“Employees Old Age Benefits Institution through Regional Head Peshawar VS Peshawar Model School for Boys-V through its Director”

IN THE PESHAWAR HIGH COURT, PESHAWAR

[JUDICIAL DEPARTMENT]

W.P No. 5296-P/2022

Employees Old Age Benefits Institution through Regional Head Peshawar .................Petitioner Vs

Peshawar Model School for Boys-V through its Director..................... .............Respondent Present: Mr. Mukhtar Ahmad Maneri, Advocate for the petitioner.

Mr. Jehangir Khan, Advocate, for the respondent.

Date of Announcement: 15.12.2025

JU D G M EN T

MUHAMMAD IJAZ KHAN, J.- Through this single judgment, this Court shall decide this i.e. WP No.

5296-P/2022 title “Employees Old Age Benefits Institution through Regional Head Peshawar .Vs.

Peshawar Model School for Boys-V through its Director as well as the connected C.R No. 872- P/2021 title “Employees Old Age Benefits Institution (EOBI) through its Chairman, EOBI and others .vs. Peshawar Model School for Boys- III through its Principal” and C.R No. 873-

P/2021 title “Employees Old Age Benefits Institution (EOBI) through Regional Head Peshawar and another .vs. Peshawar Model School for Girls-II through Director Ghayur Sethi” as in all these petitions common question(s) of law and fact(s) are involved therein.

2.The essential facts leading to the filing of this and connected petitions are that the respondent- Establishment is a chain of educational Institution of the Province and having different branches in District Peshawar and when these three branches received notices from the petitioners-Institution then they have filed three independent and separate suits against the various notices issued to them. In all the three suits, when the petitioners/defendants were summoned, it submitted an application for the rejection of the plaint under Order VII Rule 11 CPC, however, in the instant suit (challenged in the instant writ petition), their application for summary rejection has concurrently been dismissed by the learned trial court and Revisional Court through the impugned orders and judgments 21.09.2022 and 29.11.2022 respectively, therefore, the petitioners / defendants have challenged the same through the instant petition, whereas in the connected suits,

such applications though had allowed by the learned trial court vide order and judgment of even dated 07.04.2022, however, on revisions filed by the respondent-Establishment before the learned Additional District Judge-XVII, Peshawar, the said order and judgment of the learned trial court dated 07.04.2022 was set-aside and the case was remanded back to the learned trial court for decision in accordance with law after recording of pro & contra evidence vide order and judgment of even dated 07.09.2022, against which order and judgment of the learned Revisional Court, this and connected civil revision petitions have been filed.

3.Arguments of the learned counsel for both the parties were heard in considerable detail and the main emphasis of the learned counsel for the petitioner / defendant was that since a complete and comprehensive mechanism for the redressal of grievance(s) as arose between the parties has been provided by The Employees Old Age Benefit Act, 1976 (hereinafter to be referred as “The Act of 1976”), therefore, the proper course for the respondent / plaintiff was to have approached to the adjudicating Authority having the power to entertain and decide about the subject controversy

and as such the learned Civil Judge was having no jurisdiction to entertain and adjudicate upon the said controversy. As against this, the learned counsel representing the respondent / plaintiff argued that since Civil Court is the Court of plenary and ultimate jurisdiction, and as the respondent/plaintiff has alleged ill-will and malafide against the petitioners/defendants, therefore, it is the Civil Court which is having the jurisdiction to entertain the instant plaint and to decide the same in accordance with law.

4.In view of the above submissions of both the learned counsel for the parties, the only question before this Court is that when The Act of 1976 provides a complete mechanism for the redressal of grievance of the respondent / plaintiff then whether the Civil Court was having the jurisdiction to entertain the instant plaint(s) or not?

5.To answer the aforesaid question as was raised before this Court, it would be relevant to mention here that the petitioner i.e. Employees Old Age Benefits Institution (EOBI) is an institution within the meaning of clause (h) of Section 2 of The Act of 1976 duly established under Section 4 of The Act of 1976, whereas the respondent /

plaintiff i.e. Peshawar Model School for Boys-V, Peshawar is an employer-cum-establishment within the meaning of clauses (c) and (e) of Section 2 of The Act of 1976 and thus under the provisions of The Act of 1976 especially Chapter- III comprising of Section 9 to Section 16 of The Act of 1976, the respondent / employer is bound to pay contributions to the petitioner-institution in respect of a person having insurable employment @ 5% of his wages (Section 9 of The Act of 1976).

