' Petitioner challenged the show-cause notice dated 9-4-1996 issued under the Employees Old Age Benefits Act, 1976 through which a demand for payment of Rs,13,29,394 was raised. This notice was initially challenged before the Adjudicating Authority established under the said Act. Vide order dated 12-8-1996, the petition was disposed of with the observation that the demand raised was not illegal and if the petitioner had any objection with regard to the assessment made, request for constitution of an independent commission to check the record could be made. This order was challenged in appeal which was dismissed by the Appellate Authority vide order dated 20-2-1999 on the ground that the petitioner was bound to make the afore-referred payment as it was the Employer within the meaning of section 2(c) of the employees Old Age Benefits Act, 1976; that the job of the contractor, who supplied the workers, was merely supervisory in nature and that the commission appointed to verify the factual position had also given a report against the petitioner.
2. Learned counsel for the petitioner, in support of this petition made following submissions:--
(i) that the definition of the "employee" and the "employer" as given in the Employees Old Age Benefits Act, 1976 presupposes a contract with the employer and the employees which, in the instant case, is wanting and the petitioner cannot be classified as an employer to be burdened with the liability in' terms of the impugned demand;
(ii) that the contractor was given certain tasks by the petitioner. Hd. Employed workers who were responsible to the former and the petitioner was not party to their mutual contract;
(iii) that the law laid down in Sindh Employees Social Security Institution v. Consolidated Sugar Mills Limited (1989 SCM R 888) is distinguishable and is not attracted to the facts and circumstances of the case. He relied on another judgment of the august Supreme Court of Pakistan in Farid Ahmad v.
Pakistan Burmah Shell Limited and others (1987 SCM R 1463). However, learned counsel in all fairness, submitted that this Court in a judgment reported in Crescent Textile Mills Limited through Manager Accounts. SadiqSaleem v. Board of. Trustees,Employees Old Age Benefits Institution and 2 others (2003 PLC 41), has rendered a judgment which is supportive of the respondent's stand.
3. Learned counsel for the respondent defended the impugned judgments by submitting that petitioner squarely falls within the definition of an employer as given in section 2(c) of the Employees Old Age Benefits Act, .1976; that the Act beneficial to the employees has to be interpreted in the spirit in which it was enacted and that this Court may not like to interfere in the concurrent judgments passed by the Tribunal of competent jurisdiction.
4. I have heard learned counsel for the parties, gone through the impugned judgment and have considered the issues raised.
5. Learned counsel for the petitioner laid much stress on the point that both the Tribunals below have failed to appreciate the distinction between a contractor, who has been engaged to procure the necessary labour, and a contractor, who has been entrusted to perform certain functions in the establishment." In the latter case, he contended, the contractor engages his own workers, his own transport to carry out the work assigned and the business concern which awards the contract has nothing to do with the terms and conditions of the employment of workers engaged by the contractor. This argument would not be tenable in the facts and circumstances of this case. Firstly, because there are concurrent findings to the effect that the petitioner is an employer and that it is he who hires and fires the employees. Secondly, the Appellate Authority, with the consent of both the parties, applied a commission "to find out the short payment and the status of the contractors as well as the mode of payment of the contract amount by the appellants". It submitted a report dated 19-2-1997, placed on record at page 33 of the petition. This three members commission report gave a categorical finding that the effective control over the employees is that of the petitioner; that it is he who fixes wages and salaries and that the employees,..Though on the face of it they are employed by the contractor. They are in fact employees of the petitioner, it held in the report as under:-- "The above structure of the contractors clearly shows that the whole control on contractual labour is of the Appellant's establishment. The number of employees and the rate of wages/salaries is fixed by the Appellant's establishment.
' These conactors are paying Social Security contributions but they were not independently notified.
The contribution in respect of two contractors are being made under the registration number of the Appellant as the said contractors are not independentestablishment, we have no doubt in our mind that the employees of the contactors working in this establishment are in fact the employees of the Appellants."
6. In the entire body of the petition, petitioner has not challenged the finding of fact given by the afore-referred three member commission, no mala fide or misconduct was alleged against any member of the commission either. This finding of fact cannot be interfered with in these proceedings as that would entail a factual inquiry and recording of evidence, which exercise under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 cannot be resorted to unless there are exceptionable circumstances. In Sindh Employees Social Security Institution v.
Consolidated Sugar Mills Limited (1989 SCM R 888), the condition that if the employees are arranged by a contractor then the owner of -the establishments is absolved from making the contribution under the West Pakistan Employees' Social Security Ordinance (X of 1965), was repelled and at page 894, it was held as follows:-- ' There appears to be a mistaken impression that thecontract of employment has to be between the owner and the employee. The definition of employer and employee do not contain or exhibit any such constraint or limitation.
' In this context of these definitions the charging provision (section 20) leaves no manner of doubt or ambiguity. Employer has been defined to mean the owner and the owner has been charged under section 20 for contribution. Even where the owner does not fall strictly within the definition of an employer as in the case of State undertaking or an owner of a plot over which he wants to get a building constructed through the Contractor, the liability under the Ordinance has been cast on the State under subsection (9) and on the owner of the building under subsection (8) of section 20.
Such extension cannot be interpreted as to imply the exclusion of other owners defined as employers but as including them within the charging provisions. Reading these provisions together the conclusion is inescapable that the owner of the industry is liable for employees engaged for his industry even through the contractor...."
' Petitioner's learned counsel tried to distinguish the afore referred judgment by submitting that under section 20 of the West Pakistan Employees' Social Security Ordinance (X of 1965), an employer has been defined to mean the owner and, therefore, he is employed to make the payment whereas in case in hand there is no reference to the owner in the definition clause and the employer has been defined as under:- "Employer means in the case of works executed or undertakingscarried on by any contractor or licensee on behalf of the State, the contractor or licensee working for the State,.And in every other case. The owner of the industry, business, undertaking or establishment in which an employee works and includes any agent, manager or representative of the owner."
The contention of 'petitioner's learned counsel and the distinction being drawn between charging provisions of the two enactments are misconceived because in either case the emphasis is on a person in an industry or establishment who has the authority to employ and has B control over the establishment whether in the capacity of an owner or Contractor, Manager, Superintendent and Secretary etc. Thus in both the enactments the common elements with regard to the nature of role is that of an employer. Learned counsel, however, has been fair to point out that this Court has already held that "employees even on contract are employees under section 2(bb) of the Employees Old Age Benefits Act, 1976 in a judgment reported in Crescent Textile Mills Limited through Manager Accounts, SadiqSaleem v. Board of Trustees, Employees Old Age Benefits Institution and 2 others (2003 PLC 41) wherein, relying on the judgment of the august Supreme Court of Pakistan, at page 46, it has been held as under:- ' It has already been settled that the employees on thecontract are employed in the definition of section 2(bb) of the Act, hew the petitioners were bound to deposit the amount before the respondent No,3 and even otherwisePetitioner has filed the evasive reply of the show-cause notice for the payment of the dues issued by the respondent No,3 and no specific stand has been taken throughout the proceedings before filing a petition under section 33 of the Employees Old Age Benefits Act, 1976 challenging dues, directed to be paid about the employees on contract and first time this question had been raised before the respondent No,2 and there has not been mentioned a detail of the employees who are employees of the. Contractor and the distinction as drawn, in 1989 PLC 434 has also not been mentioned that these workers do not fall within the definition of workers for the deposit of the dues by the petitioner...." .
7. For what has been discussed above, I do not find any merit in this petition, which is hereby dismissed with no orders as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.