' JAWAD HASSAN, J.--Through the instant petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner has called in question the legality of orders dated 13.07,2012 and 31.12.2013 (the "Impugned Orders") passed by the Respondent No,2/Provincial-Ombudsman and Respondent No,3/Governor of the Punjab respectively.
2. Brief facts of the case are that the Respondent No,1 was issued a demand notice for payment of contribution of Rs,94,387/- (the "Demand Notice") as eight (8) workers were found in the establishment of the Respondent No,1, who was registered with the Petitioner, the Punjab Employees Social Security Institution ("PESSI") since 26.03.2003. Against the said demand notice, the Respondent No,1 filed a complaint before the Despondent No, 2, who issued order dated 13.07.2012 directing the Petitioner to withdraw the name of the Respondent No, 1 from the association with PESSI within one month. Feeling aggrieved thereby the Petitioner filed representation before the Respondent No, 3 who vide order dated 31.12.2013 upheld the order of the Respondent No, 2.
Thereafter, the Petitioner filed review petition before the Secretary, Labour and Human Resource Department who issued a reference to the Secretary, Law and Parliamentary Affairs Department, Government of Punjab seeking legal advice in the matter who issued instructions that the Secretary Labour has no jurisdiction under the Social Security laws to intervene into the matter. On the application of the Respondent No,1, a letter dated 15.04.2014 was written to the Petitioner for implementation of order dated 13.07.2012 by the Respondent No,2. Hence, the instant petition.
3. Learned counsel for the Petitioner submitted that the Impugned Orders are against the law and facts and as such, liable to be set aside on the grounds that the same have been passed without any jurisdiction; that in presence of remedy available to the Respondent No,1 under Section 57 of the Social Security Ordinance, 1965 (the "Ordinance") and further remedy of filing appeal before the Punjab Social Security Court under Section 59 of the Ordinance, the complaint before the Respondent No,2 was not competent; that the controversy in the complaint was related to the disputed question of facts, therefore, it could not be resolved before the forum of Respondent No,2; that the amount of contribution is recoverable under the Land Revenue Act, 1967 and without payment of which the Respondent No,1 cannot seek any relief; that reducing the strength of workers cannot be treated as de-notification of any establishment.
4. On the other hand learned counsel for the Respondent No,1 contended that the Impugned Orders have been passed after due consideration and keeping in view all the facts and circumstance, as such do not call for any interference by this Court; that the Petitioner is bound to obey and implement the orders of the Respondent No,2 in letter and spirit, therefore, the instant petition is liable to be dismissed.
5. Arguments heard and record perused.
6. The moot points arising out of instant petition and requiring determination of this Hon'ble Court are as follows:
(a) Whether the Respondent No, 1 was obliged to approach appropriate forum available under the Ordinance, rather than approaching the Provincial-Ombudsman/Respondent No, 2?
(b) Whether the complaint of Respondent No,1 before the Respondent No, 2 was competent in presence of remedy available to the Respondent No, 1 under Section 57 of the Ordinance?
(c) Whether the Respondent No, 2/Provincial-Ombudsman may pass any order and take cognizance of the matter in existence of statutory remedy available to employer?
(d) Whether the recommendations of the Provincial-. Ombudsman/the Respondent No,2 are liable to be implemented by the Authority/PESSI, if passed without jurisdiction or after not following the appropriate remedy available to the Respond,ent No,1 under the law?
7. It is essential to note that the Petitioner is a body corporate established in the terms of Section 3(2) of the Ordinance and is working for the purpose of providing benefits to secured workers of commercial/industrial establishment and their dependents in the events of sickness, maternity, employment injury or death, comprehensive medical care facility and for matters ancillary thereto, free of cost. Further, the Ordinance lays out the procedure for payment of contribution by employers to PESSI; consequences for non-payment of such amount; and rights and remedies available to the employers or the employees.
8. Under Section 20(1) of the Ordinance, the employer is mandatorily required to pay to the Institution/PESS1 a contribution in respect of every employee, whether employed by him directly or through any other person at such times subject to such conditions as may be prescribed. Further; under Section 23(1) of the Ordinance, if any employer fails to pay on the due date the contribution payable by him under Section 20(1) of the Ordinance, the amount payable by employer shall be increased by such percentage or amount as may be prescribed. Similarly, the amount of the contribution due, along with such increase, may be recovered as arrears of land revenue under Section 23(2) of the Ordinance.
