1. MRS. QAISER IQBAL, J.--- This miscellaneous appeal is directed against the judgment passed by the learned Sindh Social Security Court No,1, Karachi whereby the order passed by the respondent No,1 was maintained.
2. ' The appellants are engaged in various commercial activities, were notified under the Ordinance, 1965, to pay monthly contribution to the Sindh Employees' Social Security Institution, paid in normal course from time to time,, for a period commencing from January, 2001 to December, 2001 and the difference were deleted by the Director and Assistant Collector of the Sindh Employees' Social Security Institution, which were paid. SiMilar discrepancies were found in the year 2002. It is averred that the respondent No,2 visited the appellant establishment in the month of October, 2003, raised demand towards monthly contribution from July, 2001 to July, 2003 amounting to Rs,2,11,680 out of which Rs,50,000 was paid under protest. The appellant lodged claim for return of amount paid which was declined.
3. ' The respondent No,2 averred that the appellant had suppressed that 12 employees were serving in his warehouse located at Karachi Port Trust, Mai Kolachi Road, Karachi and did not pay contribution, therefore, additional contribution was sought on the collecting information in terms of section 22(3) of the Ordinance, 1965, and notice was sent for recovery of Rs,2,11,680 from July, 2001 to June, 2003, which was challenged against the respondent No,2, upheld on further enquiry by the respondent No, l.
4. ' Learned counsel for the appellant has contended that after checking record, the respondent No,2 had realized contribution, which could not be reopened on the flimsy grounds that a number of employees working in the warehouse of the appellant at Mai Kolachi Road, were 12. It is next urged that it could not normally be adjudged whether a worker was working for at least 24 hours per week he must be working for wages in connection with the work of the industry business or establishment working under a contract of service of apprenticeship. It is further urged that in the absence of such evidence demand of the respondent No,2 was illegal, unlawful and without any justification. The amount deposited by the appellant under protest towards contribution was liable to be returned to the appellant.
5. ' Learned counsel for the respondents has contended that the West Pakistan Employees' Social Security Ordinance, 1965 (herein referred to "Ordinance") is beneficiary legislation, in terms of clause (11) of section 2 of the Ordinance, an establishment, organization whether industrial, commercial, agricultural or otherwise can be notified for the purpose of making contribution of the workers employed, this liability to pay contribution is not dependent upon issuance of any notice of demand by the Institution and the employer cannot be permitted to take advantage of his own default. On issuance of necessary notification, obligation is squarely placed on the employer to furnish necessary returns to the Institution to pay prescribed contributions in respect of its own share and realize the same from the employees. In the case of Kohinoor Chemical Co. Limited v.
6. Sindh Employees' Social Security Institution PLD 1977 SC 197, after reviewing the scope of the Ordinance, 1965 following observations has been made:--- "(1) Once an establishment is notified under section 1(3) of the Ordinance, then the specified benefits under the Ordinance would accrue to all employees of the said establishment who are working either in the establishment or in connection with the work of the same. The latter category of employees may not be physically located at the notified address, but in that event an inquiry would be necessary to establish whether they are in fact working in connection with the work of the notified establishment. Such an inquiry should now be undertaken by the Social Security Institution with regard to the employees working in the Head Offices of both the establishments involved in these appeals;
(2) on the issuance of the necessary notification, the obligation is squarely placed on the employer to furnish the necessary returns to the Institution and to pay prescribed contributions in respect of its own share and realize the same from the employees, and credit the proceeds to the fund of the Institution. This liability to pay the contribution is not dependent upon the issuance of any notices of demand by the Institution and the employer cannot be permitted to take advantage of his own default;
(3) as regards the employees a distinction has to be made in view of the fact that the legislation is intended for their benefit, and if they have been prevented from making the contributions or availing of the benefits concerned owing to a default on the part of the employer, then it would not be in accordance with the spirit of the legislation to realize past contribution from the employees for the said period during which they were not treated as secured workers; and
(4) the arrears of contributions may not be realized from an employer for the period during which he had made alternative arrangements for affording the necessary benefits to the employees and had made a contribution in that behalf at least equal to the rate prescribed under the Ordinance and the Rules and Regulations framed thereunder. Otherwise, the realization of arrears would mean a double levy on the employer, without any correspondence benefits to his employees.
7. However, the existence of any such adequate alternative arrangements must be established to the satisfaction of the Social Security Institution."
8. ' It is next urged by the learned counsel for the respondents that the application for the refund of contribution was filed after inordinate delay, which ought to have been filed under section 25 of the Ordinance within the prescribed period of six months. The appellant filed application before a wrong forum after realizing, the mistake resorted to competent forum after expiry of more than one year, which was declined. In support of the above contentions, reliance has been placed upon the case of Sindh Employees' Social Security Institution v. Messrs Quetta Textile Mills Limited 1989 PLC (Karachi) 993.
9. ' Adverting to the next contention, whether owner of the industries/establishment is liable for employees engaged for his industry even through the contractor was dealt with in the case of SESSI. Reliance has been placed upon the case of Sindh Employees' Social Security Institution v.
10. Consolidated Sugar Mills Limited 1989 SCM R 888. The contention that the contractor should be taken to be employer and not the owner, the law-maker has intended to introduce the contractors also as employers and the owner of the establishment would be liable to pay contribution of such employees. In the case of Sindh Employees' Social Security Institution, Karachi v. Modern Textile Mills Limited 1999 PLC 210, the question about onus of the proof of the appellant was taken consideration following dictum, has been laid down:--- "Admittedly in the instant cases of demand of the contribution by the institution from the appellants establishment on the complaint of appellants establishment cases were reassessed on the basis of record/evidence produced by the appellants establishment where after the demands earlier made were reduced and the present demands stated were made, considering that the appellants establishment failed to produce the entire required record to the satisfaction of the respondents-institution, therefore, the demands made cannot be said to be in contravention of the rules. Reference may be made to (i) Messrs Vokervam (Pakistan) Limited v. Sindh Employees' Social Security Institution 1991 SCM R 2361 wherein the Lordship of Supreme Court held that assessment of contribution made on inspection of the ledgers and books of accounts could not be said to be in violation of law and rules when the establishment failed to prove that the amount claimed was incorrect and further that the institutions' officials would be entitled to inspect and examine any documents or books in which entries made in the pay roll or contribution schedule were reflected stated consequently cash book, ledgers of the appellants establishment would be relevant for examination of the said books containing entries in respect of the pay roll and contribution schedule which could be directly or indirectly checked and verified, (ii) Messrs Shahab Industries Limited v. Sindh Employees' Social Security Institution and another 1988 PLC 704 wherein the learned Single Judge of this Court observed that institution has a right to demand inspection of documents to ascertain correctness of returns submitted by establishment/employer and could make demand of contribution found payable by him as a result of scrutiny and further that the said right was not controlled by time limit prescribed under Regulation 8 of the West Pakistan Employees' Social Security Employees (Return and Record) 1967."
11. In view of the aforesaid circumstances and such provisions of law, I find no force and merits in the miscellaneous appeal filed by the appellant, concurrent findings of the Courts below are hereby maintained, the Miscellaneous Appeal No,17 of 2008 stands dismissed.