KOHINOOR CHEMICAL CO. LTD. Versus SIND EMPLOYEES' SOCIAL SECURITY INSTITUTION

1. ANWARUL HAQ. J, -This judgment will dispose of civil appeals bearing Nos. K-13 and K-22 of 1976, both of which raise a common question of law as to the application of certain provisions of the West Pakistan Social Security Ordinance, 1965, to the staff working at the Head Office of the establishments notified under section 1 (3) of the said Ordinance even though the Head Office is not specifically mentioned in the relevant notification issued by the Provincial Government.

2. The first mentioned appeal is by the Kohinoor Chemical Co. Ltd. having its registered office at Tibet Centre, Bunder Road, Karachi. By a notification dated the 15th of October 1968, the Governor of the former Province of West Pakistan applied the Ordinance to several industrial establishments, situated in the Karachi district, including the Kohinoor Chemical Co. Ltd., 13-91, Sher Shah Road, S I.T.E. Karachi. The appellant-company started paying the prescribed contribution under the Social Security Scheme in respect of its employees working in the Factory at the notified address, but did not make any such contribution with regard to the employees working in their Head Office situated at the Tibet Centre on Bunder Road.

3. On the 6th of January 1973, the Sind Employees' Social Security Institution served a notice calling upon the appellant to deposit an amount of Rs. 46,452, by way of contribution in respect of the employees working in its Head Office for the period 1st of November 1968 to the 30th of November 1912. The appellant represented against this demand on the ground that the establishment of the Head Office situated at Tibet Centre, Bunder Road, Karachi, had not been notified under section 1 (3) of the Ordinance, and as such they were not liable to make contribution for social security in respect of the employees working at the Head Office. This representation was, however, rejected by the respondent by his order dated the 11th of June 1973. Thereupon, the appellant filed an appeal before the Sind Social Security Court at Karachi which was accepted by the Court's order dated the 27th of July 1973. Aggrieved by this order of the Social Security Court, the respondent Institution filed an appeal in the High Court of Sind & Baluchistan, which was accepted by a learned Judge of that Court by his order dated the 26th of February 1974.

4. After noticing the terms of the notification dated the 15th of October 1968, as well as the definitions of the words 'area', 'establishment', 'employee' and 'employer', and the different kinds of benefits mentioned in several sections of the Ordinance, the learned Judge has concluded as under:

5. "It cannot be denied that the staff at the Head Office of the respondents is in connection with the work of the industry, though the nature of their duty would be different. The address of the respondents mentioned in column 3 of the Notification, was shown as S.I.T.E. area where the factory itself is located. That was a compendious way of fixing up the identity of the respondents. The use of the words "the employers and employees of establishments" in the Notification, clearly goes to show that some of them may not be at the establishments itself. The organization may have various sections ; for workers at the establishment and the other sections dealing with the office management might be elsewhere. The latter class also would be working in connection with the work of the industry within the meaning of section 2(8) of the Ordinance."

6. On this view of the matter, the High Court has upheld the demand made by the respondent Institution for social security contributions in respect of the staff employed at the Head Office of the appellant-Company.

7. The second appeal is by the Sind Employees' Social Security Institution against a judgment delivered by the late Chief Justice ? of the High Court of Sind & Baluchistan on the 24th of May 1974, in which a contrary view has been taken as to the liability of the respondent-Company known as the Kashmir Corner Industries, in respect of the employees working in its Head Office situated in Zaibun Nisa Street, Sadar. Karachi. The establishment, as notified at item 195 of the Notification of the 15th of October 19698, referred to earlier in the case of Kohinoor Chemical Co.. Ltd., was described as "Kashmir Corner Industries, Plot 101, Sector 27. K. I. Area, Karachi." The learned Chief Justice has observed that by reason of the definition of the term 'establishment' as given in the Ordinance, it seems plain that the Ordinance was not to apply to all concerns owned by a particular person or a legal entity as such, but to industries or establishments specifically specified, and accordingly the demand made in respect of the Zaibun Nisa Street establishment on the basis that some goods manufactured in the Korangi establishment are sold at the first mentioned establishment and that the two establishments have a common ownership cannot be sustained.

