a notification issued on 28-2-1967, under subsection (3) of section 1 of the Ordinance, the Ordinance was made applicable to the respondent-Company with effect from 1-3-1967. The effect of this notification was that the respondent-company became liable under section 20 of the Ordinance to pay to the Institution "contribution in respect of every employee whether employed by it directly or through any other person On 15-3-1973, the Institution wrote to the respondent-Company requiring it to pay a sum of Rs. 77,258.40 on account of contribution in respect of its workers and employees, employee in its fair price shop, canteen and at its head office, and due since March 1967, together with a further sum of Rs. 37,642.32 on account of penalty for the respondent's failure to pay the contribution under section 20 within the due date. After the exchange of some further correspondence, the appellant sent a certificate regarding the amount due to the Assistant Collector with the request to recover the amount as arrears of land revenue, as provided in the Ordinance. Aggrieved by the above proceedings, the respondent Company filed an appeal before the Social Security Court under section 59 of the Ordinance. Alongwith the memorandum of appeal, the respondent also made an application purporting to be under Order XXXIX, rule 1, C. P. C. for the stay of recovery proceedings pending a decision in the appeal filed by it. The Social Security Court by its order dated 9-6-1973, stayed the recovery of the amount subject however, to the condition that the respondent-Company shall furnish bank guarantee. It is not disputed that the condition, with regard to the bank guarantee has been complied with. The Institution however, filed an appeal against the above order, in the High Court under section 64 of the Ordinance, to question the jurisdiction of the Social Security Court to stay the recovery of the amount in respect of which demand notice has been issued by the Institution, under the Ordinance. The appeal was dismissed by the High Court, by the impugned order, against which the Institution has filed this appeal by special leave. In support of the appeal, Mr. Sarwana, learned counsel for the appellant, basing himself on the provisions of section 65 of the Ordinance, argued that under the Ordinance, the Social Security Court is empowered to grant interim relief in one case only, namely, where the Institution itself is the appellant in the High Court against the order of the Social Security Court. The section reads: "Stay of payment pending appeals.

Where the Institution has appealed against an order of a Social Security Court that Court may, and, if so directed by the High Court shall, pending the decision of the appeal, direct that the payment of any sum required to be paid by the order appealed against shall be withheld." Under the above provision, the Social Security Court, may, and if so directed by the High Court, shall, during the pendency of the appeal, direct that the payment of the sum required to be paid under the order appealed against, shall be withheld. The argument therefore, was, that barring the solitary case covered by the section, the Social Security Court is powerless to suspend the operation of the order appealed against, during the pendency of the appeal before it. In further support of the argument, reference was also made to section 62 of the Ordinance, which confers jurisdiction of an ordinary civil Court upon the Social Security Court for the limited purposes specified therein, that is to say, for the summoning of the witnesses, compelling the discovery, production of documents etc. It was argued that by that section, It was not the intention to bring the Social Security Court on a par with an ordinary civil Court, so as to make it possible to the former to invoke the provisions of Order XXXIX, rules I and 2, C. P. C. nor it can lay claim to any other provision of law to suspend the execution of the order appealed against. The argument proceeds on the maxim expressio unius exclusio alterius, which enshrines the well established principle of interpretation that when a statute mentions one or more things of a particular class, it may be regarded as silently excluding other things of the same class or similar classes not| expressly mentioned. But the rule is not absolute in its application. It is equally well established principle that in construing a statute the construction which is most agreeable to justice and reason is to be preferred. See Maxwell on the Interpretation of Statutes, 1969 Edn., Chapter 10, which sets out an impressive array of ancient and modern precedents in which Courts, by adhering to the above principle and without any violence to the language of the statute, have by liberal interpretation averted what would have been otherwise inconvenient or unreasonable results. Therefore, if the choice is between the two interpretations. the narrower of which would fail to achieve the manifest purpose of the legislation, one should lean against a construction B which would reduce the legislation to a futility and rather accept the bolder construction based on the view that the Legislature would legislate only for the purpose of bringing about effective result. Bearing these principles in mind, the question would naturally