This order shall also dispose of two other petitions namely W. P. 2767 and 2768 of 1978 which involve the same questions as are raised in this petition.
2. The petitioner company is manufacturing porcelain insulators in its Factory situate at Lahore- Sheikhupura Road. Originally the provisions of West Pakistan Employees Social Security Ordinance, 1965 (hereinafter called the Social Security Ordinance) were ordered to be applied to the petitioner---Company with effect from 1st March 1973. That order was, later suspended an 24th February 1973. The Act was made applicable again on 1st October 1976. Its application was again suspended on 20th April 1977.
3. On 7th November 1977, the Government issued a notification imposing on the petitioner- Company a special tax at the rate of 2 % of the wages paid by it to its employees under section 70 of the Social Security Ordinance, with effect from 3rd December 1977. By the same notification be same special tax was levied on the other two petitioners. They all challenge the said notification through these constitutional petitions.
4. The petitioners raise two points for consideration :-----
(i) The Government having not consulted the Institution, before levying the special tax, the levy was unlawful, to view of the pro- 3 section 70 ;
(ii) That in any case, the petitioner companies do not fall within the mischief of section 70."
Section 70 lays down that the levy shall be imposed by the Government after consultation with the Employees' Social Security Institution . . . . . It has been created under section 3 of the Social Security Ordinance. Admittedly, no consultation took place with the 'Institution' in any of the three cases.
What happened in this case was that the Commissioner, Social Security wrote to the: Government spelling out a necessity to raise more funds for buildings, hospitals, etc. Alongwith the letter he sent a draft notification to publish the same in the official Gazette. The Government, it is submitted, without applying its own mind under section 70 and without consulting the Institution, issued the notification.
5. The learned counsel for the respondent submitted that the Commis--sioner, Social Security is the Chief Executive of the Institution. He is appointed under section 18 of the Social Security Ordinance and is empowered to perform all those functions which the governing body could do.
Reference was made by him to sections 4 and 18 of the Social Security Ordinance in support of this plea.
6. It is to be noted that the levy under section 70 is to be made by the Government after consultation with the 'Institution'. The 'Institution' according to section 3 is a body corporate having perpetual succession and a common seal and can sue and be sued by its name. The Management of the Institution is vested in the Governing Body which, with the assistance of a Commissioner, may exercise all powers and do all acts and things which may be exercised or done by the Institution. The 'Governing Body' according to section 5(l) is composed of 16 members. It may be advantageous to reproduce this section herebelow for ready reference :--- "The Governing Body shall consist of the following members to be appointed by Government, by notification, namely.
(a) a person who is or has been a Judge of the High Court or a senior officer in the serer of Pakistan not below the rank of a Commissioner of a Division or Secretary to Government, and such person shall be the Chairman of the Governing Body ;
(b) four persons to represent Government, one each respectively from the Department 'of Labour, Industries, Health and Finance;
(c) three persons to represent employers ;
(d) three persons to represent secured persons ;
(e) the Medical Adviser, ex officio."
7. The powers and functions of the Governing Body are given in section 6. The decisions of the governing body are to be taken at a meeting which must have a quorum of 5. Its orders and decisions are to be authenticated by the signatures of the Chairman. The Commissioner, according to section 18 is the Chief Executive of the Institution and is required to act as Secretary to the Governing Body. He is responsible to it in respect of all matters relating to the structure, administration and personnel of the Institution. As regards his powers of appointment etc. Of the staff, the same are to be provided by regulations.
8. The Governing Body may, according to section 77, direct that all or any of its powers and functions may in relation to such matters and subject to such conditions if any, as may be specified, be exercised by the Commissioner or any other officer or authority subordinate to the Institution. Specific powers have been given to him wherever the Legislature so desired. Reference be made to section 67 under which the Commissioner has been directly empowered to grant sanction for prosecution. Section 26 confers a power in him subject to rules while section 20(6) does so subject to regula--tions etc. Section 80(1)(x) provides for framing regulations to confer powers upon the Commissioner with regard to appointment, transfer, promotion, dismissal and other matters affecting the staff.
