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Miscellaneous Appeal No.18 of 1985, decided on 14th March, 1987.

‑‑Ss.57 , 59 & 64‑‑Social Security Institution to decide disputes on merits‑‑Competency of appeal how determined‑‑Matter disposed of by such Institution without touching merits of dispute could hardly be called a decision‑‑Appeal to Social Security Court by aggrieved person, held, would only lie against a decision of the Institution under S.57 or on a review under S.58 of Ordinance X of 1965‑‑Where appeal related to a matter which was not germane to substance of dispute but was only collateral or incidental thereto, no appeal would be maintainable in respect thereof, before Social Security Court‑‑Appeal filed before Social Security Court against matter disposed of by Social Security Institution not on merits but on collateral and incidental matter was rightly rejected by Court‑‑Appeal being devoid of merit was dismissed by High Court.

Ibrahim v. Muhammad Hussain P L D 1975 S C 457; Kandawala & Co. Ltd., Lahore v. Sh. Fayyaz‑ud‑Din and others 1969 S C M R 721 and Manzoor Ahmed and others v. Ch. Abdul Haque 1983 S C M R 788 rel.

M.L. Shahani for Appellant.

S.A. Sarwana for Respondents.

Date of hearing: 24th February, 1987.

The question for determination in this appeal is whether the order passed by the Sind Employees' Social Security Institution, refusing to adjudicate upon a dispute referred thereto by the appellants, for failure on the part of the appellants to deposit 25% of the amount demanded by the institution, was a decision within the meaning of section 59 of the Social Security Ordinance so as to become appealable to the Social Security Court under the same section.

The facts of the case giving rise to this appeal are that the provisions of the Social Security Ordinance were made applicable to the appellants in August, 1978. During the year 1982‑83 the records of the appellants were checked by officials of the first respondent and an amount of Rs.10,028.41 was found to be outstanding against the appellants. Another amount of Rs.19,620 was also found to be due against the appellants pertaining to the period from September, 1978 to December, 1981. The appellants consequently received two separate demands from the respondents, which consequently resulted in filing of application by the appellants, dated 31‑10‑1984 under section 57 of the Social Security Ordinance before the respondents' Commissioner. It appears that while referring the matter to the Commissioner under section 57 of the aforesaid Ordinance, the appellants failed to comply with regulation 5 of the Sind Employees' Social Security (Procedure for Deciding Complaints and Review of Decisions) Regulations, 1983 by failing to deposit 25% of the demand made by the institution. Consequently, the Commissioner refused to entertain the appellant's application under section 57 for non‑compliance with regulation 5 and informed the appellants about the same by letter, dated 27‑11‑1984. Aggrieved by this letter the appellants preferred an appeal before the Social Security Court No.1, Karachi under section 59 of the Ordinance but the same was dismissed vide order of Social Security Court, dated I6‑5‑1985 and hence this appeal.

The learned Social Security Court was of the view that refusal to entertain the appeal by the Commissioner could not be regarded as "decision" within the meaning of section 59. It was consequently held that there was no decision as yet given by the Commissioner which could be appealable before the Social Security Court and therefore, the appeal was dismissed as not maintainable.

The appellants although have assailed the order of the learned Labour and Social Security Court on various grounds, but when it was pointed out to Mr. M.L. Shahani that the only material question involved in this appeal was whether the refusal on the part of the Commissioner to entertain the appellants' appeal under section 57 of the Ordinance would tantamount to a decision, the counsel did not press this appeal on the other grounds.

Now the answer to the question can be found in section 57 of the Ordinance which provides as follows:

"57. Decisions on complaints, questions and disputes.‑‑If any complaint is received or any question or dispute arises as to‑‑

(a) whether any person is a secured person within the meaning of this Ordinance; or

(b) the rate of wages or average daily wages of a secured person for the purposes of this Ordinance; or

(c) the rate of contribution payable by an employer in respect of an employee; or

(d) the person who is or was the employer in respect of a secured person; or

(e) any benefit and the amount and duration thereof; or

(f) any other matter in respect of any contribution or other dues payable or recoverable under this Ordinance;

the matter shall be decided by the institution, in such manner, and within such time as the regulations may provide, and the institution shall notify its decision to the person or persons concerned, in writing, stating therein the reason or reasons for its decision.

