CH. MUHAMMAD ARIF, J.---Through these appeals by leave of this Court, the appellants have made a challenge to a common judgment of the Lahore High Court, Lahore passed in a number of Constitution Petitions unsuccessfully brought before it to challenge the demand made by respondents Nos.1 to 3 being, respectively, the Province of Punjab; Provincial Employees Social Security Institution and Director, Provincial Employees Social Security Institution, to make payment of amounts specified in notice/s issued to the appellants under the Provincial Employees Social Security Ordinance (No,X of 1965), hereinafter referred to as 1965-Ordinance, on account of social security contribution at the rate of 7% of 'wages' of the workers employed in their respective establishments, vide judgment dated 28-12-1995.
2. Briefly stated the background is that the appellants are public limited companies incorporated under the laws of Pakistan. On account of amendments made in the West Pakistan Minimum Wages Ordinance (No,XXXIX of 1961), hereinafter referred to as 1961 Ordinance, through the West Pakistan Minimum Wages for Unskilled Workers (Amendment) Act (No,IX of 1993), hereinafter referred to as 1993-Act, which came into force on 10th April, 1993 and was to take effect from 1st July, 1992, by enhancing the minimum wages of an unskilled worker to Rs,1500 per month. This amendment in 1969 Ordinance was assailed in the Lahore High Court by some of the appellants and by some others in the High Court of Sindh. Ultimately, these causes were resolved by this Court in "Annoor Textile Mills Limited and others v. The Federation of Pakistan and others (PLD 1994 SC 568). However, during the interregnum, a number of Labour Laws (Amendment) Ordinances/Acts were issued between 25-9-1993 and June 1994. The Labour Laws (Amendment) Act (No,XI of 1994), hereinafter referred to as 1994-Act, proceeded with introducing lots of amendments in different statutes, including 1965 Ordinance. As a consequence of these amendments, the exclusion of employees drawing wages of more than Rs,1,500 from the purview of the said statutes, was to endure to the benefit of employees drawing Rs,3,000.
3. The Province of Punjab also promulgated the Punjab Employees Special Allowance (Payment)
Act, 1988 (No,II of 1989), hereinafter referred to as 1989-Act, whereby special allowance to be paid to the employees was increased to Rs,450. In terms of section 8 of 1989 Act, it was mandated that the allowance was not to be considered as part of the 'wages' for the purposes of any other law, including contribution to provident fund, social security, E.O.B.I., gratuity, bonus and calculating wages for the over time workers. On 16-1-1994, a Joint Secretary of Labor issued a clarification to the effect that the amount of minimum wage of Rs,1,500 should be taken to be the basic wage and all benefits, as well as obligations, should be calculated and paid on the basis of the said amount.
Accordingly, the respondent-authorities raised a demand for payment of social security on the amount of wages including special allowance which, according to them, had become a part of the 'minimum wages' by then with retrospective effect. This effort on the part of the respondent- authorities was challenged by some of the affected companies in the Lahore High Coat on the ground that the liability to pay social security under 1965-Ordinance has to be with reference to 'minimum wages', as determined from time to time in their respective industries under 1961- Ordinance. Additionally, the liability was to be computed by excluding the special allowance, in terms of the non obstante clause in 1989-Act. These petitions were disposed of by the Lahore High Court on 3-5-1995 by a common order passed in W.P. No,4931 of 1994 in terms of the assurance extended by the then counsel for the respondent-authorities to the effect that the minimum wages under 1961-Ordinance having been fixed at Rs,1500, demand was being made accordingly and that the writ petitioners were not being asked to make payment of contribution on the special allowance payable under 1989 Ordinance.
4. The respondent-authorities issued Circular No,SSS/Cont/Genl-4/95/6996, dated 28-5-1995 asserting that the demand raised earlier, alongwith the demand/s accruing thereafter, be recovered as the Lahore High Court, Lahore had declined to resolve the issue in question. As a consequence of this circular dated 28-5-1995, proceedings for recovery were again initiated by the respondent authorities, which furnished the cause/reason for the institution of all the Constitution Petitions which have led to the passing of the judgment in appeal by the High Court.
