2015 PLP 226 (PLC)

AMIR HANI MUSLIM, J.

Civil Appeal 56-L of 2009 Facts of the present appeal are that the respondents filed a suit against the appellants in the Court of Civil Judge, Sialkot, pleading therein that the respondents are a registered partnership firm and were paying social security contribution to the appellants on the pretext that they were registered and notified under the provisions of West Pakistan Employees' Social Security Ordinance, 1965 [hereinafter referred to as 'the Ordinance']. It was further pleaded that in fact they were not registered under the Ordinance and were contributing towards social security on the basis of misrepresentation of the appellants. It was further pleaded that on 6-10-1986 a demand notice for payment of Rs.95,070, without affording any opportunity of hearing, was issued by the appellants to the respondents, however, on scrutiny of the accounts by the Officers of the appellants the said amount was reduced to Rs.13,960 which was duly paid through a cheque dated 29-10-1986, which was handed over to the Area Officer of the appellants. The respondents pleaded that the appellants received the cheque of Rs.13,960 without any objection or protest, therefore, notice dated 6-10-1986 demanding Rs.95,070 was void and ineffective upon their rights. The respondents pleaded that the notice dated 21-3-1987 demanding production of record and payment of remaining amount is without lawful authority and issued without affording any opportunity of hearing to the respondents. They further pleaded that the respondent-firm is not registered with the Social Security Institution; hence were not obliged to pay any contribution and the appellants be restrained to receive or coerce to pay any contribution. The respondents prayed that notices dated 6-10-1986, 12-10-1986, 21-1-1987 and 21-3-1987 be declared coram non judice, null and void and ineffective upon the rights of the respondents.

2. The appellants filed written statement taking legal and factual pleas. Out of the divergent pleadings of the parties, the trial Court framed various issues and recorded evidence of the parties. Vide judgment and decree dated 29-3-1993, the trial Court decreed the suit to the extent of declaration and permanent injunction and passed preliminary decree in regard to the rendition of accounts and recovery of amount paid by the respondents.

3. The appellants filed Appeal before the Additional District Judge, Sialkot, which was partly allowed and decree to the extent of rendition of accounts was set aside. Feeling aggrieved, the appellants filed Civil Revision before the High Court, which was dismissed by a learned Single Judge in Chambers, vide impugned judgment dated 9-10-2002. Hence this Appeal, with leave of the Court. Civil Appeal No.57-L of 2009

4. The facts of the case are that the respondents instituted a Writ Petition before the Lahore High Court, Lahore, pleading therein that they are charitable educational institutions at Qilla Didar Singh being run by Faran Educational Trust; that the Government of Punjab vide Notification dated 25-3-1998 notified the respondents as an "Establishment" within the meaning of subsection (3) of section 1 of the West Pakistan Employees Social Security Ordinance, 1965 and on 10-5-2002, issued a notice for payment of social security contribution. They prayed that the Notification dated 25-3-1998 to the extent of the respondents and demand notice dated 10-5-2002 be declared illegal and unconstitutional.

5. The Writ Petition of the respondents was allowed vide impugned judgment dated 6-6-2002. Hence this Appeal.

6. The learned counsel for the appellants has contended that the jurisdiction of the Civil Court and the High Court under Article 199 of the Constitution is barred, as the West Pakistan Employees Social Security Ordinance, 1965, and Provincial Employees Social Security Ordinance, 1965, provide independent remedies under sections 57 to 64 of the Ordinances up to second Appeal before the High Court. He submitted that both the enactments are beneficial, therefore, provisions of both the Ordinances are to be interpreted liberally so as to advance the object of the Ordinances.

7. He contended that the term "Establishment" used in section 2(11) of the Ordinance may be read with the word "otherwise" by applying the principle of ejusdem generis. He submitted that the case of the respondents in Civil Appeal No.57-L of 2009 is fully covered under section 2(11) of the Ordinance, therefore, the impugned judgment of the learned High Court passed in Writ Petition No.8755 of 2002 is liable to be set aside.

8. According to the learned Counsel the term "Establishment" used in Workers Children (Education) Ordinance, 1972, is interpreted by this Court in the case of Holy Family Hospital v. Government of Sindh (1985 SCMR 593), and the meaning attached to the terms "Establishment" would extend to cover the case in hand.