9. The above provisions of law do clearly spell out the position of the Commissioner. He is only the ex officio Secretary of the Governing Body. He: is required to assist the Governing Body and he or other officers can exercise only such powers of the Governing Body as may be delegated to him under section 77. He is also the Chief Executive which means that he has to execute all the orders and directions given by the Governing Body. The only order that he can pass independently is that of sanction of prosecution under section 67.
10. In view of the above provisions, the Commissioner is not a substitute of the Governing Body and can in no case be called the Institution. The Institution is in law the legal person and the Governing Body in fact is the Institution. The Commissioner is only the servant of the Institution. He has to either execute whatever is ordered or decided by the Governing. Body or rely on a delegated power if he performs any function of the Governing Body. However, the consultation is not such a function besides the fact that there is no delegation of such a function made to him. As is clear from section 5(1) reproduced above, the Governing Body consists of a Chairman, four persons representing Government from the Departments of Labour, Industries, Health and Finance. There are 3 representatives each of employers and the employees and a Medical Officer. How can the interest of all those quarters be represented by the Commissioner and how can the Governing Body abdicate its powers? It would rather amount to defeating the law itself.
11. The letter sent by the Commissioner to the Government, along with the draft notification could, therefore, be considered at the most a suggestion from him. Consequently, it was the duty of the Government to have considered the same objectively in accordance with law. Thereafter, if the Government was so minded to accept the suggestion, it ought to have consulted the Institution under section 70 before issuing the above-said notification.
12. The next question is what is meant by consultation and could the letter of the Commissioner be considered to be a sufficient consultation, even if we take, for the sake of argument, that the Commissioner was exercising the powers of the Governing Body? This term has not been de-fined in the Ordinance. According to Dictionary, it means to ask advice of to look up for information or advice, to discuss, to consider jointly. To consult, according to 'Words and Phrases', Permanent Edition, Vol. 9, page 3, means to apply for direction or information; to ask advice of, to discuss something together to deliberate; to seek the advice and opinion of another. Consultation pre- supposes that the one who has to consult has problem on a proposition. It could lx: between a layman and an expert or between two experts. It was, therefore, for the Government to initiate and put forward the proposition to the institution its advice or suggestions.
13. The learned counsel for the petitioner referred to the case of Rollo v. Minister etc. ((1948) 1 All E R 13). It was held by Bucknill, J., in that case that consultation means that on the one hand, the Minister must supply sufficient information to the local authority to enable them to tender advice and, on the other hand, a sufficient opportunity must be given to the local authority to tender that advice. The High Court of Madras also had an occasion to construe similar provisions in R.
Pushpam and another v. The State of Madras (AIR 1953 Mad. 392). Section 43 of the District Municipalities Act provided; "For the purpose of election of Councillors to the Municipal Council, the Local Government after consulting the Municipal Council may by notification --------- The Court interpreted that provision in the following words :----- "This turns upon the construction of the words "after consulting" in the section.
The word "consult" is so familiar that it often eludes the grasp of easy and exact definition. In the Law Lexicon by P. Ramanatba Aiyar it is stated as follows; `Consultations always require two persons at least; deliberations may be carried on either with a man's self or with numbers; an individual may consult with one or many; assemblies commonly deliberate; advice and information are given and received in consultations; doubts, difficulties, and objections are stated and removed in deliberations. Those who have to co-operate must frequently consult together; those who have serious measures to decide upon must coolly deliberate."
