IN THE SUPREME COURT OF PAKISTAN

(APPELLATE JURISDICTION)

PRESENT: MR. JUSTICE MIAN SAQIB NISAR

MR. JUSTICE MUSHIR ALAM
MR. JUSTICE TARIQ PARVEZ

CIVIL APPEALS NO.1049 TO 1055/2011, CIVIL MISC. APPLICATION

NO.1841/2016 IN CIVIL APPEAL NO.1054/2011, CIVIL APPEALS
NO.24 TO 26, 64 TO 66, 918 TO 944, 961 AND 1061/2013, 1266 TO
1299, 1364 TO 1379/2014, 72 TO 74, 178, 179, 388, 316 TO 321,
583 TO 585/2015 AND CIVIL PETITION NO.1767/2012, CIVIL MISC.
APPLICATION NO.8118/2015 IN CIVIL PETITION NO.1767/2012,
CIVIL APPEALS NO.107 TO 114 AND 755/2016, CIVIL PETITION
NO.1005/2016, CIVIL APPEALS NO.1022 AND 1341/2016 AND
CONSTITUTION PETITIONS NO.5 TO 8/2016, CIVIL APPEAL
NO.1298/2016, CIVIL MISC. APPLCIATIONS NO.3520 TO 3522/2016
IN CONSTITUTION PETITIONS NO.5 TO 7/2016
(Against the judgment dated 19.8.2011/3.10.2012,15.2.2012/1.3.2013/20.5.2013/
1.5.2013/28.5.2013/29.5.2014/11.3.2011/29.10.2015/27.10.2015/23.9.2014/25.2.201
6/17.11.2015/20.5.2015/12.1.2016 of the Lahore High Court, Lahore/High Court of
Sindh, Karachi/Lahore High Court, Lahore/High Court of Sindh, Karachi/Peshawar High
Court, Peshawar/High Court of Sindh, Karachi/Peshawar High Court,
Peshawar/Islamabad High Court, Islamabad/Peshawar High Court, Peshawar passed in
W.Ps.No.8763, 3643, 4216, 4217, 8766, 8767 & 8768/2011, Const.Ps.No.1588-D, 1589-D
& 1743-D/2012, W.Ps.No.2100 to 2102/2012, Const.Ps.No.3753-D/2009, 1483-D, 4119-
D, 4120-D & 4121-D/2011, 3618-D/2010, 367-D, 699-D, 3482-D, 3483-D, 3484-D, 3488-D
to 3494-D & 495-D/2011, 3521-D/2010, 702-D, 703-D, 704-D, 706-D, 1048-D & 1619-
D/2011, 452-D/2010, 2109-D/2013 & 2039/2010, T.Rs.No.2 to 4, 38 & 42/2012, 9, 34,
42, 44, 45, 76, 79, 86, 98 & 100/2013, 4/2014, 43, 46, 48, 64, 65, 77, 78, 80, 81, 82, 84,
85, 97, 99, 101 & 123/2013, 5/2014, 87/2013, W.Ps.No.1425/2010, 981 & 3420/2012,
3155 & 3156/2013, 144, 1139 & 579/2014, 3155 & 3156/2013, 3420/2012,
1139/2014, 981/2012, 144 & 579/2014, 1425/2010, T.Rs.No.9/2012, 19 & 102/2013 &
15 & 16/2014, 74, 18, 55 to 57, 51, 52 & 81 to 83/2014, Const.P.No.260/2008,
T.Rs.No.35, 38 & 45 to 50/2015, W.Ps.Nos.2250 & 4203/2012 & T.Rs.No.58/2015,
W.P.No.31/2015 and T.R.No.54/2015)

Workers Welfare Funds M/o Human Resources In C.As.1049 to

Development, Islamabad through Secretary 1055/2011, 64 to
66/2013 & 1364 to
1371/2014

