1. ' Through this judgment I intend to dispose of Writ Petition No,4106 of 1996 filed by Crescent Textile Mills Ltd. And Writ Petition No,16176 of 1995 filed by Messrs Maple Leaf Cement Factory Ltd. As common question of law and facts are involved in both the writ petitions.
2. ' Writ Petition No,4106 of 1996.
3. ' Brief facts of the case are that petitioner is a public Ltd. Company and is mainly engaged in manufacturing grey cloth and cotton yarn whereas respondent No,3 is a Corporate body in both writ petitions established under the Employees Old Age Benefit Act, 1976 with powers to receive and collect the "EOB Contributions" payable under the Act by the employer of an Industry or establishment in respect of their employees. Being aggrieved by a show-cause notice dated 23-11- 1991 issued by the Assistant Director of respondents "EOB" by which the petitioner has been directed to make the payment of Rs,14,40,000 for insured persons alongwith .Rs,7,20,000 towards statutory increase. The petitioner was directed to pay the arrears of the contribution assessed abovesaid which were due within 15 days. It was mentioned in the said show-cause notice that the Institution of the petitioner had not been making correct payments of the contribution on the wages/salaries of insured persons and the petitioner had failed to provide the necessary record and also failed to pay the dues actually payable by him. This amount was demanded for the period from October, 1989 to September.
4. 1991. This show-cause notice was replied by the petitioner vide letter dated 17-12-1991 in which it was requested that the certain details might be provided so that the petitioner and the respondent EOB could arrive at a mutually acceptable conclusions. Petitioner being aggrieved by the said show-cause notice also filed a petition under section 33 of the Employees of Old Age Benefits Act.
5. 1976 for the purpose of determining the question and claims arising therefrom. The petitioner- Company claims that the petitioner is not liable to pay the dues of the employees of the contractors who are engaged for loading or unloading cotton bags, Civil Works, Canteen etc. As the job of these works is being awarded to independent contractors against the payment in lump sum. The required number of employees for the above said job were engaged by the contractors and they being not employees of the petitioner he was not liable to make the payment of the amount for these workers; and the individual contractors were liable for the payment, of those persons. Respondent No,2 with the consent of the petitioner appointed a commission to determine the actual dues by the petitioners-Company. The commission gave the finding and after the perusal of the record directed that an amount of Rs,13,34,055 was due from the petitioner in respect of the dues payable to the respondent No,3. Respondent No,2 on the basis of the above said report of the commission vide order dated 14-4-1993 dismissed the petition filed by the petitioner under section 33 of the Act and held that the petitioner was liable to make the payment of the employees as decided by the commission and determined an amount of Rs,13,34,055 towards contribution to the respondent and Rs,6,67,027 towards 50% statutory increase. The petitioner aggrieved by the said decision filed an appeal before respondent No,1 under section 35 of the Employees Old Age Benefit Act, 1976 which was also dismissed vide order dated 7-1-1996.
6. ' Writ Petition No,16176 of 1995.
7. ' The petitioner is a limited company and respondent No,3 issued a show-cause notice for the payment on 19-11-1991 for an amount of Rs,1,55,000 as outstanding dues and Rs,7,75,000 towards 50% statutory increase. After the receipt of the notice the petitioner filed reply and being dissatisfied with this reply filed a petition before respondent No,2 adjudicating authority under section 33 of the Act which was dismissed vide order dated 27-5-1993. The petitioner filed an appeal which was dismissed vide order dated 16-10-1995. Both the orders are impugned in this writ petition.
8. ' The main contention of the learned counsel for the petitioners is that the petitioners are not employers of the employees who are engaged on temporary basis by the contractors for the work allotted to them, hence they are not liable to make the payment of contribution of such employees.
9. It is contended by the learned counsel for the petitioners that as the petitioners Companies have to give work on contract and the contractors employed their own workers who are not secured labourers and does not fall within the definition of section 2(bb), therefore, the liability of contribution cannot be imposed upon the petitioners. It is further contended that only those employees who are permanently absorbed in the employment by the petitioner, the dues of such employees can be said as outstanding dues and the claim can be made by respondent No,3 for the payment of these dues only and dues of such employees were duly paid in accordance with law, thus show-cause notice the impugned orders are liable to be set aside. Reliance is placed on PLD 1976 Lahore 1169, 1989 PLC 434. 1983 PLC 198, 1990 PLC 21, 1990 PLC 26 and 1987 SCMR 1463.
2. On the other hand Mr. Muhammad Shan Gull Advocate, appearing on behalf of the Advocate General Punjab raised objections that the employees. Under section 2(bb) of the Act whether employed/engaged directly or indirectly are employed in connection with the affairs of the Industry/ Establishment and the employer is bound to make the payment for such employees. It is contended by the learned counsel that the judgment relied upon by both the respondents Nos.1 and 2 while deciding the issue reported as 1989 SCMR 888 is fully applicable in the facts and circumstances of this case and these petitions are liable to be dismissed. It is further contended that both the concerned authorities had arrived at a conclusion justly and fairly and the decisions have been passed by the authorities who were competent to pass the same. The writ petitions are not maintainable and are liable to be dismissed.