The word "consult" was subject of a judicial scrutiny in `Fiether v. Minister of Town Planning' ((1947) 2 All E R 496). The question arose in connection with an application taken out for quashing the order made by the Minister for Town and Country Planning. The Minister designated an area of land as the site of a proposed new town. It was contended that the requirements of the New Towns Act, 1946, had not been complied with in relation to the making of the order, in that there was no "consultation" within the meaning of section 1(1) of the Act between the Minister and the Local authorities before the making of the order, designating the area of land in question as the site of the proposed new town. On the facts the learned Judge held that there was the requisite consultation; but in dealing with the question, at e page 500, the learned Judge observed; "The word `consultation' is one that is in general use and that is well-understood. No useful purpose would, in my view, be served by formulating words of definition. Nor would it be appropriate to seek to lay down the manner in which the consultation must take place. The Act does not prescribe any particular form of consultation. If a complaint is made of failure to consult, it will be for the Court to examine the facts and circumstances of the particular case and to decide whether consultation was, in fact, held. Consultation may often be a somewhat continuous process and the happening a one meeting may form the background of a later one."
It is clear from the aforesaid observations that the Court will have to scrutinise in each case whether the requisite consultation has taken place having regard to the substance of the events.
The word "consult" implies a conference of two or more persons or an impact of two or more minds in respect of a topic in order to enable them to evolve a correct, or at least a satisfactory solution: Such a consultation may take place at a conference table or through correspondence. The form is not material but the substance is important. It is necessary that the consultation shall be directed to the essential points and to the core of the subject involved in the discussions. The consultation must enable the consulter to consider the pros and cons of the question before coming to a decision. A person consults another to be elucidated on the subject-matter of the consultation. A consultation may be between an uninformed person and an expert or between two experts." A patient consults a doctor; a client consults his lawyer; two lawyers or two doctors may hold consultations between themselves.
14. The learned counsel also placed reliance on Chairman, Evacuee Trust Property, West Pakistan, Lahore v. Muhammad Din and another (PLD 1971 Lah. 217) and Col. Bashir Hussain and 10 others v.
Land Acquisition Collector, Lahore Improvement Trust, Lahore and 2 others (PLD 1970 Lah. 321) to say that whenever law provides a manner of doing a particular thing in a particular way the public functionaries should do the same in that particular way or not at all. The argument advanced in the above judgments is that as the consultation was a prerequisite to any levy, the impugned notification is invalid and ineffective.
15. Both the learned counsel relied on para. 13 of Messrs Ansar Brothers, Multan v The Punjab Employees Social Security Institution, Lahore and another (PLD 1977 Lah. 651) to submit that the Commissioner as the Chief Executive has the same powers as that of the Governing Body and, therefore, had the right to act on behalf of the Governing Body. The question: involved in this case was whether the Commissioner had the jurisdiction - to decide a complaint filed before the Institution under section 57 of the Social Security Ordinance. Section 57 provided that a complaint shall be decided by the Institution "in such manner and within such time as the regulations may provide". Section 80(2) (xxvi) conferred power on the Governing Body to make regulation for "the manner in which and the time within which complaints, questions and disputes shall be decided."
In exercise of the above power, the Governing Body framed regulations by which Commissioner was empowered to decide those matters. It was held in the above case that the Commissioner was the known substitute for the Institution under the regulations and even under the delegated powers. There is no regulation, rule or a delegation in favour of the Commissioner and, therefore, the above case cannot be helpful in the present case.
16. In view of the above, the contention being raised by the learned counsel for the petitioners is based on well established legal position and is, therefore, correct. The Government was obliged to consult the Governing Body and not the Commissioner, before it passed any order under section
70. It is also quite clear from the above facts that the Government neither consulted the Commissioner nor the Institution. The case had in fact beta initiated by the Commissioner and the Government accepted the same as such. Rather, it appears that the Government was not even mindful of the restriction to the exercise of its powers it had to exercise under section 70. The impugned notification, therefore, cannot be allowed to stand.
17. The question whether section 70 of the Social Security Ordinance is applicable or not has been discussed in detail in Burewala Textile Mills v. The Government of Punjab W. P. 4491-78. For the reasons given therein I hold that section 70 does not apply in this case also. The levy of special tax is thus unlawful even on that ground.
For the reasons given above, the impugned notification is declared to be without lawful authority and of no legal effect. The respondents shall also pay the costs of the petitioners,