' Notification dated 1-11-1980 was issued by the Governor of Punjab in exercise of powers conferred by subsection ( ) of section 1 of the West Pakistan Employees Social Security Ordinance, 1965 (Ordinance No,X of 1965) whereby the establishment of the petitioner at Sialkot was brought within the purview of the said Ordinance and notification dated 15-9-1982 whereby the establishment of the petitioner at Islamabad was also brought within the purview of the said Ordinance w issued under the same provisions of law. In pursuance thereof, respondent No,1 issued a demand notice to the petitioner for payment of contribution. The petitioner took up the matter with respondent No,1 that Ordinance No, X of 1965 was not applicable to its establishment and also filed complaints before the Director, Social Security, which was dismissed on 7-8-1983 that the said Ordinance was applicable to the petitioner notwithstanding the application of Pakistan Essential Services (Maintenance) Act, 1952. An appeal was filed there against by the petitioner before the Social Security Court, which was dismissed on 8-3-1984 that the same was not competent. An appeal was filed thereafter, before the High Court (F.A.O. No, 96 of 1984), but was dismissed on 9-6-1984, on the ground that in view of the decision in M/s Standard Printing Press v. Sindh Employees' Social Security Institution (PLD 1978 Karachi 945), the institution being a Tribunal of limited jurisdiction, cannot adjudicate upon the constitutionality of the notification issued, by the Provincial Government under section 1(3) of the Ordinance. The petitioner has now sought to challenge the abovementioned notifications through this petition under Article 9 of the Provisional Constitution Order, 1981.
2. Through Writ Petition No,8897 of 1991, Pakistan Burmah Shell Limited has challenged notification, dated 22-12-1987 issued by respondent No,1 under section 1(3) of West Pakistan Employees Social Security Ordinance, 1965 (Ordinance No,X of 1965) whereby its Oil Depot at Mandi Town, Bhakkar was brought within the ambit of Ordinance No,X of 1965. Writ Petition No,188 of 1988 is also by Pakistan Burmah Shell Limited whereby a similar notification dated 2-7-1986 was challenged.
3. Since all these petitions proceed on common premises as to the interpretations of the relevant laws and vires of notifications issued under section 1(3) of Ordinance No,X of 1965 and the points arising therein are also common; the same are being disposed of by this single judgment.
4. It is the case of the petitioner that employment of petitioners companies have been declared essential under Pakistan Essential Services (Maintenance) Act, 1952 which takes care of the conditions of service of its employees and the said law has an overriding effect, the provisions of West Pakistan Employees Social Security Ordinance, 1965 (Ordinance No,X of 1965) have no application to their establishments or the, employees.
5. It is contended by the learned counsel for the petitioners that Pakistan Essential Services (Maintenance), Act 1952 being special law enacted for a particular class of employees as are of the petitioners has to prevail as against the provisions of Ordinance No,X of 1965, which is of a general nature. It is further contended that former being a Central Law is to prevail over West Pakistan Employees Social Security Ordinance, 1965, which is a provincial law. Article 143 of the Constitution is invoked in support of this contention. Reference to section 7-A of the Act is also made to contend that the provisions of the Act have an overriding effect, therefore, the provisions of Ordinance No,X of 1965 cannot be made applicable to the petitioners. It is also contended by the learned counsel for the petitioners that the conditions of service of petitioners companies are being regulated in pursuance of the provisions of Pakistan Essential Services (Maintenance) Act, 1952 and the rules framed thereunder i,e, Pakistan Essential Services (Maintenance) Rules, 1962 and the settlements arrived at between the Management and the Employees duly take care of the benefits which could be extended by the Social Security Institutions and its employees and workers unions were fully satisfied with the same. In support of their contention reference has been made to; (1) Kohinoor Chemical Co. Ltd., and another v. Sindh Employees Social Security Institution and another (PLD 1977 SC 197), Messrs Standard Printing Press v. Sindh Employees, Social Security Institution (PLD 1978 Karachi 945), Messrs Indus River Contractors, Tarbela v. Mr. Aziz Ahmad, Member, N.I.R.C. And another (PLD 1980 Peshawar 216), Pakistan Burmah Shell Ltd. v. Central Labour Commissioner and 5 others (PLD 1982 Karachi 35), Karachi Electric Supply Corporation Ltd., v.
