1989 PLP 2008 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑‑Leave to an peal has been sought in these two petitions against the acceptance by the High Court of a writ petition filed by Respondent No.1. It challenged the demand for contribution by the Social Security Institution from the respondent No.1. The respondent company was taken over by the Federal Government in the so called nationalization process, in 1972 under P.O.1 of 1972. It was returned in the so‑called restoration process in 1979 under P.O.No.12 of 1978. The disputed contribution relates to a short period prior to the return of the establishment. The Social Security functionaries were of the view that the transferee (Respondent No.1) was liable to pay the contribution for the disputed period. The High Court on respondent's writ petition found that the Federal Government was responsible for the, payment; and that amount, "shall have to be recovered from it:" Both the Federal Government and the Social Security institution have sought leave to appeal. In the circumstances of present case the liability to pay the contribution to the Institution is not denied. Nor, that it was the liability of the "Empolyer" as defined in section 2(9) of the W.P.Employees Social Security Ordinance 1965. The establishment taken over under P.O.No.1 was the "Ittefaq Foundry and Works Limited." It was however, when under the control of the Government, turned into and renamed as the "Lahore ‑Engineering Foundries Limited." Subsequently the latter was put in "the charge of the" Federal Light Engineering Corporation. "The employer" includes the "manager" and the "agent". Even if it be assumed that during the period of liability under discussion, the Federal Government was not the owner; yet, it cannot be accepted that it or the other two concerns named above, were not liable as "agent" and/or "manager." Therefore the direction of the High Court that the contribution in dispute shall be made by the Federal Government is not unjust. Regarding legality also, as 'agent' or `manager' the direction cannot be objected to, as illegal. Art.8 of the P.0.12 of 1979 does not prohibit this direction either. Granting that the government has, on account of the use of the word "may" in Art.8, an option to assume a liability, but under that provision, it has to be of the "managed Establishment" alone. Where it is of the Government exclusively or together with any other party, as noted above, the option will not absolve it under the Social Security Law. In this view of the matter Federal Government has to make the disputed contribution. Leave to appeal, therefore is refused. It is however observed that this Supreme Courts order shall not bar the recovery by the Federal Government of this amount (after the payment) from any other party including Respondent No.1; if so entitled, due to mutual liabilities under any law, including P.0.12. A.A./C‑40/S Leave refused.