1993 PLP 285 (PLC)

According to appellants they raised substantial question of law with regard to interpretation of section 22 of the Social Security Ordinance, 1965, before the respondent No.1 namely Sindh Employees Social Security Institution, through its Commissioner hereinafter called the "Institution". They were partly heard on 20‑10‑1990 where after the matter was adjourned from time to time for production of record but it did not proceed. However, on 3‑1‑1991 the appellants filed an application for adjournment in the office of the A, Institution. The learned Commissioner of the Institution instead of considering the adjournment application, proceeded in the matter in their absence and passed an order against the appellants requiring them to pay Rs.2, 26,800 being the dues payable to the Institution. Against this order the appellants preferred an appeal under section 62 before the Social Security Court. From the perusal of case diary of the Institution, it appears that the appellant's application for adjournment 'was not placed before the Commissioner who recorded non‑appearance of the appellant and heard the arguments of respondent No.2 and then reserved the matter for orders which were passed ‑ on 13‑1‑1991. In the said order, no reference was made to the adjournment application moved by the appellants. The first contention of Mr. M.L. Shahani, learned counsel for the appellants is that the appellants were condemned unheard and their application for adjournment was not considered at all by the Commissioner *while passing the order dated 3‑1‑1991. According to Mr. Khalid Habibullah, learned counsel for the respondents, the appellants should have filed the adjournment application before the learned Commissioner before whom the matter was fixed and not in the office of the Institution. What however is pertinent to note is that the order dated 13‑1‑1991 was passed after ten days of the date of hearing but there was no reference to the adjournment application which must have reached him from his office before the said date. It was the duty of the learned Commissioner to have considered the adjournment application and passed order thereon which he did not. This question was also raised by the appellants before the Social Security Court No.l, Karachi but was not considered by it at all. It was next argued by the learned counsel for the appellants that the appellants could not be condemned unheard. It was pointed out that the present Commissioner who passed the impugned order did not partly hear the case but it was his predecessor who after part‑hearing of the case adjourned the case for production of record by the appellants. Thus, the entire case was to be heard afresh by the present Commissioner learned counsel for the respondent, on the other hand, urged that the appellants could have moved to the Social Security Court No.l in appeal to record evidence under Section 62 of the Ordinance of 1965 but the appellants did not deliberately avail the opportunity, hence the petitioner's plea of violation of principles of natural justice stands repelled by PLD 1977 SC

177. The argument advanced by the learned counsel for the respondents is without merit and the case cited by him has no relevance to the present case. Petitioner's case was partly heard by the predecessor of present Commissioner, before whom the record was to be produced by the appellants. However, on the date of impugned order, it remained no more a part heard case as another person was notified as Commissioner to hear complaints, questions and disputes under section 57 of the Ordinance. Thus besides production of relevant record, the case had to be argued out and heard afresh before him. The contention of the learned counsel for the respondents that it was a part heard case, is also not correct. In so far as the adjournment application is concerned, admittedly no order thereon was passed by the learned Commissioner nor it was taken into consideration by him. Even the learned Social Security Court failed to take into consideration this aspect of the case which specifically found place in the memo of appeal. The Institution, while deciding a complaint under section 57 of the Social Security Act, and a Social Security Court while hearing an appeal under section 59 of the Social Security Ordinance, 1965, are required to act judicially and not arbitrarily. A party must be given opportunity to defend and plead its case according to, rules of natural justice. In the present case the impugned orders purport to create liability against the appellants and there was all the more reason for them to exercise greater caution while passing the impugned orders. Hence this appeal under section 64(2) of the Provincial Employees' Social Security Ordinance, 1965 is accepted and impugned orders are set aside with direction to the Institution to decide the case of the appellants in accordance with law. Resultantly the bank guarantee furnished by the appellants in this Court stands discharged. In the circumstances, there will be no order as to costs. A.A./B‑235/K Case remanded.