SIND EMPLOYEES SOCIAL SECURITY INSTITUTION Versus DR. MUMTAZ ALI TAI

1. MUHAMMAD GUL, J.‑ This appeal by leave is by the Sind Employees' Social Security Institution, established under section 3 of the West Pakistan Employees' Special Security Ordinance (W. P. Ordinance XX of 1965) against the judgment of the High Court at Karachi, dismissing Writ Petition No. 525 of 1973 by the Institution as "premature."

2. Among the statutory obligations of the appellant Institution is to appoint medical practitioners and set up medical boards, to provide medical care to "secured persons" in such social security areas and in such manner as may be provided by the regulations framed under the Ordinance. Pursuant to the above provision the appellant Institution by letter dated the 5th July 1968 engaged respondent 1 as medical practitioner to provide medical care to the "secured persons" working or residing near Lawrence Road, Karachi. For his services, respondent 1 was allowed a monthly retainer of Rs. 200 which also covered his consultation fee. Apart from that he was to be paid against his bill at the end of each calendar month for the price of medicines dispensed or issued by him to the "secured persons" treated by him during the month. In June/July 1970 the appellant Institution decided that the existing arrangement with respondent 1 and other medical practitioners similarly engaged by the appellant Institution were not satisfactory and therefore on 13th July 1970 the Institution informed respondent 1 that with effect from 1‑7‑1970 instead of the existing terms he would be paid "at flat rate" of Rs. 4.00 p.m. per secured worker and his dependents "attached to him" for outdoor treatment, whether or not they are treated by him. The monthly retainer of Rs. 200 was, however, to be paid to him as before. Respondent 1 was asked to signify his consent to the new terms. Not receiving any reply from him the Institution sent him a reminder on 22nd July 1970. On 16th September 1970 respondent 1 accepted the new terms "as a gesture of goodwill." He nevertheless urged the acceptance of what he described as "16 basic conditions so that fairness in dealing is ensured." He further said that he had been informed that the flat rate of Rs. 4 per capita was "not enough" and asked for its revision "in the interest of the Institution." After submitting his bill on the basis of flat rate for about two years respondent 1 claimed the right to charge the Institution under the original terms which the Institution declined to accept on the ground that respondent 1 having accepted the new arrangement as from 1st July 1970, he cannot now revert to the old terms.

3. Respondent 1 purporting to treat the above difference arising between him and the Institution as "industrial dispute" applied under section 34 of the Industrial Relations Ordinance, 1969 (Ordinance XXIII of 1969) to the Second Sind Labour Court, Karachi (respondent 2) for the enforcement of his claim for remuneration under the original terms. The application, however, was later amended to be treated as "complaint" under section 57 read with section 61 of the West Pakistan Employees' Social Security Ordinance, 1965. It may incidentally be mentioned that the Second Sind Labour Court though originally set up under the Industrial Relations Ordinance, 1969, was also invested with jurisdiction under the 1965 Ordinance. However, its territorial jurisdiction under both the Statutes was confined to Hyderabad and Khairpur Divisions. Karachi fell within the territorial jurisdiction of the 1st Labour Court, Karachi for the purposes of disputes under both Ordinances, and is also located at Karachi.

4. On 25‑11‑1972 the appellant Institution moved an application before respondent 2 that respondent 1 was neither "workman" within the meaning of section 2 (xxviii) of the 1969 Ordinance nor an "employee" within the meaning of section 2 (8) of the 1965 Ordinance and therefore respondent 2 bad no jurisdiction to entertain his application or complaint for adjudication of the dispute. Objection was also taken for lack of territorial jurisdiction.

5. It was, therefore, prayed that the application or complaint moved by respondent 1 be returned to him under Order VII, rule 10 read with section 151. C. P C. On 2‑3‑1973 respondent 2 ordered that the objection as to its jurisdiction will be determined at the final hearing in the case which will therefore proceed in the meantime.

