SYED HASAN AZHAR RIZVI, J.----This appeal under Section 64 of the Provincial Employees Social Security Ordinance, 1965 is filed by the appellant to challenge the order dated 04.10.1997 passed by Social Security Court No,II, Karachi in Appeal No,17/1994, which was preferred by the respondent against order dated 26.10.1994 of the Commissioner, Sindh Employees Social Security Institution.
The facts relevant for disposal of this appeal are as follows:-
2. In a nutshell, relevant facts of the case are that the Government of Sindh vide a Notification published in official Gazette of the Province of Sindh dated 26.2.1987, applied the provisions of sections 35 to 45 of the Ordinance to the respondent Mill and acting on the said notification appellant required the respondent to pay the contribution under section 20 of the Ordinance in respect of the employees, covered by the Ordinance. The respondent's employees being aggrieved with the application of the Ordinance to their Mill, made representations to the Social Security Institution and the Government of Sindh to withdraw the Notification, as the appellant failed to establish and maintain a dispensary within the premises of the Mill or a Hospital at a place where sufficient number of secured persons worked or reside. Since the appellant failed to provide medical facilities in the Mill area as most of the workers reside in the Colony of the mill, the Mill had to pay the medical allowance at Rs,210/- per month to the workers under an agreement with the CBA. The respondent by letter dated 25.4.1989 asked its workers to get medical facilities from the SESSI nominated Doctor after registration, but the respondent instead of getting its secured workers registered with the appellant for extension of benefits of the Ordinance challenged the application of social security scheme by filing a Civil Suit No,87/1987 in the Court of Civil Judge Tando Allahyar on 31.10.1987, which was dismissed on 08.2.1988 and its appeal was also dismissed on 08.12.1988. In such circumstances, finally the respondent took the matter before this Court by way of Writ Petition No,550/1990, which was disposed of on 29.8.1990 in the following terms:- "In view of the above statement of the learned counsel for the respondents which appears to be quite fair and equitable, we allow the petition and declare the demand of Social Security Contribution from the petitioner of no legal effect. The petitioner is directed to submit all relevant information as required under the law and file the prescribed return in respect of its employees to respondent No,1, within one month from today whereupon respondent No,1 will determine the dispute in the light of above observations. However, pending determination of above dispute, the petitioner will start paying future Social Security Contribution in accordance with the law."
3. It was further averred that the respondent paid the contribution only for September and October, 1990 and thereafter withheld the same and filed CPLA No,561-K/1991 in the Hon'ble Supreme Court of Pakistan, which was dismissed by judgment dated 08.09.1991 and after dismissal of CPLA the appellant asked the respondent to pay the arrears of contribution from November, 1990 onwards and to submit statement/returns and to get its insurable workers registered with the appellant.
Respondent by letter dated 26.1.1992 demanded Blank Forms R-2 for registration which were supplied to them but the respondent did not get any of its employee registered with the appellant.
It was also averred that respondent filed complaint under section 57 of P.E.S.S. Ordinance, 1965, which was dismissed vide order dated 26.10.1994 holding the respondent liable to pay the balance of contribution amounting to Rs,32,81,386.50 from July, 1987 to September, 1990. The respondent filed Appeal No,17/1994 in the Social Security Court No,II Karachi against the impugned decision dated 26.10.1994. The parties led their evidence before the Court and the learned Social Security Court No,II Karachi after hearing the parties, allowed the said appeal as prayed, hence this appeal.
4. I have heard the arguments of the learned counsel for the appellant and learned counsel for the respondent and perused the material available on record.
5. Mr. Jawad Ahmed Sarwana, learned counsel for the appellant has argued that impugned order is against the law laid down in the two unreported judgments passed by this Court, so also the learned lower Court could ignore the observations of this Court in respect of payment of future contribution passed in C.P. No,D-550 of 1990. He further argued that appellant appointed Dr. Capt.
