1. ' This is an appeal under section 64 of the Provincial Employee's Social Security Ordinance, 1965 (hereinafter called said Ordinance) directed against an order dated 5-1-1995 passed in Appeal No, 18 of 1994, M/s. Munda Apparel (Pvt.) Ltd. v. Sindh Employees' Social Security Institution and another, whereby the said appeal was dismissed, hence this appeal before this Court.
2. ' Brief facts of the case as stated are that there used to be a partnership firm in the name and style of "Childhood" at the premises S. T. 44, Block 7, Federal 'B' Area, Karachi which was notified under the said Ordinance and was covered by the Scheme. The premises of firm "Childhood" were taken over by the appellants' establishment Munda Apparel (Pvt.) Ltd. After the closure of "Childhood" establishment. The appellants' establishment is said to be not notified under the said Ordinance which is said to have started functioning in the same premises since April, 1990 but the respondents' officials made demand of the contribution from the appellants' establishment on the ground that once a notification has been issued for any organisation located on the same premises, the contribution would continue to be paid by the appellants' establishment even though the earlier establishment on the same premises might have been closed down, therefore, the appellants on the said misrepresentation started paying contribution for their workers from April, 1990 but when the correct legal position came to the knowledge of the appellants they were not liable to pay contribution to the respondents until and unless separate notification was issued under subsection (3) of section 1 of the said Ordinance. As a result of illegal and unjustified demand of the respondents, an application under section 57 of the said Ordinance was filed before the respondent No,1 which was dismissed after hearing the same as per order dated 5-6-1994 and against the said order Appeal No, 18/1994 under section 59 of the said Ordinance was filed in the Sindh Social Security Court No,1 on the ground that the said Ordinance did not apply to the appellants' establishment for want of notification under subsection (3) of section 1 of the said Ordinance and the notification issued in respect of "Childhood" establishment would not cover the appellants' establishment as the same was not even in existence in the year 1984 and even the addresses and the names of the Organization were different so also name of partners and the shareholders were different and mere fact that the appellants' establishment was housed in the same premises would not by itself make the appellants liable to contribution under the said Ordinance. The case of the respondents is that actually "Childhood" establishment and the appellants' establishment are one and same and there has been only change of name and the plea of issuance of separate notification in respect of appellants' establishment was not taken before the Commissioner, Social Security, therefore, the said plea could not be agitated and further that Saleem Yousuf and Tayyab Yousuf who were in "Childhood" establishment were also Directors in the appellants' establishment and the monogram of "Childhood" establishment was also same as that of appellants and that the change of name or addition of partners or shareholders would not exclude the appellants from the application of the said Ordinance.
3. ' I have heard learned counsel Mr. S.M. Yaqub for appellants and Mr. Khalid Habibullah of M/s. Abraham and Sarwana, Advocates, and have perused the record and proceedings of the case and the case-law cited by the counsel for the parties.
4. ' Learned counsel for appellants has argued that in view of subsection (3) of section 1 of the said Ordinance the scheme under the said Ordinance would be applicable when the establishment is notified in the Gazette but in the instant case appellants have not been notified as per above provisions of law, therefore, no contribution could be demanded from them. He has further argued that the appellants' establishment took cover from the "Childhood" establishment in April; 1990 after the same were closed and the appellants under bona fide belief started paying contribution to the respondents as they were housed in the same premises, therefore, they were liable to pay contribution under the notification earlier issued in favour of "Childhood" establishment though the said establishment by then became non-existent in the eye of law. He has further argued that Mr. Tayyeb son, of Yousuf was a partner in the "Childhood" establishment while he has been shareholder with the appellants' establishment and Saleem Yousuf was a Manager in the "Childhood" establishment while he has been Director with the appellants' establishment, therefore, separate and independent notification under the law would be required in respect of appellants' establishment for the purpose of demanding the contribution from the appellants' establishment.
5. He has referred to a letter dated 12-4-1990 issued by Director of the respondents, photostat copy of statement of contribution for the month of April, 1990, photostat copy of receipt dated 9-8-1990, photostat copy of registration certificate dated 2-4-1983, photostat copy of letter dated 27-3-1990 addressed to Director of the respondents, photostat copy of deed of dissolution dated 11-11-1990 photostat copy of employer's registration certificate dated 18-6-1984, photostat copy of notification showing the "Childhood" establishment at Serial No, 229, photostat copy of certificate of incorporation of Munda Apparel (Pvt.) Limited, photostat copy of Form "A" of Munda Apparel (Pvt.)
6. Ltd. Photostat copy of pro, forma statement of return dated 31-12-1993-94, photostat copy of letter of Munda Apparel (Pvt.) Ltd. Dated 30-8-1994 addressed to Director of the respondents, photostat copy of application of the appellants before the 1st Sindh Social Security Court, Karachi. Learned counsel has also placed reliance upon Sindh Employees' Social Security Institution, Karachi, v.
7. Aishama International Karachi (1993 PLC 340).
8. ' Learned counsel Mr. Khalid Habibullah for the respondent has referred to subsections (2), (8), (9) and (11) of section 2 of the said Ordinance. He has also referred to section 20 of the said Ordinance that the liability to the contribution has been placed upon the employers and not upon the establishment or organization. He has argued that the plea that separate notifications would be necessary before making any demand from the appellants' establishment was not raised earlier, therefore, at this stage such plea cannot be entertained. He has placed reliance upon unreported judgment M.A. 60/1983, Sindh Employees' Social Security Institution v. Amin Agencies Ltd. Of Mr. Mamoon Kazi J. Of this Court and another unreported judgment in Civil Appeal No, K-40/1981 of Supreme Court of Pakistan; Sindh Employees' Social Security Institution v. AlMuhammadi Tiles Industry (1981 PLC 73); Pakistan Shipping Corporation, Karachi v. Sindh Employees' Social Security Institution (1981 PLC 9) and Kohinoor Chemical Co. Ltd. And another v. Sindh Employees' Social Security Institution and another (PLD 1977 SC 197) in support of his contentions.
