IHSAN-UL-HAQ CHAUDHARY, J.- The petitioner through this Constitutional petition has prayed that the order of respondents Nos.2 and 3 and Demand Notice dated 14.3.1988 be declared without lawful authority, without jurisdiction and of no legal effect.
2. The admitted facts are that the petitioner has established about 190 shops and 15 whole .Sale depots for the sale of its products throughout the Country. The petitioner was registered by the Institution and started making payments as is clear from para 6 of the petition. It seems that the Institution was not accepting the figure at which the petitioner was paying thee contribution.
Ultimately, the impugned Demand Notice Annexure E' was issued whereby the petitioner was called upon to pay a sum of Rs.15,12,000/- and it was also notified that in case the petitioner has any objection to the above figure then it should produce the record as detailed in the Demand Notice.
The petitioner assailed this demand through a complaint under section 33 of the Employee's Old Age Benefits Act, 1976 (hereinafter referred as Act of 1976). The Adjudication Authority respondent No.2 after detailed proceedings and recording evidence dismissed the complaint vide order dated 23.7.1987. Thereafter the petitioner filed ah appeal under section 35 of the Act of 1976 which was rejected by respondent No.3 vide order dated 14.12.1987. 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.
3. Learned counsel for the petitioner in support of the petition argued that all the shops and sale depots are separate establishments and these would not form part the whole establishment of the petitioner but the individual shops and sale depots are to be registered as independent establishments. The learned counsel in this behalf Has relied upon Muhammad Aqil v. Sind Labour Appellate Tribunal (PLJ 1974 Kar. 252), Abdul Razzaq v. Messrs Ihsan Sons Limited and 2 others (1992 SGMR 505), Sind Employees Social Security Institution v. M/S. Cowasjee and Sons (1993 SCM R 1433) and M/s. Ihsan Sons Ltd, v. Abdul Rafma Habib and others (1987 PLC 390). It is added that in the original Act of 1976 the definition of "establishment" was borrowed from the West Pakistan Shops and Establishments Act, 1969 and the present definition was introduced through Ordinance XVII of 1983, therefore, the shops and sale depots of the petitioner could not be registered as one establishment before 1983.
4. On the other hand, the learned counsel for the respondents argued that according to the definition of "employer" the petitioner has rightly been treated as employer in respect of the shops and sale depots, in this behalf, the learned counsel has referred to the judgments reported as Messrs Macdonald Layoton Comtain Limited, West Wharf, Karachi v. Punjab Employees' Social Security Institution (PLD 1991 S.C. 1055, Abdul Razzaq y. Messrs Ihsan Sons Limited and 2 others (supra), and Muhammad Aqil v. Sind Labour Appellate Tribunal (supra). It is added that the petitioner is estopped to raise this plea in view of its clear admission in para 3 to the effect that it has established shops and sale depots coupled with the statement as AW I. It is added that in fact, as far as the petitioner is concerned the petition was dismissed by this vide order dated 10.4.1988. It was only kept pending to carry on the security of the accounts. The respondents were directed to examine the record of the petitioner carefully and after such security inform this Court whether the petitioner is entitled to any adjustment or not. It is added that this is not all. The petitioner was directed by the order dated 13.7.1992 to approach the Director concernment on 27.7.1992 with all the record, who shall consider this grievance and submit report, it is maintained that inspit of the repeated directions and demands of respondent No.1 the petitioner failed to produce the record to disprove any of the claims made through the demand notice. The arguments are summed up with the submission that it is the statutory duty of the petitioner as an employer to supply the particulars of the workers employed by it and pay contribution in view of the clear provisions of sections 9. 10 and 11 of the Act of 1976. it was only when the Institution failed to persuade the petitioner to make the payment up to date that it resorted to the provisions of section 12 and proceeded to make assessm ent on the basis of facts and figures available with it it is ultimately, argued that still it was made clear that if there is anything wrong with the demand the petitioner can get it rectified by production of record. This having not been done even on the direction of this Court, therefore, the petitioner is not entitled to any relief in constitutional jurisdiction.
5. I have given my anxious consideration to the arguments of the learned counsel for the parties.
The main question for determination is whether the petitioner cannot be treated as an employer of the staff employed in the shops and the sales depots or in other words whether the whole of the staff of the petitioner is not part of one establishment? The learned counsel had relied on the case of Muhammad Aqil (supra). This was a case under the RIO where the definition of "employer" includes a person who is Incharge of a part of establishment. The whole dispute was whether the petitioner was employer or a workman. The Karachi High Court concluded that the petitioner was employer was not a workman. So the petition was dismissed, it was observed with reference to section 22-A of the IRO that the employer may have more than one establishments for example office and commercial area, shops and business area or one more industrial units, and the said establishment would include not the w hole of the establishment of the employer but each of them individually. The same w as the. Position in the case of M/s. Cowasjee and sons (supra), in this case different establishments of Cowasjee and Sons were were grouped together, in this case the Social Security Institution re-fixed the liability of Messrs Cowajee & Sons treating it as comprising of three units--- M/s. Cowasjee and Sons: M/s. Cowasjee and Sons (Lighters); and M/s. British India Engineering Works; It was held that although they are-owned by the same partners but they are different entities and ample evidence is available on the record to show that their field of activities as well as the accounts are separate. The employers of four concerns are riot connected with each other. This is not the case here as would be seen from the preceding paras. The judgment of the case of Abdul Razzaq (supra) is also not attracted to the case. It was the case (Standing Orders) Ordinance (VI of 1968) where the commercial and industrial establishments have been defined differently, it was a case of the worker who was employed in the office of the industrial establishment. It was held that the clerical department of a factory was included in the definition of the term commercial establishment and riot in the industrial establishment. Now before proceeding any further it is worthwhile to refer to the definition of "establishment" as contained in the original Act which reads as under:- "establishment means an organization, whether industrial, commercial or otherwise."
