' CH. MUHAMMAD ARIF, J.---Through this common judgment, we intend to dispose of the above appeals which, in their own turn, have arisen out of separate judgments dated 16-6-1993 and 15-1- 1993 passed by the Lahore High Court, Lahore in F.A.Os. Nos.87/84, 203/82, 207/81, 70/84, 195/81, 171/81, 202/82 and 101/85.
2. There is no need for making an in-depth reference to the facts of each case in that the main question in all the matters revolves around the import of the term "wages" as defined in clause (30) of section 2 of the Provincial Employees' Social Security Ordinance, 1965 (X of 1965) (hereinafter referred to as the Ordinance).
3. The relevant facts stand meticulously recounted in the leave grant order dated 20-3-1995, which reads thus:-- "2. In these petitions two questions arise for consideration. The first question is whether in exercising its appellate jurisdiction under section 64(2), (ibid). The High Court was competent to set aside the orders imposing penalties upon the respondents. The second question, is whether certain allowances paid by the employers to their employees constitute wages within the meaning of section 2(30) of the Ordinance. As regards the first question it may be mentioned that under section 64(2), (ibid), the appeal lies to the High Court from an order of the Social Security Court if it involves a substantial question of law. It is contended on behalf of the petitioner that imposition of penalty is governed by subjective considerations and it does not raise any substantial question of law so as to invite interference by the High Court. It is difficult to subscribe to this contention. The penalties are imposed to punish aberrant conduct or contumacy. In the present cases the High Court set aside the orders of imposition of penalties on the ground that there was some doubt whether the allowances or payments in dispute were covered by the definition of wages; in view of the prevailing uncertainty the High Court was competent to examine while exercising its appellate power, whether the legal requirements for the imposition of penalties had been met.
3. The definition of 'wages' as given in section 2(30) (ibid), has been considered in a number of cases by this Court with reference to certain payments or allowances. Thus, in the case of National Embroidery Mills Limited v. Punjab Employees' Social Security Institution (1993 SCM R 1201), this Court held that house-rent allowance, attendance and leave encashment allowance were covered by the said definition. Similarly, in Sindh Employees Social Security Institution v. Dawood Cotton Mills Ltd. PLD 1977 SC 177 leave encashment and festival holiday allowances were held to be wages for the purpose of the Ordinance. In Brooke Bond Pakistan Limited v. Sindh Employees' Social Security Institution (1990 SCM R 175) production bonus was held to be wages. With regard to these allowances the legal position is no longer in doubt. As regards conveyance allowance learned counsel appearing for the employers does not dispute that this too is part of the wages and defined in the Ordinance.
4. So far as Petitions Nos.1181, 1190, 1197, 1205, 1206 and 1219-L of 1993 are concerned they either challenge the jurisdiction of the High Court to interfere with the order of imposition of penalties or refer to allowances which have found to be part of wages. Accordingly, leave is refused in these petitions.
5. However, leave to appeal is granted in Petitions Nos.1198, 1201, 1202, 1203, 1204, 1208, 1209 and 1210- L of 1993 to consider whether the following allowances constitute 'wages' within the definition of the expression as given in section 2(30) of the Ordinance. The allowances are:
(1) Atta Subsidy;
(2) Cloth Allowance;
(3) Cost of Meal;
(4) Efficiency Awards;
(5) Long Service Awards;
(6) Jersy and Uniforms Allowance;
(7) Washing Allowance; and
(8) Cycle Allowance."
4. It appears that the abovementioned allowances have certain common features when it comes to resolving the import of the definition of term 'wages' in section 2(30) (ibid).
5. Hatiz Saeed Ahmad Sheikh learned Advocate Supreme Court appearing on behalf of the appellants has reiterated the questions of law detailed in the memo. Of appeals i.e,; ....(1) Whether
(i) Atta Subsidy; (ii) Cloth Allowance; (iii) Cost of Meal; (iv) Efficiency Awards; (v) Long Service Awards; (vi) Jersy and Uniform Allowance; (vii) Washing Allowance; and (viii) Cycle Allowance fall within the definition of "wages" in terms of clause (30) of section 2 of the Ordinance and (2)
Whether the learned Members of the Division Bench of the High Court have not fallen in error in holding that the above allowances were being paid to the employees of the respondent- organizations with a view to helping them to obtain the commodities/facilities from the market ex gratia with the result that they stand excluded from the import of the definition of term 'wages'
' He has relied upon Sindh Employees' Social Security Institution and another v. Dawood Cotton Mills Ltd. (PLD 1977 SC 177), National Embroidery Mills Limited and others v. Punjab Employees' Social Security Institution (1993 SCM R 1201), Brooke Bond Pakistan Limited and others v. Sindh Employees'
Social Security Institution (1990 SCM R 175) and Messrs Consolidated Sugar Mills Limited v. Sindh Employees' Social Security Institution (PLD 1991 SC 862) to contend that the abovementioned allowances/facilities do not qualify for exclusion from the definition of the term "Wages". He has referred to various excerpts from the abovementioned precedents in support of the following points:
(i) If the employers choose to dole out money to their employees in their respective organizations and if the employees become entitled to receive the same either on account of any agreement with the employees or even an agreement with the Collective Bargaining Agent(s), even then the entitlement of the appellants to receive the contribution for Social Security purpose is beyond any question.
