2008 PLP 287 (PLC)

MUHAMMAD MOOSA K. LEGHARI, J.

This miscellaneous appeal has been filed against order, dated 14-3-2005 passed by First Social Security Court, Karachi in Appeal No.5 of 2003 under sections 59 and 61 of Sindh Employees Social Security Ordinance, 1965 against the decision dated 5-4-2003 given by respondent No.1 viz. Commissioner, Social Security Institution, Karachi.

2. Brief facts for disposal of this appeal are that the appellant is a subsidiary of Pakistan Steel which is said to have been exempted from the payment of contribution to the Social Security. It is alleged that Director, SESSI ;viz. respondent No.3 demanded the appellant-Company to pay a suns of Rs. 13,73,689.74 for the period from July, 1985 to June, 1990 as contribution to be paid to SESSI. The appellant challenged such demand by filing complaint before the Commissioner, SESSI taking a plea that as the SESSI had never provided any service to its employees, as such no contribution was made, thus, the demand of respondent No.3 without performing their obligation was not just and legal. The complaint was, however, dismissed vide order, dated 1-9-1992. The said order was assailed in appeal before the Social Security Court which was also dismissed vide order, dated 17-9-1995. Thereafter the matter had come before the Honourable Supreme Court in C.P.L.A. No.138-K of 2001 which was disposed of with the following observations: "... "... there is no cavil with the proposition that petitioner was liable to pay contribution in respect of employees drawing wages upto Rs.1500 per month before the .amendment in law...." According to the appellants, the Commissioner SESSI by misinterpreting the judgment of the Supreme Court, illegally directed the appellants to deposit the amount of Rs. 13,73,689.74 although no finding was given by the Supreme Court.

3. The arguments advanced at the bar have been heard and the material placed on the record has been perused.

4. It is contended on behalf of the appellant that the appellant-Company is a subsidiary of Pakistan Steel Mills which is exempted from making payment of Social Security contribution as all medical treatment is being provided to the employees of the appellant-Company at the expenses of Pakistan Steel Mills, that the demand for payment of Rs. 13,73,689.74 has been made by the Social Security Institution without making any calculation and/or giving prior notice, that as all employees of the appellant-Company were getting more than Rs. 1500 per month even prior to amendment in the Social Security Ordinance on 25-9-1993 and at the most the appellants could be held liable to pay contribution only in respect of the employees drawing wages upto Rs.1500 as per judgment of the Honourable Supreme Court, however, as there was no employee drawing wages less than or upto Rs.1500 prior to the abovesaid amendment, the appellants are not liable to pay any such amount as demanded by the respondent.

5. Conversely, it was argued on behalf of the respondents that the matter has already been decided by the Honourable Supreme Court, as such the appeal is not maintainable. He further argued that even of otherwise once the controversial issue in the matter having already been decided and the appeal filed by the appellants having been dismissed holding that the appellants were liable to pay the amount in question, filing of complaint by the appellants on the same subject-matter and law point is neither legal nor valid and is hit by the principle of res judicata.

6. I am of the considered view that apparently the appeal is misconceived and has been filed on improper advice as the points in issue had already been decided by the competent forums, as such there was no occasion to file a complaint on the same issues. Moreover, once the matter having gone upto the level of the Honourable Supreme Court and the apex Court having decided the matter on law point and the order regarding payment of contribution by the appellant-Company was maintained, the same attained finality and is not open to challenge before a lower forum which not only is improper rather contemptuous in nature. The appellants also failed to produce any convincing evidence to establish their plea that none of their employees was drawing wages upto Rs.1500 per month prior to the date of amendment in the Social Security Ordinance viz. 25-9-1993. In the circumstances, the appeal being misconceived and frivolous, is dismissed in limine along with listed application with a cost of Rs.25,

000. The appellants shall recover the cost from the officer who prompted the frivolous and fruitless litigation. Above are the reasons for the short order passed on 30-8-2007. H.B.T./P-32/K Appeal dismissed.