1. ' These are five appeals out of which two appeals viz M.As. Nos.20 and 26 of 1992 have been filed by Sindh Employees Social Security Institution (hereinafter called the Institution) while three viz Appeals Nos.28 and 29 of 1993 and Appeal No.1 of 1995 have been filed by Modern Textile Mills Limited (hereinafter called the establishment) against the same judgment, dated 11-3-1992 passed by First Sindh Labour Court, Karachi, in Appeals Nos.4 and 5 of 1990 filed under section 59 of Provincial Employees Social Security Ordinance, 1965 by establishment against the institution whereby order, dated 17-3-1990 of Commissioner Sindh Employees Social Security Institution was set aside whereas M.A. No.1 of 1995 has been filed by the establishment against the decision, dated 13-12-1995 passed by Second Sindh Social Security Court, Karachi, In Appeal No.3 of 1991, hence these appeals.
2. ' The establishment in M.As. Nos.28 and 29 of 1993 have prayed to set aside the impugned order partially to the extent whereby by Director of Institution/Respondents No.3 has been authorised to re-assess the contribution if any payable by establishment whereas in M.A. No.20 of 1992 Institution in their appeals have prayed to set aside the impugned judgment, dated 11-3-1992.
3. ' The brief facts of the Appeals Nos.20, 26 of 1992 and 28, 29 of 1993 are that the Institution on checking of the Establishment record for the periods from October 1986 to September 1987 and from October 1987 to September 1988 detected that the latter had not paid contribution in respect of all employees working in or in connection with the business, consequently demand for payment of Rs.13,65,000 and Rs.9,56,700 for the said periods respectively was made from them whereas in Appeal No.1 of 1995 the demand of Rs.8,22,956.66 towards contribution for the period from October, 1988 to September, 1989 was made by the Institution to which the Establishment took-up the plea that they were not liable to pay contribution in respect of employees who were engaged by independent contractors to do the job of spinning, weaving, gray folding, pirn winding, etc. and raised a dispute before the Commissioner Sindh Employees Social Security Institution under section 57 of the said Ordinance and on the request of the Establishment the Commissioner of the Institution ordered for the rechecking of accounts thereafter the demand was reduced for the period from October, 1986 to September, 1987 to Rs.6,08,811 and for the period from October, 1987 to September, 1988 to Rs.9,36,855 and for the period from October, 1988 to September, 1989 demand was reduced to Rs.2,01,050.08 and the complaint of the Establishment was rejected by the Commissioner of Institution as per order, dated 17-3-1990 and 13-8-1991 against which order, the Establishment filed Appeals Nos.4 and 5 of 1990 and 3 of 1991 before the Sindh Social Security Courts wherein the Establishment again took-up the plea that they were not liable to pay contribution in respect of employees engaged through independent contractors and the said Appeals Nos.4 and 5 of 1990 were heard and allowed by the Court No.1 as per impugned order, dated 17-3-1990 holding that the Establishment was not liable to pay contribution in respect of employees working in connection with the work of notified establishment as persons who did the job were employee of independent contractors whereas Appeal No.3 of 1991 was dismissed as per order, dated 13-8-1991. The. Establishment have filed Appeals Nos.28 and 29 of 1993 being partially aggrieved to the impugned order whereby- the Institution was permitted to re-assess the contribution if any payable by the Establishment whereas Appeal No.1 of 1995 was filed against the order, dated 13-8-1991 passed by the Social Security Court No.2 wherein applications under Order 6, Rule 17, C.P.C. have also been made with a prayer to permit the said establishment to add additional grounds in the memo. of appeals.
4. ' I have heard the learned counsel for the parties and perused the record and proceedings of the case.
5. The contention of the appellants learned counsel for the Establishment in M.As. Nos.28 and 29 of 1993 and 1 of 1995 while for the respondents in Appeal Nos.20 and 26 of 1992 is that the Additional grounds which are sought to be added in the memos of appeal are legal ground therefore same could be permitted to be added even at the stage of second appeal. Reference is made to Haji Abdullah Khan v. Nisar Muhammad Khan and others (PLD 1965 SC 690(d), (ii) Allah Bux v. Jand and others (PLD 1962 Karachi 317). The counsel for the Institution has opposed the said applications that same are not maintainable considering that said pleas were not raised earlier and the present stage of second appeal same could not be permitted. He has placed reliance upon Jiwan Shah and others Mst. Fateh Bibi and another (AIR 1921 Lahore 228).