Employees Old Age Benefits Institution through In C.As.24, 25 &

its Chairman and another 26/2013

Karachi Electric Supply Company Ltd. In C.A.918/2013

Agar International (Pvt.) Ltd. In C.A.919/2013

M/s Sindh Abadgar’s Sugar Mills Ltd. In C.A.920/2013

M/s Mirza Sugar Mills Ltd. In C.A.921/2013

M/s Pangrio Sugar Mills Ltd. In C.A.922/2013

Civil Appeal No.1049/2011 etc. -: 2 :-

M/s Naveena Exports Ltd. In C.A.923/2013

M/s Gul Ahmed Textile Mills Ltd. In C.A.924/2013

M/s Indus Dyeing & Manufacturing Co. Ltd. In C.A.925/2013

M/s Blessed Textile Ltd. In C.A.926/2013

M/s Bhanero Textile Mills Ltd. In C.A.927/2013

M/s Nagina Cotton Mills Ltd. In C.A.928/2013

M/s Faisal Spinning Mills Ltd. In C.A.929/2013

M/s Sapphire Textile Mills Ltd. In C.A.930/2013

M/s Sapphire Finishing Mills Ltd. In C.A.931/2013

M/s Sapphire Fibers Ltd. In C.A.932/2013

M/s Reliance Cotton Spinning Mills Ltd. In C.A.933/2013

M/s Amer Cotton Mills (Pvt.) Ltd. In C.A.934/2013

M/s Diamond Fabrics Ltd. In C.A.935/2013

M/s Hassan Ali Rice Export Company In C.A.936/2013

M/s Lucky Cement Ltd. In C.A.937/2013

M/s Lucky Textile Mills Ltd. In C.A.938/2013

M/s Lucky Energy (Pvt.) Ltd. In C.A.939/2013

M/s Lucky Knits (Pvt.) Ltd. In C.A.940/2013

M/s Fazal Textile Mills Ltd. In C.A.941/2013

M/s Adamjee Enterprises etc. In C.A.942/2013

M/s Younus Textile Mills Ltd. In C.A.943/2013

M/s Younus Textile Mills Ltd. In C.A.944/2013

Sohail Textile Mills Ltd. In C.A.961/2013

Arif Habib Corporation Ltd. through its Chief In C.A.1061/2013

Financial Officer & Company Secy.

Chief Commissioner Inland Revenue, RTO, In C.As.1266 to

Peshawar 1281 & 1372 to
1377/2014 & 72,
74, 178, 179 &
Civil Appeal No.1049/2011 etc. -: 3 :-

316/2015, 1341 &

1298/2016

Commissioner Inland Revenue, RTO, Peshawar In C.As.1282 to

1299, 1379/2014,
388, 317 to 321,
583 to 585/2015,
107 to 114 &
1022/2016

Chief Commissioner Inland Revenue, Zone-II, RTO In C.A.73/2015

Peshawar

Employees Union, FFC (CBA), Fauji Fertilizer In C.P.1767/2012

Company Ltd. & CMA.8118/2015

Federation of Pakistan through Secretary M/o In C.A.755/2016

Finance Islamabad and another

ICI Pakistan Employees Union Soda Ash Khewra In C.P.1005/2016

PKP Exploration 2 Limited In Const.P.5/2016

& CMA 3520/2016

PKP Kandanwari Limited In Const.P.6/2016

& CMA 3521/2016

KUFPEC Pakistan B.V. In Const.P.7/2016

& CMA 3522/2016

PKP Kirthar B.V. In Const.P.8/2016

…Appellant(s)/Petitioner(s)
VERSUS

East Pakistan Chrome Tannery (Pvt.) Ltd through

its GM (Finance), Lahore etc. In C.As.1049/2011

Sunrize Bottling Company (Pvt.) Ltd. through its

Chief Executive Officer etc. In C.A.1050/2011

Haseeb Waqas Sugar mills through its G.M.