9. ' It is admitted position that appellants' establishment is housed in the same premises where "Childhood" establishment was housed. It is also admitted position that Saleem Yousuf and Tayyeb Yousuf are the same persons in the appellants' establishment who were then with the "Childhood" establishment except with different designations. It is also admitted that the monogram adopted by the appellants' establishment was the same as was with the "Childhood" establishment. It is also admitted position that the "Childhood" establishments were carrying out the business of readymade garments and the same business was being carried out by the appellants' establishment. It is 'correct that the name of the appellants' establishment has been changed as Munda Apparel (Pvt.) Ltd.
10. ' From the above, it would be necessary to note as to what is the definition of employees and that of establishment under subsections (8) and (11) of section 2 of the said Ordinance. The said words have been defined in PLD 1977 SC 197 which runs: "The West Pakistan Employees' Social Security Ordinance, 1965, is a beneficial or remedial legislation conceived as a means of ameliorating the lot of the working class, and as such, it would be in keeping with the accepted principle of interpretation, that it should be so construed as to advance the remedy and suppress the mischief, or else in keeping with the object of the legislation, as wide an interpretation should be placed on the terms 'employee' and 'establishment' as permissible within the language employed in the statute. Viewed in this light, the term 'establishment' as defined in clause (ii) of section 2 of the Ordinance, does not appear to be confined in the scope to merely the four-walls of the physical premises where the notified establishment may be located."
11. ' From the above definition, it would appear that the essential test in such a case would be whether a person concerned is indeed working in connection with the work of the notified establishment.
12. ' In the instant case also same concerned persons are indeed working in connection with the work of readymade garments in the same premises with a different name of establishment. Reference is also made to 1981 PLC 9, wherein Mr. Zaffar Hussain Mirza, J. (as he was then) held: "Liability to pay contribution once arising under section 20, would not cease by mere change of ownership."
13. ' Reference is also made to 1981 PLC 73 wherein Mr. B.G.N. Kazi, J. (as he then was) observed: - "Change of name and addition of partner would not exclude application of Social Security Ordinance to notified establishment."
14. ' Reference is also made to unreported decision of Supreme Court in Civil Appeal No, K-40/1981 wherein it was held: "The employers and the employees may change their identities, may differ from time to time but as long as the establishment remained the same, the liability under the Ordinance once the requisite notification had appeared, could not be avoided either by discontinuing the services of the employees or by changing the number or the identity of the employer."
15. ' Reference is also made to another unreported judgment of this Court in M.A. 60/1983 wherein Mr. Mamoon Kazi, J. Observed: "The new owner continues to be liable to make contribution under the said notification and-no further notification would be required."
16. ' All the above decided cases support the contentions of the learned counsel for respondents. In the instant case, it is not the only question of appellants' establishment being housed in the same premises where earlier childhood establishment was carrying on their business but the persons concerned, viz. Saleem Yousuf and Tayyab Yousuf who were previously working in the childhood establishment were 'also working in connection with the appellants' establishment and thereby it could not be said that the appellants' establishment was not in continuity of alleged dissolved childhood establishment. In fact, the appellants' establishment succeeded settled in the shoes of childhood establishment except that the name of the establishment and designations of employers have been changed when there has neither been change in ownership nor change in monogram or change in the nature of business, therefore, the childhood establishment could not in fact be deemed to have been closed down considering the observations made in Kohinoor Chemical.
17. ( Co. Ltd. v. Sindh Employees' Social Security Institution (PLD 1977 SC 197): "The said Ordinance is a beneficial or remedial legislation conceiyed as a means of ameliorating the lot of the working class, and as such, it would be in keeping with the accepted principle of interpretation, that it should be so construed as to advance the remedy and suppress the mischief, or else it would frustrate the legislative intent. It would appear, therefore, that, in keeping with the object of the legislation, as wide an interpretation should be placed on the terms 'employee' and establishment' as permissible within the language employed in the statute."
18. ' In the instant case also the appellants cannot be permitted to escape from the liability under the said Ordinance by merely changing the name of -- establishment from childhood to Munda Apparel (Pvt.) Ltd., hence the appellants would be liable to contribution arising under section 20 of the said Ordinance.
19. ' So far the contentions of the learned counsel for appellants, the same have no force and the facts of the case-law cited/reported in 1993 PLC 340 are quite different and distinguishable to the facts of the instant case except that in the instant case "Childhood" establishment is said to be non- existent. At page 344 it has been observed: "The simultaneous independent existence of , the said three establishments at different places, Malir, New Karachi and Landhi, with their respective independent employees and machinery was not disputed or disproved. If it is so, M/s. Aishama (Pvt.) Ltd. Cannot be continuity of the dissolved firm M/s. Aishama International. The two partners of the respondent's firm were Directors of M/s. Aishama (Pvt.) Ltd. At the same time when they were also partners of M/s. Aishama International."
20. ' In the circumstances, the principle laid down in the abovesaid precedent is not applicable to the instant case.
21. ' In view of the aforesaid reasoning's and case-law cited above, the D present appeal has no merit as no illegality has been pointed out in the impugned order, therefore, appeal is dismissed with no order as to costs.