1. This order will govern the disposal of Misc. Appeals Nos. 21 aid 22 of 1978; filed under section 64 of the Provincial Employees' Social Security Ordinance, 1965, (I will hereafter refer this Ordinance as `the Ordinance' only for the sake of brevity), preferred by the Sind Employees Social Security Institution. (I will hereafter refer it as `the institution' .Only). The admitted position in the case is that the Director of Sind Employees Social Security Institution demanded various sums of money byway of contribution under the provision of the Ordinance from the respondents in these appeals. Some of these demands were paid by the respondents but the contribution demanded by the Director in respect of employees of the 8 selling depots in Karachi were resisted by the respondents on the ground that the employees working there are not the employees of the respondents. It was represented by the respondents before the Director that the two respondents in the above appeal are- two different companies separately incorporated under the Companies Act and therefore separate legal entities. It was further contended that the employees working in the said 8 selling depots were not the employees of any of the respondents, who were employed by the persons running those selling depots in connection with the business carried on by them. The objection taken by the respondent was however not accepted by the Director who threatened to recover the contribution by coercive process. The respondents then filed two separate appeals before the Social Security Court No. 1, Karachi, under section 59 of the Ordinance against the demand of contribution made by the Director. Before the Social Security Court, evidence was recorded both on behalf of respondents as well as the appellant and after hearing the parties the Social Security Court reached the conclusion that persons employed in connection with the business carried on in the said selling depots, were not the employ, of any of these respondents and therefore. They were not liable to pay any contribution under the Ordinance in respect of these employees. Against the decision of Social Security Court in the above appeals the Institution has come is appeal before this Court. Mr. S. A. Sarwnna, the learned counsel for the appellants urged that the appeals before the Social Security Court filed by the respondents were. Not competent as there was no decision of the institution' in these cases, cinder section 57 of the Ordinance, and therefore the decision in these appeals, was without jurisdiction which should be set aside and the case be sent back to the institution for decision under section 57 of the Ordinance. This point was neither raised before the Social Security -Court nor it is specifically pleaded in the memo. Of appeal before this Court. Mr. Ali Ahmed Fazeel,, the learned counsel for the respondent, therefore contended that this point cannot be allowed to be raised for the first time now., However, when I enquired from the learned counsel whether any decision under section 57 of the Ordinance was in fact given by the Institution at any stage in these cases, he very frankly stated that except the two letters of the Director, Sind Employees Social Security Institution dated 22nd February, 1973 and 15th June, 1973 there is nothing also to show that any decision under section 57 of the Ordinance was given by the institution. The 'learned counsel; nevertheless, contended that the letter of Director, 'Sind Employees Social Security Institution dated 15th June, 1973 written to the respondents rejecting their pleas to show that a copy thereof was endorsed to Commissioner, Sind Employees Social Security Institution, with reference to Commissioner's letter dated 9111th June, 1973 and therefore it should be construed as the decision of the institution since the decision, it appears was in fact given by the Commissioner and the Director, Sind Employees Social Security Institution only communicated the same, I have gone through the two letters of Director, Sind Employees' Social Security .Institution and after going through the same I am unable to agree with the learned counsel, for the respondent that these letters can construed at a decision under section 57 of the Ordinance. It is true that the plea of maintainability of appeals before the Social Security Court in these cases was not raised by the appellant earlier but since this point relates to the jurisdiction of the Social Security Court to hear appeals under the Ordinance and it can be decided on the basis of the material already on record without examination of any other factual aspect of the case. I am inclined to go into this question in these appeals.
2. It is admitted before me that except the two letters of Director Sind Employees Social Security Institution dated 22nd February, 1973 and 15 June, 1973 there is no other order of institution m these cases to show that any decision under section 57 of the Ordinance. It is however contended by Mr. A. A. Fazeel, the learned counsel for the respondents, that the letters of Director. Sind Employees Social Security Institution amounts to a decision under section 57 of the Ordinance as copies of these letters were endorsed to Commissioner, Sind Employees Social Security Institution who exercises the powers on behalf of Institution under the Ordinance. In order to appreciate the contention of learned counsel for the respondent it is necessary to examine the two letters dated 22nd February, 1973 and 15th June, 1973 written by the Director, Sind Employees Social Security Institution to respondents in these cases. The letter dated 22 February, 1973 ,is in the following terms :- ---The Manager, Ahmed Food Industries, D/ 112, S. I. T. E., Karachi Sub :E-V Asio-N of Social Security Contribution by Messrs Ahmed Food Industries and Ahmad Halwa Merchant.th nd A team of this Institution's Officers headed by Deputy Director (Audit) visited your establishment in connection with checking of the accounts to ascertain whether correct contributions were being paid to this office since their coverage under the Social Security Scheme. It has been reported after examination of your records that you have not been paying Social Security Contribution on Conveyance allowance, other fixed allowances, canteen workers and employees working in the sales Agencies since 1st November, 1968. The details of Contribution which was payable to this Office are as under .- S. No. Name of Establishment Amount recoverable Remarks 1.
