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 Govern-- ment 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 r ands known as Employees Social Security Funds" and to incur out of that fund necessary expendi--ture.
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 Me 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 Institu--tion ; 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 ere 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 assis- -tance 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 tie prescribed. For this reason every employer is bound 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 emplo-- yee'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 parson 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; or (e) any benefit and the amount and duration thereof ; or (f) any other matter in respect of any contribution or benefits or ether dues 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 60. 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 tit to examine. This complaint was disposed of by the Commissioner on 24-7-1970 without hearing the petitioner. The petitioner, therefore, tiled Writ Petition No. 1281/1971 against the respondents i.e. the Commissioner, Punjab Employees' Social Security Institution and Tehsildar, Lahore. The Commis--sioner 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 tae power granted under subsection (1). Clause (xxvi) of sub--section (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 1914. 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 institu--tion 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 appeal-able undo 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 appeal-able 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 exercise-able 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 Commissioner 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 an 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, bear and decide the complaint. The argument of the learned counsel for the respondents on the other hand was based upon section 18 which made the Commissioner or the Chief Executive of the Institu--tion.
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 sad things exercise-able or to be done by the institution. The exercise of this power is clearly discretionary, ifs view of the use of the word "may" in the later part of section 4. Section 6 also deals with certain specific powers arid not with the generality of the functions exercise-able by the Institution. Similar specific power is given in section 19 which authorises the Governing Body to employ officers arid staff for the administration of the affairs of the Institution. But this power is subject to the regulations. Ana identical power, subject to tit 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 and what are its functions The word "Executive's or "Chief Executive" is not defined in tile Ordinance The dictionary meaning of the word "Executive" which is pertinent to section 18 is a person who administers the Government or an origination In the case of organisation, therefore, the Chief Executive will be the Chief Administrator of the organisation. The term "Chief Executive" is meaning full and is clearly suggestive of the Nut that all functions of the Institution subject to the provisions of the Ordinance shall be performed lay the Commissioner. The presentation of a complaint under section 57, its entertainment and its adjudication rewires 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 superinten- dence 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 the exercise all power 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 function and exercise the powers or do 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 the there is no inconsistency between section 4, 6and 19 on the one hand and section 18 on the other, These section deal with the demarcation of power and can in their working he 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 tile nature of things, he must be treated to have the power to entertain complaints under section 57 and to adjudicate upon there. The provision in the regulation of 1973 to this effect is neither inconsistent with section 57 nor in excess the regulation-making power given by section 80 (2) (xxvi) The name of the Commissioner had been recorded as a substitute For the Institution in order to mate it clear to the persons concerned to know as to who is the authority to sat for and on behalf of or virtually for all practical purposes as the institution.
15. Event 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 'lady 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 bass 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 power of the Institution in the Commissioner which was by section 4 to be exercise by two authorities in the GoverningBody and the Commissioner acting together." This argument ignores the specific provisions of section 77. This question will mot 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 Sand is dismissed. The parties are, however, left to bear their own costs