6. ' The other contentions of learned counsel for the Establishment are (i) that the Institution did not lead any evidence but only filed written statement and there was nothing on record to rebut the statement of the Establishment made in the complaint (ii) that the Establishment would not be liable to contribution to the institution in respect of employees of the independent contractors who were themselves an "establishment" though not notified as yet, therefore, contribution by the principal viz establishment for the contractors would not arise (iii) that under subsection (8) of section 20 of Sindh Social Security Ordinance in case of construction work, owner of the building has to guarantee the payment of contribution by the contractor which would mean that owner would only guarantee the payment of contribution while the initial liability of contribution would be of the contractor and it would be only in case latter failed to pay contribution then as per guarantee, owner of the building would be liable for contribution b,ut in the instant case no demand was made by the Institution in respect of the contribution from the contractors consequently demand initially made from the Establishment was not legal and justifiable and (iv) that under Provincial Employees Social Security (Employer Returns and Records) Regulation, 1967 vide section 2(c)(d) "Pay Roll and Contribution Schedule" are the required documents of the Establishment from which contribution is to be ascertained but the institution has made demand only on the basis of the ledgers and accounts books as per Annexures 'A', 'C', 'D' and 'E' contained in the record and proceedings of complaint Cases Nos. 3 and 4 of 1991 consequently demands based on the said data was not permissible under the rules, considering that the accounts and ledger books would not shows as to how many there were employees/workers and what were their wages, He has placed reliance upon (i) Abdul Ghaffar Virani v. Messrs Roche Pakistan Limited, Karachi (1991 PLC 657), (ii) Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others (PLD 1972 SC 25), (iii) Messrs. Khawaja Auto Cars Limited v. Muhammad Yousuf and others (1991 SCMR 2223) (iv) Farid Ahmad v. Pakistan Burmah-Shell Limited and others (1987 SCMR 1463(c)), (v) Mian Munir Ahmad v. The State (1985 SCMR 257(j)), (vi) The Resident Manager, FFC v.
7. Punjab Labour Appellate Tribunal, Lahore and 2 others (1991 PLC 908), (vii) Sindh Employees' Social Security Institution v. Consolidated Sugar Mills Limited (1989 SCMR 888(b), (viii) Messrs Volkervam (Pakistan Limited v. Sindh Employee's Social Security Institution (1991 SCMR 2361), (ix) Messrs.
8. Jupiter Textile Mills Limited, Karachi v. Director, Hyderabad Directorate, Hyderabad and another (1997 PLC 473), (x) National Embroidery Mills Limited and others v. Punjab Employees' Social Security Institution (1993 SCMR 1201) and (xi) Sindh Employees' Social Security Institution v. Prestige Fabrics Limited (PLD 1987 Karachi 124).
9. ' Learned counsel for the institution has argued that the main point involved in these appeals would be whether the employers (establishment) are legally bound to pay contribution in respect of employees engaged through contractors. He submitted that the every same point was answered in a case reported in Sindh Employees' Social Security Institution v. Consolidated Sugar Mills Limited (1989 SCMR 888 at pages 891, 894 and 895). He further submitted that the establishment has filed the appeals only against the part of the judgment whereby the institution has been authorized to make reassessment in respect of the contribution if any payable by the establishment whereas checking of record was not challanged by the establishment before the Social Security Court but only liability of the' establishment was challenged which was set aside by learned Social Security Court against which decision the institution has appealed. He further submitted that non-examination by the institution of the persons filing the written-statement was not fatal as only legal pleas were to be considered and the same were replied in the form of comments before the Courts below and further provisions of other laws referred in the appeals and argued could not he the basis for considering the matter 'under Social Security Ordinance 1965 because other laws being Labour Laws. He submitted that any exposition of law in a judgment has to be read in context of issue raised therein and the facts of the case from which such issue arise.
