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 Respondent 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 31.1.2.2013 upheld the order of the Respondent No, 2.
Thereafter, the Petitioner filed review petition before the Secretary, Labour & 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 Ombudsinan/the Respondent No, 2 are liable to be implemented by the Authority/PESS1, if passed without jurisdiction or after not following the appropriate red available to the Respondent No, 1 under the law?
7. It is essential to note that the Petitioner is a body corporate embellished 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 or 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 ASS,I; consequences for non-payment of such amount; and - lights 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/PESSI 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, DEV1/PESSI/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 beep 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 XIX question or dispute arises as to---
(a) whether any person is a secured person within the meaning of this Ordinance ['I 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 matte 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/PESSI 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 "[a]ny 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 Milkpak Limited v. Judge, Social Security Court, Lahore and 2 others (2016 PLC 261 [Lahore]) that under S. 59 of the Ordinance, first appeal lies before Social Security Court against decision of the Institution under 57 or on review under S. 58 of the Ordinance, and appeal to High Court, within the meaning of S. 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, 1 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 & 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 made 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 male 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, on a reference by the Government or the Provincial Assembly, or on a motion of the Supreme Court or the High Court made during the course of any proceedings before it or of his own motion, undertake any investigation into any allegation of maladministration on the part of any Agency or any of its officers or employees: Provided that the Ombudsman shall not have any jurisdiction to investigate or inquire into any matters which---
(a) are sub judice before a Court of competent jurisdiction on the date of the receipt of a complaint, reference or motion by him; or
(b) relate to the external affairs of Pakistan or the relations or dealings of Pakistan with any foreign state or Government; or
(c) relate to, or are connected with, the defence of Pakistan or any part thereof, the Military, Naval and Air Forces of Pakistan, or the matters covered by the laws relating to those forces.
(2) Notwithstanding anything contained in. sub-section (1), the Ombudsman shall not entertain for investigation any complaint by or on behalf of a public servant or functionary concerning any matters relating to the Agency in which he is, or has been, working, in respect of any personal grievance relating to his service therein.
(3) For carrying out the objectives of this Act and, in particular for ascertaining the root causes of corrupt practices and injustice, the Ombudsman may arrange for studies to be made or research to be conducted and may recommend appropriate steps for their eradication."
20.Therefore, it is noteworthy from perusal of the above-section that Punjab Ombudsman may take cognizance of any matter and undertake any investigation into any allegation of mal- administration on part of any agency or its officers or employees. Essentially, Section 2(2) of the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 (the "Order") defines `maladministration' as follows:--- "2(2) "Mal-administration" includes:--
(i) a decision, process, recommendation, act of omission or commission which:
(a) is contrary to law, rules or regulations or is a departure from established practice or procedure, unless it is bona fide and for valid reasons; or
(b) is perverse, arbitrary or unreasonable, unjust, biased, oppressive, or discriminatory; or
(c) is based on irrelevant grounds; or
(d) involves the exercise of powers or the failure or 'refusal to do so for corrupt or improper motives, such as, bribery, jobbery, favouritism, nepotism and administrative excesses; and
(ii) neglect, inattentiondelay, incompetence, inefficiency and ineptitude, in-the administration or discharge of duties and responsibilities."
21.Similarly, in the case of Sohail Bin Rashid v. Secretary, Revenue Division (2005 PTD 1390), the Federal Ombudsman has itself defined 'maladministration' in para 36 and 37 as follows:-- "36. The foregoing analysis show that the definition of the term maladministration, inter alia, covers a decision, process, recommendation, act of omission or commission which is contrary to law, rules or regulations. Where a decision, process, recommendation, act of omission or commission which is contrary to law, rules or regulations, bona fide has no part to play. To justify a decision, process, recommendation, act of 'omission or commission which is "contrary to law", as settled by the binding decisions of judicial forums or where the language of law does not beg any interpretation, on grounds of bona fide is inconceivable. ...The dictionary definition of maladministration is to manage (e.g. public affairs) badly, dishonestly or incompetently or in other words poor management or regulation, esp. in an official capacity and at times also termed misadministration. Dishonesty in making a decision, adopting a process, making a recommendation, performing an act of omission or commission or making a departure from the established practice or procedure is only one of the several unspecified specific traits of maladministration mentioned in its inclusive definition supra." .
