WAHID BUX BROHI, J. -- This Miscellaneous Appeal under Section 64(2) of the (Provincial)
Employees Social Security Ordinance, 1965 (hereinafter to be referred to as 'the Ordinance') is directed against the order dated 10.10.1995 passed by the 1st Sindh Labour Court at Karachi dismissing the appeal filed by The present appellant against the respondents wherein the judgment passed on 26.4.1992 by Commissioner, Social Security Institution was called in question.
2. The facts relevant for the purpose of this appeal briefly stated are that the appellants are engaged in manufacturing and assembling of Suzuki Car, Pick-up, High Roof and Jeeps. On 18.11.1991 the Director Sindh Employees Social Security Institutioh (hereinafter to be referred to as the Institution), respondent No. 2 issued a letter containing a clarification on the basis of judgment delivered by Hon'ble Supreme Court reported as Sindh Employees' S.S.I. v. Da wood Cotton Mills Ltd.
(PLD 1988 S.C. 1) wherein the view expressed by the Institution was that an employee, whose wages exceeded Rs. 1500/- per month shall continue to be a secured person and contribution in his respect shall be payable upto his daily wages of Rs. 60/- per day, in accordance with Section 20(4)
(a) of the Ordinance. In the said letter, which was addressed to all registered establishments within West Wharf Directorate, Karachi it as maintained that all such employees who had been exempted on the analogy that they had crossed were limit of Rs. 1500/- per month shall be deemed to have already been included under Social Security Scheme. The appellants did not agree with this view and clarified to the Institution/respondent No. 2, in their letter dated 28.11.1991 that in fact, the verdict of Hon'ble Supreme Court has not been correctly interpreted. They conveyed to the Institution that the Hon'ble Supreme Court, in the said. Judgment, has not made Section 2(8)(f) of the Ordinance as redundant and that their employees, who all were drawing wages exceeding Rs. 1500/-were not liable to pay social security contribution. There was again exchange of letters, each one of them remaining adamant. The appellants, therefore, filed a complaint before the Commissioner, Social Security Institution, respondent No. 1 under Section 57 of the Ordinance but they could not succeed, therefore, they filed ar appeal before the Ist Sindh Labour Court at Karachi where the parties were heard and the appeal was dismissed.
3. Learned counsel for appellant pointed out that the appellants came into existence in the year 1984 by taking over the property of Awami Autos and no Gazette notification has been issued within the meaning of Section 1(3) of the Ordinance covering Pak Suzuki Motors for the purpose of application of the provisions of Ordinance. He also contended that earlier, Awami Autos was amalgamated with Sindh Engineering Limited and the Awami Autos is still in existence, therefore, a separate notification was necessary within the aforementioned sub-section. Accordingly, he argued that the forums below had no jurisdiction in the matter. Mr. Khalid Habibullah submitted that the point of jurisdiction was not raised at the earlier stage, therefore, it could not be taken at this juncture. As regards the clear jurisdiction I would agree with learned counsel for appellant that within the meaning of law laid down in Rashid Ahmed v. State (PLD 1972 S.C. 271), cited by him, the question relating to jurisdiction could be raised at this stage if any mandatory prerequisite stood omitted or violated that could give jurisdiction to the forum.
4. The question herein, however, is different. The plea on behalf of the Institution is that the appellants have stepped in the shoes of Awami Autos and almost the same employees are working within the same premises and same nature of work is conducted, therefore, the appellants could not escape the liability of contribution in respect of secured persons. This point has been closely examined by the Labour Court by examining a number of documents, annexures 'Z/1' to 'Z/26' in the said proceedings. It is not denied that the Awami Autos was not a notified establishment. Nevertheless, a device was employed by the appellants by obtaining resignation of the employees and re-employing them in the same manufacturing plant within the same premises and for the same nature of work. Such steps, taken to avert the effect of law, will never be appreciated particularly when the question relates to benefit of the employees covered by statute, which as laid down in a chain of authorities, is to be beneficially and liberally interpreted in favour of the subject. To this extent, I would agree with the learned Labour Court that the change of ownership of establishment simpliciter, would not effect the payment of contribution for the employees working therein when all other ambient factors having substantial effect remain the same. No notification is to be issued separately under Section 1 (3) of the Ordinance. But the question remains whether the demand of appellant asking for contribution has legal basis or not and that is the crucial point involved herein.