6. Aggrieved by the above order the appellant filed writ petition in the High Court which as pointed out in the beginning was dismissed as "premature." mature." The learned Judges also opined that the appellant Institution had also alternative remedy of appeal under section 64 of the 1965 Ordinance.

7. Leave in the case was granted to consider whether respondent 2 could exercise jurisdiction in respect of the dispute between appellant Institution and respondent 1 even if the latter be neither a "workman" nor a "secured employee" and secondly whether respondent 2 could entertain the dispute or complaint notwithstanding the objection with regard to the lack of territorial jurisdiction without first deciding that objection.

8. The first question that falls for determination in this case is whether respondent 1 who is a medical practitioner retained on part‑time basis by the appellant Institution for a limited purpose namely to provide medical care to certain specified class of "secured persons" and is otherwise free to practise his profession privately is "workman" within the meaning of section 2 (xxviii) of the 1969 Ordinance or an "employee" within the meaning of section 2 (b) of the 1965 Ordinance so as to qualify him to invoke the special jurisdiction of respondent 2 under either of the two Ordinances for the relevant purpose? Mr. Ahmad Sarwana, learned counsel for the appellant contended that respondent 1 was neither a "workman" nor" employee". It was emphasised that the services of respondent 1 have been retained by the appellant only part‑time and that he otherwise practises his profession privately. It was therefore submitted that no application for the settlement of dispute between him and the appellant before the Labour Court was competent under section 34 of the 1969 Ordinance. That provision envisages an application by a "collective bargaining agent" or an employer, as the case may be, for the settlement of an industrial dispute. Learned counsel next submitted that the 1965 Ordinance does not avail to the respondent 1 either. Section 57 of the Ordinance, according to learned counsel envisages settle ment of dispute concerning the "secured employees" and not a person in the position of the respondent 1 whose terms and conditions of employment are governed entirely by the letter of appointment issued to him in July 1968 and subsequently modified with his consent. In any event, according to learned counsel, the dispute between the parties was of a civil nature for the resolution of which a suit would lie in a civil Court of general jurisdiction.

9. Mr. Sami Ahmad, learned counsel for respondent 1 did not seriously dispute the proposition that the initial application by respondent I under section 34 of the 1969 Ordinance was misconceived because that could be only by a collective bargaining agent or the employer, He, however, argued that respondent 1 was an "employee" within the meaning of section 2 (8) of the 1965 Ordinance, and the dispute between him and the appellant over the terms of employment of the former fell to be determined under section 57 of the 1965 Ordinance. Section 2 (8) of the 1965 Ordinance reads:

10. " `employee' means any person working normally for at least twenty‑four hours per week, for wages, in or in connection with the work of any industry, business, undertaking or establishment, under any contract of service or apprenticeship, whether written or oral, express or implied, but does not include‑

(a) persons in the service of the State, including members of the Armed Forces, Police Force and Railway servants;

(b) persons employed in any undertaking under the control of any Defence organisation or Railway administration;

(c) persons in the service of a Local Council, a Municipal Committee, a Cantonment Board or any other local authority;

(d) any person in the service of his father, mother, wife, son or daughter; or of her husband;

(e) domestic servants;

(f) any ‑person employed on wages exceeding five hundred rupee per mensem."

11. It is difficult to imagine, how can respondent 1 who belongs to a highly specialised and learned profession and whose professional advice is available to the appellant on part‑time basis, but who is otherwise free to practise; privately, can be treated as an "employee?" The requirement of "working for at least twenty‑four hours per week" is completely missing in his case Secondly, his employer (the appellant) is established under a statute which according to its preamble is designed to provide ` benefits to certain employees in the event of sickness, maternity employment injury or death and for matters ancillary thereto." His employment for the purpose of Ordinance cannot by any stretch be regarded to be "in connection with the work of any industry, business, undertaking or establishment." There can be no manner of doubt that this phrase has reference to persons who being employed in any industry etc. other than an industry etc. specified in clauses (a) to (e) and whose monthly wages do not exceed Rs. 500 each. It would indeed be doing violence to the language of the statute to hold respondent 1 as employee within the meaning of the above definition.

