' This appeal under section 64 of West Pakistan Social Security Ordinance, 1965 (hereinafter referred to as the said Ordinance of 1965) has been preferred against the order dated 15th September, 1982 passed by the Sind Labour Court No.1 Karachi in Appeal No.1 of 1981 in the following circumstances: 1.(i) The respondent a partnership concern was constituted under the deed of partnership dated 1st March, 1961. The said deed inter alia provided:- "Clause 5.-- That the partnership business shall work as Stevedores, Dubashes, Steamer Agents, Salvage Contractors, Provision Merchants and Suppliers, Contractors for supplying labour, own, charter, hire lighters, tugs etc. and own workshop for repairing steamers, lighters, etc. and to deal in all other connected lines of business as has been hitherto carried on by the said firm".
' The above-named firm established besides under its own name i.e M/s. Cowasjee & Sons Karachi, two other organisations under the names of (1) British India Engineering Works and (2) M/s. Cowasjee and Sons (Lighters).
(ii) The Government of Sind by its notification published in the Sind Government Gazette, dated 29th April, 1972 notified at Serial No.6 M/s. Cowasjee & Sons and at Serial No.7 British India Engineering Works as the establishments under the Social Security Ordinance, 1961 besides some other establishments mentioned in the Schedule to the said notification.
' The organisation namely M/s. Cowasjee & Sons (Lighters) however was not so notified.
(iii) The appellant on the ground that the respondent was liable to pay monthly contribution on the employees of M/s. Cowasjee & Sons (Lighters), though not notified as mentioned above, however, called upon the respondent vide notice dated 10-6-1978 to pay Social Security contribution amounting to Rs.99,270.36. The demand was subsequently modified on the basis of calculation made at the rate of 7% of Rs.1,41,58,148 which amount represented payment of wages to dock workers working at the dock allegedly for the respondent. The respondent contested the demand inter alia on the ground that the employees of Cowasjee Sons (Lighters) were not working in connection with its establishment namely M/s. Cowasjee & Sons (1961).
(iv) The respondents filed Constitutional Petition No.901/1978 in this Court praying therein inter alia for declartion that the demand thus made against them be declared as illegal void and ineffective.
' The said petition came up for hearing when Mr.S.A.Sawana, Advocate who appeared for the appellant submitted that the demand in question could be appropriately challenged by raising dispute before the Commissioner, Social Security Institution as provided under section 57 of the Ordinance, 1965 and that thereafter in appeal according to law. It was also submitted by the learned counsel that the petition had been filed prematurely and that the party should have first approached the Commissioner. Statement was also made by him that the party would be heard on the contentions raised by them and that no action would be taken against them persuant to the demand in question till the matter was finally decided under the Ordinance of 1965. M/s. Cowasjee & Sons (1961) in the circumstances did not press the said petition.
' The said Constitutional Petition was accordingly disposed of on 3-2-1980 as withdrawn in view of the statement made as abovementioned.
2. Proceedings were thereafter initiated .under section 57 of the said Ordinance of 1965 by the present respondent namely Cowasjee & Sons.
' The Commissioner, Sind Employees Social Security Institution Karachi before whom the respondent led evidence oral as well as documentary, by order passed on 21-10-1980 held that M/s. Cowasjee & Sons (1961) are not liable to pay Social Security contribution in respect of their dock workers but are legally obliged to pay the Social Security contribution due from them in respect of the insurable workers of the lighter division.
3. Against the above order Labour Appeal No.1 of 1981 was filed by M/s. Cowasjee & Sons (Lighters) in the Sind Labour Court No.1 Karachi, which by order passed on 5th September, 1982 was allowed.
In the said appeal it was held that Cowasjee & Sons (Lighters) was not responsible for payment of Social Security contribution demanded by Sind Employees Social Security Institution, which order led to the filing of the present appeal.
4. The learned counsel for the appellant in support of the appeal raised the following grounds:-
(1) "That Cowasjee & Sons (Lighters) is a department of M/s. Cowasjee and Sons (1961), a patnership concern.
(2) That the opinion of the Government in notifying M/s. Cowasjee and Sons (1961) and M/s. British India Engineering Works, West Wharf Road, Karachi as establishments separately under the said Ordinance, 1965 vide Notification published in Sind Government Gazette dated 29th April, 1972 making the said Ordinance applicable to the employees and the employers of these two estab - lishments would not be binding upon the appellants".