10. Reliance is placed on Sindh Employees' Social Security Institution v. Messrs Central Cotton Mills Limited (1990 PLC 338). He submitted that contractor could be a different institution under the other laws but the other laws have no relevancy or applicability to the instant case which would be governed by the laws as laid down in Provincial Sindh Social Security Ordinance, 1965 where under subsection (9) of section 2 "employer" has been defined as "mean in case of works executed or undertakings carried on by any contractor or licensee on behalf of State, the contractor or licensee working for the State, and in every other case the owner of industry, business undertaking or establishrtient in which employee works and includes any agent, manager or representative of owner" and further that so far the charging of contribution by the owner/establishment has been provided under section 20 of the Provincial Employees Social Security Ordinance whereunder employer is only liable in respect of every employee whether employed by him directly or through any other person pay to the institution a contribution. Reference is made to Messrs Volkervam (Pakistan) Limited v. Sindh Employees' Social Security Institution (1988 PLC 909). He further submitted that agreements in Urdu at page 37 of R & P of Case No.4 of 1990 executed by the contractor for the establishment would show the nature of business assigned to the contractor by the establishment and further "employee" has been defined under subsection (8) of section 2 of the Provincial Social Security Ordinance and, the contribution is to be calculated by the officials of institution as provided under section 22 of the said Ordinance whereby the said official is entitled to inspect and examine any document or books in which entries made in the pay roll or contribution schedule are reflected and for that cash books and ledgers of the establishment would be relevant as from the checking/examination of the said cash books and ledger the entries made in the pay toll or contribution schedule could be verified and confirmed. Reference is made to Messrs pr.c Volkervam (Pakistan) Limited v. Sindh Employees' Social Security Institution (1991 SCMR 2361). He has also referred to Messrs Shahab Industries Limited v. Sindh Employees' Social Security Institution and another (1988 PLC 704) wherein the right of institution to demand inspection of documents to ascertain correctness of returns submitted by employer and to demand contribution found payable by him as a result of scrutiny was held to be not controlled by time limit prescribed by Regulation 8 of Provincial Employees Social Security (Employers Returns and Record) Regulation, 1967. Learned counsel for the institution has argued that, in fact, establishment has not disputed the amount of contribution as shown at pages 163, 349 and 353 of R & P of Case No.4 of 1990 but has challanged the liability of payment of contribution on behalf of the contractors. He referred to the cross-examination of the Personnel Manager of Establishment at page 355 of the above said R & P and stated that the establishment failed to produce contractors' record before the institution's officials and he also referred to the statement of establishment at page 87 Annexure A-9 of above said R & P. He also submitted that, in fact, establishment had shown less deposit towards the contribution to the institution whereas the institution has given more adjustment towards the contribution claim. He submitted that under the rules 7% of the wages are payable and it was to be seen whether the amount of contribution was calculated properly by the institution and employer has to pay the contribution under the law. He has referred to (i) Kohinoor Chemical Co. Limited and another v. Sindh Employees' Social Security Institution and Another (PLD 1977 SC 197 (d)) and (ii)
11. Messrs Consolidated Sugar Mills Limited v. The Sindh Employees' Social Security Institution (PLD 1991 SC 862(c)) whereunder payment of contribution is the obligation of the employer which is not dependent upon any action to be taken or initiated on the part of the institution considering that it was statutory duty irrespective of the demand being made by the institution. He in the end submitted that when the record was not produced by the establishment then it was at the option of the institution to calculate the contribution payable by the employer and in the instant case record was not produced, consequently the calculation was made on the basis of ledger and the account books. He also submitted that the appellant cannot be allowed to raise plea in the arguments after the limitation for appeal has expired. Reference is made to (i) Jiwan Shah and others v. Mst. Fateh Bibi and another (AIR 1921 Lahore 228) and (ii) Chandanmal v. Phool Chand (AIR 1952 Rajasthan 181).