3. Ahmed Food Industries Rs. 456.00 Contribution on allowance.
4. 2' do- Rs. 1,620.00 Canteen workers from Ist November, 1968 to 31st December, 1972 3.
5. Ahmed Karachi Halwa & Ahmed Food Industries Rs. 26,571.48 On account of sales Agencies.
6. 4.
7. Ahmed Karachi Rs. 150.00 Arrears of allowances.
8. Total Rs. 28, 797.48 You are, therefore, advised that arrears of contribution amounting to R;, 28,793.48 alongwith --% increase penalty till the actual date of payment ,nay be deposited with the office within 15 days of the date of receipt of this notice. Please note that if the above arrears are not cleared within the prescribed time limit, the same shall be recovered as arrears of land revenue under section 23(2) of} the Social Security Ordinance.
9. Sd.) Z. A. Qureshi Director. c.c.
10. 1.Mr. S. G. H. Taqvi, S. S. O., for Information and Necessary Action.
11. 2.The Manager, Ahmed Karachi Halwa Merchant for information and similar action, 3.The Commissioner, S. E. S. S. I., with reference to Head Office letter No. 7/35/73 C & B/410, dated 30th January, 1973, for information."
12. This letter of Director, Sind Employees Social Security Institution was replied by the respondents on 23rd May, 1973 and several grounds were taken to show that they were not liable to pay the contribution demanded from them. The Director, Sind Employees Social Security Institution after considering the representation of respondents dated 23rd May. 1973 wrote another letter to them on 15th June; 1973 as follows :- "The Manager, Ahmad Food Industries, A D/ 112, S. I. T. E.,.
13. Karachi Sub : Evasion of Social Security Contribution by Messrs Ahmad Food Industries and Ahmad Karachi lialwa Merchant.
14. Ref Your letter No. 6104, dated 23rd May, 1973
(1) Your above letter-basically does riot deal with the subject-matter, but you have raised certain subsidiary issues and irrelevant legal points which are clarified below
(2) You have objection of our joint dealing with Messrs Ahmad Karachi Halwa Merchant and Ahmad Food Industries Ltd. In fact, our letter No. SK/1-20-14/73-Cont/150 45 dated 20th February, 1973 was addressed to Messrs Ahmad Food Industries, but its contents equally apply to Messrs Ahmad Karachi Halwa Merchant also because as far as our knowledge is concerned, both the establishments are governed by . The same management. The proof is that your letter under reference too has been issued jointly from both these firms and has been signed by one person only on behalf of both the Establishments. The. Contents of your letter also include mention of both the firms and as such your objection to our joint dealing is not understandable.
(b) In para. 2 of your letter you have invited our attention to the preamble to the Social Security Ordinance, wherein, according to you, we can find definitions of `Contribution' `Employee' and `Employer". It is added for your information that none of these terms have been defined in the preamble to the Ordinance.
(c) In para. 2 of your letter you have also taken protection of the Contract Act to prove that the workers engaged in your branches cannot be treated as your employees according to the Contract Act. It is stated in this connection 'that Social Security Contribution has been demanded of you under the terms of Social Security Ordinance and as such any mention of Contract Act (or any other Act) is irrelevant in this behalf. As per section 2(9) of the Social Security Ordinance, `Employer means and. Includes. . Any `Agent, Manager or Representative of the owner ; As such you are liable to pay contribution in respect of the employees engaged by your Agents.
(d) In para. 2 of your letter you have also stated. That there is, a conflict in the explanations of certain term used in Contract Act and the Social Security Ordinance. As a matter of fact, such conflicts are always there in different enactments and that is why every . Law has a section definitions under which the - various terms used in that law are specifically defined. Obviously, the definition of a certain term given in certain law cannot be contradicted if overridden by the definition of the same term under any other law. This is because each law has its own sphere of jurisdiction and coverage. In the same para. Of your letter you have also stated about the "Protection" granted to the Employers in the preamble to the Social Security Ordi--nance. In fact no such protection has been granted in the preamble which only deals with a brief background and circumstances under which the Social Security Ordinance was promulgated. It is not understood as to which protection you are speaking of.
(e) As regards payment of contribution in respect of canteen workers, your attention is drawn to section 2 (8) of the Social Security Ordinance according to which workers indirectly employed (through contractor etc.) are also to be treated as ."Employees" within the meaning of section 2(8) of Social Security ordinance.
