IBAD-UR-REHMAN LODHI J.:- Although this appeal was not only filed, but entertained and registered as FAO; however, keeping in view the fact that, in the scheme of law, as has been promulgated by means of Provincial Social Security Ordinance, 1965 (hereinafter to be referred as "the Ordinance"), first appeal lies before the Social Security Court in view of Section 59 of the Ordinance against a decision of the Institution under Section 57 or on a review under Section 58, as such, the appeal to the High Court within the meaning of Section 64 of the Ordinance is always to be considered as Second Appeal' in the relevant scheme of law and, thus, office is directed to entertain and register such appeals as SAO in future.
2. Earlier, this Court on 20.11.2002 allowed the present appeal; however, the same was called-in- question by The Vice Commissioner, Punjab Employees Social Security Institution (PESSI) before the Hon'ble Supreme Court of Pakistan, where Civil Petition, after grant of leave, was converted into Civil Appeal No. 2217 of 2008, which finally was decided on 12.02.2015 by the apex Court, in the manner that, the judgment passed by this Court on 20.11.2002 was set-aside and case was remanded to this Court for rehearing of the appeal and passing a fresh order inter-alia taking into account the Notification dated 29.06.1994.
3. In compliance of such directions, this appeal was again heard and is being decided by means of present judgment.
4. The controversy started, when the local office of Punjab Employees Social Security Institution, Shahdara, Lahore, issued a demand notice on 13.01.1999 to Nestle Milk pak Limited, present appellant, directing to pay less paid Social Security contribution for the period from January, 1995 to December, 1998alongwith50% increase and total recoverable amount was calculated as Rs.2,99,664/- (rupees two lac, ninety nine thousand, six hundred and sixty four only).
5. The appellant having its own reservations filed a Complaint under section 57 of the Ordinance before the Commissioner, Punjab Employees Social Security Institution. The Vice Commissioner in the Institution was entrusted the hearing of the complaint, who by means of order, announced on 02.03.2001, did not agree with the appellant by not accepting the interpretation of wages as was attempted to be given effect by the present appellant by including therein all expenses incurred by the Establishment for providing the facilities to the workers connected with their job performance during the working hours, as such, encashment of Festival Holidays, meal subsidy, Uniform and its washing allowance, leave fare assistance and transportation expenses, were not included in the wages of the workers and, therefore, the Director of Social Security was allowed to effect the recovery of demand.
6. Such findings of the Vice Commissioner were challenged by the Institution-appellant before the learned Judge, Social Security Court Punjab, Lahore, by means of Appeal No.9/S/2001, under Section 59 of the Ordinance. The first appellate court, vide order dated 11.05.2002, proceeded to dismiss the appeal upholding the findings of the Vice Commissioner; hence, this appeal before this Court.
7. The pivotal question, to be interpreted, is the effect of proviso added in Section 2(8)(f) of the Ordinance, by virtue of Labour Laws (Amendment) Act, 1994 (Act XI of 1994), which reads as under:- "Provided that an employee shall not cease to be an employee for the reason that his monthly wages exceed three thousand rupees".
8. In order to better understand the provision of Section 2(8)(f) of the Ordinance, it would be beneficial to trace out its history. The relevant provision of Section 2(8)(f) of the Ordinance has been underwent with certaina mendments and changes, after the enactment of the original Ordinance. The original position of Section 2(8)(f) of the Ordinance, as was promulgated by means of Ordinance X of 1965, West Pakistan Employees? Social Security Ordinance, 1965, was to the following effect:- "8. "employee" means any personworking, normally for at least twenty-four hours per week, for wages, in or in connection with the work of any industry, business, undertaking or establishment, under any contract of service or apprenticeship, whether written or oral, express or implied, but does not include--- any person employed on wages exceeding five hundred rupees per mensem" Through Act No.XI of 1976 i.e. Labour Laws (Amendment) Act, 1976, the said provision was further amended and words "five hundred" were substituted with the words "one thousand"
In 1985, Act No.XVI of 1985 i.e. Labour Laws (Amendment) Act, 1985, in Section 2(8)(f), for the words "one thousand", the words "one thousand five hundred" were substituted.
By means of Ordinance XXIII of 1993 i.e. Labour Laws (Amendment) Ordinance, 1993, the provision, under consideration, was further amended and for the words "one thousand five hundred", the words "three thousand" were substituted.
In 1994, by virtue of Act XI of 1994 i.e. Labour Laws (Amendment) Act, 1994, this clause was further amended and this time, the above noted proviso was also added in Section 2(8)(f) of the Ordinance.
In 2001, again there was some Legislative change and by means of Ordinance No.LIII of 2001 i.e. Labour Laws (Amendment) Ordinance, 2001, whereby, in Section 2(8)(f), for the words "three thousand", the words "five thousand" were substituted.
In 2008, by virtue of Act No.1 of 2008 i.e. The Finance Act, 2008, Section 2(8)(f) of the Ordinance was further amended and for the word "five" occurring twice earlier, the word "ten" was substituted; and lastly by virtue of Act, XXIV of 2013 i.e. Provincial Employees? Social Security (Amendment) Act, 2013, after amendment, Section 2(8)(f) of the Ordinance was substituted in the following position:- "(a) in clause (8), for sub-clause (f), the following shall be substituted:-- "(f) any person employed on wages exceeding the wages determined by the Government under Section 71,".
