' JAVED IQBAL, J.---This appeal with leave of the ,Court is directed against judgment dated 20.5.2003 whereby Constitutional petition preferred on behalf of appellant has been dismissed by learned Division Bench of High Court of Sindh, Karachi.
2. The facts of the case have in some detail been set out in the judgment impugned and need not therefore, be reproduced herein extenso .
3. Leave to appeal was granted by means of order dated 8.10.2003 which is reproduced herein below for ready reference:- ' After hearing the learned counsel for the parties we are of the view that this 'case requires deeper consideration with regard to the interpretation of Old Age Employees Benefits Act and as to whether a person employed through contractor in an establishment or an industry is covered by the aforesaid Statute.
'Leave to appeal is granted accordingly. Disputed amount shall be deposited in Court."
4. Mr. Muhammad Humayoon, learned ASC entered appearance on behalf of appellant and urged with vehemence that legal and factual aspects of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice as judgment impugned being perverse is liable to he set aside. It is next contended that the relevant provisions of the Employees Old Age Benefits Act, 1976 (herein after referred to as the EOAB Act, 1976) have been misinterpreted and misconstrued catising serious prejudice against the appellant: In order to substantiate the said contention it is argued that contribution under, section 9 of the EOAB Act, 1976 are payable every month by the employer td The Institution in respect of every person in his insurable employment at the rate of five percent of his wage as prescribed under the relevant provisions of law. The demand made by the Director EOBI has been objected and criticized on the ground that no such demand could have been made qua the persons engaged/employed by different employers and, therefore, they have been excluded from the provisions as enumerated in section 2(f)(iv) of Standing Orders Ordinance, 1968 and section 2(x)(f) of IRO, 2002. It is contended emphatically .That the employees which were never employed by the appellant does not fall within the definition of employee", "employer", "insured person" and "insurable employment" as defined in section 2 (bb), (c)(i) and (j) of the EOAB Act, 1976. It is contended that the learned Division Bench has failed to examine that the employees qua which contribution was asked were employed by independent contractor having no concern whatsoever with M/s. Bolan Mining Enterprises (appellant), hence the demand being unlawful should have been declared as such because such an employment has been recognized as an independent "industrial establishment" by means of section 2(x)(0 of IRO, 2002. Lastly it is argued that the impugned judgment dated 20.5.2003 passed by learned High Court of Sindh, decision dated 8.7.1992 passed by learned Adjudicating Authority and decision dated 30.10.1989 passed by the Board of Trustees be declared illegal being arbitrary, contradictory and based on misconstruction and misinterpretation of relevant laws.
5. We have carefully examined the above contentions in the light of relevant provisions of law and record of the case. We have minutely perused the decisions made by the Adjudicating Authority and the Board of Trustees as well as the judgment impugned. After having gone through the entire record, the case of appellant seems to be that the Contractor by whom such employees were recruited is liable to pay contribution in terms of section 9 of the EOAB Act, 1976 and the appellant cannot be held responsible for such payment in view of the provisions as enumerated under section 2(bb), (c), (i), (i) and section 9 of the EOAB' Act, 1976. The prime contention raised before the learned High Court as well as Adjudicating Authority seems to be the definition of "industrial establishment" given in the Standing Order 2(f) whereby the establishment of a contractor has been considered as an independent establishment. In fact the controversy revolves around the meanings of "employee" as enumerated in section 2(bb), (c), (d) of the EOAB Act, 1976, which is reproduced herein below for ready reference:-- "2(bb). ."employee" means any -person employed, whether directly or through any other person, for wages or otherwise, to do any skilled or unskilled, supervisory, clerical, manual or other work in or in connection with the affairs of an industry or establishment, under a contract of service or apprenticeship, whether written or oral, express or implied, and includes such person when laid off] Provided that a director of a limited company or of a corporation set up under any law shall not he treated as an employee under this Act, irrespective of, his wages or emoluments];
(c) "employee:, in relation to an industry or establishment, means any person who employs, either directly or through any other person, any (i) in the case of an individual, an heir, successor, administrator or assign,
(ii) a person who has ultimate control over the affairs of an industry or establishment, or where the affairs of an industry or establishment are entrusted to any other person (whether called a managing agent, managing director, manager, superintendent, secretary or by any other name), such other person; and
(d) "employment 'injury" means a personal injury to an insured person caused by an accident, or by such occupational disease as may be specified in the regulations, arising out of and in the course of his employment".
6. The language as employed to define "employee" is free from any ambiguity as it has been couched in a very simple and plain/language 'and no scholarly interpretation whatsoever is called for. It cannot be stretched too far as suggested by Mr. Muhammad Humayoon learned ASC on behalf of appellant because the definition of "employer" has removed all the doubts if any which means any person who employs either directly or through any other person any employee meaning thereby that it would be immaterial to consider by whom an employee was got employed. The only question which needs determination would be with whom such employee is performing his duties. It is not disputed that the employees under question are performing their duties with M/s. Bolan Mining Enterprises (appellant) and are being paid as such. The learned ASC on behalf of appellant has argued in oblivion,. Of the fact that "employees', "contractor" and "employees got employed through contractor" are not synonymous because such employees are not performing their , duties with the contractor who had just managed their employment with the M/s. Bolan Mining Enterprises (appellant). It can be thus inferred safely that the contractor had acted just an agent or a middle man by whom the services of such employees were secured.
