ANWAR ZAHEER JAMALI, J.--- By this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner has impugned the notification dated 12.1.1998 issued by the Government of Sindh in exercise of its powers conferred by sub-section (3) of Section 1 of the Provincial Employees Social. Security Ordinance, 1965 (hereinafter referred to as the Ordinance) whereby it was pleased to apply the said Ordinance with immediate effect to the employees and employers of the establishments mentioned in schedule (including the establishment of petitioner at serial No. 188 of the schedule) and to order that the employees of the establishment and their dependents will be entitled to the benefit to the extent and in the manner provided in Sections 35 to 45 of the Ordinance.
2. Precisely, the case of the petitioner is that under an agreement dated 26.2.1995 with respondent No. 1 they are already extending more benefits and facilities to their employees, inter alia, as detailed in paragraphs 8 and 9 of the petition, thus by impugned notification they cannot be forced to contribute 7% of the salaries of their employees to the respondent No. 2. Moreso as the respondent No. 1 viz. Registered Collective. Bargaining Agent of the employees of the petitioner mill are also not willing to join the scheme of respondent No. 2, being prejudicial to their interest. The notification referred above has also been impugned on the grounds that he same was issued without any show-cause notice to the petitioner and it violates Articles 2-A, 3, 4, 18, 23 and 24 of the Constitution.
3. Dr. Muhammad Farogh Nasim, learned counsel for the petitioner reiterated the facts disclosed in the memo. Of petition and mainly relied upon the agreement dated 26.2.1-995 to argue that the facilities provided by the petitioner to their employees are much more than what one can expect from respondent No. 2 by virtue of impugned notification and even the respondent No. 1 are not willing to avail the facilities which respondent No. 2 intend to provide to their members, thus such notification and consequential letters and demands be declared illegal, unconstitutional, void ab initio and of no legal effect. In support of his arguments learned counsel placed reliance on the case of Kohinoor Chemicals Co. Ltd. And another v. Sindh Employees' Social Security Institution and another (PLD 1977 S.C. 197).
4. Conversely, Mr. Khalid Habibullah, learned counsel for respondents Nos. 2 and 3, with reference to certain pleas raised in the petition, contended that such pleas advanced on behalf of the petitioner are wholly misconceived inasmuch as neither any show-cause notice was required to the petitioner prior to the issuance of impugned notification nor the same is in any manner violative of the spirit of various Articles of the Constitution. In this context learned counsel placed reliance on the following cases:-
(a) M/s. Standard Printing Press v. Sindh Employees' Social Security Institution (1988 S.C.M. R. 91).
(b) Sindh Employees' Social Security Institution v. M/s. Pakistan Tobacco Company Ltd. (1995 S.C.M.R. 32);
(c) Muhammad Siddique v. Market Committee Tandlianwala (1983 SCM R 785);
(d) Maple Leaf Cement Factory Ltd. v. Government of Punjab (PLD 2002 S.C. 726) = (2002 PSCC 1136).
He further contended that the plea of some private arrangements between the petitioner and respondent No. 1 under the agreement dated 26.2.1995 is also ill-founded as the contribution which is to be paid by the petitioner in response to the impugned notification has nothing to do with such agreement, therefore, neither such agreement would absolve the petitioner from making payment of such contribution to respondent No. 2 nor would it in any manner restrict the petitioner from undertaking any further beneficial steps for the welfare of their employees, despite making contribution in terms of the impugned notification and in accordance with law. To fortify his contention learned counsel also placed reliance on the following cases:-
(1) Pakistan Engineering Co. Ltd. v. Punjab Employees' Social Security Institution, Lahore (1981 P.L.C.
79);
(2) Sindh Employees' Social Security Institution v, M/s. Spencer and Company (Pak.) Limited (1998 S.C.M.R. 440);
(3) Judgment dated 20.8.1978 in the case of People's Steel Mills Ltd. v. Sindh Employees Social Security Institution (C.P. No. 789 of 1977).
5. In his reply arguments Dr. Muhammad Farogh Nasim squarely placed reliance on the case of Mehran Sugar Mills Ltd. Sindh Employees' Social Security Institution and two others (1991 P.L.C. 310) and contended that now the petitioner are willing to seek registration with respondent. No. 2 and to pay future social security contribution to them in accordance with law but they are entitled for the benefit of adjustment of the sums/contributions which they had already paid to their employees during the intervening period from the date of issue of notification till the disposal of this petition as was done in the aforesaid case. He also placed on record photo-stat copy of order dated 8.9.1991 passed by the Hon'ble Supreme Court of Pakistan in CPLA No. 561-K of 1991, whereby the said judgment was maintained and consequently leave to appeal was refused. Learned counsel candidly stated that he is not contesting some of the grounds taken in the memo. Of petition viz. Eon-issuance of show-cause notice before notification and alleged violation of some Articles of the Constitution, as shown in ground No. (B). He lastly urged that if this petition is disposed of in 'ine with the observations contained in the judgment in the costs of Mehran Sugar Mills Ltd. (supra) and in the case of Kohinoor Chemicals Co. Ltd. (supra) the petitioner will be satisfied with such disposal of this petition.
6. Mr, Khalid Habibullah did not agree to such proposal of Dr, Muhammad Farogh Nasim and specifically referred the case of Sindh Employees' Social Security Institution v. M/s. Spencer and Company (Pak.) Limited (1998 S.C.M.R. 440) to fortify his submission that petitioner cannot be given benefit of their own wrong when after issuance of impugned notification on one hand they failed to seek registration with respondent No 2 in accordance with law and on the other hand now claiming exemption from the payments for the period which they consumed in un-necessary litigation. He further submitted that respondent No. 2 in such circumstances cannot be held responsible for any fault as it was in view of the interim order dated 28.4.1998 passed in this petition, which was extended/continued from time to time, that they were unable to take any further steps against the petitioner.