Similarly, the Federal Government may also make such contributions (Section 9-A of The Act of 1976) as well as the insured person too shall pay every month the contributions at the prescribed rate. Notably and as relevant for the present controversy as well that as per Section 10 of The Act of 1976, the employer is bound to keep such record and it shall submit the same to the institution in the prescribed manner (Section 10 of The Act of 1976). It is also mandatory for the employer / establishment to register itself with the institution and to communicate to the institution the names and other prescribed particulars of the establishment as well as of the insured persons. As per Section 12 of The Act of 1976, it is the

statutory duty of the official of the petitioner- institution to check the employer books for the purpose of inquiring into the correctness or otherwise of any of the particulars stated in the records or returns as provided by the employer- establishment to the institution and thus in view of the above clear and unambiguous provisions, the relationship between the petitioner-institution and that of respondent / employer / establishment is that the institution has every right to make itself ensure that the respondent / employer has provided a correct record and as such when seen on the above touchstone, the impugned demand notices issued by the petitioner-institution to the respondent/employer are duly in accord with aforesaid provisions of The Act of 1976.

6.Keeping in view the aforesaid accountable relationship of the respondent / employer to the petitioner-institution, now it is to be seen that as to whether the redressal of any grievance with respect to the issuance of the impugned notices to the respondent / employer do fall within the powers and functions of an Authority(ies)

established under The Act of 1976 and that as to whether it is that (those) provided authority(ies) who could address the instant grievance as agitated in the plaint or not?

7.In order to understand the present controversy what was required by the petitioner- institution from the respondent / employer, it would be relevant to reproduce herein below the notice dated 20.10.2021;

and its reply by the respondent / employer dated30.10.2021 is as under:-

The plain reading of the aforesaid notice and its reply would show that the petitioner-institution has required the respondent / employer to pay the outstanding contributions amount as against the said respondent / employer, whereas the plain reading of the reply of the respondent / employer would show that since same issue has already been agitated in the year, 2017 which was duly clarified at that point of time and since then when the petitioner/defendant has not increased more than 10% of its employees, therefore, the petitioner- institution could not be asked for the payment of outstanding contribution amount and thus in the plain words, the dispute between both the parties is that as to whether certain contribution amount is

outstanding against the respondent / employer or not and as to whether the respondent / employer has employed more than 10% of its employee or not?

8.Keeping in view the aforesaid nature of dispute between the parties, now this Court will proceed that as to whether the said dispute falls within the powers and functions of any of The Authority established under The Act of 1976 or not? and in this regard, it would be relevant to mention here that under the theme and scheme of The Act of 1976, there are three entities whose powers and functions have been provided firstly The Board of Trustee as established under Section 6 of The Act of 1976, whereas its powers and functions have been provided under Section 8 of The Act of 1976, secondly, under Section 8-A of The Act of 1976 provides that there shall be a chairman of the institution who is to be appointed by the Federal Government and such Chairman of The Institution shall exercise such powers and performed such functions as may be prescribed and thirdly, it also provides for the powers and functions of the institution as established under Section 4 of The Act of 1976 and more particularly

Section 33 of The ibid Act provides that what nature of complaints, questions and disputes shall be decided by the institution, whereas Section 34 of The Act of 1976 provides that if a party is aggrieved of any decision of the institution given under Section 33 of The Act of 1976 then it may file a review and furthermore even if thereafter a person is aggrieved from the original decision of the institution or any decision passed in a review petition then such party may prefer an appeal to the Board under Section 35 of The Act of 1976.

Sections 33, 34 and 35 being relevant are reproduced below:-

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

(a)whether a person is an insured person within the meaning of this Act;

(b)the amount of wages of an insured person for the purposes of this Act;

(c)the amount of contribution payable by an employer in respect of an insured person;

(d)the person who is the employer in respect of an insured person;

(e)entitlement to any benefit under this Act or as to the amount and duration thereof;]

[(ee) registration of an industry or establishment; or]

(f)any other matter in respect of any contribution or any allowance referred to in clause

(e), or dues payable or recoverable under this Act relating to contributions Or the aforesaid [benefit] 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 concerned in writing, stating therein the reason for its decision.