5. The learned Judge in Chambers of the Lahore High Court, Lahore dismissed the writ petitions vide the impugned judgment holding that Presidential Order No,4 of 1975, issued under Article 268 of the Constitution of the Islamic Republic of Pakistan, 1973 had the effect of converting 1965- Ordinance and 1969 Ordinance from the sphere of Provincial legislation to that of Federal legislation. The term 'wages' contained in 1965-Ordinance was comprehensive enough to include special allowance therein and thus the said law has the effect of overriding the non obstante clause in 1989-Act, in line with Article 143 of the Constitution as the earlier legislation is Federal in nature and the later, obviously, falls in the Provincial sphere. It was also held that the reference to 1961-Ordinance or any Notification thereunder was neither relevant nor essential in that the definition of 'wages' in 1965, Ordinance was comprehensive enough to include the special allowance. Paras. 16 and 17 of the judgment in appeal read thus: "(16)Learned counsel for the petitioners pointed out that if the amount of allowance admissible under Punjab Employees Special Allowance (Payment) Act, 1988 is added to the wages/remuneration as determined under the Provincial Employees Social Security Ordinance, 1965 most of the workers on account of increase of the amount of wages beyond the maximum limit would stand excluded from the purview of the said Ordinance in respect of whom no contribution could be demanded under the said Ordinance. This being also a question of fact, therefore, should be raised under sections 57 and 58 of the Ordinance which as already observed are adequate and efficacious remedy.
'(17)The upshot of the aforementioned discussion is that allowance payable under the Punjab Employees Special Allowance (Payment) Act, 1988 can be considered as part of wages of a worker under the Provincial Employees Social Security Ordinance, 1965 for making payments on account of Social Security Contribution under the said Ordinance, therefore, writ petitions have no force which are hereby dismissed with no order as to costs'.
6. Leave Grant Order, in these cases, reads thus: "Leave to appeal is granted to consider whether the special allowance being paid to a workman in pursuance of the provisions of the Punjab Employees Special Allowance (Payment) Act, 1988 is to be treated as part of his wages for the purpose of computing the contribution which his employer is liable to make under the Social Security Ordinance, 1965, despite the specific exemption granted by section 8 of the aforementioned Act. The interim order already made on 17-1-1996. to continue during the pendency of the appeals on the same terms."
7. Hence these appeals.
8. Messrs Muhammad Akram Khawaja, Advocate Supreme Court, Malik M. Rafiq Rajwana, Advocate Supreme Court and Imitiaz Rashid Siddiqui, Advocate High Court (with special permission of the Court) have argued the matter on behalf of the appellants. Between themselves, all the learned counsel have relied upon Zain Packaging Industries Limited, Karachi v. Abdul Rashid and 2 others (1994 SCMR 2222) and Messrs Gadoon Textile Mills and 814 others v. WAPDA and others (1997 SCMR 641) to contend that the definition of 'wages' in the respective enactments has to apply to all causes arising under the said enactments {Zain Packaging Industries Limited, Karachi (supra)} and that Presidential Order No,4 of 1975 does not effect the Provincial status of the olden era {Messrs Gadoon Textile Mills (supra)}. According to the learned counsel, 1989-Act being later enactment the same is to prevail over 1965-Ordinance. Mr. Imtiaz Rashid Siddiqui, appearing with special permission, was also of the view that as item 'labour' was one of the Provincial Subjects in 1962- Constitution but as the said item now stands included in the Concurrent List' and as under Article 268 of the Constitution the term "appropriate legislatures" has been used, the result is that in the process of adaptation, no law whatsoever appears to have been made by the Federal Legislature.
Thus, the Provincial legislation afore-referred is holding the field up to date.
9. Contrarily, M/s A.K. Dogar and M. Arshad Malik, learned counsel appearing on behalf of the respondent-authorities have controverted the pleas raised by the learned counsel for the appellants and contended that the purpose of the law being beneficial to the employees of the appellants and as the employers are also making contribution in this process, the Federal Law has to prevail over the Provincial Law. Mr A.K Dogar supported the impugned judgment generally and specifically relied upon para.4 thereof, which is to the following effect: "(4) The argument as presented appears to be ingenious but not tenable on close scrutiny. The Punjab Employees Special Allowance (Payment) Act, 1988 is a Provincial Statute whereas West Pakistan Minimum Wages for Unskilled Workers Ordinance, 1969 and Social Security Ordinance, 1965 when originally promulgated were no doubt also provincial statutes because at the relevant time under the Constitution these matters fell within the exclusive domain of the Provincial Legislature having not been included in the Federal Legislative List."
Mr. M. Arshad Malik was of the view that Messrs Gadoon Textile Mills (supra), pressed into service by the learned counsel for the appellants in support of the appeals, in fact helps the respondent- authorities. He also sought support from National Embroidery Mills Ltd. and others v. Punjab Employees' Social Security Institution (1993 SCMR 1201 for the proposition that the definition of wages' includes remuneration for services and that this cause squarely falls within the category of beneficial legislation and none of the appellants has a case to plead, in these appeals.
