ORDER CH. IJAZ AHMAD, J.- Brief facts out of which present writ petition arises are that petitioner's firm is manufacturing readymade garments, lt has been paying the contribution in respect of its employees to the respondents under the provisions of the employees to the Social Security Ordinance, 1965.
Respondents raised complaint qua the non-payment of certain amount of social security contribution for the period from December, 1992 to April-95 to the petitioner's firm. The firm paid the amounts as directed by respondents, but respondent No. 1 vide Notice dated 28.12.1995 demanded from petitioner's firm to pay an amount of Rs. 16,274/- as last paid social security contribution for the same period as mentioned above as a result of spot inspection of petitioner's firm on 7.11.1995 by respondents' Area Officer, and found that more 60 workers were Working in the petitioner's firm, 20 workers were also found at Show Room, whereas, the firm has paid the contribution in respect of only 16 employees. The Social Security Officer of the respondent again visited the premises of the petitioner's firm on 27.12.1996 thereafter respondent sent notice dated 25.1.1996 with tHe direction to the petitioner to pay an amount of Rs. 2,26,200/-. Petitioner's firm submitted reply to the show-case notice and denied the contents of notice. Reply of notice revealed that most of the workers/employees were hired and worked on piece rated hours, lt is pertinent to mention that neither the petitioner filed any complaint against the said demand, nor the Institution or the Commissioner passed any order qua the final determination of the disputed amount. Respondents sent notice to the petitioner's firm on 3.3.1996 under the Land Revenue Act for the recovery of Rs.2,42,474/- as alleged last paid social security contribution for the aforesaid period. Respondents have also allegedly issued warrant of arrest. Hence, the present writ petition.
2. Learned counsel of the petitioner contended that controversy between the parties is not finally adjudicated by the Institution or the Commissioner, therefore, the notice dated 3.3.1996 under the Land Revenue Act is not valid, and is non existence in the eyes of law. He further urged that notice dated 3.3.1996 is hit by principle of natural justice. Further stated that action of respondent is arbitrary, mala fide and in violation Articles 4 and 25 of the Constitution and the provisions of Social, Security Ordinance.
3. The learned Assistant Advocate General contended that action of the respondent is valid and is in accordance with law without any malice. Respondent sent a demand notice to the petitioner's firm after spot inspection.
4. The petitioner's firm submitted reply and denied the claim of respondents. He further stated that petitioner did not file any complaint against the said show-case notice, therefore, demand notice for recovery of the dues became final. By virtue of Section 57(F) of the Social Security Ordinance the competent authority has within its lawful authority to issue notice dated 3.3.1996 under Section 181 of the Land Revenue Act for the recovery of the aforesaid amount from petitioner's firm. He argued under instructions that respondents issued show-case notice, and the petitioner submitted the reply and finally respondent issued notice under Section 181 of the Land Revenue Act, without issuing final notice.
5. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record.
6. Lt is an admitted fact that respondent issued show- case notice qua the demand in question from the petitioner, and the petitioner submitted the reply of the notice, and the respondents failed to issue any final notice to the petitioner and finally issued the notice under Section 181 of the Land Revenue Act on 3.3.1996. In case, the aforesaid facts are put in juxtaposition, then it becomes crystal clear that respondents did not determine the final liabilities qua the petitioner, in view of the respective contentions raised by the parties' counsel, the question for consideration crops up whether the institution has passed an order falling under Section 57 of the Social Security Ordinance?
7. To resolve the controversy, it may be observed that as per Section 2(3) and sub-section 16 of the Ordinance, the Commissioner means the Commissioner of the Institution and Institution means employees of the Social Security Institution established under Section 2 of the Ordinance whereas Section 4 of the Ordinance provides that affairs of the Institution shall vest in a Governing Body whicH with the assistant of a Commissioner may exercise all power$ -strid do all acts and things which may be exercised or done tty the Institution, in addition to the aforesaid provisions', Section 18(2) of the Ordinance provides that Commissioner shall be the Chief Executive of the Institution and shall act as Secretary to the Governing Body. At this stage, reference to Section 57(F) of the Ordinance is also relevant, according to which, if any complaint is received or any question and dispute arises as, to any other matter in respect of any. contribution or other dues payable or recoverable under this Ordinance, the same sh'^be decided by the Institution in such a manner and within such in aS the regulation may provides and the Institution shall' motility its decision to the person or persons concerned in writing^.stating therein the reason or reasons for decision.
Therefore, it is held' that any matter decided by the Institution headed by Commissioner on a complaint or any question or dispute arises for determination under any provision of Section 57 shall be deemed to. be the Institution.
8. In the instant case as well after initiating process of inspection concerning petitioner's firm by respondent No. 1 raised demand for the recovery of Social Security contribution against the petitioner. This notice was resisted by the petitioner who submitted 'Representation' on 25.2.1996 which revealed that petitioner did not receive any final notice qua the said demand. Respondents instead of sending fresh and final notice to the petitioner sent a notice under Section 181 of the Land Revenue Act on 3.3.1996.
9. Lt is an admitted fact that petitioner did not file any complaint, but petitioner submitted reply to respondent No. 1 and denied the contents of the notice, in case the respondents are not satisfied with the reply, then it is the duty and obligation to send final notice to the petitioner but respondents failed to even sent a reply to the petitioner's letter dated 25.2.1996. Lt is settled principle of law that no body can be penalized by the act of any public functionary. I am fortified by the dictum laid down by this Court PLD 1994 Lahore 3. Petitioner has a right to file complaint against the final notice in case issued by the respondent, in the present case, respondents failed to issue final notice to the petitioner, therefore, petitioner did not file complaint under Section 7 of the Social Security Ordinance.
10. In view of the foregoing position, notice issued by respondents dated 3.3.1996 under Section 181 of the Land Revenue Act is set aside due to non-observance of law on the subject, and shall have to be declared as to be without lawful authority and of no legal consequence against the petitioner. Respondents are, however, at liberty to take action according to law after following the necessary formalities under the provisions of Social Security Ordinance, 1965.