OKARA FLOUR AND GENERAL MILLS, OKARA Versus PUNJAB EMPLOYEES' SOCIAL SECURITY INSTITUTION, LAHORE

The appellant has assailed the orders dated 17‑1‑1982 and 9‑5‑1982 passed by the Director, Social Security and the Social Security Court respectively.

2. The brief facts of the case are that the appellant is a notified establishment and respondent No. 1 put up a demand of Rs.400 plus Rs.200 per month on account of contribution for Social Security. The appellant filed a complaint under section 57 of the Provincial Employees' Social Security Ordinance, 1965 before the Institution (Director), which was dismissed vide order dated 7‑1‑1982. The petitioner's appeal was allowed and the case was remanded to the Director with an observation that the parties be given an opportunity to adduce evidence to substantiate their pleas. Accordingly the parties were allowed to produce evidence and thereafter the complaint was dismissed on merits vide order dated 17‑1‑1982. Again the appellant preferred an appeal before the Social Security Court, which was dismissed vide order dated 9‑5‑1982.

3. The appellant's learned counsel contends that the appellant had assigned a contract for employing casual labour for stitching wheat bags and for loading and unloading the same. Hence, no payment was legally due on account of contribution to Social Security. Placing reliance on Pakistan Tobacco Co. Ltd. v. Punjab Employees' Social Security Institution (PLD 1978 Lah. 704) he contends that no contribution is payable in respect of casual workers who are not, engaged in the basic work or business of an industry/establishment.

4. Learned counsel for the respondents contends that the appeal before this Court under section 64 of the Provincial Employees' Social Security Ordinance, 1965, lies only on a substantial question of law. He submits that in the present case the sole question of law whether the employees engaged by the contractor were employees under the owner of the industry, has been finally settled in the case of Sindh Employees' Social Security Institution v. Consolidated Sugar Mills Limited (1989 SCMR 888). As regards the other question pertaining to wages, number of workers and hours of duty, being the question of fact cannot be agitated in the present appeal. He further submits that the appellant did not maintain proper record in respect of the workers/employees engaged by the contractor. However, the assessment of contribution in the present case was made in the light of some relevant record of the appellant including cash book, bills of contractor showing payment to the employees every month. He refers to order dated 17‑1‑1982 passed by Mr. A.S. Farooqi, Director, C.M.P. (Punjab Social Security Employees) in which the material on the record was discussed for assessing the contribution payable by the appellant. He adds that the list of the persons employed by the appellant Mills was never provided to the Institution. Hence, the question of providing the requisite facilities to them did not arise in the case.

5. In reply the learned counsel for the appellant submits that the above referred judgment is distinguishable on facts. He points out that contribution can be demanded by the respondents on proving that the daily workers had to perform their duty for 24 hours regularly in a week. He also points out that the department has to show the facilities provided to the labour. In the present case, no facilities were provided to the labour.

6. There is considerable force; in the arguments raised by the respondent's learned counsel. The important question of law whether the owner is liable for contribution under section 20 of the Ordinance in respect of the employees engaged through a contractor has since been decided by the Hon'ble Supreme Court in the case of Sindh Employees' Social Security Institution (1989 SCMR 888). The relevant portion of the judgment is reproduced as under: ‑‑

"In this context of these definitions the charging provision (section 20) leaves no manner of doubt or ambiguity. Employer has been defined to mean the owner and the owner has been charged under section 20 for contribution. Even where the owner does not fall strictly within the definition of an employer as in the case of State undertaking or an owner of a plot over which he wants to get a building constructed through the Contractor, the liability under the Ordinance has been cast on the State under subsection (9) and on the owner of the building under subsection (8) of section 20. Such extension cannot be interpreted as to imply the exclusion of other owners defined as employers but as including them within the charging provisions. Reading these provisions together the conclusion is inescapable that the owner of the industry is liable for employees engaged for his industry even through the contractor. The contention that the contractor should be taken to be employer and not the owner, as expressed in the agreement with the contractors and made liable for the contribution, cuts across the scheme of the statute where it was intended by law to make the Contractor, the employer, the statute made provision for it directly (State undertakings‑‑section 2(9) or indirectly (section 20(8) and section 20(9)). By construction or interpretation if the Courts were to introduce such contractors also as employers on the basis of contracts or otherwise, then the Court would be rewriting the law itself, such an. interpretation being in derogation of the express provision that in every other case' it is the owner who is to be the employer."

7. The Pallaydars employed through the contractor whether for stitching the bags or for loading and unloading the filled bags certainly performed duties in connection with the business of the appellant‑Mills. Their welfare and security is the concern of appellant and he is liable under the law to pay Social Security contribution for the workers/Pallaydars employed through the private contractor. It has been established on the record that the business of the appellant‑Mills goes on throughout the year and workers are employed to load and unload the wheat bags. The contractor obtains payment on fortnightly basis from the appellant for paying wages of the Pallaydars. It is not believable that every day the contractor employs new Pallaydars and that no one continuously works for 24 hours in a week. The factum of payment on daily basis does not necessarily mean that the employee works only for one day. A person may receive payment daily and continue his work throughout the month or even the year. Since Pallaydars are working in connection with the business of the Mill throughout the year the appellant could be legitimately called upon to pay social security contribution. Moreso, when the appellant has been earlier paying the contribution but discontinued it without any legitimate cause. The assessment of the contribution has been reasonably made from the available record including the cash books and bills of the Contractor showing payment to the employees every month.

8. For the foregoing discussion, I do not find any merit in this appeal, which is dismissed leaving the parties to bear their own costs.

A.A./O‑3/L

Appeal dismissed.