' MUHAMMAD ZAHOORUL HAQ, J.--This petition is directed against the order passed by the respondent >on 25-10-1975, 17-6-1978 and 28-9-1978.
' The admitted position is that the petitioner had with it certain amounts which had been lying with 'them in the workers participation fund since the financial years 1968 to 1971. Petitioner requested the Government by letters of 28th July, 1975 and 18th August, 1975 for permitting them to disburse the amount lying with them among the workers, in view of the fact that the petitioner had declared no profits from the business of the Company, during the financial years 1973-74.
2. The respondent by its letter, dated 25-10-1975 stopped the petitioner from disbursing the fund among the workers on the plea that it stands transferred to the workers welfare fund. The Government was of the view that the unclaimed amounts of the workers who have voluntarily left the company cannot be disbursed to the other workers. They were also of the view that this amount be also treated as the amount left out of the annual allocation and as such is liable to be tranasferred to the funds constituted under section 3 of Workers Welfare Fund Ordinance, 1971.
3. On 29-1-1978, the respondent directed the petitioner to transfer the funds, lying with the petitioner since 1968-71, to the funds create ' under the Workers Welfare Fund Ordinance, 1971, otherwise the criminal proceedings would be initiated against them. Request of the petitioner to withdraw. The said notice was not acceded to. On 27-5-1978, the petitioner was required to show cause as to why the action under section 5 of Companies Profits (W.P.) Act, XII of 1968, should not be taken against them. The petitoners did not reply. On 18-6-1978, a penalty of Rs,5,000 was imposed upon the petitioner and a further penalty of Rs,1,000 for every day after 30th June, 1968, if the default continued, was imposed under section 5 of Act XII of 1968.
4. The petitioner applied for review on 10-7-1978, but by letter, dated 28-9-1978, the Review Petition was rejected on the ground that the unclaimed amount of the workers who voluntarily leave the employment of the company cannot 'be disbursed to other workers and that the amount left out of the annual allocation as such was liable to be transferred to the fund constituted under section 3 of the Workers Welfare Fund Ordinance, 1971, in view of the provisions of para.3(d) of the Scheme given in the Schedule to the Act, The penalty was also maintained in view of the amendment introduced by Ordinance No,IX of 1977.
5. The submission of Mr. Ali Amjad, counsel for the petitioner is that the action of the Government in asking for the transfer of the fund lying with the petitioner was not justified. The submission is that the amendment made on 13-4-1972 was only prospective and it cannot be given retrospective effect and that it was only the amounts left, undisbursed out of annual allocation of fund by the- company to the ' Workers Participation of Profits Fund for a particular year after 13-4-1972, which could alone be ordered to be transferred to the Workers Welfare Fund and not the amounts which were already transferred to the Workers Participation Fund under section 3(2) of Act XII of 1968 before 13-4-1972.
' Before we proceed further it would be necessary to mention that till 13-4-1972 there was no provision of transfer of Workers Profits Participation Funds to the Workers Welfare Fund and it was only on 13-4-197.2, that amendment was made in the Schedule under the Companies Profits (Workers Participation) Act, XII of 1968. Amended para.4(d) of the Scheme reads as under:- "4(d) Notwithstanding anything contained in this scheme, no workers shall, in any one year, be entitled out of the annual allocation to units exceeding rupees one thousand in value in so far as such allocation is relatable to ( ) clause (b) of subsection (1) of section 3. Any amount left out of the annual allocation after the units have been so allocated shall be transferred to the Fund constituted under section 3 of the Workers Welfare Fund Ordinance, 1971 (XXXVI of 1971). No part of such amount shall be deemed to be included in the net asset value of the Fund -established under this Act and no individual worker shall have any lien on "this amount by virtue of holding any units."
6. The meanings of the above provision appears to be clear to us. The above paragraph was amended on 13-4-1972, by Ordinance,. IX of 1972, which came into force at once and was not designed to be retrospective in effect and, therefore, it is clear that the provisions of para.4(d) of the scheme of Act XII of 1968 could not be used for the purpose of entire transfer of the funds of Workers Participation Fund as they existed before 13-4-1972. The amendment only meant that if any annual allocation was made thereafter by the company to the Workers Participation Fund and some funds out of that allocation were left to be disbursed to the workers then the same were to be transferred to the Workers Welfare Fund and were not to remain as part of Workers. Participation Fund. But this amendment was not designed to upset the Workers Participation Fund as it existed before 13-4-1972 because it did not provide so. The intention was clear that if there was any balance left out of annual allocation after 13-4-1972 then the same was to be transferred. The previous transfers to the Workers Participation Fund were to remain unaffected and this fund as such was allowed to be continued,.
' In this case, it is an admitted position that the fund sought to be transferred by the Government was in relation to the period before 13-4-1972. This contention of the petitioner is apparent from their letter, dated 28-7-4978 which shows that there was no allocation of funds towards the Workers Participation Fund by the petitioner in financial year 1972, as the company had not declared any profit. The same letter had shown in its heading that the amount was lying unclaimed in Workers Participation Fund for years 1968-71.
' This position had not been denied by the respondent anywhere in the counter-affidavit or in the orders passed by them. It is, therefore, clear to us that the insistence of the Government on transfer of those funds of the Workers Participation Fund which existed before 13-4-1972 was completely uncalled for, unjustified and without lawful authority.
7. In the present case, since there was no annual allocation of fund in 1972, therefore, the previous funds could not be treated as available for transfer to the Workers Participation Fund.
It is needless to point out that all the amounts remaining in the Workers Participation Fund out of the allocations made by the company before 13-4-1972 were to be treated as a part of the fund and had to be invested by the Board of Trustees of the Fund as provided in para.2 of the Scheme.
But it could not be transferred to Workers Welfare Fund and hence insistence of the Government for transfer of those funds which remained undisbursed before 1972 was not warranted in law.
8. Imposition of the penalty was also illegal as the very insistence by the Government that balance of allocation existing before 1972 should be transferred to the Workers Welfare Fund was unjustified.
' The petition is, therefore, allowed and the orders of the respondent, dated 25-10-1975, 18-6-1978 and 28-9-1978 are declared to have been passed without lawful authority. The petition is allowed.
' The amount deposited by the petitioner in this Court would be allowed to be withdrawn by the petitioner, but the same would constitute a part of Writers Participation Fund and would be used or invested by the Board of Trustees of the Fund as provided in para.2 of the Scheme contained in the Schedule of Act XII of 1968.