National Industrial Relations Commission and another (PLD 1982 SC 113), Pakistan Television Corporation v. M. Babar Zaman and others (1989 SCMR 1549) and Neimat Ali Goraya and 3 others v.
Jaffar Abbas, Inspector/Sergeant Traffic through S.P. Traffic, Lahore and others (1996 PLC (C.S.)
878).
6. On the other hand, the learned counsel for the respondents contends that the West Pakistan Social Security Ordinance. No,X, 1965 is a beneficial law for the welfare of employees and can be made applicable under section 1(3) of the Ordinance to any establishment, which cannot be overrides by the provisions of Pakistan Essential Services (Maintenance) Act, 1952. It is contended that petitioners may be providing benefits and facilities to its employees at its option and discretion whereas under the Social Security Ordinance, there is compulsory provision for the same. He has relied upon a judgment dated 17-6-1974 passed in Writ Petition No,1015 of 1971 that the effect of law could not be avoided simply for the reasons that the employees were being provided benefits and facilities.
7. The points that have emerged for the disposition of these petitions relate to the content, import and application of the two laws i,e, Pakistan Essential Services (Maintenance) Act, 1952 and the West Pakistan Social Security Ordinance, 1965. In order to determine the extent, field of operation and their scope, the relevant provisions need to be examined. The Pakistan Essential Services (Maintenance) Act, 1952 by virtue of section 3 applies to every employment under the Federal Government or the class of employment which the Federal Government may be notification in the Official Gazette declare. Such a notification is, however; subject to the provisions of subsection (2) of section 3, which is reproduced hereunder:--
(2) No declaration under subsection (1) shall be made in respect of any employment or class of employment unless the Federal Government is of opinion that such employment or class of employment is essential:-
(a) for securing the defence or the security of Pakistan or any part thereof, or
(b) for the maintenance of such supplies or services as relate to any of the matter with respect to which the Parliament has power to make laws and are essential to the life of the community.
' Such a declaration, however, remains in force for a period of six months. It is case of the petitioners that they had been notified and declared as such even prior to the notification issued under section 1(3) of the Social Security Ordinance, 1965 and such notifications have been extended from time to time. By virtue of section 6 of the Act, the Federal Government is to regulate the wages and other conditions of service of persons or of any class of persons or empower the specified authority for that matter. By virtue of subsection (2) of section 6, the violation of the directions given by the authority is treated as an offence under the Act, the penalties for which are provided in section 7. Section 7-A of the Act gives it an overriding effect qua all other laws. Rules in exercise of power conferred by subsection (1) of section 6 of the Act have already been framed, called. The Essential Services (Maintenance) Rules, 1962. In Karachi Electric Supply Corporation Ltd. v. National Industrial Relations Commission and another (PLD 1982 SC 113) (supra), some of the provisions of the Act were examined by their Lordships in the context of termination of employee.
8. It may be noted that West Pakistan. Employees Social Security Ordinance, 1965 (Ordinance No,X of 1965) is a provincial law and by virtue of Federal Adaptation of Laws Order, 1975 (P.O. 4 of 1975) its nomenclature has been changed to Provincial Employees Social Security Ordinance, 1965. The provisions of the Ordinance have been examined in a number of cases. In the unreported judgment relied upon by the learned counsel for the respondents (Writ Petition No,1015 of 1971), application of Social Security Ordinance, 1965 to employees of Pakistan Tobacco Company Ltd.
