Appellant above-named, being aggrieved by order, dated 15th December, 1980 passed in Appeal No. 5180 filed by the respondents above-named, have preferred this appeal, on the following facts end grounds :-
2. That the respondent is a public company registered under the Companies Act and is manufacturing Ball 'Bearings of various kinds. The respondents employ skilled and unskilled labourers in their Factory situated at Korangi Industrial Area, Karachi. The appellant is the authority, under the Social Security Ordinance for recovery of contribution from the respon--dents.
3. That the appellant on 5-1-1975 demanded contribution from the respondents in respect of certain payments being made by the respondents to their workers. The respondents filed a complaint under section 57 of the West Pakistan Employees' Social Security Ordinance, 1965, before the appellant which was heard and dismissed by the order of the Commissioner, dated 17-5-1975.
The respondents thereupon filed an appeal under sec--tion 59 of the West Pakistan Employees'
Social Security Ordinance, 1965, before the Social Security Court being Appeal No. 3/75, which was heard and dismissed, vide order dated 13-3-1976. However by this order, learned first Appellate Court excluded the demand of contribution in respect of overtime.
4. That the respondents filed a Miscellaneous Appeal under section 64 of the Sind Employees Social Security Ordinance, 1965, being M. A. No. 34/76 in the High Court. The respondents also moved an application for stay, along with the said appeal being C. M. A. No. 970/76 and the High Court was pleased to grant stay, against the appellant, vide order dated 16-6-1976. The said appeal came up for final hearing on 10-3-1976, and the same was dismissed by the High Court, vide judgment dated 29-3-1980.
5. That the respondents thereupon paid the contribution to the appellant amounting to Rs.
56,323.18 as under :-
(1) Outstanding contribution of Rs. 8,654.60 January, 1972 to December, 1974 (Reference Letter No. AG/SSK/Recovery-74/6-36-1/139, dated 10th June, 1976 from respondent No. 1).
(2) Outstanding contribution of Rs. 8,234.58 January, 1975 to April,.1976 (Reference Letter No. SSK/CONT/6/36-2/4668, dated 16th June, 1976 from respondent No. 1).
(3) Outstanding contribution of Rs. 39,414.00, May, 1976 to March, 1980 (Reference decision of the Hon'ble High Court of Sind, dated 29th May, 1980 in Civil Misc. Appeal No. 34/1976).
6. That the appellant demanded penalty/excess amount of Rs. 28,161'59, on account of increase/penalty payable due to delay in the payment of con--tribution. The respondents represented to the appellant, vide Application No. MAK-PM/80/ESSI-4/463, dated 16-6-1980, that they were not liable for payment of excess amount, on the following grounds
(a) That the matter was pending in the High Court to examine the legality of the demand made by the respondent No. 1.
(b) That the High Court bad stayed the recovery of the contribution pending decision of the appeal.
(c) That the respondent immediately remitted the amount of contribution after the decision of the High Court.
(d) That in view of the circumstances it was not justified to impose the penalty since there was no question of wilful and/or deliberate delay in the payment of the contribution.
7. That the appellant despite the above explanations was adament to recover the excess amount, without any justification according to the respon--dents and consequently appellant, vide- their letter No. SSK/CONT/763, dated 17-6-1980 finally rejected the application dated 16-6-1980 of the respondents.
8. The respondents being aggrieved by the appellant reply dated 17-6-1980 filed petition/complaint before the Commissioner, Sind Employees' Social Security Institution, Karachi and the same was dismissed, vide judgment dated I-10-1980.
9. The respondents above-named, being aggrieved by judgment dated 1-10-1980 of the Commissioner under Social Security Ordinance, passed on their application under section 57 of the Social Security Ordinance, 1965 filed Appeal No. 5/80 in the Court of Social Security Judge and 1st Senior Labour Court, at Karachi, which was partially allowed, vide order dated 16th December, 1980.
The appellant above-named being aggrieved by the said impugned order dated 16th December, 1980 of Presiding Officer, Sind Labour Court No. 1, Karachi has filed the above Miscellaneous Appeal, on the grounds mentioned in the memo. Of appeal.
10. I have heard the learned Advocates of the parties and have gone through the impugned order dated 16th December, 1980 of the Presiding Officer, Sind Labour Court No. 1, Karachi.
11. The only question which requires consideration in this petition is whether respondents are liable to pay increase under section 23 of Social Security Ordinance, 1965 for a period from 16-6-1976 up to 29-3-1980, the period during which stay order granted by High Court, in Civil Miscellaneous Appeal No. 34 of 1976, was in force.
