1. ' SAEEDUZZAMAN SIDDIQUI, J.--This petition under Article 199 is directed against the notice dated 8th May, 1990 issued to petitioner by respondent No, 1 for recovery of alleged arrears of social security contribution amounting to Rs,23,56,403.50. At the hearing of the petition, the learned counsel for the petitioner stated that this demand in the meantime has increased to Rs,23,16,628.50 as per letter of respondent No, 1 dated 4th June, 1990.
2. ' Pre-admission notices were issued to respondents in the case and in response thereto only respondent No, 1 filed objections. We have heard the learned counsel for the parties at length and we propose to dispose of the above petition as a regular case as follows:-- ' The main contention of the learned counsel for the petitioner before us is that the respondent No, 1 is not entitled to enforce the demand of arrears of social security contribution as respondent No, 1 till today failed to provide the facilities in terms of Provincial Employees' Social Security Ordinance, 1965 (hereinafter called the Ordinance only) to the workers of the petitioner which were being provided by the petitioner at a cost which is much higher than the rate of contribution demanded by respondent No, 1 under the Ordinance. In support of his above contention the learned counsel for the petitioner relied on the decision of the Supreme Court in the case of Kohinoor Chemical Co., Ltd. v. Sindh Employees' Social Security Institution PLD 1977 SC 197.
3. ' The learned counsel for the respondents on the other hand contended that the liability of contribution under section 20 of the Ordinance is a statutory obligation which arises upon the issuance of the notification by the Government extending the application of the provisions of the Ordinance to the employees and employer of an establishment and as in the present case the provisions of the Ordinance were extended to the establishment of petitioner under notification dated 26-2-1987, the petitioner could not dispute their liability on the ground that the facilities mentioned in the Ordinance were not extended to the workers of the petitioner.
4. ' It is not disputed before us that a notification extending the provisions of the Ordinance to the petitioner's establishment was issued by the Government on 26th February, 1987 which was published in Sindh Government Gazette on 6th July, 1987. The learned counsel for the respondents does not dispute that the above notification cannot take effect prior to the date of its publication in the Sindh Government Gazette. However, the contention of the petitioner is that they are not liable to pay the contribution to respondent No, 1 for the period during which the facilities mentioned in the Ordinance were not made available to the workers of the petitioner and the petitioner made provision for the same at a higher cost than the contribution which was payable by them under the Ordinance. From the material brought on record, it appears that the facilities mentioned in the Ordinance were not made available to the workers of the petitioner on the date the notification was published. However, it is not possible to determine in the present proceedings the date on which such facilities as are mentioned in the Ordinance were available to the workers of the petitioner on account of varying contentions of the parties. In the case of Kohinoor Chemical Co., Ltd., the Court finally held as follows:-- "For the foregoing reasons I would hold that:--
(1) Once an establishment is notified under section 1(3) of the Ordinance, then the specified benefits under the Ordinance would accrue to all employees of the said establishment who are working either in the establishment or in connection with the work of the same. The latter category of employees may not be physically located at the notified address, but in that event an inquiry would be necessary to establish whether they are in fact working in connection with the work of the notified establishment. Such an inquiry should now be undertaken by the Social Security Institution with regard to the employees working in the Head Offices of both the establishments involved in these appeals;
(2) On the issuance of the necessary notification, the obligation is squarely placed on the employer to furnish the necessary returns to the Institution and to pay the prescribed contributions in respect of its own share and to realise the same from the employees, and credit the proceeds to the fund of the Institution. This liability to pay the contribution is not dependent upon the issuance of any notices of demand by the Institution and the employer cannot be permitted to take advantage of his own default;
(3) As regards the employees a distinction has to be made in view of the fact that the legislation is intended for their benefit, and if they have been prevented from making the contributions or availing of the benefits concerned owing to a default on the part of the employer, then it would not be in accordance with the spirit of the legislation to realise past contribution from the employees for the said period during which they were not treated as secured workers; and
(4) The arrears of contributions may not be realised from an employer for the period during which he had made alternative arrangements for affording the necessary benefits to the employees and had made a contribution in that behalf at least equal to the rate prescribed under the Ordinance and the Rules and Regulations framed thereunder. Otherwise, the realisation of arrears would mean a double levy on the employer, without any corresponding benefits to his employees.
5. ' However, the existence of any such adequate alternative arrangements must be established to the satisfaction of the Social Security Institution".
6. The above observations in the case of Kohinoor Chemical Co., Ltd. Clearly show that in cases where the employers have extended the facilities which are mentioned in the Ordinance to its employees and such facilities were made available at a cost which is at least equal to the value of contribution demanded by respondent No, 1 then in such cases the arrears of contribution may not be realised and demanded from the employer, as it would amount to realisation of contribution from employer twice. The learned counsel for the respondents in the light of the above observations of Supreme Court contended before us that if there is any dispute with regard to the existence or otherwise of facility provided by respondent to the employees of the petitioner in terms of section 35 to 45 of the Ordinance during any period after the issuance of notification and the petitioner made available these facilities to its workers at a cost which is at least equal to the contribution, the respondent No, 1 is willing to go into this question and determine the same in accordance with the provisions of the Ordinance. The learned counsel for the respondents further stated that until such time the above questions are determined by respondent No, 1 in accordance with the law, respondent No, 1 will not press for recovery of the demand impugned in this petition. In view of the above statement of the learned counsel for the respondents which appears to be quite fair and equitable, we allow the petition and declare the demand of Social Security contribution from the petitioner of no legal effect. The petitioner is directed to submit all relevant information as required under the law and file the prescribed returns in respect of its employees to respondent No 1, within one month from today whereupon respondent No 1 will determine the dispute in the light of above observations. However, pending determination of above dispute, the petitioner will start paying future Social Security contribution in accordance with the law. There will be no order as to costs.