5. The main contention raised on behalf of the Institution is that despite the scale of wages mentioned in Section 2(8)(f) of the Ordinance as it stood before its amendment the employees shall be treated as secured persons and contribution should be payable up to the amount mentioned in Section 20. He meant to say that even if the wages exceeded Rs. 1500/- per month, contribution in respect of such employees was payable as within the range prescribed in Section 20(4)(a) of the Ordinance. Before the amendments carried through the promulgation of (Amendment) Ordinance, 1993 and Labour Laws (Amendment) Act, 1994. Learned counsel for appellant resisted this plea on the ground that it would be misinterpretation of the law laid down in Dawood Cotton Mills case (PLD 1988 S.C. 1). Further he relied on the judgment of Hon'ble Supreme Court recently announced on 27.7.2001 in Civil Appeals Nos. 879, 880 and 882 of 2000 wherein the point in question was elaborately dilated upon and the view taken in Dawood Cotton Mills case was referred to and clarified. Mr. Khalid Habibullah had appeared in that case and advanced arguments on the same pattern.
6. Incidentally, a Single Bench of this Court had also, on the basis of amendments, introduced through Labour Laws (Amendment) Ordinance, 1983 handed down a judgment supporting the plea on the same line as canvassed by Mr. Khalid Habibullah holding that the proviso .To Section 2(8)(f) of the Ordinance being declaratory, beneficial, curative, remedial and a welfare legislation would apply retrospectively. It would be of immense importance to point out here that the enigma in those matters as well as the instant appeal precisely relates in essence to the clarification circulated on 18.11.1991 by the Institution on the strength of the judgment of Hon'ble Supreme Court reported as PLD 1988 S.C.
1. The provisions of Section 2(8)(f) and Section 20 of the Ordinance as they stood before and after amendment were thoroughly examined by the Hon'ble Supreme Court in the said unreported judgment and it was held that an 'employee, whose wages exceeded Rs.
1500/- per month, did not qualify to be an employee for the purpose of the Ordinance and as such no contribution was payable in respect of such employee during the period preceding the promulgation of Labour Laws (Amendment) Ordinance, 1993 and Labour Laws (Amendment) Act, 1994. It was also held that the scope of un-amended Sections 2(8)(f) and 20(4)(a) of the Ordinance was comparatively limited and could not be enlarged by giving retrospective effect to the amendments made therein on the grounds that the same. Are remedial and that the proviso added to Section 2(8)(f) being a part of definition the section is declaratory and the Ordinance being a beneficial statute its provisions must be construed liberally. It was observed by the Hon'ble Supreme Court in clear terms that the amendments in question have created a new obligation and changed the existing law considerably and in any case the amendments were not declaratory or purely remedial and, not retroactive, in operation. A specific observation was made with respect to Mr. Khalid Habibullah's arguments as raised in this appeal, -referred to above, and it was held that the definition of the term 'employee' refers to initial appointment at wages exceeding the ceiling mention therein 'as well as the employees whose wages exceed the ceiling during the course of employment and the ceiling is to be kept in view while applying the formula for payment of the contribution envisaged by Section 20(4)(a) of the Ordinance as elucidated by the judgment of the Hon'ble Supreme Court in Dawood Cotton Mills' case.
7. A complete answer has thus . Been rendered by the Hon'ble Supreme Court in the above- mentioned unreported judgment, therefore, in the light of the dictum of Hon'ble Supreme Court the contention raised by Mr. Khalil Habibullah on behalf of the Institution loses its force. The clarification made by the Institution through the controversial circular dated 18.11.1991 has wholly lost its efficacy.
8. In result of the foregoing discussion it may be concluded that the findings of the learned Labour Court that the appellants are liable to make contribution in respect of the employees falling within the definition of Section 2(8)(f) of the Ordinance even after their taking over the establishment from the Awami Autos is upheld but the interpretation of the judgment of Hon'ble Supreme Court in PLD 1988 S.C. 1 put by the learned Labour Court is not accepted in view of the observations made by the Hon'ble Supreme Court in the judgment announced on 27.7.2d01 in the appeals referred to above. The appeal is accordingly allowed and the order of Labour Court is set aside to the above extent and the case is remanded to the learned Labour Court for examining the factual aspects in the light of record which may be called for by it and contribution be allowed only in respect of the employees in the light of un-amended provisions of Section 2(8)(f) and 20(4)(a) of the Ordinance as interpreted by the Hon'ble Supreme Court. There shall be no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.