' The brief facts out of which the present appeal arises are that respondent No,1 sent a notice to the appellant on 13-2-1994 under the provisions of the Social Security Ordinance, 1965. The appellant submitted reply of the notice to respondent No,1 wherein appellant took a stand that the contribution with effect from 19-10-1993 was not payable by the appellant as the respondents did not provide medical facilities to any of the employee of the appellant. The appellant further took a stand that the demand of respondents under the provisions of the Social Security Ordinance, 1965, is being in the nature of fee which can be demanded for the services rendered by the Institution, and not being a tax from any stretch of imagination, could not be claimed for the period when no service, whatsoever, was provided by the Institution. Respondent No,1 did not accept the reply of the appellant. The appellant deposited the said amount of Rs,308094 towards the contribution under protest. Respondents issued another demand notice to the appellant on 10-5-1994 claiming penalty for the non-payment of the demanded amount within time equivalent to 50% in view of section 23 of the said Ordinance. The appellant submitted complaint under section 57 of the Social Security Ordinance, 1965 before respondent No,2 who dismissed the same vide order dated 19-6- 1995. The appellant being aggrieved filed an appeal under section 59 of the Social Security Ordinance, 1965 before the Social Security Court, Punjab, Lahore, which was dismissed by him vide order dated 16-7-1998. The appellant being aggrieved filed an appeal before this Court which was accepted and the case was remanded back to the Social Security Court, Punjab Lahore with the direction to decide the case with reasons after hearing the parties in accordance with law.
Respondent No,2 after remand, dismissed the appeal vide impugned order dated 13-5-2002, hence the present appeal.
2. The learned counsel of the appellant submits that the Social Security contribution is neither a tax nor a levy but this aspect. Was not considered by the Tribunal below. He further submits that the alleged delay in payment of contribution cannot be attributed to the appellant because it was consequence of lapses on the part of the institution.
3. The learned counsel of the respondents submits that the Judge Socially Security Court, Punjab, Lahore, passed the order after applying its independent mind, in accordance with law. He further submits that the appellant has to deposit the demanded amount within 30 days but the appellant failed to deposit the said amount within the prescribed period, therefore, Tribunal below was justified to impose penalty in terms of section 23 of the Social Security Ordinance, 1965. He further submits that the appellant himself did not deposit the said amount within time, therefore, the appellant cannot be allowed to take the benefit of its own misdeeds. He further submits that the competent authority had issued the Notification by imposing contribution vide notification dated 19th October, 1993 under the provisions of the Social Security Ordinance, 1965.
4. I have given may anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.
5. It is better and appropriate to reproduce the relevant sections of the Social Security Ordinance, 1965, rules framed thereunder, grounds of appeal before the Judge Social Security Court, Punjab, Lahore and notification dated 19-10-1993 to resolve the present controversy:-- ' Section 1(3): "It shall come into force at once but 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."
' Section 23. "Increase of unpaid contribution and recovery of contribution, etc. As arrears of land revenue.---(1) If any employer fails to pay on the due date the contribution payable by him under subsection (1) of section 20, the amount so payable by him shall be increased by such percentage or amount as may be prescribed: ' Provided that in no case shall be increased exceed fifty per centum of the amount due: ' Provided further that no part of such increase shall be payable by, or the liability to pay the same be passed on by the employer to, his employees.
(2) Without prejudice to any other remedy, the amount of the contribution due, together with the increase provided for under subsection (1), may be recovered as arrears of land revenue."
' GROUNDS BEFORE THE JUDGE SOCIAL, SECURITY COURT, PUNJAB, LAHORE
(i) That the appellant had sought opportunity to produce evidence before learned respondent No,2 but the prayer has been declined without any reasons. The impugned order is reduced to a case of no evidence.,
(ii) That the learned respondent No,2 failed to exercise the jurisdiction vesting in him required to set aside the demand notice dated 10-5-1994.
(iii) That the order of learned respondent No,2 suffers from the effect of incongruity.
