The Writ Petitions Nos. 1277/89, 945/88 and 1775/91 raise common question of law and facts, therefore, are being disposed of by single judgment.
2. The petitioners in all the petitions have mainly challenged their registration made on the basis of notification. The petitions were admitted to hearing and notices were issued to the respondents, who have appeared and contested the petition.
3. The learned counsel for the petitioners in support of the petitions argued that the respondents have held they cannot entertain any complaint etc. Under Chapter VII, therefore, the petitioners have no alternate remedy and Constitutional petition is competent. In this behalf, the learned counsel have pointed out that in Writ Petition No. 1277/89 as well as Writ Petitions Nos.945/88 and 1775/91 complaints under section 33 were filed but adjudicating authority dismissed the same for want of jurisdiction. It is argued that the respondents have grossly misinterpreted the provisions of section 33 of the Employees' Old-Age Benefits Act No. XIV of 1976 (hereinafter to be referred as Act XIV of 1976). The learned counsel for the petitioners particularly relied on clause (f).
4. On the other hand, the learned counsel for the respondents argued that actually the complaint should have been filed before the Board of Trustees and not the adjudication authority because it cannot entertain complaints against its superiors.
5. I have given my anxious considerations to the arguments of both the sides and gone through the provisions of law. Before proceeding any further it is worthwhile to reproduce section 33. Which reads as under: "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 m respect, of an insured person;
(d) the person who is the employer in respect of an insured person; 1 (e) entitlement to any benefit under this Act of as to the amount and duration thereof;)
2 (ee) registration of industry or establishment; or
(f) any other matter in respect of any contribution or any 3 (benefit) referred to in clause (e), or dues payable or recoverable under this Act relating to contributions or the aforesaid 4 (benefits), the matter shall be decided by the Institution, in such manner, and within such time, 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.
The learned counsel for the petitioners heavily relied on clause (f) but when their attention was drawn to clause (ee) they submitted that this is a direct provision dealing with the situation. They added that in spite of the fact that this provision was added through Ordinance XVII of 1983 yet the adjudicating authority as well as the Board had not taken the same into consideration while deciding the complaints and appeals there from against there registration.
6. The learned counsel for the respondents referred to subsection (4) of section 1, which reads as under:-- "(4) It applies to every industry or establishment.--(i) wherein ten or more persons are employed by the employer directly or through any other person, whether on behalf of himself or any other person or were so employed on any day during the preceding twelve months and shall continue to apply to every such industry or establishment even if the numbers of persons employed therein is, at any time after this Act becomes applicable to it reduced to less than ten, or
(ii) which the Federal Government may, by notification in the official Gazette, specify in this behalf)"
The argument of the learned counsel in nutshell is that the establishment, which has been notified by the Federal Government, cannot make use of the provisions of Chapter VII for getting their registration cancelled. The argument is misconceived for the reason: firstly, that in clause (ee) of section 33 there in no such distinction and secondly, the cardinal principle of interpretation is that the interpretation which advances remedy should be adopted.
The other provision dealing with the deregistration is section 11-A but it is applicable to the cases where the establishment or industry has ceased to exist. Therefore, the same is not relevant for the present controversy. The argument of the learned counsel for the petitioners that the complaint is competent in view of clause (f) section 33 is equally devoid of merit because where there are both general as well as special provisions to deal with a situation then the special provisions must be applied. I am fortified in my view by the judgment of the Supreme Court in the case of The State v.
Zia-ur Rehman and others (PLD 1973 SC 49). The relevant portion reads as under:-- "It is a well-established rule of interpretation that where in a statute there are both general provisions as well as special provisions for meeting a particular situation, then it is the special provisions which must be applied to that particular case or situation instead of the general provisions-----"
7. I have gone through the decision of the Board of Trustees in the case of Messrs Soma Laboratories. It is clear from the judgment that the Board has decided the appeal on facts but in the end observed that the authority has no jurisdiction to adjudicate the case notified by the Government. There is no reference, whatsoever, to section 33 and particularly subsection (ee).
Therefore, the view of the respondents is clearly misconceived and cannot be maintained. This view is even against the language of section 1(4) of the Act, 1976, which open with the words that the Act applies. It is, therefore, held that the adjudicating authority has the jurisdiction to entertain complaint against the registration of any industry or establishment.
8. The upshot of this discussion is that the writ petitions are allowed and the complaints of the petitioners would be deemed pending before the adjudicating authority, who shall decide the same expeditiously in accordance with law. There is no order as to costs.