12. ' Before dealing with the main appeals it would be necessary to dispose of the miscellaneous applications moved under Order 6, Rule 17, C.P.C. filed by the learned counsel for the appellants with a request that he may be allowed to add some more grounds to the appeals as the same being vital and legal to the disposal of the appeals.
13. ' Learned counsel has submitted as many as twelve grounds to be added in the main appeals. On perusal of these grounds it would appear that same were not raised before the two Courts below and the most of the said pleas would require evidence to appreciate the same, considering that only ground which was agitated before the two Courts below was that the appellants were not to liable to make payment of contribution to the institution as the workers were engaged by the independent contractors. It would also not be out of place to state here that Appeals Nos.28 and 29 of 1993 have been preferred against the common order, dated 11-3-1992 and the applications under Order 6, Rule 17, C.P.C. were filed on 10-11-1994 in the said appeals which were presented on 18-4-1992 when the period of limitation of thirty days has been provided for filing appeals under section 64 of Provincial Employes' Social Security Ordinance 1965, thus the said applications were filed more than two years after the period of limitation for filing the appeals expired. Besides, the pleas sought to be added would introduce a new case on which no evidence has been adduced or brought on record by the parties who were never at issue at the earlier stage in respect of the. said grounds and in case the said amendment applications are allowed, the appeals would have to be remanded which have been pending since long in respect of contribution for the periods 1987-88 and 1988-89 which would take another decade to the parties to litigate and get the matter settled.
14. Reference may be made to (i) Baboo Khan v. Municipal Committee, Murree and another (1969 SCMR 29), (ii) Mushtaq Ahmad and Ashfaq Ahmad v. Said Ahmad (PLD 1987 Azad J&K 57) and (iii)
15. Jewan Shah and others v. Faith Bibi and another (AIR 1921 Lahore 228). The facts of case Haji Abdullah Khan and others (PLD 1965 SC 690 (d)) are quite different and distinguishable to the facts of instant case as in the instant appeals if the additional grounds are allowed to be added to the memo. of these appeals, the same would require investigation of facts and the said grounds could not be met by mere allegations of facts but would need evidence, which too would cause prejudice to the other party and thus would defeat the end of justice whereas the cited case was of minority which was held to be a pure question of law not requiring any investigation into the facts. The facts of Allah Bux's case (PLD 1962 Karachi 317 (a)) are quite different and distinguishable to the facts of instant case. In the cited case a pure question of law was raised viz. "that the law of pre-emption has not been kept alive by the laws (Continuance In Force) Order, 1958) Presidential Order (Post Proclamation No.1 of 1958 and that in any case this laws came into conflict with Article 11 of the late Constitution, it was not a valid law hence the respondents could not be granted a decree for possession of land in dispute." However, their Lordships did not allow the said point as the same was devoid of any force and no useful purpose could have been served in permitting the appellants to raise the said objection.
16. In view of aforesaid reasonings I do not find merit in the 18 applications under Order 6, Rule 17, C.P.C. filed in ' Miscellaneous Appeals Nos.28 and 29 of 1993 which are hereby dismissed. ' The next contention of learned counsel for the appellants-establishment is that the institution did not lead any evidence but filed written-statement and there was nothing on record to rebut the averments of the establishment, made in the complaint.
17. ' The only contention of the counsel for the appellants before the two Courts below was that the establishment was not liable for the contribution of the institution for the workers engaged by the contractors independently. The said contention required the interpretation of law, laid down in the Ordinance consequently the same was denied in the form of written-statement/comments filed by the respondents. First Sindh Labour Court in the order, dated 11-3-1992 held that the establishment was not liable to contribution to the institution for the employees of the contractors whereas Sindh Labour Court-II Karachi held that under the Ordinance, owner of establishment was the employer and would be responsible and liable for the payment of contribution to the institution in respect of the employees (as defined under the Ordinance) no matter such an employee was appointed by him directly or through a contractor and such an employee would be under direct supervision and control of the contractor and would be paid by him. In the circumstances this being a plea/contention which required interpretation of section 20 and other relevant provisions of Provincial Employees' Social Security Ordinance 1965, no evidence was required to be adduced by the institution. The facts of cases (i) Mst. Khairun Nisa (PLD 1972 SC 25 (d)) and (ii) Khawaja Autos Cars Limited (1991 SCMR 2223 (h)) are quite different and distinguishable to the facts of instant case as in the cited cases factual pleas were raised in the written-statement which required evidence of the person who filed the written-statement in the case. In the circumstances I am of the considered view that non-examination of an officer of the institution in support of the comments/written-statement who stated that the establishment was liable to pay contribution even on behalf of employees employed by contractor independently under the law by itself would not alter the legal position in respect of liability of the establishment with regard to the payment of contribution of the employees of the contractors independently employed by him, if the law provided such liability to be incurred by the establishment.
