ASIM HAFEEZ, J. This and connected constitutional petitions, details provided in attached Annexure-A, commonly challenge vires of Notification No.SS.C&B(56)/M.W/15/44/2024/-4128 of 20.09.2024 and Notifications of 19.07.2022 and 17.10.2023 (Notifications'), on the premise that all of these Notifications fundamentally offend the scheme of Provincial Employee's Social Security Ordinance, 1965 ("Ordinance"), and have had the effect of rendering core provisions of the Ordinance ineffective - [such portion(s) of the Notifications are assailed which contained directions for the computation of contribution(s) on the basis of minimum rates of wages revised thereunder].
"In essence present adjudication entails a binary declaration that whether Notifications are conformist or nonconformist"
2. Contextualization of the controversy is appropriate and for that purpose text of latest Notification is reproduced hereunder, and relevant portion underlined: THE PUNJAB EMPLOYEES SOCIAL SECURITY INSTITUTION (HEAD OFFICE)3-A, GULBERG-V, LAHORE.
Ph:042-99263121 email:-candbnees!@yahoo.com To All the Directors, Directorate of Social Security, In Punjab.
No.SS.C&B(56)/M.W/15/44/2024/-4128.
Dated Lahore, the 20.09.2024.
Subject. REVISION OF MINIMUM WAGES IN PUNJAB, PROVINCE.
Please find enclosed herewith copy of each of the following notifications for revision of minimum wages for the year 2024-25: Labour & Human Resource Department's Gazette Notification No.SO(L&P)MW/2024 dated 05.09.2024 published in the Punjab Gazette (Extra Ordinary Issue) dated 06.09.2024 regarding fixation of minimum rates of wages of unskilled adult & adolescent workers employed in the Industrial and commercial establishments of the Punjab Province.
(a) Rs.37,000/- per month (for 26 working days)
(b) Rs.1423.07/- per day (for 8 working hours)
2. Labour & Human Resource Department's Gazette Notification No.SO(L&P)MW/2024 dated 05.09.2024 published in the Punjab Gazette (Extra Ordinary Issue) dated 06.09.2024 regarding fixation of minimum rates of wages for the Domestic Workers employed in all households of the Punjab Province.
(a) Rs.37,000/- per month (for 26 working days).
(b) Rs.1423.07/- per day (for 8 working hours)
(c) Rs.177.99 per hour.
3. Labour & Human Resource Department's Gazette Notification No.SO(L&P)MW/2024 dated 05.09.2024 published in the Punjab Gazette (Extra Ordinary Issue) dated 06.09.2024, regarding fixation of minimum rates of wages of all category of workers (including skilled and semi-skilled) employed in the 102 listed Industries in the Punjab Province.
In this context, you are requested to receive Social Security Contribution in the light of above- mentioned notifications from the date of commencement of the financial year 2024-25.
Director General (HQ).
Scope of the controversy in the context of statutory scheme:
3. It is essential to qualify subject matter controversy, which is not regarding the determination or fixation of minimum rates of wages but to adjudicate that whether revision of minimum rates of wages, identified in the Notifications, are effective, applicable and provide a benchmark wage for computing the contribution [expression contribution is defined under section 2(5) of the Ordinance] to the Institution [Employees Social Security Institution established under section 3 of the Ordinance] by an employer [be it an establishment or Industry] in respect of an eligible employee [defined in terms of section 2(8) of the Ordinance]. Ordinance provides mechanism for determining, reviewing and modification of wage limits, contributions and benefits. In terms of the Ordinance contribution payable shall be 6% of the wage(s) determined under the Ordinance.
Eligibility of an employee is determined on the basis of the wage(s) determined under the Ordinance - persons whose wages exceed the wage(s) determined under the Ordinance lose their eligibility for the purpose of benefits of contribution payment. Moot question is whether minimum rates of wages, such as identified in the Notifications, would serve as benchmark wage for determining quantum of contribution payable or is it solely the wage(s) determined and notified by the Government in exercise power under the Ordinance. In this backdrop, nonconformity is attributed to the Notifications and declaration of invalidity sought.
