The petitioner M/s. YZ CNG Station, through its Sole Proprietor Col (R) Yunus Ali Raza, invoked the constitutional jurisdiction of this Court with the following prayer:--
(a) That the instant Petition be allowed with costs;
(b) That the impugned notification may be declared as illegal, irrational, without lawful authority and of no legal effect and set aside,
(c) That the respondents may be restrained from issuing any further adverse notifications, which would have an adverse affect on the petitioners.
(d) That a declaration may be given that the Employees Old Age Benefits Act, 1976 is not applicable to the Petitioner's CNG station.
(e) That a declaration be given that the registration of the Appellant's CNG station is without reason and lawful authority, hence liable to be cancelled with a direction of exemption under Section 46 of the Employees Old Age Benefits Act, 1976.
(f) That any other relief deemed appropriate under the circumstances may be granted to the petitioner.
2. Brief facts gleaning out from the instant writ petition are that petitioner, is running a CNG Station namely M/s. YZ CNG, situated on the Main Grand Trunk Road, Tarnol, Islamabad, since October, 2008. Respondent No, 1 is Employees Old Age Benefits Institution established under Section 4 of the Employees Old Age Benefits Act, 1976 and directly comes under the supervision and ambit of Respondent No,
2. Respondent No, 2 is the concerned ministry governing the matters pertaining to Labour, Manpower & Overseas Pakistanis'. Petitioner established the CNG Station with multiple consumer facilities which include an equipment/compressor room, two gas dispensers, a tuck shop, washing station, and a tire shop. Washing station, tuck shop and tire shop in the station have been leased to the external, independent parties for daily operations on monthly rental basis, persons for the above mentioned facilities do not have a master-servant, and/or employer- employee relationship with petitioner.
3. Petitioner is assisted by a full time manager namely Mr. Manzoor, who has relevant experience of handling of the machinery/equipment, cash & accounts; therefore, acts as the sole technician, cashier and the accountant for the station. Moreover, a guard has also been permanently hired for security services. For the purpose of gas filling via media, two dispensers, petitioner has personnel limited to two in number, on a daily basis for the gas filling at a daily wage scheme. Due to petitioner's vast financial liabilities towards the station, coupled with the increased poverty and financial need of the personnel; paid on daily wage, as per their respective input and do not commit and bind to a permanent job at the station, therefore, cannot be treated as employees of the station.
4. Vide letter dated 27.05.2009 titled "Registration of Establishment Etc. of Employees Old Age Benefit" petitioner informed the Institution of the status of employees, employed at the station.
Petitioner had candidly informed the Institution of his interalia financial burden of the loan and present economic climate of the CNG business which includes the major burden of electric load shedding and a consistent increase in the duration of gas load shedding. For this very reason petitioner stressed upon his inability to hire more than three employees for running the station.
Petitioner had also prayed for exemption from being registered but the institution has not replied to this letter, till date. Furthermore, the institution in a unilateral manner registered the station by declaring five permanent employees of the station on 18.02.2010 which is contrary to the rules and regulations, envisaged in the Employees Old Age Benefits Act, 1976.
5. Vide letter dated 21.09.2010, petitioner once again notified the Institution to amend its records whereby it has shown five employees instead of three permanent employees, employed at the station but the Institution has not acknowledged this request to date and instead in a unilateral manner conducted a due diligent survey of the CNG stations, present in the area and in view of so called survey which infact have never take place, Institution through Assistant Collector (Grade-I)
Employees' Old Age Benefits Institution, vide "Demand Notice u/S. 12(3) of EOB Act, 1976" dated 10.01.2011 has declared ten permanent employees of the Station. That, such act on behalf of authority is in violation of the Employees Old Age Benefits Act, 1976, the Constitution of Pakistan and the law interpreted by the superior Courts. Vide Show Cause Notice No, IDR/R&C/2011/1112, dated 15.02.2011, petitioner was directed to show-cause before Assistant Collector (Grade-I), as to why the amount of contribution of Rs, 103,200/-, together with statutory increase of Rs, 51,600/- (Rs, 154,800/- in total) may not be recovered from petitioner. However, Assistant Collector (Grade-D directed petitioner to pay a sum of Rs, 154,800/- vide Letter No IDR/R&C/2011- 6200, dated 24.03.2011 under title of "Notice of Demand Under Section 81 of the Land Revenue Act, 1967 (W.P Act XVII of 1977)." That this decision taken by the Assistant Collector (Grade-I) is against law and facts of the case and is devoid of any reasoning. Being aggrieved, petitioner presented his prayer before learned Adjudicating Authority seeking relief and exemption from the application of Employees Old Age Benefits Act, 1976 and for amendment of the record of the Institution (EOBI). Learned Adjudicating Authority had accepted the petitioner's prayer regarding the date of opening and functioning of CNG Station and also reduced the number of employees from 10 to 5 in number, vide order dated 24.05.2011 which yet again is contrary to facts of the case and is liable to be set aside.