9. The learned counsel for the appellant has mainly placed much emphasis on his point that, if there is a direct conflict in between the Main provision and the proviso attached therewith, then the proviso is to be ignored and in support of his such contention, has placed reliance on Province of Sindh through Chief Secretary and others vs. M.Q.M. Through Deputy Convener and others (PLD 2014 Supreme Court 531), which provides that a proviso could not be construed to nullify the enacted clause. He has further placed his reliance on Dr. Muhammad Anwar Kurd and 2 others vs. The State through Regional Accountability Bureau, Quetta (2011 SCM R 1560) to contend that, natural presumption of providing such proviso is to exclude general application of relevant section/subsection in the matter notified under the proviso. Proper function of proviso is that it qualifies generality of main enactment by providing an exception and taking out as it were, from main enactment. To say proviso should normally be construed nor merely to limit or control but nullify the enactment and taking away completely a right conferred by enactment is incorrect.
10. While responding to such contentions raised by the learned counsel for the appellant, the learned Assistant Advocate-General Punjab assisted by the learned counsel for the respondents has contended that Section 2(8) of the Ordinance defines the term "employee", whereas, while a proviso was added to such provision; it simply extended such definition, but never nullified the basic statutory provision. The learned Assistant Advocate-General Punjab has further referred Section 20 of the Ordinance, which is a charging Section and contended that, it is the duty of the employer to pay in respect of every employee, whether employed by him directly or through any other person,to the Institution a contribution at such times, at such rate and subject to such conditions as may be prescribed, provided that no contribution shall be payable on so much of an employee?s wages, which is in excess of three thousand rupees. Although this amount of rupees three thousand was subsequently enhanced, but keeping in view the relevant period in this particular case, which is from January, 1995 to December, 1998, such amount is being referred, which remains applicable during whole of such referred period.The learned Assistant Advocate- General Punjab, in support of his arguments, has referred an elaborated judgment passed by the erstwhile Karachi High Court in case of Reckitt &Colman of Pakistan Limited, Karachi and others vs. The Commissioner, Sindh Employees' Social Security Institution, Awan-e-MehnatkashGulshan-e- Iqbal, Karachi and others (2001 PLC 245).Relevant portion of said findings, which have a direct bearing upon the issue involved in the present appeal, is re-produced herein-below:- " Consequent to the above discussion it is held that although amendment has been made in section 2(8)(f) of the Ordinance, in the form of proviso but a bare perusal of the provision leaves no scintilla of doubt, that in effect and in substance it is not in the nature of proviso. In substance it is a leading provision. The reason being that the provision is generally an exception to the section preceding the proviso and being in the nature of an exception it is interpreted very narrowly and strictly. A bar perusal of the proviso under consideration shows that it has enlarging effect. It is further held that the provision under consideration is part of section containing definition and therefore, it is declaratory in nature as held by Hon'ble Supreme Court of Pakistan, in the judgment reported as (PLD 1964 SC616).
As already held by the Hon'ble Supreme Court of Pakistan in the judgments cited above, the entire law contained in the Ordinance is beneficial in nature, therefore, the provision under consideration is also a beneficial and welfare legislation and thus, is required to be interpreted liberally and in a way which has the effect of advancing the relief and suppressing the mischief. It is further held that the provisions contained in proviso are explanatory in nature and explanation added by the legislature is deemed to be a note of caution indicating the real intention of the legislature and purpose of the enactment as well as removal of any doubt. Thus, the provision is clarificatoryas well. The presumption is that the legislature while enacting any law or making any amendment is conscious of the circumstances prevailing at the time of enactment/amendment/substitution, and therefore, it is held that the legislature was aware that questions were being raised about the exclusion of a worker from the purview of the terms employee used in the Ordinance as defined in Section 2(8)(f)and a view was prevailing which was prejudicial to the interest of worker and was not in consonance with the avowed object and purpose of legislation, therefore, an amendment was inserted whereby it was clearly provided without any ambiguity that once a person/worker is included within the definition of employee under the Ordinance, he shall continue to be so, notwithstanding crossing the ceiling of wages. Thus, the law curative in nature as well. Thus, the proviso to section 2(8)(f) of the Ordinance being a part of definition section is declaratory and at the same time it is beneficial, curative, remedial and welfare legislation and has to be given retroactive effect.
As a result of above findings, it is held that the proviso to section 2(8)(f) of the Ordinance, being retroactive in effect, the respondents have rightly? Held that the employees who have crossed the ceiling continue to be employees and therefore, the respondents are justified in demanding contribution in respect of such employees from the appellant in accordance with the provisions contained in the Ordinance".
11. A fact, which is to be kept in mind is that the period relevant in this case is from January, 1995 to December, 1998 and during whole of this period, the proviso added by virtue of Act XI of 1994 i.e. Labour Laws (Amendment) Act, 1994, remained effective and by no stretch of imagination, it can be argued that, the employees of the establishment even if, were getting wages exceeding three thousand rupees, were ceased to be the employees of the establishment and, therefore, when such proviso was effective with full force, it has to be given effect in the same force.
12. The conclusion on the basis of above discussion is that, the demand raised by the Institution vide notice dated 13.01.1999, directing the appellant to pay less paid Social Security contribution for the period from January, 1995 to December, 1998 alongwith 50% statutory increase, was a valid and legal act on the part of the Institution and the refusal on the part of the establishment-appellant was having no justification.
The result is that this appeal fails and is dismissed.