5. The learned Advocates for the parties who argued at length placed reliance upon the same case law in support of their respective contentions to which I would presently make reference. It would however be relevant first to refer to the terms 'employee', 'employer' and 'establishment' which are defined in section 2 of the Ordinance as follows:- Section 2 -- "definitions . --I n this Ordinance, unless the context otherwise requires, following expressions shall have the meanings hereby respectively assigned to them, that is to say: ('8) "employee" means any person working, normally for at least twenty-four hours per weeks, for wages, in or in connection with the work of any industry, business, undertaking or estab lishment, under any contract of service or apprenticeship, whether written or oral, express or implied but does not include:- (Note.--Sub-clauses are omitted here as not relevant for this case).
(9) "employer" means in the case of works executed or undertkings carried on by any contractor or licensee on behalf of the State the contractor or licensee working for the State, and in every other case the owner of the industry, business, undertaking or establishment in which an employee works and includes any agent, manager or representative of the owner.
(11) "establishment" means an organisation, whether industrial, commercial, agricultural or otherwise".
' It would also be relevant to mention here that the provisions of the aforementioned Ordinance of 1965 as laid down in section 1(3) have been made applicable only to such areas, classes of persons, industries or establishments, from such date or dates and with regard to the provision of such benefits as Government may, by notification, specify in this behalf.
' In order to appreciate the arguments raised under ground No.1 by the learned counsel for appellant, the evidence which has been produced may now be considered in order to ascertain if M/s. Cowasjee & Sons (Lighters) is a separate establishment within the meaning of the Ordinance, 1965.
' Reference may first be made to the Notification (Exh.3-A) issued on 29th April, 1972 under the provisions of subsection (3) of section 1 of the Ordinance. By the said Notification the Government of Sind made the Ordinance of 1965 applicable with effect from 1-5-1972 to the employees and employers of the establishments mentioned in the Schedule wherein amongst others the following establishments were shown as the notified establishments:- {{TABLE}} S.No. Area Name Establishments: xxx xxx xxx X X X X xxx xxx xxx xxxx
6. SITE Cowasjee & Sons, Keamari, Karachi.
7. SITE British Engineering Works, West Wharf Road, Karachi. {{TABLE}} 'The evidence produced shows that M/s. Cowasjee & Sons (Lighters) were issued Lighterage Contractor's Licence (Exh.3-B) on 18th August, 1979 which is a distinct business from that of Stevedores for which M/s. Cowasjee & Sons were granted by Karachi Port Trust Stevedores Licence dated 30th September, 1980 (Exh.3-C).
' Nothing has been brought on the record by the appellant that the employees of Cowasjee & Sons (Lighters) are working for and or in connection with the notified establishment namely M/s. Cowasjee & Sons (1961). On the contrary the documentary evidence produced shows that the bank accounts, labour and the Collective Bargaining Agents of the two organisations are also separate.
It would also be relevant to note here that even the contribution payments under rule 3(4) of the Employees Old Age Benefit (Contribution) Rules, 1967 are made by each of these two concerns in respect of their own employees separately.
' Similar is the position of M/s. British India Engineering Works and their own employees, which concern has been notified separately as an establishment to which the said Ordinance of 1965 was made applicable by the Government vide Notification dated 29-4-1972 (Exh.3-A). The permit to this concern (British India Engineering Works) issued by the K.P.T. on Ist April, 1981 has also been produced as Exh.3-D.
' I also find on the record the notice dated 14th May, 1980 Exh.3-F which was issued by the Registrar Trade Union Sind Karachi on 31st May, 1981 addressed to 18 establishments directing each one of them to submit the lists of all the workmen employed on barges at Karachi Harbour, with details of parentage, age, appointment etc. as set out in section 22(2) of I.R.O., 1969 (Amended) and separate lists of such workmen who were having less than three months service. This notice was issued by the Registrar Trade Union for purposes of issuance of Collective Bargaining Agent Certificates. M/s. Cowasjee & Sons (Lighters) is one of the addressee Mr.Virjee, learned Advocate for the respondent rightly argued that this document further fortifies the inference that M/s. Cowasjee & Sons (Lighters) is a separate establishment/organisation from that of M/s. Cowasjee & Sons (1961) having its own separate organisation with its own employees and collective bargaining agent. I have already noted above that workers/employees of the three concerns/ establishments namely M/s. Cowasjee & Sons (1961) , M/s. Cowasjee & Sons (Lighters) and M/s. British India Engineering Works are different. The respondent also produced statement Exh. 3-J showing contributions made by M/s. Cowasjee & Sons (1961) to Social Security and annual turnover. Similar document marked as Exh.3-K/4 has been produced in respect of British India Engineering Works.
The list of workers of Cowasjee & Sons (Lighters) has been produced as Exh.3-L. Statement has been made on oath by Behram the Cashier-cum-Accountant of the respondent that even the balance-sheets of the three establishments are kept separate in respect of income-tax, though he admitted that for the convenience of the partners and taxing the partners, assessment of income- tax is one and the same.
