Dr. MUNIR AHMAD MUGHAL, J. -- The petitioner's Mills is a Public Limited Company. Respondent No. 4 sent a letter to the petitioner's Mills on 18.5.1994 and called the record from the petitioner's Mills. The petitioner's Mills replied to respondent No. 4 that since the petitioner's Mills has not been notified under Section 1(3) of the West Pakistan Employees' Social Security Ordinance, 1965 for the imposition of Social Security Scheme. Hence, the production of record was unwarranted by law.
Respondent No. 4 instead of supplying of copy of the Notification with regard to the imposition of Social Security Scheme to the petitioner sent notice tor payment of Rs. 15,000/-. The petitioner referred back the same on the ground that since there was no Notification the demand has no entity in the eye of law and requested for its withdrawal. Therefore, respondent No. 3 sent notice under Section 81 of the Land Revenue Act, 1967 for the recovery of the amount of Rs.6,36,000/- by coercive method. The petitioner has also challenged the validity of the said notice.
2. Notice of the writ petition was given to the respondents. In response to it respondent No,. 1 has appeared through the learned Assistant Advocate General Punjab, Lahore while respondents Nos. 2 to 4 are represented by their counsel and have also filed written statements in which the issuance of the letter by respondent No. 4 and also the reply given by the petitioner and the subsequent demand and recovery notice by the respondents have been admitted and it has been pleased that the Notification stood issued and it was specifically mentioned in it that the Ordinance has been made applicable to any other unit functioning in the premises of the notified establishment and that as the petitioner's Mills is functioning in the notified premises of Messrs Gulistan Weaving Mills, the Ordinance is also applicable to the petitioner's Mills.
3. The point for consideration is as to whether the proceedings taken against the petitioner's Mills without specifically mentioning the name of the petitioner's Mills in the schedule to the Notification in pursuance of Notification No. Lab. V/II-61/90, dated 31.7.1991 under Section 1 (3) of the Punjab Employees Social Security Ordinance, 1965 are without (awful authority and of no legal effect.
Consequently, the demand notice dated 20.9.1994, the impugned order dated 25.1.1995 and the order dated 6.6.1996, of the Social Security Court, Punjab, Lahore are illegal.
4. Arguments have been heard at length.
5. Learned counsel tor the petitioner has submitted that another Mills M/s. Gulistan Weaving Mills situated on the same road, which is also a Public Limited Company having its on entity, boundaries, accounts and the employees and similarly registered with the Government of the Punjab and the Government of Pakistan for all purposes of a separate Public Limited Company. The said Mills has been notified for the purposes of the applicability of Social Scheme and that the respondents treating both the Gulistan Weaving Mills and the Gulshan Weaving Mills as one are illegally and without any authority, imposing the Notification to the petitioner's Mills whereas the petitioner's Mills is a juristic person having been registered as Public Limited Company by shares under the Companies Ordinance, 1984 and also the petitioner Mills is separately registered under the Factories Act, 1934 with the Directorate of Labour Welfare, Lahore Region, Lahore vide registration Certificate No. F/LR/SKP/184, dated 22.12.1991 and is also paying contribution to the Employees Old age Benefits Institution with whom it is also registered. Further it is registered with the Government of Pakistan Collectorate of Central Excise and Sales Tax, Lahore, it has its on account, on staff and all other things required for its independent entity. Learned counsel for the petitioner further submitted that under the Punjab Employees Social Security Ordinance, 1965, the applicability of the Ordinance is to be made by the Government of the Punjab by a Notification specifying in this behalf and that no such Notification has so far been issued and respondent No. 4 has erred in sending notice for the payment of amount without looking into the matter with the Scheme of the Social Security has been made applicable to the petitioner Mills and that respondent No. 3 has started the coercive method against the petitioner Mills. Learned counsel for the petitioner further submitted that petitioner Mills was forced to file a complaint under Section 57 of the Social Security Ordinance, 1965 before respondent No. 2 alongwith an application for interim relief. Respondent No. 2 rejected the prayer of interim relie and the petitioner preferred an appeal before the Social Security Court against the order of respondent No. 2 which was granted but was later on vacated by dismissing the appeal on 6.6.1996 holding that the appeal against interim order did not lie. The petitioner filed