1982 PLP 1062 (PLC)

Sind Employees' Social Security Institution, 78‑A, Malir, Karachi, Dear Sir, We have recently entered into an agreement with Bargaining Agent Union of our workers to pay Rs.0.30 "Thirty Paisas" per day to each worker w. e. f. Ist January, 1973 as canteen allowance. This allowance of thirty paisas per day in lieu of subsidised or concession rates of canteen which were being demanded by workers. Instead of subsidising any amount to canteen with a view to supply foodstuffs to our workers at cheap or concession rates, agreement has mutually been entered into to pay to each worker Rs.0.30 per day as subsidy for canteen in the name of canteen allowance. Thus this payment of canteen allowance is an ex gratis payment to workers and we believe Social Security is not applicable on the above payment. Please confirm. Looking forward for an early reply. Yours faithfully, for Sabina Ltd. (Paris Mills) (BASHIR AHMAD KHAN), Administrative Officer." SIND EMPLOYEES' SOCIAL SECURITY INSTITUTION LANDHI DIRECTORATE 78‑A Malir Colony, Malir, Karachi‑37 Dated 30'

73. No. SSS‑2/Cont/2‑23‑16/892. M/s. Sabina Ltd. Landhi Industrial Area, Karachi. Subject: Payment of Social Security Contribution on Canteen Allow ances paid to secured workers in lieu of Concessional Rate. Please refer to your letter No. PM/5/2967 dated 18th January, 1973 on the subject cited above. It is to inform you that Social Security Contribution is not pay able on the canteen allowances paid to the secured workers in lieu of subsidised rates of canteen. (IRFAN AHMAD KHAN), Copy to: S.S.O. I/c for information and necessary action." (c) It was also contended by the learned counsel for the respondents that the appellant has not controverted the assertion of facts contained in paras. 3 to 9 of the affidavit filed by the respondents before the learned lower Court in support of their appeal either by challenging the same in the cross‑examination or by producing evidence in rebuttal. It may be advantageous to reproduce the same which reads as follows:‑ "(3) That I say that I am also the Manager of M/s. Sabina Ltd. (Paris Mills) Landhi, which is owned, run and controlled by the same management as that of the appellant‑Company. (4) That there is one common Trade Union (Collective Bargaining Agent) of workmen in both the establishments, viz., the appel lant‑Company and M/s. Sabina Ltd. (Paris Mills), Landhi. (5) That both the establishments are adjacently situated having a common boundary wall. (6) That the Management of the appellant‑Company is the same as that of M/s. Sabina Ltd. (Paris Mills), Landhi. (7) That the terms and conditions of service of workmen employed in both the establishments are almost identical. (8) That I say that the payment of "Canteen Allowance" to the employees of the appellant‑Company, is regulated by the same terms and conditions as are applicable to the employees of M/s. Sabina Ltd. (Paris Mills) who are similarly paid a Canteen Allowance. (9) That I re‑affirm and say that the contents of letter No. PM/5/2967 dated 18th January, 1973 which was addressed by me on behalf of M/s. Sabina Ltd. (Paris Mills) to the Social Security Institution, applies with equal force to the case of appellant‑Company and the payment of "Canteen Allowance" is made to the employees of the appellants on exactly the same basis as is done in the case of M/s. Sabina Ltd. (Paris Mills)." 6. (a) It' was urged by Mr. Sarwana that as the letter was addressed by the Director of the Institution to M/s. Sabina Ltd. and not to the respondents in the present appeal, the above letter cannot be treated as a representation to the respondents is the present appeal and, therefore, the same cannot furnish a ground for non‑payment of the contribution on the canteen allowance. On the other hand Mr. Nasir Aslam Zabid learned counsel for the respondents has submitted in view of the assertions contained in the above‑quoted paras. 3 to 9 of the affidavit, which remain ed unchallenged, it cannot be urged by the appellant that the above appel lant's letter dated 20th March, 1973 cannot be relied upon by the res pondents, It may be pertinent to mention that the aforesaid assertions have not been controverted by the learned counsel for the appellant at the Bar and as a matter of fact after checking the record Mr. Sarwana Advocate has candidly conceded that no cross‑examination was directed to challenge the veracity of the above assertions' ‑contained in the afore said paras. 