2. In view of the above, your liability. For payment of Government dues as detailed in our letter dated 22nd February, 1972 is established. However, to have further facts of the case before us, the under--signed would like to have a copy (preferably photostat) of the agreement entered into between you and your agents in various parts of the city. The same may please be supplied within a week from the receipt of this letter failing which compulsory proceedings shall be initiated against you under section 83 of .theLand Revenue Act, 1967.
15. Sd.) Z. A. Qureshi.
16. C. C.Director.
(1) Mr. S. G. H. Taqvi, Social Security Officer, for information and necessary action.
(2) The Manager, Ahmad Karachi Halwa. Merchant for similar action.
(3) This Commissioner, S. E. S. S. Institution. Head Office, Karachi, for information with reference to letter No. 7/35/73-Pt/C&B/2470, dated 9th/11th June, 1973."
17. The last letter dated 15th June, 1973, it is contended by Mr. Fazeel should be construed as a decision under section 57 of the Ordinance. It is an admitted position that appeal lies to Social Security Court under section 59 of the Ordinance only against a decision of the institution made under section 57 of the Ordinance or against the order of review passed under section 58 of the Ordinance and in no other case. The Institution under the Ordinance means Employee's Social Security Institution. Its establishment and corporate character is provided in section 3 of the Ordinance, Section 4 provides that the general direction and superintendence of affairs of the Institution vests its governing body, which, with the assistance of a Commissioner may exercise all powers and do all acts and things which may be exercised and done by the institution. The constitution of the governing body of the institution is provided for in section 5 of the Ordinance, Section 18 of the Ordinance provides that the Commissioner shall be the Chief Executive of the institution. Mr. Sarwana, the learned counsel for the appellant stated, before me, that apart from the above provision in the Ordinance which provides that the institution shall act through the Commissioner, the governing body of the institution through a resolution has specifically authorised the Commissioner to decide the com--plaint and disputes under section 57 of the Ordinance. ,This position is not disputed by M. A. A. Fazeel the learned counsel for the respondents, who himself urged that in view of the section 18(1) of the Ordinance, a decision of the Commissioner shall be deemed to be decision of the Institution within the meaning .Af section 57 of the Ordinance. As it is common ground between the parties that in order to make a decision to be that of "the institution" under section 57 of the Ordinance it. Should be a decision of the Commissioner I will now consider whether the letter of Director, Sind Employees Social Security Institution dated 15th June, 1973 could be treated as the decision of the Institution within the meaning of section 57 of the Act. The said letter of the Director, Sind Employees Social Security Institution is already reproduced above and after going through the same I am of the view that the decision, if any, communicated through this letter was that of the persons who wrote the letter. It was not a letter communicating the decision of any other authority. No doubt, a copy of this letter was endorsed to the Commissioner Sind Employees Social Security Institution but this fact alone is not sufficient to make it the decision of the Commissioner. Section 57 of the Ordinance envisages the decision of a complaint or a dispute by "the Institution' alone which according to the admitted position in this case means the decision of the Commissioner, Sind Employees Social Security Institution. I am, therefore, 'A of the view that in these cases there was no decision by the institution as required by section 57 of the Ordinance and therefore. I hold that appeal lay before the Social Security Court under section 59 of the Ordinance. I accordingly accept both these appeals, set aside the order of the Social Security Court No. 1, Karachi, but in the circumstances o the case I remand the case to the institution for taking a decision in accordance with the law under section 57 of the Ordinance.
18. Mr. S. A. Sarwana, the learned counsel for the appellant conceded before me that in view of the fact that no decision has been given by the Institution under section 57 of the Ordinance the appellant 41 not press for realization of the contributions demanded by them from the respondents for the present. I accordingly further order that until decision is given by the Institution under section 57 of the Ordinance, the recovery of the dues against the respondents will not be pressed. Before parting with the case I may mention here that the section 57 provides that the Institution shall decide the complaint or the dispute as the case may be in such manner and within' such time as the Regulation may .Provide. The learned counsel for the appellant stated before me that no regulations have so far been framed under the Act. Section 80 of the Ordinance empowers the Governing Body of the Institution to make regulation subject to the condition of previous publication by Notification. It is unfortunate that in spite of the passage of almost more than 17 years since the promulgation of the Ordinance. The Governing Body has failed to make necessary regulation in that behalf. I hope that the Authorities concerned will look into the matter and take appropriate steps for framing of the relevant regulation in order to give full effect to the provisions of the Act and to avoid any confusion which may arise in the absence of relevant regulations. With there observations these two appeals are allowed but in the circumstances of the case there will be no order as to costs.