' By this appeal, filed under section 64 of the Employees' Social Security Ordinance, 1965 (hereinafter referred to as the 'Ordinance'), M/s. Shaheen Airport Services, the appellant in this case, have called in question the order passed by the learned First Sindh Labour Court, Karachi, dated 12-11-1990, dismissing the appellant's appeal and upholding the order of the learned Commissioner Sindh Employees Social Security Institution Karachi, holding that the appellant was liable to make contributions under section 20 of the Ordinance.
2. The appellant is a subsidiary of Shaheen Foundation which was registered as a trust to cater to the serving as well as the retired personnel of the Pakistan Air Force. The appellant at the request of the Civil Aviation Authority is providing porter services to passengers at the Karachi Airport.
3. In 1988, the Director of the respondent, after checking the record of the appellant, demanded an amount of Rs,2,20,300.15 from it vide his letter dated 18-9-1988, payable on account of contribution under section 20 of the Ordinance for the period from January 1987 to December 1987. The appellant filed objections, admitting its liability only to the extent of Rs,730.14. However, subsequently their Assistant Manager (Accounts) appeared before the Director of the respondent and admitted the appellant's liability to the extent of Rs,14,884.15. The Director nevertheless affirmed the demand and vide its letter dated 20-10-1988 he called upon the appellant to pay an amount of Rs,2,13,199.01, which was followed by another notice dated 20-10-1988 issued under the Land Revenue Act. The appellant however, raised a dispute under section 57 of the said Ordinance before the Commissioner, Sindh Employees Social Security Institution Karachi, who by his decision dated 19-12-1989 held that the appellant was liable for the payment of contributions amounting to Rs,2,13,199.01. Aggrieved by said decision the appellant filed appeal under section 59 of the said Ordinance, before the learned First Sindh Labour Court Karachi, who dismissed the appeal and upheld the order of the learned Commissioner. It was concluded by the learned Labour Court as follows: "From the evidence and documents on the record I am of view that there is relationship of "
EMPLOYER" and "EMPLOYEE" between the Shaheen Airport Services and the porters and the amount paid to the porters at rate of Rs,2 per trip by Shaheen Airport Service comes within the meaning of "WAGES" as defined under section 2(30) of the Provincial Employees Social Security Ordinance, 1965 as such the appellant is liable to pay the Social Security Contribution on the wages of the porters, as such the Director has rightly demanded the contribution in respect of the porters in employment of the appellant and the learned Commissioner Sindh Employees Social Security Institution has rightly held the appellant liable for the said contribution. Therefore, I find no reason to interfere with the decision of the learned Commissioner Sindh Employees Social Security Institution, as such I find no merits in the appeal which is dismissed".
4. While challenging the said decision of the learned Labour Court, the main contention of Mr. Shahenshah Hussain, learned counsel for the appellant, has been that, there is no contract of employment between the appellant and the porters working at the Karachi Airport, thus no contribution in respect of the porters can be demanded from the appellant under the law.
According to the learned counsel, the amount of Rs,10 which the porters receive from the passengers at the Karachi Airport, per each trip, is shared by the appellant with the porters and therefore, it would be erroneous to assume that the amount received by the porters is being paid to them as 'wages' within the meaning of the term as defined in the said Ordinance. Additionally, it has been argued that the porters working at the Karachi Airport do not fall within the definition of the term 'employee' occuring in the Ordinance, as the appellant is an establishment working under the control of Pakistan Air Force. Mr. Muhammad Aslam Butt, learned counsel for the respondent, on the other hand, has fully supported the impugned order.
5. So far as the first contention of Mr. Shahenshah Hussain, is concerned, evidence was adduced by the parties in this regard before the learned Labour Court. According to the evidence given by the appellant's witness SA. Abrar Jafferi, the appellant has kept a "coordinator" at the counter installed at the Airport for porter service and any person desiring to work as a porter is required to submit his particulars to the coordinator. After verification of antecedents of such person by the crime branch of the police department, he is allowed to work as porter by the appellant and an Airport entry pass is then issued to him on the recommendation of the appellant. According to the said witness, the receipt book is in possession of the coordinator who issues a receipt of Rs,10. To the porter who passes the same to the passenger and receives the payment from him. The porter retains Rs, 2 with himself and deposits Rs,8. With the coordinator. The coordinator after collecting the money from the porter delivers the same to the O.S.D. Who maintains a complete record in respect of the payments thus received. The amount received is then deposited by the O.S.D. In the Accounts Department of the appellant. The porter service is being maintained round the clock for 24 hours.