F.A.O. No. 169/96 against order dated 6.6.1996 which was also dismissed being incompetent. Meanwhile, the petitioner had also filed Writ Petition No. 1643/95 in the Lahore High Court which was also dismissed on the plea that relevant original Notification has not been shown by the petitioner to the respondents which was also held not maintainable and was dismissed on 26.2.1995 in limine. However, it was observed that in case petitioner approaches respondent No, 2 for obtaining necessary Notification it shall be supplied to the petitioner but shall be dealt with him with due respect and strictly in accordance with law. Thereafter, the petitioner sent a letter dated 13.9.1995 to respondents Nos, 3 and 4 tor supply of the Notification, if any, in respect of the petitioner Mills. No reply was given. The petitioner again wrote a letter for the supply of the Notification to clear the matter and then another letter dated 4.4.1996 for the same purpose. These letters were sent to respondent No.1, who also wrote a letter to respondent No. 2 to supply a copy of the Notification to the petitioner Mills. No reply was given and respondent No. 1 again sent letter to respondent No. 2 but to no avail. Respondent No. 2 vide his order dated 20.11.1996 also directed to respondents Nos. 3 and 4 to supply the said Notification to the petitioner Mills, it is further submitted that petitioner being Public Limited Company having its juristic entity and answerable to its share- holders about payment cannot pay the undue amount which is not legally payable to the institution. The petitioner having requested the respondents that a Gazette Notification to this effect may be issued and the petitioner will be readily paying the contribution to the Institution but to no avail, it is further submitted that the respondents have not provided facilities and benefits to the workers of the-petitioner Mills and that the amount of contribution cannot be claimed from the petitioner Mills as the same is not a tax but a fee for rendering th; services required under the Ordinance and that the action of the respondents against the petitioner Mills is against law and without jurisdiction and that they cannot recover any amount from the petitioner Mills without the Gazette Notification of the applicability, it is further submitted that there is no other adequate, sufficient, effective and immediate remedy available to the petitioner Mills against the illegal acts of the respondents. As such, the writ jurisdiction of the High Court is being invoked and it is sought that the judgment dated 6.6.1996 passed by the learned Judge. Social Security Court, Punjab, Lahore and the order dated 25.1.1995 passed by the Vice-Commissioner. Punjab Employees Social Security Institution be set aside and the operation of the demand notice dated 20.9.1994 respondent No. 4 be suspended and the notice under Section 81 of the Land Revenue Act issued by respondent No. 3 be declared as illegal, against law and of no legal effect and that the respondents be directed to supply the Notification, if any, with regard to the petitioner establishment.
6. Learned Assistant Advocate General, Punjab as well as learned counsel for respondents Nos. 2 to 4 have frankly conceded that there is no Notification wherein the name of the petitioner Mills was specifically mentioned in the schedule. They both have stressed that the words or any unit functioning in the premises of the establishment brings the petitioner Mills within the meaning of Notification.
7. I have given due consideration to the valuable arguments on both sides.
8. The relevant law is contained under Chapter-I of Section 1(3) of the West Pakistan Employees'
Social Security Ordinance No. X of 1965 which is reproduced for ready reference: - "CHAPTER 1--PRELIMINARY
1. (3) It shall come into force at once but shall apply only to such areas, classes of persons.
Industries or establishments, from such date or dates, and with regard to the provision of such benefits as Government may by notification, specify in this behalf."
The Notification in question is also reproduced:- "THE PUNJAB GAZETTE PUBLISHED BY AUTHORITY LAHORE WEDNESDAY JULY 31. 1991 GOVERNMENT OF THE PUNJAB LABOUR DEPARTMENT.
NOTIFICATION.
The 31st July, 1991.
No. Lab-V/11-6/40. In exercise of the powers conferred by sub-section (3) of Section 1 of the West Pakistan Employees' Social Security Ordinance, 1965 (West Pakistan Ordinance No. X of 1965), the Governor of the Punjab is pleased to apply with effect from 1st August, 1991 or the date of publication of the Gazette Notification whichever is later, the said Ordinance to the employer and employees of the > establishments mentioned in the schedule annexed hereto and or any other unit functioning in' the premises of the establishments and to direct that the employee of such establishment shall be entitled to benefits provided in Sections 35, 36, 37, 38, 39, 40, 41, 42, 43, 44 & 45 of the said Ordinance.