Finance etc. In C.A.1051/2011

Abdullah Sugar Mills Ltd. thr. its G.M. Finance etc. In C.A.1052/2011

Chiniot Textile Mills through its G.M. Finance etc. In C.A.1053/2011

East Pakistan Chrome Tannery through its G.M. In C.A.1054/2011

Finance etc. & CMA 1841/2016

Ayesha Spinning Mills thr. its G.M. Finance etc. In C.A.1054/2011

Soneri Bank Ltd. Karachi and another In C.A.24/2013

Civil Appeal No.1049/2011 etc. -: 4 :-

Bank Al-Falah Ltd. Karachi and another In C.A.25/2013

Standard Chartered Bank Ltd. Karachi & another In C.A.26/2013

M/s JDW Sugar Mills Ltd. through its Company In C.As.64, 65 &
Secretary, Lahore Cantt etc. 66/2013

Federation of Pakistan through Secretary M/o In C.As.918 to

Finance etc. 944/2013

Federation of Pakistan through Secretary Law and

Justice Division, Islamabad etc. In C.A.961/2013

Federation of Pakistan through Secretary

Islamabad In C.A.1061/2013

M/s Shoaib Pipe Store In C.A.1266/2014

M/s New Ruby Jewelers, Peshawar In C.A.1267/2014

M/s Choice Communication, Peshawar In C.A.1268/2014

Nasrullah Jan Inamullah Jan & Co. (Pvt.) Ltd. In C.A.1269/2014

Gateway Gas (Pvt.) Ltd. Peshawar In C.A.1270/2014

Chashma Sugar Mills (Pvt.) Ltd. In C.A.1271/2014

Universal Plastic Industries (Pvt.) Ltd. In C.A.1272/2014

Abdul Rehman & Co. In C.A.1273/2014

Gul Construction Company Pvt. Ltd. In C.A.1274/2014

Gul Construction Company Pvt. Ltd. In C.A.1275/2014

Lucky Cement (Pvt.) Ltd. In C.A.1276/2014

Jaffar shah, Government Contractor Bannu In C.A.1277/2014

Dr. Safia Shahid Nowshera In C.A.1278/2014

Wireless Communication, Peshawar In C.A.1279/2014

Inayatullah Khan & Co. In C.A.1280/2014

Spinzer Travel Pvt. Ltd. In C.A.1281/2014

Ziaullah & Co. In C.A.1282/2014

Nisar Ahmed & Brothers, Peshawar In C.A.1283/2014

Worldwide Chemicals, Peshawar In C.A.1284/2014

Civil Appeal No.1049/2011 etc. -: 5 :-

Imdad Khan Brothers, Peshawar In C.A.1285/2014

Imdad Khan Brothers, Peshawar In C.A.1286/2014

Lucky Cement (Pvt.) Ltd. In C.A.1287/2014

Jaffar Shah, Government Contractor, Bannu In C.A.1288/2014

Unique Technologies In C.A.1289/2014

Unique Technologies In C.A.1290/2014

Worldwide Chemicals, Peshawar In C.A.1291/2014

Muhammad Saleem Marwat In C.A.1292/2014

Inter Construct (Pvt.) Ltd. In C.A.1293/2014

Muhammad Saleem Marwat In C.A.1294/2014

Speed Zone (Pvt.) Ltd. In C.A.1295/2014

Inayatullah Khan & Co. In C.A.1296/2014

Unique Technologies In C.A.1297/2014

Spinzer Travel Pvt. Ltd. In C.A.1298/2014

Dr. Safia Shahid In C.A.1299/2014

Government of Pakistan through Federal Secretary In C.As.1364, 1365,

Finance and Revenue Division, Islamabad etc. 1369 & 1371/2014

Federation of Pakistan through Secretary Cabinet In C.As.1366, 1367

Division, Islamabad etc. & 1368/2014

Federation of Pakistan through Secretary M/o

Finance & Economic Affairs, Islamabad etc. In C.A.1370/2014

M/s M.K.B. Enterprises Pvt. Ltd. In C.A.1372/2014

M/s Cherat Cement Pvt. Ltd. In C.A.1373/2014

M/s Rehman Cotton Mills Ltd. etc. In C.A.1374/2014

