2011 SCMR 1102 (PLP)

ASIF SAEED KHAN KHOSA, J.

The necessary facts giving rise to the present appeal by leave of the court are that the Employees' Old-Age Benefits Institution lodged two complaints against the appellant, i.e., Pakistan International Airlines Corporation complaining that the appellant had failed/refused to get its establishment registered under the Employees' Old-Age Benefits Act, 1976 and it was prayed through those complaints that a declaration may be issued that the said Act of 1976 was applicable to the appellant's establishment with effect from 1-7-1976 and that the appellant was liable to get its establishment and persons employed therein registered and to pay the necessary contribution as required by the provisions of section 9 of that Act. On 24-11-1995 the said complaints were accepted by the Adjudicating Authority in the following terms:-- "I, therefore, hold that the Employees' Old-Age Benefits Act, 1976 is applicable to the employees of the PIAC working in the departments of Flight Kitchen and PIA Engineering from 1-7-1976. The complainant should register the said departments of the respondent and issue registration certificates accordingly. The respondent corporation is directed to communicate their particulars along with name and other prescribed particulars of every person in their insurable employment to the complainant within thirty days and immediately pay the contributions in respect of them w.e.f. 1-7-1976 to date." The said decision of the Adjudicating Authority was assailed by the appellant before the Board of Trustees at Karachi through two appeals but on 10-6-1996 both the said appeals were dismissed by the Board of Trustees in its capacity as the Appellate Authority. Thereafter the appellant tiled Constitutional Petition No. D-1442 of 1996 before the High Court of Sindh, Karachi assailing the above mentioned decisions rendered by the Adjudicating Authority and the Appellate Authority but the appellant's Constitutional Petition was dismissed by a learned Division Bench of the High Court of Sindh, Karachi through a detailed judgment dated 5-12-2003. Hence, the present appeal by leave of this Court.

2. We have heard the learned counsel for the parties and have gone through the relevant record of this case with their assistance.

3. Very elaborate and extensive arguments have been addressed before us by Mr. Salman Aslam Butt, Advocate Supreme Court, the learned counsel for the appellant, in support of the present appeal and the long and short of such arguments is that the appellant's case is covered by the provisions of clauses (a), (c) and (f) of section 47 of the Employees' Old-Age Benefits Act, 1976 and, therefore, the appellant is not liable to make any contribution under the said Act. For facility of reference the provisions of section 47 of the said Act are reproduced below -- "

47. Act not to apply to certain persons.- Nothing in this Act shall apply to - (a) persons in the service of the State, including members of the armed forces, police force and railway servants; (b) persons in the service of a local council, a municipal committee, a cantonment board or any other local authority; (c) persons who are employed in services or installations connected with or incidental to the Armed Forces of Pakistan including an ordnance factory maintained by the Federal Government or Railway administration; (d) persons in the service of Water and Power Development Authority; (e) persons in the service of a bank or a banking company; (f) persons in the service of statutory bodies other than those employed in or in connection with the affairs of a factory [as defined in] section 2(j) of the Factories Act, 1934 (XXV of 1934), [or a mine as defined in the] Mines Act, 1923 (IV of 1923): Provided that workshops maintained exclusively for the purpose of repair or maintenance of equipment or vehicles used in such statutory bodies shall not be treated as factories for the purposes of this clause; (g) members of the employer's family [that is to say, the husband or wife and dependent children of the employer,] living in his house, in respect of their work for him and [* * * * * *." With reference to the Constitution of the Islamic Republic of Pakistan, 1973 and various 9ther laws the learned counsel for the appellant has maintained that the appellant is discharging functions "in the service Of the State", the functions being performed by the appellant are "connected with or incidental to the Armed Forces of Pakistan", the appellant is a statutory body and its Engineering Department is "maintained exclusively for the purpose of repair or maintenance of equipment or vehicles used in such statutory body" and, thus, by virtue of clauses (a), (c) and (f) of section 47 of the Employees' Old-Age Benefits Act, 1976 the provisions of the said Act do not apply to the appellant. The learned counsel for the respondents as well as the learned Deputy Attorney-General for Pakistan have, however, seriously contested every aspect of the above mentioned arguments advanced by the learned counsel for the appellant.

4. The whole-hearted reliance placed by the learned counsel for the appellant upon the above mentioned provisions of section 47 of the Employees' Old-Age Benefits Act, 1976 has, however, been found by us to be misplaced, if not misconceived. We have observed that according to subsection (4) of section 1 of the Employees' Old-Age Benefits Act, 1976 the said Act applies to every "industry" or "establishment" wherein ten or more "persons" are employed by the employer and by virtue of the provisions of clause (e)(iii) of section 2 of that Act an "establishment" means "a factory as defined in the Factories Act, 1934 (XXV of 1934)". It is not disputed by the learned counsel for the appellant that the Flight Kitchen and the Engineering Department of the appellant were got registered by the appellant itself under the Factories Act; 1934 and, thus, their status as an "establishment" for the purposes of the Employees' Old-Age Benefits Act, 1976 cannot be contested by the appellant. Section 46 of that Act provides as follows:-- "

46. Power to exempt.- The Federal Government-may, subject to such conditions as it thinks fit to impose, by notification in the official Gazette, exempt any establishment or industry from all or any of the provisions of this Act!' The provisions of section 46 reproduced above manifest that an "industry" or an "establishment" may be exempted by the Federal Government from all or any of the provisions of that Act but it has been conceded before us. by the learned counsel for the appellant that no such exemption has ever been granted by the Federal Government in favour of the appellant vis-a-vis its Flight Kitchen and Engineering Department. We have already observed above that the whole-hearted reliance placed by the learned counsel for the appellant upon different clauses of section 47 of that Act has been found by us to be inapt and the reason for that is that the provisions of section 47 deal with non-application of the provisions of the Employees' Old-Age Benefits Act, 1976 to some of the "persons" who are "employed" "in the service of" different departments, institutions or bodies specified in that section and the provisions of that section are not relevant to the "employers" of the relevant "industry" or "establishment". An appropriate example in this respect would be that of an employee required under section 9-B of that Act to pay a monthly contribution but by virtue of the provisions of section 47 that requirement of section 9-B would not be applicable to his case if he is in the service of or employed in any of the departments, institutions or bodies specified in that section. Upon a plain reading of the various provisions of that Act we have entertained no manner of doubt that whereas section 46 of that Act pertains to exemption to be granted by the Federal Government to an "establishment" or "industry" the provisions of section 47 of that Act do not relate to the employers of any "establishment" or "industry" but they only relate to the "persons" employed who were otherwise to be subjected to the requirements of that Act. As the mainstay of the arguments of the learned counsel for the appellant is different provisions of section 47 of the Employees' Old-Age Benefits Act, 1976 and as we have found that the provisions of section 47 of that Act have no application to the case of the appellant, therefore, no further discussion of the matter is required and, thus, this appeal is hereby dismissed with no order as to costs. M.A.K./P-5/SC Appeal dismissed.