Submissions:
4. Case of the petitioners, pleaded by respectively engaged counsel, is that contribution is solely determinable on the basis of wage determined and notified by the Government in terms of section 71 of the Ordinance and not otherwise; notwithstanding fixation of minimum rates of wages under any other dispensation, be it Punjab Minimum Wage Act 2019 (Act, 2019) or otherwise. Learned counsel aver that invalidity of the Notifications is an obvious consequence, if sections 2(f), 20 and 71 of the Ordinance are strictly enforced. Learned counsel cite cases reported as "Pioneer Cement Limited Ys. The Government of the Punjab and others" (2017 PLC 199), "Nadir Khan Ys. Qadir Hussain and others" (2024 SCMR 770), "Mall Development (Pvt) Ltd Ys. Waleed Khanzada and others" (2022 SCMR 2080), "Attaullah Khan Ys. Ali Azam Afridi and others" (2021 SCMRR 1979), "Shahida Bibi and others Ys. Habib Bank Limited and others" (PLD 2016 Supreme Court 995), "Khyber Tractors (Pvt) Ltd through Manager Ys. Pakistan through Ministry of Finance, Revenue and Economic Affairs, Islamabad" (PLD 2005 Supreme Court 842), "Faisalabad Electric Supply Company and 3 others Ys. Additional District Judge and 2 others" (2023 MLD 1255), "Messrs Khurshid Soap and Chemical Industries (Pvt) Ltd through Sheikh Muhammad Ilyas and others Ys. Federation of Pakistan through Ministry of Petroleum and Natural Resources and others"
(PLD 2020 Supreme Court 641), "Zila Council Jehlum through District Coordination Officer Ys.
Messrs Pakistan Tobacco Company Ltd and others" (PLD 2016 Supreme Court 398), "Messrs Mehraj Flour Mills and others Ys. Provincial Government and others" (2001 SCMR 1806) and "Shakeel Shahid Ys. Muhammad Younis Zahid and others" (PLD 2005 Lahore 357). "Maj. Matloob Ali Khan Ys. Additional District Judge, East Karachi and another" (1988 SCMR 747), "Auddin Hospital Trust through Trustee and Medical Director Ys. Director General / Commissioner, Excise and Taxation, Sindh, Karachi and another" (PLD 2001 Karachi 52), "Messrs Mehraj Flour Mills and others Vs. Provincial Government and others" (2001 SCMR 1806), "Municipal Committee, Bannu Vs. Munawar Khan, Advocate [Represented by his legal heirs and 8 others] (PLD 1982 Peshawar 61), "Muhammad Ashraf Vs. Nasreen Begum through legal heirs and 3 others" (PLD 1989 Lahore 69), "Messrs Pak Army Furnishing Stores Vs. Syed Ali Akbar Rizvi and 3 others" (PLD 1985 Karachi 201), "Dad Muhammad Khan Vs. Bassa" (PLD 1956 Lahore 774), "Pakistan through Secretary Finance, Islamabad and 5 others Vs. Aryan Petro Chemical Industries (Pvt) Ltd Peshawar and others" (2003 SCMR 370), "Muhammad Junaid Alam Vs. Federation of Pakistan through Secretary Islamabad and 3 others" (2019 CLC 453), "Muhammad Uneeb Ahmed Vs. Federation of Pakistan through Secretary Ministry of Science and Technology, Islamabad and others" (2019 MLD 1347), "Suo Motu Case No. 4 of 2010" (PLD 2012 Supreme Court 553), "Government of NWFP through Chief Secretary and another Vs. Dr. Hussain Ahmad Haroon and others" (2003 SCMR 104), "Asif Ali Zardari and another Vs. The State" (PLD 2001 Supreme Court 568), "Lt. Col. Nafis-ud-Din Ansari Vs. Qazi Habib Ullah and another" (PLD 1989 Lahore 26), "JDW Sugar Mills Ltd and others Vs. Province of Punjab and others" (PLD 2017 Lahore 68), "The Murree Brewery Co. Ltd Vs. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others" (PLD 1972 Supreme Court 279), "Syed Ali Abbas and others Vs. Vishan Singh and others" (PLD 1967 Supreme Court 294) and "Malik Gull Zaman Vs. Deputy Commissioner and others" (2022 CLC 1261).
