IHSAN-UL-HAQ CHAUDHRY, J. The petitioner, an industrial concern, through this constitutional petition, has prayed for a declaration that the orders of the respondents dated 15.4.1990, 12.8.1990 and 28.8.1990 are without jurisdiction and of no legal effect.
2. The relevant facts are that the petitioner was registered with respondent No. 1. The respondents felt that the petitioner was not making payment of contribution in accordance with the labour employed by it and salaries paid to this labour. The petitioner, therefore, was directed to produce the following books of account for verification of the amount of contribution:-
1. Salary/wages register or sheets.
2. Cash Books.
3. General Ledger.
4. Attendance Register.
5. Contribution Cards (PR-04) and
6. Any other documents relating to the employment of insured persons and payment of wages.
It seems that the petitioner initially promised to furnish these books but did not honour its commitment, therefore, respondent No. 2 issued letter dated 12.8.1990. As the same remained un responded, therefore, respondent No. 2 proceeded to assess the amount of contribution payable by it according to the data available with him and intimated the same to the petitioner vide letter dated 28.8.1990. The petitioner has now impugned all these orders/memos of the respondents through this constitutional petition. The petition was admitted to hearing and notices were issued to the respondents who have entered appearance and contested the petition.
3. The learned counsel for the petitioner, in support of the petition, urged that the respondents are not entitled to direct the petitioner to produce books of account other than specified in section l2 of the Employees Old Age Benefits Act, 1976. The argument in nutshell is that the orders for production of General Ledger and other documents is patently has relied. The learned counsel, in support of his contention has relied on Messrs Agri Auto Industries Ltd., v. Employees' Old Age Benefit Institution. Hub Region and to others (1990 PLC 21).
4. On the other hand the learned counsel for the respondents raised a preliminary objection to the effect that the petition is incompetent as there are at least three remedies one after the other available to the petitioner under the Act itself. The learned counsel in this behalf has referred to section 33 of the EOBI Act, 1976 under which the petitioner can file a complaint. This is to be followed by review application under section 34 and ultimately the petitioner has right of appeal to the Board of Directors under section 35. The learned counsel, in this behalf, has referred to unreported decisions of this Court in WP 4284 of 1989 'Noon Textile v. EOBI' WP 2314 of 1985 'PCT Indus, v. EOBT and unreported judgment of the Supreme Court in CPSLA 515-K of 1989' Employees Old Age Benefits Institution v. Agri Auto Industries Ltd.' He has also placed reliance on the reported judgment in the cases Messrs Cowardree and Sons v. Director. Sind Employees' Social Security Institution (1980 PLC 752a) and Muhammad Shams Eram Usmani Vs. Kar.. B.C. Authority (1989 CLC 193).
5. On merits the learned counsel submitted that the petitioner has raised factual controversy which cannot be resolved in constitutional petition. It is submitted that the petitioner was continuously making short payments and in spite of the fact that it was pointed out to it by respondent No. 2 but the petitioner did not mend itself and also failed to get the exact amount determined, therefore, there was no way out with respondent No. 2 except to make his own assessment on the data available with him. The learned counsel, in this behalf, submitted the following data:- ((Table))PERIOD NUMBER OF EMPLOYEES SALARY PAID Actual Shown Actual Shown Dec.87 873 388 Rs. 10,38,799.37 ,Jc- Rs. 2,82,121.00.
The learned counsel submitted that his clients have taken up different months and in this behalf, he has placed on the record a statement for June 1988 and June 1989. He submitted that the petitioner continued in the same pattern throughout this period. The learned counsel submitted that the petitioner was rightly directed to produce general ledgers etc., and the judgment of the Quetta High Court has been set aside by the Hon'ble Supreme Court as is clear from the copy of judgment dated 29.1.1990 placed on the record.