M/s Utman Ghee Industries Pvt. Ltd. etc. In C.A.1375/2014

M/s Saif Textile Mills Ltd. etc. In C.A.1376/2014

M/s Lucky Cement Ltd. etc. In C.A.1377/2014

M/s ECOPACK Ltd. and another In C.A.1378/2014

Civil Appeal No.1049/2011 etc. -: 6 :-

M/s Associated Industries Ltd. and another In C.A.1379/2014

Gadoon Textile Mills (Pvt.) Ltd. In C.A.72/2015

New Ahmed Roller Flour Mills (Pvt.) Ltd. In C.A.73/2015

Ghulam Sadiq Ghulam Habib & Co. (Pvt.) Ltd. In C.A.74/2015

Gadoon Textile mills (Pvt.) Ltd. In C.As.178 &

179/2015

M/s Bilour Industries (Pvt.) Ltd. In C.A.388/2015

Lucky Cement (Pvt.) Ltd. In C.A.316/2015

M/s Sohail Vegetable Ghee Mills Pvt. Ltd. In C.As.317 to

319/2015

M/s Faisal Company (Pvt.) Ltd. In C.As.320 &

321/2015

M/s Ithfz Match Pvt. Ltd. In C.A.583/2015

M/s Khan Match Pvt. Ltd. In C.As.584 &

585/2015

Federation of Pakistan through Secretary M/o In C.P.1767/2012

Human Resource Development Islamabad etc. & CMA 8118/2015

M/s Chashma Sugar Mills Ltd. In C.A.107/2016

M/s Premier Sugar Mills Ltd. In C.A.108/2016

M/s Bilour Industries Pvt. Ltd. In C.As.109, 111 &

113/2016

M/s M. B. Dyes Chemicals & Silk Industries Swabi In C.As.110, 112 &
114/2016

Akbar Ali Khan In C.A.755/2016

Federation of Pakistan through Secretary Law,

Islamabad etc. In C.P.1005/2016

M/s F.C. NWFP, Security Services Pvt. Ltd. In C.A.1022/2016

M/s Cherat Packaging Ltd. etc. In C.A.1341/2016

Federation of Pakistan etc. In Const.Ps.5 to

8/2016 & CMAs
3520, 3521 &
3522/2016

Lucky Cement (Pvt.) Ltd. In C.A.1298/2016

…Respondent(s)
Civil Appeal No.1049/2011 etc. -: 8 :-

(in C.A.1378/2014)

Mr. Arshad Zaman Kiyani, ASC

Mr. Muhammad Saleem Khan, ASC
Mr. Asif Fasih-ud-Din Vardaq, ASC
Qazi Ahmed Naeem Qureshi, ASC
Mr. Tariq Aziz, AOR
(in C.P.1767/2012)

Ms. Misbah Gulnar Sharif, ASC

(in C.A.942/2013)

Mr. Tasleem Hussain, ASC

(in C.As.1374 & 1379/2014)

Mr. Habib Ahmed Qureshi, ASC

(in C.A.1364/2014)

Mr. Sohail Mahmood, DAG

Mr. Abid Hussain Channa, S.O. (Finance)
Mr. Mudassir Khalid Abbasi, A.A.G. Punjab
Mr. Abbas Ali, Law Officer, Labour Deptt.
Punjab
Mr. Noor Ahmed Wahgra, Dy. Director
(Legal), EOBI
Mr. Faisal Tariq, Dy. Director (Legal)
Workers Welfare Fund, Islamabad
Nemo
(in C.As.1272, 1274, 1278 & 1299/2014)

Not represented
(in C.As.1061, 1266 to 1268, 1270, 1273, 1275, 1277, 1279
to 1289, 1364, 1366 to 1368, 1370 to 1372, 1375/2014, 72
to 74, 178, 179, 317 to 319, 583/2015, 110, 112, 114 &
1022/2016)

Date of hearing: 27.09.2016

…
JUDGMENT

MIAN SAQIB NISAR, J.- These matters involve common

questions of law, thus are being disposed of together. The key question

involved in these matters is whether the levies/contributions/payments

under various laws which were amended through different Finance Acts

are in the nature of a tax or not. This would in turn determine whether or

not the amendments were lawfully made through Finance Acts, i.e. Money

Bills, as defined in Article 73 of the Constitution of the Islamic Republic of

Pakistan, 1973 (Constitution).