According to another witness namely Muhammad Yousaf, Security Officer, A.S.F., examined on behalf of the respondent, entry, passes have been issued to about 200 porters of the appellant at its instance. The passes are issued for three months and after the expiry of the said term fresh passes are issued. According to the witness, payment of Rs,10. Is made by the passengers at the counter for services of a porter.
6. Before the issue can be resolved in the light of the above evidence, it is pertinent to refer to the definition of the terms 'employee', employer', and `wages' appearing in the said Ordinance, It is also pertinent to refer to section 20 of the Ordinance, which is the charging section. The said provisions are as follows: "2. Definitions.---In this Ordinance, unless the context otherwise requires, following expressions shall have the meanings hereby respectively assigned to them, that is to say--
(8) "employee" means any person working, normally for at least twenty-four hours per week, for wages, in or in connection with the work of any industry, business, undertaking or establishment, under any contract of service or apprenticeship, whether written or oral, express or implied but does not include--
(a) persons in the service of the State, including members of the Armed Forces, Police and Railway servants;
(b) persons employed in any undertaking under the control of any Defence organisation or Railway administration;
(c) persons in the service of a local council, a municipal committee, a cantonment board or any other local authority;
(d) any person in the service of his father, mother, wife, son or daughter, or of her husband;
(e) omitted.
(f) any person employed on wages exceeding one thousand rupees per mensem;
(9) "employee means in the case of works executed or undertakings carried on by any contractor or licensee on behalf of the State, the contractor or licensee working for the State, and in every other case the owner of the industry, business, undertaking or establishment in which an employee works and includes any agent, manager or representative of the owner;
(30) "Wages" means remuneration for service paid or 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 lockout or legal strike; but does not include---
(a) any payment for overtime; or
(b) any sum paid to the person employed to 'defray special expenses entailed by the nature of his employment; or
(c) any gratuity payable on discharge; or
(d) any sum paid as bonus by the employer;" "20. Amount and payment of contribution.--
(1) Subject to the other provisions of this Chapter, the employer, shall in respect of every employee, whether employed by him directly or through any other person, pay to the Institution a contribution at such times, at such rate and subject to such conditions as may be prescribed.
(2) Omitted.
(3) The employer shall not be entitled to deduct from the employee's wages or otherwise to recover from him any portion of the contribution, notwithstanding any agreement to the contrary.
(4) Subject to the provisions of subsection (2) of section 71--
(a) No contribution shall be payable on wages which are in excess of rupees twenty per day;
(5) For the purpose of determining the amount of the contribution payable, daily wages shall be calculated in such manner as may be provided by regulations.
(6) Where the mode of payment of remuneration whether in cash or in kind, makes it difficult to determine the amount of wages for computing the contribution, the Commissioner may, subject to regulations and in consultation with the representatives of employees, determine such wages.
(7) Omitted.
(8) In the case of construction work the owner of the building shall guarantee the payment of contributions by the contractor.
(9) In the case of works executed or undertaking carried on on behalf of the State by a contractor or licensee, the competent public authority shall before final settlement of the claims of the contractor or licensee arising out of the contract, require the production of a certificate from the institution showing that the necessary contributions have been paid, and in default of such certificate it shall deduct from the amount otherwise payable in settlement of such claim, the appropriate amount of the contributions payable, and pay such amount direct to the Institution."
