' This writ petition has been filed to challenge the jurisdiction of the Commissioner, Punjab Employees' Social Security Institution to decide a, complaint filed before the Institution under section 57 of the West Pakistan, Employees' Social Security Ordinance X of 1965.
2. The said Ordinance introduced a scheme of social security for, providing benefits to certain employees or their dependents in the event of sickness, maternity, employment injury or death and for matters ancillary thereto. It provides under its section 3 for the establishment by the Government by a Notification, an 'institution' called the Employees' Social Security Institution which shall be a body corporate having perpetual succession and a common seal and with power subject to the provisions of the Ordinance to acquire, hold and dispose of property both movable or immovable and to sue and to be sued by the said name. By subsection (3) of the same section the Institution is authorised to have its own funds known as "Employees' Social Security Funds" and to incur out of that fund necessary expenditure.
2. The Act does not make any provision for constituting the Institution which remains an intangible abstract body. It, however, provides for the constitution of a governing body consisting of several members as detailed in section 5. It also makes provisions for the supersession of the governing body, resignation by members thereof, disqualification of the members, method of filling the casual vacancies as well as for the meetings of the governing body. Section 18 makes it necessary for the Government to appoint a Commissioner and Vice-Commissioner of the Institution.
Subsection (2) of that section provides that the Commissioner shall-
(a) be the Chief Executive of the Institution and shall act as Secretary to the Governing Body ;
(b) be responsible to the Governing Body in respect of matters relating to the structure, administration and personnels of the Institution ; and
(c) perform such powers regarding appointment, transfer, promotions,. Dismissal and other matters affecting the staff of the institution as are provided for by Regulations.
' The Vice-Commissioner is appointed either to perform the duties of the Commissioner in the latter's absence or those duties which are assigned by the Commissioner out of the powers conferred upon him.
3. There are provisions how this incorporeal corporate body can be made to perform its duties.
Section 4 deals with the Management of the Institution and provides that the general direction and superintendence of the affairs of the Institution shall vest in a Governing Body which, with the assistance of a Commissioner may exercise all powers and do all acts and things-which may be exercised by the Institution. The question of policy is, however, determinable by the Government. In addition to these powers section 6 provides that the Governing Body shall have powers to approve the budget estimate, the audited account and the annual report of the Institution for submission to Government in accordance with the provisions of the Ordinance and to call for any information or direct any research to be made for the furtherance of its objectives. Section 19 vests the Governing Body with authority to employ officers and staff for the administration of the affairs of the Institution according to the regulations.
4. Chapter III makes provisions for the contribution by employer, in respect of every secured employee whether employed by him directly or through any other person, to be paid to the Institution at such rate and subject to such conditions as may be prescribed. For this reason every employer is bourd under section 21 to keep records and to submit to the Institution returns in such form and containing such particulars relating to persons employed by him or as may be provided in the regulation. The duly authorised officials of the Institution have the right to check the employer's book.
5. A number of other provisions are there in the Ordinance regarding these contributions but it is not necessary to deal with them in this order. The next important provision is section 57. The employers may like to contest their liability to contribution. This section makes provisions for complaints by them and for their determination. It provides that if any complaint is received or any question or dispute arises as to (a) whether any person is a secured person within the meaning of the Ordinance or whether the employer is liable to pay the secured person's contribution ; or (b) rate of wages, or average daily wages of a secured person for the purposes of Ordinance ; or (c) the rate of contribution payable by an employer in respect of the employee or (d) the person who is or was the employer in respect of a secured person t or (e) any benefit and the amount and duration thereof ; or (f) any other matter in respect of any contribution or benefits or other duet payable or recoverable under the Ordinance ; 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 or persons' concerned in writing stating therein the reason or reasons for its decision. Section 58 allows the Institution to review the order passed under section 57. Under section 59 an appeal against such orders whether passed under section 58 or passed by way or review under section 58 is competent before the appropriate Social Security Court constitution of which is provided under section (0. Section 64 further provides for an appeal to the High Court from an order of a Social Security Court if it involves a substantial question of law.
