2026 PLP 132 (PLC)

SALAHUDDIN PANHWAR, J.

Through instant petition, the petitioner Trust who is providing medical treatments facilities in Karachi is aggrieved against blocking of online portal through which petitioner was depositing the amount of contribution to EOBI/respondent which were deposited upto 2023 as per enhanced rate. However, the enhanced rates were declared unlawful by Apex Court in the case of Welfare Funds, Ministry of Human Resources Development Islamabad and others v. East Pakistan Chrome Tannery (Pvt.) Limited and others (PLD 2017 SC 28), but the respondents even after the said judgment is continuously charging the amount by issuing Circulars as detailed in the petition and according to the petitioner such act of the respondents is in contravention of the judgment of the Apex Court, hence is liable to be declared null and void ab-initio. Thus, it is prayed as under: A. That to direct the respondents Nos.2 to 4 to abide by the Judgment of the Hon'ble Supreme Court of Pakistan (PLD 2017 SC 28) and receive the payment @ Rs. 170 per employee/ per month, according to Section 9 of the EOBI Act, 1976 which is in field i.e. prior to the amendments made in it through the Finance Acts, 2005, 2006, 2007 and 2008. B. That to direct the EOBI to reimburse the differential amount of Rs.246,661,254/- (Two Hundred Forty Six Million, Six Hundred Sixty One Thousand and Two Hundred Fifty Four Rupees Only) paid as contribution by the petitioner. C. That to Declare that the employer's liability to pay contribution is governed by the provisions of The Employee Old Age Benefit Act, 1976 without in any way being influenced by Amendments introduced by the Finance Acts, 2005, 2006, 2007 and/or 2008. D. That to declare that the Circular No. 03 of 2019 to 2020 dated 09.12.2019, Circular No. 6 of 2023 dated 18.05.2023 and Circular No. 1 of 2023-2024 dated 09.08.2023 issued by Respondent No.2 are in contravention to the judgment of the Honourable Supreme Court i.e. PLD 2017 SC 28 and The Constitution of Islamic Republic of Pakistan, hence null and void ab initio. E. That to suspend the operation of the (1) the Circular No. 03 of 2019 to 2020 dated 09.12.2019, (2) Circular No. 6 of 2023 dated 18.05.2023 and (3) Circular No. 1 of 2023-2024 dated 09.08.2023 issued by Respondent No.2 till the disposal of the instant Constitutional Petition as they are in contravention with the Judgment of the Honourable Supreme Court i.e. PLD 2017 SC

28. F. That to direct the Respondents to unblock the online EOBI portal of the petitioner and to resume operations till the disposal of the instant Constitutional Petition. G. Costs of Petition. H. Any other relief which this Hon'ble Court may deem fit and proper.

