' This second appeal is directed against the judgment and decree dated 4-11-1974 whereby the learned District Judge, Gujranwala accepted the appeal, set aside the decree passed by the Civil Judge and dismissed the suit of the plaintiff-firm.
2. The plaintiff-firm (the appellant), is engaged in the manufacture of articles of sanitary fittings, and is running business in the name of Messrs Tasneem Mechanical Works at Gujranwala. It is stated that the plaintiff- firm has presently employed only nine workers and at no time in the past their number rose to 20. By a Notification No, Lab. 111-11-24/69 published in the West Pakistan Gazette dated 4-4-1970, the provisions of the West Pakistan Employees' Social Security Ordinance (X of 1965) were made applicable with effect from 15-5-1970 to the areas comprising of Sheikhupura and Gujranwala districts and to the employers and the employees of numerous establishments including the plaintiff-firm. It appears that in January 1971, the plaintiff firm was made liable to contribution in respect of its employees, but the plaintiff-firm took an exception and refused to pay it apparently on the plea that it did not employ workers more than 20 in number.
According to the plaintiff-firm, after lengthy correspondence, the Social Security Institution, on the basis of an inquiry in respect of the plaintiff-firm, threatened it of severe action in case arrears of contribution were not paid. This action of the Institution as well as the validity of the notification were questioned in a suit for declaration stating that the plaintiff-firm was not liable to the payment of any such contribution. Perpetual injunction was also sought to restrain the defendants-respondents from making any recovery from the plaintiff-firm.
3. On the other hand, jurisdiction of the civil Court was denied in the written statement. It was contended that the plaintiff-firm was assessed and made liable in accordance with the rules and regulations, and that the plaintiff had no case, inasmuch as its representation made to the Institution against the recovery was also turned down. The trial Court found that the plaintiff-firm never employed 20 or more workers during the disputed period, and the demand notices were, therefore, illegal and against the provisions of the Ordinance. In appeal the learned District Judge agreed with the trial Court that he did have jurisdiction but observed that there was no provision in Ordinance, the rules or in the notification that the scheme was inapplicable to establishments having less than 20 workers. The notices demanding contribution were held to be in accordance with law. The appeal was thus accepted, the decree of the trial Court was set aside and the suit of the plaintiff-firm was dismissed. Hence this appeal.
4. The main contention against the demand of contribution, as found in the plaint and urged by the learned counsel, is that the plaintiff-firm, presently or even in the past, never engaged employees more than 20 in number and for that reason it could not be included in the list of notified factories.
In this regard various paragraphs of the Code of Staff Instructions (Volume I) issued by the West Pakistan Employees' Social Security Institution were relied upon. At this stage, the learned counsel for the respondents argued that these instructions were issued to regulate the conduct and the affairs of the Social Security Institution and its staff, and they have, therefore, no force of law.
5. These instructions, as it appears, were approved by the Governing Body at its first meeting held on 10-2-1966. Their essential feature is that the powers and duties of several authorities concerned in Social Security are set forth concisely so that there is no overlapping. Paragraph 2 says that Government, among other things, determines the scope and the extent of the scheme from time to time which it deals with by notification in the official Gazette or by making Rules. The Governing Body deals with matters reserved by the Ordinance for decision by it, and makes Regulations embodying these decisions. The instructions are thus intended to make it clear that individuals in all parts of the Organization should know precisely what their powers and duties are. Paragraph 10 lays down that the chain of command should be fixed and definite. Each member of the staff should know to whom he is permitted to give orders and from whom he should take orders.
Paragraph 3 has thus specifically drawn a distinction between matters reserved for the Government and matters reserved to be dealt with under the Ordinance by the Governing Body.
The former are matters fundamental to the scheme, while the latter are technical matters relating to administration of the scheme. The object of the staff instructions is, thus, restricted to serve as a guideline for day to day working of the Social Security Institution in the light of the Ordinance. It is laid down in Pakistan v. Sheikh Abdul Hamid (1), that office instructions being manifold in their scope and designed and expressed to be used as guidance for the conduct of the affairs of each Department, it should be plain that on such instructions no legal right can be founded. On the other hand a statutory rule has certain visible characteristics which must be looked for and cannot be dispensed with when the question arises of claiming upon the basis of such rule, a right in law. A rule requires to be expressed with precision and yet to possess generality so as to be capable of application to a large number of cases. It is clarified by their Lordships of the Supreme Court in Muhammad Asghar v. Safia Begum (2), that there are similar enactments and the delegated legislation. This had added to the confusion in distinguishing statutory instruments from purely executive actions. Generally speaking, a statutory instrument means document which is legislative (as opposed to executive) made by a rule-making authority in exercise of a statutory power.
