P L D 1976 Karachi 1228 (PLP)

This Revision Petition is directed against the order of the First Addl. District Judge, Karachi, whereby he dismissed the appeal of the applicants and upheld the order of VII Civil Judge, First Class, Karachi, rejecting under Order VI1, rule 11, C. P. C. the plaint filed by the applicants on the ground that the civil Courts have no jurisdiction in the matter.

2. The applicants are a company, incorporated under the Companies Act, having their Head Office in Karachi and their plant at Dumlotte. Respondent No. 1 levied contribution on the applicants under the provisions of the West Pakistan Employees' Social Security Ordinance, 1965 (hereinafter referred to as the Ordinance). The applicants resisted the demand on the ground that they were not liable to pay the contribution and, accordingly, it was sought to be recovered from them as arrears of land revenue and a warrant of attachment was issued against them. The applicants thereupon filed a plaint in the civil Court challenging the right of respondent No. 1 to levy the contribution. The plant was rejected under Order VII, rule 11, C. P. C. The applicants went up in appeal against the said order to the District Court, but the learned Additional District Judge dismissed the same on the ground that the only remedy available to the appellants was to go up in appeal under section 59 of the Ordinance to the Social Security -Court or to apply to the Social Security Institution (hereinafter referred to .as the Institution) under section 58 of the Ordinance to review its orders.

3. Although the Ordinance extends to the whole of the territories which e. comprised in the Provinces of W. P., except the tribal areas the pro visions are applicable only to such areas, classes of persons, industries or establishments, from such date or dates and with regard to the provisions of such benefits as may be notified by the Government under section 1(3) of the Ordinance. It is not disputed by the learned counsel for the applicants that tile requisite notification under the said section has been issued by the Government in respect of the applicants.

4. Section 20 of the Ordinance enjoins an employer to whom provisions of the Ordinance are made applicable to pay to the Institution in respect of every employee of his contribution at such time, at such rate and subject to such conditions as may be prescribed. The rates of contribution and the method thereof are provided under the W. P. Social Security (Con tribution) Rules, 1966, and the W. P. Social Security (Contribution) Regulations, 1967. Matters relating to contributions and other dues payable or recoverable under the Ordinance are required to be decided by the Institution, as provided in section

57. The Institution is empowered to review its decisions given on any new fact being brought to its notice. An appeal from the decision of the Social Security Institution is provided under section 59 to the Social Security Court constituted under section

60. Section 61 of the Ordinance provides that a Social Security Court shall have exclusive jurisdiction to hear and decide appeals from the decisions of the Social Security Institution under section 57 or reviews under section 58.

5. It has been contended by the learned counsel for the applicants that wince there is no provision in the Ordinance specifically ousting the jurisdiction of the civil Courts in the matter of levying contribution under the Ordinance, the civil Courts are competent to entertain suits regarding such levies, specially if the levy is not in accordance with the provisions of the Ordinance. He pointed to the difference in the provisions of section 74 of the Ordinance, which specifically bars the jurisdiction of the civil Courts in the matter of claims for employment injury covered by the Ordinance, and the provisions of sections 57, 58 and 61 which contain no such bar, and urged that if it had been the intention of the Legislature to bar the jurisdiction of the civil Courts in respect of levy o contributions and other matters referred to in section 57 of the Ordinance, then similar language would have been used in sections 57, 58 and 61 as in section 74 of the Ordinance. He has further contended that even in those cases where the jurisdiction of the civil Courts is specifically barred, they can interfere and entertain suits if the authority empowered under the statute acts in material disregard of the provisions -of the statute or exercises powers not vested in it under the statute. In 6upport of his contention, the learned counsel relied on tile case of Mohammad Ibrahim and others v. Fateh Mohammad, Liquidator, Ghausia Multipurposes Cooperative Social Ltd. (P L D 1960 Lah. 1106). In that case, Kaikaus, J. held that "although section 42(6) of the Co-operative Societies Act, 1912, bars the jurisdiction of the civil Courts in respect of any matter connected with the dissolution of a registered society and although under Rule 26 of the Punjab Cooperative Societies Rules the liquidator is entitled to determine the contribution to be made by members and past members, yet the jurisdic tion of the civil Courts is never altogether barred, because even in cases where there is a provision as to the exclusion of civil Court's jurisdiction, tile Courts are entitled to see whether the authority concerned acted in .compliance with law. It may, however, be pointed out that the said judgment dealt with a situation where the liabilities arose under the normal law and, not, as in the present case, under a special law, which has not only created the liabilities but has provided a special forum for their enforcement and remedy in respect of them.

6. The law regarding ouster of jurisdiction of civil Courts is summarised by Willes J. in Wolverhampton New Water Works Co. v. Hawkesford ((1859) 6 C B (N S) 336) as follows : "There are three classes of cases in which a liability may be established founded upon a statute. One is, where there was a liability existing at common law and that liability is armed by a statute which given a special and peculiar form of remedy different from the remedy which existed at common law : there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy ; there, the party can only proceed by action at common law. But there is a third class, viz. where a liability not existing at common, lacy is created by a statute which at the same time gives a special and particular remedy for enforcing it. The remedy provided by the statute must be followed and it is not competent to the party to pursue the course applicable to cases of the second class."

7. The view taken by our Courts is similar to the one taken by Willies,. J. in Masud Bari and others v. Abdul Aziz (P L D 1967 Kar. 55). Qadeeruddin Ahmad, J., after referring to a number of authorities on the subject agreed with the following proposition which was pressed before him : "Where a special tribunal out of the ordinary course is appointed by an Act to determine questions as to rights which are the creation of that Act, then, except so far as otherwise expressly provided or necessarily implied that tribunal's jurisdiction to determine those questions is exclusive. The jurisdiction of the Courts can be excluded not only by express words but also by implication...

8. As already indicated the Ordinance not only makes the employers, to whom the provisions thereof are made applicable. liable to pay the con tribution levied under . section 22, but also provides a special forum where the questions relating to payment of contribution and other matters can be determined. It is, therefore, clear that only the Social Security Courts constituted under the Ordinance have jurisdiction in the matter of contributions payable by the employers and other matters referred to in section 57 of the Ordinance and that the jurisdiction of the civil Courts is excluded by necessary implication. I accordingly dismiss the revision application with costs. The status quo order dated 30-8-1972 stands vacated. S. Q. Revision Application dismissed.