M. Yousaf, General Hospital Tando Allahyar as Retainer Doctor to provide medical care to the secured workers and their dependents. He urged that at that time industrial dispute between the respondent and its union pending conciliation regarding Charter of Demands in collusion with each other, which later on was settled and medical allowance from Rs,100/- p.m. was enhanced to Rs,210/- p.m. Learned counsel further contended that appellant has no power to suspend or postpone the operation of notification dated 26.2.1987 published in the Sindh Government Gazette dated 06.7.1987. He further contended that the respondent instead of discharging its legal obligations under the Ordinance, challenged the application of Social Security Scheme by filing a Civil Suit No,87 of 1987, which was dismissed and its appeal was also dismissed. He also contended that the respondent did not get even a single worker registered with appellant for extension of benefits. He submitted that the appellant by various letters advised the respondent to refer its secured workers for medical care to appellant retainer Doctor Muhammad Yousaf and to submit the relevant information and to file prescribed returns and to start payment of future contribution in accordance with judgment of this Court, which was stopped by the respondent. He, however, contended that SESSI did not, at any time, refuse the benefits to any secured worker. He made reference to Section 46(4) of the Ordinance, 1965, which empowers the appellant to enter into an agreement with an individual for the provision of medical care. He contended that due to non- registration of employees by the respondent, the secured workers have been deprived of the Social Security Benefits which are not dependent upon the payment of contribution and as such the respondent cannot take benefit of its own default.
6. Learned counsel for the appellant further argued that this Court in its judgment passed in C.P.
No,D-550 of 1990 has clearly ordered the respondent to pay the future contribution keeping in view the facts and circumstances governing the Kohinoor Chemical's case. He urged that dispute was to be determined in respect of the past liability. He further urged that learned lower Court could not stop the respondent from paying the future contribution as had been ordered by this Court. While supporting the decision of Commissioner's SESSI dated 26.10.1994, he urged that the impugned order dated 04.10.1997 is contrary to the legal provisions of the Ordinance, 1965 and as such is liable to be set aside. Learned counsel also urged that the payment of contribution is imposed by appellant being a statutory body and is recoverable by force of law under the Land Revenue Act.
The benefits are provided to a large number of workers and the purpose of the enactment is to help the working class. He vehemently urged that payment of contribution is not co-related with the extension of benefits. He submitted that the respondent is liable to pay contribution in respect of the employees whose wages have exceeded Rs,1500/- P.M. during the social security coverage as held by this court in this case reported in 1997 PLC 473. Therefore, he has prayed that in view of the evidence available on record, it is clear that the impugned order is not sustainable in law and is liable to be set-aside. Learned counsel in support of his submissions has placed reliance upon the cases reported in 1989 SCM R 888, PLD 1984 SC 241, PLD 1977 SC 197, 1998 SCM R 440, PLD 1989 SC 128 and un-reported judgment dated 20.8.1978 of Division Bench of this court in C.P. No,D-785/1977 (People Steel Mills Ltd. v. SESSI and another) and the judgment dated 17.6.1974 in Writ Petition No,1015/1971 of Lahore High Court in the case of Employees' Union Pakistan Tobacco Company Ltd. v. Government of Punjab and others.
7. On the other hand, Mr. Qadir H. Sayeed, learned counsel for the respondent while supporting the order of the Social Security Court No,II, Karachi has contended that during the crucial period of dispute i,e, 1987 to 1991 the appellant failed to establish a dispensary in the Mill of the respondent for the benefits of the workers of the respondent. He made reference to the CPLA No,561-K of 1991 filed by the respondent and argued that the stay was granted by the Hon'ble Supreme Court and on 08.9.1991 the Apex Court while refusing leave to appeal given certain guidelines particularly in relation to Social Security Contribution and repelled the demand of the appellant. The relevant observations reads as under:- "4. The question whether the respondent have provided the facilities entitling them to ask for contribution could be a question which can be determined by the Social Security Court and that would be the proper forum where such facts and disputes should be raised and decided. We do not find any bona fide ground to challenge the impugned judgment. Leave is, therefore, refused.
We would, however, expect the respondent to decide the case in terms of the order passed by the High Court expeditiously."
8. Learned counsel for the respondent vehemently contended that the matter was contested by the parties upto the Hon'ble Supreme Court of Pakistan and the Hon'ble Supreme Court maintained the order of this Court dated 29.08.1990 passed in C.P. No,D-550/1990. To strengthen his arguments, learned counsel has relied upon the case of Sh. Muhammad Rafique Goreja and others v. Islamic Republic of Pakistan and others (2006 SCM R 1317) and stated that the Hon'ble Supreme Court has held that even the obiter dictum given with the intention of enunciating a principle would have binding force and cannot be ignored lightly. Relevant observations are reproduced below:- " It is well settled by now that "the ultimate responsibility of interpreting the law of the land is that of the Supreme Court. Therefore any decision of the Supreme Court shall, to the extent it decides a question of law or is based upon or enuaciates a principle of law, is binding on all other Courts in Pakistan. A decision in suo motu Shariat review petition followed by Supreme Court would be binding on all other Courts in Pakistan. Law declared by Supreme Court becomes the law of the land and is binding not only on all Courts in Pakistan but also on all functionaries of the Government."
