' This common judgment will also dispose of the following writ petitions as questions of law and facts are identical in all of them.
(1) Writ Petition No,7142 of 1995; (2) Writ Petition No,7143 of 1995; (3) Writ Petition No,7141 of 1995; (4)
Writ Petition No,7856 of 1995; (5) Writ Petition No,8005 of 1995; (6) Writ Petition No,8006 of 1995; (7)
Writ Petition No,8007 of 1995; (8) Writ Petition No,8009 of 1995; (9) Writ Petition No,8098 of 1995; (10)
Writ Petition No,8105 of 1995; (11) Writ Petition No,8129 Of 1995; (12) Writ Petition No,8130 of 1995; (13)
Writ Petition No,7235 of 1995; (14) Writ Petition No,11322 of 1994; (15) Writ Petition No,11323 of 1994; (16)
Writ Petition No,11324 of 1994; (17) Writ petition No,11755 of 1994; (18) Writ Petition No,13930 of 1994;
(19) Writ Petition No,7789 of 1995; (20) Writ Petition No,7790 of 1995; (21) Writ Petition No,7791 of 1995;
(22) Writ Petition No,7792 of 1995; (23) Writ Petition No,1388 of 1995; (24) Writ Petition No,I480 of 1995;
(25) Writ Petition No,1722 of 1995: (26) Writ Petition No,691 of 1995; (27) Writ Petition No,2086 of 1995;
(28) Writ Petition No,3770 of 1995; (29) Writ Petition No,9767 of 1993; (30) Writ Petition No,15515 of 1993; (31) Writ Petition No,2647 of 1995; (32) Writ Petition No,2648 of 1995; (33) Writ Petition No,1167 of 1995; (34) Writ Petition No,8403 of 1995; (35) Writ Petition No,8404 of 1995; (36) Writ Petition No,8405 of 1995; (37) Writ Petition No,8891 of 1995 (38) Writ Petition No,8895 of 1995; (39) Writ Petition No,9594 of 1995; (40) Writ Petition No,9595 of 1995; (41) Writ petition No,9596 of 1995; (42) Writ Petition No,9597 of 1995; (43) Writ Petition No,9598 of 1995; (44) Writ Petition No,9600 of 1995; (45)
Writ Petition No,9607 of 1995; (46) Writ Petition No,1273 of 1995 (Multan); (47) Writ Petition No,69 of 1995 (Multan); (48) Writ petition No,3418 of 1994 (Multan); (49) Writ Petition No,3419 of 1994 (Multan);
(50) Writ Petition No,3420 of 1994 (Multan); (51) Writ Petition No,3224-A of 1994 (Multan); (52) Writ Petition No,3225 of 1994 (Multan); (53) Writ Petition No,3226 of 1994 (Multan); (54) Writ Petition No,3227 of 1994 (Multan); (55) Writ Petition No,3228 of 1994 (Multan); (56) Writ Petition No,3351 of 1994 (Multan); (57) Writ Petition No,3385 of 1994 (Multan); (58) Writ Petition No,3423 of 1994 (Multan); (59) Writ Petition No,5446 of 1994 (Multan); (60) Writ Petition No,10472 of 1995; (61) Writ Petition No,10381 of 1995; (62) Writ Petition No,10382 of 1995; (63) Writ Petition No,10583 of 1995; (64)
Writ Petition No,10383 of 1995; (65) Writ Petition No,11085 of 1994; (66) Writ Petition No,10250 of 1995;
(67) Writ Petition No,11592 of 1995; (68) Writ Petition No,15066 of 1995; (69) Writ Petition No,15067 of 1995; (70) Writ Petition No,10685 of 1995; (71) Writ Petition No,2416 of 1995; (72) Writ Petition No,9877 of 1995; (73) Writ Petition No,10477 of 1995; (74) Writ Petition No,10473 of 1995; (75) Writ Petition No,10474 of 1995; (76) Writ Petition No,8622 of 1995; (77) Writ Petition No,8623 of 1995; (78) Writ Petition No,8624 of 1995; (79) Writ Petition No,8771 of 1995; (80) Writ Petition No,8772 of 1995; (81) Writ Petition No,8773 of 1995; (82) Writ Petition No,8774 of 1995; (83) Writ Petition No,8775 of 1995; (84)
Writ Petition No,8786 of 1995; (85) Writ Petition No,12004 of 1995; (86) Writ Petition No,12446 of 1995;
(87) Writ Petition No,3454 of 1994 (Multan); (88) Writ Petition No,12072 of 1995; (89) Writ Petition No,13478 of 1995.