Precisely it is the exercise of the (1) PLD 1961 SC 105 (2) PLD 1976 SC 435 delegated legislative power by rule-making authority which distinguished a statutory rule from purely executive and administrative instructions. It is held that the memos. From the Additional Secretary to Government of the Punjab, Resettlement and Colonies Department to the Deputy Commissioner, Montgomery and Multan to the effect that in the case of tenancy falling vacant on the death of a lessee with a good horse/mule breeding record, it should continue to be allotted to the heirs of the deceased in preference to any other applicant. The sequence in which these memos. Were issued from time to time by way of clarification and supersession in themselves go to suggest that they were to more than purely administrative, instructions sent out to cater for the exigencies of the changing situation and the policies of the Government. It is further laid down that the memos. Had merely laid down certain guidelines and issued, these directions to regulate the exercise of the discretion in the allotment of the horse breeding tenancies. Having due regard to the very nature and purport of the directions contained in the memos. It cannot be said that they were issued as forming part of and having the force of the statements of conditions within the contemplation of section 10(2) of the Act, i,e, Colonization of Government Lands (Punjab) Act (V of 1912). The memos. Referred to above were not considered to be as part of the statement of conditions for the allotment of the tenancy.
6. In the same way, the staff instructions, in the instant case, are meant to regulate the internal working of the Social Security Institution and its various departments and are thus purely administrative in nature. Section 4' of the Ordinance provides that the general direction and superintendence of the affairs of the Institution shall vest in a Governing Body which, with the assistance of the Commissioner, may exercise all powers and do all acts and things which may be exercised or done by the Institution ; and that in discharging its functions, the Institution shall be guided by such instructions on question of policy as may be given to it from time to time by Government, which shall be the sole judge as to whether any instructions are on question of policy or not. In other words, the Government is the sole authority and has reserved to itself unfettered discretion in the matters prescribed by the Ordinance. It is therefore, evident that the Staff Instructions cannot be deemed to have precedence over the statutory authority of the Government. They are purely administrative in nature and are directed simply to regulate the internal set up and management of the Institution and the various departments run under it.
Therefore, no legal right can be founded by the plaintiff-firm on such instructions and they can safely be dispensed with, when question arises of claiming upon them a right in law.
7. Even otherwise, the plaint, as it appears, is based on the sole plea that the plaintiff-firm, having engaged workers not more than 20 in number, is not liable to the payment of contribution. In support of this contention the learned counsel relies on paragraph 22 of the Staff Instructions, which expresses the intention of Government that Social Security shall first be introduced to the workers in the textile industry, employed by firm with 20 or more employees. Section 1(3) of the Ordinance lays down that it shall apply only to such areas, classes of persons, industries or establishments from such date or dates and with regard to the provision of such benefits as Government may. By notification specify in this behalf. The paragraph, as it indicates, speaks of a mere intention of the Government as a policy for the time being not to apply the provisions of the Ordinance to the smaller units of the textile industry with 20 or less workers ; and for that purpose instructions were issued, as found in paragraph 25, that visits will be paid to employers, as necessary to determine whether or not they can properly be included within the scope of the scheme. Such visits will be made by the staff of the local offices. The type of case justifying personal enquiry of this kind would be (i) an employer not included in the "List of Factories" ; (ii) an employer shown to have less than 20 employees in the "List of Factories" where there is reason to believe that he has that number ; (iii) any other case in which there appears to be room for doubt ;
(iv) the average number of employees employed during the last six months ; (v) reasons in the reduction of employees below 20; and (vi) whether this reduction is of permanent or temporary nature. The paragraphs referred to above speak of the textile industry and that too, perhaps to encourage the installation of sma ller units. Other than that, there is no reference to the establishments and concerns of the type like that of the plaintiff-firm. It gives an indication that in spite of the then policy, the Government has always reserved its right under subsection (3) of section 1 of the Ordinance to include any areas, classes of persons, industries or establishments with regard to the provision of such benefits as it may, by notification specify. There is thus no restriction on the Government to apply the Ordinance or some of the provisions thereof to the plaintiff-firm irrespective of the number of its employees and its registration under section 5(1) of the Factories Act (XXV of 1934). The Government, by its notification published in the official Gazette dated 4-4-1970, declared the plaintiff-firm to be subject to the provisions of the Ordinance and as held in Kohinoor Chemical Co. Ltd. And another v. Sind Employees' Social Security Institution (1), once a notification has been issued under subsection (3) of section 1 of the Ordinance notifying the plaintiff-firm, then the obligations of the plaintiff spelt out in sections 20 and 21 come into play, and it is incumbent upon them to make the necessary contributions and keep the necessary record and furnish the necessary returns as may be prescribed by the Social Security Institution under rules or regulations made under the Ordinance. These obligations are not dependent upon any action to be taken or initiated on the part of the Institution ; on the contrary, they are statutory obligations incurred under the relevant provisions of the Social Security Ordinance. It is held that on the issuance of the necessary notification, the obligation is squarely placed on the employer to furnish the necessary returns to the Institution and to pay the prescribed contributions in respect of its own share and to realise the same from the employees, and credit the proceeds to the fund of the Institution. (It may be pointed out here that the contribution is payable in the instant case for a period before section 20(3) of the Ordinance was amended by the Labour Laws (Amendment)
Ordinance (IX of 1972) on the 13th April 1972). It is further held that this liability to pay the contribution is not dependent upon D issuance of any notices of demand by the Institution and the employer cannot be permitted to take advantage of his own default. Having regard to the rule laid down by their Lordships of the Supreme Court read with the provisions of subsection (3) of section 1 of the Ordinance, I am constrained to hold that the law has imposed no restriction on the Government to exclude from the application of the Ordinance industries, business concerns or establishments of a particular type having workers of a specified number.