(iv) That the learned respondent No,2 has not even cared to consider the judgment of the Superior Courts of this country which were relied upon by the appellant which include the judgment in the case of Kohinoor Chemical Co. Ltd. And another v. Sindh Employees Social Security (PLD 1977 SC 197) and unreported judgment delivered by the Hon'ble Supreme Court of Pakistan in the case of Noor Textile C.P. 1219-L of 1993 confirming the orders of Hon'ble Lahore High Court whereby the increase levied by the Social Security Institution was declared to be illegal and without lawful authority.
(v) That the change of date of hearing of the complaint as well as the manner in which the complaints were heard smacks of unwarranted haste and renders the impugned order as without jurisdiction.
(vi) That the impugned order' has been passed on extraneous consideration.
(vii) That the learned respondent No,2 has failed to appreciate that the impugned demand notice was void, without jurisdcition and was lable to interference under section 59 of Social Security Ordinance, 1965 (Supra).
12. That the appellant has already submitted an application for obtaining certified copy of the impugned order dated 19-6-1995 but no date whatsoever has been given in writing or orally, for delivery of the copy thereof.
13. That the appellant reserves the right to raise further grounds against the impugned orders on the receipt of copy of the impugned order dated 19-6-1995."
Government of the Punjab Labour Department Notification The 19th October, 1993 ' No, Lab-V/2-15/93. In exercise of the powers conferred by subsection (3) of section I of the Pakistan Employees' Social Security Ordinance, 1965 (West Pakistan Employees Social Security Ordinance, No,X of 1965). The Governor of the Punjab is pleased to apply with effect from 15 August, 1993 of the date of publication of Gazette Notification whichever is latter, the said Ordinance to the employers and employees of the establishments, mentioned in the schedule annexed hereto and or any other unit functioning in the premises of these establishments shall be entitled to benefits provided in section 35, 36, 37, 38, 39, 40, 41, 42, 43, 44 and 45 of the said Ordinance.
SCHEDULE {{TABLE}} S. No, Name of the Establishment.
1. M/s. Rupali Limited.
13-4, KM, Sheikhupura, Sharqpur Road, {{TABLE}} In case the aforesaid provisions of law be read together then it is crystal clear that once a notification is issued under section 1(3) of the Ordinance, notifying the areas, classes of persons, and Industries or establishments in which the Ordinance, was to apply then the obligation of the employers spelt out in sections 20 and 21 come into play and it is incumbent upon the employer to make the necessary contribution, keeping the necessary record and furnish the necessary returns as may be prescribed by the Social Security Institution under Rules or Regulations made in the Ordinance. It is also settled principle of law that obligations under the Ordinance are not dependent upon any action to be taken or initiated on the part of the Institution. On the contrary the appellants are statutory obligation incurred under the relevant provisions of the Social Security Ordinance. Meaning thereby failure on the part of the Institution to make any demand in respect of the contribution in question did not absolve the respondent from filing correct return and marking payment of contribution in time after issuing a notification by the respondents under section 1(3) of the Ordinance, on 19th October, 1993 which was duly published in Part-I of the Punjab Weekly Gazette November 10, 1993 at page 1032. In arriving to this conclusion, I am fortified the laid down by the superior Courts in the following judgments:-- ' Kohinor Chemical Co. Ltd. And another v. Sind Employees Social Security (PLD 1977 SC 197).
' Sindh Employees Social Security Institution v. Dawood Cotton Mills Limited (PLD 1988 SC 1)
' Sindh Employees Social Security Institution v. Rashid Textile Mills Limited (1980 PLC 1245).
' Sindh Employees Social Security Institution v. Silvarring Industries Limited, Karachi (1979 PLC 1062)
It is also settled proposition of law that the plea which was not taken in the grounds of appeal before the First Appellate Court then the same could not be taken at the time of hearing the second appeal before this Court. In arriving to this conclusion, I am fortified by the law laid down in Citybank N.A. v. Riaz Ahmad (2000 CLC 847).
' In view of what has been discussed above, I do not find any irregularity or infirmity in the judgment of the First Appellate Court, therefore, the appeal has no merits and the same is dismissed.