12. To invoke the jurisdiction of respondent No. 2, in relation to the dispute between respondent No. 1 and the appellant Institution, Mr. Sami Ahmad relied upon the provisions of sections 17 and 5',' of the 1965 Ordinance. These sections are in these terms:--

13. "17.‑(1) The Institution shall appoint Medical Practitioners and Medical Boards in such Social Security Areas and in such manner as may be provided by regulations.

(2) The powers and functions of Medical Practitioners and Medical Boards, and the fees and allowances to be paid to such practitioners or the members of such boards, shall be such as may be provided by regulations.

57. If any complaint is received or any question of dispute arises as to‑

(a) whether any person is a secured person within the meaning of this Ordinance or whether he is liable to pay the secured person's contribution;

(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 art 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 benefit 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 regulation 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 decisions."

14. Learned counsel argued that respondent 1 held, what he described, a statutory appointment under section 17. Subsection (2) ibid., envisages the frame of regulations to determine the powers and functions of Medical Practitioners and the fees and allowances to be paid to such practitioners." From this it was sought to be argued that the remuneration payable to respondent 1 was not a mere matter of agreement, between the parties, but had the sanction of the statute, and therefore, was covered by the expression "other dues payable or recoverable under the Ordinance" in clause (f) of section 57, It was emphasised that clause (f) of section 57 was in general terms and its application is by no means confined to the dues of "employees" or "secured persons" but would extend to the remuneration payable to respondent No. 1. The, appellant having refused to accept the claim of respondent No. 1, it has been competently entertained for adjudication by respondent 2 as Social Security Court

15. The argument in my opinion is tenuous. The 1965 Ordinance envisages the introduction of various schemes for the benefit of "secured" employees and their dependents. There are elaborate provisions for medical care of such persons. Section 17 merely underlines one of such obligations of tile Institution and the manner in which that obligation is to be discharged. Section 80 of the Ordinance provides for the framing of regulations to prescribe the qualifications of medical practitioners, the manner in which they will be authorised to give certificates required under any of the provisions of the Ordinance, the forms of such certificates, the scales of fees, allowances, etc. But these provisions are merely regulatory and can hardly be read as conferring any particular status upon medical practitioners their appointment is not to be notified in the official Gazette either. It was also conceded that in the instant case and in other similar cases, the terms and conditions of service are settled by agreement between the parties.

16. Secondly, nothing turns on the provisions of section 57 of the Ordinance. Clauses (a) and (b) ibid expressly refer to "complaints" by "secured persons". Clause (c) refers to contribution payable by an employer in respect of an employee. Clause (d) relates to a dispute, whether a particular person is or is not a "secured person" and the liability of his present or past employer with regard to him. Clause (e) relates to dispute with regard to "any benefit" awardable under the Ordinance. Thus it will be seen that clauses (a) to (e) directly or indirectly concern matters relating to "secured persons". The question therefore is whether (f) which is in general terms, on its proper interpretation would apply to matters somewhat similar to the matters dealt within the preceding clauses, or would extend to matters which are wholly dissimilar, in regard to their subject‑matter or the parties thereto. Courts have always applied rule of ejusdem generis in such cases. The rule is, explained in Maxwell on Interpretation of Statutes, 12th Edu. at pages 297‑98 in these words:

17. "But the general word which follows particular and specific words of the same nature as itself takes its meaning from them and is presumed to be restricted to the same genus as those words. For "according to a well‑established rule in the construction of statutes, general term's following particular ones apply only to such persons or things as are ejusdem generis with those comprehended in the language of the Legislature." In other words, the general expression is to be read as comprehending only things of the same kind as that designated by the preceding particular expressions, unless there is something to show that a wider sense was intended, as where there is a provision specifically excepting certain classes clearly not within the suggested genus."