2. In response thereof, the respondents appeared through their counsel and filed comments to the petition.

3. Per learned counsel for the petitioner Employees Old Age Benefit Act, 1976 was promulgated wherein it was mentioned under Section 47(h) that it shall not apply to any person employed on wages exceeding Rs.1500/- per month. However, it was amended time to time and it existed in 2002. Section 2(p) of the Act, 1976 defines wages, however, section 9, provided rates and assessment. According to the learned counsel for the petitioner, minimum wages limit was enhanced to Rs.1500/- through Labour Law Amendment Act, 1984, which was further increased to Rs.3000/- through Labour Law Amendment Act, 1994. However, in the Finance Act, 2005 several amendments were made in Act 1976 and clause 2(p) of the Act, 1976 was also amended and it was defined that Wages means the rates of wages as declared under the Minimum Wages for Unskilled Worker Ordinance, 1969. Finance Act, 2005 also amended Section 9 of the Act, 1976 and omitted its first provision. It is further contended that through Finance Acts, 2006, 2007 and 2008 further amendments were made in the Act, 1976, which amendments were challenged before Apex Court and the Apex Court vide judgment reported as PLD 2017 SC 28 declared the amendments made in 1976 Act through Finance Acts, 2005, 2006, 2007 and 2008 as ultra vires, null and void; that after the aforesaid judgment of the Apex Court, the liability of the employer, is governed by EOBI Act 1976 as it existed before the Amendments made through the Finance Acts, 2005, 2006, 2007 and 2008, thus contribution which is to be paid by the petitioner is limited to Rs.170/- per employee/per month i.e. @ 5% of Rs.3000/- as per Section 9 of the EOBI Act, 1976; that the respondents charged the petitioner Rs.750/- per employee/per month @ 6% of Rs.13000/- according to Circular No.01/ 2015- 2016 and thus have received 'differential amount of Rs.246,661,254/- from the petitioner, which is in sheer violation of the judgment passed by the Apex Court; that decision of the Apex Court has binding effect under the Constitution, but the respondents are acting in clear violation; that online portal was also blocked through which the petitioner was depositing the amount of contribution to Employees'. Old Age Benefits Institution (EOBI), which were being deposited upto 2023 as per enhanced rate; that respondents are continuously charging amount by issuing Circulars from the year 2010 as mentioned in prayer clauses 'D' and 'E' above; that the impugned exercise of deleting the provisions of Section 9 of the Act of 1976, through Finance Act is unconstitutional and illegal, as it violates Articles 2-A, 3 and 4 of the Constitution of the Islamic Republic of Pakistan, 1973, which entails that due process must be followed in all legislative and executive exercises. It would be further pertinent to mention here that a similar proposition also came under consideration before this Court in the case of Soneri Bank Limited through Jaffar Ali Khan and others v. Federation of Pakistan through Secretary Law and Justice Division, Pak Secretariat Islamabad and others [2013 PLC 134]. It is further case of the petitioner that in view of the aforesaid judgment and the order dated 20.12.2023 passed by Islamabad High Court in W.P. No. 3274/2022 (Phoenix Security Services (Private) Limited, and another v. Employees Old age Benefits Institution and others), the petitioner started to deposit EOBI contribution as per the rates applicable in view of the aforesaid judgment and order, however, according to the petitioner, the respondents are not accepting such amount and blocked the online portal of the petitioner and also issued notices for recovery of differential amount, whereas, the petitioner has also filed appeal against such determination of amount by EOBI in violation of law as well as aforesaid judgment and order, as such prayed that petition may be allowed.

4. In contra, counsel for the respondents contended that contributions were levied on the basis of rates wages declared under the Minimum Wages for Unskilled Workers Ordinance, 1969, that the Parliament made amendment in the Ordinance, 1969 and declared the minimum wages for unskilled workers at the rate of Rs.13000/- from July 2015 onward with the retrospective effect from 2012-2013 declaring the rates of minimum wages in respective years accordingly; that EOBI is not the relevant authority to enforce the aforesaid Ordinance, but only has to recover monthly contributions under Sections 9 and 9B of the Act 1976 on the basis of wages by the Federal Government under the applicable statute which in fact is in compliance of the Act, 1976; that the rate of contribution has a direct nexus with rate of pension; thus EOBI would not be able to pay the pension on revised rates if it could not recover contribution on revised rates; that minimum wages under the above legislation could not be declared when the labour subjects enumerated under Clauses 26 and 27 of the concurrent legislative list were devolved which resulting in the 18th Amendment in the Constitution which restricted EOBI to enhance the rate of contributions and rate of minimum pension accordingly. However, the Provinces continued to make declaration in their respective legislations enhancing the rate of minimum wages to Rs.13000/- per month and presently the rate of minimum wages in the provinces is not less than Rs.32000/-; that Parliament declared rate of minimum wages in the Ordinance, 1969 through the legislation and EOBI in pursuance of amendment has asked all the employers/ establishments to pay the contributions at the rate of minimum wages as declared in the Ordinance, 1969 which is already prevailing in the Province of Sindh; that after amendment made in Ordinance, 1969 by Minimum Wages of Unskilled Workers (Amendment) Act, 2016, Circular No.1/2015-16 was issued which was challenged in various Courts of the country, however, this Court dismissed the petitions filed by employers while holding that such employers cannot take plea that this is applicable only for Federal Capital Territory of Islamabad when it shows that such amendments are in the Act itself; that various amendments in Act, 1976 were incorporated through Finance Acts by the Legislature which later on, were struck down by Apex Court; that the judgment passed by this Court in C.P.No.D-1588/2012 was upheld by the Apex Court which was reported as PLD 2017 SC 28, whereby it was inter alia held that the amendments made in the Act, 1976 through Finance Acts, 2006 and 2008 were not made lawfully; that Lahore, High Court while relying upon the judgment of the Apex Court also declared amendments made in the Act, 1976 through Finance Act 2005 as unlawful and of no legal effect; that judgment of the Apex Court is under review before the Apex Court. It is further contended that after nullifying the amendments made through Finance Acts, 2005 to 2008 in the Act, 1976, according to respondents, the provision of Act, 1976 reached at the position before the amendment of 2005, thus the definition of wages as per minimum wages of Ordinance, 1961 became valid; that according to said definition of Ordinance, 1961 the current wages are Rs.32000/- and the petitioners are bound to pay 6% of contribution of said wages per month/ per employer being 5% contribution and 1% from the insured person in accordance with Sections 9 and 9B of the Act, 1976, which is on the strength of Notification dated 02.11.2023 passed by Sindh Government under Section 6 of Sindh Minimum Wages Act, 2015 which was passed in keeping in view the 1961 legislation as initially referenced by Act, 1976; that calculation of pension would be made on the strength of Rs.32000/- wages per month; that petition is not maintainable as remedies available under Sections 33 to 35 of Act 1976 have not been exhausted. It is further contended that this Court dismissed the petition (C.P.No.D-1995/2016, M/s Dairy Land Private Limited v. Federation of Pakistan) and other connected petitions while holding that the same were not maintainable; that after 18th Amendment, it is the prerogative of the Provinces to fix minimum wages. Counsel for the respondents, nevertheless contended that they are claiming the contribution of workers as per Section 9, in which the maximum cap is Rs.3000/-,that judgment of the apex court is not dealing with the present issue, as the amendments in the Labour Court were made by Act No. 11 of 1994, Labour Laws (Amendment Act, 1994). Hence, the relevant clause has not been inserted through a money bill. The judgment of the apex court relates to the money bill. Therefore, the petitioner has filed this petition only to delay the due payment of the workers within his establishment. Lastly, it is contended that instant petition is also liable to the dismissed being not maintainable.