10. Before proceeding with the discussion on the respective claims made by and on behalf of the parties, it will be beneficial to say a word or two in respect of legislation by respective legislatures in a Federal set-up. In a unitary form of Government, all the legislative powers, of necessity, vest in the legislature of the given country. In the federal form of Government, however, the legislative powers vest in the respective legislatures in line with the dispensation under the Constitutional- document/concerned.
CENTRAL AND PROVINCIAL LAW MAKING POWERS UNDER 1962 CONSTITUTION.
11. The dispensation in operation in line with Article-131 of 1962-Constitution, provided for the Central Legislature to have "....exclusive powers to make laws (including laws having extra-territorial operation) for the whole or any part of Pakistan with respect to any matter enumerated in the Third Schedule." It was under Article 132 of 1962 -Constitution, that a Provincial Legislature had the powers to make laws for "..the Province, or any part of the province, with respect to any matter other than a matter enumerated in the Third Schedule." As there was no item relating to 'labour' in the Third Schedule of 1962-Constitution, therefore, only a Provincial Legislature was possessed of the powers to make laws on, among others, 'labour'.
SUBJECT MATTER OF FEDERAL AND PROVINCIAL LAWS AND THE POWERS OF CENTRAL AND PROVINCIAL LEGISLATURES TO MAKE LAWS UNDER 1973-CONSTITUTION.
12.The dispensation under the Constitution of the Islamic Republic of Pakistan, 1973 consists of two legislative lists i,e, (i) Federal Legislative List Part-I [consisting of 59 items] and Part-II consisting of 8-items], and
(iii) Concurrent Legislative List {consisting of 47-items) in the Fourth Schedule.
13.It is in the spheres of distribution of legislative powers in a federal set up that a conflict of sorts between the legislation by the Federal-Central Legislature and Provincial/State Legislature can arise for resolution by the Judiciary. The question which arises for consideration in these appeals, to begin with, relates to the effect of legislation by the Federal and Provincial Legislatures, respectively in the sphere of 'labor'. Put differently, it would be for the Courts to consider the effect of both types of legislations if the respective Legislatures have chosen to make laws on the subject of 'labor' falling, within the Concurrent Legislative list, Item No,26 whereof deals with ....Welfare of labor; conditions of labor provident funds: employers' liability and workmen's compensation, health, insurance including invalidate pensions, old age pensions".
14.Articles 141,142 and 143 of 1973 Constitution respectively deal with (1) extent of Federal and Provincial Laws (2) subject matter of Federal and Provincial Laws and (3) inconsistency between Federal and Provincial Laws. These Articles read thus: "(141) Extent of Federal and Provincial laws.--Subject to the Constitution, Parliament may make laws (including laws having extra-territorial operation) for the whole or any part of Pakistan, and a Provincial Assembly may make laws. for the province or any part thereof.
"(142) Subject-mattter of Federal and Provincial laws.--Subject to the Constitution- (a)Parliament shall have exclusive power to make laws with respect to any matter in the Federal Legislative List; (b)Parliament, and a Provincial Assembly also, shall have power to make laws with respect to any matter in the Concurrent Legislative List; (c)a Provincial Assembly shall, and Parliament shall not, have power to make laws with respect to any matter not enumerated in either the Federal Legislative List or the Concurrent Legislative List; and (d)Parliament shall have exclusive power to make laws with respect to matters not enumerated in either of the Lists or such areas in the Federation as are not included in any Province.
"(143) Inconsistency between Federal and Provincial laws, If any provision of an Act of a Provincial Assembly is repugnant to any provision of an Act of Parliament which Parliament is competent to enact, or to any provision of any existing law with respect to any of the matters enumerated in the Concurrent Legislative List, then the Act of Parliament whether passed before or after the Act of the Provincial Assembly, or, as the case may be the existing law, shall prevail and the Act of the Provincial Assembly shall, to the extent of the repugnancy, be void."
It may be reiterated that under Article 141 (ibid) [(Majlis-e-Shoora (Parliament)] may make laws for the whole or any part of Pakistan and a Provincial Assembly may make laws for the Province or any part thereof. Under Article 142 (ibid) Majlis-e-Shoora (Parliament) has exclusive powers to make laws with respect to any matter in the Federal Legislative List and [Majlis-e-Shoora (Parliament)] and a Provincial Assembly also have powers to make laws with respect to any matter in the Concurrent List. Under clause (c) of Article 142 (ibid) a Provincial Assembly shall and [Majlis- eShoora (Parliament)], shall not, have power to make laws with respect to any matter"...not enumerated in either the Federal Legislative List or the Concurrent Legislative List' . Further, in the event of any inconsistency between the Federal law and the Provincial Law, the mandate of the Constitution, as contained in Article 143 (ibid) is that "...then the Act of IMailis-e-Shoora (Parliament)1, whetherjassed before or after the Act of the Provincial Assembly, or, as the case may be, the existing law, shall prevail and the Act of the Provincial Assembly shall, to the extent of the repugnancy, be void" (Underlining is for emphasis).