34.Review of decisions. The Institution may, subject to regulations, on new facts being brought to its notice, review a decision given by it under section 33:

Provided that no decision shall be so reviewed without giving the person concerned an opportunity of being heard and adducing evidence in support of, or against, the decision, as the case may be.

35.Appeal to Board. Subject to rules, a person aggrieved by a decision of the Institution under section 33 or on a review under section 34, may appeal to the Board.

(Underline supplied for emphasis and relevancy for the present controversy)

The plain reading of Section 33 of The Act of 1976 would show that if any complaint is received or question or dispute arises with respect to the controversy mentioned therein then such complaint(s) or question(s) or dispute(s) are to be decided by the institution where clauses (c) and (e) of Section 33 of The Act of 1976 directly deal with the controversy as agitated in the instant plaint which reads to the effect that if any dispute or

question arises with respect to the amount of contribution payable by an employer in respect of an insured person then such question or dispute is to be decided by the institution. Similarly, if any question or dispute arises with respect to the entitlement of any benefit under The Act of 1976 or as to the amount and duration thereof shall also be decided by the institution. Section 34 of The Act of 1976 further provides that if a decision is given by the institution under Section 33 of The Act of 1976 and if a person is aggrieved thereof then it may file a review petition and even thereafter if a person is aggrieved then he may file an appeal to the Board under Section 35 of The Act of 1976.

9.It would also be relevant to mention here that under Section 45 of The Act of 1976 the Board has been empowered to make regulation to carry out the purpose of The Act of 1976 and as such while exercising the aforesaid powers, the Board has promulgated regulation with the name of Employees’ Old Age Benefit (Determination of Complaints, Questions and Disputes) Regulations, 1980, which further provides a complete mechanism that as to how and in which form the complaints are to be filed, received and

adjudicated upon by the institution. The Regulations No.3, 4 & 5 being relevant are reproduced below:-

3.Nomination of Officers to hear and decide petitions.-(1) The Head of the Institution may be Administrative Order nominate an Officer of the Institution as he may think fit from time to time for disposal of the petitions under Section 33 of the Act.

(2)An officer nominated under sub- regulation (1) of this regulation shall hear and decide the petitions in accordance with the procedure laid down by these regulations and the decision given by such officer shall be deemed to be the decision of the Institution.

4.Complaints, questions and disputes.- (1) Every petition requesting decision on a complaint, question or dispute in respect of any matter referred to in section 33 shall be made to the Institution for decision, at one of its officers in form PI-07 within six months of the occurrence of the even to which such complaint or question or a disputes relates.

Provided that the Institution may, in its discretion, entertain a petition after the period of six months if it is satisfied by the nature and circumstances of the case.”

5.Procedure for hearing and deciding petitions (1) On receipt of a petition filed under section 33, the Institution shall, within three weeks of the presentation of the petition, fix a date, place and time for its hearing under notice to the parties.

(2)Where on the day fixed, or any other day to which the hearing may be adjourned,-

i. the petitioner does not appear, the petition may be rejected, ii. the petitioner appears but the respondent does not appear, the petition shall hear ex-parte; and iii. neither party appears, the petition may be considered and decided on the basis of the material available on the record.

(3)The Institution may, if sufficient cause is shown, at any stage of the hearing of the petition grant time to the parties or to any one of them, and from time to time adjourn the hearing.

(4)The Institution may, in its discretion call for further information or examine any person or persons or direct the parties to lead evidence for the purpose of elucidating any matter in issue.

(5)The Institution shall, within three weeks of the conclusion of the hearing notify its decision by registered post to the persons concerned at the address shown on the record of the case.

The plain reading of these Regulations would show that the Regulation No.3 requires that the head of the institution shall by an administrative order nominate an officer of the institution to hear and decide the complaint (s) filed under Section 33 of The Act of 1976.

Similarly, Regulation 4 provides that such petition

requesting decision on a complaint shall be made to the institution in the prescribed form within a stipulated period and the institution has also been empowered to entertain a petition beyond the prescribed period, whereas Regulation 5 provides that how hearing and decision of the complaint / petition is to be made.

