2006 PLP 364 (PLC)

1. Granted but subject to all just exceptions. 2 &

3. The petitioner appears to be aggrieved by Notification dated September 8, 2004, issued by Government of Sindh declaring the provisions of the Provincial Employees Social Security Ordinance, 1965 ("Ordinance, 1965"), applicable to the employers and employees of a number of establishments including the Liaquat National Hospital, Stadium Road, Karachi run by the petitioner. It appears that pursuant to the aforesaid Notification dated September 8, 2004, a demand was made, which was upheld by the entire hierarchy under the Ordinance, 1965, culminating in the order of the Commissioner dated April 16, 2005. Mr. Abdul Samad, learned counsel for the petitioner, in the first instance. Attempted to urge that the Notification in question was ultra vires, the powers of the Government conferred under section 1(3) of the Ordinance, 1965, inasmuch as such Notification sought to apply it to "employer and employees of the establishment" rather than the establishment itself. We are afraid the contention has not impressed us inasmuch as once the tenure of the notification is clear a slight mistake in terminology used could be in consequential. Mr. Abdul Samad, however, mainly argued that the hospital, run by the petitioner, could not be treated as an establishment for the purpose of section 2(11) of the Ordinance, 1965 and, therefore, the powers to extend its obligation to the hospital in question did not exist. In this context, learned counsel relied upon section 2(11), which reads as follows:- "

2. Definitions.

In this Ordinance, unless the context otherwise requires, following expressions shall have the meanings hereby respectively assigned to them, that is to say

(1)

(2)

(3)

(4)

(5)

(6)

(7)

(8)

(9)

(10)

(11) "establishment" means an organization, whether industrial, commercial, agricultural or otherwise;" Learned counsel attempted to urge that the expression "otherwise" contained in the aforesaid provision, being one of general nature, ought to be read ejusdem generis with the earlier specified expression i.e. industrial, commercial or agricultural. Agitating this point, learned counsel contended that a hospital be an institution rendering services to patients could not be equated with those established for making, profits such as industrial, commercial or even agricultural. Elaborating his contention Mr. Abdul Samad argued that even if the profits earned by the petitioner were utilizing for expanding and modernizing its facilities the hospital had to be treated as a charitable body and a completely different kind of institution from any industrial, commercial or agricultural establishment. He referred to a pronouncement of the House of Lords in the case of Incorporated Council of Law Reporting for England and Wales v. Attorney-General and Commissioners of Inland Revenue reported in 1971 2 WLR

550. Indeed the judgments of Courts in foreign jurisdiction are entitled to respect and could have persuasive effect. Nevertheless from the impugned order of the Commissioner of the respondent No.2 we found that a Division Bench of this Court in the case of St. Bonaventure's Boys High, Schools Tilak Incline and Qasimabad Hyderabad v. Province of Sindh reported in 2004 PLC 381, held that the school might not be an industrial or commercial establishment but it was clearly covered by the expression "otherwise" and a Notification declaring school to be covered by the Ordinance was intra vires. We have not been able to find any flaw in the reasoning of their lordships and are also unable to see how the case of a school can be treated differently from that of a hospital in the above context. The above judgment is normally binding upon us and respectfully following the same, we would hold that the Notification dated September 8, 2004 and the subsequent orders do not require any interference. For the foregoing reasons, the petition is dismissed in limine along with C.M.A. No.3623 of 2005. H.B.T./L-5/K Petition dismissed