Find a Lawyer

Miscellaneous Appeal No. 55 of 1984, decided on 3rd June, 1987.

‑‑‑Ss.3,4(1),57,59 & 77‑‑Order passed by Governing Body only could be considered to be an order passed by the Institution‑‑Governing Body, however, can direct under S.77 that all or any of its powers and functions be exercisable by the Commissioner or any other Officer subordinate to the Institution‑‑Nothing on record to show that powers to decide question under S.57 were delegated to Directors‑‑Order passed by a Director under S.57, however, was saved by doctrine of "indoor management" and was an order passed by the Institution and was thus appealable to Social Security Court under S.59.

P.E.C.H.S. Ltd. v. Anwar Sultana and others P L D 1969 Kar. 474 and M/s. Volkervam (Pakistan) Ltd. v. Sind Employees Social Security Institution P L D 1985 Kar. 37 ref.

‑‑‑Ss.57,59 & 64‑‑Order passed by Director showing certain amount was assessed by him to be contribution payable by appellants and while passing final impugned order Director taking into consideration contentions raised by appellants‑‑Filing of formal complaint not necessary for a decision to fall within scope of S.57 but order deciding any question or dispute with regard to contribution or dues payable or recoverable under Ordinance would be deemed to be a decision under S.57‑‑Orders of Director confirming provisional assessment made earlier and contested by appellants, held, were to be considered decisions under S.57 and appealable under S.59‑‑Appeal partly accepted case remanded to Social Security Court for decision of appellant's on merits.

‑‑‑S.57‑‑Word "question" used in S.57‑‑Definition.

Black's Law Dictionary ref.

‑‑‑Ss.57,58 & 59‑‑Sind Employees' Social Security (Procedure for Deciding Complaints and Review of Decision) Regulations, 1983, para.5‑‑Word "decision" used in S.57‑‑Meaning‑‑A determination of a judicial or quasi judicial nature‑‑Interim order passed by Commissioner granting stay of recovery of dues ordered by Director subject to deposit of 1/4th amount‑‑Such order passed by Commissioner either on complaint under S.57 or in exercise of review under S.58, held. would not decide any question or dispute with regard to matters specified in S.57 and was not a decision within meaning of S.59 but could not be considered to be an order without jurisdiction.

Black's Law Dictionary and Syed Shamim Ahmad v. Mst. Riaz Fatima P L D 1975 Kar. 448 ref.

J.H. Rahimtoola for Appellant.

S.A. Sarwana for Respondent.

Date of hearing: 25th May, 1987.

This Miscellaneous Appeal under section 64 of the Sind Employees' Social Security Ordinance has been filed against the order dated 28‑4‑1984 passed by Sind Labour Court No.1 and Social Security Court Karachi, in appeal filed by the appellant under section 59 of the said Ordinance against the orders dated 2‑8‑1983, 27‑8‑1983, 26‑9‑1983 and 22‑10‑1983, passed by the respondent.

2. The facts of the case in brief are that the appellant is a body Corporate and is registered with the respondent under the said Ordi nance. The appellant received a letter order from Director of respon dent dated 2‑8‑1983 referring to a letter dated 12th May, 1983, demand ing Rs. 76,888.48 purporting to be payments assessed by the concerned authority. The appellant wrote a letter dated 22‑8‑1983 to respondent contesting the correctness of the demand. The appellant received another letter/order from the Director of the respondent containing the demand of Rs. 3, 09, 794.32 directing the appellant to deposit the amount within seven days, otherwise it was to be recovered as arrears; of land revenue. The appellant received another letter/order dated 26‑9‑1983, which finally called upon the appellant to deposit the said amount mentioned in the order dated 27‑8‑1983. The appellant filed an appeal/ representation before the Commissioner of the respondent requesting for stay of the recovery of the dues, who by the order dated 22‑10‑1983, granted the request for stay subject to deposit of 1/4th of the amount due. The appeal against these orders filed by the appellant before the Social Security Court was dismissed by the learned Court on the ground that the first three orders were not passed by the Institution under section 57 of the Ordinance and as such no appeal could lie against such orders. With regard to fourth order passed by the Commissioner, the learned Court held that this was not a decision under section 57 or 58 of the Ordinance and as such it was not appealable.

3. The questions for consideration before this Court, therefore are, firstly, whether order passed by a Director could be considered as a order passed by the Institution and secondly whether the orders in question were appealable decision within the meaning of section 59 of the Ordinance.

4. The Institution viz. Employee Social Security institution is established under section 3 of the Ordinance. Under section 4(1) of the Ordinance, "the general direction and superintendence of the affairs of the Institution shall vest in a Governing Body which, with the assistance of a Commissioner, may exercise all powers and do al acts and things which may be exercised or done by the Institution, "strictly speaking only an order passed by the Governing Body could be considered to be an order passed by the Institution. However, under section 77 of the Ordinance "The Governing Body may direct that all or any of its powers and functions may in relation to such matters and subject to such condition, if any, as may be specified, 11 be also exercisable by the Commissioner or any other officer or authority subordinate to the Institution."

5. There is nothing on the record to show if the powers to decide question under section 57 were delegated to the Directors, but Mr. J.H. Rahimtoola in this context invokes the aid of the Doctrine of 'Indoor Management'. Reliance is placed by him on a D.B. decision of this Court in the case of P.E.C.H.S. Ltd. v. Anwar Sultana and others P L D 1969 Kar. 474. In the reported case the question under consideration was whether the Secretary of the Society without approval of the Managing Committee could enter into a contract of lease with the respondent. It was held by their Lordships, "that assuming, however, that either there was no delegation of the necessary powers in favour of the Secretary or that the delegation was not valid on account of its inconsistency with any rule or bye‑law of the Society, then the transaction appears to be saved by what is known as the doctrine of "indoor management".