A closer look at the section would show that a dispute can be raised by a party on any of the issues enumerated in classes (a) to (e) or any other matter referred to in class (f) and the matter shall be decided by the institution in the manner as provided in the section. The language used in the section clearly indicates that the dispute which is referred to the institution has to be decided by it on merits. A dispute on merits would include only such dispute which pertains to any of the issues enumerated in classes (a) to (f) of section 57 and if an appeal under section 57 is disposed of without touching the merits of the dispute then any such decision of the institution can hardly be called a decision under section 57. Section 59 of the Ordinance, as it would be seen, postulates filing of an appeal to the Social Security Court by any person aggrieved by a "decision" of the institution under section 57" or on a review under section 58, therefore, if the appeal relates to a matter which is not germane to the substance of the dispute but is only collateral or incidental thereto then no appeal would be maintainable in respect thereof before the Social Security Court. It may be borne in mind that right of appeal is given by the statute anti such right according to section 59 of the Ordinance is restricted only to decisions of the institution under section 57 of the Ordinance and since, as stated above, the decision given by the institution did not relate to the issues raised in the appeal before it by the appellant, the same was not a decision under section 57 of the Ordinance against which appeal under section 59 could be preferred. Reference in this respect may be made to Ibrahim v. Muhammad Hussain P L D 1975 SC 457. In this case the question before the Supreme Court was whether an order passed by the Rent Controller disposing of the case on the preliminary issue of jurisdiction was appealable under section 15 of the Urban Rent Restriction Ordinance, 1959 which provided for an appeal against orders passed by the Controller under section 4, section 10, section 12 or section 13 of the Ordinance only. It was held by the Supreme Court:

"It would be idle to contend that as respects cases falling under any of the above four sections, subsection (1) of section 15 postulates appeal in relation to a matter which is not germane to the substance of the dispute, but which is merely incidental or collateral to the dispute and which has been disposed of by an interlocutory order. For instance, in any such case objection may be taken against the territorial jurisdiction of the Rent Controller and a finding as to the existence of such jurisdiction, cannot on any discoverable principle be made a subject‑matter of appeal apart from appeal from the whole gamut of the dispute. On a parity of reasoning the same will be true of the interlocutory order in the instance case, which was made to dispose of a collateral matter in the case."

Reference was also made by the Supreme Court in this case to its earlier judgment in the case of the Kandawala & Co. Ltd., Lahore v. Sh. Fayyaz‑ud‑Din and others 1969 S C M R 721, wherein similar views had been held. Reference may also be made to another case on the point reported as Manzoor Ahmed and others v. Ch. Abdul Haque 1983 SCMR 788, wherein the Supreme Court while relying on the judgment in the case of Ibrahim v. Muhammad Hussain went to the extent of holding that in cases where the case is disposed of by the Rent Controller on a preliminary issue, then not only an appeal under section 15 of the Urban Rent Restriction Ordinance is barred, but even a second appeal in such cases would be barred. If any analogy between this case and the present case is drawn then not only the first appeal before the Social Security Court was barred but even the present appeal before this Court would be barred. No doubt, the cases referred to by me related to proceedings under the Urban Rent Restriction Ordinance, but the same principle as enunciated in those cases is also applicable in the present case. Consequently, I am clearly of the view that the appeal was rightly rejected by the learned Social Security Court as not maintainable and there appears to be no substance in Mr. M.L. Shahani's argument.

The upshot of the discussion is that there is no substance in this appeal and the same is dismissed. The parties are however, left to bear their own costs.

A.A./U‑5/K

Appeal dismissed.

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