2. The facts pertaining to these matters are broadly divided into

three categories for ease of reference. The first set of facts are that

Sections 2 and 4 of the Worker Welfare Ordinance, 1971 (Ordinance of 1971)

Civil Appeal No.1049/2011 etc. -: 9 :-

were amended by Section 12 of the Finance Act of 2006 and subsequently

by Section 8 of the Finance Act of 2008 which broadened the scope of the

obligation on industrial establishments to contribute towards the Workers’

Welfare Fund established under Section 3 of the Ordinance of 1971. The

said amendments (and notices demanding enhanced payment by virtue of the amendments)

were challenged through writ petitions before various High Courts of the

country. It is pertinent to mention that there are divergent views of the

learned High Courts on this question. The view of the learned Lahore High

Court in the judgment dated 19.8.2011 reported as East Pakistan

Chrome Tannery (Pvt.) Ltd Vs. Federation of Pakistan and others

(2011 PTD 2643) is that the levy in question was a fee and not a tax,

therefore the amendments made by the Finance Acts of 2006 and 2008 to

the Ordinance of 1971 could not have been lawfully brought through a

money bill, rather should have been brought through the regular

legislative procedure under the Constitution. The learned Peshawar High

Court, vide judgment dated 29.5.2014, followed suit. Subsequently the

learned Peshawar High Court disposed of numerous tax references on the

basis of this decision, against which the appeals are before us. We would

like to point out at the very outset that as regards those cases in which

the revenue authorities/collecting agencies have assailed the judgment of

the learned Peshawar High Court, although no rights of the collecting

agencies have been affected as their job is to merely collect contributions

for the Workers’ Welfare Fund, we are nevertheless deciding those cases

as well keeping in view the importance of the matter and the conflicting

judgments impugned before us. There is a contrary view of the Full Bench

of the learned High Court of Sindh expressed in the judgment dated

1.3.2013 reported as Shahbaz Garments (Pvt.) Ltd Vs. Pakistan

Civil Appeal No.1049/2011 etc. -: 10 :-

through Secretary Ministry of Finance, Revenue Division, Islamabad

and others (PLD 2013 Kar 449) (Full Bench judgment) to the effect that the

levy in question was a tax and not a fee, therefore the amendments made

by the Finance Acts of 2006 and 2008 to the Ordinance of 1971 were

lawfully brought through a money bill. The aforementioned judgments

have been challenged by the parties before us.

3. The second set of facts are that various provisions of the

Employees Old Age Benefits Act, 1976 (Act of 1976) pertaining to

contributions to be made thereunder were amended by Section 9 of the

Finance Act of 2008 effectively widening the scope of the obligation on

employers to contribute towards the Employees’ Old-Age Benefits Fund

established under Section 17 of the Act of 1976. These amendments were

challenged through constitution petitions before the learned High Court of

Sindh which, through its judgment dated 3.10.2012 reported as Soneri

Bank Limited through Jaffar Ali Khan and others Vs. Federation of

Pakistan ah21 through Secretary Law and Justice Division, Pak

Secretariat, Islamabad and others (2013 PLC 134), held that the levy in

question was a fee and not a tax, therefore the amendments made by the

Finance Act of 2008 to the Act of 1976 could not have been lawfully

brought through a money bill.

4. The third set of facts are that various provisions of the

Workmen Compensation Act, 1923, the West Pakistan Industrial and

Commercial Employees (Standing Orders) Ordinance, 1968 (Ordinance of

1968), the Companies’ Profit Workers’ Participation Act, 1968 (Act of 1968),

the Minimum Wages for Unskilled Workers Ordinance, 1969 (Ordinance of

1969) and the Act of 1976 were amended through the Finance Act of 2007

which amendment(s) in effect broadened the scope of the obligation of the

Civil Appeal No.1049/2011 etc. -: 11 :-

employers in the respective statutes (the obligation(s) in each statute shall be

discussed during the course of the opinion). These amendments were challenged

through a constitution petition before the learned High Court of Sindh

which, through its judgment dated 26.2.2011, held that the changes

sought to be made by amendments through the Finance Act of 2007 did

not fall within the purview of Article 73(2) of the Constitution, hence, the

said amendments could not have been lawfully brought through a money

bill. All the aforementioned judgments have been challenged before us.