9. It is significant to highlight that establishment of the Respondent No,1 is registered with the Petitioner/PESSI since 26.03.2003 vide Punjab Gazette Notification No,DEV-IPESSI/1/2-3/99 dated 10.02.2003 for purpose of providing certain benefits as mentioned in the Ordinance to its employees. As highlighted above, the employers of the workers have been legally obliged to pay lawful contribution to the Petitioner/PESSI on behalf of workers under the Ordinance. Therefore, the Petitioner has issued a demand notice dated 12.02.2012 under Section 23 of the Ordinance to the Respondent No,1 on the basis of a survey report that eight (8) workers were found in the establishment of the Respondent No,1 and he has failed to pay lawful contribution on behalf of such workers and was held responsible for payment of contribution amounting to Rs,94,387/-.
10. Importantly, the forum for redressal of grievance regarding said contribution has been provided under Section 57 of the Ordinance which reads as follows:
57. Decisions on complaints, questions and disputes.- If any complaint is received or any question or dispute arises as to-
(a) whether any person is a secured person within the meaning of this Ordinance [***J ; or
(b) the rate of wages or average daily wages of a secured person for the purposes of this Ordinance; or
(c) the rate of contribution' payable by an employer in respect of an employee; or
(d) the person who is or was the employer in respect of a secured person; or
(e) any benefit and the amount and duration thereof,' or
(f) any other matter in respect of any contribution or other dues payable or recoverable under this Ordinance; ' the matter shall be decided by the Institution, in such manner, and within such time as the regulations may provide, and the Institution shall notify its decision to the person or persons concerned, in writing, stating therein the reason or reasons for its decision."
' In view of the above-section, it is pertinent to note that the Institution/PESSI has the power to decide the matter, complaint, question or dispute in respect of payment of contribution by the employer if the matter relates to whether the employee is secured, rate of wages of secured employee, rate of contribution payable by an employer, employer of the secured person, determination of any benefit, amount and duration, and any ancillary matter regarding the contribution.
11. At this point, it is worthy to note that the Respondent No, 1/employer could raise his grievance against the Demand Notice in respect of the mandatory contribution payable by him before the Institution/PESSI and clearly had statutory remedy available under Section 57 of the Ordinance.
Therefore, the Respondent No, 1 could avail this remedy and file a complaint or raise any question or dispute before the Petitioner/PESSE against the Demand Notice on the basis of provision mentioned in Section 57 of the Ordinance. Further, it is pertinent, to note that the Petitioner was obliged to hear the complaint of the Respondent No, 1 and to pass a speaking order on the complaint of the Respondent No, 1 under the statutory Section 57 of the Ordinance and under the famous principle of natural justice.
12. It is also pertinent to note that under Section 59 of the Ordinance, an appellate remedy in the form of appeal is also provided to the Respondent No, 1, whereby lajny person aggrieved by a decision of the Institution[/PESSI] under section 57 may appeal to the appropriate Social Security Court." It was also held in the case of Nestle Mllkpak Limited v. Judge, Social Security Court, Lahore and 2 others (2016 PLC 261 [Lahore]) that under Section 59 of the Ordinance, first appeal lies before Social Security Court against decision of the Institution under Section 57 or on review under Section 58 of the Ordinance, and appeal to High Court, within the meaning of Section 64 of the Ordinance, is always to be considered as 'second appeal'. Hence, the Ordinance also provides right of appeal to the Respondent No, 1 against speaking order of the Petitioner under Section 59 of the Ordinance, and lays out mandatory procedure for grievance of the employers.
13. However, from the scrutiny of record, it is clear that the Respondent No, 1 has not availed remedy under Section 57 of the Ordinance and subsequently filing appeal under Section 59 of the Ordinance. Nevertheless, the Respondent No,1 has filed a complaint before the Respondent No, 2/Provincial-Ombudsman against the Demand Notice issued by the Petitioner/PESSI. It is also essential to highlight here that although, it has been mentioned in copy of the complaint appended with instant petition filed by the Respondent No, I before the Respondent No,2 that Respondent No,1 has moved applications to the Commissioner of the Institution/PESSI as well as Secretary but grievance of the Respondent No,1 has not been redressed till date. Nonetheless, the Respondent No,1 has produced not even a single document to prove this alleged fact. From the perusal of above fact, this Court is constrained to consider that the Respondent No, 1 has directly approached the Respondent No,2 for redressal of his grievance, while bypassing the statutory remedy available to him under Section 57 of the Ordinance.