9. He next contended that the respondent firm is part and parcel of the firm Messrs M.H. Challenge Industries, Daska Road, Sialkot, which is a duly notified firm under subsection (3) of section 1 of the Ordinance since 1982 and paying Social Security from the date of the notification, therefore, they cannot challenge the said notification on the ground that their firm is a separate entity and separate notification was required to bring them under the umbrella of the Ordinance. He submitted that the case of Kohinoor Chemical Co Ltd. v. Sindh Employees' Social Security Institution (PLD 1977 SC 197) is fully applicable to the facts of the present case of the respondents.

10. On the other hand, the learned counsel for the respondents has supported the impugned judgment.

11. We have heard the learned Law Officer, the learned counsel for the respondents and have perused the record. The respondents in Civil Appeal No.56-L of 2009 have admitted that they had been making payments of social security contribution for a considerable long time. They have also admitted payment of social security contribution amounting to Rs.13,960, therefore, they cannot deny the payment of social security contribution subsequently, on the ground that they were making payments under coercion or mis representation of the appellants. The respondents are also debarred from taking the plea that the respondent firm is not notified under the Ordinance. The respondents have failed to place any material on record to show that they were not making payment of the social security contribution wilfully.

12. Now coming to the other Appeal No.57-L of 2009, we find that the issue raised in this Appeal has been fully answered by this Court in the case reported as The Citizens Foundation and another v. Director SESSI and others (2010 SCMR 1659), in which this Court while interpreting the term "Establishment" defined under section 2 (11) of the Ordinance has held as under:-- "

11. We have considered the submissions made by learned counsel before us, carefully perused the case record and scanned all the cases cited before us at the Bar. As the whole controversy raised in this petition revolves around the interpretation, scope, true import and connotation of the definition of word 'establishment' under section 2(11) of the Ordinance of 1965. In the first place, it will be useful to reproduce the same as under:-- "establishment" means an organization, whether industrial, commercial, agricultural or otherwise." From the above definition of "establishment" it is quite evident that the use of words 'or otherwise' after the words "industrial", "commercial", and "agricultural" has made it an open ended definition to cover many other fields, which may not be industrial, commercial or agricultural in nature, but otherwise falling within the ambit of the statute, which has the peculiar feature of being beneficial in nature and is aimed to provide protection to the employees/workers, wherever possible, particularly as envisaged in its Chapter-V.

13. So far as the other plea of the respondents raised in their Writ Petition that they are running the school on charitable basis, the same has also been answered by the judgment referred to above, as under:--

12. So far as the issue of functioning of some educational institutions on charitable basis is concerned, in our opinion, it will not place their case on any higher pedestal to exclude them from the applicability of such definition, as such character of charitable nature of an educational institution has nothing to do with the additional benefits offered/extended under the Ordinance of 1965, to their employees. As a matter of fact proverb 'charity begins at home' will be squarely applicable to their cases to justify a fair conclusion that when they are extending/facilitating education in the country on charitable basis, why should they not contribute under the Ordinance of 1965 to extend their quality of charity and benevolence in favour of their own employees. We have already discussed in detail all the relevant case-law, most of which, referred by Mr. Sarawana, learned Advocate Supreme Court, is squarely applicable to the facts and circumstances of this case, and thus leaves no further room for debate open on the point whether or not an educational institution, either being run on commercial or charitable basis can be subjected to the regime of Ordinance of 1965, in view of the definition of word 'establishment' under section 2(11) of the Ordinance. Thus, we hold that the impugned judgment by the learned Division Bench of the High Court, being in consonance with the law earlier laid down by this Court, is unexceptionable and not open to interference."

14. We are fortified by the view expressed by a learned Bench of this Court in the case of The Citizens Foundation (supra), and are of the view that the learned High Court has failed to take into consideration the true import of the words 'Establishment' and 'or otherwise' used in section 2(11) of the Ordinance. Therefore, the judgments of the learned High Court impugned in these proceedings are not sustainable at law. Consequently, these Appeals are allowed, and the impugned judgments are set aside. The appellants are directed to proceed against the respondents in accordance with law. MWA/P-1/SC Appeal allowed.