2. In all these Constitutional petitions the petitioners have raised the question of legality of the notice issued by the respondents under the Provincial Employees' Social Security Ordinance, 1965 calling upon them to make payment of amounts specified therein on account of Social Security Contribution at the rate of 7% of the wages of the workers employed in their establishments. The main burden of argument presented by learned counsel appearing for the petitioners in support of these petitions was that no demand for payment of any amount on account of Social Security Contribution could be raised in relation to the Special Allowance payable under the Punjab Employees Special Allowance (Payment) Act, 1988 (Act II of 1988) treating it as part of the wages of a worker. Their precise submission was that while determining the amount of wages of a worker under the Social Security Ordinance, 1965 for payment on account of Social Security Contribution the allowance payable under the said Act (II of 1988) could not be considered as part of the wages.
Reliance has been placed on section 8 of the Punjab Employees Special Allowance (Payment) Act, 1988, which reads as follows:-- "8. Special Allowance not to form part of wages. Notwithstanding anything contained in this Act or any other law for the time being in force, the Special Allowance under sections 3, 4 and 4-A shall not form part of the wages of a worker for the purposes of any other law, including the purposes of contribution to provident fund, gratuity, bonus and calculating wages for overtime work."
3. Learned counsel for the petitioner argued that provision of this Act have overriding effect as it expressly provides that the allowance payable under the said Act shall not form part of the wages of a worker for the purpose of any other law which also include the Social Security Ordinance, 1965.
4. The argument as presented appears to be ingenious but not tenable on close scrutiny. The Punjab Employees Special Allowance (Payment) Act, 1988 is a Provincial Statute whereas West Pakistan Minimum Wages for Unskilled Workers Ordinance, 1969 and Social Security Ordinance, 1965 when originally promulgated were no doubt also Provincial Statute because at the relevant time under the Constitution these matters fell within the exclusive domain of the Provincial Legislature having not been included in the Federal Legislative List.
5. This position of law has however undergone a substantial change under the Constitution of 1973 under which these matters have been included in the Concurrent Legislative List as a consequence of which both Federal and Provincial Legislatures had been empowered to make laws in respect thereof. Article 268 of this Constitution empowers the President to issue an order within a period of two years from the commencing day for making such adaptation whether by way of modification, addition or omission as he may deem necessary or expedient for the purposes of bringing the provision of any existing law into accord with the provision of the Constitution.
6. There is no dispute that these were the existing laws within the contemplation of the expression "existing laws" as used in Article 268 of the Constitution. Since these laws when promulgated were Provincial Laws therefore, after the dissolution of West Pakistan Province under Presidential Order No,1 of 1970 and Establishment of four Provinces they continued to be applicable in these Provinces as Provincial Laws by virtue of Article 19 of the said Order.
7. The President however promulgated Presidential Order 4 of 1975 in exercise of powers under Article 268 of the Constitution for making such adaptation by way of modification and additions in the Provincial Employees' Social Security Ordinance, 1965 and West Pakistan Minimum Wages for Unskilled Workers Ordinance, 1969 as a consequence of which their applicability was extended to the whole of Pakistan and as observed above, these matters being in the Current Legislative List therefore, the intention as that these two statutes should henceforth be converted into Federal Laws. .8. Learned counsel for the petitioner when confronted with this situation attempted to argue that these adaptations by way of modification and addition as regards the said laws was intended to ensure their applicability in all the four Provinces after dissolution of the West Pakistan Province and not with the intention to convert them into the Federal Laws which in my view has no substance for as observed above these laws already continued to operate as Provincial Laws in the four Provinces established after the dissolution of West Pakistan Province by virtue of Presidential Order No,1 of 1970 and no adaptation by way of modification and addition was necessary under Article 268 of the Constitution merely for the purpose of continuously their applicability to the Four Provinces as Provincial Laws. The Executive Authority of the President under the Constitution of 1973 extends to all those matters regarding which Parliament could make the laws and these two laws being in the Concurrent Legislative List regarding which Parliament could make the law therefore, this adaptation by way of modification was made with a clear purpose of converting them into Federal Laws therefore, for all purposes under the Constitution they have acquired the legal status of Federal Laws. This being so, under Article 143 of the Constitution to the extent of inconsistency between Provincial and Federal Laws the Provincial Law has been declared to be void, as such it could not be argued that the Punjab Employees Special Allowance (Payment) Act, 1988 which is a Provincial Law can override the Provincial Employees' Social Security Ordinance, 1965 and West Pakistan Minimum Wages for Unskilled Workers Ordinance, 1969 which are Federal Laws.