6. The learned counsel for the petitioner, in reply to the preliminary objection as to competency of the writ petition, has argued that since the petitioner has challenged the jurisdiction of the respondents, therefore, the remedies provided under the Employees Old Age Benefits Act, 1976, are neither adequate nor efficacious. In this behalf the learned counsel has referred to Begum Nusrat Bhutto v. Income Tax Officer Circle V (PLD 1980 Lahore 449), Ch. Abdul Hamid v. Deputy Commissioner and others (1985 SGMR 359) and Pakistan Burmah Shell Limited v. Mrs. Nasreen Irshad and others (1989 SCMR 1892).
7. I have given my anxious consideration to the argument of the learned counsel for the parties and have also gone through the file as well as relevant provisions of law and precedent cases. Section 12 of the Employees Old Age Benefits Act, 1976, reads as under:- "Officials of Institution to check employer's books.-{1) Any official of the Institution, duly authorised by a certificate in a form specified in the regulations, may, for the purpose of inquiring into the correctness of any of the particulars stated in the records or returns referred to in section 10 or for the purpose of ascertaining whether any of the provisions of this Act have been complied with -
(a) require an employer to furnish to him such information as he may consider necessary; or.
(b) at any reasonable the, enter any establishment or other premises occupied by such employer and require any person found incharge thereof to produce and allow him to examine such accounts books and other documents relating to the employment of persons and payment of wages, or to furnish to him such information as he may consider necessary, or
(c) Examine, with respect to any matter relevant to the purposes aforesaid, the employer, his agent or any person found in such establishment or other premises, or any other persons whom the said official has reasonable cause to believe to be or to have been an insured person.
(2) The official referred to in sub-section (1) shall be bound to secrecy as regards all matters with which he becomes acquainted in the performance of his duties and which do not relate to matters provided for in this Act.
(3) If an employer fails to maintain records or to submit returns as required by the regulations, or otherwise fails to comply with the provisions of sub-section (1) and thereby makes it difficult to ascertain the identity of persons required to be insured or the amount of contribution payable, the contribution shall be assessed on the basis of such evidence as the Institution may find satisfactory for this purpose."
It is clear from the context of the provision that the purpose is to ascertain the contribution payable by the employer and for that purpose it can be directed to produce the following: -
(1) Accounts books; and
(2) Other documents relating to employment of persons and payment of wages to them.
To the same effect is the observation of the Hon'ble Supreme Court in the judgment in the case of 'Employees Old Age Benefits Institution v. Agri Auto Industries (CPSLA No. 515-K of 1989). The relevant portion reads as under:- "*For the purpose of verification certainly the employer could be called upon to make available at his office the records mentioned in section 12(1)(b).****it would be for the employer to make available at its office the accounts books and the accounts books will include General Ledger also.***"
It is, therefore, clear that the Institution can requisition books of accounts of all types which include general ledgers and other documents must pertain to the employment of persons and wages paid to them. The perusal of the first impugned order dated 15.4.1990 shows that there is nothing wrong with the requisition. All the documents required to be produced and examined are fully covered by subsection (1) of section 12. The learned counsel for the petitioner when confronted with the judgment of the Hon'able Supreme Court in Quetta matter, frankly conceded that in view of this judgment his main argument that the petitioner could not be legally directed to produce general ledger etc., has no force. He further submitted that the respondents should now proceed from the point of order dated 28.8.1990 in accordance with the observation of the Hon'ble Supreme Court as reproduced above.
8. Now coming to the preliminary objections, it is relevant to refer to the provisions of section 33 to 35 of the Employees Old Age Benefits Act, 1976, which read as follow:- "33. Decisions on complaints, questions and disputes.- If any complaint is received or any question or dispute arises as to -
(a) whether a person is an insured person within the meaning of this Act;
(b) the amount of wages of an insured person for the purposes of this Act;
(c) the amount of contribution payable by an employer in respect of an insured person;
(d) the person who is the employer in respect of an insured person;
(e) entitlement to any benefit under this Act or as to the amount and .Duration thereof;
(ee) registration of industry or establishment; or f) any other matter in respect of any contribution or any benefit referred to in clause (e), or dues payable or recoverable under this Act relating to contributions or the aforesaid benefits; the matter shall be decided by the Constitution, in such manner, and within such the, as the regulations may provide and the institution shall notify its decision to the person concerned in writing, stating therein the reason for its decision.