SCHEDULE AREA S.NO. NAME & ADDRESS OF THE UNIT LAHORE (S). 1 to 331............ SHEIKHU PURA 332 to 335....
336. M/s. Gulistan Weaving Mills (Pvt.)
Ltd., Ferozewala, District Sheikhupura.
337 to 339.... "
The legal background of the promulgation of the Ordinance No. X of 1965 is that it was an Ordinance to introduce a Scheme of Social Security for providing benefits to certain employees of their dependents in the event of sickness, maternity, employment injury or death and for matters ancillary thereto and whereas the Provincial Assembly of West Pakistan was not in session and the Governor of Punjab is satisfied that circumstances exist which render immediate legislation necessary at that time, therefore, in exercise of the powers on him by clause (1) of Article 79 of the then Constitution, the Governor of West Pakistan was pleased to make and promulgate the said Ordinance. The Ordinance was published in the Gazette of West Pakistan Extra., 17th May, 1965 at page 2195. Chapter I is preliminary and Section I dealt with as Short title, extent, commencement and application of the Ordinance which reads as under:- "CHAPTER I PRELIMINARY
1. Short title, extent, commencement and application:-
(1) This Ordinance may be called the (Provincial) Employees' Social Security Ordinance, 1965.
(2) ...............
(3) It shall come into force at once but shall apply only to such areas, classes of persons industries or establishments, from such date or dates and with regard to the provision of such benefits as Government may, by notification, specify in this behalf."
9. The Scheme of the Ordinance is that it came into force at once and extends to the whole of West Pakistan but its application was limited only to such areas, classes of persons, industries or establishments, from such date or dates and with regard to the provision of such benefits as Government may, by notification, specify in this behalf. The idea is gradual application and extension of Ordinance as regards areas, industries and benefits depending upon experience gained and the progress made in enforcement.
10. In the case of Kashmir Corner Vs. Sindh Employees' Social Security Institution, Karachi (PLD 1975 Kar. 36), the material facts were that at the shop situated at Zebunnissa Street the appellants sell both imported goods and locally purchased goods while the owners of this shop also run a cottage industry at 101/27, Korangi Industrial Area, Karachi known as the Kashmir Comer Industry and there was a demand from the appellants in respect of both these establishments and the demand in respect of the Kashmir Corner .Industry is not disputed and is not the subject-matter of the said appeal. The liability to pay in respect of the Zebunnissa Street Establishment. The liability arises if at all, from the West Pakistan Employees' Social Security Ordinance, West Pakistan Ordinance of 1965.
By a Notification dated the 15th October, 1968, the Ordinance was made applicable with effect Irum the 1st November, 1968 to various establishments in the Karachi District and one of these, at Serial No. 195, was "Kashmir Corner Industries, Plot 101, Sector 27, K.I. Area, Karachi." The language in which the notification was made so applicable was also worth noticing, it was - "No. Lah-III-SSS-1/67. - In exercise ot the powers conferred by subsection (3) of Section 1 of the Wist Pakistan Employees' Social Security Ordinance, 1965 (West Pakistan Ordinance No. X of 1965), the Governor of West Pakistan is pleased to apply, with effect from the first day of November, 1968, the said Ordinance to the areas mentioned in column 2 of the Schedule annexed hereto and to the employer and the employees of establishments mentioned against each of such areas in column 3 thereof, and to direct that the employees of such establishments shall be entitled to the benefits as provided in Sections 35, 36, 37, 38, 39, 40, 41., 42. 43, 44 and 45 of the said Ordinance."
11. The Hon'ble Chief Justice of the High Court of Sindh and Balochistan observed:- "The notification does not refer and the Ordinance does not, therefore, apply to a single natural person or a legal entity all the employees of which are to be given the benefits of the Ordinance.