15. The Presidential Order 4 of 1975 was issued by the President in the exercise of his powers under Article 268 of the Constitution of the Islamic Republic of Pakistan, 1973 which Article reads thus: "268. Continuance in force, and adaptation of, certain law.--(1) Except as provided by this Article, all existing laws shall, subject to the Constitution, continue in force so far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature.
(2) The laws specified in the Sixth Schedule shall not be altered, repealed or amended without the previous sanction of the President.
(3) For the purpose of bringing the provisions of any existing law into accord with the provisions of the Constitution (other than Part II of the Constitution), the President may by Order, within a period of two years from the commencing day, make such adaptations, whether by way of modification, addition or omission, as he may deem to be necessary or expedient, and any such order may be made so as to have effect from such day. not being a day earlier than the commencing day, as may be specified in the Order.
(4) The President may authorise the Governor of a Province to exercise, in relation to the Province, the powers conferred on the President by clause (3) in respect of laws relating to matters with respect to which the Provincial Assembly has power to make laws.
(5) The powers exercisable under clauses (3) and (4) shall be subject to the provisions of an Act of the appropriate Legislature.
(6) Any Court, tribunal or authority required or empowered to enforce an existing law shall, notwithstanding that no adaptations have been made in such law by an Order made under clause
(3) or clause (4), construe the law with all such adaptations as are necessary to bring it into accord with the provisions of the Constitution.
(7) In this Article, 'existing laws' means all laws (including Ordinances, Orders-in-Council, Orders, rules, bye laws, regulations and Letters Patent constituting a High Court, and any notifications and other legal instruments having the force of law) in force in Pakistan or any part thereof, or having extra-territorial validity, immediately before the commencing day."
SUBJECT OF ADAPTATION BY WAY OF MODIFICATIONS AND ADDITIONS UNDER (I) 1956-CONSTITUTION AND (II) 1962-CONSTITUTION:
16. (I) Under 1956 Constitution: The process of 'adaptation' has been the subject-matter of couple of precedents in the wake of the partition of the Sub-Continent and thereafter. It was in the case of Zain Noorani v. Secretary of the National Assembly of Pakistan (PLD 1957 (W.P.) Karachi 1) that the extent of the process of adaptation was discussed, as below: "No authority has been cited by the learned Attorney-General to show that adaptation of the Constitution is permissible even where difficulty has arisen solely because of the non-observance of any particular provision of law. Moreover, a distinction has to be drawn between 'adaptation' and 'amendment'. The Constituent Assembly had drawn a distinction between 'amendment' and 'adaptation'. Under Article 216 'the Constitution or any provision thereof may be amended or repealed by an Act of Parliament', while Article 234 speaks only of adaptation whether by way of modification, addition or omission'. 'To amend' means 'to free from faults; correct; to make alterations', while "to adapt' means 'to fit; to make suitable; to alter so as to fit for new needs'. It may be conceded that amendment in a Constitution is introduced because of some changed circumstance, but then, as a rule, amendment is not introduced in order to reconcile different provisions of the Constitution or to bring the Constitution in line with any other law, while the object of adaptation is to fit some provision of the Constitution with another provision of the same, or with any other law. In my opinion, the so-called modification introduced in Article 141 of Constitution is not an adaptation, but an amendment of the same by introducing some new proviso to the same."
(II) Under 1962 Constitution: In the case of Muhammad Abdul Hague (Member, National Assembly of Pakistan) v. Fazlul Quader Chowdhury (Minister, Government of Pakistan) and two others (PLD 1963 Dacca 669) the provisions of Article 224(3) of 1962--Constitution were dealt with by a Full Bench of the erstwhile Dacca High Court, which read thus: "At any time before the commencing day or before the expiration of three months after the commencing day, the President may, for the purpose of removing any difficulties that may arise in bringing this Constitution, or any Provision of this Constitution, into operation (whether in respect of the elections referred to in clause (2) of this Article or in any other respect) direct, by Order, that the provisions of this Constitution shall, during such period as is specified in the Order, have effect subject to such adaptations whether by way of modification, addition or omission as he may deem to be necessary or expedient."