3 to 9 of the affidavit. (b) In view of the factual position that the respondents and M/s. Sabina Ltd. are sister concerns, there is one bargaining agent for the two factories, there is a common manager and the offices of the two concerns are situated in one compound, it can be urged that there was sufficient justification for the respondents not to pay any contribution on the canteen allowance because of the appellant's Director's aforesaid letter dated 30th March, 1973 referred to hereinabove. (c) In order to point out the learned counsel for the appellant that the contention that increase on the amount of contribution not paid is automatic irrespective of the reason for non‑payment appears not to be correct, the learned counsel for the appellant was asked to say as to whether an employer, will be liable to pay its amount of increase even in a case when he goes to deposit the amount of contribution with the institution but the staff of the Institution refuses to accept without any justification. His reply to the above query was that in such a case the Institution would not be justified in claiming the amount of increase. In my view from the above reply as a logical corollary it must follow that if an employer can point out that there was no failure on his part to make) the contribution and in fact one payment was on account of act/omission of the part of the staff of the Institution he will not be liable to pay the amount of increase. In my view the reasonable interpretation of word "fail" used in the aforesaid section 23 of the Ordinance will be that in order to attract the penal provision of the levy of increase, contained in `t the above section, there should be inexcusable neglect or omission on the part of employer to pay contribution on an item of wages/salary on which contribution is payable and there should not be any contributory act/omission on the part of the Institution resulting in the non‑payment of the contribution. (d) Mr. Nasir Aslam Zahid learned counsel for the respondent has referred to the case of Balwant Raj v. Union of India (A I R (?) All. 14) where a Single Judge of the Allahabad High Court while construing the term "fails to resume duty", used in the Railway Establishment Rules, held that the words "fail to resume duty" apply only to a railway servant who by a voluntary and deliberate act or omission stays away from duty and fails to report and not to one who was prevented by a cause beyond his control to resume the duty and that it cannot apply to a servant who fell ill and was treated by the railway in its own hospital under its own supervision and was discharged a fit for duty by its own officers after the expiry of the maximum period of leave due to him. The above ruling supports the contention of the learned counsel for the respondent on all fours. (e) Kohinoor's case of the Supreme Court, referred to hereinabove, relied upon by the learned counsel for the appellant, is distinguishable inasmuch as in the above case it was not argued by the appellant that the contribution in respect of the employees working in the Head Office of the appellant company could not be made for any reason attributable to the respondent institution. As a matter of fact a perusal of the above quoted para. particularly the last line indicates that their Lordships were pleased to hold that the appellant‑Company had committed default as their Lordships were pleased to observe that "the employer cannot benefit from his own default." 7. (a) Mr. Nasir Aslam Zahid learned counsel for the respondents has also contended that the words "fail" and "default" are synonymous and, therefore, the rulings relating to the interpretation of the word "default" will be applicable in all fours to the instant case. He has relied upon the case of Mst. Shahjahan v. Mst. Mukti (P L D 1968 Kar. 777), the case of Abdul Majid v. Saadullah and others (P L D 1963 Quetta 16) and the case of Syed Toghan Shah v. Shah Muhammad Madni Abbas (P L D 1964 Posh. 101). In all the above cases the Courts while interpreting the word "default" used in section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, were pleased to hold that in order to establish a case of default within the meaning of section 13(6) of the Ordinance, the default must be made wilfully and negligently and not for any reason beyond the control of the tenant. (b) In my view strictly speaking the words "fail and default" are not synonymous. The word "fail" has wider connotation as compared to the word, "default". And, therefore, the above‑cited rulings cannot be e pressed into service for the purpose of interpreting the word "fail" used in section 23 of the Ordinance. (c) In the instant case the respondents did not pay the contribution on the amount of the Canteen Allowance because the express statement made by the Director of the appellant that no contribution in respect thereof was payable. It will be unjust and improper to levy a penalty in the form of an increase in the instant case as in my view there has no been any failure on the part of the respondents within the meaning o section 23 of the Ordinance. The learned lower Court was justified in disallowing the amount of the increase vie. Rs.470.11 on the basis of~ the finding of fact that the appellant's Director's aforesaid letter dated 30th March, 1973 could be relied upon by the respondents in view of the aforesaid assertions contained in paras. 3 to 9 of the affidavit referred to hereinabove in para. 5(c). In view of the above discussion, the above appeal does not merit and, therefore, the same is dismissed, but there will be no order as to costs. Appeal dismissed.