34. Review of decisions. The institution may, subject to regulations, on new facts being brought to its notice, review a decision given by it under section 33: Provided that no decision shall be reviewed without giving the person concerned an opportunity of being heard and adducing evidence in support of, or against, the decision, as the case may be.
35. Appeal to Board.-Subject to rules, a person aggrieved by a decision of the Institution under section 33 or on a review under section 34, may appeal to the Board."
It is clear from the text of the above provisions that the establishment which is aggrieved of an order of the Institution has at least three remedies one after the other. The petitioner did not avail the same. The competency of writ petition without availing the remedy under statute was examined by the Hon'ble Supreme Court in a number of cases. In this behalf, reference can be made to Allah Ditta and others v. Malik Ijaz Hussain (1986 S.C.M.R. 959), William Lawrence v.
Government of Pakistan and others (1986 SCMR 1077), Munir Ahmad Munir v. The Province of Pubian through the Secretary. Home Department. Lahore (1987 SCMR 396), Allah Bakhsh and another v.
Muhammad Ismail and others (1987 SCMR 810) and Muhammad Aslam v. Member Colonies'!.
Board of Revenue. Punjab. Lahore and another (1988 SCMR 1803). Suffice it to reproduce the relevant portion of para 10 of the judgment of the Supreme Court in the case of Allah Ditta and others:- "** Accordingly, we are of the opinion that if in any case the High Court considers that a writ petition should not be entertained on account of the failure of an aggrieved party to avail of another adequate remedy such a decision is not only entirely legitimate but is indeed in furtherance of the intendment of Article 199 of the Constitution. In fact in the present case, since the case was remanded by the Federal Land Commission to the Chief Land Commissioner for decision afresh in the light of the direction given by it, it was all the more appropriate that a revision petition should have been filed before the said authority to enable it to verify if its directions had indeed been carried out."
I am conscious of the judgment of the Hon'ble Supreme Court in The Murree Brewery Co. Ltd., v.
Pakistan through the Secretary to Government of Pakistan. Works Divisions and 2 others (PLD 1972 S.C. 279), but in that case the order was attacked on the ground that it was wholly without authority, partial, unjust and mala fide. It is true that in this case also the orders were attacked on the ground of lack of jurisdiction but the objection was misconceived. Reliance was placed on the case of Messrs Agri Auto Industries Ltd., v. Employees' Old Age Benefit Institution. Hub Region and to others (Supra) which was partially set aside by the Supreme Court.
This is not all. Even the last portion of the impugned order dated 28.8.1990 reads as follows:- "As a very special case we once again give you another opportunity to produce all the record by 10th September, 1990 failing which the amount assessed will become due and will be recovered as arrears of land revenue."
This portion is strictly in accordance with the observation of the Hon'ble Supreme Court in the case Messrs Agri Auto Industries Ltd (Supra). This renders petition incompetent. The petitioner should have pursued his remedies with the Institution as provided by statute. This lands support to the objection of the learned counsel for the respondents that the writ petition is incompetent and to the same effect are the un-reported judgments of this Court referred to by the learned counsel for the respondents. The same view was expressed by the Karachi High Court in Messrs Cowardree and sons v. Director. Sind Employees Social Security Institution (supra). The learned counsel for the respondents has rightly pointed out that the provisions of sections 57 to 59 of the West Pakistan Employees Social Security ordinance, 1965, are para materia to the provisions of sections 33 to 35 of of the Employees Old Age Benefits Act, 1976. I, therefore, have no hesitation in upholding the preliminary objection.
9. The result is that this petition is dismissed as incompetent. However, the petitioner can comply with the direction of respondent No. 2 as contained in the last order dated 28.8.1990.
There is no order as to costs.