Paras. 53 to 58 of the judgment in the precedent case read thus: "53The first question that strikes us is, what is the import of the term 'adaptation' in the context of the present Constitution as distinguished from the term 'amendment'? A Constitution is a solemn and sacred document of seminal and supremely consequence, partaking the nature of almost scriptura sanctity embodying, as it usually does, the final will and testament of the sovereign authority that resides in the people and providing the manner and norms of the Government of a nation. It therefore, assumes something of the immutability of the laws of the Medes and the Persians. It is not subject to easy change which is usually effected by a special and somewhatdifficult process. In the present Constitution the provisions with regard to 'amendment' of the Constitution have been enumerated in Articles 208 to 210. We may note that it requires a two-thirds majority of the Legislature to effect an amendment in the Constitution.
"54Article 224(3), on the other hand, deals with 'adaptation'.
Although 'adaptation' is in a sense, amendment, the Constitution recognizes a distinction between the expression 'amendment' and the term 'adaptation'. We may discuss a few cases which illustrate the difference.
"55. In the case of Punjab Province v. Daulat Singh (AIR 1941 Lah. 182) Dalip Singh, J., delivering the judgment of the Full Bench, has observed at page 184 of the report as follows: 'It appears to me that all that section 293 enacts is a power given to His Majesty in council to adapt acts already in force to bring them into accord with the provisions of the Government of India Act and what is contemplated is formal or consequential amendment arising in the Act due to the passing of the Government of India, Act. I do not think that section 293 means that if His Majesty has made any Act the subject of an Adaptation Order, then that Act ipso facto becomes valid even though its provisions conflict with the provisions of the Government of India Act.'
'56.In the case of Sajawal Baksh v. Muhammad Hussain (AIR 1943 Lah. 233) Abdul Rashid, J., (as he then was) has observed at page 236 of the report as follows: "In my opinion, this contention is without any force. Sections 292 and 293 save the operation of the existing laws of India which were in force when Part III, Government of India Act, came into operation. Section 293 deals with formal adaptations and modifications which had to be made in a large number of Acts in force in India in order to bring the Phraseology used in the Government of India Act. Section 293 cannot, therefore, override the provisions of section 238, Government of India Act. (The Italicised have been done by us).
"57. In the case of Ziaul Huq v. Government of West Pakistan (PLD 1956 Lah. 358), M.R. Kayani, J. (as he then was) has, with reference to the same provisions of the Government of India Act, observed as follows: 'The meaning is that the Governor-General may for the purpose of adaptation of laws, make repeals of omissions from, addition to and modifications of any Act. It is equally clear that any alteration is to be made only for the purpose of adaptation of laws that is , if the laws existing on the date of integration do not suit one another or fit into one another, they will be made to fit...But where a function was entrusted to the Government, the transfer of that function to another authority would in no sense constitute a purpose which would be sub-servant to adaptation. The test of adaptation lies in the fact that, but for the alteration carried out, the law which has been altered will not be correctly applicable to the new surroundings."
"58. The distinction between 'amendment' and 'adaptation' may be stated thus: In a loose and popular sense, it may be permissible to say that adaptation is a kind of amendment; but the distinction which the Constitution has maintained is, that amendment is for all purposes. It may be made at any time and is usually permanent in character. It may, but need not be, temporary.
Adaptation is modification for a limited purpose and under Article 224(3) it is confined to a specific purpose."
While dealing with the question regarding continuation or otherwise and Ministers, whether Central or Provincial, who had joined the respective Cabinets with the assurance under the Removal of Difficulties (Appointment of Ministers) Order (No,XXXIV of) 1962, made by the President in the exercise of powers derived from Article 224 (3) (ibid), it was held that they ceased to be Members of the Assembly concerned. The judgment in Muhammad Abdul Haque (supra ) was unsuccessfully challenged in the Supreme Court in Mr. Fazlul Quader Chowdhry and others v. Mr. Muhammad Abdul Haque (PLD 1963 SC 486) and the following excerpts therefrom are to the point: "Another way of looking at the matter might be this. It is clear from a reading of Article 224 (3), that the principal duty laid upon the President and those working with him was to bring the Constitution and all its provisions into operation as an integral whole, without variation whatsoever. Being conscious that its provisions might not be adapted to every one of the vast range of physical and factual circumstances, obtaining in the country, and therefore, changes might be necessary in order to 'get it on the ground and working' (if a colloquialism might be permitted) a responsibility was placed on the President, to be exercisable only within a limited period, to make such adaptations as might be necessary to overcome maladjustments or difficulties that might appear.
