' This appeal calls in question the orders dated 7-3-1978 and 1-1-1978 respectively passed by the Judge, Social Security Court, Punjab, Lahore and the Commissioner, Punjab Employees' Social Security Institution, Lahore.
2. The facts necessary for the purposes of this appeal, briefly stated, are that vide Notification No, V-II-II/1175 dated 7-9-1976 published in the Punjab Gazette, Extraordinary, dated 2-11-1976 the cover of Social Security Scheme was extended to the employees of industries and establishments situated on Sheikhupura Road. The appellant's unit was covered by the notification at Serial No, 13.
The operation of the Scheme was, however, later on suspended by the Government of the Punjab through its Labour Department's Notification No, Lab-V-II-II/1975 dated 26-3-1977 published in the Extraordinary issue of the Punjab Gazette dated 20-4-1977. The Punjab Employees' Social Security Institution, Lahore raised a demand against the appellant for the period during which the cover of social security remained available to its employees. The demand raised was in the sum of Rs, 72,555 plus an increase of Rs, 36,277 under section 23 of the West Pakistan Social Security Ordinance, 1965. The total demand was for the sum of Rs, 1,08,832.50.
' The appellant feeling aggrieved of this demand presented a petition under section 57 of the Ordinance. This petition was decided by the Commissioner, Punjab Employees' Social Security Institution, Lahore, by his order dated 1-1-1978. He directed that 40 per cent. Of the contribution from the appellant's unit shall be refunded to it by the Institution as the unit had provided medical cover during the period in question to the workers. Due to the peculiar nature of the issues involved he also directed that the increase demanded under section 23 of the Ordinance shall also not be charged from the appellant in case the arrears of contribution are paid within 30 days of the date of his order.
' Still dissatisfied the appellant preferred an appeal to the Judge, Social Security Court, Punjab, Lahore under section 59 of the West Pakistan Employees Social Security Ordinance, 1965. This appeal was dismissed with costs by the Judge, Social Security Court Punjab, Lahore, by his order dated 7-3-1978. He reversed the order of the Commissioner and held that the appellant is liable to pay total contribution to the Institution. It was, however, directed that the increase shall be levied at the rate of 20 per cent of the total amount of contribution. Hence this appeal under section 64 of the Ordinance.
3. The learned counsel for the appellant contended- ' firstly, that the respondent Institution asked for the list of employees from the appellant drawing a salary up to Rs, 1,000 and calculated the contribution thereon whereas under section 20(4) of the Ordinance contribution could be charged in respect of wages not exceeding Rs, 20 per day. In support of the above contention the learned counsel placed reliance on Messrs Daud Cotton Mills Ltd., Karachi v. Socia Security Institution, Karachi PLD 1978 Kar. 744 ; ' secondly, that since the employees of the appellant were not provided with any medical facility by the Institution no contribution could be asked for from the appellant as the contribution is only to be charged for services rendered and is not a tax ; ' thirdly, that the Institution having not issued cards to the employee for availing of the facility even after the submission of the list o employees by the appellant cannot in any case claim contribution of the period after the date when the list of employees had been provide viz. 7-2-1977 ; and ' lastly, that the Social Security Court erred in law in reposing the increase when the same had been condoned by the Commissioner o due consideration of the matter especially when the Social Security Court itself kept the increase at 20% only. It was urged that the interference in the discretion exercised by the Commissioner in the above regard was wholly unjustified on legal plane.
4. The learned counsel for the respondents, on the other hand, sub mitted that the contention 'firstly" raised by the learned counsel for t appellant had not been raised before the Commissioner, Punjab Employee Social Security Institution, Lahore and the Judge, Social Security Court Punjab, Lahore and as such should not be allowed to be raised in this appeal. He was, however, not in a position to controvert the contention on the factual plane as to whether the contribution had been charged in accordance with the provisions of section 20(4) of the Ordinance or had been levied on wages up to rupees one thousand per month.
5. He next contended that the non-issuing of cards by the Punjab Employees Social Security Institution was not on account of any neglect on its part but on account of the non-co-operation of the appellant and its employees as has been admitted in para. 3 of the application filed before the Commissioner, Punjab Employees' Social Security Institution under section 57 of the Ordinance. He urged that no grievance can be raised by the appellant for the non-issuing of the cards especially when the medical treatment was available to the employees notwithstanding the non-issuing of the cards and a medical aid post was established on Sheikhupura Road.