On the contrary in its on terms it talks of the "employers of establishments mentioned against each of such areas" and the word "establishment" is itself defined in the Ordinance thus "establishment means organisation, whether industrial, commercial, agricultural or otherwise". By reason of this definition and Section 1 (3) of the Ordinance which I have already quoted it seems plain that the Ordinance was not to apply to all concerns owned by a particular person or a legal entity as such but to industries or establishments specifically stated (I ignore as being irrelevant for my present purposes, the words "classes of persons"). It seems to me. Therefore, that the intention of the legislation was to provide specifically for the employees of such industries or establishments. The demand in respect of the Zebunnissa Street Establishment is made on the basis that in that establishment are sold some of the goods manufactured in the Korangi Establishment and that the to establishments have a common ownership. In my opinion that more fact does not connect the to sufficiently for the purpose of making the Ordinance applicable to the Zebunnissa Street Establishment. It is in fact the case of the appellants, which is not denied, that a great deal of the products manufactured at the Korangi Establishment are exported while the Zebunnissa Street Establishment sells goods which are not manufactured at the Korangi Establishment only".
It was further observed by the Hon'ble Chief Justice of the said Court: - "Reliance was finally placed upon the definition of the expression "Social Security Ara" and which is defined to mean "an area to which this Ordinance has been applied." This would indeed have carried the ease of the respondent to a successful conclusion had the Ordinance been made applicable or was capable of being made applicable, to ail kinds of establishments within a particular area. Whether a notification could have issued in respect of all establishments within a particular area is not a question which I am called upon to decide because the notification itself although it does define "the area is nevertheless in terms restricted to certain named establishments."
And ultimately, it was concluded that the appellants were not liable to pay any contribution in respect of the Zebunnissa Street Establishment and. Therefore, the appeal was allowed with costs and the order of the 1st Sindh Social Security Court, Karachi was set aside.
12. In the case of Kohinoor Chemical Co. Ltd. And another Vs. Sindh Employees Social Security Institution (RLD 1977 Supreme Court 197) where there was a common question of law- as to the application of certain provisions of the West Pakistan Social Security Ordinance. 1965. To the staff working at the Head Office of the establishments notified under Section 1(3) of the aid Ordinance even though the Head Office is not specifically mentioned m the relevant notification issued by the Provincial Government. The matter went in appeals before the Hon'ble Supreme Court of Pakistan by way of the appeals. One by Kohinoor Chemical Co. Ltd. And the other by Sindh Employees' Social Security, Institution . And the Hon'ble Supreme Court observed:- "As regards the Kashmir Corner Industries. We may state at once that it is difficult to accept the contention advanced on behalf of this Company that the establishment in the Zaibunnissa Street (formerly known as Eliphtinston Street), Karachi, has nothing at all to do with the notified establishment situate in the Korangi industrial area. Such an assertion is negatived by the address printed on the letter addressed by the company itself to the Director of the Social Security Institution on the 18th of May, 1974. This letter clearly shows that the Head Office of the company is located at Kashmir Corner Elphination Street, Karachi. It follows, therefore, that here again it is a matter for investigation to determine as to which of the employees working in the Elphinston (Now Zaibunnissa Street) establishment are working. In connection with the work of the notified establishment." in the same judgment the Hon'ble Supreme Court observed:- "In order to appreciate the respective contentions advanced on behalf of the parties, it is necessary to refer to the relevant provisions of thd statute.
As already stated, sub-section (3) of Section I of the Ordinance enjoins that it "shall apply only to such areas, classes of persons, industries or establishments, on such date or dates, and with regard to the provision of such benefits as Government may, by notification, specify in this behalf."
The notification of the 15th of October, 1968 has been issued under this provision, and it specifies Karachi District as the territorial limits for the application of the Ordinance and further prescribes that the employees of the establishments mentioned in this unification, shall be entitled to the benefits as provided in certain sections of the Ordinance.
The term 'employee' has been defined in clause (8) of Section 2 of the Ordinance as meaning "any person working, normally for at least twenty-four hours per week, for wages, in or in connection with the work ot any industry, business undertaking or establishment, under any contract of service or apprenticeship, whether written or oral, express or implied...."
According to clause (II) of the same section 'establishment' means an organization whether industrial, commercial, agricultural or otherwise.