Was considered by a learned Single Judge of this Court observing that the effect of law could not be avoided only "because the antecedent facilities are more beneficial". It was, however, not a case where the employment of the said company was not declared as essential service nor the provisions of Pakistan Essential Services (Maintenance) Act, 1952 were attracted to that case. In Kohinoor Chemical Co. Ltd., and another v. Sindh Employees, Social Security Institution and another (PLD 1977 SC 197), provisions of the said Ordinance were examined and it was noted that "once a notification has been issued under subsection (3) of section 1 of the Ordinance notifying the areas, classes of persons and industries or establishment to which the Ordinance is to apply, then the obligations of the employers spelt out in sections 20 and 21 came into play". It is further observed that "the stringent provisions contained in section 23 of the Ordinance are supplemented by further penal provision contained in section 66 thereof, which makes the failure to pay any contribution an offence punishable with imprisonment which may extend to three months or with fine not exceeding Rs,1,000 or with both. Here again, the penalty is incurred on account of the failure to pay any contribution which the person concerned is liable to pay under the Ordinance". The appeals were accordingly disposed of by their lordships. However, Muhammad Yaqub Ali, C.J., as the late Chief Justice then was added a separate note which is to the following effect:-- "It was stated from the bar by the learned counsel for the Employer, respondent herein, that the workers employed at the Head Office have all along been provided, under an agreement some of the services which the respondent would have rendered to them had they been registered with it under the West Pakistan Employees Social Security Ordinance. If that be so then the appellant will have no liability to make additional contribution to the fund of the Social Security Institution. A distinction must be made in this respect between a tax and a fee. The contribution which the Employer and the workers are required to pay to the Social Security Institution is in the nature of a fee for rendition of services enumerated in the West Pakistan Employees Social Security Ordinance and not a tax. There is, thus, no absolute liability to pay on the part of the Employer as well as the workers,"
(Underlined by me for emphasis).
' In National Embroidery Mills Ltd and others v. Punjab Employees Social Security Institution (1993 SCMR 1201, also the beneficial nature of the Legislation i,e, Provincial Social Security Ordinance, 1965 was reiterated. It is thus, evident that the object of the Ordinance is to provide certain facilities and benefits to the employees of the establishment to which the provisions of the Ordinance are applied and extended.
9. In the present petitions, it is the case of the petitioners that with the declaration of the employment of their establishments as essential services, the wages and conditions of services of the employees are being regulated by the provisions of the Pakistan Essential Services (Maintenance) Act, 1952 and the rules framed thereunder and that the conditions of service so settled by the Employer with the. Employees Union have not only the blessing and approval of the specified authority, but also are willingly accepted by the employees and Employees Union and no such dispute has ever been raised by any of its employee that he has been deprived of any such benefit as could be given by the Social Security Institution. It appears that such a stance of the petitioners is not without a valid basis inasmuch as throughout the pendency of even these petitions, none of the employees or, the employees union have agitated the matter before this Court or opposed the petitions. They seem to be well-satisfied with their conditions of service.
10. There is a substance in the contention of the learned counsel for the petitioners that Pakistan Essential Services (Maintenance) Act, 1952 is a central law of a special nature covering special eventualities and situations and after every six months, on consideration of the matter a fresh notification is issued extending the application of law in terms of section 6(1) of the Act. The Provincial Social Security Ordinance, however, as its nomenclature would show is a provincial law of general application whereas Pakistan Essential Services (Maintenance) Act, 1952 applies only to employments declared as essential services under the law. In the case of conflict or repugnancy there is no doubt that it is the Federal law which is to prevail and also the special law as against a general law. In Sardar Muhammad v. Noor Ahmad through Legal Heirs and others (PLD 1991 SC 824), the provisions of Punjab Pre-emption Act, 1913 and para. 25(3)(d) of Land Reforms Regulation, 1972 (M.L.R. 115) came to be examined before their Lordships of the Supreme Court and it was observed that "It is clear that M.L.R. 115 is a Federal law and the Punjab Pre-emption Act, 1913, is a 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", In Cantonment Board through Cantonment Executive Officer Peshawar v. District Sanitary and Food Inspector, Peshawar and 3 others (1993 SCMR 941), the extent and application of West Pakistan Pure Food Ordinance, 1960 and Cantonment Pure Food Act, 1966 came to be considered before their lordships and it was held that" there is a clear cut overlapping of jurisdiction of the functionaries under these laws, likely to result in divergent actions and conflicting orders" and thus, applying the rule envisaged by Article 143 of the Constitution, that the Ordinance being a Provincial Statute, so far as Cantonment area is concerned, shall have way to the Cantonment Pure Food Act, 1966. In Water and Power Development Authority and others v. Mian Muhammad Riaz and another (PLD 1995 Lahore 56), a Full Bench of this Court in the light of various precedents held as follows:-- "At this juncture, the question as to whether section 24(2) as amended by Punjab Ordinance XXIX of 1971 still holds the field and is operative is under discussions. Section 24(2) of the Act as amended by Punjab Ordinance and as amended by Federal Ordinance is in respect of the same matter.