8. Mr. Ali Ahmed Fazeel, the learned counsel app-.aring for the Kohinoor Chemical Co. Ltd., contends.

(a) that under subsection (3) of section 1 of the Ordinance the provisions of this statute apply only to such areas, classes of persons, industries or establishments, as are notified by the Government in this behalf ; and as in this case the notification related only to the industrial establishment located in the S.I.T.E. area, there could be no question of extending the application of the Ordinance to the employees working elsewhere ;

(b) that in any case it was necessary for the Social Security Institution to hold a factual inquiry for the purpose of ascertaining as to which of the employees working in the Head office could be said to be working "in connection with the work of" the notified establishment, as required by the definition of the term 'employee given in clause (8) of section 2 of the Ordinance, for in the Head Office there are a large number of employees working for the sister concerns of the appellant Company, which have their own independent legal entity ; and

(c) that the demand for arrears of contribution from 1968 to 1 ,72 was not sustainable in - law, as no benefit had been extended by the respondent Institution to the employees of the Head Office during this period, and none could be granted retrospectively as there is a statutory time limit in this behalf, and also because the Company had already granted the necessary benefits to the Head Office employees under a mutual agreement executed in 1972.

9. Mr. S. Ahmed Sarwana, appearing for the Sind Social Security Institution in both these appeals, submits--

(a) that as we are dealing with a legislation intended for the benefit of the employees, we ought to assign as wide a meaning as possible to the terms 'establishment' and 'employee' as defined in the Ordinance, so as to extend the benefits of special security to as many workers as possible ; and that in any case the term 'establishment' as defined in clause (11) of section 2 of the Ordinance, is not confined to a factory or a shop, but includes the entire organisation, thus comprising all the business undertakings carried on by the notified establishment, irrespective of their location ;

(b) that in taking the view that the Zaibun Nisa Street establishment of the Kashmir Corner Industries was not a part of the notified establishment the High Court has overlooked the fact that in the letter-head of the Company itself its Head Office is shown as being situated in Sadar, Karachi, and not in the Korangi area ; and

(c) that once the liability has accrued on the issuance of the necessary notification the obligation rests on the employer to disclose the correct number of secured workers and to make the necessary contribution, and the employer cannot be permitted to take advantage of his own default simply because the omission is detected by the Institution after, some time ; and the realization of arrears cannot be denied only on the ground that benefits could not be conferred retrospectively on the employees.

10. In order to appreciate the respective contentions advanced on behalf of the parties, it is necessary to refer to the relevant provisions of the statute.

11. As already stated, subsection (3) of section 1 of the Ordinance enjoins that it "shall apply only to such areas, classes of persons, industries or 'establishments, from such date or dates, and with regard to the provision of such benefits as Government may, by notification, specify in this behalf." The notification of the 15th of October 1968 has been issued under this provision, and it specifies Karachi district as the territorial limits for the application of the Ordinance and further prescribes that the employees of the establishments mentioned in the notification shall be entitled to the benefits as provided in certain sections of the Ordinance.

12. The term 'employee' has been defined in clause (8) of section 2 of the Ordinance as meaning "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 ....

13. According to clause (11) of the same section 'establishment' means an organization whether industrial, commercial, agricultural or otherwise.

14. Now, it is clear that the two definitions of the terms 'employee' and 'establishment' have to be read together in order to arrive at a correct interpretation of the scope of the notification issued by the Provincial Government. Similar terms employed in the comparable Indian Legislation, namely, Employees' State Insurance Act, 1948, fell for interpretation by a Division trench of the High Court in Employees State Insurance Corporation v. Ganpathla Pillai A I R 1961 Mad.

176. The word employee is defined in section 2 (9) of the Indian Act as meaning. "any person employed for wages in or in connection with the work of a factory or establishment to which this Act applies and

(1) who is directly employed by the principal employer on any work of, or incidental or preliminary to or connected with the work of, the factory or establishment, whether such work is done by the employee in the factory or establishment or elsewhere . . . . . . . : '

15. The learned Judges took the view that only persons who were in some manner or other connected with the work of the factory, namely, the manufacturing process, could be said to be employees within the meaning of the definition, even though there were the words incidental or preliminary to, but both these had to be understood in conjunction with the words "with the work of the factory." Having reached this conclusion they proceeded to examine whether the employees in question were performing any work in connection with the notified factory. It will be seen that only those employees were regarded as being liable to pay the necessary contribution whose work had a nexus with the work of the notified factory or establishment.

16. There is no doubt that we are dealing with a beneficial or remedial; legislation conceived as a means of ameliorating the lot of the working class, and as such it would be in keeping with the accepted principle of interpret -I as observed in Divisional Superintendent, P. W. R., Karachi v. Bashir Ahmed P L D 1973 S C 589 that it should be so construed as to advance the remedy and suppress the mischief, or else it would frustrate the legislative intent. It would appear, therefore, that, in keeping with the object of the legislation, as wide an interpretation should be placed on the terms 'employee' and 'establishment as permissible within the language employed in the statute.

