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Miscellaneous Appeals Nos.27 of 1985 and 16 of 1986, decided on
‑‑‑Ss.2(30) & 20‑‑"Wages"‑‑Definition‑‑"Attendance allowance"‑ Remuneration‑‑Meaning‑‑Whatever an employee gets whether in cash or kind from his employer for the services that he renders, would be "remuneration" and consequently "wages" as defined under the Ordinance‑‑Commissioner, Social Security Institution, held, was justified in demanding contribution under S.20.
Black's Law Dictionary; Messrs National Embroidery Mills Limited v. Punjab Employees' Social Security Institution (PESSI) & others P L D 1978 Lah. 955; Messrs Bawany Textile Mills Ltd. v. The
‑‑‑Ss.2(30) & 20‑‑"Wages"‑‑Definition‑‑House rent allowance‑‑Such allowance not constituting part of wages, no contribution under S.20 was payable on the same.
Petitions foci‑ Special Leave to Appeal Nos.225 to 229 and 237 to 241 of 1982 ref.
‑‑‑" Decision"‑‑"Judgment"‑‑Meaning.
Word 'decision' is not defined in any law. 'Decision' according to dictionary is "a popular rather than technical or legal word; a comprehensive term having no fixed, legal meaning. It may be employed as referring to ministerial acts as well as to those that are judicial or of a judicial character. A judgment given by a competent Tribunal". It is further remarked therein "words 'decision' and 'judgment' may be used interchangeably, but in the abstract there is a shade of difference between the two. Decision is not necessarily synonymous with 'opinion'. A decision of the Court is its judgment; the opinion is the reasons given for that judgment, or the expression of the views of the Judge". 'Judgment' has been defined in the dictionary to include "an opinion or estimate". The formation of an opinion or motion concerning something by exercising the mind upon it. The official and authentic decision of a Court of justice upon the respective rights and claims of the parties to an action or suit therein litigated and submitted to its determination. Conclusion that naturally follows from the premises of law and fact. A decision or sentence of law given by Court of justice or other competent Tribunal as a result of proceedings instituted therein. Law's last word in judicial controversy.
Term "judgment" is also used to denote the reason which the Court gives its decision, but this is more properly denominated as an opinion.
‑‑‑Art.189‑‑Even a decision of Supreme Court for which no reasons are given in the order, held, would be binding upon all the Courts in the country.
Khurshid Anwar Shaikh for Appellant.
Date of hearing:
These two Miscellaneous Appeals are directed against the judgment of learned Presiding Officer Social Security Court No.l,
The facts leading to these appeals are that the respondent made demand of Rs.31,470.24 from the appellant towards arrears of contribution for their secured employees with respect to house rent allowance, conveyance allowance and attendance allowance for the period from September, 1982 to December. 1982. The respondent further made demand from the appellant for payment of Rs.1,05,803.57 as arrears of contribution towards the abovesaid allowances of the secured employees from January to December. 1983. The appellant filed applications against the abovesaid demands before the Social Security Commissioner which were dismissed and the disputes raised by them before the Social Security Court were also dismissed vide the impugned judgment. As the parties and the questions of law and fact in both the appeals are same, I propose to dispose both appeals by one order.
I have heard the learned counsel for the parties.
The question involved in these appeals is whether house rent, attendance allowance and conveyance allowance can be considered as wages as defined under section 2(3) of the Social Security Ordinance No. X of 1965 (hereinafter called the Ordinance). To fully appreciate the question involved it is necessary to reproduce the definition of wages as defined in the Ordinance:
" Wages' means remuneration for service paid or payable in cash or in kind to a secured person, not being less than remuneration based on the minimum rates of wages declared under the Minimum Wages Ordinance, 1961 (XXXIX of 1961), without taking account of deductions for any purpose, under a contract of service or apprenticeship, expressed or implied, and shall be deemed to include any dearness allowance or other addition in respect of the cost of living and any payment by the employer to a secured person in respect of any period of authorised leave, illegal lock‑out or legal strike; but does not include
(a) any payment for overtime; or
(b) any sum paid to the person employed to defray special expenses entailed by the nature of his employment; or
(c) any gratuity payable on discharge; or
(d) any sum paid as bonus by the employer;"
These contributions are demanded under section 20 of the Ordinance. The learned counsel for the appellant does not press the question with regard to the payment of contribution for the conveyance allowance. Therefore, the only question left for consideration by this Court is with regard to the house rent allowance and attendance allowance.