While the definition introduced through Amending Ordinance XVII of 1983 reads as under:- '"establishment means --
(i) an establishment to which the West Pakistan Shops and Establishments Ordinance. 1969. (West Pakistan Ordinance No.VIH of 1969), for the the being applies, and. Notwithstanding anything contained is section 5 thereof, includes clubs, hotels, organizations and messes not maintained for profit or gain and establishments, including hospitals, for the treatment or care of sick infirm, destitute or mentally unfit persons;
(ii) a construction industry as defined in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (West Pakistan Ordinance No.VI of 1968);
(iii) a factory as defined in the Factories Act. 1934 (XXV of 1934);
(iv) a mine as defined in the Mines Act. 1923 (IV of 1923);
(v) a road transport service as defined in the Road Transport Workers Ordinance. 1961 (XXVIH of 1961) and includes any class of industries or establishments which the Federal Government may by notification in the official Gazette, declare to be establishments for the purposes of this Act."
It would be seen that without adopting the definition by. Reference to any other statute the establishments declared under such statues have been treated as establishment for the purpose of this section, it is also clear from section 2 of the original Act as well as the amended Act that the Legislature in its own wisdom did not make a difference between "industrial" or "commercial" establishments. Therefore, ail sorts of employments for the purpose of institution would be one. This becomes further clear if reference is made to the definition of "employment" which reads as under:- "(c) employer in relation to an industry or establishment, means any person who employs, either directly or through any other person, any employee, and includes-
(i) in the case of an individual, an heir, successor administrator or assign;
(ii) a person who has ultimate control over the affairs of an industry or establishment, or where the affairs of an industry or establishment are entrusted to any other person (whether called a managing agent, managing director, manager, superintendent, secretary or by any other name), such other person." (Underlining is mine).
It is clear from the portion of clause (c) (ii) underlined that the object was to make the person at the apex responsible under the Act of 1976.
6. Now neverthing back to the facts. The petitioner itself got registered as one establishment and started paying contribution, it was only disputed after it was served with a demand notice to pay Rs. 15,12,000.00. This was factual controversy, which has been set at rest by the judgment of the respondents, it cannot be agitated in Constitutional jurisdiction. The learned counsel for the respondents rightly referred to the case of M/s. Macdonald Layton Costain Limited, West Wharf, Karachi wherein the Hon'ble Supreme Court approved the finding of the High Court that once an establishment is notified for the purpose of applying the Ordinance to it all its employees wherever working in connection with its affairs shall be ipso facto covered, in this case the judgment in the case of Cowasjee, relied by the counsel for the petitioner as referred to above, was also and it was held as under:- "Learned counsel for the respondent referred to pages 205-206 of the Supreme Court judgment and Commissioner Sind Employees! Social Security Institution v.(M/s) Cowasjee & Sons (Lighter)
1985 CLC 324 in order to stress that for Islamabad, a separate notification was needed. A perusal of these excerpts would not support the contention of the Learned counsel for the respondent. The basic rule evolved in the entire authority was that employees of an establishment may not necessary be working physically at the place of its headquarters and that conversely if they work in connection with the affairs of the establishment even outside the place so notified, they shall be covered by the notification."
They appeal of the employer was dismissed with these observations. This is not all. While the dispute pertaining to the production of record was pending the Manager of administration of the petitioner wrote to respondent No.1 on 12th May, 1992 with reference to Annexure 'E' and informe3 that the claim in respect of Rs. 15.12,000/- for the period from July, 1976 to December, 1986 is admitted and amount has already been recovered by the Institution through the Bank guarantee furnished by the petitioner in favour of the Institution. It was added the over and above this amount the petitioner has already paid a sum of Rs.6,07,893.25. Which should be adjusted towards the future payment. This amount was treated , by the petitioner as overpayment and the last paragraph of the order of this Court' reads as under:- "2. However, there is a further grievance being raised by the learned counsel that they have already made contribution towards the Employee's Old Age Benefit Fund over several years amounting to above six lacs rupees and no adjustment or direction on that score has been made. The learned counsel as well as the official from the Old Age Benefit Institution present in Court are directed to examine the account of the-petitioner carefully and after such security to inform this Court whether the petitioner is entitled to any adjustment or not and the reasons for the refusal,, if there may be any.**"
I wonder after this order dated 10.4.1988 and this clear admission of the petitioner in writing, how this petition was prosecuted while it had been rendered infructuous for all intents and purposes.
This attitude has been taken noted by the Supreme Court in the case of M/s. Cowasjee. The relevant portion reads:- "Unfortunately we cannot help making an observation that the petitioner, in order to deprive a section of labour class employed by them, of due benefits under the Ordinance, took up untenable pleas and adopted such positions which it was difficult to establish, in such a situation under the Islamic dispensation even if the case for both the sides had been equally balanced, in order to advance the command regarding social justice as contained in the Objectives Resolutions the decision to be rendered by this Court would have gone in favour of upholding the workers' right to the Social Security Cover. In the petition before us it is not even a case of equal strength of both the parties."
These remarks are fully applicable to the case in hand.
7. The petitioner on the direction of this Court produced the list of the Salesmen employed by it throughout the country, it clearly shows that the shops and sale depots established by the petitioner are one establishment. 1 think this were for tilts reason that right in the beginning the petitioner did not raise this point. This issue was raised to hoodwink the liability at least delay the payment.
8. The upshot of the above discussion is that there is no merit inn this Constitutional petition. The same is dismissed with costs.