5. We have thoroughly reviewed the arguments presented by the respective counsel for both parties and have meticulously examined the record.

6. The issue at hand is whether the petitioner is obligated to pay Rs. 170/- per employee per month in accordance with Section 9 of the Employees' Old-Age Benefits Institution (EOBI) Act, 1976, or as per the Amendment Act of 1994. It is pertinent to reproduce Section 9 of the 1976 Act, which provides as follows: "

9. Rates and assessment. - (1) On and form the first day of July 1976 contribution shall be payable every month by the employer to the Institution in respect of every person in his insurable employment, at the rate of five percent of his wages in the prescribed manner; Provided further that no contribution shall payable in respect of an insured person's wages as in excess of three thousand rupees; Provided further that no contribution shall payable in respect of an insured person who is in receipt of old-age pension under this Act or has attained the age of sixty-years, or fifty-five years in the case of a woman. Provided also that in case an employer opts for self-assessment scheme, he shall be liable to pay fixed amount of one hundred and fifty rupees in respect of every person in his insurable employment irrespective of his wages or emoluments, and the wages for the purpose of calculation of benefits shall be treated as three thousand rupees per month. (2) Where any insured person does not receive any wages from the employer for any period, the Institution shall, subject to regulations, determine the amount of wages with reference to which the contributions shall be computed. (3) Notwithstanding any agreement to the contrary, the employer shall not deduct from the wages of an insured person or otherwise recover from him any portion of employer's share of contribution. (4) Where the mode of payment of remuneration, whether in cash or in kind, makes it difficult to determine the amount of wages for computing the contribution, the Institution may subject to regulations, determine such wages."

7. Upon review of the aforementioned section, it is evident that the amendment in question was not made through a Money Bill, but rather through an Act of Parliament. The learned counsel for the petitioner has erroneously cited Section 9 of the Employees' Old-Age Benefits Act, 1976 ("EOBI Act"). The definition of "wages" is provided in the Ordinance of 1969 under Section 2(p) of the EOBI Act, 1976, while the Tripartite Wage Board, under the Ordinance of 1961, is vested with the authority to determine the minimum wages payable to workers. However, any revision of wages, as per the Ordinance of 1969, can only be effected through an Act of Parliament. In compliance with this, the Board determined the minimum wage for workers at Rs. 25,

