SINDH EMPLOYEES' SOCIAL SECURITY INSTITUTION vs ALLWIN ENGINEERING

' AJMAL MIAN, J.---By this common judgment, we intend to dispose of the above appeals as they are directed against a common judgment dated 10-1-1993 passed by a Division Bench of the High Court of Sindh in Constitution Petition No,D-313 of 1992 and the other connected petitions, whereby respondents had challenged the right of the appellant to claim contribution in respect of their certain employees, dismissing the same for the following reasons:- "The Ordinance, therefore, provides for adequate machinery for seeking redress of a grievance by an aggrieved person. In such a case where equally efficacious remedy exists under a statute for redress of the grievance, Constitution petition is not to be entertained. As it has been pointed out earlier that, except for a few cases, where the petitioners have received from the respondents a notice of demand to pay, in case of majority of the petitioners, a demand notice has yet to be received by them. However, even in cases, where a demand notice has been received from the respondents, in case the petitioners are aggrieved, resort can be had by them to the provisions of the said Ordinance which, as just pointed out, provide for an equally efficacious relief for the employer. However, it may once again be clarified that contributions can be demanded from the employer only in respect of "employees" as provided by section 20(4) of the said Ordinance. We are therefore of the view that the petitioners should have first exhausted the remedy as provided by the said manse.

7. In the result, subject to the observations made by us in these petitions, these petitions are dismissed. The parties are left to bear their own costs."

' Thereupon, the appellants filed petitions for leave to appeal as they were aggrieved by the following observations in the judgment under appeal: "The observations made by the Supreme Court, earlier reproduced in this judgment, therefore, make it abundantly clear that section 20(4)(a) of the said Ordinance is to be interpreted in harmony with section 2(8) of the Ordinance and section 20(4) was never meant either to enlarge or control the definition of 'employee' given in section 2(8). Consequently, if the employer is compelled by the respondent No,2 to make contributions in respect of persons whose wages exceed rupees one thousand and five hundred per mensem, the employer can raise a valid objection in this regard because such action no doubt would be in violation of the relevant provisions of Ordinance X of 1965."

Leave to appeal was granted to consider the question, whether, while deciding the petition on a preliminary point if the merits of the case were not argued, was it proper to adjudicate that issue and pass the judgment on merits.

2. We have heard Mr. S.A. Sarwana, learned Advocate Supreme Court for the appellant, and Messrs Mohsin Tayyab Ali, M.A.I. Qarni, A. Aziz Dastgir, Bilal Khawaja and M.G. Dastgir, learned counsel for the respondents. Mr. Mohsin Tayyab Ali, learned Advocate Supreme Court for the respondents in Civil Appeals Nos.67 and 539 of 1993, pointed out that factually the case was argued before the High Court on merits as well as on preliminary objection and, therefore, the averment of the appellant that the case was not argued on merits, is not well founded. Even if we were to proceed on the assumption that the above Constitution petitions were argued on merits, the question remains:as to whether it was proper for the High Court to have expressed on merits when it was not inclined to entertain the above Constitution petitions on the ground that the Ordinance provides for an adequate machinery for seeking redress. According to Mr. Mohsin Tayyab Ali, the High Court has merely reiterated what this Court has held in the case of Sindh Employees' Social Security Institution v. Dawood Cotton Mills Ltd. (PLD 1988 SC 1).

3. above-cited judgment remains in the field. The only question is, whether the first Court should be pre-empted from placing its interpretation by the High Court, when it was not inclined to entertain the above Constitution petitions on the above preliminary point. In our view, it would have been just and proper not to make any observation on merits which may prejudice either of the parties after having held that the above Constitution petitions were not to be entertained on the above preliminary point.

4. We would, therefore, allow the above appeals with no order as to costs. The above-quoted, observations of the High Court are to be treated as not the part of the judgment under appeal.