2003 PLP 371 (PLC)

SYED DEEDAR HUSSAIN SHAH, J.

By this common judgment we intend to dispose of Appeals Nos. 1707 and 1708 of 1997, which are directed against a consolidated judgment dated 29-4-1997, passed by the High Court of Sindh, Karachi, in Miscellaneous Appeals Nos.46 and 47 of 1995.

2. Briefly stated the facts of C.A. No. 1707 of 1997 are that Director and Assistant Collector, Sindh Employees Social Security Institution, Landhi Industrial Area, Karachi (respondent No.2 herein) vide letter dated 28-9-1989 for the period January, 1988 to December, 1988 made total demand of Rs.5,63,160.86, Rs.96,737.94 for regular workers and Rs.4,66,422.94 in respect of porters including 50% increase. After that in respect of demand of Rs.96,737.94 with regard to regular workers, the respondents in view of objections raised by the appellant made re-checking; the said demand was reduced to a sum of Rs.32,814.91, which was paid by the appellant to the respondents. In spite of the fact that demand of Rs.4,66,422.94 with regard to the contribution for porters was not paid, therefore, the appellant filed complaint under section 57 on 22-2-1990, and during the pendency of the complaint before the Commissioner, on rechecking of the record initial demand of Rs.466,422.94 was reduced to Rs.74,639.00 + Rs.37,320.50, total Rs.1,11,959.50, which the appellant/Shaheen Airport Services was held liable to pay and the said total amount included increase due to delay in the payment of contribution. Accordingly, the Commissioner dismissed the complaint of the appellant vide order dated 20-6-1991 holding the appellant to be liable for the payment of a sum of Rs.1,11,959.00. Feeling aggrieved, the appellant filed Appeal No. 10 of 1991 under section 59 of the Ordinance on 27-7-1991 before the Sindh Social Security Court No. 1 Karachi, wherein the appellant also filed affidavit in evidence and the deponent of said affidavit was cross-examined on 14-9-1992, but the respondents led no evidence. Finally, the Sindh Security Court dismissed the appeal on 30-8-1995, and against which order the appellant filed an appeal before the High Court. The brief facts of Appeal No.1708 of 1997 are that respondent No.2, on checking of record for the year January, 1989 to December, 1990 demanded total payment of Rs.2,51,494,84 viz. Rs.1,67,663.23 towards contribution + 50% towards increase of Rs.83,831.61 as per letter dated 14-7-1991. The appellant disputed the said amount and filed complaint under section 57 before the Commissioner Sindh Employees Social Security Institution on 20-6-1991. The Commissioner by order dated 26-11-1992 dismissed the complaint holding the appellant liable to pay Rs.2,51,494.84, thereafter, the appellant filed Appeal No.10 of 1991 before the Social Security Court No.1, which was consolidated with Appeal No.15 of 1992 and both the appeals were dismissed by Sindh Labour Court Karachi by common order dated 30-8-1995, and against the said order, the appeal had been preferred before the High Court of Sindh, Karachi. The learned Single Judge of the High Court dismissed both the appeals of the appellant vide judgment dated 29-4-1997.

3. Vide order dated 17-11-1997, leave to appeal was granted to consider, "as to whether the facts of the present case attract the ratio decidendi of the judgment of this Court in the case of Messrs. R.C.D. Ball Bearing Limited v. Sindh Employee's Social Security Institution Karachi (PLD 1991 SC 308). Leave is, accordingly, granted. As regards the stay application, we are not inclined to grant any stay order. The petitioners shall pay the disputed amount to the respondents subject to their right to recover the same back in case they succeed in the appeal arising out of the present petitions."

4. Mr. S.M. Yaqoob, learned counsel for the appellant, inter alia, contended that the orders of the forums below as well as the judgment of the High Court are not in Consonance with the law laid down by this Court in the case of Messrs R.C.D: Ball Bearing (supra), as during the pendency of the proceedings in the lower forums and the High Court the stay was in operation in favour of the appellant, as such, increase of 50 per cent on the principal demand, as demanded by the respondents, is against law; that this very point was raised before the learned High .Court, but the learned Single Judge did not dilate upon this aspect of the case, and that the impugned judgment as well as the orders of the lower forums are not legally correct, which are to be set aside. In support of his contentions learned counsel has relied on, Sindh Employees' Social Security Institution v. Dawood Cotton Mills Ltd. (PLD 1977 SC 177), Messrs R.C.D. Ball Bearing Limited v. Sindh Employees' Social Security Institution, Karachi (PLD 1991 SC 308), and Shaheen Airport Services v. Sindh Employees' Social Security Institution (1994 SCMR 881).

5. On the other hand, Mr. Khalid Habibullah, learned Advocate Supreme Court for the respondents, supported the impugned judgment and stated that the respondents are competent to increase 50% towards actual demand in case of non-payment of the principal amount. However, he frankly conceded that during proceedings before the forums below as well as before the High Court, stay in favour of the appellant was in operation. In support of his contentions, learned counsel has referred to Haji Ibrahim v. S. Rehmatullah (1985 SCMR 241).

6. We have considered the arguments of the learned counsel for the parties, examined the available record and have also minutely gone through the case-law referred to hereinabove. In the first round of litigation, while deciding Civil Appeal No.368 of 1992 (1994 SCMR 881 supra) this Court held that "relationship between the contractor and porter working at the Airport being that of employer and employee, amount received by porter, per trip, out of the total amount paid by every passenger at the Airport fell within the definition of wages and the employer was liable to make contribution under section 20 of the Ordinance. " In R.C.D. Ball Bearing Limited (supra) this Court observed that: "The ratio of this decision supports the reasoning adopted by the learned Labour Court reproduced herein above. The present case is of a category of cases in which on the principles as mentioned in the foregoing citation, it can legitimately be said that there was no failure on the part of the appellant to make payment, as the High Court had by granting stay suspended the obligation of the appellant to make payment during the operation of the stay. It may be pointed out that the scheme of the Ordinance itself envisages the hierarchy of authorities and Courts for correction of errors and redress of grievances made by the employer and other affected parties by any action taken under the Ordinance. Section 57 (f) refers to any dispute in respect of "any contribution or their dues payable or recoverable under this Ordinance. " Such matters car, be agitated before the forums set up by the Ordinance and before the established Courts. An appeal is provided under section 64 of the Ordinance to the High Court. Section 65 of the Ordinance provides for the stay of payment pending appeals. Reading the provisions of section 23 of the Ordinance with sections 64 and 65, it becomes abundantly clear that the scheme of the Ordinance itself provides that in case of a stay, until the final adjudication of the dispute, the obligation to pay the dues does not arise. Therefore, we agree with the view that in absence of the obligation to pay there cannot be failure to pay within the meaning of section 23 of the Ordinance. " The case-law referred by the learned counsel for the appellant fully supports the facts of the appeal in hand, whereas the citation referred to by the learned counsel for the respondent, in our humble opinion, is not relevant to the facts of the present case, because it pertains to the dispute between landlord and tenant under Sindh Rented Premises Ordinance, 1979. In view of the law laid down by this Court in Messrs R.C.D. Ball Bearing Limited (supra), the appellant in any case is not supposed to pay increase of 50% on the original demand of the respondents, when litigation between the parties was pending and stay in favour of the appellant was in operation. Admittedly, the learned High Court did not consider this aspect of the case, which resulted in miscarriage of justice.

7. For the facts and reasons stated hereinabove, the appeal is allowed and the impugned judgment of the High Court as well as the orders of the lower forums allowing increase of 50% on the principal demand are hereby set aside. The parties are left to bear their own cost. M.H./S-260/S Appeal allowed.