000. In the case of Workers' Welfare Funds, Ministry of Human Resources Development, Islamabad through Secretary and others v. East Pakistan Chrome Tannery (Pvt.) Ltd. through G.M. (Finance), Lahore and others (PLD 2017 Supreme Court 28), the Supreme Court primarily addressed the legality of amendments introduced through Finance Acts that altered obligations under Various labor and welfare laws, including the Workers' Welfare Fund Ordinance, 1971, and the Employees' Old-Age Benefits Act, 1976. The central legal issue revolved around whether theses amendments could be validly introduced via Money Bills under Article 73 of the Constitution, or whether they exceeded the scope of a Money Bill and should have been subjected to the regular legislative process. The Supreme Court underscored the distinction between a "tax" and a "fee" It held that a tax is a compulsory exaction for general public purposes, whereas a fee is a payment for specific services or benefits. This distinction was crucial because only taxation matters could be introduced through Money Bills. The Apex Court determined that contributions to the Workers' Welfare Fund were not taxes, but fees, as they were payments for the specific benefit of workers, earmarked for welfare purposes such as housing and education. These contributions were not intended to raise general revenue but were directed toward specific uses. Similarly, the Apex Court observed that contributions to the Employees' Old-Age Benefits Fund were also fees, as they were intended to provide particular benefits, such as pensions, to employees, and were not levied for general state revenue purposes. The amendments made through the Finance Acts of 2006, 2007, and 2008 were declared unlawful and ultra vires the Constitution because they were passed through Money Bills. The Supreme Court held that these amendments, concerning contributions and payments of a fee-based nature, did not fall within the ambit of Article 73(2) of the Constitution, which is limited to the imposition, abolition, or regulation of taxes. Therefore, such amendments should have adhered to the ordinary legislative procedure under Article

70. The Honourable Supreme Court ruled that the amendments to the Workers' Welfare Fund Ordinance, the Employees' Old-Age Benefits Act, and other labor-related laws, introduced via the Finance Acts, were unconstitutional. The use of Money Bills for these amendments was improper, as they pertained to fees rather than taxes. Consequently, the facts of the present case are distinguishable from those in the aforementioned ruling. The definition of "wages" provided under the Ordinance of 1961, as incorporated in the Employees' Old-Age Benefits Act, 1976, prior to the amendment effected through the Finance Act of 2005, has been reinstated. This definition must be applied when determining the minimum wages for workers. In Shams Textile Mills Ltd. (1999 SCMR 1477) the Supreme Court held that payments made as social security contributions must not be less than the remuneration prescribed under the Ordinance of 1961. To determine the minimum wage of an-employee, the criteria set forth in the Ordinance of 1961 must be followed. Accordingly, the minimum wage of an employee should align with the wage stipulated under the 1961 Ordinance, particularly concerning the minimum wage established for unskilled workers. The counsel for the petitioner, however, relied on the judgment of the Islamabad High Court in W.P. No. 3274/2022 Phoenix Security Service (Pvt.) Limited, wherein the High Court addressed the applicability of the Employees' Old-Age Benefits Act, 1976, following the 18th Constitutional Amendment. It is important to note that this judgment was challenged by the Employees' Old-Age Benefits Institution (EOBI) through I.C.A. No. 19/2024, and the operation of Islamabad High Court's Judgment was subsequently suspending pending further proceedings.

8. In the case of M/s. Dairy Land (Pvt.) Limited and others, decided on December 3, 2021, and authored by one of us (Salahuddin Panhwar, J), it was held that, undoubtedly, following the 18th Amendment, the subject matter concerning minimum wages falls within the jurisdiction of the provinces. However, as the Employees Old-Age Benefits Institution (EOBI) has not yet been physically devolved for operational purposes to the provinces, the rights of a specific class of individuals-namely, employees as defined under the Employees Old Age Benefits Act of 1976 - cannot be permitted to be undermined. This is particularly pertinent given that the petitioners have not contested the requirement to deposit contributions under the Federal Law. Furthermore, it was determined that the application of the circular, without challenging the vires of the Amendment Act of 2016 under which it was issued, cannot be raised, especially when the matters notified therein pertain directly to the Amendment Act of 2016 itself. For the time being, the Institution is allowed to continue with the existing mechanism for the collection of contributions. It is expedient to reproduce the concluding paragraph as follows: "Further, it is also, prima facie, evident that vires of the Act, 2016 has not been challenged, but the notification, so issued under such Act, impugned. A challenge to application of notification only without assailing the vires of the Act under which the notification has been issued, legally, can't be made, particularly where things notified are with reference to the Act itself. On this count, too, the instant petition (s) are not tenable in law. Accordingly, the petitions are dismissed with no order as to cost".

