ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
C.P.No.D-4375 of 2016
____________________________________________________________
Order
with signature of Judge
Present : Mr.
Justice Muhammad Ali Mazhar
Mr. Justice
Abdul Ghani Soomro
M/s.Mehran Industries………………..……………….….Petitioner
Versus
Government
of Sindh and 03 others……………....Respondents
Date
of Hearing:- 24.08.2016
Mr.Abdul
Jabbar Mallah, advocate for
the petitioner
Mr.Ameeruddin
Rana, advocate has filed vakalatnama on behalf of the
respondent No.2 to 4/SESSI
Mr.Muhammad
Aziz Rana, Law Officer and Islamuddin,
Director, SESSI, S.I.T.E., West, are also present
………
Muhammad
Ali Mazhar, J: The case of the petitioner is that on
30.10.2015, a notice was issued by Sindh Employees’
Social Security Institution for the payment of contribution in the sum of Rs.19,63,520/- for the period commencing from January 2012 to
October 2015. The petitioner was called upon to pay the amount but the same was
not deposited. It is also an admitted position that on 26.07.2016, first time
the petitioner has filed a complaint under Section 61 of Sindh
Employees’ Social Security Act, 2016, which is pending. Director, SESSI,
S.I.T.E., West is present and states that on 13th January, 2016, 04 cheques were given by the petitioner amounting to Rs.100,000/- each for the payment of contribution in installments but all 04 cheques
have been dishonoured
by their banker and an intimation letter was issued by the Directorate to the
petitioner on 17.06.2016 in which again
demand of contribution was made for payment and disclosure was made that all 04
cheques have been dishonoured
but to no avail.
Learned
counsel for the petitioner admitted the fact but he argued that without
complying with due process of law, the department has sealed the factory of
petitioner and no notice was ever issued to the petitioner under the provisions
of Land Revenue Act. On the contrary,
learned counsel for the respondent No.2 to 4/SESSI with the assistance of
Director, SESSI, S.I.T.E (West), argued that the factory was never sealed but
only 70 packed boxes, 03 used
machines and some sewing machines have been attached and
locked in a room and remaining factory is intact. We have seen the inventory
made by office of the Assistant Collector, Grade-I and warrant issued under
Section 83 of Land Revenue Act, 1967. Learned counsel for the petitioner cited
a judgment passed by learned Division Bench of this court in the case of Mumtaz Ahmed Silk Mills Ltd., vs. Director, Sindh Employees Social Security Institution and another,
reported in 1993 PLC 335, in which while considering Section 57 of West
Pakistan Employees’ Social Security Ordinance, 1965, the learned Division Bench
of this court held as
under :-
“11.
We are unable to subscribe to the contention of Mr. S.A.Samad
Khan that a contribution amount will become due only if a court of law decides
the question of liability. In our view,
if the question of liability to pay contribution is determined through the
machinery/ forums provided under the Ordinance, the same will become due and
resort can be made to the provisions of the Land Revenue Act for recovery as
the arrears of land revenue. It is not necessary that the same should be
adjudicated upon by a Civil Court”.
Relying
on this judgment, the learned counsel for the petitioner argued that unless the
liability is determined, no coercive action can be taken while learned counsel
for SESSI shown us the Sindh Employees’ Social
Security Act, 2016, in which Section 61 is relevant to the decision of complaint,
questions and disputes which is corresponding to Section 57 of the repealed
ordinance of 1965. In this Section it is clearly provided that the matter shall
be decided by the institution in such manner and within such time as the
regulations 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 decisions. A proviso has also been added that the question or dispute
relates to demand or assessment of social security contribution, the
complainant shall deposit 25% of the demand or assessment to the institution.
It is averred that now in the new Act, 2016, only requirement is to deposit 25%
of the amount for entertaining the complaint and as soon as this amount is
deposited by the petitioner, not only the attachment would be withdrawn but
also no further coercive action shall be taken against the petitioner till such
time, the complaint is decided by the institution to determine liability of the
petitioner.
There is no cavil that the question of
liability is to be determined through the machinery/forums, for which the
petitioner has already filed a complaint but in order to safeguard the interest
of institution, the proviso has been added in the new Act to deposit 25% of the
amount. It is also an admitted position
that 04 cheques were delivered by the petitioner to
the department but all cheques have been dishonoured which shows the admission of some liability of
contribution by the petitioner.
As
a result of above discussion, this petition is disposed of along with listed
application in the following terms:-
1. The
complaint of petitioner moved under Section 61
of Sindh Employees’ Social Security Act, 2016,
shall be decided within a period of 03 months after providing ample opportunity
of hearing to the petitioner where they may also produce all relevant
documents to show the due amount of contribution.
2. The
attachment will be withdrawn subject to deposit of 25% of total amount as
reflected in the notice dated 30.10.2015 (available at Page-21 of court file)
and no coercive action shall be taken by the respondents against the petitioner
till final decision of their pending complaint.
J U D G E
J U D G E