ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

C.P.No.D-4375 of 2016

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                            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

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