18. Nothing has been said to indicate, that clause (f) should be read differently] from the immediately preceding context. Moreover, clause (f) concerns matters in respect of "any contribution or benefit or other due payable or recoverable under this Ordinance." These words plainly refer to various benefits admissible to "secured persons" under different situations contemp lated by the Ordinance or the schemes framed thereunder: these words cannot on any reasonable interpretation extend to the case of respondent No. 1 whose claim arises out of agreement between the parties and not "under" any provision of the Ordinance. Therefore reliance by learned counsel for respondent No. I upon section 57 to invoke the special jurisdiction of respondent No. 2 is wholly mistaken. And a fortiori, the matter cannot be taken in appeal before respondent No. 2, under section 61 of the Ordinance.

19. Mr. Sami Ahmad next argued that section 64 of the 1965 Ordinance provides for further appeal to the High Court against the order of Social Security Court "on a substantial question of law." Therefore, even if the ultimate decision by respondent 2 is against the appellant, the latter will have a right of appeal to the High Court which was adequate alternative remedy to preclude interference by the High Court in its writ jurisdiction. On the above argument learned counsel canvassed against interference by this Court even if the proceedings before respondent 2 did not strictly fall within its jurisdiction, more so when the High Court has declined to interfere, in exercise of its discretionary jurisdiction.

20. On this aspect of the matter, the essential facts are these namely:‑‑‑

(i) as explained already, respondent 2 having regard to the subject‑matter of the "complaint" by respondent 1, had no jurisdiction to entertain it and

(ii) respondent 2 had no territorial jurisdiction because rule Government Notification No. S. O. (L‑II)‑IX‑(1)/70 dated Ist April 1971, his territorial jurisdiction is confined to Hyderabad and Khairpur Divisions t and does not extend to Karachi.

21. These defects of jurisdiction are apparent on the face of the record which in my opinion would at once attract certiorari jurisdiction of the High Court. I have not the slightest doubt that if respondent 2 proceeds to hear the complaint of respondent 1, the proceedings will be wholly without jurisdiction and therefore a nullity. In somewhat similar circumstances in the Murree Brewery Company Ltd., v. Pakistan (P L D 1972 S C 279), this Court interfered in proceedings for acquisition of certain properties by the Capital Development Authority although there existed provisions for appeal and review in the statute under which proceedings for the acquisition were initiated. In that case the writ petitioner (Muree Brewery Company) challenged the jurisdiction of Capital Development Authority under Ordinance XXIII of 1960 to make the impugned acquisition. The respondent's plea that the writ petition was not maintainable inasmuch as the writ petitioner had not exhausted its remedy of appeal provided under the Ordinance prevailed in the High Court and writ petition was dismissed. This Court on appeal however, held:

22. "The petitioner challenged the very jurisdiction of the Capital Develop ment Authority to make the impugned acquisition under the Ordinance. If it had succeeded in establishing that the impugned acquisition was ultra vires the Ordinance, its appeal under section 36 would have been an exercise in futility. The rule that the High Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring jurisdiction but a rule by which the Court regulates its jurisdiction. One of the well recognised exceptions to the general rule is a case where an order is attacked on the ground that it was wholly without authority . .

23. The appeal under section 36 of the Ordinance is limited to a matter which is within the jurisdiction of the authority concerned and the, scope of the Ordinance. A question of jurisdiction is a matter for Review, which is based not on the merits but on the legality of the lower authority's proceedings."

24. In reaching that conclusion this Court followed the dictum in the earlier decision in the case of Lt.‑Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty and another (P L D 1961 S C 119).

25. For the foregoing reasons this appeal is allowed and the proceedings initiated by respondent 1 and pending before respondent 2 herein are hereby declared to be without lawful authority and of no legal effect and are therefore, quashed. However, parties are left to bear their own costs.

26. MUHAMMAD YAQOOB ALI, J. ‑-I agree.

27. SALAHUDDIN AHMAD, J.‑- I agree.

28. S. A. H. Appeal allowed.