From the definition of the term wages as reproduced above it is clear that any remuneration that is paid or is payable to a secured person by the employer for the services rendered by him would be considered as wages. This definition would in fact include even the payments which are described in clauses (a) to (d) but they have been specifically excluded from the definition of wages. House rent allowance or the attendance allowance is apparently not specifically excluded from this definition of wages. Therefore, it is to be considered whether these allowances are included in the wages as defined under this Ordinance.
In this context it will be necessary to see what is meant by remuneration. Word 'remuneration' is not defined in the Social Security Ordinance and therefore we have to see its dictionary meaning. According to Black's Law Dictionary remuneration includes reward; recompense; salary. It is further stated therein that if a man gives his services, whatever consideration he gets for giving his services seems to be remuneration for them. Word 'recompense' is defined in the same Dictionary to mean reward for services. The word 'reward' is defined in same Dictionary to include "a recompense or premium offered or bestowed by government or an individual in return for special or extraordinary services to be performed, or for special attainments or achievements, or sum of money paid or taken for doing or purporting to do some act."
The definition of the wages as defined in the Social Security) Ordinance and the dictionary meaning of remuneration leaves no doubt that whatever employee gets whether in cash or kind from his employer for the services that he renders would be remuneration and consequently wages as defined under the Ordinance.
The question whether attendance allowance is wages was considered in number of cases. In case of Messrs National Embroidery Mills Limited v. Punjab Employees' Social Security Institution (PESSI) & others P L D 1978 Lah. 955, the learned single Judge was of the opinion that the attendance allowance was a part of wages. This question was also considered by Division Bench of this Court in case of Messrs Bawany Textile Mills Ltd. v. The
In 1980 P L C 752(q) a learned single Judge of this Court had held that attendance allowance was not excluded from definition of wages.
The question with regard to these two allowances was also considered by a learned single Judge of Lahore High Court in the case of Punjab Employees' Social Security Institution v. Kohinoor Textile Mills Ltd. 1982 P L C 325 the learned single Judge held that house rent was not included in wages whereas attendance allowance fell within the definition of wages. The learned single Judge had relied upon the decision of Supreme Court in case of Sind Employees' Social Security Institution v. Dawood Cotton Mills Limited P L D 1977 S C 177 wherein it was observed "that the rendering of service or at least the availability of employees at the disposal of the employer for service was an essential requirement or prerequisite for the payment of wages." The learned single Judge held that attendance allowance was payment for work done by the employee and as such it can be called remuneration for service and consequently fell squarely within wages, It will be advantageous to reproduce the observation of the learned single Judge so far house rent allowance is concerned:
"The house rent allowance seems to stand on a different pedestal It is paid to the employees who are not provided residential accommodation by the establishment and who take some house on lease. The allowance varies with the salary drawn by the employees and the place where living accommodation is hired It is paid even to workers who due to some reasons or the other, do not actually work or tender service to the employer. It does not bear a direct nexus to the service rendered by the employees. It is a sort of subsidy and compensation for meeting the cost of hire charges. Therefore, I do not think it should be classified as 'wages'."
This judgment was also discussed by a learned single Judge of this Court in the case of Sind Employees' Social Security Institution v. Amin Fabrics Limited 1983 P L C 182. The learned single Judge while considering the question whether conveyance allowance was wages had observed that conveyance allowance was paid to the employees by the employer in connection with his service and as such it was wages. Referring to aforesaid
The preponderance of judicial decisions appears to be that attendance allowance is paid or is payable to the employee for the services rendered by him as remuneration and I see no reason to disagree with the above decisions.