6. The question as to whether the order passed by the Director was an order passed by an Institution also came under consideration before a learned Single Judge of this Court in the case of M/s. Volkervam (Pakistan) Ltd. v. Sind Employees' Social Security Institu tion P L D 1985 Kar. 37. His lordship referred to the above mentioned case and came to the following conclusion, "Relying on the doctrine of indoor management, the Director of Institution appears to have acted in this case for and on behalf of the Institution for all relevant purposes under section 57 of the Ordinance and, therefore, the appeal would lie under section 59 of the Ordinance to the Social Security Court". Mr. J. H. Rahimtoola has produced photostat copy of the certified copy of the order of their Lordships of the Supreme Court dismissing the appeal filed by the respondent against the said order of the learned Single Judge of this Court. In view of this decision, the dispute as to whether the order passed by a Director under section 57 of the Ordinance is order by Institution and is appealable stands decided.

7. The next question that requires consideration is whether the three orders passed by the Director are orders under section 57 of the Ordinance. This section provides, "if any complaint is received or any question or dispute arises as to‑‑

(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

8. The plain reading of the impugned orders would show that certain amount was assessed by the Directors to be contribution payable by the appellants, who were directed to produce the relevant record. The appellants apparently disputed the assessment with regard tc the arrears and also disputed the allegation that the record was not produced by them as would be clear from the letter of the appellants dated 22‑8‑1983, which is referred to by the respondent in the impugned order dated 26th September, 1983. In fact, this order dated 26‑9‑1983 finally confirms the previous two orders dated 2‑8‑1983 and 27‑8‑1983, and while passing this order the Director had taken into consideration the contentions raised by the appellants in their letter dated 2‑8‑1983.

9. For a decision to fall within the scope of section 57 it is not necessary that a formal complaint should have been filed before the Authority by the appellants under section 57, but if the order decides any question or dispute with regard to contribution or dues payable or recoverable under Ordinance, it would be deemed to be a decision under section 57 of the Ordinance. Word question has not been defined in the Ordinance. It has been defined in Black's Law Dictionary to mean, 'A subject or point of investigation, examination or debate; theme of inquiry; problem; matter to be enquired into'. It is clear from the orders that the assessment was provisionally made earlier which was‑disputed by the appellants but was confirmed by these orders. Thus by these orders, the concerned authority did decide the question at issue. For all purposes these orders would be considered as decisions under section 57 of the Ordinance and there fore, appeal does lie against such orders under section 59 of the Ordinance.

10. Next we come to the fourth order which is passed by the Commissioner of the Social Security. It is not disputed that the order passed by the Commissioner would be an order passed by Institution. It is contended by Mr. J.H. Rahimtoola that every decision is appealable under section 59 of the Ordinance and in support he relied upon the case of Syed Shamim Ahmad v. Mst. Riaz Fatima P L D 1975 Kar. 448. In this case, Hi.; Lordship has considered the meaning of the expression 'a decision ;given' used in section 14 of the Family Courts Act and came to the view, that as this expression was not qualified by any such word as "final", therefore, orders under section 12 of the Guardian and Wards Act was 'a decision given'. However, in the instant case word 'decision' used in section 59 is not unqualified but it provides "any person aggrieved by decision of Institution under section 57 or on a review under section 58 may appeal to the Social Security Court". This order was passed by the Commissioner Social Security either on complaint under section 57 of the Ordinance or in exercise of his powers of review a/s 58, but it does not decide any of the question or dispute with regard to matters specified in the said section 57 nor does it decide any question raised in the review petition. It is an interim order granting the stay of the recovery of the dues ordered by the Directors subject to deposit of 1/4th of this amount. There is no provision in the Ordinance, with regard to the grant of stay order,. This relief was sought by the appellants from the Commissioner under his inherent powers in exercise of his discretion. At the relevant time when the order was passed, no procedure was prescribed for deciding complaint or review of the decision which has been prescribed under the Sind Employees' Social Security (Procedure for deciding complaint and review of decision) Regulation of 1983, published in the Sind Government Gazette dated February 9, 1984. Paragraph 5 of this regulation provides, "In case, the question or dispute relates to demand or assessment of the Social Security Contribution, the complainant shall deposit 25% of the demand /assessment with the Institution". Though this provision cannot be made retrospectively applicable, but such order by the Commissioner in exercise as his discretionary power cannot be considered to be without jurisdiction or to be a decision within the meaning of section 59 of the Ordinance. Word decision has been defined in the Black's Law Dictionary to mean amongst others, "a determination of a judicial or quasi judicial nature". This order does not determine any question at issue and as such it cannot be considered as a decision.

11. Considering all the facts discussed above, the appeal of the appellants is partly allowed and the impugned order of the learned Social Security Court is set aside partially and the case is remanded back to the learned Social Security Court to decide the appeal of the appellants against orders dated 2‑8‑1983, 27‑8‑1983 and 26‑9‑1983 on merits.

12. Under the circumstances of the case the parties are directed to bear their own costs.

13. The Miscellaneous Appeal was partly allowed by the short order dated 25‑5‑1987. The above are the reasons in support of the said order.

S.S.Q./T‑16/K.

Appeal partly allowed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.