17. Viewed in this light, the term 'establishment', as defined in clause (11) of section 2 of the Ordinance, does not appear to me to be confined in its scope to merely the four walls of the physical premises where the notified' establishment may be located; on the contrary, the definition speaks of an organization whether industrial, commercial, agricultural or otherwise. In its literal sense an organization connotes a systematic arrangement for a definite purpose. In the legal sense it describes a system, a body or a society furnished with organs for the normal exercise of its appropriate functions. It follows, therefore, that an organization is not necessarily co-terminus with the physical premises where it may be located. It is possible that a part of its structure may be situated elsewhere, but it must , nevertheless be integral to its main functions and objects. ,

18. That this is the proper construction of the term 'establishment' appears to find support from the definition of the term 'employee as given in clause (8) of section 2 of the Ordinance, which includes in the definition not only a person working in the industry or establishment but also "in connection with the work of" any industry, business, undertaking or establishment. It is clear to me that a person who is working "in connection with the work of" an establishment may not necessarily be physically located in the notified premises, but may be elsewhere-of course, within the social security area as notified under clause (3) of section 1 of the Ordinance. The essential test in such a case would be whether the person concerned is indeed working in connection with the work of the notified establishment. The late Chief Justice has rightly remarked, in that case of the Kashmir Corner Industries, that the mere fact of common ownership could not be made the basis of extending the social security benefits to employees of a sister concern, although they are not working in connection with the notified establishment. Similarly, the benefit could not be extended to employees simply described as working in the Head Office of the organization or establishment concerned, unless a proper inquiry is held to establish whether they are indeed working in connection with the notified establishment.

19. Mr. Ali Ahmed Fazeel drew our attention to certain items iii the notification of the 15th October 1968, in which the Head Office establishments had been separately notified, and argued that without such notification the employees of the Head Office could not at in the benefits. The argument is untenable for the reason that such departmental construction of the statute, although relevant, is not ? on the Court. (See P L D 1960 S C 195 and P L D 1965 S C 412). Secondly, it appears that once the Head Office establishment is separately notified, then the question whether It has any nexus with the other notified establishment of the same company or employer becomes irrelevant, for in such a case the employees concerned would be covered by the fact of notification, thus still leaving open the question of the true interpretation and scope of the terms employee and establishment.

20. It seems to me, therefore, that the correct position in law is that the specified benefits under the Ordinance would accrue to all employees of the notified establishment who are working either in the establishment or in connection with the work of the same. The latter category of employees may not be physically located at the notified address, but in that event an inquiry would be necessary to establish whether they are in fact working in connection with the work of the notified establishments. The mere fact of common ownership of two establishments would not establish such a nexus or connection. It needs to be further clarified that the connection must be with the work of the notified establishment, as indicated in the statutory definition, thus requiring an exact description and appreciation of the nature of the work carried on in the establishment and by the disputed employees.

21. On this view of the matter, it is necessary that an inquiry should be held by the Social Security Institution in both these cases to establish the identity of persons working in the Head Offices of the two notified establishments who can be described as employees working in connection with the work of the establishments concerned. Only such employees would fall within the ambit of the notification and the other persons working in the Head Office would stand excluded.

22. Mr. Ali Ahmed Fazeel stated at the Bar that out of 150 employees working in the premises of the Head Office of the Kohinoor Chemical Company, 57 only were on the pay roll of this company, and even out of these only 48 were in receipt of salary upto Rs. 1,000, the remaining nine being beyond the ambit of the Social Security Ordinance on account of being in receipt of higher salaries. He contended that out of the 48 workers in question very few could be said to be directly working in connection with tile work of the notified establishment. In view of the conclusion reached by us in the preceding paragraph- it is not necessary for us to express any opinion on this point as the matter will have to be determined by a proper inquiry.

23. As regards the Kashmir Corner Industries, we may state at once that it is difficult to accept the contention advanced on behalf of this Company that tine establishment in the Zaibun Nisa Street (formerly known as Elphtinston Street), Karachi, has nothing at all to do with the notified establishment situate in the corangi industrial area. Such an assertion is negatived by the address printed on the letter addressed by the company itself to the Director of the Social Security Institution on the 18th of May 1974. This letter clearly shows that the Head Office of the company is located at Kashmir Corner Elphination Street, Karachi. It follows, therefore, that here again it is a matter for investigation to determine as to which of the employees working in the Elphinston (Now Zaibun Nisa Street) establishment are working in connection with the work of the notified establishment.

