SALEEM AKHTAR, J.---The, petitioner seeks leave to appeal against the order of the Division Bench of the High Court of Sindh dismissing the Constitution Petition filed by the petitioner challenging the order of respondent No.2 which had withdrawn the order staying the operation of Notification dated 15-10-1968.
2. The petitioner is a company engaged in business of manufacturing, production, sale and distribution of pharmaceutical products and medicines. On 15-10-1968 a Notification was published by the then Government of West Pakistan, notifying the names of establishments to which the West Pakistan Employees' Social Security Ordinance, 1965, was made applicable with effect from 1st November, 1968. The petitioner's establishment in Karachi was also notified in the said Gazette. It seems that Collective Bargaining Agents of Workmen of the petitioner and other major establishments preferring to avail the medical facilities and benefits under various collective bargaining settlements made representations that they may not be governed by the Social Security Ordinance, hereinafter referred to as `the Ordinance'. Consequently respondent No.2 advised that the Ministry of Labour of the then Government of West Pakistan had set up a committee to examine the question of exemption from the applicability of Social Security Ordinance. Respondent No.2 also required certain information to be supplied in the proformas prepared by them. Respondent No.2 by letter dated 10-1-1969 intimated the petitioner that pending final decision the application of the Notification to the petitioner's establishment was stayed. This was reiterated by the Labour Department of the Government of West Pakistan. Consequently the petitioner stopped making payments under the Ordinance to respondent No.2. It seems that the exercise continued for some time as certain informations were required by respondent No.2 in the year 1978 and 1981 which were furnished by the petitioner from time to time. Respondent No.2 by letter dated 10th August, 1983, intimated the petitioner its intention to vacate the stay and required certain information in that regard. The said letter is reproduced as follows:- "No SS/WWD/CONT/82-83/178Karachi dated 10th May, 1983 M/s. Glaxo Laboratories Ltd.
Dock Yard Road, West Wharf, Karachi Sub: VACATION OF STAY GRANTED TO THE NOTIFIED ESTABLISHMENTS.
Dear Sir, As you are aware, application of the provisions of Social Security Ordinance to your organization was stayed by the higher authorities in 1968. Now, the Governing Body of S.E.S.S. Institution is considering to recommend vacation of the said stay. In this connection the following information is urgently required by the Institution:--
(1) Details of medical facilities being provided to the employees.
(2) Details of any cash facility as Medical Allowance.
(3) Consent of the Collective Bargaining Agents for vacation of stay.
Details of medical facilities etc. Were provided by you in the past vide your letter No dated September, 1981, copy of which is enclosed. Any change or amendment in the said facilities may please be mentioned along with the other information.
You are requested to forward the above information along with the views of the CBA to this Directorate by 14th May, 1983, positively.
Yours faithfully (AJMAL HASANALLY) DIRECTOR.
The petitioner promptly replied by its letter dated 11th May, 1983. The CBA of petitioner's workmen also replied disagreeing with the intention to withdraw the stay order. Respondent No.2 by letter dated 9th May, 1991, conveyed to the petitioner that respondent No.l has vacated the stay order granted in 1969. By a separate letter dated 19-5-1991 respondent No.l demanded the: contribution from the petitioner as the stay had been vacated. The petitioner termed the action of the respondents Nos.l and 2 in violation of the principles of natural justice. The petitioner then filed Constitution Petition in the High Court which was dismissed in limine by the impugned order.
3. Mr.A.A.Shareef, the learned counsel for the petitioner, has vehemently contended that the impugned order was passed without a show cause notice and without affording any hearing to the petitioner or respondent No.3 which had also opposed such action. The learned counsel submitted in detail various settlements and the benefits which were conferred on the workers and contended that as stay had been granted which had remained in operation for 22 years, if at all it was to be vacated proper notice and hearing should have been afforded to the parties adversely affected by it. This contention raised in the High Court did not find favour and the learned Judges observed as follows:- "We find no merit in this submission and according to our view the contention is misconceived.
Admittedly the notification dated 15-1.0-1968 is still in the field and has not been withdrawn. On the basis of some orders passed by the then Minister, the said notification was not given effect. The said notiticat:on dated 15-10-1968 has not been challenged. In our view if the said notification is now being sought to be enforced, it was not necessary for the Government to grant a prior hearing to the petitioner. We also find from the documents filed along with the petition that, before the impugned action was taken, letters had been issued by the Social Security Establishment for obtaining certain information and other details from the petitioner and other companies and thereafter the impugned action has been taken. "
The learned counsel also pointed out that in another petition of similar nature another Division Bench of the High Court has allowed the petition on the ground that order was passed in violation of principles of natural justice.
4. A close scrutiny of the facts will show that respondents Nos.l and 2 had issued a notification as far back as in 1968 and the petitioner was included in the list of companies and establishments to which Ordinance was made applicable. According to section 1(3) of the Ordinance it was applicable to such areS, classes of persons, industries or establishments from such date or dates and with regard to the provisions of such benefits as Government may by notification specify in this behalf. Therefore, no sooner a notification is issued applying the Ordinance on any establishment, the specified benefits under the Ordinance would accrue to all employees of the said establishment. Reference can be made to Kohinoor Chemical Industrie. v. Sindh Employees Social Security Institution PLD 1977 SC 197. Even the petitioner does not deny that with the publication of the notification the petitioner's liability under the Ordinance commenced and continued till it was stayed by respondent No.2. The stay order` was passed but the advisability to continue it had been examined from time to time. The stay order only kept the operation of applicability suspended which was to be restored the moment stay was withdrawn. There is nothing on record to show that stay must have been granted as a matter of right. No doubt any company or establishment is entitled to claim exemption from the operation of the Ordinance but so far as stay is concerned, it is merely a temporary and interim arrangement through an executive order which can be withdrawn by respondent No.2. The only objection seems to be that no notice of such withdrawal was made and no hearing to the petitioner was afforded. All these objections seem . To be completely illusory as on its own admission the respondent No.2 had issued a notice to the petitioner dated 10th August, 1983. In this notice it was clearly mentioned that respondent No.2 intended to vacate the stay. Pursuance to this notice representation was made and, therefore, considering the facts and circumstances of the case where the petitioner did not have any substantive right, piny withdrawal of the stay after due notice to the petitioner could not be challenged cm the ground that it was in violation of natural justice. We may, however, clarify that even after vacation of the stay the petitioner is competent to approach the authority to obtain the exemption or stay, as the case may be. With this observation we refuse to grant leave and the petition is dismissed.