2004 PLP 78 (PLC)

(i) Government may for purposes of this Ordinance, constitute, by notification, a Social Security Court for any Social Security Area or Areas specified in the notification; (ii) A Social Security Court shall be presided over by a Judge who shall be appointed by Government" Section 61 provides:‑‑ "Jurisdiction of Social Security courts ‑‑‑(i) Subject to the provisions of subsection (2)., a Social Security Court shall have exclusive jurisdiction to hear and decide appeals from decisions of the institution under section 57 or review under section 58 in respect of all claims, questions and disputes arising in the appropriate Social Security Area." Section 62 provides:‑‑ (i) "Powers of Social Security Court etc.‑‑‑ A Social Security Court shall have all the powers of a Civil Court for the purposes of summoning and enforcing the attendance of witnesses, compelling the discovery and production of documents and material objects, administering oath and recording evidence, and such a Court shall be deemed to be a Civil Court within the meaning of section 195 Cr.P.C.; (ii) Notwithstanding any thing contained in any other law, a Social Security Court, may for the purposes of deciding any appeal examine such witness and take such evidence as it considers necessary; (iii) A Social Security Court may make such order with regard to costs incidental to any appeal as it thinks fit; (iv) An order of a Social Security Court shall be enforceable as if it were a decree of a Civil Court."

5. From the perusal of all the circumstances in this case it seems that the complaint against respondent No. l kept pending before the Vice Commissioner and finally was decided by the Social Security Court, who reduced the increase to 25% from 50%. In view of "Messrs R.C.D. Ball Bearing Ltd. v. Sindh Employees Social Security Institution, Karachi" PLD 1991 SC 308, where it was observed that if a employer can point out that there was no failure on his part to make the contribution and in fact non‑payment was on account of act/omission on the part of the staff of the institution he will not be liable to pay the amount of increase. The reasonable interpretation of word "fail" used in section 23 of the Ordinance will be that in order to attract the penal provision of the levy of increase, contained in the above‑section, there should be inexcusable neglect or omission on the part of employer to pay contribution on an item of wages/salary.

6. In the present case the matter remained pending before the Court and levy of penalty of increase could not be justifiable as the latest decision was made by the Social Security Court, who was fully empowered to adjudicate upon the matter in view of sections 60, 61 and 62 of the Ordinance. Section 23 of the Ordinance is re‑produced below:‑‑ "Increase of unpaid contribution and recovery of contribution, etc. as arrears of land revenue.‑‑(i) If any employer fails to pay on the due date the contribution payable by him under subsection (i) of section 20 the amount so payable by him shall be increased by such percentage or the amount as may be prescribed: Provided that in no case shall such increase exceed fifty per centum of the amount due: Provided further that no part of such increase shall be payable by, or the liability to pay the same be passed on by the employer to, his employee." In view of the provisions of section 23 of the Ordinance proviso, there is no bar for the Social Security Court to reduce the amount of penalty if it deems fit .in the circumstances of each case. Even‑ the impugned orders disclose that payment of the contribution for the period from 17‑3‑1987 to 31‑12‑1987 was reduced by 10%. The proviso of section 23 only provides that such, increase shall not exceed 50% of the amount due, therefore, the arguments advanced by learned counsel for the petitioner that Social Security Court could not reduce the amount in the circumstances of the case is not convincing. The Social Security Court being a Civil Court in nature is fully empowered to adjudicate upon the matter in view of sections 60,61 and 62 of the Ordinance therefore, finding no substance in the instant appeal, the same isle dismissed. No order as to costs. S.A.K./P-176/L Appeal dismissed.