1994 PLP 169 (PLC)

(The rest of the section is not reproduced as it has no relevance to the point in issue). The Social Security Institution was obviously aggrieved by such order, therefore, it filed a petition before the Supreme Court. The Supreme Court in its judgment dated 20‑10‑1987 which is reported as Sindh Employees' Social Security institution v. Dawood Cotton Mills Ltd. (PLD 1988 SC 1) declined to concur with the view taken by the learned Single Judge of the High Court for the following reasons:‑‑ "With respect, we do not agree with the learned Judge in the High Court. The provisions relevant for the present discussion of subsection (4) of section 20 reads as follows:‑‑ `no contribution shall be payable on wages which are in excess of rupees twenty per day'. "It does not require or permit the exclusion of `an employee' vis‑a‑vis the contribution simply because he is receiving more than Rs.20 as wages per day. On the other hand, a more natural construction of this provision would mean that the amount `in excess' of Rs.20 per day paid as `wages' to an `employee' would not qualify for contribution to the Institution, i.e. the amount corresponding to the excess. Therefore, if an employee was getting Re.l in excess of Rs.20 per day as wages, contribution would be payable on the wages up to Rs.20 per day; but no contribution would be payable on the excess wages, i.e. Re.l per day. Thus interpreted there would be no clash between the definition of `employee' as contained in section 2 and section 20(4)(a) of the Ordinance. In doing the proper exercise for discovering whether any amount payable as wages is liable to be subjected to the contribution, it would first have to be seen whether the employee falls within the definition as contained in section 2(8). After this, if it is found that a certain employee is covered by the definition the liability to the contribution would have to be determined under section 20(4)(a) read with the other provisions of the relevant law which deal with the amount of wages payable to an employee."

3. After the said judgment, the petitioners who have filed the present petition, received letters from the said Institution, the respondent No. 2 in this case, calling upon them to pay contributions in respect of secured persons in accordance with the rule laid down by section 20(4)(a) of Ordinance X of 1965. The petitioners were informed that in the light of the principles laid down by the said judgment of the Supreme Court, for the purpose of payment of contributions by the petitioners, the daily wages would have to be calculated in accordance with the provisions of the Ordinance and accordingly contributions would be payable on the wages up to Rs.60 per day but no contribution would be payable on the part of the employer in case of wages which were in excess of Rs.60 per day. It is pertinent to point out that section 2o has, in the meanwhile, been amended and the word "sixty" had been substituted in place of the original word "twenty". In case of some of the petitioners, demands have been received from respondent No. 2 even in respect of employees whose monthly wages exceed one thousand and five hundred which excludes them from the definition of "employee" in the Ordinance. In case of failure to pay, the petitioners have been threatened with coercive action by recovery of the amount demanded, as arrears of land revenue.

4. The petitioners have, therefore, challenged such demand by respondent No. 2 as being in violation of the provisions of Ordinance X of 1965 and ab initio void and without lawful authority.

5. Subsection (1) of section 20 which has been reproduced earlier in this judgment, clearly indicates that the employer is liable to make contributions to the Institution in respect of every employee, whether employed by him indirectly or through any other person. The term "employee" has been defined by section 2(8) of the said Ordinance as under:‑‑ "(8) `employee' means any person working, normally for at least twenty four hours per week, for wages; in or in connection with the work of any industry, business, undertaking or establishment, under any contract of service or apprenticeship, whether written or oral, express or implied but does not include‑‑ (a) persons in the service of the State, including members of the Armed Forces, Police and Railway servants; (b) persons employed in any undertaking under the control of any Defence Organisation or Railway administration; (c) persons in the service of a local council, a municipal committee, a cantonment board or any other local authority; (d) any person 'in the service of his father, mother, wife, son or daughter, or of her husband; (e) Omitted by Ord. IX of 1972, section 2, First Schedule. (f) any person employed on wages exceeding one thousand five hundred rupees per mensem;' The Supreme Court, in the case of Sindh Employees' Social Security Institution, which has just been referred to by us in this judgment, removed the ambiguity, if any, by clearly expounding the provisions of section 2(8) and 20(4) of Ordinance X of 1965. The judgment of the Supreme Court leaves, no room for doubt that while determining the question, whether any amount payable as wages is liable to be subjected to contribution it would first have to be determined whether the person in respect of whom contributions are payable, falls within the definition of "employee" as contained in section 2(8) of the aforesaid Ordinance. The observations made by the Supreme Court, earlier reproduced in this judgment, therefore, make it abundantly clear that section 20(4)(a) of the said Ordinance is to be interpreted in harmony with section 2(8) of the Ordinance and section 20(4)(a) was never meant either to enlarge or control the definition of `employee' given in section 2(8). Consequently, if the employer is compelled by the respondent No. 2 to make contributions in respect of persons whose wages exceed rupees one thousand and five hundred per mensem, the employer can raise a valid objection in this regard because such action no doubt, would be in violation of the relevant provisions of Ordinance X of 1965.

6. However, this is only one aspect of the matter because the paramount question is, whether the petitioners have locus standi to maintain the present petition. The Provincial Employees' Social Security Ordinance, 1965 provides for a comprehensive procedure whereby redress can be sought by an aggrieved person in regard to determination of questions relating to claims made by the institution. Section 57 of the said Ordinance provides that when any question or dispute arises, whether any person is a secured person within the meaning of the Ordinance, or where the rate of wages or average daily wages of a secured person for the purposes of the said Ordinance are in dispute, or dispute exists in respect of the rate of contribution payable by an employer in respect of an employee etc., the matter is to be decided by the Institution in the manner laid down in the Regulations made under the said Ordinance. Sections 59 and 64 of the said Ordinance provide for an appeal by an aggrieved person to the Social Security Court and the High Court, respectively. The Ordinance, therefore, provides for an adequate machinery for seeking redress of a grievance by an aggrieved person. In such a case there equally efficacious remedy exists under a statute for redress of the grievance, Constitutional petition is not to be entertained. As it has been pointed out earlier that, except for a few cases, where the petitioners have received from the respondents a notice of demand to pay, in case of majority of the petitioners, a demand notice has yet to be received by them. However, even in cases, where a demand notice has been received from the respondents, in case the petitioners are aggrieved, resort can be had by them to the provisions of the said Ordinance which, as just pointed out, provide for an equally efficacious relief for the employer. However, it may once again be clarified that contributions can be demanded from the employer only in respect of an "employee" as provided by section 20(4) of the said Ordinance. We are, therefore, of the view that the petitioners should have first exhausted the remedy as provided by the said Ordinance.

7. In the result, subject to the observations made by us in these petitions, these petitions are dismissed. The parties are left to bear their own costs. H.B.T./A‑1417/K Petitions dismissed.