6. As regards the contention that the Social Security Court could not reimpose the increase once the same had been condoned by the Commissioner, Punjab Employees' Social Security Institution, the learned counsel for the respondents urged that the provisions of section 23 are mandatory and once it is established that there has been default in payment of contribution the increase at the specified rates follows automatically and that the order of the Judge, Social Security Court, Punjab, itself reducing the increase from 50% to 20% is liable to be reversed and the total increase should be ordered to be recovered.
7. Having given consideration to the controversy involved I am of the opinion that the fundamental question which requires determination in the case in hand is as to whether the contribution demanded by the Punjab Employees Social Security Institution was in accordance with the provisions contained in subsection (4) of section 20 of the West Pakistan Employees' Social Security Ordinance, 1965 ?
8. The record shows that the notice dated 2-10-1976 issued by the Deputy Director of the Institution called for a list of the persons employed by the appellant who were drawing wages up to Rs, 1,000 per month. In response to this notice the list was provided by the appellant on 7-2-1977. As already pointed out above it was urged on behalf of the appellant that levy of the basic contribution has been made on the basis of the above list on wages up to rupees one thousand. This contention on the factual plane has not been controverted on behalf of the respondents and the learned counsel appearing on their behalf could only urge that he is not in a position to admit or deny the contention. The obvious conclusion from the above position, therefore, would be that the matter requires re-examination as to whether the contribution has been charged in accordance with law or not. Subsection (4) of section 20 of the Ordinance in very clear terms provides that no contribution shall be payable on wages which are in excess of Rs, 20 per day. Notwithstanding the position that the definition of "employee" as contained in subsection (8) of section 2 of the Ordinance was amended and as per amended clause (f) the employee to be excluded was any person employed on wages exceeding rupees one thousand per mensem, subsection (4) of section 20 was not amended. Resultantly the contribution could only be charged on wages up to Rs, 20 per day as provided by the charging section 20 of the Ordinance.
9. In Messrs Daud Cotton Mills Ltd., Karachi v. Social Security Institution, Karachi, a similar question came up for consideration when it was held that the contribution could only be demanded as provided by subsection (4) of section 20 of the Ordinance notwithstanding the position that amendment had been made in section 2(8) ( f) of the Ordinance.
10. The net result of the above discussion is that in the absence of a positive assertion on behalf of the Institution as to the manner of calculation oil the contribution it would be just and fair to remand the case to the Institution with the direction to investigate into the question as to whether the contribution demanded by it had been calculated in accordance with the provision of law governing the subject viz. Section 20(4) of the Ordinance.
11. The objection raised on behalf of the respondents that this point should not be allowed to be urged in this appeal as it was not taken up before the Commissioner, Punjab Employees' Social Security Institution, Lahore and the Judge, Social Security Court, Punjab, Lahore, suffice it to say, is not tenable. The matter under consideration before me is a First Appeal and the point raised being that of law squarely falls within the ambit of section 64 of the Ordinance under which the appeal lies to this Court.
12. Apart altogether from the above position, the ground that the claim of the Institution as made upon the appellant was exaggerated and wholly unjustified, has been specifically taken in the petition filed by the appellant before the Commissioner, Punjab Employees' Social Security Institution, Lahore under section 57 of the Ordinance. The objection of the learned counsel for the respondents, therefore, cannot be sustained in law.
13. Since I have come to the conclusion that the appeal merits to be accepted and the case remanded to the Institution, I do not feel called upon to deal with the other contentions raised on behalf of the parties as most of them are dependent on the determination of the basic question on which the case has been remanded.
14. As a result of the above discussion, this appeal is accepted and serving aside the orders of the Judge, Social Security Court, Punjab, Lahore dated 7-3-1978 and the Commissioner, Punjab Employees' Social Security Institution, Lahore dated 1-1-1978, the case is remanded to the Punjab1 Employees' Social Security Institution, Lahore for adjudication afresh in accordance with law after notice to the parties.
' There will, however, be no order as to costs. PLD 1978 Kar. 744