Apart from the Constitutional obligation as enumerated in Article 189 of the Constitution of Islamic Republic of Pakistan even the propriety demands that all the functionaries of the Government must adhere to the decisions of the Supreme, Court and if any direction is given in such decisions that would also be considered as binding on all the Government functionaries and cannot be considered lightly being an integral part of the decision. Even for the sake of argument if it is admitted that the direction given by the Supreme Court qua the terms and conditions of Judges of Accountability Court as obiter dictum of the Supreme Court, even then it would be binding in nature because "where the Supreme Court deliberately and with the intention of settling the law, pronounces upon a question, such pronouncement is the law declared by the Supreme Court within the meaning of this Article and is binding on all Court in Pakistan. It cannot be treated as mere obiter dictum. Even obiter dictum of the Supreme Court, due to the high place which the Court holds in the hierarchy of Courts in the country, enjoy a highly respected position as precedent, and is binding on all other Courts, if it contains a definite expression of their. Lordships opinion".
9. Learned counsel for the respondent has strongly contended that the learned Social Security Court has rightly applied the ratio decidendi of the judgment of the Hon'ble Supreme Court in the case of Kohinoor Chemical Co. Ltd. and another v. Sindh Employees' Social Security Institution and another reported in PLD 1977 SC 197. For advantageous the relevant observations are reproduce below:- "(1) Once an establishment is notified under section 1(3) of the Ordinance, then the specified benefits under the Ordinance would accrue to all employees of the said establishment who are working either in the establishment or in connection with the work of the same. The latter category of employees may not be physically located at the notified address, but in that event an inquiry would be necessary to establish whether they are in fact working in connection with the work of the notified establishment. Such an inquiry should now be under taken by the Social Security Institution with regard to the employees working in the Head Offices of both the establishments involved in these appeals,
(2) On the issuance of the necessary notification, the obligation is squarely placed on the employer to furnish the necessary returns to the Institution and to pay the prescribed contributions in respect of its own share and to realize the same from the employees, and credit the proceeds to the fund of the Institution. This liability to pay the contribution is not dependent upon the issuance of any notices of demand by the Institution and the employer cannot be permitted to take advantage of his own default,
(3) As regards the employees a distinction has to be made in view of the fact that that legislation is intended for their benefit, and if they have been prevented from making the contributions or availing of the benefits concerned owner to a default on the part of the employer, then it would not be in accordance with the spirit of the legislation to realize past contribution from the employees for the said period during which they were not treated as secured workers, and
(4) The arrears of contributions may not be realized from an employer for the period during which he have made alternative arrangements for affording the necessary benefits to the employees and had made a contribution in that behalf at least equal to the rate prescribed under the Ordinance and the Rules and Regulations framed thereunder. Otherwise, the realization of arrears would mean a double levy on the employer, without any corresponding benefits to his employees.
However, the existence of any such adequate alternative arrangements must be established to the satisfaction of the Social Security Institution."
10. Learned counsel for the respondent has stated that Commissioner's order was set aside by the Social Security Court on the ground that the Commissioner has failed to consider whether the arrangements made by the respondent during such period was adequate or not and there is no finding of the Commissioner that the arrangements made by the respondent during the alleged period of default, was not adequate and as such the respondent was not liable to be pay contribution during the period of payment of wages and this has not been discussed by the Commissioner in his order. He has urged that the appellant is not entitled to enforce the demand of social security contribution as appellant till today failed to provide the facilities in terms of Provincial Employees' Social Security Ordinance, 1965 to the workers of the respondent which were being provided by the respondent at a cost which is much higher than the rate of contribution demanded by appellant under the Ordinance. He has also urged that appellant has not spent a single penny on the workers of the respondent and as such not entitled to make any demand. He, therefore, prayed for dismissal of the instant appeal. In support of his contentions, he placed reliance on the cases of Sindh Employees' Social Security Institution v. Messrs Spencer and Company (Pak) Limited (1998 SCM R 440) and Mehran Sugar Mills LTD. v. Sindh Employees' Social Security Institution and 2 others (1991 PLC 310).