be to find out the scope or the ambit of the appellate jurisdiction of the Social Security Court under section 59 of the Ordinance. The section reads: "Any person aggrieved by the decision of the Institution under section 57 or on a review under section 58, may appeal to the appropriate Social Security Court." The above is a general provision, which is not qualified by any limitation. It was observed in the Colonial Sugar Refining Co. v. Irving 1905 AC 369, that a right of appeal where it exists, is a matter of substance and not mere procedure. It is not disputed that the Social Security Court, on an appeal brought before it under the above section can set aside the order appealed against in its entirety or may grant even partial relief depending upon the facts of a particular case. The question therefore, would really be, whether there is any limitation on the power or jurisdiction of the Social Security Court to grant partial redress. This partial redress may be as respects the quantum of liability or may be in point of time, when the liability under order made be the Institution may have to be discharged. In other words, whether who the Social Security Court can reverse the order appealed against, in it entirety and thus grant complete redress to the appellant before it, which ordinarily would happen at the final stage in the appeal, the Court will have no power to suspend the operation of the order during the pendency of the appeal, even if the circumstances of the case would eminently justify it? To accept any such proposition, would indeed be to whittle down the substance of the Courts' appellate jurisdiction, which would be scarcely just or reasonable. Strictly speaking, the matter does not fall to be governed by Order XXXIX, rule 1, C. P. C. In our opinion, the power to grant interim relief by suspending wholly or partially, the operation of the order appealed against is reasonably incidental or ancillary to the main appellate jurisdiction. It would be wrong to regard the exercise of this incidental or ancillary power as enlargement of the appellate jurisdiction of the Court. Mr. Sarwana s argument, that in the absence of any provision in the Ordinance, corresponding to Order XXI, rule 26, or Order XXXIX rules 1 and 2, C. P. C. the Social Security Court will have no power to suspend the recovery of the amount of contribution either wholly or partly also overlooks the true nature of the 1965 Ordinance which is essentially a substantive law and is not designed to lay down the procedure in detail to be followed by the Institution or the Social Security Court. If the argument of the appellants' learned counsel was to stretched to its logical conclusion then it would lead to a number of absurdities. For instance, there is no provision corresponding to Order XVII, rule 1, C. P. C. or section 344, Cr. P. C. to enable the Social Security Court to adjourn the case to a future date. It would indeed, be absurd to suggest that in the absence of any such provision, the Social Security Court will have no power to adjourn a case. This is sufficient to demonstrate the futility of the argument. However, that may be, this Court's recent judgment in Commissioner of Khairpur Division v. Ali Sher Sarki P L D 1971 S C 243, is directly in point. That case arose out of an appeal against the order of a Tribunal constituted under West Pakistan Control of Goondas Ordinance, 1959, to the Commissioner under section 18 ibid. The question that arose for decision was, whether the Commissioner, in the absence of an express provision in that behalf, could suspend the operation of the impugned order during the pendency of the appeal before him. The Commissioner had declined to suspend the order in that case on the ground that section 18 of the Ordinance, apart from empowering the Commissioner to entertain and decide the appeal, did not expressly empower him to suspend the operation of the impugned order during the pendency of the appeal. The matter was then agitated in the High Court in certiorari and ultimately brought to this Court in appeal, and it was held that the power of the Divisional Commissioner to grant interim relief during the pendency of the main appeal before him was "ancillary" to the main appellate jurisdiction expressly conferred under section

18. This judgment in our opinion concludes the matter. It is however, important to point out that the power to grant interim relief, in this case is "ancillary or incidental" to the main appellate jurisdiction expressly conferred by the statute. This should not be confused with what is sometimes, claimed as the "inherent" jurisdiction of a Court, a claim which is no longer tenable in view of clause (2) o Article 175 of the Constitution. What is "inherent" is an inseparable incident of a thing or an institution in which it inheres. In the instant case, on the other hand, the power to grant interim relief is exercisable by the Social Security Court, not because of the inherent character or the attribute of the Court itself, but only to enable it to exercise its appellate jurisdiction expressly conferred upon it more effectively and in accordance with what indisputably are requirements of justice and reason. For the foregoing reasons, the appeal fails and is dismissed with costs. K. B. A. Appeal dismissed.