7. The above provisions of the Ordinance came to be examined by the Supreme Court in the case of Sindh Employees' Social Security Institution v. Consolidated Sugar Mills Limited (1989 SCM R 888) and while referring to the definition of "employee" occurring in section 2 of the said Ordinance, it was observed by the Supreme Court as follows:- "Coming to the definition of employee, the requirements are that (i) he must normally be working for at least twenty four hours per week; (ii) he must be working for wages; (iii) he must be working in connection with the work of the industry, business, undertaking or establishment; (iv) he must be working under a contract of service or apprenticeship. The exclusions are for the present not relevant. What the High Court considered as deficient was that 'neither the amount of wages nor the terms and conditions on which these workers will be employed by the contractors is spelt out from these agreements'. These deficiencies were not the requirement of the definition. It was not the finding that no wages were at all paid by the contractor or that they were not employed on contract of service. All the terms of the contract have not to be established once the contractual relationship is established. There appears to be a mistaken impression that the contract of employment has to be between the owner and the employee. The definitions of employer and employee do not contain or exhibit any such constraint or limitation."
8. No doubt, the question requiring determination in the reported case was, whether the employer was required to make contributions to the Sindh Employees Social Security Institution, in respect of the employees engaged by it through an independent contractor, whereas, the question requiring determination in the present case is, whether the porters working at the Karachi Airport are the employees of the appellant, but the basic question requiring determination is, whether the persons for whom contributions are demanded fulfil the aforesaid requirements laid down in the definition of "employee". There has been no controversy on the point that the porters are normally working for at least 24 hours per week. It has further been established that they are working in connection with the establishment run by the appellant. It may be pointed out that from the evidence recorded by the learned Labour Court reference to which has earlier been made in this judgment, it can be clearly spelled out that the passengers at the Karachi Airport are required to pay Rs,10 at the counter which is controlled by the appellant and out of the said amount of Rs,10, Rs, 2 are paid to the porter for each trip and Rs,8 are retained by the appellant. There can therefore, be hardly any doubt that the remuneration received by the porters falls within the purview of "wages" as defined in the Ordinance. Mr. Shahenshah Hussain has argued that the porters are self-employed persons, but nothing can be spelt out from the evidence wherefrom such an inference may be drawn. On the other hand, the evidence shows that the porters receive a remuneration for each trip from the appellant which cannot be termed as anything else but "wages" as defined in the Ordinance. Lastly, as to the question, whether the persons for whom contributions are demanded have been working under a contract of service or apprenticeship, although, there appears to be no written contract of service between the parties as none has been produced in evidence before the learned Labour Court, but nevertheless no doubt can be entertained that the persons working as porters are being employed by the appellant. According to section 20 of the said Ordinance, the employer is obliged to make contributions in respect of every employee, whether employed by him directly or through any other person, at such rate and subject to such other conditions as may be prescribed.
Consequently, in my view, the appellant is obliged to contribute to the Social Security Fund for the porters engaged by it. The first contention of Mr. Shahenshah Hussain, therefore, has no merit.
12. The second contention of Mr. Shahenshah Hussain is that the porters are excluded from the defmition of "employee" as the appellant is an establishment working under the control of a defence organization. Reliance in this respect has been placed on a notification, dated the 8th August, 1977, whereby Shaheen Foundation P.A.F. Came into existence as a charitable trust to promote the welfare and benefit of the serving and retired Pakistan Air Force personnel including civilians. The appellant is the subsidiary of the said foundation as pointed out earlier. In support of his contention that the appellant is working under the control of the Armed Forces, learned counsel has invited my attention to a clause in the said notification vesting the administration of the said foundation in a 'committee' consisting of the Chief and the Deputy Chief of of the Air Staff as the Chairman and the Vice-Chairman respectively and Assistant Chiefs of the Air Staff, in charge of administration, operations, training, maintenance and plans as its members. Apart from the copy of said notification which has been filed as Annexure A, with the petition, no other material has been placed before this Court by the learned counsel for the appellant to show that the appellant is working under the control of the Pakistan Air Force. Apart from the fact that the question has been raised before me for the first time by Mr. Shahenshah and the same has not even been raised in the pleadings, the contention, in any case, has no force. Merely because the Chief of the Air Staff or the Deputy Chief of the Air Staff or Assistant Chiefs of the Air Staff have been given the charge of the administration of the said foundation, cannot necessarily give rise to an inference that its working is under the control of the Pakistan Air Force. Consequently, the second contention of Mr. Shahenshah Hussain must also fail.
13. In the result, I find no force in this appeal and the same is dismissed. The parties are left to bear their own costs.