12. The learned Advocate for the appellant submitted that dispute raised by way of Miscellaneous Appeal No 34 of 1976 was not a genuine dispute, as the said points were already settled and decided by the decision reported in PLD 1978 Kar. 890. In view of this learned Advocate for the appellant relied upon cases reported in PLD 1977 SC 197 ; PLD 1981 SC 79 ; 1980 PLC 800 and 1980 PLC 1245 and submitted that order dated 16th December, 1980 of the learned Presiding Officer of Sind Labour Court I, Karachi is liable to be set aside as the same is contrary to law laid down by Hon'ble Supreme Court of Pakistan. The learned counsel for the appellant further submitted, that if impugned order dated 16th December, 1980 is allowed to stand, it would become handle for Employers to raise bogus disputes and obtain interim relief and then on ultimate rejection of their petition, claim relief from payment of increase under section 23 of Social Security Ordinance, 1965, for period of stay granted to them in such proceedings, in spite of clear law laid down by Hon'ble Supreme Court in the case reported in PLD 1977 SC 197.
13. The learned Advocate for the respondents on the other hand submitted that impugned order dated 16th December, 1980 is legal and correct and is in no way contrary to the law laid down by Hon'ble Supreme Court in case reported in PLD 1977 SC 197. The learned Advocate for the respondents further submitted, that section 23 of the Social Security Ordinance, 1965 only comes into play on failure of payment of contribution by the Employers and as such in present case, respondents did not fail to pay contribution as envisaged by said section for the period in question, as there was valid and legal stay order in their favour, from the High Court in respect of the said period. The learned Advocate for the respondents submitted, that this point was not discussed at all in the case of Hon'ble Supreme Court reported in PLD 1977 SC 197 and as such the learned Presiding Officer, Sind Labour Court No. 1, Karachi has rightly distinguished the said authority, by its impugned order dated 16th December, 1980 and granted relief to the respondents for said period.
In support of these authorities the learned Advocate for the respondents relied upon cases reported in PLJ 1979 Kar. 258 ; PLD 1951 Dacca 189 and PLD 1955 Lah. 34.
14. I have carefully considered the above submissions made by the learned counsel before me and have gone through the various authorities cited by the learned counsel.
15. In order to appreciate the above submissions made by the learned counsel before me, it is necessary to consider the wordings of section 23 of the West Pakistan Employees Social Security Ordinance, 1965 as well as the effect of the stay order of this Court granted in Civil Miscellaneous Appeal No. 34/76 against the appellants. Section 23 of the above Ordinance reads as under; "Section 23.-(1) If any employer fails to pay, on due date, the contribu--tion payable by him under subsection (1) of section 20, the amount so payable by him shall be increased by such percentage or amount as may be prescribed."
16. The above wordings dogs not qualify words "fails to pay" by any electives like wilful aMor deliberate failure. In view of this the contention of the learned Advocate for the respondents in this connection in my opinion, has no force, as far as the wording of the section in question is concerned. This conclusion of mine is fully supported by the law laid down by Hon'ble Supreme Court in PLD 1977 SC 197.
17. In view of my above conclusion regarding interpretation of section 23 of the West Pakistan Employees' Social Security Ordinance, 1965, the only question which remains to be considered is the effect of the stay orders which were passed by this High Court in Civil Miscellaneous Appeal No. 34/76 against the appellants, on respondents furnishing surety in the sum of Rs. 6,000. The very fact, that the High Court while granting security, called upon the respondents to furnish surety shows, that the stay order in question was not to operate prejudicially against the appellant and/or employees of the respondents, in case the respondents lost the said appeal. It is an admitted position that respondents appeal in question was dismissed after final hearing on merits and consequently the liability of the respondents, as it existed on the day of the grant of the stay order stood revived, for which respondents had furnished security. In this connection I may mention, that even in the appeals arising out of money decrees, stay is granted for recovery, in suitable cases on furnishing of security. However, such stays, if and when granted do not halt calculation of the normal interest as awarded on such decree amounts, if ultimately such appeals are dismissed and the only relief which party gains by such interim stay orders is from prompt payment, pending disposal of the appeals. Once such appeals are disposed of against the party, who secured stay orders, the liability of such party to pay interest on the decretal amounts automatically revives. In the present case the increase in contribution, as envisage by section 23 of the West Pakistan Employees' Social Security Ordinance, 1965 is more or less on the footing as interest payable on the amount due by party, who has obtained stay orders and as such in my opinion once the appeal of the respondents was dismissed by this Court, the effect of the stay orders in question completely vanished and the ,liability of the respondents to pay increase on their contribution as envisage by section 23 of the Ordinance in question stood revived. In view, of this I see no reason to agree with the conclusions and findings of the learned Presiding Officer, Sind Labour Court No. I, Karachi in respect of non--payment of increase, for the period during which the stay order granted by this Court in Civil Miscellaneous Appeal No. 34/76 was in force. The authorities cited by the learned Advocate for the respondents are based on different facts and have no applicability to the facts of the present appeal. Therefore, I allow the above appeal and set aside impugned order dated 16th December, 1980 of the learned Presiding Officer, Sind Labour Court No. 1, Karachi and uphold the orders dated 17th June, 1980 of the Director and order dated 1-10-1980 of the Commissioner in this connection.
18. In view of the facts and circumstances of the above appeal, I would pass no order as to costs.
M.Y.M.Appeal allowed.