This responsibility at the highest level , was given to vary provisions in the Constitution, not for the purpose of altering the Constitution itself, but in order that the Constitution as a whole should be brought into force. Viewed in that light, the provisions to be applied were (1) that which enabled the President to appoint persons to a Council of Ministers, and (2) the further provisions that Ministers should be included among holders of office profit in the service of Pakistan, and as such subject to a disability, namely, that they could not be members of any Assembly at the same time. These provisions had a very important propose namely, to bring into operation a Presidential form of Government, in which the Executive was to be completely separated from the Legislature. The major duty upon all concerned including the President was to bring these fundamental, provisions into operation. What has actually been done is that instead of implementing these basic provisions, they have been altered in a fundamental way so as to change the form of Government from the pure Presidential form -to an anomalous Parliamentary form. It is quite impossible to regard the operation as one in aid of bringing the integral provisions of the Constitution into operation."
"If the conclusion be that the adaptations made were not within the power, since their effect and purpose was to alter the very nature of the Constitution, the reason given for the change would seem to lose importance. The expression necessary and expedient' appears in the Preamble, as it does in clause (3) of Article 224 but in the latter clause, the necessity and expediency must be for the purpose of removing a difficulty of one of the expressed kinds. Here, the expediency and necessity were for producing an effect contrary to that clearly stated in the Constitution, and not for the- purpose of bringing the Constitution as it was granted to the country, into operation. The Preamble states that the members of the Assembly had expressed unwillingness to become Ministers if they were to cease to be members. Presumably as members, the gentleman in' question had taken an oath to 'preserve, protect and defend the Constitution' and their insistence that the Constitution should be altered before they became Ministers would seem not to have taken sufficiently into account the solemnity of that oath.
"The impression is clear and unavoidable that the ground of expediency was based on a desire to accede to the wishes of certain persons, probably a fairly small number of persons, but the Constitution was not intended to be varied accordance to the wishes of any person or persons.
Anything in the nature of 'respecting of persons' . unless provided by the Constitution itself, would be a violation of the Constitution, and if the Constitution were itself altered for some such reason, and that in a substantial, and not merely a machinery aspect, there would clearly be an erosion, a whittling away of its provisions, which it would be the duty of the superior Courts to resist in defence of the Constitution. The aspect of the franchise, and of the form of Government are fundamental features of a Constitution, and to alter them, in limine in order to placate or secure the support of a few persons, would appear to be equivalent not to bringing the given Constitution into force, but to bringing into effect an altered or different Constitution."
17.The word 'adaptation' has been defined in Aiyars' Judicial Dictionary 10th/1988-Edition as below: "Adaptation--Arrangement; transcription; the expression 'necessary adaptation' in section 18 (3)
Indian Independence Act, must mean alterations of the phraseology of an enactment in order to bring the enactment into accord with the changed Constitutional position. An adaptation order in the sense in which it is used, cannot take into consideration the political or economic situation existing at any particular time and bring an existing law into harmony with the needs of that situation. It can be used only for bringing the law into conformity with a changed Constitutional status and nothing more. In other words, only changes of form and not of substance in existing Indian Law could be brought about by an adaptation order. 'Necessary adaptation' means adaptations which have been rendered necessary on account of Constitutional changes in the country, changes which were incorporated in the Indian Independence Act and the modified Government of India Act, (Gulab Singh v. D.M., Dehra Dun, 1949 ALJ 587: AIR 1950 All 11: 51CR Li 269 (FB)."
18.At this juncture it may be noticed that the import of the a fore quoted case law as also dictionary meaning noted in the preceding paragraphs clearly brings it to the fore that the Constitutional mandate for 'adaptation' has to remain within the four-corners of 'adaptation' which is necessary to bring the enactment in line with the changed Constitutional position rather than take into consideration the political or economic situation, existing at any particular time. In this behalf, the following questions arise for consideration: (1)Was the adaptation of the Laws in question necessary at the time of issue of Order 4 of 1975?
(2)If the answer to the first question is in the affirmative, then, whether the Provincial Legislature could make legislation through 1989 Act?
(3)If answer to the second question is also in the affirmative, then, whether the non obstante clause in the latter enactment can be given any credence to?
