' The above two appeals have been filed by the appellants under section 64 of the Provincial Employees' Social Security Ordinance, 1965 against the order passed by the Presiding Officer, Labour Court No, 1, Karachi dated 5-5-1994 in his capacity as Social Security Court in Appeals Nos.
1/94 and 2/94 pertaining to the aforesaid respondents respectively, whereby the recoveries of the amounts of Rs,1,07,496.10 and Rs,2,65,423.23 which were determined to be payable by M/s. Corn Pak Limited and Mehran Jute Mills respectively by way of contribution in respect of all the employees engaged in the aforesaid two establishments were stayed without calling upon the above respondents to furnish securities for payment of the contribution determined against them by appellant No,
2. Feeling aggrieved and dissatisfied with the aforesaid orders of the Social Security Court, the appellants have preferred the above two appeals.
' Since, identical and similar question of fact and law are involved in both the aforesaid appeals, therefore, both the them will be disposed of by this common order.
' The brief facts necessary for disposal of above two appeals are that the above two respondents, being notified establishments under the Sindh Employees Social Security Ordinance are required, in view of section 20 of the above Ordinance, to make contributions to the Sindh Employees' Social Security Institution at such rate as may be prescribed from time to time and in accordance with the above provision of section 20 and section 57 of the above Ordinance, the appellants called upon the above two respondents to pay the aforesaid two amounts being their respective contributions in accordance with the contribution schedule for the period from July, 1992 to April, 1993. The appellants also provided an opportunity to the above two respondents to pay the contribution for the aforesaid period or to pay the contribution up to 31-7-1993 on the basis of calculation made by them. The respondents` disputed the demand of contribution and filed complaints before the appellant No,1 claiming that the above contributions worked out by the appellant No,2 were not correct and appellant No,1 after hearing the parties and perusal of the record which included the objection/comments of appellant No,2, dismissed the complaints filed by the respondents upholding the order of appellant No,2. The respondents feeling aggrieved and dissatisfied with the order of appellant No,1 dated 4-1-1994 filed appeals before the Social Security Court No,1, Karachi, and the Social Security Court vide its above impugned orders passed separately in Appeals Nos.1/94 and 2/94 restrained the appellants from recovering the above amount of contribution from the respondents till the final disposal of the appeals. The appellants feeling aggrieved and dissatisfied with the above orders have challenged the same by way of above appeals under section 64 of the said Ordinance.
' Both the above appeals were fixed on 9-4-1997 when arguments of the learned counsel for the parties, Mr. Khalid Habibullah, on behalf of the appellants and Mr. Khurshid Anwer Shaikh, on 'behalf of the respondents were heard.
' The grievance of the appellants is that the Social Security Court No,1 committed a grave error in staying the recovery of amount payable by the respondents by way of contribution under section 20 'of the Social Security Ordinance without calling upon the respondents to furnish security for payment of the amount of contribution in case the appeals are decided against them and they are held liable to make payment of the amounts determined against them as their shares of contributions. Mr. Khalid Habibullah, learned counsel for the appellants had initially challenged the authority of the Social Security Court to stay the recovery of the amounts determined to be payable by the respondents on the grounds that sections 59 to 62, dealing with the Constitution, jurisdiction and powers have not conferred any authority on the Social Security Court either to exercise the powers of suspending the operation of order passed by appellant No,1 under section 57 of the Social Security Ordinance or authority to grant injunction or stay orders as contemplated by Order 39, C.P.C. Mr. Khalid Habibullah, however, did not press the above objection and did not challenge the authority of the Social Security Court to pass the order in the nature of the order/orders in dispute when his attention was drawn to the principles enunciated by the Supreme Court in several cases, the first of which is the case of Zafarullah Khan v. West Pakistan reported in PLD 1975 SC 15 wherein their lordships of the Supreme Court observed that in the absence of any prohibition or bar under section 68 of the Canals and Drainage Act, the Civil Court acting as a special forum, had all the powers available to it under the Civil Procedure Code in a suitable case to pass an incidental and supplemental order following the procedure prescribed in the Civil Procedure Code. A more direct authority on the subject is the case of Sindh Employees' Social Security Institution and others v. Adamjee Mills wherein the Supreme Court declared that on entertaining an appeal under section 69 of Social Security Ordinance, the appellate Court during the pendency of the appeal had the power to stay execution of order appealed against as the same was reasonably incidential or supplemental to the exercise of its jurisdiction. In the case of Molvi Muhammad Yaqub v. Chairman, Election Tribunal, N.