9. In similar circumstances, in the case of M/s. Matco Foods Ltd. and others v. Federation of Pakistan and others, a Division Bench of this Court dismissed the Petitions with the following pertinent observations: When we see, in such undeniable context, the notification dated 28.04.2022 fixing Rs.25000.00 as minimum wages for unskilled workers, and pursuant to which locking of online portal configured for collecting contributions from the petitioners at the same amount, we find no illegality thereto warranting interference by this court in exercise of discretionary jurisdiction under Article 199 of the Constitution. Particularly, we may add for good measure, when petitioners apparently failed to bring up the matter before the Institution for a decision in terms of section 33 (decisions on complainants, questions and disputes), file review application under section 34 of any such decision, and failed to file an appeal against the decisions either under section 33 or 34 to the Board under section 35 of the Act of 1976. Without invoking equally efficacious remedy against the given grievance, it is settled, the direct approach to this court in constitutional jurisdiction by an aggrieved person in ordinary circumstances is not valid. This, being the position, we do not find any merits in these petitioners and dismiss them without any order as to cost. All the listed petitions along with pending applications are accordingly disposed of .

10. With regard to the maintainability of the petition, it has been placed on record that the petitioner has also filed an appeal before the relevant Tribunal in addition to this petition before this Court, thereby approaching two distinct forums simultaneously. It is a well-established legal principle that once a party elects to pursue an alternative remedy provided under statutory law, the jurisdiction of this Court under the Constitution ordinarily cannot be invoked. Reliance is placed on the doctrine enunciated by the Supreme Court of Pakistan in the case of Dr. Abdul Nabi, Professor, Department of Chemistry, University of Balochistan, Sariab Road, Quetta v. Executive Officer, Cantonment Board, Quetta (2023 SCMR 1647), wherein it was held that: "The extraordinary jurisdiction under Article 199 of the Constitution is envisioned predominantly for affording an express remedy where the unlawfulness and impropriety of the action of an executive or other governmental authority could be substantiated without any convoluted inquiry. The expression "adequate remedy" signifies an effectual, accessible, advantageous and expeditious remedy which should also be remedium juris i.e. more convenient, beneficial and effective. To effectively bar the jurisdiction of the High Court under Article 199 of the Constitution, the remedy available under the law must be able to accomplish the same purpose which is sought to be achieved through a writ petition. This extraordinary jurisdiction is provided as remedy to cure an illegality which can be established without any elaborate enquiry into disputed facts. In the case of Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others (2011 SCMR 1813), this Court held that the question of adequate or alternate remedy has been discussed time and again by this Court and it is well settled by now that the words "adequate remedy" connote an efficacious, convenient, beneficial, effective and speedy remedy and also articulated the guiding principles to be considered by the High Courts in order to determine the adequacy of the alternate remedy that if the relief available through the alternative remedy in its nature or extent is not what is necessary to give the requisite relief within the meaning of Article 199 and the law has prescribed any remedy that can redress that category of grievance in that way and to the required extent".

11. All judgments cited by the learned counsel for the petitioner pertain to adjudications concerning wages, which were contested by various institutions. In the present case, the issue of wages is not under consideration. Regarding contributions, Section 9, of the Employees Old-Age Benefits Institution (EOBI) Act, 1976, is unequivocal. The wages have been increased and duly notified by both the Federation and the Provinces, currently established at approximately Rs.35,000/-. However, the Employees' Old-Age Benefits Institution (EOBI) has not yet revised its contribution rates to reflect these changes. Consequently, the petitioner's assertion that it will remit Rs. 170/- per month is illogical, as the aforementioned section pertains to the assessment of contributions based on applicable monthly salaries. The pre-amendment contribution rate of Rs. 170 per employee per month is now obsolete and no longer legally applicable. The EOBI is mandated to revise the rates in alignment with the newly applicable wages across the country, implementing a uniform policy that compels employers to remit contributions in the interest of their workers, whose hard-earned income sustains their livelihoods and status.

12. In the light of the foregoing reasons, present Constitution Petition, lacking substantive merit, is hereby dismissed. The parties to the Petition shall bear their own costs associated with these proceedings. These are the reasons for the short order announced on 22nd August 2024. SA/Z-18/Sindh Petition dismissed.