7. I have carefully considered the arguments advanced by the learned counsel for the parties and perused the case record.
8. The two contentions raised by the petitioner with reference to the claim of show-cause notice and alleged violation of some Articles of the Constitution are repelled from the observations contained in the cases noted at serial Nos. (a) to (d) in paragraph four above. This position is also not controverted by the learned counsel for the petitioner. Thus no further discussion is needed in this regard.
9. The other contention of Dr. Muhammad Farogh Nasim that payment of prescribed contribution to respondent No. 2 in consequence of impugned notification will be prejudicial to the interests of employees of the petitioner is also fallacious and has no force as such payment of contribution to respondent No. 2 does not in any manner delimit benefits to the employees of the petitioner in terms of Sections 35 to 45 of the Ordinance within the scale of such contribution. Further it will be pertinent to mention here that such payment of contribution by the petitioner also in no manner restrict them from undertaking any other welfare or beneficial scheme in favour of their employees either in terms of the agreement dated 26.2.1995 or even beyond that. Viewing. The validity of the agreement dated 26.2.1995 or any particular clause thereof on the premises that the same is in conflict with the impugned notification or any other provision of the Ordinance, it may be observed that in such situation by virtue of Section 23 of the Contract Act the agreement or that particular clause of the agreement, as the case may be would be void, therefore, the question of creating double liability on the petitioner would also not arise. Thus it is apparent that under the cover of such agreement the petitioner cannot be absolved of their 'liability under the statute which has become due soon after issuance of impugned notification. It is also worthwhile to mention here that petitioner is not the only Sugar Mill in Sindh which has been brought under the purview of Social Security Ordinance, 1965 but there are also many other Sugar Mills covered under the said scheme by the same notification and schedule annexed thereto.
10. The last submission of the learned counsel with reference to certain observations of 'a Division Bench of this Court in this case of Mehran Sugar Mills Ltd. (supra) is also equally without force as the facts and circumstances of that case are distinguishable from that of the present case and the relief extended was also based on different premises. It will be seen that in the instant case respondent No. 2 has not claimed any arrears from the petitioner for the period for which the petitioner might have contributed/spent some amount for the welfare of their employees under the agreement dated 26.2.1995 or otherwise, before the date of issuance of impugned notification.
In case the petitioner after issuance of impugned notification have avoided to fulfil their statutory obligations and opted not to seek registration with respondent No. 2 and pay contribution as required by Section 20 of the Ordinance and under the scheme of Chapter III of the Ordinance and further dragged respondent No. 2 in litigation in the shape of present petition, then no benefit of such wrong committed by the petitioner can be extended to them. The question of not providing any benefit to the employees of the petitioner by respondent No. 2 during the intervening period and extending some relief to the petitioner on this pretext also does not arise as such benefits to the employees of the petitioner were only available if the petitioner had obtained registration of their establishment with respondent No. 2 and started paying contribution to them. As a matter of fact, pendency of this petition for five years has deprived respondent No. 2 of their lawful claim against the petitioner for such period. In such circumstances, by following the course suggested by the petitioner they cannot be awarded premium of their own unlawful conduct. In this context following observations of the apex Court in the case of Sindh Employees' Social Security Institution (supra) are relevant as the same amplify correct legal position: "(8) We may observe that once a notification is issued under the relevant provision of the Ordinance notifying an establishment covered by the scheme, it becomes liable to contribute the social security contribution by operation of law. Similarly, the specified benefits under the Ordinance would accrue to all employees of the said Establishment who are working either in the Establishment or in connection with the work of the same as held by this Court in the use of Kohinoor Chemical Co. Ltd. (supra). The factum that the employees concerned were unable to receive the benefit under the Ordinance for want of registration of employees with the appellant in terms of the Ordinance would not, in any way, affect the liability of the Establishment to contribute the social security contribution in terms of the Ordinance and the rules framed thereunder as it cannot take benefit of its own wrong.
9) We may also refer to the judgment of this Court in the case of Shaheen Airport Services v. Sindh Employees' Social Security Institution (1994 SCM R 881), wherein it has been held that while construing a beneficial enactment, the Court can take into consideration the objects for which it was enacted and the mischief which it intended to suppress and if two possible constructions of a provision of such a statute are possible: one which favours the class of persons for whose benefit the statute has been enacted would be preferred.
(10) If we were to accept the view found favour with the Courts below, it would lead to unreasonable consequences, namely, that an Establishment may not get itself registered in terms of the. Ordinance and may avoid payment of social security contribution on the plea, that its employees have not been granted any benefit can be availed of by the employees who are registered with the appellant by their employer in terms of the Ordinance and not otherwise, but non-registration of the employees with the appellant would not absolve the employer. Concerned if his establishment is notified under the Ordinance from his liability to contribute social security contribution."
11.. From the above it is also evident that the ratio of judgment in the case of Kohinoor Chemicals (supra) also does not help the case of petitioner in this regard.
12. Besides, the jurisdiction of this Court under Article 199 of the Constitution, which is discretionary in nature is aimed to foster the cause of justice and not to help a party which has not approached the Court with dean hands or: wants to protect some ill-gotten gains or even wants to take benefit of some ill-advited litigation. On this score too petitioners are not entitled for any relief in this petition. If any case-law is needed to fortify this view reference may be made to the following cases:-
(1) Khiali Khan v. Haji Nazir and four others. (P.L.D. 1997 SC 304); Mst. Kaniz Fatima through Legal Heirs Muhammad Saleem and 27 others (2001 S.C.M. R. 1493).
13. Foregoing are the reasons for the short order passed today whereby this petition was dismissed. 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.