SIND EMPLOYEES' SOCIAL SECURITY INSTITUTION Versus SIMPLEX RUBBER MANUFACTURERS LTD.

1. This Miscellaneous Appeal under section 64 of the Social Security Ordinance, 1965, is directed against the order dated 19‑12‑1987, passed by the learned Presiding Officer, First Social Security Court at Karachi, in the matter of Appeal No.4 of 1987 under section 59 of the said Ordinance filed by the respondent against the appellant. This appeal was filed by the respondent against the order dated 23‑6‑1987 passed by the Director of Sind Employees Social Security Institution.

2. Preliminary objection has been raised by Mr. S.A. Sarwana, learned counsel for the appellant, that the appeal under section 59 was not maintainable as the impugned order passed by the Director could not be considered as an order passed by the Institution under section 57 of the said Ordinance. It will be pertinent to reproduce section 57 of the Ordinance, which reads as under:‑

3. "Decisions on complaints, questions and disputes.‑‑ If any complaint is received or any question or dispute arises as to‑‑

(a) whether any person is a secured person within the meaning of this Ordinance or

(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 an 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 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 decision."

4. Institution has been defined in section 2 (16) of the Ordinance to mean, 'the Employees Social Security Institution'. Thus, the institution is a body corporate and has to function through some of its functionaries. It is therefore that section 57 provides for the promulgation of the Regulation to provide how the matter shall be decided. Under section 80 of the Ordinance the Governing Body by a notification may make Regulations not inconsistent with provisions of this Ordinance or the Rules. These Regulations were made by Governing Body and published in Official Sind Government Gazette dated 9‑2‑1984. Under these Regulations the complaint under section 57 has to be filed before the Commissioner of Institution who shall dispose of the complaint within ninety days.

5. In earlier two decisions of this Court reported in P L D 1985 Kar. 57 and 1987 P L C 658 this Court 'relying on the doctrine of indoor management' had held, that decision by a ,Director of Institution would be decision by the Institution. These cases pertain to the period before the promulgation of Regulation, whereby it is provided as to which functionary of institution would decide the complaint. In absence of such Regulation, this Court was of the opinion, that under the said doctrine of indoor management a Director shall be competent and would be deemed to be authorised to hear and decide the complaint. However, after these Regulations have come into force the power of hearing complaint is specifically conferred upon the Commissioner of Institution and as such the doctrine of the indoor management would not be applicable. Under the Regulation the Commissioner is empowered to send the complaint to a local Director for inquiry and report but he himself has to take decision. The impugned decision, if any, by the Director, dated 23‑6‑1987 viz. after the Regulations have come into force, cannot be considered to be a decision by Institution under section 57 of the Ordinance.

6. Mr. Naqvi, learned counsel for the respondent has contended, that these Regulations are not inconsistent with the provisions of the Act, because even under section 59 under which the appeal was filed before the Social Security word 'Institution' is used. Section 59 of the Ordinance provides 'Any person aggrieved by the decision of the Institution under section 57, may appeal to the appropriate Social Security Court'. The decision under section 57 as pointed above would be decision made by the Commissioner, and therefore, there is no inconsistency between the Regulation and section 59 of the Ordinance.

7. Mr. S. A. Sarwana wanted to argue that in fact there was no decision and that even on merits the respondent has no case, but I need not discuss these issues as any observation made by this Court may prejudice the case of one or the other party before the Commissioner or the Social Security Court. All these issues and questions can be agitated before the Social Security Court or Commissioner. I accordingly allow this appeal and set aside the impugned judgment of the Social Security Court. However, the respondent may file complaint under section 57 before the competent authority under the Regulation, if so advised. The parties are directed to bear their own costs.

8. H.B.T./5‑245/K ?????????????????????????????????????????????????????????? ?????????? Appeal allowed