5. Conversely, learned counsel appearing for the Institution submits that Notification of 20.09.2024 and those preceding it were issued in accordance with the mandate of Rule 4(3) of the Provincial Employees' Social Security (Contributions) Rules, 1966 ("Rules, 1966"). It is emphasized that determination of minimum rates of wages, notwithstanding the nomenclature of statute(s), provides legitimate basis for determining payable contribution. Explains that currently minimum wage is Rs.37,000/-, therefore, contribution @ 6% thereof shall be the amount payable. Further submits that Ordinance is a beneficial legislation and required to be interpretated in the interest of the labour class.
6. Learned Law Officer supported the arguments of the Institution, who emphasized that adoption of procedure under Section 71 of the Ordinance is primarily required for determining minimum wage and once minimum wage is determined there is no reason for duplication.
7. Heard. Written submissions perused.
8. On query that whether procedure provided in section 71 of the Ordinance is adopted before issuance of impugned Notifications, it is apprised that repeatedly recommendations of the Governing Body were sent to the Government for carrying into effect the mechanism of section 71 of the Ordinance but wage(s) was not determined in terms of the mechanism prescribed in the Ordinance.
Opinion of the Court:
9. The controversy involved calls for examining and interpreting the scope, effect and implications of sections 2(8)(f), 20 and 71 of the Ordinance and Rule 4(3) of the Rules, 1966, which are reproduced hereunder for better understanding, 2(8). "employee" means any person employed, whether directly or through any other person for wages or otherwise to do any skilled or unskilled, supervisory, clerical, manual or other work in, or in connection with the affairs of an industry or establishment, under a contract of service or apprenticeship, whether written or oral, expressed or implied but does not include----] (a)................
(b)...............
(c)................
(d).............
(e).............
(f). any person employed on wages exceeding the wages determined by the Government under Section 71
20. Amount and payment of contributions.(1) Subject to the other provisions of the Chapter, the employer, shall in respect of every employee, whether employed by him directly or through any other person pay to the Institution a contribution at such times, at the rate of six per cent and subject to such conditions as may be described.
Provided that no contribution shall be payable on so much of an employee's wages as is in excess of the wages determined by the Government under Section 71.
71. Review and modification of wages limits, contributions and benefits. (1) In January of each year, the Governing Body shall review the wage limits and the rates of contribution and benefits provided under the Ordinance in the light of any changes in wage levels or living costs and shall submit a report thereon together with its recommendations to Government.
(2) Government may, after, considering the said report and recommendations, by notification, enhance or reduce the wage limits or the rates of benefits payable under this Ordinance.
Rule 4(3) Where the provisions of the Minimum Wages Ordinance, 1961 (UUUIU of 1961), are applicable to any establishment and it is found that any wages paid are less than those specified in that Ordinance, contribution payable shall be calculated on the wages so specified in that Ordinance".