24. We may now turn to the question of the realization of the arrears of the contributions which have already become due on such of the employees as are found on a proper factual inquiry, to be covered by the notification of the 15th of October 1968.

25. The subject of contributions is dealt with in Chapter III of the Ordinance. Subsection (1) of section 20 enjoins that "subject to the other provisions of this Chapter, the employer shall in respect of every employee, whether employed by him directly or through any other person, pay to the Institution a contribution at such times, at such rate and subject to such conditions us may be prescribed". Section 21 then lays down that "every employer shall keep such records and shall submit to the Institution such returns, at such times, in such form and containing such particulars relating to persons employed by him, as may be provided in the Regulation".

26. Reading the two sections together, it appears to me that once a notification has been issued under subsection (3) of section 1 of the Ordinance notifying the areas, classes of persons and industries or establishments to which the Ordinance is to apply, then the obligations of the employers spelt out in sections 20 and 21 come into play, and it is incumbent upon them to make the necessary contributions and keep the necessary records and furnish the necessary returns as may be prescribed by the Social Security Institution under rules or regulations made under the Ordinance. These obligations are not dependent upon any action to be taken or initiated on the part of the Institution; on the contrary, they are statutory obligations incurred under the relevant provisions of the Social Security Ordinance.

27. Section 22 of the Ordinance makes provision for enabling any official of the Social, Security institution duly authorised in this behalf by a certificate issued in the specified form, to carry out a check for the purpose of ascertaining whether any of the provisions of the Ordinance have been complied with or not. Subsection (3) of this section contemplates that "if an employer fails to maintain records or to submit returns as required by regulations, or otherwise fails to comply with the provisions of subsection (1) and thereby makes it difficult to ascertain the identity of persons required to be secured or the amount of contribution payable, the contribution shall be assessed on the basis of such evidence as the Institution may find satisfactory for this purpose." Section 23 of the Ordinance introduces a penal provision by saying that if any employer fails to pay on the due date the contribution payable by him under subsection (1) of section 20, the amount so payable by him shall be increased by such percentage or amount as may be prescribed. It further enables the recovery of arrears of contribution as arrears of land revenue.

28. The stringent provisions contained in section 23 of the Ordinance are supplemented by further penal provisions contained in section 66 thereof, which makes the failure to pay any contribution an offence punishable with imprisonment which may extend to three months or with fine not exceeding Rs. 1,000 or with both. Here again, the penalty is incurred on account of the failure to pay any contribution which the person concerned is liable to pay under the Ordinance. The penal sections do not speak of failure to comply with any notice of demand served by the Institution. It follows, therefore, that the liability to pay or make the contribution arises under the statute and the rules and regulations made thereunder irrespective of any demand being made by Social Security Institution, although the' Institution has the power to carry out a check under section 22 of the Ordinance.

29. We may now take a quick look at the rules framed in this behalf by the Government under section 79 of the Ordinance, as well as the Regulations made under section 80 thereof.

30. ? Rule 3 of the West Pakistan Employees' Social Security (Contributions) Rules, 1966, lays down that the rate of contributions shall be as shown in the Schedule to these rules. Rule 4 places an obligation on the employer to show the amount of the contribution payable by him in the specified manner. Rule 5 requires the employer to submit to the local office of the Institution at which he is registered the copies of pay rolls or contribution Schedules referred to in rule 4 (1) within fifteen days of the end of each month, or such extended period, not exceeding 45 days, the Institution may allow, and at the same time to pay at the said local office, the total amount of the contribution shown thereon as due. Rule 6 imposes a penalty to the extent of one-half percentum per day for each day after the expiry of the prescribed date that the contribution remains unpaid.

31. The West Pakistan employees Social Security (Contributions) Regulations, 1967, make provision for the calculation of the contributions payable in different situations by the employer. It is not necessary to go into the details of these regulations, but suffice it to say that the scheme of these regulations shows that the responsibility has been squarely placed on the employer to make the contributions to the Social Security Institution. Before the recent change in the law, whereby contributions by the employees have been abolished, it was the duty of the employer to recover the same from his employees and credit them to the fund of the Institution. Regulation 6 permits the extinguishments of claims for unpaid contributions if the Commissioner of the Institution is satisfied that all necessary steps open to the institution have been taken but without success.