22.Furthermore, under Section 32 of the Ombudsman Act, any person aggrieved by a decision or order of the Ombudsman/Respondent No, 2 may, within thirty days of the decision or order, make a representation to the Governor/Respondent No, 3, who may pass such order thereon as he may deem fit. Therefore, the Petitioner/PESSI had filed representation before the Respondent No, 3, which has already been dismissed and the order of the Respondent No, 2 has been upheld.
23.Therefore, the Respondent No, 1 has approached the Respondent No, 2 under the Ombudsman Act, under which the Respondent No, 1 is obliged to prove mal-administration of the Petitioner/PESSI in issuance of the Demand Notice. However, it is clear that the Respondent No, 1 had direct statutory remedy under Section 57 of the Ordinance, which he failed to avail to challenge the Demand Notice and has instead approached the Respondent No, 2 in violation of the applicable laws and statutory procedure, because the action of the Petitioner/PESSI is in its normal course of powers under Section 20 of the Ordinance to collect contribution from the employer. 24.Importantly, it was held by the Hon'ble Supreme Court in Peshawar Electric Supply Company Ltd. v. Wafaqi Mohtasib (Ombudsman), Islamabad (PLD 2016 SC 940) that where an order was passed by Ombudsman without jurisdiction, the High Court could always in exercise of its Constitutional jurisdiction rectify such error. Alternate remedy provided under Article 32 of the Order could not restrict the constitutional jurisdiction of the High Court once it came to the conclusion that the order of the Ombudsmary was outside the domain of Article 9 of the Order.
Where the order of the Wafaqi Mohtasib, on the face of it, was against the language of Article 9 of the Order or with jurisdiction, the High Court could exercise its constitutional jurisdiction so as to prevent injustice done to an agriculture.
25.It was held in the case of Khalil Ahmed Awan v. Secretary. Ministry of Interior (2015 PLC (CS)
1357 Karachi]) that authority who decided departmental appeal was not the appellate authority as such order passed by him besides being without jurisdiction and illegal could not be implemented muchiess when petitioner had come to High Court with unclean hands. It was also held in the case of Rashida Bibi v. Border Area Committee (PLD 2004 Lah. 86) that all actions of the State functionaries must have the backing of a contemporaneous law, failing which the action would be regarded as without jurisdiction and illegal. To enjoy the protection of law and to be treated in accordance with law, was the inalienable right of every citizen as enshrined in Article 4 of the Constitution which embodied safeguards of utmost importance to an individual, in the matter of his life, liberty, honour, reputation and property. Citizens could not be deprived of such protection and guarantees on the basis of any supposed assumption.
26.Further, there is no doubt that the recommendations/decisions of the Ombudsman have to be implemented in letter and spirit. However, it is settled law that if the recommendations/decisions of the Ombudsman are correct on merit and in accordance with law, the same are liable to be implemented even by invoking the jurisdiction of this Court under its Constitutional jurisdiction but the same can be deferred on the ground that the appropriate remedy has been skipped as has been done in the present case. The Provincial Ombudsman had no jurisdiction to take up and investigate the complaint as it pertained to determination of contribution for which alternate legal remedy was available to the Respondent No, 1 under Section 57 of the Ordinance.