6. The petitioner was declared by a notification dated 26-11-1967 to be an employer under the Ordinance w. e. f.
1.4-1967. He filed form "R/1" on 4-11-1967 showing the number of workers in his employment. He was thereafter ordered to pay the amount of contribution. The petitioner did not pay the amount for some time and ultimately submitted a complaint under section 57 requesting for determination by the institution of the question (a) whether labour employed by him fell within the definition of secured persons,
(b) whether the petitioner is liable for payment of any for the secured persons,
(c) whether the establishment merits exemption from liabilities under the Ordinance, and (d) any other question which the institution may deem fit to examine. This complaint was disposed of by the Commissioner on 24-7-1970 without hearing the petitioner. The petitioner, therefore, filed Writ Petition No, 1281/1971 against the respondents i,e, the Commissioner, Punjab Employees' Social Security Institution and Tehsildar, Lahore. The Commissioner agreed to reconsider the petitioner's case after hearing him. The petition was disposed of having borne fruit by order dated 9-11-1971. In this judgment the High Court directed that the appeal of the petitioner preferred under section 57 shall be disposed of by the Institution according to law after affording the petitioner an opportunity of being heard.
7. As noticed above section 57 provides for a matter to be decided by the institution in such manner and within such time as the regulations may provide". Section 80 confers upon the Governing Body to make regulations consistent with the provisions of the Ordinance or any rules framed by the Government under section 79, subject to condition of previous publication.
Subsection (2) of section 80 provides for some specific matters on which regulations may be made, but this provision is without prejudice to the generality of the power granted under subsection (1). Clause (xxvi) of subsection (2) deals with the following matter for which regulation can be -framed : "The manner in which and the time within which complaints, questions and disputes shall be decided."
8. The Governing Body of the Punjab Employees' Social Security Institution in exercise of this power made regulations known as "The Punjab Employees' Social Security (Determination of Manner and Time for Deciding Complaints and Disputes and Review of Decisions) Regulation, 1973". Para. 3 of the Regulations provided for filing of the complaint before the Commissioner within thirty days of rising of disputes. Para. 4 made provision for deciding the complaint by the Commissioner within sixty days of the registration of the complaint unless prevented from doing so by circumstances beyond his control.
9. Acting under this authority the Commissioner decided the complaint of the petitioner against him on the 9th of January 1974. This writ petition has been filed to challenge the authority of the Commissioner to decide the complaint under section 57 on the ground that the said regulation substitutes the Commissioner for the authority described in section 57 i,e, the institution and as such being inconsistent with the provision of that section, is ultra vires.
10. The learned counsel for the respondents raised a preliminary objection that the order passed by the Commissioner is appealable under section 60 to the Social Security Court and this being an adequate and beneficial remedy, this writ petition is not competent. There is no merit in this objection for the reason that the Social Security Court has the appellate Jurisdiction over an order passed by the Institution. The order of the Commissioner can be appealable in that Court only if it is held that the Commissioner is or has the authority to act for the Institution. If it is found that the Commissioner has no authority to act for the institution and for all practical considerations is not the 'Institution', the Security Court's jurisdiction will not be attracted.
11. It is clear from the scheme of the Act, and this was not disputed at all by the learned counsel for the parties, that the Institution is not a -tangible or corporeal person. It is a corporate body but is not constituted of any physical individual. The argument of the learned counsel for the petitioner, however, is that the functions of the 'Institution' are exerciseable by the Governing Body and as such a decision only by that body can be considered to be a decision of the Institution and not the decision of the Commissiorer who is only a Secretary of the Governing Body and not even a Member thereof. In this connection he placed reliance upon the provisions of sections 4 and 6. He also argued that the above regulations are in excess of the regulation-making power of the Governing Body in view of clause (xxvi) of subsection (2) of section 80. He contended that under this clause as well as under section 57 the regulation can pertain only to the "manner in which and the time within which complaints, questions and disputes shall be decided", but the regulations as made overstep these bounds. It was not, therefore, open to the Governing Body to provide for the person who would entertain, hear and decide the complaint. Tne argument of the learned counsel for the respondents on the other hand was b ised upon section 18 which made the Commissioner or the Chief Executive of the Institution.