As regards question No,1, it may be noticed that four Provinces were reestablished on account of the dissolution of West Pakistan Province under Presidential Order 1 of 1970. By virtue of Article 19 of Order No,1 (ibid), the then "existing laws" within the contemplation of Article 268 (ibid), continued to be applicable as Provincial Laws. With the promulgation of 1973-Constitution, issuance of an appropriate adaptation order with a view to bringing the relevant "existing laws" in conformity with 1973-Constitution, including the new dispensation reflected by placement of Item No, 26-above on the Concurrent Legislative List, was needed/required under the Constitution itself. By no stretch of imagination Order 4 of 1975 can be taken anywhere near the process regarding amendment of the Constitution. Attending to question No,2, it may be reiterated that as Item No,26 finds mention in the "Concurrent Legislative List", the [Majlis-e-Shoora (Parliament)] and any one of the Provincial Legislatures can legislate thereon, as provided in Article 142 (ibid), notwithstanding the potentialities of a dispute arising in future on account of the passing of appropriate legislation on the same subject by [Majlis-e-Shoora (Parliament)]. The answer to question No,2 is also in the affirmative, Dealing with the last question, it is again reiterated that the appellants had sought relief from the High Court by pleading that the raising of demand from them for 'social security contribution' on the amount of "wages", "including special allowance", could not be legally made in .that the liability to pay social security under 1965-Ordinance is inextricably linked with 'minimum wages' as determined from time to time under 1961-Ordinance. The liability was to be finalized, according to the appellants, by excluding the special allowance in terms of non Obstante clause in 1989-Act. However, to succeed in this appeal, it is the burden of the appellants to show that not only that the Provincial Legislature was possessed of the power to makes law on the subject above mentioned but also that such law is not in conflict with any Federal Law, as provided in Article 143 (ibid).
19. A Full Bench of the Lahore High Court, Lahore in Water and Power Development Authority and others v. Mian Muhammad Riaz and another (PLD 1995 Lahore 56) dealt with the question of inconsistency between the Electricity Act Punjab Amendment) Ordinance (No, XXI of 1971) and the Electricity Act (Amendment) Ordinance (No, LXII of 1979), amending provisions of section 24(2) of the Electricity Act (No, IX of 1972) which was resolved, in terms of Article 143 (ibid), in favour of the Federal Statute, as below: "Thus, by virtue of Article 143, Central Law is to prevail where law of the Provincial Legislature in respect of matters enumerated in Concurrent List is repugnant to it. Article 143 is attracted only if the Provincial Law is repugnant to the law of [Majlis-e-Shoora (Parliament)] which means that the two cannot stand together. (See Zaver Bhatti v. State of Bombay, AIR 1954 SC 752). A Provincial Law may be repugnant in any of the following ways:
(i) Where there is direct conflict between the two provisions;
(ii) Though there may not be any direct conflict between the two statutes, but it is evident that the Parliament intended its legislation to be a complete and exhaustive Code relating to the subject, in such a case it shall be taken that Central Law has replaced the Provincial Law relating to the said matter. (State of Asam v. Harizon Union AIR 1967 SC 442).
"In some cases it has been held that even where Central Act is not exhaustive, repugnancy may arise if it occupies the same field as the Provincial Act. (See Tika Ramji v. State of Uttar Pradesh)
(AIR 1956 SC 676) and Deep Chand v State of U.P.(AIR 1959 SC 648).
"The two provisions may conflict with each other where one cannot be obeyed without disobeying the other. Even if obedience to each of them may be possible without disobeying the other, yet two enactments may be inconsistent, e.g. when it takes away a right conferred by the other even though the right be one which might be waived or abandoned without disobeying the statute which conferred the right. See Mangtulal v. Radhashayam (AIR 1953 Pat. 14). So, it may also arise where both laws operate in the same field and the two cannot stand together. The Supreme Court in the case of Chief Secretary, Government of East Pakistan v. Muslahuddin Sakdar (PLD 1957 SC (Pak.) 1(8) observed that, 'a reference to sub-Article (2) of Article 110 of the Constitution of 1956 (now Article 143 of the 1973 Constitution) will show, an Act of Provincial Legislature in the concurrent field is hit to the extent that the subject in question is already covered by legislation. It is not void merely by reason of being an enactment in the concurrent field, it is only void for lack of assent to the extent of repugnancy. Again the Supreme Court in the case of Malhi Khan v. Member, Board of Revenue (PLD 1991 SC 824) noticed the effect of Article 143 of the Constitution as under: 'It is clear that M.L.R. is a Federal Law and Punjab Pre-emption Act, 1913, is a the Provincial Law and that under Article 143 of the Pakistan Constitution, 1973, if any provision of an Act of the Provincial Assembly is in conflict with any provision of a Federal Law, then the Federal Law shall prevail and the Provincial Law shall, to the extent of the repugnancy or conflict, be void.'