-W.F.P. And others reported in PLD 1976 SC 625, the Supreme Court while dealing with question of power of the appellate Court in hearing an appeal filed under the National and Provincial Assemblies (Elections) Ordinance, 1970 expressed the view that the High Court while seized of the above appeals had the power to suspend the operation of the impugned order passed by the Election Tribunal under Order 41, Rule 5. In view of the above pronouncements of the Supreme Court, the objection raised by Mr. Khalid Habibullah is not tenable and is discarded. The only issue to be decided in the above two appeals is whether the orders of the Social Security Court in suspending the execution of the orders of appellant No,I without directing the respondents to furnish securities for its performance in case the appeals are ultimately against them are valid and proper orders or that it was necessary for the Social Security Court to call upon the respondents to furnish securities and on failure thereof the impugned orders of stay were illegal, unlawful and inoperative. Mr. Khalid Habibullah, learned counsel for the appellants submitted that the Social Security Court committed illegality in suspending the operation of the impugned order Without imposing the condition of furnishing security for complying with the orders in case the appeals filed before the Social Security Court were dismissed and the respondents they were found liable to pay the amounts determined against each one of them towards their contributions imposing of the condition in the nature of furnishing security is one of the initial conditions for granting the stay or suspending the operation of an order by the appellate Court and in the absence of any such provision the order would be deemed to be in violation and in breach of the provisions of law and would be in illegal order. In support of his above contention he placed reliance on the case of Pir Ghulam Farid v. Pir Muhammad Bakhsh 1968 SCM R
160. In this case High Court in two appeals has stayed the execution of the decree subject to the deposit of the decretal amount and such order of the High Court was challenged by way of petition for leave to appeal in the Supreme Court but the same was dismissed by the Supreme Court expressing that the High Court was fully justified in ordering the stay on the condition that the decretal amount be deposited in Court. He further submitted that Order 41, Rules 5, C.P.C., which deals with the stay or suspension of the impugned orders during the pendency of the appeal specifically provides the provision of furnishing of security by the party in whose favour stay or suspension of the impugned order is granted and that any other appellate Court in granting interim or temporary order of stay or suspension of the impugned order would be required to fulfil the above provision of the C.P.C. And in support of his above contention he relied upon the case of Mis. Bambino Co. Ltd. v. Selmor International Ltd. And others (PLD 1983 SC 155) wherein the Lordship of the Supreme Court observed that though the provisions of Civil Procedure Code were not applicable to proceedings before the Rent Controller yet the Rent Controller was free to follow the equitable principles contained in Civil Procedure Code.
' Mr. Khurshid Anwer Shaikh, learned counsel for the respondents objected to the maintainability of the above appeals on the ground that under section 59 of Social Security Ordinance, an appeal was competent only against an order finally deciding the issue between the parties whereas the impugned order could not be called to be a final order as it did not finally decide the matter between the parties and was in the nature of an interim or incidental order whereby the demands made by the appellants by way of contributions payable by the respondents to the appellant No,1 in accordance with the provision of Social Security Ordinance had been suspended and the question whether the demands made by the appellants towards the contributions to be made by the respondents were or were not in accordance with the provisions of Social Security Ordinance is yet to be decided. In this contention he drew my attention to section 64(2) of the Social- Security Ordinance which provides for filing an appeal to the High Court from the order of Social Security Court only if substantial question of law is involved and further submitted that the issue involved in the aforesaid two appeals did not fall within the definition of a substantial question of law as envisaged in section 64(2) of the Social Security Ordinance so as to be appealable before this Court. The contention of Mr. Khurshid Anwer Shaikh, is without any substance. The disputes involved in the appeals require determination of the issues as to whether the Social Security Court in granting stay of suspending a demand made by the (Appellants) towards the contribution in accordance with the provisions of the Social Security Ordinance, had the discretion to do so without imposing any condition on the party in whose favour the stay or suspension order was made or required to call upon such parties to furnish security; and secondly, whether the provision of Order 41, Rules 5, C.P.C. Relating to furnishing of security would be applicable to the proceedings of an appeal filed under section 59 of the Social Security Ordinance before the Social Security Court and the Social Security Court would be required to direct furnishing of security by the party in whose favour the stay or suspension of the impugned order was granted. Issues involved in the appeal are a substantial questions of law and, therefore, the above appeals are competent and maintainable.