[Emphasis supplied]
10. Point of controversy is not the issue of minimum rates of wages or fixation thereof but what shall be the benchmark wage(s) for the purposes of computation of quantum of contribution under the Ordinance. Currently, determination of minimum rates of wages falls within the ambit of Punjab Minimum Wage Act 2019 (Act, 2019). Minimum wage determined under Act, 2019 cannot be imported or treated as benchmark wage for computing contribution without disrupting the scheme of the Ordinance and rendering material provisions thereof redundant. Amendments introduced in sections 2(8)(f) and 20 of the Ordinance through Provincial Employee's Social Security (Amendment) Act, 2013 (Amendment Act 2013) had fortified the centrality of section 71 of the Ordinance. This change was meaningful and deserves due deference. Section 2(8)(f) is amended, whereby emphasis had been provided to mechanism of determination of wage(s) under section 71 of the Ordinance and it was indicated that persons employed at wages, being in excess of the wages settled under section 71 of the Ordinance, would not qualify as an employee. In an eventuality, where wage(s) are determined and notified by the Government in accordance with the mechanism provided under Section 71 of the Ordinance and such wages synchronized with minimum rates of wages fixed under Act, 2019, there would hardly be a controversy. Controversy arises where minimum rates of wages exceeded previously determined and notified wages under the Ordinance; and former is purportedly taken as benchmark wage for computing the contribution payment. Overstretching of jurisdiction exercised under Act, 2019, as intended to be done through Notifications, undermined the status, relevance and efficacy of the Ordinance. This collusion course brought the matter to the court. There are no two opinions that upholding of the Notifications would render various provisions of the Ordinance ineffective and would certainly be a proclamation of death sentence for Section 71 of the Ordinance. Declaration of redundancy is not the choice. Likewise reference to Section 71 of the Ordinance is found in proviso to Section 20 of the Ordinance, which reinforces significance and centrality of the mechanism prescribed for determination of benchmark wage, being the notified wage, determined under section 71 of the Ordinance. Government had, on previous occasions, notified wage(s) in exercise of powers under Section 71 of the Ordinance, acknowledging the indispensability of section 71 of the Ordinance. Root cause of the problem is not lack of acknowledgment of the power available with the Government but an apparent and conspicuous inaction on its part.
Learned counsel for the Institution informed that recommendations of the Governing Body were variously conveyed to the Government but no follow-up action was taken. I refrain from attributing any mala-fide to the Government for not performing its functions / duties. Evidently, delay caused in performance of obligations has certainly inflicted harm / disadvantage to the class of employees, which situation can be cured either by exercising powers in terms of Section 71 of the Ordinance or amending the law, if benchmark wage has to be linked with minimum rates of wages - incidentally cure through Notifications is not a solution but an attempt seeped in illegality. I am afraid that judicial review jurisdiction cannot be stretched to address the situation. No resort to the doctrine of casus omissus can be made when there is no ambiguity and enactment clearly provides mechanism for determination of benchmark wage in terms of Section 71 of the Ordinance.
Miseries of the employees can be addressed upon prompt action by the Government. Courts cannot compensate for an apparent inaction on the part of the Government in guise of interpreting a beneficial legislation. Legislative command deserves deference and no indulgence can be shown by extending protection to the Notifications, which otherwise offend the mandate of the law.
11. Argument that Rule 4(3) of the Rules, 1966 substitutes the requirement under Section 71 of the Ordinance is fallacious. Rules cannot claim to be taller than the parent statute and jurisprudence in this behalf is well settled. Post promulgation Amendment Act 2013 and, in particular, upon promulgation of Act 2019, no protection of Rule 4(3) of Rules, 1966 could be claimed to protect Notifications - and even otherwise Rule 4(3), on its bare reading, extends preference to the wages determined under the Ordinance for the purpose of computing the contribution and prescribe adoption of benchmark wage for the employees, if minimum wage was less than that specified in the Ordinance. Intent of the Rule 4(3) is contrary to the submissions made. I am afraid that Rule 4(3) of the Rules, 1966 provides no protection to impugned Notifications. Judgments cited highlight cannons of statutory interpretation and reiterate settled jurisdictional principle, i.e., when the law requires that a particular thing should be done in a particular manner, it must be done in that manner and not otherwise. Case of Pioneer Cement Limited' (supra) deals with questions of legality of Notifications issued before the Amendment Act 2013.
12. In view of aforesaid, Notifications are found nonconformist, hence, declared as invalid and of no legal effect - to the extent where directions were issued for computation of contributions on the basis of rates of wages identified therein, which directions offend provisions of the Ordinance and specifically found contrary to the mandate of Section 71 of the Ordinance.
13. Instant constitutional petition and those listed in Annexure-A are allowed accordingly. No order as to the costs.