"See also Kashif Nadeem alias Pappi v. The State (1992 PCr.LJ 1799). Applying the criteria and test a repugnancy noted above it is apparent that the provisions of subsection (2) of section 24 as contained in the Central Law manifestly supersede the provisions on the same subject contained in subsection (2) as enforced by the Provincial Law. Both these provisions cannot stand together as the one conferred right of appeal whereas the other took away the said right. Both the provisions as occupy the same field, the provisions of the Central Law have to prevail by virtue of Article 143 of the Constitution."
20.Moreover, there is no dearth of authority for the proposition that the doctrine of occupied field is concomitant of the larger doctrine of pith and substance and incidental encroachment under the doctrine of pith and substance with all its concomitants, postulates for its applicability on a competition between Federal legislation and Provincial legislation and it would be erroneous to invoke the doctrine where there is no such competition, merely because a Provincial law conflicts with another law which has not been passed by the Federal Legislature but deals with a matter in the Federal List. Similar is the case where a Federal statute provides the Provincial Government may extend the operation of a law to any part of the Province and the legislation is brought into operation by the Provincial Government, the law does not lose its Federal character and does not become invalid when it comes into conflict with another Federal Law. See Sayyid Abul Ala Maudoodi and others v. The Government of West Pakistan and others (PLD 1964 SC 673) and Tamizuddin Ahmed v. The Government of East Pakistan (PLD 1964 Dacca 795). It may also be added that Article 143 (ibid) does not apply to the resolution of inconsistency between two "existing laws", in that it applies only when their is a conflict between a Federal law passed under the Constitution and an existing law, whether Provincial or Federal. In such a case, if the Federal law is passed with respect to a matter in the Federal List or Concurrent List, it would be intra vires the Federal Legislature and as regards the question of its repugnancy to an "existing law", the Federal law would prevail on the principle of repeal by implication which rests on the principle that if the subject-matter of the latter legislation is identical with that of the earlier one, then, the earlier law stands repealed by the latter enactment. Viewed in this perspective, there is no force in the arguments advanced by the learned counsel for the appellants that under Section 8 of 1989-Act they are not bound to contribute by treating their special allowance of Rs,450 as part of the wages of the' employees working with the appellants-organizations.
21.Looked at from this angle, there appears to be force in the contention being raised by Mr.M.
Arshad Malik that Messrs Gadoon Textile Mills (supra), does not advance the case of the appellants. His reliance on National Embroidery Mills Ltd (supra) is also well-placed. The learned Judge in Chambers was right in holding that reference to Minimum Wages Ordinance-1961 has been made in 1989-Act ... only to provide that the amount of wages to be determined under the Act for the purpose of making payments on account of Social Security Contribution should not in any case he less than the amount payable as remuneration under the said Ordinance. This provision was made obviously to limit the power of the authority under 1965-Ordinance as regards determination of amount of wages for the purpose of Social Security Contribution, not below the amount payable as wages under the Minimum Wages Ordinance, 1961." (Underlining is for emphasis).
22.Para. 6 of the judgment in appeal reads thus: "6.There is no dispute that these were the existing laws within the contemplation of the expression 'existing laws' as used in Article 268 of the Constitution. Since these laws when promulgated were Provincial LaWs, therefore, after the dissolution West Pakistan Province under Presidential Order No, 1 of 1970 and Establishment of four. Provinces they continued to be applicable in these Provinces as Provincial Laws by virtue of Article 19 of the said Order."
Both the parties have not disputed the observations quoted above. However, the observations made in para.7 of the judgment in appeal need consideration in view of the case law on the impart of 'adaptation' as above. It was observed that 1965-Ordinance as also 1961-Ordinance ".. should hence forth be converted into Federal Laws...", the provisions of 1989 Act being in conflict with the Federal Law have to field in favor of the latter in view of Article 143 (ibid). It is ordered accordingly.
23.Before parting with this judgment, two more observations may be made. Firstly, that it is not the case of the appellants that the purpose of the law in question is not beneficial to their employees or that they are not making requisite contribution/s in this process. Secondly, that the learned Judge in Chambers had attended to all the pleas raised on behalf of the appellants and /the fears expressed by them then, were repelled with the observation that the questions in relation to the exclusion or otherwise of the employees from the purview of 1965-Ordinance "... should be raised under sections 57 and 58 of the Ordinance which as already observed are adequate and efficacious remedy." (Underlining is for emphasis).
24.Resultantly, these appeals fail and are hereby dismissed leaving the parties to bear their respective costs.