1997 PLP 89 (PLC)

Date of hearing: 12th August, 1996. Messrs Bela Automotives Limited feeling dissatisfied from the order dated 31st January, 1996, passed by Presiding Officer, Social Security Court (IIIrd Labour Court), Hub, had instituted instant appeal. In brief, the facts are that Commissioner, Balochistan Employees' Social Security Institution, toward the month of August, 1994, commenced inspection of appellant‑Organisation, by issuing letters from time to time which were responded by them, as they submitted replies, but with certain reservations in respect of inspection of the record. In this behalf a Constitutional Petition No. 50/95, was also instituted before this Court, challenging the action of the Commissioner. However, the petition was not passed as learned counsel appearing for appellant expressed desire to file an appeal before the Social Security Court. Thus, vide order dated 10th April, 1995, petition was dismissed as not pressed, with observations, concerning cash security, which appellant had deposited under the directions of Court, contained in order dated 16th March, 1995. Thereafter appellant filed an appeal under section 59 of the Balochistan Provincial Employees' Social Security Ordinance, 1965, before the Social Security Court, inter alia, claiming relief that demand of Rs.41,558 raised by Commissioner and Assistant Director, Balochistan Employees' Social Security, is patently illegal, void, without lawful authority and of no legal effect. Learned Presiding Officer, Social Security Court vide impugned order dismissed the appeal, holding that no order has been passed by the Institution under section 57 of the Social Security Ordinance, 1965. As such, instant Civil Miscellaneous Appeal has been preferred. Mr. S.M. Yakub, learned counsel for appellant contended that Institution had passed series of orders including the one of 4th January, 1995 and 29th January, 1995, wherein appellant‑Organisation was called upon to pay a sum of Rs.41,558, notice in respect of which, was earlier issued on 20th November, 1995. According to learned counsel, such order fall within the ambit of section 57(F) of the Provincial Employees' Social Security Ordinance, 1965. In support of his arguments, reliance was placed by him on 1977 PLC 572, 1981 PLC 465 and 1996 PLC

415. Mr. Riaz Ahmad, learned counsel for respondents 1 to 3, supported the impugned order, as according to him, no order so far has been passed by the Institution under section 57 of the Ordinance, therefore, appeal has been rightly found incompetent by the Social Security Court. He further emphasised that this appeal, as well, is incompetent, as no substantial question is involved for consideration by this Court in terms of section 64 of the Social Security Ordinance. In view of the respective contentions, raised by parties' counsel, question for consideration crops up; whether Institution has passed an order falling under section 57 of the Social Security Ordinance? To resolve the controversy it may be observed that as per section 2(3) and subsection (16) of the Ordinance, 'Commissioner' means the Commissioner of the Institution and 'Institution' means, the Employees' Social Security Institution, established under section 3 of the Ordinance. Whereas section 4 of the Ordinance, provides that affairs of the Institution shall vest in the governing body, which with the assistance of a Commissioner, may exercise all powers and do all acts and things Which may be exercised or done by the Institution. In addition to these provisions, section 18(2) of the Ordinance, provides that Commissioner shall be the Chief Executive of the Institution and shall act as Secretary to the Governing Body. At this stage, reference to section 57(f) of the Ordinance, is also relevant. According to which, if any complaint is received or any question or dispute arises as to any other matter in respect of any contribution or other dues payable or recoverable under this Ordinance, the same shall be decided by the Institution in such a manner and within such time as the Regulation may provide and the Institution shall notify its decision to the person or persons, concerned in writing stating therein the reason or reasons for decision. Therefore, it is held that any matter decided by the Institution headed by Commissioner on a complaint or any question or dispute arises for determination under any provision of section 57 shall be deemed to be the decision of Institution. In the instant case as well, after initiating process of inspection concerning the appellant‑Organisation for the first time on 20th November, 1994, respondent No. 1, raised demand for the recovery of social security contribution against appellant. This notice was resisted by appellant on submitting representation and finally on 4th January, 1995, Commissioner gave decision that amount of Rs.41,558 is required to be recovered as social security from the appellant. Therefore, such decision in my opinion undoubtedly fall within the ambit of section 57(f) of the Social Security Ordinance, 1965, and it was appealable under section 59 of the Ordinance. Since a substantial question of law, concerning competency of appeal before Social Security Court under section 59 of the Ordinance, has been raised, therefore, submission of Mr. Riaz Ahmad, Advocate, regarding non‑maintainability of the appeal has no force and it is held that appeal has been competently filed before this Court. As a result of above discussion, appeal is allowed, impugned order dated 31‑1‑1996, is set aside and case is remanded to Appellate Court/Social Security Court at Hub, for decision, in accordance with law. Parties are left to bear their own costs. Hereinabove are the reasons of my short order dated 12th August, 1996. A.A./592/Q Case remanded.