' This appeal under section 64(2) of the West Pakistan Employees' Social Security Ordinance, 1965 is directed against the order dated 25th March, 1980 of the Social Security Court whereby the appeal of the appellant against the demand created under notice dated 18th July, 1979, was dismissed as incompetent.
2. The appellant, a private limited Company having its factory at Sheikhupura Road, Lahore, has been contributing to the Social Security Institution since its registration in 1975. The Inspector of the ihutitution after inspection of the records on 9th and 10th September, 1975 pointed out that certain items viz, commission paid to sale staff, costs of living allowance etc., are to form part of wages for the purposes of calculation of the contribution under the Act. The appellant accepted some of the points raised by the Inspector and in respect of others sought clarification through its letter dated 20th of September, 1975. This was followed by another letter dated 19th May, 1979 as allegedly no reply was received of the earlier letter. It is pertinent to note that both these letters were addressed to the Director, Punjab Employees Social Security Institution, (Local Office) Lytton Road, Lahore. The appellant then was served with final notice dated 18th June, 1979 demanding payment of Rs, 15,265.75 on account of payments made less than the due amount of contribution. The notice mentions that the requests made through the Social Security Officer of the area to deposit the amount due, have achieved no result, consequently notices were served on the appellant to deposit the outstanding amount of contribution. The Additional Director of the Local Office of the Institution required the appellant through this notice to clear the amount of contribution less paid by 23rd of June, 1979 otherwise action under section 66 of the Ordinance will be taken. The appellant in its letter dated 24th of June, 1979 took up the position that the company has been regularly contributing without any default the dues payable to the Department and that there was no occasion for serving the final notice for arrears. A request was also made to verify from the records if the notice was really issued on authentic basis and confirmation of the notice was also sought. Another notice dated 4th of May, 1979 was then received by the appellant allegedly on 7th of June, 1979 pointing out that the Social Security Officer after visiting the unit of the appellant on 6th May, 1979, had pointed out that the appellant was not remitting contribution accurately. The discrepancies and the amount payable was also indicated in the said notice with the demand to pay the amount upto 5th of June, 1979. The date of issue as entered in this notice is obviously incorrect. It is apparent that on receipt of the letter dated 24th June, 1979 of the appellant demanding details of the arrears due and the confirmation of the final notice, the Additional Director despatched the notice dated 4th May, 1979 which had not earlier been despatched.
Thereafter, the appellant in its letter dated 16th of July, 1979 explained its position with reference to each year for which contribution was stated to be less paid. This letter again was addressed to Additional Director of the local office. It appears that the Additional Director did not agree with the explanation submitted as he issued a certificate for recovery of the less paid contribution amounting to Rs, 15,265.75 for recovery as arrears of land revenue.
3. The appellant challenged the final notice dated 18th of June, 1979 by filing an appeal under section 59 of the Ordinance before the Social Security Court, Lahore. In this appeal correspondence addressed to the Director and the Additional Director of the local office of the institution was mentioned in detail and prayer was made to declare the final notice dated 18th June, 1979 as null and void and to quash the demand made. The Social Security Court by its judgment dated 25th March, 1980 dismissed the appeal as incompetent observing as under :- "In my opinion the appeal is not competent. The reason being that the appellant should have first filed a complaint to the Social Security Institution as provided for in section 57 of the Social Security Ordinance. Thereafter, the appellant should have filed an appeal under section 59 of the Ordinance if the complaint had been dismissed by the Social Security Institution as it has been provided in the above section that any person aggrieved by a decision of the Social Security Institution under section 57 may appeal to the appropriate Social Security Court."
4. This lead to the filing of appeal under section 64(2) of the Ordinance in this Court. The precise contention of the learned counsel was that the letters sent by the appellant to the Social Security Institution constituted a "complaint" under section 57 and the issuance of the final notice for payment is to be treated as the 'decision' of the Institution as such the appeal filed before the Social Security Court was competent. It was argued that the Social Security Court has erred in holding that the appeal before it was incompetent.
5. The contention of the learned counsel has no merit. The plea that the letters addressed to the Director and the Additional Director of the local office constitute a "complaint" under section 57 is baseless as under section 57 of the Ordinance the question of the dispute is to be raised in such manner and within such time as the regulations may provide. The power to frame regulations is conferred by section 80 of Ordinance on the Governing Body of the Institution which itself is constituted by the appropriate Government under section 5 of the Ordinance. The 'Governing Body' framed the regulations called "The Punjab Social Security (Determination of manner and time for deciding complaints and disputes and review of decisions) Regulations, 1973. These regulations were published in the Punjab Gazette Extraordinary of November 9, 1973. Regulation No, 3 provides that if any question or dispute arises in respect of any matter enumerated in section 57 an aggrieved person may file a complaint before the Commissioner within 30 days of the arising of such question or dispute giving full details thereof and the relief sought. The word 'Institution' as well as the 'Commissioner' has been defined by section 2 of the Ordinance as under :- "Commissioner" means a Commissioner of the Institution, and 'Institution' means the Employees Social Security Institution established under section 3."
' A reference to section 3 would show that Government is to establish an institution to be called the Employees' Social Security Institution and under section 4 the general direction and superintendence of the affairs of the Institution vest in the Governing Body which with the assistance of a Commissioner is to exercise powers and to do all acts and things which may be exercised or done by the Institution. The Institution as such is a distinct entity and only Governing Body or the Commissioner is to perform its affairs and exercise powers for and on behalf of the Institution. The functionaries and officers of the Institution while performing their functions and exercising powers cannot be legally treated to be acting for or in place of the Institution where the Ordinance provides that it is the Institution or the Commissioner which has to exercise any of the statutory powers. For this reason the letters addressed to the Additional Director or Director cannot be treated as the 'complaint' under section 57 of the Ordinance as section 57 read with the aforesaid regulations provide that if any question or dispute arises in respect of any matter enumerated in section 57 a complaint is to be preferred before the Commissioner. It is admitted that the controversy between the appellant and the local office of the Institution is a matter enumerated in clause (f) of section 57. The word 'Commissioner' as mentioned above is defined and in the connotation of the term 'Commissioner' the Director and the Additional Director do not fall. Moreover it is admitted that till date Commissioner has not authorized any officer under Regulation 5 of the aforesaid Regulations to exercise the powers of the Commissioner for disposal of complaints. It is therefore, obvious that the letters addressed to the Director or the Additional Director do not constitute a 'complaint' filed before the Commissioner, consequently the final notice dated 18th June, 1979 can under no circumstance be treated as a 'decision' of the Institution.
The Social Security Court was, therefore, right in holding that the appeal A is incompetent as appeal under section 59 of the Ordinance lies against the 'decision' of the institution and not against any notice servedor deniand made by any officer of the Institution. The appeal being incompetent was, therefore, rightly dismissed by the Social Security Court with the result that this appeal under section 64 of the Ordinance, also fails and is hereby dismissed. No order as to costs.