11.I have carefully examined the contentions as agitated on behalf of the parties in the light of relevant provisions of law and record of the case.
12. The scheme of Social Security is a beneficial and remedial legislation to provide the medical facilities to the employees of working class. So once a notification is issued under the relevant provision of the Ordinance notifying an establishment covered by the scheme, it becomes liable to contribute the social security contribution by operation of law. Similarly, the specified benefits under the Ordinance would accrue to all employees of the said Establishment who are working either in the Establishment or in connection with the work of the same as held by this Court in the case of Kohinoor Chemical Co. Ltd., quoted above. The facts that the employees concerned were unable to receive the benefit under the Ordinance would not, in any way, affect the liability of the Establishment to contribute the social security contribution in terms of the Ordinance and the rules framed thereunder as it cannot take benefit of its own wrong.
13. In case I have to accept the view found favour with the Court below, it would lead to unreasonable consequences, namely, that an Establishment may not get itself registered in terms of the Ordinance and may avoid payment of social security contribution on the plea that its employees have not been granted any benefit under the Ordinance. The benefit can be availed of by the employees who are registered with the appellant by their employer in terms of the Ordinance and not otherwise, but non-registration of the employees with the appellant would not absolve the employer concerned if his establishment is notified under the Ordinance from, his liability to contribute social security contribution.
14.It is an admitted position that appellant has appointed a Retainer Doctor at Tando Allahyar to provide medical care to the secured workers of the notified units in the area. Section 46(4) of the Ordinance, 1965 empowers SESSI to enter into an agreement with an individual for the provisions of medical care. Due to non-registration of employees by the respondent, the secured workers have been deprived of the Social Security Benefits which are not dependent upon the payment of contribution. The respondent cannot take benefit of its own default. Social Security Scheme in terms of Article 38(c) of the Constitution has been introduced by the, legislature to make provision for benefits in the event of sickness, maternity, employment injury or death and for matter ancillary thereto, which cannot be defeated or frustrated by paying medical allowance under some contract or under any other law. Any contract made contrary to law has no legal effect as Ordinance, 1965 is the overriding statue to provide the statutory benefits to the secured workers Which cannot be defeated. Earlier this Court while disposing of C.P. No,D-550/1990 has clearly ordered the respondent to pay the future contribution keeping in view the facts and circumstances governing the Kohinoor Chemical's case (supra).
15.Learned counsel for the respondent, besides other cases, has relied upon the case of Mehran Sugar Mills Ltd. v. SESSI and 2 others (1991 PLC 310) wherein it was held that the arrears of contribution could not be realized or demanded from employer as it would amount to realization of contribution twice and as such declared to be of no legal effect. It may be noted that the said case has no applicability to the ,case in hand for the simple reason that Mehran Sugar Mills is a notified establishment which is not disputed and as such the respondent cannot take benefit of those observations particularly when the employer start paying future Social Security contribution in accordance with law. It may also be noted that the Hon'ble Supreme Court has no where observed that the employer will not pay the future contribution if some arrangement for benefits have been made by the employer under some private settlement or under any other law. These 'observations were only about the past liability of the employer being the Head Office not notified. It may also be noted that the Social Security Court erroneously holding that appellant has not spent a single penny on the secured workers of the respondent without taking into consideration that respondent has not complied with the directions of this Court in getting the registration of secured workers which is the pre-requisite for claiming benefits and in this connection the appellant wrote various letters to the respondent to get their employees registered but the respondent has failed to do so.
The owner of an establishment is liable to pay the contribution in respect of his employees engaged through the contractors in or in connection with the work of the notified establishment.
The payment of contribution is imposed by SESSI being a statutory body and is recoverable by force of law under the Land D Revenue Act. The benefits are provided to a large number of workers, the purpose of the enactment is to help the working class and it cannot be said that the payment of contribution is co-related with the extension of benefits.
16. In the circumstances and for the foregoing reasons, I have no hesitation to hold that the Sindh Social Security Court has misapplied the ratio decidendits of the judgment in the case of Kohinoor Chemical Co. Ltd. (Supra). The upshot of the above discussion is that the appeal is allowed; the judgment of the Social Security Court No,II, Karachi dated 04.10.1997 is set aside. However, there will be no order as to cost.