Appellant was asked by the appellant about the recovery of the Controversy in Sections 59 and 64 of the West Pakistan Employees Social Security Ordinance 1965, which sought and recovered the contribution of social security to a certain amount. Was done, no evidence was held by the appellant to prove the allegation, justification was made that no interference case was presented, the appeal was found without merit, dismissed went
1987 P L C 785
[Karachi
High Court]
Before Saeeduzzaman Siddiqui, J
Messrs MASCOT INDUSTRIAL CORPORATION
Versus SIND
EMPLOYEES' SOCIAL SECURITY INSTITUTION Miscellaneous Appeal No.39 and Civil Miscellaneous Application No.1016 of 1986, decided on 15th December, 1986.
West Pakistan Employees' Social Security Ordinance (X of 1965)‑‑ ‑‑‑Ss.59 & 64‑‑Recovery of contribution‑‑Dispute raised by appellant before authorities that social security contribution on a particular amount had been demanded and recovered from him‑‑No evidence led by appellant to establish said allegation‑‑Social Security Court, held, was justified in holding that no case for interference had been made out‑‑Appeal found to be without any merit, was dismissed.
Sulleman Habibullah for Appellant.
S.A. Sarwana for Respondent.
Date of hearing: 15th December, 1986.
JUDGMENT The appellant has challenged the order of the Social Security Court No.1, Karachi, dated 31st of July, 1986, under section 64 of the Social Security Ordinance, 1965. In order to appreciate the contentions of the learned counsel for the parties, it is necessary to mention here the background of the present controversy. The respondent demanded a sum of Rs.25,057.24 from the appellant being the arrears of social security contribution on the wages, including the increase, for the period from 1975‑76 to June, 1980. The demand made by the respondent was challenged by the appellant before the Commissioner, Social Security, who, by his order, dated 9th of June, 1982, dismissed the contention of the appellant and held that, as the amount of Rs.89,616.87, which was claimed by the appellant as overtime was, in fact, a special pay paid to the workers, therefore, it was liable for contribution under the Social Security Ordinance. The appellant then challenged the decision of the Commissioner, Social Security, before the Social Security Court, which was allowed by judgment, dated 7‑10‑1982, and it was held that the amount of Rs.89,616.87 paid by the appellants to their employees should be treated as overtime, and no contribution is to be asked for on the aforesaid amount. However, in spite of the fact that the Social Security Court was of the view that only the sum of Rs.89,616.87 was liable to be excluded for the purpose of calculation of the social security contribution, yet the entire demand of Rs.25,057.24 made by the Social Security Institution was disallowed. Against the order of the Social Security Court, the Institution filed an appeal before the High Court (M.A.No.66/1982) and the case was remanded back to the Social Security Court for determining, whether the amount of Rs.25,057.24 demanded by the Institution as a social security contribution from the appellant also included the amount of overtime paid by the appellant to its workers. From the remand order, it is clear that two‑fold contentions were raised before this Court, namely, that the sum of Rs. 25,057.24 demanded by the social Security Institution did not include any amount of contribution calculated on the overtime paid by the appellant to its workers, and secondly that, in any case, even if the disputed amount of Rs.89,616.87 was overtime as contended by the appellant, the total amount of social security contribution on it, including the increase would come to Rs.9,410.00, only. However, the case was remanded to the Social Security Court by this Court with the following direction:‑
"Whether the amount of Rs. 25,057.24 includes in it any amount of contribution on account of payment of overtime wages If it is so, the amount so included shall be excluded from the amount claimed."
It is an admitted position that, after remand of the case, the appellant examined one witness by filing his 4ffidavit of evidence, on 22‑12‑1984. In paragraphs 3 and 4 of the said affidavit filed on behalf of the appellant, it was claimed that the respondent had demanded contribution of Rs. 8,15,433.61, which also incl4ded the amount of Rs. 3,20,000.00, which the appellant claimed to leave been paid to its workers on account of overtime. This figure of Rs. 3,20,000.00 was nowhere mentioned in the earlier proceedings referred to above. Both in the order of the Commissioner, Social Security as well as in the order of the Social Security Court, the amount, which the appellant disputed and on which the Institution allegedly recovered contribution was stated as Rs.89,616.87 only. The figure of Rs.3,20,000.00 mentioned in the affidavit filed on behalf Of the appellant after remand was totally a new case. Nevertheless, in cross‑examination the appellant's witness was specifically suggested that he could not deny that the sum of Rs.89,616.87 has not been excluded from the calculation with reference to the account books; and, in reply to this question, the witness stated that the record pertaining to the relevant period has been destroyed and is not available, and therefore he could not say anything about the figure. Apart from it, the demand of the Social Security Institution of Rs.25,057.24 is based on a report alleged to have been prepared after the inspection of the account books by the Institution. This statement of account is on record, and the appellant's witness was confronted with this account, but he was unable to deny the same. In fact, it was admitted by the appellant's witness in cross‑examination that the copy of this account was supplied to the appellants, but they did not file tiny objection against this report, as the appellant was of the view that it did not amount to a decision. In this state of evidence, the learned Social Security Court reaches the conclusion that the burden, which was on the appellant to show that the sum of Rs.25,057.24 demanded by the Social Security also included any amount of overtime,. was not discharged. The learned counsel for the appellants contends that the total amount on which they were entitled to claim exemption on account of overtime is Rs.3,20,000.00, and according to the learned counsel, the amount of contribution on this amount comes to Rs.29,000.00 including the increase, which was totally to be exempted, as this amount was paid by the appellant as overtime. This contention of the appellant cannot be accepted, as it amounted to introducing absolutely a new case at this stage. As earlier pointed out, nowhere in the proceedings before the Commissioner, Social Security, or the Social Security Court this amount was mentioned by the appellants as having been paid by them towards the overtime to their workers. The only dispute in the earlier litigation raised by the appellant before the authorities was that the Social Security contribution on a sum of Rs.89,616.87 has been wrongly demanded and recovered. After the remand of the case, no evidence was led by the appellant to establish the above allegation, and, in these circumstances, the Social Security Court was justified in holding that no case for interference is made out. There is no merit in this appeal, which is accordingly dismissed, together with Civil Miscellaneous Application No.1016/1986, but there will be no order as to costs.
S.Q./M‑171/K.
Appeal dismissed.