5. The contentions of the learned counsel can be grouped into

two for the sake of convenience. The first set of arguments is of those

counsel who espouse the view that the levies/contributions in question

are in the nature of a tax, hence, the amendments brought in the

respective statutes were validly and lawfully made through Money Bills,

i.e. different Finance Acts.

6. Ms. Asma Jehangir, learned counsel for Employees Old-Age

Benefits Institution (Institution), sought to challenge the judgment passed in

the case of Soneri Bank (supra). Her basic argument was that the levy in

the Act of 1976 is a tax and not a fee, and an amendment could be validly

brought in the Act of 1976 through a money bill. The Act of 1976 is the

outcome of the obligation of the State to sustain the working class from

falling below the poverty line. This obligation has been recognized in the

Constitution (Articles 9, 37 and 38). Under Article 37 of the Constitution the

State has become a signatory to and ratified the conventions of the

International Labour Organisation to set up institutions so that the aged,

disabled, pregnant women, and survivors of accidents and their families

are paid benefits. The Institution is a conduit for the obligation that the

State owes in terms of ensuring social benefits and economic rights.

Civil Appeal No.1049/2011 etc. -: 12 :-

Therefore these payments are not a privilege or a service rendered, rather

they are tantamount to a right. Additionally, a vested right had been

created in favour of the beneficiaries. Further, the employers are

contributors to the welfare of the State [on behalf of the general public

including the employees] and therefore it has become a common burden.

Moreover, the State can contribute as per Section 9 of the Act of 1976

hence the levy/contribution is a tax and not a fee. She relied upon the

judgments reported as Federation of Pakistan through Secretary

Ministry of Petroleum and Natural Resources and another Vs. Durrani

Ceramics and others (PLD 2015 SC 354), Federation of Pakistan

through Secretary M/o Petroleum and Natural Resources and another

Vs. Durrani Ceramics and others (2014 SCMR 1630), Mir Muhammad

Idris and others Vs. Federation of Pakistan through Secretary

Ministry of Finance and others (PLD 2011 SC 213), Sindh High Court

Bar Association through its Secretary and another Vs. Federation of

Pakistan through Secretary, Ministry of Law and Justice, Islamabad

and others (PLD 2009 SC 879), Collector of Customs and others Vs.

Sheikh Spinning Mills (1999 SCMR 1402), Messrs Elahi Cotton Mills

Ltd and others Vs. Federation of Pakistan through Secretary M/o

Finance, Islamabad and 6 others (PLD 1997 SC 582), Sheikh

Muhammad Ismail & Co. Ltd, Lahore Vs. The Chief Cotton Inspector,

Multan Division, Multan and others (PLD 1966 SC 388), Flying

Cement Company Vs. Federation of Pakistan and others (2015 PTD

Lah 1945), Tata Textile Mills Ltd through Authorized

Attorney/Representative, Karachi and 57 others Vs. Federation of

Pakistan through Secretary, Revenue Division/FBR, Islamabad and

another (2013 PTD Kar 1459), Shahbaz Garments (supra), Messrs

Civil Appeal No.1049/2011 etc. -: 13 :-

Mutual Funds Association of Pakistan (MUFAP) Vs. Federation of

Pakistan through Secretary, Ministry of Finances, Government of

Pakistan and another [2010 PLC (Lab) Kar 306], Syed Nasir Ali and 33

others Vs. Pakistan through Secretary Ministry of Law, Islamabad and

3 others (2010 PTD 1924), Messrs Fatima Enterprises Ltd Vs. The

Federation of Pakistan through Secretary, Education, Ministry of

Education, Islamabad and others (1999 MLD 2889), Messrs Saif

Textile Mills Limited Vs. Pakistan through Secretary, Finance

(Finance Division), Islamabad and 3 others (PLD 1998 Pesh 15), Sind

Glass Industries Limited Vs. Chief Controller of Import and Export,

Islamabad (1990 CLC 638) and Trustees of the Port of Karachi Vs.