10.In view of the above, when the dispute as agitated in the instant plaint duly fall within powers and functions of the Institution then such dispute could not be placed before the Civil Court and thus after receiving the impugned notices, the respondent / employer was required to have placed before the petitioner-Institution the detail with regard to the number of employees, their registration if not already registered as well as their outstanding contributions or running contributions which is an internal clarification process between the petitioner-Institution being a supervisory body and the respondent/employer.

11.As far as the plea of the learned counsel for the respondent / plaintiff that the instant suit was validly and competently filed before the Civil Court as under Section 9 of The Civil Procedure Code, 1908 (hereinafter to be referred as “The

Code of 1908”) the Civil Court has got the plenary and ultimate jurisdiction to entertain and try all suits of civil nature and thus the said Section being relevant is also reproduced below:-

9.Court to try all civil suits unless barred. The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

The plain reading of Section 9 of The Code of 1908 would obviously and surely shows that the Civil Courts shall have jurisdiction to try all suits of civil nature except those suits which are either expressly or impliedly barred. The phrase “expressly” and “impliedly” as occurring in the aforesaid Section are of much significance as the Civil Courts shall have no jurisdiction to entertain a suit where a special law has expressly barred the jurisdiction of the Civil Court, whereas such bar could be inferred from the language of the special law, if a special statute governing and dealing a particular dispute and thus such inferred bar would be an implied bar. As highlighted hereinabove, a complete and comprehensive procedure has been provided under The Act of 1976 for the redressal of the grievances pertaining to various kinds of

disputes and as the dispute as agitated in the instant suit do fall within the powers and functions of the Institution under Section 33 of The Act of 1976, therefore, it is a case where the concept of implied bar is duly attracted. It would also not be out of place to mention here that filing of suits before the Civil Court and their cognizance thereof without adverting to the mechanism provided under the special law i.e. as provided in the instant case by The Act of 1976 would on one hand amount to render the provisions of Sections 33, 34 and 35 of The Act of 1976 as redundant and on the other it will also go a long way to defeat the clear intention of the legislature, therefore, on this touchstone too, the instant suit before the Civil Court is/was not competent. In a case1 the Lahore High Court in para-6 has held that now dilating upon the central question involved in the matter about the jurisdiction of the Civil Courts, suffice it to say that according to section 9 of C.P.C., the Civil Courts are the courts of ultimate jurisdiction to try all suits of a civil nature, excepting the suits of which their cognizance is either expressly or impliedly barred. In my considered view, the Hakam and others .vs. Tassadaq Hussain Shah (PLD 2007 Lahore 261)

ouster of jurisdiction of the Civil Courts, which under the law are the courts of plenary and ultimate jurisdiction in the dispute between the parties pertaining to civil nature, should not be lightly inferred or the lack of jurisdiction be assumed as a matter of course. But there should either be express provision in any law/statute, which debars and takes away the jurisdiction of such court, and the provision must be strictly construed and applied leaving no room for doubt that the jurisdiction of the civil Courts has been ousted, or if the ouster is claimed on the basis of implication, the implication must be founded and adjudged on the touchstone that the forum or the tribunal created by the special law have been conferred with the exclusive jurisdiction to try the matter of a specific civil nature. It has further been held that for applying the rule of implied bar, it has to be seen that where a special tribunal or a public body is created by or under the authority of an Act of the Legislature for the purpose of determining rights which are the creation of the Act, then the jurisdiction of that tribunal or of that body is exclusive and the jurisdiction of the Civil Court is barred.

12.The question where a special law has

provided a remedy then without resorting to the said remedy, a Civil Court could assume

jurisdiction or not has remained a favorite subject of the Indo-Pak Superior Judiciary as in a case2 the Apex Court in para-6 has observed that it is settled principle of law where a special remedy is

provided for under the law, it may not be bypassed and the Civil Courts should not be approached

directly without exhausting the highest forum in the authority. The same view had earlier been held by the Lahore High Court in the cases3. Similarly, an identical controversy came before the Sindh

