' SYED HAMID ALI SHAH, J.--- Brief facts giving rise to this petition are that petitioner company was served with a show-cause notice dated 23-1-1992, for payment of EOBI contribution from July, 1984 to December, 1991 at a rate of Rs,2,100 per month. An ex parte order for payment of Rs,38,600 from July, 1986 to December, 1991 was passed against the petitioner and subsequently statutory increase of an amount of Rs,69,300 was levied. Respondents resorted to the recovery of the amount under the Land Revenue Act and notices in this respect were issued on 8-8-1992, 6-12- 1992, 31-1-1993 and 23-5-1997. The claim under section 12(3) of EOB Act or demand of respondent against the petitioner was for a period from July, 1986 to December, 1991 and January, 1992 to November, 1992 making a total of Rs,2,42,550. The petitioner sought the setting aside of order passed against it including the warrants of arrest and attachment order, in appeal under section 33 of the EOB Act, 1976, before Adjudicating Authority/respondent No,2. Respondent No,2, dismissed the appeal vide order, dated 1-11-1997. Petitioner assailed the order of respondent No,2, in second appeal before the Board of Trustees EOBI, under section 35 of the EOB Act, 1976. Second appeal before respondent No,1, was dismissed vide order, dated 22-5-1999. The petitioner challenged in the instant petition the orders of respondents Nos.l and 2 passed on 22-5-1999 and 1-11-1997 respectively.
2. Learned counsel for the petitioner has argued that petitioner company was registered on 1-12- 1990 whereas the EOBI contribution was claimed from the petitioner from January, 1984 to December, 1990. The amount is not legally recoverable with regard to a period when the company was not in existence. It was argued further that claim of disputed amount by the respondents is on the basis of ex parte order and no record was available with the authorities. Assessment against the petitioner is without any inquiry and without examination of record. Learned counsel after addressing the arguments on these lines proceeded to argue that as per clause (cT of Rule 2 of the Employees' Old-Age Benefit (Contribution) Rules, the word "contribution" means the contribution which is the employer's shares of contribution under section 9 of the Act, 1976 and insured persons' share under section 9(b) of the Act, 1976. The word "institution" means State Life Insurance Corporation of Pakistan as per Rule 2(d) of EOBI (Audit and Accounts) Rules, 1997. He added that powers and functions under the EOB Act, 1976 are to be exercised by the institution which of the purposes of EOB Act, 1976 is State Life Insurance Corporation of Pakistan and thus, the assessment of contribution can only be made or determined under State Life Act. Any assessment or levy of contribution by any authority except State Life Corporation of Pakistan is without jurisdiction and not enforceable under law. He contended further that there are different employees working in the establishment of the petitioner, whose services are hired on different terms and wages. No assessm ent of contribution can be made without proper record. The assessment of contribution is without examination of relevant record and is not valid. He while placing reliance on the cases of 2004 PLC 63; 1990 PLC 21 and PLD 1997 SC 197, has contended that EOB contribution is not recoverable as arrears of Land Revenue.
3. Learned counsel for the respondents on the other hand has contended that the constitutional petition has been filed without a resolution, on behalf of the company. The writ is not competently filed and merits dismissal. He in respect of this contention has relied upon the case of Abdul Hameed Khan v. Mrs. Saeeda Khalid Kamal Khan PLD 2004 Kar.
17. He then raised another objection that Old-age Benefit Institution as per section 4(2) of EOB Act, 1976 is a body corporate but has not been sued in its independent capacity. Learned counsel then contended that petitioner while submitting PR-01 Form, itself admitted that number of its employees reached ten on 1-12-1990. The date of incorporation as mentioned in the Form was 1-12- 1990, while certificate of incorporation reveals that company was registered on 1-12-1987. He then argued that documents tiled with the written reply prove that relevant documentary evidence was called through letters dated 2-3-1991, 24-2-1991 and 6-10-1991 but the record was not produced.
Petitioner through letter dated 2-10-1991 sought time to produce record and the time was granted but record was not produced. Documents were again summoned through letters dated 1-7-1993 and 20-6-1996 but no record was provided. Adjudicating Authority sent officials of EOBI to check record but the same was not shown. Learned counsel submitted that in such circumstances the assessm ent was made under section 12(3) of the EOB Act, 1976, on the basis of available record. It was further argued that the EOBI was established under S.R.O.1276(I)/81, dated 3-11-1981 and nomination of State Life was cancelled through S.R.O.1277(I)/81, dated 3-11-1981. He in support of his contention has placed reliance on the cases of Messrs Volkervam (Pak.) Ltd. v. Sindh Employees'
Social Security Institution 1991 SCM R 2361, Fazale Ghafoor v. Chairman, Tribunal Land Dispute Dir, Swat and Chitral at Mardan and 6 others 1993 SCM R 1073 and Messrs Service Sales Corporation (Pvt.) Ltd. v. Assistant Director, Field Operation Employees' Old Age Benefits Institutions, Lahore and 2 others 1994 PLC 539.
4. Heard learned counsel for the parties and perused the record.
5. The lengthy arguments addressed by the learned counsel for petitioner that State Life Insurance Corporation is the authority to exercise power under the EOB Act have no force for various reasons: Firstly the nomination of State Life Insurance Corporation has been withdrawn through S.R.O.
1277(1)/81, dated 3-11-1981, secondly the petitioner is paying contribution as assessed and determined by authorities from December, 1999, onward. The petitioner has neither raised this objection before Adjudicating Authority or Board of Trustees nor it has been urged in the writ petition.
6. So far as the question of ex parte decision is concerned, there is sufficient evidence available on record to show that numerous opportunities were provided to the petitioner to produce record before concerned officials of EOBI, so that actual liability in terms of opted contribution be determined but the petitioner opted to stay aloof. The assessment under section 12(3) of EOB Act, 1976 was made on the basis of record available and the same was conveyed to the petitioner through letter, dated 6-10-1991. The objections to provisional assessment were invited and petitioner sought time till 5-11-1991 through letter, dated 2-10-1991. Neither the objections were filed nor the record was produced. Petitioner failed to produce record before Adjudicating Authority.
Muhammad Hafizullah (Deputy Director) and Shahid Mehmood (Executive Officer) were appointed as Commissioner under section 33 of the EOB Act, 1976, but no record was shown or provided.
Learned counsel for the petitioner has submitted that as per rules the petitioner company was to keep and preserve the record for a period of two years. The justification of non-production of record is hardly of any help to the petitioner as the provision of maintaining the record for two years pertains to the employer whom the certificate is issued as per the provisions of section 12 of the Act, 1976. Additionally the petitioner has neither provided any record for any period nor has allowed the respondents to examine the same. Petitioner was provided various opportunities of being heard which the petitioner has not availed. There was no option left with the respondents except to proceed and decide the matter on the basis of available record as per the provisions of section 12(3), the Employees' Old-age Benefit Act, 1976. The grounds urged in this writ petition are new grounds, which were not raised before the Adjudicating Authority as well as Board of Trustees and secondly the questions are of factual controversy, which cannot be considered in the writ jurisdiction.
7. For the foregoing, this writ petition has no force and is dismissed accordingly with no order as to the costs.