12. The determination of the point involved in this case turns upon the scope of sections 4, 6 and 18.
Section 4 vests the Governing Body with the general direction and suprintendence of the affairs of the Institution. It empowers the Governing Body to exercise powers and do all acts aid things exerciseable or to be done by the institution. The exercise of this power is, clearly discretionary, in view of the use of the word "may" in the later part of section 4. Section 6 also deals with certain specific powers and not with the generality of the functions exerciseable by the Institution. Similar specific power is given in section 19 which authorises the Governing Body to employ officers and staff for the administration of the affairs of the Institution. But this power is subject to the regulations. An identical power, subject to the regulations can be exercised by the Commissioner under section 18. The Commissioner has in addition been made the Chief Executive of the Institution.
13. The question is what is a Chief Executive aad whit are its functions. The word "Executive" or "Chief Executive" is not defined in the Ordinance. The dictionary meaning of the word "Executive" which is pertinent to section 18 is a person who administers the Government or an organisation". In the case of organisation, therefore, the Chief Executive will be the Chief Administrator of the organisation.
The term "Chief Executive" is meaningful and is clearly suggestive of the fact that all functions of the Institution subject to the provisions of the Ordinance shall be performed by the Commissioner.
The presentation of a complaint under section 57, its entertainment and its adjudication requires that there should be a corporeal person or a physical entity to perform these functions. In the case of an incorporeal intangible corporate person, unless law provides otherwise, the Chief Executive can be the only corporeal person who can act or function for or on behalf of such entity. Since the general direction and superintendence of the affairs of the Institution is vesting in the Governing Body, the Commissioner has to act on behalf of the Institution subject to general directions and superintendence of that body. The other part of section 4 which vests the Governing Body with the powers to exercise all powers and do all acts and things which may be exercised or done by the Institution, is a discretionary power and it is open to the Governing Body to let the Chief Executive perform functions and exercise the powers or to exercise such power and perform such functions itself. In the later case also it will have to act with the assistance of the Commissioner. It is, therefore, clear that there no inconsistency between sections 4, 6 and 19 on the one hand and section on the other. These sections deal with the demarcation of power and can in their working be reconciled.
14. In view of the facts that the Commissioner as the Chief Executive has the authority to act for or on behalf of the Institution, in the nature of things, he must be treated to have the power to entertain complaints under section 57 and to adjudicate upon them. The provision in the Regulation of 1973 to this effect is neither inconsistent with section 57 nor in excess of the regulation-mating power given by section 80(2) (xxvi). The name of the Commissioner had been recorded as a substitute for the Institution in order to make it clear to the persons concerned to know as to who is the authority to act for and on behalf of or virtually for all practical purposes as the Institution.
15. Even if there be some merit in the argument of the learned counsel for the petitioner, the provision about such application being made to or the same to be dealt with by the Commissioner can be validated under section 77. This section authorises a Governing Body to delegate its powers and functions in relation to any matter and subject to any condition as may be specified to the Commissioner. Even if it is assumed for the sake of arguments that Governing Body is for all practical purposes, the 'Institution', the provision regarding the Commissioner in the Regulation of 1973 can be treated to be delegation of powers by the Governing Body to the Commissioner. On this ground also the regulations are justified.
16. One of the contentions on the basis of which this petition was admitted and which was argued by the learned counsel for the petitioner is that the delegation of power by the Governing Body which included the Commissioner, could not be to the Commissioner himself with a view to nullify the duality of the control envisaged by section 4, and as such a delegation to the Commissioner centralises the powers of the Institution in the Commissioner which was by section 4 to be exercised by two authorities i,e, the Governing Body and the Commissioner acting together." This argument ignores the specific provisions of section 77. This question will not arise in a case where the law itself allows such delegation. Moreover the Commissioner was only a secretary of the Governing Body and not its member.
17. The petition is without force and is dismissed. The parties are however, left to bear their own costs.