Now, it is clear that the to definitions of the terms 'employee' and 'establishment' have to be read together in order to arrive at a correct interpretation of the scope of the notification issued by the Provincial Government. Similar terms employed in the comparable Indian Legislation, namely Employees' State Insurance Act, 1948, fell for interpretation by a Division Bench of the High Court in Employees' State Insurance Corporation v. Ganpathla Pillai (AIR 1961 Mad. 176). The word employee is defined in Section 2 (9) of the Indian Act as meaning. "any person employed for wages in or in connection with the work of a factory or establishment to which this Act applies and
(i) who is directly employed by the principal employer on any work of, or incidental or preliminary to or connected with the work of, the factory or establishment, whether such work is done by the employee in the factory or establishment or elsewhere......... "
The learned Judges took the view that only persons who were in some manner or other connected with the work of the factory, namely, the manufacturing process, could be said to ^be employees within the meaning of the definition, even though there were the words incidental or preliminary to, but both these had to be understood in conjunction with the words "with the work of the factory."
Having reached this conclusion they proceeded to examine whether the employees in question were performing any work in connection with the notified factory. It will be seen that only those employees were regarded as being liable to pay the necessary contribution whose work had a nexus with the work of the notified factory or establishment.
There is no doubt that we are dealing with a beneficial or remedial legislation conceived as a means of amellorating the lot of the working class, and as such it would be in keeping with the accepted principle of interpretation, as observed in Divisional Superintendent, P.W.R., Karachi v.
Bashir Ahmad (PLD 1973 SC 589) 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.
Viewed in this light, the term 'establishment, as defined in clause (11) of Section 2 of the Ordinance, does not appear to me to be confined in its scope to merely the four walls of the physical premises where the notified establishment may be located; on the contrary, the definition speaks of an organization whether industrial, commercial, agricultural or otherwise. In its literal sense an organization connotes a systematic arrangement tor a definite purpose. In the legal sense it describes a system, a body or a society furnished with, organs for the normal exercise of its appropriate functions, it follows, therefore, that an organization is not necessarily to terminus with the physical premises where it may be located. It is possible that a part of its structure may be situated elsewhere, but it must, nevertheless be integral to its main functions and objects.
That this is the proper construction of the term 'establishment' appears to find support from the definition of the term 'employee' as given in clause (8) of Section 2 of the Ordinance, which includes in the definition not only a person working in the industry or establishment but also "in connection with the work or any industry, business, undertaking or establishment. It is clear to me that a person who is working "in connection with the work of" an establishment may not necessarily be physically located in the notified premises, but may be elsewhere of course, within the social security area as notified under clause (3) of Section 1 of the Ordinance. The essential test in such a case would be whether the person concerned is indeed working in connection with the work of the notified establishment. The late Chief Justice has rightly remarked, in the case of the Kashmir Comer Industries, that the mere fact of common ownership could not be made the basis of extending the social security benefits to employees of a sister concern, although they are not working in connection with the notified establishment. Similarly, the benefit could not be extended to employees simply described as working in the Head Office of the Organization or establishment concerned, unless a proper inquiry is held to establish whether they are indeed working in connection with the notified establishment.
Mr. Ali Ahmad Fazeel drew our attention to certain items in the notification of the 15th October, 1968, in which the Head Office establishments hud been separately notified, and argued that without such separate notification the employees of the Head Office could not at all be included in the benefits. The argument is untenable for the reason that such a departmental construction of the statute, although relevant is not binding on the Court. (See PLD 1960 SC 195 and PLD 1965 SC 412).
Secondly, it appears that once the Head Office establishment is separately notified, then the question whether it has any nexus with the other notified establishment of the same company or employer becomes irrelevant, for in such a case the employees concerned would be covered by the fact of notification, thus still leaving open the question of the true interpretation and scope of the terms employee and establishment.
It seems to me, therefore, that the correct position in law is that the specified benefits under the Ordinance would accrue to all employees of the notified establishment who are working either in the establishment or in connection with the work of the same. The latter category of employees may not be physically located at the notified address, but in that event an inquiry would be necessary to establish whether they are in fact working in connection with the work of the notified establishments. The mere fact of common ownership of to establishments would not establish such a nexus or connection. It needs to be further clarified that the connection must be with the work of the notified establishment, as indicated in the statutory definition, thus requiring an exact description and appreciation of the nature of the work carried on in the establishment and by the disputed employees.