It is argued by Mr. S.A. Sarwana, learned counsel for the respondent that the house rent is also paid to the employee so long he is in service of the employer or in other words so long he renders service to employer, as it is payable under terms of contract or rules of service. It is contended by the learned counsel for the appellant, that certain employees, instead of being paid house rent, are provided with house and the rent of the house payable to the employees varies from place to place and amongst different categories, of employers. Mr. Sarwana argued that the house is provided or house rent is paid because of the services that the employee renders and the definition of wages under the Ordinance is wide enough to include even remuneration in kind, therefore, providing house instead of payment of house rent in fact amounts to remuneration in kind. It is further urged that mere fact that this remuneration was provided to some employees in kind or in cash would not take it out of the definition of wages and if there was any variation in the quantum of rent payable from locality to locality or amongst the different categories of employees, it would be in accordance with the terms and conditions of the service which in fact are part of implied contract of service between the parties.
However, it is contended by the learned counsel for the appellant that Petition No.225/82 for leave to appeal was filed in Supreme Court by PESSI against the decision of the Lahore High Court reported in 1982 p L r 325, which appeal has been decided by their Lordships of Supreme Court by short order in the following terms:‑‑
"For the reasons to be recorded later on all the above connected petitions are hereby dismissed."
This order is said to have been passed with respect to Petitions for Special Leave to Appeal Nos.225 to 229 and 237 to 241 of 1982. This order is dated 23‑6‑1982. It may again be pointed, that in the
"Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in
It is contended by Mr. Sarwana, that this order in fact was not a decision, as no reasons or details of the decision are expressed in this order. Word 'decision' is not defined in any law. 'Decision' according to Black's Law Dictionary is "a popular rather than technical or legal word; a comprehensive term having no fixed, legal meaning. It may be employed as referring to ministerial acts as well as to those that are judicial or of a judicial character. A judgment given by a competent Tribunal." It is further remarked therein "words 'decision' and 'judgment' may be used interchangeably, but in the abstract there is a shade of difference between the two. Decision is not necessarily synonymous with 'opinion'. A decision of the Court is its judgment; the opinion is the reasons given for that judgment, or the expression of the views of the Judge." 'Judgment' has been defined in the same Dictionary to include "an opinion or estimate." The formation of an opinion or notion concerning some thing by exercising the mind upon it. The official and authentic decision of a Court of justice upon the respective rights and claims of the parties to an action or suit therein litigated and submitted to its determination. Conclusion that naturally follows from the premises of law and fact. A decision or sentence of law given by Court of justice or other competent Tribunal as a result of proceedings instituted therein. Law's last word in judicial controversy."
It is further stated therein that term judgment is also used to denote the reason which the Court gives for its decision, but this is more properly denominated an opinion.
Keeping these definitions in view this order of the Hon'ble Supreme Court is a decision as it has conclusively decided the dispute between the parties with regard to the question as to whether the house rent was or was not wages, though it may not be considered as judgment as no reasons for arriving at decision have been given therein. It may be noted that the word used in Article 189 is decision and not judgment. Therefore, even a decision for which no reasons are given in the order would be binding upon all the Courts in country under Article 189. It is admitted by the learned counsel for the appellant that the Supreme Court has now directed that this petition alongwith the others also be reheard. The fact that the order of rehearing has been passed does not necessarily mean that the decision dated 23‑6‑1982 has been set aside. The decision is in force and is therefore binding upon this Court.
In view of the above discussion I hold that the attendance allowance constitutes a part of wages and as such the respondent could demand contribution under section 20 of the Ordinance but in view of the decision of the Hon'ble Supreme Court the house rent allowance would not constitute part of wages as defined in Ordinance and as such no contribution under section 20 of the Ordinance is payable on this allowance. As a result the appeals of the appellant are partly allowed to the extent that the appellants are not liable to pay the contribution under section 20 of the Ordinance with respect to the house rent allowance.
The appeals were disposed of by a short order, dated 16‑4‑1987. The above are the reasons in support of the above order.
M.B.A./P‑7/K
Appeals disposed of.
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