18. ' The next contention of the learned counsel for the appellants is that the establishment would not be liable to the contribution to the institution in respect of the employees of the contractors who were themselves establishment though not notified as yet, therefore, contribution by principal/establishment for the contractors would not arise. I do not find substance in the said contention of learned counsel for the appellants.
19. ' Subsection (8) of section 2 of Provincial Employees' Social Security Ordinance has defined "employee" means any persons working, normally for at least twenty four hours per week, for wages in or in connection with the work of any industry, business undertaking or establishment, under any contract of service or apprenticeship, written or oral, express or implied but would not include the persons stated in clauses (a) to (f) of subsection (8) of section 2 of the said Ordinance whereas employer has been defined in subsection (9) of section 2 of said Ordinance. "Employer" means in the case of works executed or undertakings carried on by any contractor or licensee on behalf of the State, the contractor or licensee working for the State, and in every other case the owner of industry, business, undertaking or establishment in which an employee works and includes any agent or manager or representative of owner. Section 20(1) and (8) of the Ordinance runs:-- "(1) Subject to the other provisions of this Chapter, the employer, shall in respect of every employee, whether employed by him directly or through any other person pay to the Institution a contribution at such times at such rate and subject to such conditions as may be prescribed.
(8) In the case of construction work the owner of the building shall guarantee the payment of contributions by the contractor."
20. ' After perusal of above provisions of law it would appear that employer has been defined to mean the owner and the owner has been charged and made liable under section 20 of Social Security Ordinance for contribution to the institution even where the owner does not fall strictly within the definition of an employer as in the case of State undertaking or an owner of a plot over which one wants to get building constructed through contractor the liability under the Ordinance has been imposed on the State under subsection (9) and on the owner, of building under subsection (8) of section 20 of the Ordinance. The cases (i) Farid Ahmad v. Burma Shell (1987 SCMR 1463) and (ii)
21. Mian Munir Ahmad v. The State (1985 SCMR 257) are under the provisions of Industrial Relations Ordinance and are not under the Social Security Ordinance and the cited ases were not on the point of liability of the contractor towards the payment of contribution to the institution therefore, the said cases are not applicable to the instant appeals considering that it is well-recognized principle that any exposition of law in the judgment has to be read in the context of issues raised therein and the facts of the case from which such issues arise. Reference may be made to Sindh Employees' Social Security Institution v. Messrs Central Cotton Mills (1990 PLC 228) However, the case Sindh Employees' Social Security Institution v. Consolidated Sugar Mills Limited (1989 SCMR 888) is on all fours to the instant appeals pending for consideration wherein the plea raised before the Supreme Court was whether the Sindh High Court by its judgments, dated 5-12-1987 correctly held that the respondent was not under obligation under section 20 of Provincial Employees Social Security Ordinance 1965 (hereinafter referred to as the Ordinance) to make contribution to the institution in respect of employees engaged by the independent contractors for the purposes of executing its works on its premises. Their Lordships of Supreme Court answered the said question in the negative holding as under:-- "In this context of these definitions the charging provisions (section 20) leaves no manner of doubt or ambiguity. Employer has been defined to mean the owner and the owner has been charged under section 20 for contribution. Even where the owner does not fall strictly within the definition of an employer as in the case of State undertaking or an owner of a plot over which he wants to get a building constructed through the Contractor, the liability under the Ordinance has been cast on the State under subsection (9) and on the owner of the building under subsection (8) of section 20.