32. Lastly, in this connection there is the West Pakistan Employees Social Security (Employers Returns and Records) Regulations, 1967. These regulations leave no room for doubt that the entire responsibility has been placed by law on the employer whose establishment has been brought within the scope of the Ordinance by Government notification under the provisions of section 1(3) to furnish the necessary returns to the Institution, indicating the approximate number of his employees liable to become secured persons, and supply other periodical information.

33. A perusal of the rules and regulations issued by the Provincial Government under the Ordinance thus shows beyond doubt that the liability to pay contributions on all the secured workers of the notified establishment rests on the employer, and his failure to pay can be visited with a penalty by way of an increase in the amount payable, or even by prosecution before a criminal Court. Such being the scheme of the law, it is clear that an employer would ordinarily be under a statutory duty to pay the arrears of the contributions, whether the same have arisen owing to failure to pay any amount due on the employees shown as secured workers in the requisite returns, or on account of the omission of the employer to show certain number of employees at all in such returns on the assumption that they were not covered by the notification or for any other reason. The liability having been incurred under the law, the arrears would keep on falling due in accordance with the prescribed rate of contributions on account of all the employees who would, on a proper construction of the law, be entitled to be treated as secured workers. The employer cannot benefit from his own default.

34. Now, the question is whether this liability to pay the arrears is in any manner affected by certain time limits prescribed in the West Pakistan Employees Social Security (Time Limit for Claiming Benefit) Rules, 1966, or the West Pakistan Employees Social Security (Benefit) Regulations, 1967, or any other cause or circumstance found to be appurtenant to the beneficial object of the legislation.

35. Rule 3 of the West Pakistan Employees' Social Security (Time Limit for Claiming Benefit) Rules, 1961, lays down certain time limits, varying between seven to fifteen days, for claiming sickness, maternity or injury benefits or a death grant as well as a survivors pension. These time limits can be extended up to three months by the Institution if it is satisfied that there were reasonable grounds for not submitting the claims in time. It would appear that ordinarily the benefits would become time-barred after the expiry of the period mentioned in the proviso to rule 3.

36. The West Pakistan Employees' Social Security (Benefit) Regulations, 1967, contain the detailed procedure for the provision of the different kinds of benefits and facilities to the secured employees, bat do not prescribe any time limits ostensibily for the reason that the same are provided for in the relevant Rules. The Regulations are, therefore, not of any assistance in answering the question we are considering here.

37. Section 24 of the Ordinance seems to have some relevance as it provides that in the event of default in the payment of contributions by the employer in respect of a secured person, such secured parson shall, unless he has connived at such default have and enjoy the same rights under this Ordinance as if no such default had occurred. This is obviously a beneficial provision intended to safeguard the rights of secured persons to enjoy the various benefits conferred by the Ordinance, even if their employer commits default in the payment of the necessary contributions.

38. It appears to me that the statutory provisions noticed in the preceding paragraphs, when read together, do not have the effect of wiping out the liability of the employer to pay the arrears of contributions, where such arrears have arisen owing to his own default in the performance of thel0 obligations placed on him by the Ordinance and the statutory Rules and Regulations framed thereunder. In spite of such default the secured employees could take advantage of the benefits in terms of section 24 of the Ordinance.

39. The case of the employees, however, appears to stand on a different footing. The object of the legislation is to benefit the employees by protecting them in the event of sickness, injury, maternity, death etc., Although they could avail of these benefits under section 24 of the Ordinance even if their employer had committed default in the payment of his contributions, yet if they have in fact not availed of these benefits under an impression, created by the employer, that they were not entisled to the Social Security benefits conferred by the Ordinance, then it would be against the spirit and object of the legislation to require them to pay their contributions for the period during which they did not avail of these benefits. The statute not having placed any obligation upon them to furnish any returns or to pay contributions directly, to the Institution, the responsibility remains throughout on the employer to see that the requirements of the law are fulfilled. If through the employee?s default, the employees are neither made aware of their obligation to pay the contributions nor of their entitlement to obtain benefits under the Ordinance, then it would be just and proper to so construe the law as to exempt the employees from the payment of contributions for the period of default.

40. On this view of the matter, I am inclined to hold that although the employer must be made to pay the arrears of his contributions at the prescribed rate, yet the employees may not be so required for the period when their contributions were in force, but they were prevented from making the contributions and availing of the benefits due to the default of the employer. We were informed that from 1968 to April 1972 the employees were required to contribute at the rate of 2 % of their wages whereas the employer's contribution was fixed at 4 %, but from April 1972 the entire liability has been placed upon the employers only. From this date onwards the question of the employees' contributions does not, therefore, arise in any case.

