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Appeal No. 3 of 1975, decided on 25th June 1975.

---Ss. 23 & 59‑Audi alteram partem‑Principle of natural justice No one should be condemned unheard‑Imposition of increase‑Notice to party and opportunity to explain non‑deposit of contribution Principle of natural justice not expressly excluded from provision of S. 23‑Affected party must be afforded opportunity of show‑cause before imposition of increase‑Order regarding imposition of increase without notice and show cause opportunity, held, illegal.

Adamjee Cotton Mills, Karachi v. Sind Employees' Social Security Institution 1974 P L C 213 and University of Dacca v. Zakir Ahmad P L D 1965 S C 90 rel.

Malik Bashir Ahmad for Appellant.

Riaz Anwar for Respondent.

The Punjab Employees' Social Security Institution, vide its communica tion No. S. S. L. E, Cont/76/24185, dated 16th September 1974 informed the appellant viz. Messrs Lahore Chemical and Pharmaceutical Works Ferozepur Road, Lahore that since as a result of visit of their premises by the Social Security Officer, it had transpired that they have not been paying the social security contribution in conveyance allowance paid to their workers, they were required to pay the amounts worked out as follows:

Rs.

(1) Conveyance Allowance paid to Workers from December

1972 to June 1974. 23160.90

(2) Paid to temporary staff firm March, 1971 to June 1974, 53,796.36

Total 76,957.26

(3) 6 % Contribution. 4,617.42

(4) 50 % Increase. 2,308.71

Total 6,926,13

2. The appellant by way of a complaint under section 57 of the West Pakistan Employees Social Security Ordinance, 1965 challenged the imposition of increase. The complaint was heard by the learned Commissioner, Punjab Employees' Social Security Institution, Lahore who,‑vide his order dated 2nd April 1975 disallowed the appellant's claim and directed that the appellant shall have to deposit Rs. 6,926.13 as indicated above.

3. The present appeal under section 59 of the West Pakistan Employees' Social Security Ordinance, 1965 has filed against the aforesaid order dated 2nd April 1975 of the learned Commissioner, Punjab Employees' Social Security Institution Lahore. The validity of the imposition of increase amounting to Rs. 2,308.71 has been challenged on the ground that the appellant was given no opportunity to explain before the increase was imposed and in this manner the imposition of increase took place in utter disregard of the principle of natural justice that no one should be condemned unheard.

4. Perusal of the impugned order of the learned Commissioner, Punjab Employees' Social Security Institution, Lahore reveals that this plea was also taken up before the Commissioner by the appellant but the learned Commissioner observed in paragraphs 3 and 4 of the impugned order that the appellant were properly addressed by the Director Lahore to deposit the contribution but they failed to deposit the contribution by the due date and therefore the increase amounting to Rs. 2,308.71 was imposed.

I am afraid these observations of the learned Commissioner are not born out by the records. The factual position as transpires from the record is that no opportunity was provided to the appellants for payment of the contribu tion and by one and the same order i.e. the communication of 16‑6-74 the appellant was informed that they were required to pay contribution of conveyance allowance amounting to Rs. 4,617.42 and 50% increase amounting to Rs. 2,308.71, the total being Rs. 6,929.13. In this manner no show‑cause notice was given before the imposition of increase.

5. The learned counsel for the institution maintained that according to section 23 of the West Pakistan Employees' Social Security Ordinance, 1965 the imposition of increase is automatic on the unpaid amount of contribution and no notice in this behalf is required to be served before such increase is imposed. This is sure that according to the language of section 23 ibid no show‑cause notice is contemplated but at the same time the provisions of section 23 do not expressly exclude the application of the principle of natural justice that no one should be condemned unheard. In the absence of such an express exclusion is to be implied that imposition of increase under section 23 would be ordered after affording opportunity to show cause to the affected party. In Adamjee Cotton Mills, Karachi v. Sind Employees' Social Security Institution (1974 P L C 213) it has been held by the Sind Baluch1stan High Court that an action taken under section 23 of the West Pakistan Employees Social Security Ordinance, 1965 without hearing the affected party was illegal. While holding this view the learned Judge of the Sind & Baluch1stan High Court placed reliance on the Supreme Court judgment in re: University of Dacca v. Zakir Ahmad (P L D 1965 S C 90).

6. In the light of what has been said above it is concluded that in the under consideration case the imposition of increase amounting to Rs. 2,308.71 was ordered in violation of the principle of audi alteram partem and therefore such an imposition is patently illegal. I would accordingly accept the appeal set aside the impugned order and direct that the claims against the appellant regarding the increase amounting to Rs. 2,308.71 be waived.

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