High Court in a case4 where the Employees Old

Age Benefit Institution (EOBI) requires certain information from the employer establishment and their petition was dismissed solely on this ground that since a complete mechanism for the redressal of the grievances has been provided under Section 33 of The Act of 1976, therefore, the proper course for the aggrieved person was to have approached Muhammad Siddique (deceased) through LRs and others .vs. Mst. Noor Bibi (deceased) through LRs and others (2020 SCMR 483) Hakam and others .vs. Tassadaq Hussain Shah (PLD 2007 Lahore 261), Zahid Hussain and 10 others .vs. Shamasuddin and 9 others (2014 CLC 1334) and Muhammad Jalat Khan .vs. Faisal Hayat Khan and 4 others (2003 CLC All Pakistan Security Agencies Association (APSAA) through Secretary and 5 others .vs. Federation of Pakistan through Secretary Human Resources Development and 6 others (2012 P L C 258)

to the said authority. Likewise, in a case5 the Lahore High Court in para-5 of the judgment has observed that the legislature has provided a detailed machinery for the decision of any complaint, or any question or any dispute with respect to the matter the detail of which is mentioned in section 33 of The Act of 1976 and when the grievance of the petitioner is fully covered by Section 33 of The Act of 1976 then the proper course for an aggrieved person is to avail the remedy provided thereunder.

13.During the course of arguments, learned counsel for the respondent / employer was of the considered opinion that if the arguments as advanced by the learned counsel representing the petitioner are allowed to prevail then it would lead to a complete anarchy as in almost all the special laws / statutes, a mechanism has been provided for the redressal of the grievances, however, such submission of the learned counsel representing the respondent / employer is of no legal weightage as the recent jurisprudence developed on the subject is that if an authority established under the special law has exclusive jurisdiction to decide a dispute Ujala Cotton Mills .vs. E.O.A.B Institution and others (1994 PLC 560)

between the subjects of the said law then in such eventuality the Civil Court is not the proper forum.

It would not be out of place to mention here that Oil and Gas Regulatory Authority Ordinance, 2002 (“The Ordinance”) is a special law which provides for the establishment of the Oil and Gas Regulatory Authority (the “Authority”) and as per the provisions of The Ordinance, the said Authority has exclusive jurisdiction with respect to matters duly mentioned in Section 6 of The Ordinance and thus when a controversy under The Ordinance was placed before the Civil Court, the Apex Court in the case6 has categorically held that Civil Court was having no jurisdiction as the controversy agitated in the said suit fully fall within the domain of the Authority established thereunder. The aforesaid view was again reiterated in another case7 where it was observed in para-6 of the judgment that when a mechanism for redressal of dispute has been provided by filing a complaint under Section 11 of The Ordinance and when Section 12 of The Ordinance provide for a right of appeal then in such view of the matter, it General Manager, SNGPL, Peshawar v. Qamar Zaman (2021 SCMR 2094) Messrs Mardan Ways CNG Station .vs. General Manager SNGPL and others

(2022 SCMR 584)

was held that even in the absence of a specific bar provided in the statute over the jurisdiction of the Civil Court, the referred provisions reflect the intent of the legislature and, therefore, the jurisdiction of the Authority was held to be an exclusive and the jurisdiction of the Civil Court was held as barred which could be termed as implied bar very much permissible under the settled law.

In view of the above clear dicta of the Apex Court to the effect that when the special law has provided a remedy and when the nature of dispute falls within the domain of the Authority established under that special law then in such state of affairs the jurisdiction of the Civil Court would be barred and any aggrieved person could avail the available remedy before the Authorities / forum established under that special law for redressal of his grievances. It would not be out of place to mention here that the aforesaid bar of jurisdiction of the Civil Court if expressly provided by the Statute then that bar will only be applicable if the Authority acts or pass any order or making a decision in accordance with the provisions of that Statute, however, if the

Authority acts otherwise then such bar would not be operative against a person.

14.In view of the above discussion and expositions of law on the subject, this and connected petitions are allowed and consequently the impugned orders and judgments of the Courts below are set aside and instead of entertaining the application under Order VII Rule 11 CPC, the same is converted into an application under Order VII Rule 10 CPC and it is directed that the learned trial court shall return the plaints to the respondent-Establishment / plaintiff and who may either present the same before the Authority(ies) or it may file an independent complaint in the prescribed manner before the Authority(ies) established under The Act of 1976, however, after exhausting the available remedies under The Act of 1976, if the respondent-Establishment still considers itself to be an aggrieved then it shall be at liberty to approach an appropriate forum by filing a proper remedy. Order accordingly.

Announced

Sd/-

JUDGE

Noor Shah (S.B) Hon’ble Mr. Justice Muhammad Ijaz Khan