' KHALIL AHMAD, J.--- The petitioner's mill is registered under the Employees' Old Age Benefits Act,.
1976 and contribute before 15th of every month in respect of all its ensured persons. The petitioner did not make their contribution in time and as such an amount of Rs,2,73,79,821 was due against the petitioner which included an additional amount of Rs,1,09,98,708 on account of increase due to nonpayment of contribution in time. An amicable settlement was agreed upon between the petitioner and respondent No,2 on the following points:---
(i) That Kohinoor Textile Mills (K.T.M.) shall pay their current contributions by 15th of each month.
(ii) That K.T.M. Is liable to pay Rs,5,00,000 as arrears and the amount will be paid in installments.
(iii) That K.T.M. w.e.f, July, 1987 shall pay Rs,1,00,000 on or before 20th of each month till such time the arrears are in full.
(iv) It was also agreed that the representative of the E.O.B.I. Will recommend the waiver of statutory increase to higher authorities, if the full principal amount is paid by the appellant.
2. According to the petitioner, he made payments of Rs,5,00,000 in May, 1987, Rs,5,00,000 in June, 1987 and thereafter made payments of remaining outstanding amount and as such full contribution was paid except statutory increase which according to item No,4 mentioned above was to be waived after approval from the higher authorities. The petitioner thereafter asked the respondents for the waiver of Rs,1,09,98,708 as per agreement dated 17-4-1988 and thereafter filed a petition under section 33 of the Employees' Old Age Benefit Act, 1976 before the adjudicating authority/respondent No,3. The respondent No,2 filed written statement that the petition be adjourned sine die till the decision by Head Office for waiver of statutory increase or the same be decided on merits. The adjudicating Officer vide order dated 29-6-2002 dismissed the petition. The petitioner preferred an " appeal under section 35 before the Board of Trustees of the E.O.B.I. At Karachi which was also dismissed by the authority on 7-4-2007. Hence this petition.
3. Learned counsel for the petitioner states that the respondents are bound by the agreement and as such the principles of promissory estoppel are attracted. The assessment was by way of agreement and not through scrutiny and both the parties had agreed in resolving the issue through mutual consent and in case the respondents does not stand by their commitment then entire exercise of assessm ent is to be taken afresh. Further contends that earlier the Board of Trustees had passed certain judgments in which they had waived the statutory increase. The learned counsel cited the case of Mahsara Industries and stated that Circular No,HO/B&C/CIR/R&C/89/3549, dated 27-12-1989 is still intact and has not so far been withdrawn.
4. Learned counsel for the respondents on the other hand contended that the levy is made under section 13 of the E.O.B.I., Act, 1976 and that the above circular has no force and cannot override the provisions of law.
5. Arguments heard. Record perused.
6. The law of promissory estoppel has been authoritatively dealt with by the august Supreme Court of Pakistan reported as Messrs Army Welfare Sugar Mills Ltd. v. Federation of Pakistan and others 1992 SCM R 1652 which is reproduced:--- "The doctrine of promissory estoppel is available in Pakistan against the Government and its functionaries, subject to inter alia, following limitations:---
(i) the doctrine of promissory estoppel cannot be invoked against the Legislature or the laws framed by it because the Legislature cannot make representation;
(ii) promissory estoppel cannot be invoked for directing the doing of the thing which was against the law when the representation was made or the promise held out;
(iii) no agency or authority can be held bound by a promise or representation not lawfully extended or given;
(iv) the doctrine of promissory estoppel will not apply where no steps have been taken consequent to the representation or inducement so as to irrevocably commit the property or the reputation of the party invoking it; and
(v) the party which has indulged in fraud or collusion for obtaining some benefits under the representation cannot be rewarded by the enforcement of the promise."
7. The Honourable Supreme Court in case reported as 2005 SCM R 186 observed that "it is established principle of law that rule framed under a statute are subordinate to the Act in which they are made and cannot repeal or contradict any provision of the Act from which they derive their authority". The impugned judgment is, therefore, in consonance with the law laid down by the Honourable Supreme Court of Pakistan on the subject. The rule of promissory estoppel is not applicable to the facts and circumstances of the case in hand. I do not find any exception to the findings of the Court below.
8. The learned counsel for the petitioner is unable to point out any illegality or jurisdictional defect in the orders passed by the learned Court below warranting interference by this Court in constitutional jurisdiction. This petition is, therefore, dismissed.