On this view of the matter, it is necessary that an inquiry should be held by the Social Security Institution in both these cases to establish the identity of persons working in the Head Offices of the to notified establishments who can be described as employees working in connection with the work of the establishments concerned. Only such employees would fall within the ambit of the notification and the other persons working in the Head Office would stand excluded.
Mr, Ali Ahmad Fazeel stated at the Bar that out of ISO employees working in the premises of the Head Office of the Kohinoor Chemical Company, 57 only were on the pay roll of this company, and even out of these only 48 were in receipts of salary upto Rs. 1,000/-, the remaining nine being beyond the ambit of the Social Security Ordinance on account of being in receipt of higher salaries.
He contended that out of the 48 workers in question very few could be said to be directly working in connection with the work of the notified establishment. In view of the conclusion reached by us in the preceding paragraph it is not necessary for us to express any opinion on this point as the matter will have to be determined by a proper inquiry.
The Hon'ble Supreme Court disposed of both the said appeals in terms of the following conclusions:- "For the foregoing reasons I would hold that:-
(1) Once an establishment is notified under Section 1 (3) of the Ordinance then the specified benefits under the Ordinance would accrue to all employees of the said establishment who are working either in the establishment or in connection with the work of the same. The latter category of employees may not be physically located at the notified address, but in that event an inquiry would be necessary to establish whether they are in fact working in connection with the work of the notified establishment. Such an inquiry should now be undertaken by the Social Security Institution with regard to- the employees working in the Head Offices of both the establishments involved in these appeals;
(2) On the issuance ol the necessary notification the obligation is squarely placed on the employer to furnish the necessary returns to the Institution and to pay the, prescribed contributions in respect of its on share and to realise the same from the employees, and credit the proceeds to the fund of the Institution. This liability to pay the contribution is not dependent upon the issuance of any notices of demand by the Institution and the employer cannot be permitted to take advantage of his on default;
(3) As regards the employees a distinction has to be made in view of the fact that the legislation is intended for their benefit, and if they have been prevented from making the contributions or availing of the benefits concerned owing to a default on the part of the employer, then it would not be in accordance with the spirit of the legislation to realise past contributions from the employees for the said period during which they were not treated as secured workers; and
(4) The arrears of contributions may not be realised from an employer for the period during which he had made alternative arrangements for affording the necessary benefits to the employees and had made a contribution in that behalf at least equal to the rate prescribed under the Ordinance and the Rules and Regulations framed thereunder. Otherwise, the realisation of arrears would mean a double levy on the employer, without any corresponding benefits to his employees.
However, the existence of any such adequate alternative arrangements must be established to the satisfaction of the Social Security Institution.
13. In the case of Messrs Standard Printing Press Vs. Sindh Employees' Social Security Institution (1988 SGMR 91) leave to appeal was granted to examine whether the appellant could in proceedings under Section 59 of the Employees' Social Security Ordinance (X of 1965) challenge the vires of the Notification issued under sub-section (3) of Section 1 of the Ordinance, and if so, whether that notification is in fact ultra vires the Ordinance. The only question argued before the Sindh Social Security Court was that the impugned notification is discriminatory and violative of Article 25 of the Constitution, as other similar establishment in the locality were left out and the provisions of the Ordinance were applied to the appellant alone. The appeal was dismissed. The appeal was also preferred before the High Court which was also dismissed and the appeal in the Hon'ble Supreme Court was also dismissed with the following observations:- "The upshot of the above discussion is that the right of appeal conferred on the Social Security Court by Section 59 of the Ordinance is by statute limited to matters enunciated in Section 57 of the Ordinance. A further appeal on a "substantial question of law" to High Court under Section 64 of the Ordinance does not enlarge, rather it limits the scope of appeals arising an adjudications under Section 57 of the Ordinance. Constitutional question of the vires of enacted law and notifications thereunder could not be agitated under Section 57 before the Social Security Institution or in appeal under Section 59 before the Social Security Court in further appeal under Section 64 before the High Court. In any case, the enacted law (Section 1, sub-section (3) is not ultra vires for its repugnance with Article 25 of the Constitution. As the challenge to the Government's notification under Section 1, subsection (3) of the Ordinance necessarily involves the examination of certain controverted tacts and determination thereof it cannot take place in the absence of the Government and the parties in whose favour discrimination was alleged for they could possibly demonstrate that their cases were not similar but distinguishable."