9. Learned counsel for the petitioner then argued that by virtue of the definition of wages given in the Provincial Employees' Social Security Ordinance, 1965 on the basis of which payments are to be made on account of Social Security Contribution a sum payable as wages under the Minimum Wages Ordinance, 1961 is to be made the basis for determining the amount payable on account of Social Security Contribution. His argument was that according to definition of wages as given in the Minimum Wages Ordinance, 1961 all allowances payable is to be excluded from the wages payable to the worker therefore, the allowance payable under Act, 1988 was to be excluded for the purpose of contribution on account of Social Security Contribution under Act, 1965.
10. In order to examine the legal efficiency of this argument which in my considered view is not based on the correct reading of the expression "wages" as defined in the Provincial Employees'
Social Security Ordinance, 1965, it will be useful to reproduce the definition of expression "wages" as given in the Provincial Employees' Social Security Ordinance, 1965 which is as under:-- ' Section 2(30).--- The wages means remuneration for service paid or payable in cash or in kind to a secured person, not being less than the 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 lock-out 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.
' It is demonstrably clear from a bare reading of this definition that this Act did not adopt the definition of expression "wages" as given in the Minimum Wages Ordinance, 1961, rather it has defined the expression "wages" exhaustively and whatever allowances are to be deducted from the wages of a worker in order to determine the amount on the basis of which payments were to be made on account of Social Security Contribution have been expressly mentioned and no mention has been made of the allowance payable under Act 1988 for the purpose of exclusion and reference to Minimum Wages Ordinance, 1961 has been made in this Act cnly to provide that the amount of wages to be determined under the Act for the purpose of making payments on account of Social Security Contribution, should not in any case be less than the amount payable as remuneration under the said Ordinance. This provision was made obviously to limit the power of the authority under Ordinance, 1965 as regards determination of amount of wages for the purpose of Social Security Contribution, not below the amount payable as wages under the Minimum Wages Ordinance, 1961.
11. Learned counsel for the petitioners submitted that the allowance payable under the Punjab Employees Special Allowance (Payment) Act, 1988 was merely a grant as such could not be construed as part of wages of a worker. The fallacy of this argument lies in assuming as if the grant of the allowance under the Act was in the nature of payment ex gratia, as a charity or award and not as a matter of right. The necessary ingredient of a grant or payment ex-gratia of any amount is always that the person liable to pay has an option at his whim to pay the same or withdraw it. The said allowance having been granted by law, therefore, the employer has no option in the matter but to pay the same. The payment of the said allowance is a right granted to a worker therefore the same can be enforced under section 25-A of the I.R.O., 1969 being a right granted or secured to them under the law in case the employer refuses to make payment. In this view of the matter, the argument has no force and is hereby repelled.
12. Learned counsel for the petitioners in Writ Petitions Nos.10250 of 1995 and 2416 of 1995 however argued that by virtue of Notification dated 30-3-1994 the allowance payable under the Punjab Employees Special Allowance (Payment) Act, 1988 has been formally made part of wages of workers of Textile Industries under the Minimum Wages Ordinance, 1961 therefore, payment on account of Social Security Contribution on the amount of the said allowance could not be claimed retrospectively i,e, in relation to period prior to 30-3-1994 as far as Textile Industries were concerned. As I have already held that the allowance payable under Punjab Employees Special Allowance (Payment) Act, 1988 could independently be treated as part of wages for the purposes of payment on account of Social Security Contribution therefore, formal Notification for making the said allowance as part of wages under Ordinance, 1961 does not affect the legality of the demand made on that basis for the period prior to 30-3-1994.