' With regard to the issue as to whether the provisions of Order 41, Rule 5, C.P.C. Pertaining to furnishing of security by the party benefiting from the order of stay or the suspension of proceedings, Mr. Khurshid Anwer Shaikh, submitted that impact and nature of the impugned order and demand resulting therefrom would have to be examined in deciding the issue of furnishing of security by the Social Security Court hearing an appeal under the Social Security Ordinance and further that the demands in respect of the contributidns not having been finally determined by the Social Security Court, had not attained finality and could not be recovered as arrear of land revenue and, in the circumstances, the respondents could not be saddled with the responsibility or burdened with furnishing of securities in respect of the amounts determined against them by appellant No,
1. In support of his above contention he placed reliance on the cases of: (1) M/s. Mumtaz Ahmed Silk Mills Ltd v. Director, Sindh Employees' Social Security Institution and another reported in 1987 CLC 2531 and (ii) M/s. General Tyre and Rubber Co. Of Pakistan Ltd. v. The Employees' Old-Age Benefits Institution and 4 others (1993 CLC 365). In Mumtaz Ahmed Silk Mills Ltd. v. Director, Sindh Employees' Social Security Institution and another, the learned Division Bench of this Court expressed the view that the contribution amount payable by the employers in accordance with the pr6visions of Social Security Ordinance becomes due when the question of liability to pay contribution is determined through the machinery/forums provided under the statute. In the case of M/s. General Tyre & Rubber Co. Of Pakistan Ltd. v. The Employees' Old-Age Benefits Institution and 4 others, another learned Division Bench of this Court observed that the contributions payable by the employer as determined by the adjudicating authority could not be recovered as arrears of land Revenue till the time the appeal filed by the employer was decided. I am unable to understand as to how the views expressed in the aforesaid two cases can be of any help to the respondents in deciding the issue involved in the above two appeals. In both the aforesaid two cases what has been expressed is that the contributions to be paid by the employer under the provisions of the Social Security Ordinance and the Employees' Old-Age Benefits Institution Act become due after they are determined by the relevant machinery/forums provided under the aforesaid two statutes and if the employers had challenged the determination by way of appeal then Social Security Institution and the Employees' Old-Age Benefits Institution could not take recourse to the provisions of the Land Revenue Act, for the purpose of recovering the amount determined by the machinery/forums provided under the aforesaid two statutes. The judgment in the aforesaid two cases nowhere bars the appellate authority either under the Social Security Ordinance or under the Employees' Old-age Benefits Act, from imposing the condition of furnishing of security for the purpose of staying or suspending the order requiring payment of the amounts of contributions determined by the machinery/forums.
' Apart from the above, there can be no impediment on the exercise by the Social Security Court of the power conferred on the Appellate Court by Order LXI, Rules 5, C.P.C. Directing furnishing or security for suspending or staying the operation of the impugned order for payment of money in views of the observations made by the Supreme Court in the case-of Zafarullah Khan v. West Pakistan (PLD 1975 SC 15) to the effect that recourse by the Civil Court, exercising jurisdiction as a Special Forum under the Canals and Drainage Act, to the provisions of the Code of Civil Procedure was proper and valid. The above provision of the Code of Civil Procedure provides furnishing of security as one the condition for granting stay of suspension of the operation of the order against which an appeal has been filed and the Social Security Court was to adhere to the above provision and was required to direct furnishing of securities by the respondents for suspending or staying the operations of the impugned orders.
From the above discussions, I have no doubt in my mind that the Social Security Court had erred in not directing the respondents to furnish securities for payment of the amounts determined by the machinery/forums against each of the above two respondents in case the appeals are decided against them, and the above order cannot be sustained. Accordingly, the impugned orders are modified to the effect that the respondents shall furnish security to the satisfaction of the Social Security Court for due performance/payment of the amount determined by the machinery/forums against them in accordance with the provision of the Social Security Ordinance. Both the above appeals stand disposed of in terms of the above direction/modification.