41. We may now turn to a consideration of the submission made by Mr. Fazeel that there is a special feature or circumstance in the case of the Head Office employees of the Kohinoor Chemical Co. Ltd., which makes it inappropriate for the past liability to be enforced even against the employer. The learned counsel submitted that the appellant-Company had entered into an agreement with the Head Office employees in July 1972 to contribute 6 % of their wages to a special medical fund so as to provide them most of the benefits available under the Ordinance. The details of this agreement are not before us and vie are, therefore, not in a position to say as to what exactly are its terms and conditions. The agreement does, however, appear to be directly relevant or appurtenant to the beneficial objects of the legislation we are considering in the present case, especially as the rate of the employer's contribution is stated to be the same as required under the Ordinance and the Rules framed thereunder. We consider. therefore, that for the period during which this agreement has been in force and for which contribution to the special medical fund has in fact been made by the employer at the rate of 6 % of the wages of the employees concerned, ft would not be proper to insist on the realisation of the arrears of the employ en's contribution, as it would amount to a double contribution by the employer at the rate of 12 % for the period so involved.

42. As no such claim or submission was made on behalf of the Kashmir Corner Industries, these considerations do not apply to it, and it would be liable to pay the employees contribution for the entire period of default.

43. For the foregoing reasons I would hold that ;-

(1) Once an establishment is notified under section 1(3) of the Ordinance,, then the specified benefits under the Ordinance would accrue to all employees of the said establishment who are working either in the establishment or in connection with the work of the same. The latter category of employees May not be physically located at the notified address, but in that event an inquiry would be necessary to establish whether they are in fact working in connection with the work of the notified establishment. Such an inquiry should now be undertaken by the Social Security institution with regard to the employees working in the Head Offices of both the establishments involved in these appeals ;

(2) On the issuance of the necessary notification, the obligation is, squarely placed on the employer to furnish the necessary returns to the Institution and to pay the prescribed contributions in respect of its own share and to realise the same from the employees, and credit the proceeds to the fund of the Institution. This liability to pay the contribution is not dependent upon the issuance of any notices of demand by the Institution and the employer cannot be permitted to take advantage of his own default;

(3) As regards the employees a distinction has to be made in view of the fact that the legislation is intended for their benefit, and if they have been prevented from making the contributions or availing of the benefits concerned owing to a default on the part of the employer, then it would not be in accordance with the spirit of the legislation to realise past contributions from the employees for the said period during which they were not treated as secured workers ; and

(4) The arrears of contributions may not be realised from an employer for the period during which he had made alternative arrangements for affording the necessary benefits to the employees and had made a contribution in that behalf at least equal to the rate prescribed under the Ordinance and the Rules and Regulations framed thereunder. Otherwise, the realisation of arrears would mean a double levy on the employer, without any corresponding benefits to his employees.. However, the existence of any such adequate alternative arrangements must be established to the satisfaction of the Social Security Institution.

44. I would dispose of both these appeals in terms of the conclusions summarized in the preceding paragraph, and leave the parties to bear their own costs.

45. I have recorded a separate note subject to (which ?) I agree that appeal is disposed of as proposed by H. J. (2).

46. MUHAMMAD GUL, J.-I agree.

47. MUHAMMAD AKRAM, J.-I agree.

48. MUHAMMAD HALEEM, J.-I agree.

49. MUHAMMAD YAQUB ALI, C. J .-I agree with the order proposed to be delivered in the case by my brother Anwarul Haq, J., but reserve my own view on the liability of the Employer to contribute to the fund of the Social security Institution, for the period during which the Institution, has rendered to service to the workers who may, on inquiry, be found to be covered by he definition of 'employee' in section 2(8) of the West Pakistan Employees' social Security Ordinance, 1963.

50. It was stated from the bar by the learned counsel for the Employer, respondent herein, that the workers employed at the Head Office have all long been provided, under an agreement, some of the services which the respondent would have rendered to them had they been registered with it finder the West Pakistan Employees' Social Security Ordinance. If that be o then the appellant will have no liability to make additional contribution o the fund of the Social Security Institution. A distinction must be made n this respect between a tax and a fee. The contribution which the employer and the workers are required to pay to the Social Security Institution is in the nature of a fee for rendition of services enumerated in the West Pakistan Employees Social Security Ordinance and not a tax. There! is thus no absolute liability to pay on the part of the Employer as well as the workers.

51. S. A. H. ?????????????????????????????????????????????????????????????????????????????????????????????? Order accordingly.