13. Learned counsel for the petitioners submitted that through the impugned notices demand on account of Social Security Contribution has been raised on the assumption as if allowance at the rate of Rs,450 per month had been granted to all the workers irrespective of their remuneration. He maintained that according to the Punjab Employees Special Allowance (Payment) Act, 1988 the workers have been classified on the basis of the remunerations payable to them and the amount of allowance has been granted to each category of worker at different rates. This is a question of fact. If the petitioners want to dispute the quantum of the amount which they are required to pay on account of Social Security Contribution they should seek remedy as provided by section 57 of the Provincial Employees' Social Security Ordinance, 1965 by filing a complaint. They have also remedy of filing a review petition under section 58 of the said Ordinance and appeal to the appropriate Social Security Court. These remedies in my view are adequate and efficacious as such should be availed of by the petitioners before approaching this Court under Article 199 of the Constitution.
14. Learned counsel for the petitioners argued that in Writ Petitions No,13160 of 1993 and 4931 of 1994 the learned Deputy Attorney General and the learned counsel appearing on behalf of the respondents made a concession that no payment on account of Social Security Contribution could be made on the amount of allowance granted under the Punjab Employees Special Allowance (Payment) Act, 1988 therefore they are debarred and estopped from raising a plea that the said allowance could be treated to be the part of wages for the purposes of making payment on account of Social Security Contribution.
15. These writ petitions were decided through judgment dated 30-5-1995 by my learned brother Malik Muhammad Qayyum, J., paragraph 6 of which is relevant which is reproduced below:-- "Para 6. It is unnecessary to decide these contentions as Mr. Faqir Muhammad Khokhar the learned Deputy Attorney-General and the learned counsel appearing on behalf of the respondents have stated that the demand of the respondents is based upon the fact that Rs,1,500 has been declared to be the minimum wage under the Minimum Wages Ordinance, 1961 and the petitioners are not being asked to pay any contribution on the Special Allowance payable under the Punjab Employees Special Allowance (Payment) Ordinance, 1988. They further state that the contribution shall be recovered from the petitioner on wages as fixed under aforesaid law."
' A bare perusal of this part of the judgment reveals that no concession or admission was made that payment on account of Social Security Contribution could not be demanded in relation to amount of allowance payable under the Punjab Employees Special Allowance (Payment) Act, 1988 whereas merely a plea of fact was raised that in those cases the demand was based upon the fact that Rs,1,500 had been declared to be the minimum wages under the Minimum Wages Ordinance, 1961 and they were not being asked to pay any contribution on the special allowance payable under the Punjab Employees Special Allowance (Payment) Act, 1988. There is nothing in said statement that no payment could be demanded regarding Social Security Contribution on the allowance permissible under the Punjab Employees Special Allowance (Payment) Act, 1988. This is apart from the fact the learned Judge left the said question of law undecided. Besides no concession or admission made by a counsel in respect of interpretation of a law can operate as estoppel against him in subsequent proceedings to argue what according to his opinion the correct interpretation of the law should be.
16. Learned counsel for the petitioners pointed out that if the amount of allowance admissible under Punjab Employees Special Allowance (Payment) Act, 1988 is added to the wages/remuneration as determined under the Provincial Employees' Social Security Ordinance, 1965 most of the workers on account of increase of the amount of wages beyond the maximum limit would stand excluded from the purview of the said Ordinance in respect of whom no contribution could be demanded under the said Ordinance. This being also a question of fact therefore should be raised under sections 57 and 58 of the Ordinance which has already observed are adequate and efficacious remedy.
17. The upshot of the aforementioned discussion is that allowance payable under the Punjab Employees Special Allowance (Payment) Act, 1988 can be considered as part of wages of a worker under the Provincial Employees' Social Security Ordinance, 1965 for making payments on account of Social Security Contribution under the said Ordinance therefore writ petition have no force which are hereby dismissed with no order as to costs.