The petitioner through this Constitutional `petition has prayed for declaration that the decisions dated 13-5-1991 and 23-2-1992 of the respondents Nos. 2 and 3 and demand notice dated 7th July, 1987 issued by the respondent No. 1 be declared illegal and without jurisdiction. The brief background is that the petitioner was registered as an employer with the respondent's Institution.
The respondent No. 1 through this impugned notice pointed out that the petitioner is making short payments towards the contribution, therefore, it was asked to pay the sum of rupees sixty-four thousand and six hundred eighty-three (Rs.64,683). The petitioner contested this liability through complaint, which was dismissed by the respondent No. 2 vide order dated 13-5-1991 while the appeal was dismissed by respondent No. 3 vide order dated 23-2-1992. Hence the present Constitutional petition which was admitted to regular hearing and notices were issued to the respondents, who have entered appearance and contested the petition. The respondent had included House Rent in the wages for calculating the contribution payable by the petitioner. On the other hand the petitioner claimed that House Rent is not a part of the wages, therefore, it is not liable to pay contribution on this amount. The issue has been authoritatively decided by the Hon'ble Supreme Court in the case reported as National Embroidery Mills Limited and others. Therefore, the learned counsel for the petitioner has nothing to say as for the inclusion of House Rent in the wages is concerned. However, the learned counsel argued that since the amount was not determined, therefore, the petitioner cannot be made to pay late fee.
2. The learned counsel for the respondents argued that it is not a penalty but premium for non- payment. It is maintained that the proper course for the petitioner was to make the payment of the disputed amount not pressed and then challenged the same. The learned counsel in this behalf has referred to Kohinoor Chemical Co. Ltd. And another v. Sindh Employees' Social Security Institution and another (PLD 1977 SC 197), Sindh Employees' Social Security Institution v. Dawood Cotton Mills Ltd. (PLD 1988 SC 1) and Messrs R.C.D. Ball Bearing Limited v. Sindh Employees' Social Security Institution, Karachi (PLD 1991 SC 308).
3. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record and precedent cases. The argument of the learned counsel for the petitioner is that in the absence of determination the penalty of 50% cannot be imposed. The argument is clearly misconceived in view of the judgment relied by the counsel for the respondents. In the case of Messrs Ball Bearing Limited (supra) it was held that the liability to pay contribution is automatic and the charge is created by law unconnected with any proceeding for determination of the same. Consequently the penal provision would be attracted even after there is no wilful default in the payment of contribution. Sections 11, 12 and 13 of the Employees' Old-Age Benefits Institution Act, 1976 are para materia to the provisions of sections 20, 21 and 23 of the West Pakistan Employees' Social Security Ordinance, 1965. The Supreme Court further confirmed its view in the case of Kohinoor Chemical Co. Limited. While in the case of Dawood Cotton I Mills Ltd. It was held that the employee failing to comply with the provisions of sections 20 and 21 was liable to imposition of penalty. The relevant portion of the judgment reads as under: "The last argument of the learned counsel on which leave was not granted is also without force.
The point of increase of contribution under section 23 of the Ordinance stood resolved in the judgments of this Court in Kohinoor Chemical Co. Limited and another v. Sindh Employees' Social Security Institution and another PLD 1977 SC 197 and Pakistan Engineering Co. Ltd. v. Punjab Employees' Social Security Institution, Lahore 1981 PLC (C.S.)
79. The request of the learned counsel to re-open this controversy so as to change the view taken therein, is refused; as the same is without foundation. The appeal of the Mill (No. 281 of 1978), in the result is dismissed with the cost of the respondent throughout."
4. The upshot of the above discussion is that there is no merit in this writ petition. The same is dismissed with no order as to costs.