' In the circumstances, the plea, which appears to be the main basis of the suit, is not available to the plaintiff-firm and the learned District Judge is thus justified in dismissing the suit. It is also not open to the plaintiff to urge that directions were never given to it to supply the list of its employees and the salaries drawn by them.
(1) PLD 1977 SC 197
8. A question arises whether in the presence of a definite procedure laid down in the Ordinance, the plaintiff-firm could invoke the jurisdiction of the civil Court and file a suit contesting its liability to pay contribution and call in question the action of the Social Security Institution in a suit for declaration and pray for a perpetual injunction. It was argued that there was nothing on record to show that the action directed against the plaintiff-firm was without authority or was based on ill- will, and that the matter only related to the liability of the firm to the payment of contribution. The learned counsel contended that Social Security Institution had the exclusive jurisdiction to decide questions and disputes enumerated in section 57 relating to whether any person was a secured person within the meaning of the Ordinance, the rate of wages or average daily wages of a secured person for the purposes of the Ordinance, the rate of contribution payable by an employer in respect of an employee, the person who is or was the employer in respect of a secured person, any benefit and the amount and distribution thereof, or any other matter in respect of any contribution or other dues payable or recoverable under the Ordinance. According to the learned counsel, such matters were to be decided by the Institution in such manner and within such time as the regulations may provide and the Institution would notify its decision to the person or persons concerned, in writing, stating therein the reasons for its decision. Referring to the provisions of section 58, it was argued that a review was competent of a decision given by the Institution, if new facts were discovered. Under section 59, stated the learned counsel, any person aggrieved by a decision of the Institution under section 57 or on a review under section 58, could appeal to the appropriate Social Security Court and the said Court, as provided in section 61, had exclusive jurisdiction to hear and decide appeals from the decisions of the Institution arising in the appropriate Social Security Area. My attention was drawn to section 62(4) that an order of the Social Security Court is enforceable as if it were a decree of a civil Court. Under section 64 a further appeal was stated to have been provided if it involved a substantial question of law. By this argument it was emphasized that the Scheme of Chapter VI of the Ordinance has laid down a special procedure for and set down a definite forum for all types of complaints and questions ; and since disputes and the pleas raised by the plaintiff-firm in its suit were not different from those contained in section 57, the plaintiff, instead of filing a suit, should have, therefore, adopted the .Course prescribed by the Ordinance. It is true that ordinarily a party in Social Security matters should exhaust all his remedies provided in the Ordinance before invoking the aid of the civil Court, but there is no provision in the Ordinance itself which may bar the jurisdiction of the civil Court to entertain and decide whether the act of the authority purporting to have been done in the exercise of the powers conferred by the Ordinance could be validly done under the Ordinance. It cannot, therefore, be said that the jurisdiction of the civil Court is taken away to adjudicate what legal effect the order of the authority passed under the Ordinance will have on the rights of the parties. In the instant case, the plaintiff-firm has specifically asserted that act of the respondents was against law and based on mala fides. It is the plaint and not the written statement which determines the jurisdiction of the Court. In case the plaint contains assertions which are only for the civil Court to decide, its jurisdiction is not taken away in any case. It is therefore wrong to say that the plaintiff has failed to prove the contention in the right forum. If he has failed to establish his case, the natural consequence is that his suit shall be dismissed. No doubt, it is held in a recent case Abdul Aziz v. Syed Arif Ali and others (1), (1) PLD 1978 Lah. 441 that a suit to challenge an order of a tribunal cannot be filed in a civil Court without exhausting all the remedies provided by the law with which the said tribunal is governed, unless it is proved that the tribunal has not acted in conformity with the fundamental principles of judicial procedure or has acted patently without jurisdiction. It is laid down in Muhammad Latif v. Province of West Pakistan (1) that where the allegation of a party is that the impugned order is a nullity in the eye of law, the considerations are different. In such a case the civil Court has jurisdiction to examine into cases where statutory provisions have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. Since the case of the plaintiff-firm contained allegations of illegality of the action and bad faith, the civil Court had jurisdiction to decide them. The learned District Judge was therefore right in holding this question against the respondents.
9. For the reasons aforementioned the plaintiff-firm has failed to make out a case. I do not find any force in the appeal and the same is dismissed with costs throughout.
10. Before parting with the case, I would like to draw the attention of the Institution to the view taken in the case of Kohinoor Chemical Co. Ltd. Referred to above that although the employer may be made to pay the arrears of his contribution at the prescribed rate, yet the employees may not be so required for that period when their contributions were in force, but they were prevented from making the contributions and availing of the benefits due to the default of the employer. The Institution may, therefore, see if this part of the contribution is to be deducted from the demand.
(1) PLD-1970 SC 180