' Brief facts out of which the present appeal arise are that the respondents paid contribution to the appellant under the provisions of Social Security Ordinance but thereafter did not discharge their liabilities qua the contributions under the provisions of the aforesaid Ordinance, the appellant issued demand notice for the recovery of the contribution amounting to Rs,22,620 for the period March, 1993 to November, 1994. Respondents filed complaint under the provisions of the Social Security Ordinance against the aforesaid demand notice on 17-12-1995. The competent authority dismissed the same vide order dated 4-3-1997. Respondents being aggrieved by the aforesaid order filed a revision petition which was also dismissed vide order dated 25-6-1997. Respondents have alternative remedy to agitate the aforesaid orders before the Social Security Court under section 61 of the Social Security Ordinance, 1965. Respondents did not file appeal under section 61 of the Ordinance and filed a suit for declaration with permanent and mandatory injunction consequential relief before the Senior Civil Judge who entrusted the same to the learned Civil Judge. Respondents also filed application under Order 39, Rules 1 and 2, C.P.C. Learned trial Court dismissed the application of the respondents vide order dated 15-10-1998. Respondents being aggrieved filed appeal before the District Judge Lahore who entrusted the same to the learned Additional District Judge, Lahore. Learned Additional District Judge accepted the appeal vide judgment and decree dated 18-2-1999. Hence this appeal.
2. Learned counsel for the appellant contended that the Provincial Employees' Social Security Ordinance, 1965 is a complete code and prescribed detailed procedure to resolve the controversies arising between the parties. He further contended that Social Security Institution had the exclusive jurisdiction to decide the questions and disputes arose by virtue of section 57 of the aforesaid Ordinance which reveals as under:- Decisions on complaints, questions and disputes.-If any complaint is received or any question or dispute arises as to---
(a) whether any person is a secured person within the meaning of this Ordinance; or
(b) the rate of wages or average daily wages of a secured person for the purpose of this Ordinance; or
(c) the rate of contribution payable by an employer in respect of an employee; or
(d) the person who is or was the employer in respect of a secured person; or
(e) any benefit and the amount and duration thereof; or
(f) any other matter in respect of any contribution or other dues payable or recoverable under this Ordinance; ' the matter shall be decided by the Institution, in such manner, and within such time as the regulations may provide, and the Institution shall notify its decision to the person or persons concerned, in writing, stating therein the reason or reasons for its decisions.
' Learned counsel for the appellant contended on the basis of the aforesaid provisions of law that such matters ought to be decided by the Institution in such manner and within such time as regulations may provide and the Institution would notify its decision to the person or persons concerned, in black and white, stating therein the reasons for its decision. He further urged that by virtue of section 58 of the aforesaid Ordinance (sic). It was argued that a review was competent of a decision rendered by the Institution, if new facts were discovered. Referring to the provisions of section 59 he further stated that any person aggrieved by a decision of the Institution, under section 57 or on a review under section 58 could appeal to the appropriate Court. Under section 61, the said Court had exclusive jurisdiction to hear and decide appeals from the decision of the Institution arising in the appropriate Social Security area. He further urged that section 62(4) reveals that an order of the Social Security is enforceable as if it was a decree of a Civil Court.
Aggrieved person against the decision by an order of the Social Security Court has another appeal as is envisaged by section 64 of the Ordinance. Learned counsel for the appellant contended that Chapter VI of the Social Security Ordinance prescribed a detailed special procedure for and set down a definite forum for all types of complaint and questions. Therefore, disputes and the pleas raised by the respondents in a suit were not different from those contained in section 57, the respondents instead of filing a suit should have adopted the course prescribed by the Ordinance.
He summed up his arguments that Civil Court has no jurisdiction to take the cognizance of the matter but the learned Additional District Judge did not advert to this aspect of the case, He further stated that in present case respondents have availed remedies provided under sections 57 and 58.
Therefore, the respondents have to agitate the same through appeal under sections 61 and 64 of the Ordinance.
3. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself. It is an admitted fact that specific procedure has been prescribed under the provisions of Social Security Ordinance qua each and every grievance but it is also admitted fact that the jurisdiction of the Civil Court has not exclusively barred by any provision of the aforesaid Ordinance. In case the jurisdiction of the Civil Court is exclusively barred by any special statute, even then the Civil Court has the jurisdiction to take the cognizance of the matter on the well known principle that it is axiomatic by now that the Civil Court being the Court of ultimate jurisdiction can challenge against any action or order passed by an administrative or quasi-judicial functionary which is coram non judice or without jurisdiction. I am fortified by the following judgments of the Honible Supreme Court:-
(i) PLD 1965 SC 671 (Abdul Latif's case)
(ii) PLD 1998 Lah. 49 (Ghulam Mustafa Khar's case)
(iii) PLD 1989 SC 26.
' The aforesaid proposition has been settled by the Hon'ble Supreme Court since 1960 in Zafrullah Ahsan's case PLD 1960 SC (Pak.) 113), and observed as under:-- "Where, the proceedings are taken mala fide and the statute is used merely as a cloak to cover an act which in fact is not taken, though it purports to have been taken, under the statute, the order will not, in accordance with a long line of decisions in England and in this sub-continent, be treated as an order under the statute."
It is pertinent to mention here in the present case, the respondents have specifically stated that act of the appellant was against the law and based on mala fides. It is also settled proposition of law that it is the plaint and not the written statement which determines the jurisdiction of the Court. It is also settled proposition of law that where the allegation of a party is that the action is nullity in the eyes of law, the Civil Court has jurisdiction to take cognizance, in such cases where statutory provisions have not been complied with and the action is not in accordance with the provisions and procedure prescribed under the statute. I am fortified by the judgment of the Hon'ble Supreme Court in Muhammad Latif's case PLD 1970 SC 180. Even otherwise judgment of the learned Additional District Judge is in accordance with the judgment of the Hon'ble Supreme Court (PLD 1970 SC 139).
4. In view of what has been discussed above, this appeal has no merit and the same is dismissed.