JUDGMENT Sajjad Ali Shah, J.-This is an appeal under section 64 of Social Security Ordinance 1965, against order dated 26-8-1982 passed by Social Security Court No. II Karachi, whereby decision dated 13-b-*981 of the Commissioner Sind Employees Social Security Institution, Karachi, has been set aside.
2. Briefly stated the relevant facts are that appellant before me is Sind Employees, Social Security Institution (hereinafter to be refered as the institution), a statutory body established under section 3 of the West Pakistan Employees Social Security Ordinance 1965 (hereinafter to be referred as the said Ordinance). Respondents are Prestige Fabrics Ltd_ (hereinafter to be refered as the establishment). Under the provisions of the said ordinance during scrutiny by the audit team it was found that the establishment was not making proper contribution to _ the institution on certain payments made to the workers as appearing in the books of accounts for the period from January 1979 to December, 1979. Plea was taken by the establishment that no social security contribution was payable for the reason that for the period mentioned above overtime was paid to the workers. The other objection was taken that some payments were made to outside firms in connection with factory work but no social security eontributions were made on these payments. Such notice of demand was sent on behalf of the Institution. A reply of objections was filed in which establishment explained their position. After exchange of further correspondence finally demand notice dated 10- 1-1981 was sent oa behalf of the institution, wherein establishment was called upon to pay social security contributions amounting to Rs. 16,143'55.
3. Establishment filed a complaint under section 57 of the said ordinance as there was a dispute because on one hand institution pressed for payment of contributions and on the other hand establishment claimed exemption on the ground that payment of overtime was not included in the definition f wages The commistioner of the institution vide his decision dated 13-6-1981 has held that the establishment has foiled to prove that disputed payments related to overtime because of three reasons. Firstly that the disputed amounts have been shown in the books of accounts under the heading of "MILLS WAGES ACCOUNT" Secondly the disputed amounts were not shown separately in the books of aocounts under the heading of overtime and in fact no such register for that purp le was maintained. Thirdly permission as required under the Factories Act for allowing overtime was not obtained from the labour department. For the reasons stated above, the commissioner was of the view that the disputed payments were not in respect of overtime but were part of wages as such establishment was not entitled to exemption contemplated under section 2(30) (a) of the said ordinance.
4. Against the decision of the commissioner, having felt aggrieved establishment filed appeal before the social security Court under section 59 f the said ordinance and after hearing counsel for both parties vide order dated 26-8-1982 appeal has been allowed and in consequence order passed by the commissioner has been set aside. This time institution feeling aggrieved has filed appeal in the High rourt under section 64 of the said ordinance, which permits filing of such appeal against the order of social security court if it involves substantial question of law.
5. I have heard it length Mr. S. A. Sarwana counsel for appellant institution and M Ismail Qasim counsel for respondent establishment. Question of law involved is interpretation of the word ''WAGES" as defined in Section 2 (30) and other relevant provisions of the said ordinance. Section 2
(30) of the said ordinance is reproduced as under ?- '(30) WAGES" means remuneration for service paid for payable in cash or in kind to a secured person, not being less than remuneration based on the minimum rates of wages declared under the Minimum Wages Ordinance 1961 (XXXIX of 1961), without taking account of deductions for any purpose, under a contract of service or apprenticeship, expressed or implied, and shall be deemed to include^ any dearness allowance or other addition in respect of the cost of living and any payment by the employer to a secured person in respect of any period of authorised leave, illegal lock-out or legal strike ; but does not include (a) any payment for overtime."
Form reading of the definition as reproduced above it becomes crystal clear that "WAGES" do not inelude payment for overtime. There it absolutely no room for dispute or doubt because it is so specifically stated in very unambiguous terms as reproduced above. Mr. Sarwana has assailed the impugned order passed by the social security court on the ground that therein reliance has been placed on the definition of "WAGES" as oontemplated in the payment of wages Act. To that extent he is right for the reason that definition of "WAGES" is specifically given in the social security ordinance, which is to be followed in letter and sprit in this case to the exclusion of definition of "WAGES" given in any other law unless so expressly permitted under the said ordinance.
6. Now the question will arise for consideration as to who will determine the question whether overtime was paid or not and what procedure is to be adopted for so doing To undertake this exercisa it is necessary to look for enabling provisions within the four corners of this very ordinance.