Gujranwala Steel Industries and another (1990 CLC 197). From the

Indian jurisdiction, learned counsel relied upon the judgments reported as

Calcutta Municipal Corporation and others Vs. Shrey Mercantile Pvt.

Ltd and others (AIR 2005 SC 1879), City Corporation of Calicut Vs.

Thachambalath Sadasivan and others (AIR 1985 SC 756), The Chief

Commissioner, Delhi and another Vs. The Delhi Cloth and General

Mills Co. Ltd and others (AIR 1978 SC 1181), The State of

Maharashtra and others Vs. The Salvation Army, Western India

Territory (AIR 1975 SC 846), The Secretary, Government of Madras,

Home Department and another Vs. Zenith Lamp and Electrical Ltd.

(AIR 1973 SC 724), The Delhi Cloth and General Mills Co. Ltd Vs. The

Chief Commissioner, Delhi and others (AIR 1971 SC 344) and The

Comissioner, Hindu Religious Endowments, Madras Vs. Sri

Lakshmindra Thirtha Swamiar of Sir Shirur Mutt. (AIR 1954 SC 282).

7. Mr. Mir Afzal Malik, learned counsel for the Workers’ Welfare

Fund submitted that the levy/contribution in the Ordinance of 1971 is

Civil Appeal No.1049/2011 etc. -: 14 :-

also in the nature of a tax and not a fee, therefore the amendments have

been validly brought about by Money Bills. He argued that although both

tax and fee are compulsory extractions, tax is not related to a particular

service but is intended to meet the expenses of the State, whereas a fee is

meant to compensate the Government for expenses incurred in rendering

services to the person from whom the fee is collected. Further, the money

received in the Workers’ Welfare Fund is for the benefit of the workers and

not for the payers, i.e. industrial establishments, therefore such

levy/contribution does not fall within the definition of fee. He referred to

various constitutional provisions including Articles 70(4), 73, 77, 142(b)

and (c), 143, 165A and 260(1) and Entry No.52 of Part I of the Fourth

Schedule of the Constitution. He relied upon the judgments reported as

Shahbaz Garments (supra), Mutual Funds Association (supra), Collector

of Customs (supra), Abdul Majid and another Vs. Province of East

Pakistan and others (PLD 1960 Dacca 502), The Commissioner, Hindu

Religious Endowments, Madras (supra), Pakistan Burmah Shell Limited

and another Vs. Federation of Pakistan through the Secretary,

Ministry of Finance, Government of Pakistan, Islamabad and 3 others

(1998 PTD 1804), Muhammad Ismail (supra), Messrs Khyber Electric

Lamps Manufacturing Limited and others Vs. Chairman, District

Council, Peshawar and another (1986 CLC 533), Rahimullah Khan and

65 others Vs. Government of N.W.F.P. through Secretary Agricultural

Forest and Co-operation Department, Peshawar and 5 others (1990

CLC 550), PLD 1997 Kar 604, 1990 CLC 638, Calcutta Municipal

Corporation (supra), The Hingir-rampur Coal Co. Ltd and others Vs. The

State of Orissa and others (AIR 1961 SC 459), Mahboob Yar Khan and
Civil Appeal No.1049/2011 etc. -: 15 :-

another Vs. Municipal Committee, Mian Channu and 2 others (PLD

1975 Lah 748) and Elahi Cotton (supra).

8. Mr. Rehman Ullah, learned counsel for the appellants in Civil

Appeals No.107 to 114 and 755/2016 submitted that the subject

levies/contributions were in the nature of tax, not fee. Mr. Hafiz S. A.

Rehman, learned counsel for the appellant in Civil Petition for Leave to

Appeal No.1767/2012, submitted that the amendments made in several

labour laws through the Finance Act of 2007 were lawful for the reasons

enumerated in the Full Bench judgment of the High Court of Sindh which

(judgment) he fully supported. Mr. Malik Jawwad Malik, learned counsel for

the appellant in Civil Petition for Leave to Appeal No.1005/2016 adopted

the arguments of Mr. Hafiz S. A. Rehman, learned ASC.

