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Civil Petition No.K‑39 of 1984, decided on 22nd November, 1984.

(On appeal from the judgment and order of the Sind High Court, dated 15‑11‑1983 in M.A. No. 33 of 1983).

‑‑‑Art. 185(3)‑‑West Pakistan Employees' Social Security Ordinance (IX of 1965), S. 62‑‑Social Security Court‑‑Stay of proceedings and adjournment of appeal sine die until decision of superior Court on same point of law‑‑Order upheld by High Court‑‑Question of adjourning hearing of an appeal for an indefinite period until decision of a superior Court on a point of law which has binding force upon Social Security Court, is a matter dependent upon circumstances of each case‑‑Discretion having been properly exercised‑‑Order passed on legal grounds, supported by reasons being neither arbitrary nor capricious‑‑Interests of petitioner protected with care‑‑No interference called for‑‑Case not being fit one for grant of leave to appeal, petition dismissed.

S. Ahmed Sarwana, Advocate Supreme Court instructed by Faizanul Haq, Advocate‑on‑Record for Petitioner.

Fatehali Valiani, Advocate and Nizam Ahmad, Advocate‑on‑Record for Respondent.

Date of hearing: 22nd November, 1984.

‑‑The petitioner Sind Employees Social Security Institution (SESSI) has brought this petition for leave to appeal from the judgment of the High Court of Sind, Karachi, dated 15‑11‑1983, whereby the appeal filed by the petitioner under section 64 of the Sind Employees Social Security Ordinance, 1965 was dismissed.

The facts relevant for the present purposes are that the petitioner institution called upon the management of the respondent company to pay Social Security Contribution on the incentive bonus paid by it to its workers. The respondent objected to this and raised a dispute with the Institution over the payment of contribution on the ground that incentive bonus did not constitute a part of the wages. The matter was referred to the Commissioner, Sind Employees Social Security Institution, Karachi, who by his order, dated 2‑11‑1982 held that the incentive bonus paid by the respondent to its workers was liable to be taken into account for the purposes of the contribution. The respondent thereupon filed an appeal before the Sind Employees Social Security Court No. 1, Karachi. During the pendency of this appeal, however, the Social Security Court, by its order, dated 22‑2‑1983 stayed the proceedings of appeal sine die. The ground on which the said order was passed was that the impugned order in appeal before the Court was based on a judgment of the High Court of Sind against which an appeal was pending before this Court, which had also stayed the operation of the said High Court judgment. The Social Security Court observed that the view expressed by the High Court of Sind in several cases on the point of law material for the decision of the appeal, having binding force upon it, the appeal will have to be decided in accordance with such view and the matter will eventually have to go to the Supreme Court for final decision. All this would result in multiplicity of proceedings according to the Court and, therefore, it was appropriate to adjourn the hearing of the appeal sine die to await the verdict of the Supreme Court on the question of the law.

The order, dated 22‑2‑1983 staying any further proceedings of the appeal was challenged by the petitioner in a miscellaneous appeal under section 64 of the Sind Employees Social Security Ordinance, 1965, before the High Court of Sind, Karachi, but as already stated the High Court dismissed the appeal agreeing with the Social Security Court that the adjournment of the case until the decision of the Supreme Court on the question of law was justified in the circumstances of the case.

Learned counsel appearing in support of this petition contended that the adjournment of the appeal sine die on the ground that the same point of law was sub judice before the Supreme Court was illegal and without jurisdiction. Learned counsel argued that in several cases High Courts have proceeded to dispose of cases notwithstanding the fact that the same point of law was under consideration before the Supreme Court and if the view taken by the Social Security Court is allowed to prevail, thousands of cases pending before the lower Court will have, on similar ground, to be adjourned sine die until the decision of the Supreme Court which will be contrary to the interest of justice and expeditious disposal of cases. On the other hand, learned counsel for the caveator had submitted that discretion exercised by the Social Security Court, was just and appropriate in the circumstances of the case, in order to avoid unnecessary multiplicity of proceedings.

After hearing the learned counsel for the parties at length we have come to the conclusion that the present is not a fit case for grant of leave to appeal. It has been conceded on the part of the learned counsel for the petitioner that the Social Security Court possessed the jurisdiction to adjourn the hearing of the case, but his main grievance was that it had exercised this power on grounds which were not sufficient for postponing the hearing sine die from this concession of the learned counsel and even otherwise in view of section 62 of the Social Security Ordinance, the Social Security Court apparently was competent, in its discretion, to adjourn the hearing of an appeal pending before it for sufficient grounds. Thus the power lies exclusively within the discretion of the said Court and unless it is shown to have been exercised arbitrarily or capriciously, it will not call for interference. It is well settled that this Court does not normally interfere with discretionary orders. The impugned order of the Social Security Court cannot be held to be arbitrary or capricious, in that, it is supported by reasons. The question of adjourning the hearing of an appeal for an indefinite period until the decision of a superior Court on a point of law which has binding force upon the Social Security Court, is a matter dependent upon the circumstances of each case. We, therefore, asked the learned counsel for the petitioner as to how his clients would be prejudiced by the order. He submitted that if the case had not been adjourned sine die, the Court would have decided the case in accordance with the view of the High Court, which was in favour of the petitioner. In that eventuality, the respondent would have been compelled to make the contribution on the basis of which benefits would be extended to the workers. However, we find that the Social Security; Court has taken care to protect the interests of the petitioner by ordering the keeping of an account of the disputed amount of contribution, with a right to the petitioner to inspect these accounts. Additionally, the impugned order of the Social Security Court, dated 22‑2‑1983, by itself, does not suspend the operation of the order of the Commissioner whereby contribution was made payable on the production bonus. Counsel stated that the stay orders were separately passed and further conceded that no appeal was filed against the stay order. We are, therefore, of the view that the appropriate remedy for the petitioner was to have agitated the question whether stay should or should not be granted by the Social Security Court. We cannot take the consequences flowing from the stay orders, as a consideration for upsetting the order adjourning the hearing of the appeal sine die and hold that the order was passed on illegal grounds.

For all these reasons this petition fails and is accordingly dismissed.

M.I. Leave refused

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