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. 2100/- per month, An ex parte order for payment of Rs. 38,600/- from July 1986 to December, 1991 was passed against the petition 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 EOBI Act or demand of respondent against the petition was for a period from July 1986 to December 1991 and January 1992 in 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 EOB Act, 1986, .Before adjudicating authority/respondent No. 2. Respondent No. 2, dismissed the appeal vide order dated 01.11.1997 Petitioner assailed the order of respondent No. 2, in second appeal before the Bound of Trustees EOBL, under Section 35 of the EOB Act, 1976. Second appeal before respondent No. 1, was dismissed vide order dated 22.5.1999. The petition has challenged in the instant petition the orders of respondents Nos. 1 and 2 passed on 22.5.1999 and 1.1.1997 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 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 (c) of Rule 2 of the Employees Old-age Benefit (Contribution) Rules, the world 'contribution' means the contribution which is the employer's share 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 & Accounts) Rules 1977. He added that powers and functions under the EOB Act 1976 are to be exercised by the institution which for 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; where 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 Khaid Kamal Khan" (PLD 2004 Karachi 17). He then raised another objection, that Old-age Benefit Institution as per Section 4(2) of^BOB Act 1976 is a body corporate but has not been sued in its independent capacity learned counted then contended that petitioner while submitting PR-01, form, itself admitted that number of its employees reached ten on 01.12.1990. 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 filed 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 letter 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 assessment 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 SRO 1276(1 )/18, dated 3.11.1981 and nomination of State Life was cancelled through SRO. 1277(1 )/81, dated 3.11.1981 and nomination of State Life was cancelled through SRO 1277(1 )/81, dated 3.11.1981 He in support his contention has placed reliance on the cases "M/s. Volkervan (Pak) Ltd. V. Sindh Employees, Social- Security Institution" of 1991 SCMR 2361, "Fazale Ghafoor v'. Chairman Tribunal Land Disputes, Dir. Swat and Chitral at Mardan and 6 others"
(1993 SCMR 1073) and "M/s. Service Sales Corporation (Pvt.) Ltd. -V. Assistant Director, Field Operation Employees Old Age: Benefits Institution, Lahore and 2 others" (PLJ 1994 Lahore 344).
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 SRO 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 Trusties 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 he 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 06.10.1991. 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) were appointed as Commission under Section 33 of 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 for non-production of record is hardly of any help to the petitioner, as the provision of maintaining the record for two years pertains to 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 o\ being heard which the petitioner has hot 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) of Employee' 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.