14. It is also worth mentioning here that after the decision of the Respondent No,2, the Petitioner/PESSI filed representation before the Respondent No,3 which. Was dismissed. On the review application filed by the Petitioner before the Secretary Labour and Human Resource Department, an opinion was sought from the Secretary Law and Parliamentary Affairs Department who opined that "Needless to mention that learned Ombudsman cannot confer jurisdiction on any person or authority in derogation of the existing law."
15. In the case of Mayfair Spinning Mills Limited v. Punjab Employees Social Security Institution (2002 PLC (CS) 1146 [Lahore]), the Hon'ble Court has dismissed the constitutional petition of the employer and has directed it to "apply to the authorities for a formal order and might thereafter avail its remedy by way of appeal before the Social Security Court". Therefore, the statutory provision of redressal of grievances of the complainant under the Ordinance has been given significant value and has also been recognized in various case laws by the Hon'ble Courts in Pakistan.
16. It is to be noted that in the case of Chakwal Textiles Mills Limited, Rawalpindi Road Chakwal and another v. Director Social Security, Rawalpindi and 2 others (2012 PLC 270 [Lahore]), it was noted by the Hon'ble Court that notice in question depicted that the amount mentioned in it was assessed, was one which could become final, if the employer would not oppose the same, but the employer instead of contesting the same before the competent authority, had filed constitutional petition. It was held that Ordinance had provided that a scheme of Social Security had been introduced for providing benefits to certain employees or their dependants in the event of sickness etc. And that the employers would make contribution for the very purpose. Impugned notice, in circumstances, had been issued validly and lawfully by the Director on behalf of the institution. It was further held that impugned notice had unambiguously mentioned that the amount claimed was based on assessm ent and if, the petitioner would not approach the department, that would be deemed to be final. Since no final decision in that regard had been made by the department, presumption would be that the Petitioner could challenge the amount given in the notice before the authority who issued the notice. Petitioner could file review petition for redressal of its grievance and could also file appeal before the Social Security Court.
17. Similarly, in the case of Naveed-Ullah Khan Bhatti v. Director, Punjab Employees' Social Security Institution and 2 others (2006 PLC 593 [Lahore)), plaintiff had filed civil suit when coercive measures were adopted against him under West Pakistan Land Revenue Act, 1967. However, it was held that power to issue notification undeniably vested in the Social Security Department, and the plaintiff could agitate his grievance before forums set up under the Ordinance as remedies by way of appeals had been provided therein. It was held that suit was not maintainable in circumstances.
18. In view of the above, it remains clear that the Respondent No, 1 has not approached PESSI under Section 57 of the Ordinance and therefore, PESSI has not passed detailed order furnishing reasons for the amount of the Demand Notice. Hence, the act of the Respondent No,1 for not approaching the appropriate forum has defeated the very purpose of the Ordinance in presence of statutory remedy available under it, and non-availing of such remedy speaks of mala fides on the part of the Respondent No, 1.
The Punjab Ombudsman:
19. After considering the above-mentioned facts, it is essential to look upon the powers of the Respondent No, 2/Provincial-Ombudsman. Importantly, Punjab Ombudsman has been established under Section 3 of the Punjab Office of the Ombudsman Act 1997 (the "Ombudsman Act"), which was enacted to provide for the establishment of the office of Ombudsman in the Province of the Punjab, and to provide for the appointment of the Provincial Ombudsman for protection of the rights of the people, ensuring adherence to the rule of law, diagnosing, redressing and rectifying any injustice done to a person through maladministration and suppressing corrupt practices.
Further, Section 9 of the Ombudsman Act determines the jurisdiction, functions and powers of the provincial Ombudsman, and is reproduced as follows: "9. Jurisdiction, functions and powers of the Ombudsman.- (1) The Ombudsman may on a complaint by any aggrieved person,