' MUHAMMAD QASIM KHAN, J.--- Through this single order, I propose to decide two matters (W.P.No.6618/2007 and W.P.No.9976/2011) as both carry almost similar questions of law and facts.
2. In Writ Petition No.9976/2011 the order dated 31.03.2010 passed by the Appellate Authority is under challenge, whereas, in Writ Petition No.6618/2007 the petitioner has assailed the decision dated 02.09.2006 passed by Board of Trustees, Employees Old Age Benefits Institution (hereinafter to be called as "Institution") in the capacity of appellate authority, the decision dated 29.11.2005 passed on the review petition of the petitioner and decision dated 26.09.2005 passed by Adjudicating Authority, Faisalabad on the ground that special allowance payable under Punjab Special Allowance (Payment) Act, 1988 is not covered under the EOB Act and secondly the petitioner is not responsible for the payment of Institution contribution with respect to the employees engaged through independent Contractors and wages as well as other dues paid to them by the said Contractors.
3. The learned counsel for the petitioner submits that Section 8 of the Punjab Special Allowance (Payment) Act, 1988 clearly speaks that special allowance shall not form part of wages of the workers for the purpose of any other law including the purpose of provident fund, gratuity and bonus and calculating wages for over-time work and it is special law which shall prevail over the general law. Adds that for the first time this issue was decided in the light of Social Security Ordinance vide judgment 1996 PLC 373 and 1999 SCMR 1466. Contends that there is hell of difference between the definition of employee, employer, etc in Social Security Ordinance and EOB Act. Further contends that at the most if it is decided that petitioner is liable to pay the amount of contribution on the special allowance under Punjab Special Allowance (Payment) Act, 1998 then it only could recover/pay from the date of judgment i.e. 1996 PLC 373, as it will not affect retrospectively and will be implemented prospectively in the light of rule of law decided by the apex Court. In case of employees engaged by the independent contractor, as the petitioner never paid the wages to those employees and it was the responsibility of the contractor to pay the wages to all the persons employed by him, for the same reason the petitioner could not be liable for the payment of contribution on behalf of those employees of the contractor and if any liability for payment is, that is on the shoulder of the contractor and further submits that case law under Social Security Ordinance, 1969 in respect of the contract employment could not support the respondents' stance as the definition of employee, employer, wages and contribution in EOB Act is different from Social Security Ordinance. Further adds that EOBI charge contribution only when the employee is registered before him and in the absence of any registration, no contribution could be claimed because the contribution is only with regard to the payment of pension to certain employees but when those employees do not exist and no record is available how they are entitled for the contribution on their behalf. The learned counsel for the petitioner in addition to the above grounds with reference to Noon Sugar Mills added that the Adjudicating Authority fixed the responsibility for certain period and for the remaining period left the matter open to be decided after checking of the record and this order was not assailed before the appellate authority by the EOBI but the appellate authority also added the amount for the period which was not earlier calculated after checking the record of the petitioner, which is not permissible under law, thus is liable to be set-aside. In support of his arguments, the learned counsel placed reliance on the case PLD 1968 SC 101, PLD 1991 SC 777, 2009 SCM R 1169, 1985 SCM R 257 and 1961 PLC 432 (Supreme Court of India).
4. The learned counsel representing the respondent submits that EOB Act being federal statute has overriding effect on provincial statute i.e. Punjab Special Allowance (Payment) Act, 1988, and for the same reason Institution is competent to recover the amount received by the employee on the basis of Punjab Special Allowance (Payment) Act, 1988. Further submits that Hon'ble Supreme Court of Pakistan in its judgments only interpreted the law and no new law is created by the apex court, hence, the EOBI could receive contribution from the date of enactment of Punjab Special Allowance (Payment) Act, 1988. Further added that even if the petitioner's company obtained Labour through agent/third party, the petitioner is covered under EOB Act to pay the contribution on behalf of the Labour provided by the contractor. Reliance has been placed on 1999 SCM R 1477 and PLD 1988 SC
131. Lastly added that the respondent could charge statutory increase under section 13 of the EOB Act and with reference to Noon Sugar Mills contended that under Order XLI, Rule 33 C.P.C. The appellate court could increase the amount payable without respondents having gone into appeal.