Therefore, filed a review petition whereby learned Adjudicating Authority vide order dated 21.11.2011 directed as under: "I have heard both parties and have perused the record placed before me. I hold that EOB ACT is applicable to the petitioner w.e.f October 2008. They are directed to deposit the contribution in respect of its employees as per law. Respondents are directed to recover the amount of contribution after checking of books of accounts of the petitioner from October, 2008, onwards and revise the demand dated 24.03.2011. Respondents are further directed to ensure that each person employed by the petitioner is registered and issued EOBI Registration Card. Review Petition is hereby dismissed."
6. That, the Institution once again as per its illegal course of conduct and utter disregard to its own order dated 21.11.2011, sent a letter dated NIL bearing Reference No, VR-14/4829 titled as "Warrant of Distraint of Moveable Property under Section 83 of the Land Revenue Act, 1967 (W.P Act XVII of 1967) signed by Ayesha Noor Awan, Assistant Collector (Grade-I) (impugned notification).
7. The learned counsel for the petitioner argued that the Impugned Notification is liable to be set aside being illegal, void ab-initio and without lawful authority. That, the impugned notification is in negation of the provisions of Articles 3 and 4 of the Constitution of Pakistan, 1973 being an act of exploitation at the hands of the executive. That, the Institution was bound to follow rules of fairness propriety, rationality, expediency and neutrality while issuing the impugned notification of adverse affect. That the collections of contributions are unaccounted for; is a matter of public importance and petitioner and the citizens at large have a right to all relevant information about the use of said reserves- under the right to information protected under the Constitution in Article 19-A. That by preventing the petitioner to act as a prudent commercial person and threatening him via media the impugned Notification, the Institution has violated the right of due process, dignity of man, freedom of movement and freedom of trade as safeguarded under Articles 10-A, 14, 15, 18 of the Constitution. That there is no alternative adequate and efficacious remedy available to petitioner other than to file instant constitutional petition in order to protect its legal and constitutional rights.
8. Vide order dated 20-01-2012, respondents were directed to file report and parawise comments within a fortnight. In pursuance of said order, Mr. Abdul Ahad, Law Officer of respondents put appearance before this Court on 10-02-2012 and requested for some more time to file report and parawise comments, but on the next date of hearing i,e, 19.03.2012 neither report and parawise comments were filed nor anyone put appearance on behalf of respondents. Today, despite repeated calls no one appeared on behalf of respondents, therefore, there is no option but to proceed against them ex-parte.
9. I have heard the learned counsel for petitioner and perused the impugned order.
10.It is apparent on the surface of record that petitioner was registered by the Respondent No, 1, unilaterally and without proper inquiry. The stance of respondents itself is contradictory, inconsistent and dubious, as well. There is no definite conclusion with regard to strength of employees of petitioner and through evasive assessment, whimsical approach and misleading calculation; strength of employees has been presumed to be one, which required registration and recovery of contribution, thereafter. It is well settled law with the mandate of the dictums of Superior Courts of the country that authority created under the statute cannot be allowed to proceed in any matter, in a mechanical fashion and presumptive facts. Instant matter is crude example of exercise of authority in an arbitrary manner; therefore, no sanctity is attached to the proceedings carried out by the Respondent No, 1.
11.In this view of the matter, instant petition is allowed, impugned orders are set aside, case is remanded to Respondent No, 1 to hold proper inquiry, before registration of petitioner for the purposes of contribution and if on the strength of available material, admitted data and un- rebutted evidence, it is found that strength of employees of petitioner fall within the category of EOB Act, further action may be taken strictly in accordance with law. It is further-directed that petitioner must be provided an opportunity of hearing and chance to rebut evidence, collected by the department for the purpose of registration and issuance of notification thereof.