22. Such extensions cannot be interpreted as to imply the exclusion of other owners defined as employers but as including them within the charging provisions. Reading these provisions together the conclusion is inescapable that the owner of the industry is liable for employees engaged for his industry even through the contractor. The contention that the Contractor should be taken to be employer and not the owner, as expressed in the agreements with the contractors and made liable for the contribution, cuts across the scheme of the statute where it was intended by law to make the Contractor, the employer, the statute made provisions for it directly State undertakings-- section 2(9) or indirectly section 20(8) and section 20(9). By construction or interpretation the Courts were to introduce such contractors also as employers on the basis of contracts or otherwise, then the Court would be re-writing the law itself. Such an interpretation being in derogation of the express provision that 'in every other case' it is the owner who is to be the employer.
23. ' In the circumstances, the owner respondent is obliged to contribute to the Social Security Fund for employees engaged through the contractor. As to the satisfaction of the other requirements of law, viz., the minimum hours of work etc. we are leaving it to be sorted out in the first instance by the Institution itself if and when proper representation is made to it as required by law. The appeal is allowed with costs and the impugned judgments are set aside."
24. In view of aforesaid reasoning's and circumstances the appellants are liable under the law to make contribution to the institution/respondents for the employees engaged through the contractors and thereby find no force in the contention of learned counsel for the appellants.
25. ' The next contention of learned counsel for the appellants is that under the Provincial Employees Social Security (Employer Returns and Records) Regulation, 1967 vide section 2(c)(d) "Pay Roll and Contribution Schedule" are the required documents of the establishment from which contribution is to be ascertained but the institution has made demand on the basis of alleged ledger and accounts book consequently demand based on such data was not permissible under the rules. I do not find substance and merit in the said contention as well. Subsection (3) of section 22 of the said Ordinance runs:-- "If an employer fails to maintain records or to submit returns as required by Regulations, or otherwise fails to comply with the provisions of subsection (1) and thereby makes it difficult to ascertain the identity of persons required to be secured for the amount of contribution payable, the contribution shall be assessed on the basis of such evidence as the institution may find satisfactory for this purpose."
26. Admittedly in the instant cases of demand of the contribution by the institution from the appellants establishment on the complaint of appellants establishment cases were reassessed on the basis of record/evidence produced by the appellants-establishment where after the demands earlier made were reduced and the present demands stated were made, considering that the appellants establishment failed to produce the entire required record to the satisfaction of the respondents- institution, therefore, the demands made cannot be said to be in contravention of the rules.
27. Reference may be made to (i) Messrs Volkervam (Pakistan) Limited v. Sindh Employees' Social Security Institution (1991 SCMR 2361) wherein the Lordship of Supreme Court held that assessment of contribution made on inspection of the ledgers and books of accounts could not be said to be in violation of law and rules when the establishment failed to prove that the amount claimed was incorrect and further that the institutions officials would be entitled to inspect and examine any documents or books in which entries made in the pay role or contribution schedule were reflected stated consequently cash book, ledgers of the appellants-establishment would be relevant for examination of the said books containing entries in respect of the pay roll and contribution schedule which could be directly or indirectly checked and verified, (ii) Messrs Shahab Industries Limited v. Sindh Employees' Social Security Institution and another (1988 PLC 704) wherein the learned Single Judge of this Court observed that institution has a right to demand inspection of documents to ascertain correctness of returns submitted by establishment/employer and could make demand of contribution found payable by him as a result of scrutiny and further that the said right was not controlled by time limit prescribed under Regulation 8 of West Pakistan Employees' Social Security (Employees Return and Record) 1967.
28. ' In view of aforesaid reasoning's and circumstances and settled position of law I find no force and merit in the contention of learned counsel for the appellants. No other plea has been raised in these appeals consequently Appeals Nos.20. and 26 of 1992 filed by the respondents are allowed and the order, dated 11-3-1992 is set aside and Appeals Nos. 28 and 29 of 1993 and Appeal No.1 of 1995 are dismissed.
29. ' These are the reasons in respect of short order passed on 28-9-1998 in the above appeals.