7. The learned counsel for the appellant has not contested the facts discussed above which are borne out from the record but submitted that the partnership concern constituted under the partnership deed dated Ist March, 1961 (Exh.3-M) as authorised vide clause 5 reproduced above, is carrying on business of Stevedores, engineering works and lighters in three different names i.e. (i)
Cowasjee & Sons (1961), (ii) British India Engineering Works, and (iii) Cowasjee & Sons (Lighters) for their own convenience and that these concerns are owned by the same owners partners which fact is proved from the fact that the income-tax is paid by the firm of Cowasjee & Sons (1961).
According to the learned counsel in the circumstances all the three concerned doing businesses under the terms of the same partnership deed would be deemed to be part of the same organisation. Thus it was urged that since M/s. Cowasjee & Sons the partnership concern is a notified establishment the Ordinance of 1965 shall extend to all its 'departments' including Cowasjee & Sons (Lighters).
8. In order to resolve the issue thus raised, guidance may be sought from the principles laid down by the Superior Courts. Reference may, therefore, be first made to the case of M/s. Kashmir Corner v. Sind Employees Social Security Institution PLD 1975 Kar. 36 ' The facts of the abovementioned case were that the appellants at their shop (known as Kashmir Handicrafts) situated at Zaibunnisa Street, Karachi used to sell both imported goods and locally purchased goods. They also owned an industry (Kashmir Corner Industries) in the Korangi Industrial Area, Karachi. There was a demand for contribu tion under the Ordinance of 1965 by the Sind Social Security Institution in respect of both the abovementioned establishments. The demand in respect of Kashmir Corner Industries was not disputed by the appellants/Kashmir Corner Industries. The liability to pay contribution in terms of the West Pakistan Employees Social Security Ordinance, 1965 in respect of the Zaibunnisa Street establishment/Kashmir Handicrafs was challenged on the plea that it was not a notified establishment. On the interpretation of the provisions of the aforementioned Ordinance, 1965, this Court in the above cited case held that the Ordinance would not be in force in any area until a notification under subsection (3) of section 1 is made by the Government and then only in respect of such class of persons, industries, or establishment as may be specified. By the notification dated 15th October, 1968 issued by the Government of West Pakistan, the Ordinance was made applicable with effect from the date specified therein, to various establishments which included at serial No.195 the name 'of Kashmir Corner Industries, plot No.101, Sector 27, K.I. Area, Karachi. It was also notified by the same Notification that the said Ordinance was to apply to the areas mentioned in column 2 of the Schedule and to the employers and the employees of the establish ments mentioned against each of such areas in column 3 thereof and that the employees of such establishments shall be entitled to the benefits as provided in sections 35 to 45 of the said Ordinance. On the interpre tation of the law and the Notification issued under the Ordinance, it was held that:- " it seems plain that the Ordinance was not to apply to all concerns owned by a particular person or a legal entity as such but to industries or establishments specifically. stated."
' In the above-cited case on behalf of the Institution argument was advanced that the shop (Kashmir Handicrafts) situated at Zaibunnisa Street, Karachi and the industry (Kashmir Corner Industries) located in Korangi Industrial Area, Karachi owned by the same person must be regarded as one organisation. This argument, however, did not find favour with the Court and was repelled with the observation that all could be said in favour of such an argument was that the two establish ments were owned by the same persons and that in the same measure the two businesses were allied but this was hardly sufficient to make them part of the same organisation.
By the same judgment the case of Kohinoor Chemical Company Limited was also disposed of as both the cases involved same questions of law. An appeal was preferred against the said judgment which the Honourable Supreme Court dismissed. The case is reported as Kohinoor Chemical Company Limited and another v. Sind Employees Social Security Institution and another PLD 1977 SC 197. On the interpretation of the term 'establishment' as defined in clause (11) of section 2 of the Ordinance, the Honourable Supreme Court while observing that its scope was not merely confined to the four walls of the physical premises where the notified establishment may be located, held:- ".......... on the contrary, the definition speaks of an organization whether industrial, commercial, agricultural or otherwise.In its literal sense an organization connotes a systematic arrangement for a definite purpose.In the legal sense it describes a system, a body or a society furnished with organs for the normal exercise of its appropriate functions. It follows, therefore that an organiza tion is not necessarily co terminus with the physical premises where it may be located. It is possible that a part of its structure may be situated elsewhere, but it must, nevertheless be integral to its main functions and objects."
' Approving the observations made by the High Court in the case of Kashmir Corner PLD 1975 Kar.