5. I have heard the arguments of learned counsel for the parties at considerable length and perused the available record with reference to the relevant case-law.
6. The issue with regard to special allowance payable under Punjab Special Allowance (Payment)
Act, 1988, has been decided by the Hon'ble Supreme Court of Pakistan in the case PLD 1999 SCM R 1477, to the effect that Punjab Special Allowance (Payment) Act, 1988 is provincial statute and the bar imposed under section 8 of the said Act that the special allowance shall not form part of the wages of workers for the purposes of any other law, have no overriding effect on federal statute and federal law would prevail on the principle of repeal by implication. The EOB Act is also federal statute and in case of any conflict between the two, federal statute will prevail. Similar was the situation with Social Security Ordinance and the Hon'ble Supreme Court in the above referred judgment considering the principle of adaptation having the constitutional mandate under Article 268 of the Constitution of Islamic Republic of Pakistan, 1973 with regard to conflict in federal and, provincial statute, held that:- "Leave to appeal is granted to consider whether the special allowance being, paid to a workman in pursuance of the provisions of the Punjab Employees Special Allowance (Payment) Act, 1988 is to be treated as part of his wages for the purpose of computing the contribution which his employer is liable to make under the Social Security Ordinance, 1965, despite the specific exemption granted by section 8 of the aforementioned Act. The interim order already made on 17- 1-1996 to continue during the pendency of the appeals on the same terms.
' In a unitary form of Government, all the Legislative Powers of necessity, vest in the legislature of the given country in the federal form of Government, however, the legislative powers vest in the respective legislatures in line with the dispensation under the Constitutional- document/concerned.
' It is in the spheres of distribution of legislative powers in a federal set up that a conflict of sorts between the legislation by the Federal Central Legislature and Provincial /State Legislature can arise for resolution by the Judiciary.
' Articles 141, 142 and 143 of 1973 Constitution respectively deal with (1) extent of Federal and Provincial Laws (2) subject matter of Federal and Provincial Laws and (3) inconsistency between Federal and Provincial Laws] ' Under Article 141 (ibid) (Majlis-e-Shoora (Parliament)] may make law for the whole or any part of Pakistan and a Provincial Assembly may make laws for the Province or any part thereof. Under Article 142 (ibid) Majlis-e-Shoora (Parliament) has exclusive powers to make laws with respect to any matter in the Federal Legislative List and [Majlis-e-Shoora (Parliament)] and': a Provincial Assembly also have powers to make laws with respect to any matter in the Concurrent List. Under clause (c) of Article 142 (ibid) a Provincial Assembly shall and [Majlis-eShoora (Parliament)], shall not, have power to make laws with respect to any matter"...Not enumerated in either the Federal Legislative List or the Concurrent Legislative List'. Further in the event of any inconsistency between the Federal law and the Provincial Law, the; mandate of the Constitution as contained in Article 143
(ibid) is that "...Then the Act of Majlis-e-Shoora (Parliament, whether passed before or after the Act of the Provincial Assembly, or, as the case may be, the existing law, shall prevail and the Act of the Provincial Assembly shall, to the extent of the repugnancy, be void."
7. Hence, the same principle is applicable to the EOB Act and the special pay allowance payable under Punjab Special Allowance (Payment) Act, 1988 could be included in the wages of employee for the purposes of contribution under EOB Act.
8. The above referred judgment of the apex Court was passed when consolidated judgment of this court passed in Writ Petition No.6186/1995 reported in 1996 PLC 373 was assailed and view of this Court was upheld and it was observed that the definition of wages provided in Social Security Ordinance includes special allowance. On the same principle the definition of wages as provided under EOB Act also does not exclude special allowance, hence, on the principle of law decided in 1996 PLC 373 by the High Court and in PLD 1999 SC 1477 by the Hon'ble Supreme Court of Pakistan after examining the Social Security Ordinance, is also applicable to the EOB Act and the petitioner is liable to pay the contribution on the basis of special allowance.