MCDONALD LAYTON CONSTAIN LTD. Versus PB. EMPL. S.S.I

1. MUHAMMAD AFZAL ZULLAH; CJ .‑‑‑This matter has come up before us as an appeal. After some discussion on: whether it should not have been riled as a petition for leave to appeal because the conditions required by Article 185 of the Constitution for filing a direct appeal, strictly speaking, have not been satisfied, we permitted the learned counsel to argue and press the same as a petition for leave to appeal. We relaxed the rule relating to the filing of the petitions for leave to appeal.

2. The petitioner has challenged the finding of the High Court that the petitioner Company is liable under the Punjab Social Security Ordinance, 1965 to make required contribution regarding its projects in Islamabad city, though, it is not denied that those engaged in connection with and through its office in Rawalpindi are included for the purposes of the contribution by the petitioner. The two main arguments of the learned counsel are:

3. Firstly that the relevant Notification under section 1 (3) of the Ordinance (Page No. 8 of the Paper Book No. 2 at Serial No.7) gives the address of the petitioner with reference to its office in Satellite Town, Rawalpindi. Therefore, the projects in Islamabad should be treated as different and separate "establishments" independent of the establishment at Rawalpindi. In order to support his arguments learned counsel had also cited Messrs Kashmir Corner v. Sindh Employees' Social Security Institution, Karachi (PLD 1975 Karachi 36) and Commissioner Sindh Employees' Social Security Institution v. (M/s.) Cowasjee & Sons (Lighter) 1985 CLC 324. While doing so he has tried to distinguish the law laid down by this Court in Kohinoor Chemical Co. Ltd. and another v. Sindh Employees' Social Security Institution and another (PLD 1977 SC 197) and Sindh Employees' Social Security Institution v. Greaves Cotton & Co. (Pak) Ltd. (1980 SCMR 529).

4. And secondly, that the High Court not having disturbed the finding of fact rendered by Punjab Employees' Social Security, Court upholding the petitioner's aforenoticed plea, the impugned judgment by the High Court is liable to be set aside.

5. The High Court noted arguments from both sides and decided the appeal as follows:‑‑

6. "The Institution impugned the order in the present FA.O. The main contention was that the rule formulated in the Messrs Kashmir Corner's case was not approved in Kohinoor Chemical Co. Ltd. and another v. Sindh Employees' Social Security Institution and another PLD 1977 SC 197 and that the notification under section 1(3) though ostensibly related to the Head Office of the respondent‑Company located at Rawalpindi, yet covered in its purview all employees wherever they worked in connection with their affairs. The proposition now seems to be established, for, the Supreme Court has quite elaborately laid down in principle that once an establishment is notified for the purposes of applying the Ordinance to it, all its employees wherever working in connection with its affairs, shall be ipso facto covered by its mischief. The view taken was that no separate notification was needed for an outside place. The only requirement was to see if the employees worked for the establishment, or in connection with the affairs thereof. It was also thought that there was no idea of limiting an establishment, or its activities to a narrow area as in many cases such a restriction may not even be workable. Still further, it was observed that a Head Office of an establishment at a particular place was just not co terminous, with its affairs or activities which in some cases might be expanded, say, to the entire country.

7. Learned counsel for the respondent referred to pages 205‑206 of the Supreme Court judgment and Commissioner Sindh Employees' Social Security Institution v. (M/s.) Cowasjee & Sons (Lighter) 1985 CLC 324 in order to stress that for Islamabad, a separate notification was needed. A perusal of these excerpts would not support the contention of the learned counsel for the respondent. The basic rule evolved in the entire authority was that employees of an establishment may not necessarily be working physically at the place of its headquarters and that conversely if they work in connection with the affairs of the establishment even outside the place so notified, they shall be covered by the notification.

8. As a result, the appeal is accepted and the impugned judgment is set aside. The order of the Commissioner, Punjab Employees Social Security Institution, is restored."

9. The judgments of this Court as analysed by the High Court obviously do not support the learned counsel for the petitioner. The argument that the High Court did not set aside the so‑called findings of fact in the judgment impugned before it, is also without force. The High Court had restored the order of the Commissioner, Punjab Employees' Social Security Institution. It was held therein as follows:‑‑

10. "The contention of the M.L.C. that the three projects going on at Islamabad had nothing to do with the office at Rawalpindi stands contradicted by the admission of the representatives of the M.L.C. that it is the D.E's office at Rawalpindi that supplies machinery and other equipment for the projects going on in Islamabad. There is no other office in the local area which provides or provided machinery and other equipment for the projects other than the office of the D.S. M.L.C. Rawalpindi. If the workers of the projects that remained in operation at Islamabad could not get the benefit of Social Security, it is the fault of the M.L.C. organisation and they have no good ground to argue that the demand notice is incorrect.

11. For the foregoing reasons I am convinced that the demand notice issued by the Local Director, Rawalpindi is in order. 1, therefore, order that the contribution on account of the workers that remained engaged on the two projects of construction of Canadian and British Embassies, as also the workers who are, at present, engaged on the construction work of American Embassy being carried out by the M.L.C., shall be recovered from the Macdonald Layton Costain Limited, in accordance with the demand notice.‑

12. With the above directions, the application is disposed of accordingly."

13. The learned counsel next contended that the petitioner/Company having itself made adequate arrangements for the Social Security cover, the High Court should not have interfered in the circumstances of this case. The criticism and the conduct of the petitioner in the order of the Commissioner, a part of which has already been quoted above, indicated otherwise. Unfortunately" we cannot help making an observation that the petitioner,, in order to deprive a section of labour class employed by them, of due benefits under the Ordinance, took up untenable pleas and, adopted such 'position's which it as difficult to establish. In such a pleas situation under the Islamic dispensation, even if the case for both the sides had been equally balanced in order to act advance the command regarding social justice‑, as contained in the Objectives Resolutions, the decision to be rendered by this Court would have gone in favour, of upholding the workers' 'right to the Social Security Cover. In'' the petition before us it. is not even a case of equal strength of both the parties.

14. As discussed above, this petition has no force and is dismissed, accordingly.

15. M.BA,/1533/.M‑S Petition dismissed.