36, it was further held:- the late Chief Justice has rightly remarked, in the case of the Kashmir Corner Industries, that the mere fact of common ownership could not be made the basis of extending the social security benefits to employees of a sister concern, although they are not working in connection with the notified establishment. Similarly, the benefit could not be extended to employees simply described as working in the Head Office of the organization or establishment concerned, unless a proper inquiry is held to establish whether they are indeed working in connection with the notified establishment."
9........ I may also with advantage refer here to the case of Sind Employees Social Security Institution v. Greaves Cotton & Company (Pak) Limited 1980 SCMR 529. The facts of the said case briefly stated here that by the Notification issued on 15-10-1975 by the Government of Sind, the provisions of Ordinance of 1965 were extended to the employees of the establishment described as "M/s. Greaves Cotton & Company (Pak) Limited--S-14, near Brooke Bond SITE." The said company contended that the Notification was confined solely to the establishment located at the address given in the Notification and did not extend to the employees working at the Head Office of the Company. This contention was, however, not accepted by the Social Security Court. The matter was further agitated in appeal by the Company before the High Court. The r learned Judge, who heard the case, allowed the appeal with the observation that the matter was fully covered by the decision of the Supreme Court in the case of Kohinoor Chemical Company Limited v. Sind Employees Social Security Institution (ibid). Leave to appeal was sought by the Institution against the above judgment. However, repelling the contention raised that the term 'establishment' as defined in clause (11) of section 2 of the Ordinance was considered by the Honourable Supreme Court in the case of Kohinoor Chemical Company Limited in a rather narrow sense whereas it is intended to include the entire organisa tion and not merely the factory, godown or shops situated at the notified address with the result that once a Notification is issued it would .extend to all the business undertakings carried on by the notified establishments irrespective of its location, the petition for leave to appeal was dismissed and the principle laid down in the case of Kohinoor Chemical Company Limited (supra) was re-affirmed.
10. From the principles laid down in the above cases by this Court and upheld by the Honourable Supreme Court I find no difficulty in holding that there is no force in the arguments advanced under ground No.1 by the learned counsel for the appellant. The appellant has not brought anything on record to prove that employees of Cowasjee & Sons (Lighters) are indeed working in connection with the notified establishment, namely, M/s. Cowasjee & Sons Keamari, Karachi. On the contrary there is overwhelming documentary evidence supported by oral evidence given by Mr. Behram Cashier-cum-Accountant of M/s. Cowasjee & Sons (Lighters) that there is no nexus or functional integrality so as to describe that the employees of Cowasjee & Sons (Lighters) are working in connection with the work of the notified establishment.
11. As regards the ground No.2, raised by the learned counsel that though M/s. Cowasjee & Sons, Keamari, Karachi and M/s. British India .Engineering Works, West Wharf, Karachi were notified under the Ordinance of 1965, the omission to notify Cowasjee & Sons (Lighters) was merely an error on the part of the Government and that since M/s. Cowasjee & Sons was duly notified, the provisions of the Ordinance, 1965 would extend to the establishment of M/s. Cowasjee & Sons (Lighters). I find that this argument also cannot succeed in view of the decision given by this Court, in the case of Kashmir Corner v. Sind Employees Social Security Institution (ibid). In the said case similar contention was raised. In the said case under the Notification issued under the Ordinance of 1965 at Serial No.53 Sind Steel Corporation Limited, S/20, S.1.T.E. Karachi was notified and at serial No.61 Sind Steel Corporation Limited, Steel House,West Wharf, Karachi was also separately notified. After taking notice of the fact that admittedly these two concerns had a common ownership nevertheless it was thought necessary to mention these two separately. in the course of the same Notification in order to make the Ordinance applicable to both the establishments, the Court held:- "I am conscious of course that the mere fact that the Government has so interpreted the Ordinance would not suffice for the purpose of holding that I ought to interpret the Ordinance in the same fashion although there is high authority for the proposition that departmental construction may be used as an aid in interpretation: E See PLD 1960 SC 195 and PLD 1965 SC 412. The present, however, is not a case of mere departmental construction, the very applicability of the Ordinance depends upon the terms of this notification and I am, therefore, really called upon not only to interpret the Ordinance but also to interpret the notification."
The principle laid down as above, is a complete answer to the argument advanced by the learneli counsel for the appellant underr ground No.2.
12. Before conclUding it may be mentioned that Mr.Sarwana the learned counsel for the Institution also argued that the beneficial provisions of the Ordinance of 1965, be liberally construed. However, I do not find any reason to hold that for any such reason any liability could be imposed upon the respondent where it does not exist.
13. For the reasons discussed above I find no merits in this appeal, which is accordingly dismissed.