(ii) The exclusion of four categories of allowances etc. From the term "wages" i.e,, ...(a) any payment for overtime; ..... ...Or (b) any sum paid to the person employed to defray special expenses entailed by the nature of his employment; or (c) any gratuity payable on discharge; .... Or (d) any sum paid as bonus by the employer. Are all that would not be treated as "wages". According to him, the above categories are not attracted to the use of the respondent-organizations in relation to the aforementioned eight types of allowances etc. Being admittedly paid by them to their respective employees.
6. According to Raja M. Ibrahim Satti, learned Advocate Supreme Court appearing on behalf of the respondent-Hotels in Civil Appeals Nos.245, 247 and 248 of 1995 the grievance of the appellant- Institution before the High Court was that House Rent Allowance and Conveyance Allowance fell within the category of "wages" and therefore subject to Social Security contribution. The High Court came to the conclusion that House Rent Allowance is part of "wages" but the question for determination or otherwise of such status regarding Conveyance Allowance was remanded to the Social Security Court with a direction to record evidence in that behalf. He argued that on the date on which leave to appeal was granted in C.P.L.A. No,1205-L of 1993, the then learned counsel appearing on behalf of the appellant-institution made a statement before the Bench that: "as regards Conveyance Allowance, the learned counsel for the employers does not dispute that this too is part of the "wages" as defined in the Ordinance". His plea was that leave was not granted insofar as the dispute relates to Conveyance Allowance and as the same had to be considered as part of "wages", it was inadvertently typed that leave is granted in Civil Petition No,1208-L of 1993 as well.
7. Mr. Javed Altaf, learned Advocate Supreme Court appearing on behalf of the respondent- organizations in Civil Appeals Nos.244, 250 and 870 of 1995 has reiterated his clients' case before the concerned quarters that (i) Washing Allowance and (ii) Jersy and Uniform Allowance do not fall within the definition of "wages' as the same are specifically exempted from such treatment being meted out to them in terms of sub-clause (b) to clause (30) of section 2 (ibid) which, after defining the term "wages" specifically deals with the exclusion of, among others, "...(b) any sum paid to the person employed to defray special expenses entailed by the nature of his employment"
(Underlining is for emphasis). He has also relied upon Sindh Employees' Social Security Institution and another v. Dawood Cotton Mills Ltd. (supra) in support of his clients' case.
8. We have considered the arguments addressed at the Bar and have also perused the relevant material and the case-law cited by the learned counsel for the parties. There is no cavil with the law declared by this Court in Sindh Employees' Social Security Institution and another v. Dawood Cotton Mills Ltd (supra) that: '...The definition of the term 'wages' accords with the dictionary meaning of the term 'wages' which is construed as the amount paid periodically, specially by the day or week or month, for time during which workman or servant is at employer's disposal. The word 'remuneration' as used in the definition means, according to the Oxford Dictionary, a reward payable for service rendered. It would be seen that the rendering of service, or at least the availability of the employee at the disposal of the employer for service, is an essential requirement or prerequisite for the payment of wages. The definition by including payments made by the employer in respect of any period of illegal lock-out or legal strike has indeed given effect to the principle that during these periods the employee must be deemed to be available for service with the employer. By specifically including the payment made for any period of authorised leave, the definition has accorded a statutory status to this payment as if it were included in every contract of service.
' "We cannot, however, agree with the learned counsel for the appellant that the definition should be so extended as to include therein every payment made by the employer to an employee. The definition being clear and unambiguous, its extension in the manner suggested by Mr. Sarwana would be unwarranted. Even otherwise, such an extension can produce absurd results. There may be a case, for instance, where an employer agrees to make an ex gratia or a charitable grant for the marriage of the employee's children, or scholarship for their education. Such payments could not be regarded as wages merely because they are made by an employer to his employee. The statutory definition being clear, payments not covered by it cannot be included."
' Both parties have relied upon this precedent and the learned counsel for the respondent- organizations have rightly pointed out that placitum in Messrs Consolidated Sugar Mills Limited v.
The Sindh Employees' Social Security Institution (supra) relied upon by the learned counsel for the appellants helps the case of the respondents. The following excerpt from para.7 of the Report is to the point: ...However, we may also observe that if an employer occasionally without being under a contractual or statutory obligation, makes ex gratia payment to his employees for their well-being, the same will not be covered by the above definition of the term 'wages' ...." (Underlining is for emphasis).
