The petitioner-plaintiff impugns the concurrent orders of the learned trial Court dated 18.1.2000 and of the learned appellate Court dated 31.3.2001 whereby the plaint filed by the petitioner has been rejected.
2. I have heard learned counsel for the petitioner. The facts narrated by him are straightforward.
The petitioner is the owner of a pettol pump where, according to learned counsel, he employed two persons at a salary in excess of Rs. 3000/- per month. According to him, the provisions of the Punjab Employees Social Security Ordinance, 1965 are not attracted to the petitioner's business.
Even if the provisions of the said Ordinance are applicable, the two employees do not fall within the definition of the term `employee' given in Section 2(8)(f) of the aforesaid Ordinance because an employee in order to fall within the ambit of the said legal provision, has to be drawing a salary of less than Rs. 3000/- per month.
3. In the above circumstances and with the view to challenging the demand for social security contributions from the petitioner, he filed a suit. The respondents filed an application under Order 7, Rule 11 CPC praying that the plaint be rejected. The learned trial Court, vide order dated f8.1.2000, allowed the application and rejected the plaint. An appeal preferred by the petitioner was rejected by the learned appellate -Court vide order dated 31.3.2001. Hence, this revision petition.
4. Learned counsel for the petitioner has argued, firstly, that the learned Courts below have presumably proceeded under Order 7, Rule 11(d) of the CPC, which reads as under.- "11. Rejection of plaint--The plaint shall be rejected in the following cases:-- (a).....................................................
(b).....................................................
(c).....................................................
(d)where the suit appears from the statement in the plaint to be barred by any law.
However, the learned Courts below have not referred to any law whereunder the suit filed by the petitioner has been barred. Secondly, it is contended that the plaint disclosed a cause of action on the basis of the facts garroted therein and, briefly, referred to. above. It is, therefore, contended that the provisions of Order 7 Rule 11 CPC were not attracted in the present case.
5. Learned counsel for the respondent institution has, firstly, submitted that the establishment of the petitioner was duly mentioned in the notification issued under the Punjab Employees Social Security Ordinance, 1965. In addition, he has pointed out that the petitioner made social security contributions in respect of his employees subsequent to the issuance of the above referred notification. To substantiate this plea, he referred to the record of the institution available with him showing the contributions made by the petitioner on various dates pursuant to demand notices which had been issued to the petitioner by the respondent institution.
6. Show-cause notices including one dated 4.1.96 and a demand notice dated 13.3.97 were also referred to by learned counsel for the respondent. Lastly, learned counsel for the respondent adverted to a notice dated 5.5.97 issued to the petitioner under Section 81 of the Land Revenue Act followed by a warrant under Section 82 of the said statute.
7. It is only after the aforesaid notice and warrants were issued that the petitioner filed his declaratory suit out of which this petition has arisen. The prayer made by the petitioner, inter-alia, sought a permanent injunction' to restrain the respondent from taking coercive measures for recovery of any social security contribution from the petitioner.
8. The facts narrated above are sufficient to show that the controversy between the parties fell within the ambit of Section 57 of the Social Security Ordinance. It has been noted therein that any dispute as to the rate of contribution payable by an employer was to be determined by the institution. Clause (f) of Section 57, which is residual in nature, is in the following terms: "(f) any other matter in respect of any contribution or other dues payable or recoverable under this Ordinance;"
Even if this clause is read ejusdem generis, it is evident that, in the first instance, the controversy raised by the petitioner had to be agitated before the respondent institution itself. Thereafter if the petitioner was aggrieved of the decision rendered by the institution, remedies by way of appeal and further appeal have been provided in the Social Security Ordinance.
9. Learned counsel for the petitioner, however, reiterated his argument that the jurisdiction of the Civil Court had not expressly been ousted by the statute. This contention, however, is misconceived, particularly, in view of the submissions made on behalf of the respondent institution that the petitioner had been making contributions under the Social Security Ordinance, but had only resorted to litigation in the Civil Court when coercive process for recovery of contributions was initiated against him under the Land Revenue Act. I may add at this stage that learned counsel for the petitioner denied having made contributions to the respondent institution as alleged by the respondent. This denial is not sufficient to take the petitioner's case beyond the pale of Section 57 referred to above. Needless to say the petitioner will be entitled to raise his pleas, but this will be before the respondent institution and in accordance with the procedure laid down in the Social Security Ordinance.
10.Reference at this stage may usefully be made to the case titled Sunshine Diaries Ltd Vs. Comm.
Sind Employees Social Security Institution & others (PLJ 1976 Karachi 328) which supports the plea of the respondent that by necessary implication any matters, which are covered by Section 57 of the Social Security Ordinance, are to be decided under the said Ordinance.
11.Learned counsel for the petitioner on the other hand, referred to the case titled Messrs Standard Printing Press Vs. Sind Employees' Social Security Institution (PLD 1978 Karachi 945) to argue that where the very issuance of a notification under the Social Security Ordinance was under challenge, the matter was beyond the jurisdiction of the forums established under the said Ordinance. I have gone through the cited precedent and find the same to be clearly distinguishable on facts. In the said case the question was whether the notification in question was ultra vires being in excess of the authority conferred by the Ordinance or because it was violative of Article 25 of the Constitution. No such question arises in this case. The mere fact that the petitioner disputes the basis on which his establishment has been included in the notification, is not sufficient for holding that such notification is in excess of the authority conferred by the Ordinance. The power to issue the notification undeniably vests in the respondent Institution. The factual dispute raised by the petitioner is qualitatively different from the question of vires, and the same can be adequately agitated by the petitioner before the forums set up under the Social Security Ordinance.
12.In view of the foregoing discussion, this revision petition is dismissed being without force.