7. Chapter III of the said ordinaries pertains to contributions and Section 20 thereof provides for payment of contribution to the Institution by the employer. Section 21 provides that eve y employer shall keep such records and shall submit to the Institution such returns, at such time, in such form and containing such particulars relating to persona employed by him, as may be provided in the regulation. Section 22 empowers officials of the institution to cheek the record of the employer as referred in section 21. Sub-section (3) of section 22 provides that if an employer fails to maintain records or to submit returns as required by regulations* the contribution shall be assessed on the basis of such evidence as the Institution may find satisfactory for this purpose. Section 80 empowers the Governing Body to make regulations on the subjects specified therein and in sub- section (2) at item No. (XI v) is mentioned the subject of records and returns to be submitted by the employers and the forms in Which such returns are to be submitted relating to employees. On this Subject Provincial Employees' Social Security (Employers' Returns And Records) Regulations, 1967 have been published in the gazette of West Pakistan on 21 June 1968, which Are contained in the book entitled Labour Code ef Pakistan 9th edition by M, Shaft ^Blue Book). Paragraph 8 of these regulations requires employer to submit pay roll or contribution schedule to the Institution and to retain a copy thereof for a period of at least 2 years after the date of payment of the wages and further provides that employer shall make them and any relevant documents relating to the payment of wages, available for examination by the official of the Institution. Paragraph 2 (1) (c) provides that "Pay roll" means a forot of pay roll or wage sheet approved by the Institution for the purpose of the payment of social security contributions. At item (d) "Contribution Schedule" is defined to mean a form obtainable from the Institution (Form C-l) for the purpose of payment of social security contributions where the pay roll or wage sheet in use by an employer has not been approved by the Institution or where the employer prefers to use the Contribution Schedule. [9] [10] can be used, which is obtainable from the Institution in (Form C. 1). Employer is allowed to use contribution schedule if he prefers to do so instead of pay roll or wage sheet. It therefore follows that it is open to the employer to use pay roll or wage sheet, which are used in the normal course of business and if they are not tpproved by the Institution, then the employer can use contribution schedule form of which is prescribed as form C-l.
9. Correspondence between parties on the subject available in the record shows that the dispute between parties is with regard to the period from January, 1979 to December, 1979 and the payments were shown by the establishment in the form with heading "MILL WAGES , which include payment of overtime as well. In this connection notice sent by the Institution date, 24-9-1980 clearly shows that objection was not made by Iostitution to the use of form of "MILL WAGES'* as such but the objection was as to why overtime was charged therein and why not under ^ the separate heading. Second objection was whether permission was obtained from the concerned authorities for allowing overtime. Reply dated, 14-10-1980 from the Establishment shows that all the relevant details were given by way of break-up to conclude that only an amount of Rs. 603-02 was payable as outstanding to the Institution. The letter _ dated, 27-10-1980 from the Institution shows that the Institution insisted to know from the Establishment reasons for booking _ overtime payment under the head Mill Wages, and whether permission was obtained for carrying out overtime and further particulars with regard to overtime. The reply Establishment dated, 17-11-1980 shows that stand was taken by the Establishment that the sheet of Mill Wages clearly provided for two sparate figures, I e.
One for overtime the other for wages along with grand total of overtime and wages under both the heads. Establishment also asserted in this letter that this practice had beep maintained since inception. It is further stated in this letter that the Establishment did not obtain permission for overtime which was being regulated under the provisions of the Factories Act but subsequently such permission Was obtained. Other requisite particulars were also supplied. Next letter in the record is dated, 10-1-1981 from the Institution in which the same objections were repeated that the amount was booked in the ledger under the head -'MILL WAGES" and permission from competent authorities for carrying out overtime was not obtained, hence social security contribution was charged along with increase, which came to Rs. 16,143.55. [11] course. Social Security Ordinance has no where empowered the Institution to dis-believe payment of overtime on the ground that permission was net obtained as required under the Factories Act.
Record of this case shows that permission was obtained and Institution w11. For the facts and reasons stated above I up-hold the order passed by the Social Security Court and hold that in the instant case Establishment was entitled to claim exemption in respect of overtime shown in their record for the period from January, 1979 to December, 1979 for whieb they bad produced sufficient proof which is enough to claim exemption as contemplated under the Social Security Ordinance. In the result appeal is dismissed.