27.Under Article 4 of the Constitution every individual has the right to be dealt with in accordance with law and no person is liable to do which the law does not require him to do. In the case titled Faisal Sultan v. E.D.O. (Education) and others (2011 PLC (C.S.) 419 [Lahore]), it has been clearly held as follows:--- "An integral, intrinsic and incidental part of "law" under Article 4 is the right to procedural due process, right to be treated fairly at all times, right to procedural fairness and right to procedural propriety. Right to a fair procedure is, therefore, constitutionally guaranteed in Pakistan and makes the Constitution standout proudly in the Constitutions of the world. Article 4 of the Constitution is a robust and dynamic amalgam of the cardinal principle of natural justice, procedural fairness and procedural propriety of the English jurisprudence and Procedural Due Process of the American jurisprudence. Constitution of Pakistan has boldly recognized this right to be an inalienable right of every citizen or of any person for the time being in Pakistan."
26.It has been established in the case of Azizullah Memon v. Province of Sindh and another (2007 SCMR 229) that since impugned action was initiated and taken to its logical conclusion under a misconception of law and under a wrong law, it had vitiated entire proceedings including final order, which could not be sustained under the law. The Supreme Court converted petition into appeal and proceedings as well as impugned order of the Service Tribunal, were set aside accordingly. Furthermore, in the case of Muhammad Haleem and another v. General Manager (Operation) Pakistan Railways Headquarter, Lahore and others (2009 SCMR 339), it was clearly held that when initial order or act relating of initiation of proceedings was contrary to law and illegal, then all subsequent proceedings and actions taken thereon would have no basis and would fall.
27.Similarly, in the case of Sharafat v. Additional Sessions Judge/Justice of Peace (2015 P.Cr.LJ.
1758 [Lahore]), it was held that special law had provided special procedure for initiation of criminal proceedings against accused. When a thing was provided to be done in a particular manner, it was to be done in that manner and if it was not so done, it was illegal. High Court in exercise of powers under Arta 199 of the Constitution, set aside order passed by Ex-officio Justice of Peace as the same was patently illegal and ultra vires. High Court advised that aggrieved persons could adopt remedy provided under the law. Petition was allowed under the circumstances. Furthermore, in the case of Abdul Fatah Bhutto v. Election Commission of Pakistan through Secretary (2014 CLC 639 [Karachi]), it was held that candidate neither adopted the specified procedure nor approached the proper forum in the given time. When a thing was to be done in a particular manner, same must be done in that manner and not otherwise. Legal remedy was available to candidate, but he did not adopt the prescribed course/remedy by not approaching the specially constituted Bench.
28.Similarly, it is an established principle of law that where procedure had been provided for doing a thing in a particular manner then same should be done in that manner alone and not in any other way or it should not be done at all; otherwise it would be considered non-compliance of the legislative intent and would be deemed illegal. (rel. Abdul Khaliq Mandokhel v. Chairman, Balochistan Public Service Commission (2016 PLC(CS) 1184 [Quetta]); Falak Niaz v. Amal Din (2016.YLR 2047 [Peshawar]); Sabz All Khan v. Inspector General of Police, KPK (2016 YLR 1279 [Peshawar]); Cantonment Board Clifton v. Sultan Ahmed Siddiqui (2016 CLC 919 [Karachi]); and Federation of. Pakistan v. Asad Javed (2016 PLD 53 [Islamabad]))
29.In view of above-mentioned facts, circumstances, laws and case-laws, this Court suffice it to say that the entire exercise by the Respondent No, 1 to bypass the statutory remedy under Section 57 of the Ordinance and the Impugned Orders of the Respondent No, 2 and 3 were without jurisdiction and against the Petitioner's fundamental rights guaranteed under the Constitution, and therefore, the Petitioner cannot be compelled to implement the Impugned Orders passed by the Respondent No, 2 being without jurisdiction.
30.Resultantly, the instant petition is hereby accepted and the Impugned Orders dated 13.07.2012 and 31.12.2013 passed by the Respondents No, 2 and 3 respectively are hereby set aside. The Respondent No, 1 may adopt the statutory remedy available to him under the Ordinance, if he is aggrieved by the demand notice issued by the Petitioner, if so advised.