3. I have heard the learned counsel for the parties and also perused the impugned orders and also the case-law cited by the learned counsel for the parties. Under section 2(bb) of the Act an 'employee' has been defined as meaning any person employed whether directly or through any other person for wages or otherwise, to do any skilled or unskilled, supervisory, clerical, manual or other work in, or in connection with the affairs of, an industry or establishment, under a contract of service or apprenticeship, whether written or oral, express or implied, and includes such person when laid off; similarly the word 'employer' has also been defined in clause(c) of this section and according to this employer, in relation to an industry or establishment, means any person who employees, either directly or through any other person, any employee, and includes(1) in the case of an individual, an heir successor, administrator or assign; (II) a person who had ultimate control over the affairs of an industry or establishment are entrusted to any other person (whether called a managing agent, Managing Director, Manager, Superintendent, Secretary or by any other name), such other person; and (III) omitted by the Finance Act I of 1986." From the bare perusal of the above said definition any person if is directly or indirectly employed in connection A with the affairs of the Industry/establishment, the dues of the same have to, be deposited before the respondent No,3 under this Act by the employer. It is to be seen whether employees of a contractor can be termed as employees and, therefore, dues are to be deposited with the respondent No,3. It cannot be held that employees who are employed by a contractor for the job in the Industry or establishment are not covered by the above said definitions. The question raised by the petitioners in these petitions has been dealt with by the superior Courts in number of cases. First of all I would like to discuss the case reported as 1989 PLC 434. The judgment was passed by Saad Saood Jan J.
10. As he then was. He relied upon PLD. 1976 Lahore 1169. Distinction was drawn between the contractor who has been engaged to procure the necessary labour or to use, from general expression manpower for the establishment and a contractor who has been entrusted to perform a certain function or functions for the establishment It has been held that in the former case even though the worker has not been directly employed by the establishment yet they are completely under its control and supervision. The establishment can regulate and formulate their principles, wages, hours of week, leave and mode of performance of their duties and in case the establishment finds their work unsatisfactory it can terminate their services by sending them hack to the contractor but in the other case where the contractor has been engaged to perform certain functions and has to be paid according to the work done by him, the persons employed by him are admittedly not to be treated as workers for the establishment for in such a case the establishment has no control over them nor can it regulate their terms and conditions of employment. Even the facts of this case are not applicable to the case in hand, as the question arises in a different context, whether the levy of tax assessed on the labour employee by contractors for performance of their contracts/assignments is payable by the employer or not. No support is found for the arguments of the learned, counsel for the petitioner who has failed to show as to how many workers fall within the categories which have been given in this judgment. Hence the cases reported in 1989 PLC 434 and PLD 1976 Lahore 1169 are not applicable. In these cases, the duties were not liable to be paid to the respondent No,3 as they fell out of the first category as is stated above. The allegation is levellea that these workers are not employees as they are working with the contractors. As far as the other case cited by the learned counsel for the petitioners reported in 1983 PLC 198 it is the decision of an administrative/adjudications authority. Similarly KLR 1982 Tr.C. 215 is also a decision of the Tribunal and is not binding on this Court, and cannot be given any importance. The other case-law cited by the learned counsel for the petitioner is not applicable to the facts and circumstances of the case. On the other hand there are judgments in which this issue has been resolved by the august Supreme Court. In the case reported as 1989 SCMR 888 the august Supreme Court has held that employments were liable to contribution for all kinds of worker and its failure to pay would result in imposition of penalty by way of increase in amount payable and also prosecution before criminal courts. The august Supreme Court has held that the question, whether one was employed or not within the ambit of section 2(bb) of the Employees' of Old Age Benefit Act 1976 would be determined by the facts and circumstances of each case. It was held that definition of employees for the purpose of contribution mean any person in service of establishment whether employed directly or indirectly for wages or otherwise under contract of service or apprenticeship whether express or implied including such persons laid off if they were requited, to do any skilled, unskilled supervisory clerical or otherwise. Employer would not ignore from this operation even part time employees under service for wages or otherwise. I am fortified by this judgment and I find support from the same judgment which is relied upon by the respondents Nos.1 and 2 while deciding the issue. In 1989 SCMR 888 the august Supreme Court of Pakistan has also held that the employees of a contractor also fall within the definition of worker of the Industry and establishment because they have been engaged by a contractor as a worker in the Industry through contract in connection with the affairs of the Industry/establishment. The bare perusal of the above case-law is enough to convince that the same is applicable to the facts and circumstances of the present case and the matter pertaining to these writ petitions. It has already been settled that the employees on the contract are employed in the definition of section 2(bb) of the Act, hence the petitioners were bound to deposit the amount before the respondent No,3 and even otherwise petitioner has filed the evasive reply of the show-cause notice for the payment of the dues issued by the respondent. No,3 and no specific stand has been taken throughout the proceedings before filing a petition under section 33 of the Employees Old Age Benefit Act, 1976 challenging dues, directed to be paid about the employees on contract and first time this question had been raised before the respondent No,2 and there has not been mentioned a detail of the employees who are employees of the contractor and the distinction as drawn in 1989 PLC 434 has also not been mentioned that these workers do not fall within the definition of workers for the deposit of the dues by the petitioner. Even otherwise there is another question that the petitioner and the respondent No,3 with consent appointed a commission who gave its verdict after the perusal of the record against the petitioners. Both the respondents Nos.1 and 2 have passed the orders after considering all the questions raised by the petitioners. The C finding of fact arrived at by the commission appointed with consent of both the parties and thereafter by the respondent No,2 and the Appellate Authority cannot be disturbed in writ jurisdiction. The orders are supported by sufficient material. No exception can be taken to the orders impugned in these petitions in Constitutional jurisdiction. These petitions have no merits and are dismissed.