Which one of the two is to prevail? Article 143 of the Constitution of Islamic Republic of Pakistan provides the answer. This Article reads:-- "143. In consistency between 'Federal and Provincial Laws.---If any provision of an Act of a Provincial Assembly is repugnant to any provision of an Act of Majlis-e-Shoora (Parliament) which Majlis-eShoora (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 Majlis- e-Shoora (Parliament), whether passed before or after the Act of the Provincial Assembly, or, as the case may the existing law, shall, prevail and the act of the Provincial Assembly shall to the extent of the repugnancy, be void."
' Thus, by virtue of Article 143, Central law is to prevail where law of the Provincial Legislature in respect of matter 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 Assam 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 Chief Secretary, Government of East Pakistan v. Maslahuddin 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 the 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 reasons 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 tinder:- ' It is clear that M.L.R. Is a Federal law and the Punjab Pre-emption Act, 1913, is a Provincial law and that under Article 143 of the Pakistani 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 of 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 provision of the Central law have to prevail by virtue of Article 143 of the Constitution".
' It has already been noted that conditions of service of the employees of the petitioners are governed and regulated by the rules and regulations approved by the specified authority. Any deviation therefrom entails penal action and is punishable under sections 5, 6 and 7 whereas the non-payment of any contribution under the ordinance is also an offence under section 56 of the same. In view of the overlapping provisions, the provisions of the Act will have the prevalence not only in view of Article 143 of the Constitution but also that the provisions of the Act are of special and of overriding nature in view of a section 7-A of the Act. In Pakistan Burmah Shell Ltd., v. Central Labour Commissioner and 5 others (PLD 1982 Karachi 33), the effect of section 7-A of Pakistan Essential Services (Maintenance) Act, 1952 was examined and it was held that "so far as section 7-A is concerned its meanings are plain and clear and admit no ambiguity. The provisions, of the Trade Unions Act, 1926, Industrial Disputes Ordinance, 1959 and other enactments have to yield to the provisions of the Act in matters covered by the Act".
11. From the facts and circumstances and the precedents mentioned above, the principle deducible and the conclusion is that;
(i) with the issuance of a notification declaring an employment or class of employment in terms of section 3, the provisions of Pakistan Essential Services (Maintenance) Act, 1952 get attracted. It is not disputed or challenged by the respondents that such a notification does not exist in respect of the petitioners;
(ii) In pursuance of section 6 of the Act, for regulating the wages and conditions of service of the employees, rules, called Pakistan Essential Services (Maintenance) Rules, 1962 have been framed by the Federal Government, which apply to every employment in respect of which a declaration under section 3 of the Act has been made. Rule 3 empower the Chairman/Member of National Industrial Relations Commission to regulate the wages and conditions of service of persons to which rules apply. It is the case of the petitioners that conditions of service of its employees are governed by a settlement with the Employees Union which has the approval and sanction of the specified authority and is duly published. Such a settlement or agreement between the Employer and the Employees Union stand on a higher footing than merely a bilateral agreement as it assumes the statutes of directions of the authority, the noncompliance of which entail penalties envisaged by the Act;
(iii) there is no allegation of non-compliance of the rules, regulations or settlement relating to the conditions of service of the employees either by the Federal Government, Specified Authority or the Employees Union. It also shows that the employees consider the benefits available to them more beneficial than to be given under any other law.
(iv) Pakistan Essential Services (Maintenance) Act, 1952 is a central law applicable to any employment under the Federal Government and to any employment or class of employment to which Act is made applicable. It is a special law, whereas Provincial Social Security Ordinance, 1965 is a Provincial law, the latter will have to give way to the former not only in view of Article 143 of the Constitution of Islamic Republic of Pakistan, 1973, but also that the field is already occupied by a Federal Service law;
(v) the provisions of Pakistan Essential Services (Maintenance) Act, 1952 are of overriding nature in view of non obstante clause 'notwithstanding' appearing in section 7-A of the Act;
(vi) in the presence of a declaration by the Federal Government in respect of employment of the petitioners as essential service under the Act, notification under section 1(3) of Provincial Social Security Ordinance, 1965 by the Provincial Government is not operative qua the petitioners.
12. In view of such a legal position obtaining in the matter, impugned notification applying the provisions of Provincial Social Security Ordinance, 1965 to the establishments of the petitioners cannot be regarded as a lawful exercise of power and is declared as such.
13. This petition is accordingly accepted. No order as to cost.