14. In the case of Sindh Employees' Social Security Institution Vs. Messrs Cowasjee and Sons (1993 SCM R 1433) leave to appeal was granted to examine, whether in view of the notification under sub- section (3) of Section 1 of the West Pakistan Employees' Social Security Ordinance, 1965 (Ordinance X of 1965), there was any room left for holding that M/s. Cowasjee and Sons (Lighters) was a separate establishment within the meaning of the Ordinance.
The Social Security Court held that M/s. Cowasjee & Sons (Lighters) were not liable under the notification referred to above. The order was upheld by the High Court and the Hon'ble Supreme Court dismissed the appeal with the following observations: - "Section 1 of the Ordinance is reproduced hereunder:-
(1) Short title, extent, commencement and application. (1) This Ordinance may be called the Provincial Employees' Social Security Ordinance, 1965.
(2) It extends to the whole of Pakistan.
(3) It shall come into force at once but shall apply only to such areas, classes of persons, industries or establishments, from such date or dates, and with regard to the provision of such benefits as Government may, by notification, specify in this behalf."
An examination of sub-section (3) of Section 1 of the Ordinance as reproduced above makes it clear that a notification under it can be by reference to any one or more of the indicators contained therein i.e. The specified areas, the specified classes of persons, the specified industries or establishments. Besides, the dates could vary in respect of the benefits allowed. In the case before us, the only to things specified were the area and the industry or establishment. There are again three indicators in the specific notification in respect of the respondent which show that in the matter of industry or establishment each of its activity was taken to be distinct and separate notwithstanding the identical umbrella of the proprietorship which was a partnership. If the idea was to cover the partnership in all its manifold industrial and commercial activity then the notification should have shown as M/s. Cowasjee & Sons and should not have mentioned M/s. British India Engineering Works or treated the to as separate for purposes of notification. This separation in the notification clearly indicate that the various activities of the same partnership were distinguished one from the other and the partnership as such was not the subject-matter of the notification.
Secondly, it appears to be the normal reasonable approach also to the power conferred and exercised. Such a notification has to be preceded on the administrative side by a survey of the range of commercial and industrial activity and identification of those which can and ought to be brought under the cover of Social Security. It is assumed that this antecedent step had been taken.
The learned counsel for the appellant, however, contends that no such survey was undertaken or completed and it was just by the general appearance of the industrial and commercial activity carried down by these organisations or concerns in a particular locality that they were notified. If that was so, then it was a hasty and a sudden and swift act which is likely to land the institution in such contusions.
Thirdly, the Institution itself from 1972, to 1976 was not aware nor did it bring within its cover under this notification, M/s. Cowasjee and Sons (Lighters). It was only in 1978 that it became aware of what it considered to be the proper scope, purpose and effect of notifying M/s. Cowasjee and Sons.
Such an inference is not supportable either on the language of the notification or by bringing within its net both M/s. Cowasjee and Sons and M/s. British India Engineering Works also, on the treatment that the Institution afforded to M/s. Cowasjee and Sons from 1972 to 1978.
It is true that the notification under Ordinance have to be liberally construed and the benefit to be extended to the largest number of persons. This is so where the to interpretations of a notification are possible. It cannot, on the basis of such a rule of interpretation be urged that the establishment covered by notification being one by interpretation it should be so extended to include more than one. The proprietary interest or ownership being not the test in the notification but the commercial activity as such the notification cannot lie given the extended meaning which the learned counsel for the appellant seeks."
15. In the light of the above discussion of the law and the precedents, the petitioner establishment is not covered by the Notification. As such the writ petition merits to be allowed and the same is allowed declaring that the impugned proceedings taken by the respondents Nos. 2 to 4 in pursuance of Notification No. Lab. V/1I-61/90, dated 31.7.1991 under Section 1 (3) of the Punjab Employees Social Security Ordinance, 1965 against the petitioner's Mills without specifically mentioning the name of the petitioner's Mills in the schedule to the Notification are without lawful authority, illegal and of no legal effect. However, the respondents have every right to issue fresh Notification strictly in accordance with law in respect of the petitioner's Mills.