9. A careful perusal of their case-law cited at the Bar brings it to the fore that the question about the nature of allowances/facilities/payments made by the employers to their respective employees has to be tested upon the touchstone of the same having or otherwise a nexus with the nature of duty assigned to or being performed by the employees of respondent- organizations. If the answer to this question is in the affirmative, then the appellant-Institution will be right in contending that the same falls within the ambit of definition of term "wages" as in clause (30) of section 2 (ibid). If the answer to the above query were to be in the negative, then the appellant- Institution will have no right to claim any contribution from the employers in that regard. Here, it is not denied by the appellant-Institution that none of the allowances and/or facilities in question has a direct nexus with the nature of duty of the employees of respondent-organizations. We are of the considered view that: (i) Atta Subsidy, (ii) Cloth Allowance, (iii) Cost of Meal, (iv) Jersey and Uniform Allowance and (v) Washing Allowance clearly partake of the category of those steps (by the respondent-organizations) which lend luster to the premises where the workers/employees of the organizations will commence their day's work after putting on washed/cleansed wearing apparels.
These facilities, of necessity, have a direct link or nexus with voluntary actions in that behalf on the part of the employers who expect that people around should talk about proper upkeep of their employees by them and that to sans any increase in their pays/allowances to attract the wrath of the Ordinance relatable to their contribution to the Social Security.
10. As regards Cycle Allowance, subject-matter in Civil Appeal No,870 of 1995, we have noted that the Social Security Court accepted the review application of the respondent-Mills on 28-11-1984 with the result that its earlier order dated 25-4-1984 stood reviewed and the respondent-Mills was held liable to pay Social Security contribution on the Cycle Allowance being paid by it to the employees. The High Court allowed F.A.O. No,101 of 1985 with the observation that review under section 58 of the Ordinance could only be gone ahead by the Social Security Court if some new facts had been brought on the record and as no such thing had happened, the cause did I not fall within the contemplation of section 5 (ibid). Although nobody has entered appearance to contest the case of the respondent-Mills, we are not inclined to the view that there was anything amiss in the impugned judgment of the High Court in coming to the conclusion that in the absence of any new material having been brought on the record by the appellant-Institution, the Social Security Court was not possessed of the requisite jurisdiction to review its earlier order dated 25-4-1984 favouring the respondent-organization. Learned counsel for the appellant-Institution did not address any argument whatsoever in support of the pleadings in the memo of petition/appeal to the effect that either the impugned judgment could not be rendered by the High Court under section 64(2) of the Ordinance or that 'Cycle Allowance' doled out by the respondent-Mills to those of its employees who had served them for twenty days in a month, fell within the contemplation of the term "wages". Moreover, the learned members of the Division Bench of the High ,Court did notice that the Social Security Court was not on the right rails in failing to consider that no new facts had been brought on the record by the appellant-Institution, as required under the mandate of section 58 (ibid) to justify review of its earlier, order dated 25-4-1984.
11. We are, now left with only the dispute in relation to Long Service Award and Efficiency Awards involved in Civil Appeal No,246 of 1995. Respondent-organization has been proceeded against ex parte in Civil Appeal No,246 of 1995. However, as in the case of Cycle Allowance, Hafiz Saeed Ahmad Sheikh has not argued for reversing the impugned judgment dated 16-6-1993 wherein the learned Members of the Division Bench of the High Court had observed in unquivocal terms in paras.3 and 4 of the impugned judgment dated 16-6-1993 respectively that: (i) "....Efficiency Award .., was also paid to such workers who had put extra labour due to which the efficiency of the Mill was enhanced. This amount has direct nexus with the labour put in by the workers and was paid in consideration thereof as such was also part of wages on which Social Security contribution was also made". And that (ii) Long Service Award "...Was paid ex gratis by the employer only to those workers who remained in the service for a long period and not to all the workers generally as such could not form the basis for raising demand for Social Security Contribution as the said award was not part of the wages of the workers...." Viewed in the above perspective and the fact that respondent-organization has not impugned the observation of the High Court in relation to Efficiency Award and the appellant-Institution has not even so much as pointed out/pleaded any error whatsoever in observation of the High Court in relation to Long Service Award we are inclined to the view that any interference is needed or called for in the impugned judgment dated 16-6- 1993 resolving the matter of Efficiency Awards in favour of the appellant-Institution and that of 'Long Service Award' in favour of respondent-organization.
12. Before parting with this judgment, we may observe that Raja M. Ibrahim Satti, learned Advocate Supreme Court appearing on behalf of respondent-Hotels in Civil Appeals Nos.245, 247 and 248 of 1995 was not correct in submitting that there was any error in the import of leave grant order in relation to Civil Appeal No, 247 of 1995 in that it has not arisen out of Civil Petition No,1205-L of 1993 but out of Civil Petition No, 1208-L of 1993. He was himself in error in contending that this appeal has arisen out of Civil Petition No,1205-L of 1993. We have checked up the Court file and find that in the Original Record Civil Petition No, 1208-L of 1993 is mentioned and it is on account of a typographical mistake that it has been indicated on the title-page in Paper Book of Civil Appeal No,247 of 1995 that it has arisen out of Civil Petition No, 1205-L of 1993.
13. In view of all that has gone before the appeals are dismissed with no order as to costs.