2002 PLP 136 (PLC)

18. ........................................... 19. ........................................... 20. ........................................... 21. ........................................... 22. ........................................... 23. ........................................... 24. ........................................... 25. ........................................... 26. ........................................... 27. ........................................... 28. ........................................... 29. ........................................... 30. ........................................... 31. ........................................... 32. .......................................... 33. .......................................... 34. ........................................... 35. ........................................... 36. ........................................... 37. ........................................... 38. ........................................... 39. ........................................... " The above reproduced Notification was issued under section 1(3) of the Punjab Employees' Social Security Ordinance, 1965 which provides that:‑‑ 1. "Short title, extent, commencement and application.‑‑(1) This Ordinance may be called the Provincial Employees' Social Security Ordinance, 1965. (2) It extends to the whole of Pakistan. (3) It shall come into force at once but shall apply only to such areas, classes of persons, industries or establishments, from such date or dates, and with regard to the provision of such benefits as Government may, by notification, specify in this behalf." In terms of above subsection (3) of section 1 (ibid), though the Ordinance became effective with immediate effect, yet its application was postponed in respect of areas, persons, industries and establishments, from a date "as the Government may, by Notification, specify in this behalf". This obviously means that till such a Notification is issued by the Government, specifying the date and the establishment etc. therein, the provisions of they Ordinance will not be automatically attracted to an establishment. This statutory provision mandatorily provides that the Ordinance can only be made applicable upon issuance of a Notification by the Government therein specifying and particularizing the "areas, classes of persons, industries or establishments" to which the provisions of the said Ordinance are meant to be imposed. Unless and until such areas, classes of persons, industries or establishments are named in the Notification, the provisions of Ordinance cannot be extended to any area, any class of persons, any industry or any establishment.

5. In my opinion, the scope of applicability of the Ordinance has been well defined in the above said subsection (3) of section

1. The Ordinance can be made applicable, upon Notification, to the following: (i) Areas; (ii) Classes of persons; (iii) Industries; or (iv) Establishments. It is obvious that applicability of the Ordinance has been restricted to the above prescribed four domain, A "premises" is not one of the domains independently categorized to attract the provisions of the said Ordinance. The term "premises", as employed is the above said Notifications, is to specify the place where an "establishment" is housed or located. Premises connotes a place accommodating an industry or an establishment. By itself premises has no place in the Ordinance independent of an industry or establishment to attract applicability of the Ordinance. Black's Law Dictionary, (Sixth Edition) Centennial Edition (1891‑1991), defines "premises" at page 1180 as under: "Premises. In estates and property. Land with its appurtenances and structures thereon. Premises is an elastic and inclusive term, and it does not have one definite and fixed meaning; its meaning is to be determined by its context and may mean a room, shop, building, or any definite area. (Allen v. Gentry, Ala, 97 So.2d 828, 832). A dwelling unit and the structure of which it is a part and faculties and appurtenances therein and grounds, areas, and facilities held out for the use of tenants generally or whose use is promised to the tenant. Uniform residential landlord and Tenant Act, 1:301(a)."

6. Premises, thus cannot be considered to be an area or a class of persons or an industry or an establishment to have a continuous applicability of the Ordinance. "Premises" cannot also be mis-constructed as a place wherein whichever person, industry or establishment is housed automatically attracts the Ordinance. Such misinterpretation will only defeat the express provisions of above‑quoted section 1(3) of the Ordinance. The above Notification primarily makes establishments listed in the Schedule subject to the provisions of the Ordinance and not a premises where the establishment is located. In my above‑noted opinion, I find reinforcement from the judgment of this Court rendered in the case of "Messrs Kwong Fah Chinese Restaurant v. Punjab Employees' Social Security Institution" (1990 MLD 235), wherein it was held as under: "According to section 1(3) of the Ordinance, it applied to such areas, classes of persons, industries or establishment from such date or dates as the Government may by Notification specify in this behalf. It is, thus, obvious that the Ordinance does not by its own force apply to any establishment or industry but its applicability is dependent upon the issuance of a Notification by the Provincial Government. The Notification dated 21st of October, 1975 relied upon by the respondent reads as under: 'In exercise of the powers conferred by subsection (3) of section 1 of the West Pakistan Employees Social Security Ordinance, 1965 (West Pakistan Ordinance X of 1965) the Governor of the Punjab is pleased to direct that the said Ordinance shall continue to apply to all covered establishments including those found working within the premises of such establishments under any other name, with immediate effect. A reading of the above would show that no establishment stands specified in the Notification that it provides for continuance of operation of the Ordinance to those establishments to which it was already applicable including those working under: any other name in the same premises. The case of the respondent, on the strength of this notification is that previously an establishment under the name of M/s. Kouchi Chinese Restaurant was being run in the same premises to which the Ordinance had been made applicable and as the establishment of the appellant is situated in the same premises it would be covered by the above notification irrespective of the fact whether or not the previous business was owned by the same person. I am, however, not in a position to accept such a wide interpretation of the notification as is being placed by the learned counsel for the respondent. Section 1(3) of the Ordinance makes the issuance of a Notification a condition precedent to the applicability of the Ordinance and it authorises the Government to specify by Notification establishments, industries, areas or classes of persons to whom the provisions of the Ordinance are to apply. The Notification relied upon by the respondent provides that the provisions of the Ordinance shall continue to apply to the establishment previously covered by the Ordinance if working in the same premises, even under a different name. Establishment had been defined in section 1(11) of the Ordinance as an organisation whether industrial, commercial agricultural or otherwise. In Ballentine's Law Dictionary (Third Edition) Organization has been defined as a corporation, Government or Governmental Sub‑Division or agency, business trust, estate trust, partnership or association two or more persons having a joint or common interest or any other legal or commercial entity. Similar definition appears in Black's Law Dictionary (Fifth Edition) at page

991. Read in the light of above definitions it becomes abundantly clear that the Notification continues to apply, to an establishment so long as the organization i.e. the entity remands the same notwithstanding any change in its nomenclature or business. If, however, the organisation its0f undergoes a change and becomes different in character or composition, it would not fall within the purview of the Notification in question even though it may be carrying on the same business in the same premises."

7. In view of the above, in absence of Notification under section 1(3) of the Punjab Social Security Ordinance, 1965 specifying petitioner establishment therein, the said Ordinance cannot be applied to the petitioner Wherefore Notice/Letter No.SSLE/font/83/Circle‑A/1080 dated 21‑2‑1983 issued by the respondents/institute to the petitioner is illegal and without lawful authority. This petition is, therefore, accepted. Judgment and decree dated 9‑2‑‑1992 passed .by learned Additional District Judge, Lahore, dismissing petitioner's suit, is also declared to be without lawful authority I and of no legal effect thereby restoring the judgment and decree dated 26‑9‑1988 passed by learned Civil Judge, Lahore in Suit No. 131/1 of 1981 titled "M/s. Paradise Snack Bar through Mr. Nazir Ahmad Butt v. Punjab Employees' Social Security Institution". There shall however be no order as to costs. Q.M.H./M.A.K./P‑72/L Revision allowed.