Besides that such employees have never been excluded from the definition of "employee". It is an admitted position that such employees are under the administrative and financial control of employer i.e, M/s. Bolan Mining Enterpries (appellant) and the contractor by whom such manpower was provided does not figure in The learned AS(' was asked pointedly that how such employees got employed by the contractor can be deprived from the benefits as conferred upon them under the EOAB Act, 1976 which is a beneficial legislation and the question of preferential treatment or discimitiation does not arise but no answer could he given and rightly so because there can be no answer as such employees by no stretch of imagination can be deprived of any benefit conferred under the EOAB Act, 1976. It is worth mentioning that such employees are performing their duties alongwith other employees under same management and therefore, the source of their employment would immaterial.
7. We have also adverted to the dictum laid down in cases titled Sindh Employees ' SSI v.Consolidated Sugar Mills Ltd (1989. SCMR 887), relevant portion whereof is reproduced herein below:-- ' "The definition of employer' has two extremely relevant features for understanding its meaning and scope. Firstly, in the case of Works and undertakings on behalf of the State, the contractor or the licensee carrying on the work has been made the employer.. Secondly, in every other case' that is in which State's interest is not in that manner directly involved "the owner of the industry business; undertaking or establishment" in which an employee works" has been made the employer. On these two features, without for the present examining the concept of employee, the respondent being the owner would be the employer.
' Coining to the definition of employee, the requirements are that (i) he must normally be working for at lea'st twenty-four hours per week; (ii) he must be working for wages; (iii) he must be working in connection with the work of the industry, business, undertaking or establishment: (iv) he must be working under a contract of service or apprenticeship. The exclusions are for the present not relevant. What the High Court considered as deficient was that "neither the amount of wages nor the terms and conditions on which these workers will be employed by the contractors is spelt out from these agreements" These deficiencies were not the requirements of the definition, It was not the finding that no wages were at all paid by the contractor or that they were not employed on contract of service. All the terms of the contract have not to be established once the contractual relationship is established.There appears to be a ,mistaken impression that the contract of employment has to be between the owner and the employee. The definition of employer and employee do not contain or exhibit any such constraint or limitation, In - this context of these definitions the charging provision (section 20) leaves no manner of doubt or ambiguity. Employer has been defined to mean the owner and the owner has been charged under section 20 for contribution. Even where the owner does not fall strictly within the definition of any employer as in the case of State undertaking or an owner of a plot over which he wants to get a building constructed through the Contractor, the liability under the Ordinance has been cast on the State under sub-section (9) and on the owner of the, building under sub-section (8) of section ,20. Such extensions cannot be interpreted as to imply the exclusion of other owners defined as employers but as including them within the charging provisions. Reading these provisions together the conclusion is inescapable that the owner of the industry is liable for employees engaged for his industry even through the contractor, The contention that the Contractor should be taken to be employer and not the owner, as expressed in the agreements with the contractors and made liable for the contribution, cuts across the scheme of the statute where it was intended by law to make the Contractor, the employer the statute made provision for it directly [State undertakings-Section 2(9)] or indirectly [section 20(8) and section 20(9)]. By construction or interpretation if the Courts were. To introduce such contractors also as employers on the basis of contracts or otherwise, then the Court would be rewriting the law itself. Such an interpretation being in derogation of the express provision that "in every other case" it is the owner who is to be the employer".
8. The law laid down in case of Sindh Employees' SSI (supra) is applicable and the question of any deprivation of such employees does not arise. Even otherwise the provisions as enumerated in section 9(1) of the EOAB Act, 1976 provides that every employer shall pay contribution in respect of every person in his insurable employment read with the provisions as contained in section 2(bb) and 2(c) of the EOAB Act, 1976 whereby the "employee" and "employer" have been defined and, all the doubts if any have been removed by giving such an exhaustive definition of "employee". And "employer". The learned ASC at this juncture was asked that how section 9 of the EOAB Act, 1976 being charging section cannot be made applicable to such employees but no answer could he given. In our view a futile attempt has been made to frustrate the beneficial provisions of Labour Laws with an attempt to evade statutory liability by exploiting certain legal provisions of law and such like techniques and mechanism are usually evolved to avoid financial responsibilities having complete legal sanctity behind it which cannot be appreciated.
9. In the light of what has been discussed herein above, M/s. Bolan Mining Enterprises (appellant) is bound to contribute towards the relevant fund in respect of such employees as it is a legal and mandatory obligation which is to be fulfilled. The appeal being devoid of merits is dismissed.