9. The second set of arguments is of those counsel who oppose

the view that the levies/contributions in question are in the nature of a

tax, rather it is their stance that they are in the nature of a fee, hence,

the amendments brought in the respective statutes through Money Bills,

i.e. different Finance Acts, were made without lawful authority.

10. Mr. Rashid Anwar, learned counsel for the appellants in Civil

Appeals No.923 to 930, 937 and 938/2013, identified two main issues:-

firstly, with respect to the scope of Article 73 of the Constitution

pertaining to Money Bills, and secondly, whether the Ordinance of 1971

levies a tax or a fee. He briefly discussed the history and origins of the

concept of Money Bills and how it became a part of our constitutional

structure. He made reference to the Parliament Act, 1911 according to

which in case there is a conflict between the House of Commons and the

House of Lords regarding a Money Bill, when the Speaker of Parliament

certifies a bill as a Money Bill, the word of the House of Commons will
Civil Appeal No.1049/2011 etc. -: 16 :-

prevail: according to him this principle is reflected in our Constitution too.

Generally, all bills should be passed by both houses of Parliament, i.e. the

National Assembly and the Senate. The Senate can be bypassed only to

the extent permitted by the Constitution, that is, in respect of matters

which fall strictly within the definition of a Money Bill, as provided in

Article 73 supra. He submitted that the amendments made by the Finance

Act of 2006 and 2008 did not fall within the definition of a Money Bill and

hence such amendments were invalid. He then moved on to the question

of whether the levy/contribution in the Ordinance of 1971 was a tax or a

fee. In this regard he referred to the Durrani Ceramic’s case (supra) and

submitted that there are two tests to answer such a question, first, we

ought to examine whether any benefit is being provided to any class,

particular individuals, community or a specific area and if/where the

benefit cannot be measured in exactitude, so long as the levy is to the

advantage of the payers, consequential benefit to the community at large

would not render the levy a tax. Further, where there is ambiguity,

reference can be made to the stance of the Government itself, because the

budget documents are prepared by the Government and if it classifies the

levy/contribution as non-tax revenue then that is conclusive proof that it

is not a tax. In this respect he referred to certain documents according to

which the Accountant General Pakistan Revenues has taken a categorical

position that the Workers’ Welfare Fund receipts are accounted for under

the heads of account of ‘non-tax receipts’. Learned counsel by referring to

the Preamble and Section 6 of the Ordinance of 1971 stated that this law

is meant to provide facilities to workers, and according to judgments of the

Supreme Court, a fee should confer some benefit on the contributor

directly or indirectly. When an employer makes contributions to the

Civil Appeal No.1049/2011 etc. -: 17 :-

Workers’ Welfare Fund it directly benefits the worker but also indirectly

benefits the employer in that the worker is enabled to be more productive.

He further submitted that as a general rule, tax revenues go to the

national exchequer and are disbursed by it to meet the Government’s

budgetary requirements and the same cannot be done by statutory bodies

which are not the Government.

11. Mr. Hashmat Ali Habib, learned counsel for the appellant in

Civil Appeal No.919/2013 argued that the levy/contribution is in the

nature of a fee and not a tax. The same argument(s) were put forward by

Mr. Ishaq Ali Qazi, learned ASC and Mr. Mehmood Abdul Ghani, learned

ASC (while responding to Ms. Asma Jehangir’s arguments), the latter of whom relied

upon the judgments reported as Kohinoor Chemical Co. Ltd and

another Vs. Sind Employees’ Social Security Institution and another

(PLD 1977 SC 197), (NLR 2004 Labour 10), Government of North-West

Frontier Province through Secretary Agriculture and others Vs.

Rahimullah and others (1992 SCMR 750), Muhammad Ashraf Tiwana

and others Vs. Pakistan and others (2013 SCMR 836), Mir Muhammad

Idris (supra), Messrs Azgard Nine Ltd Vs. Pakistan through Secretary

and others (PLD 2013 Lah 282), Messrs Quetta Textile Mills Limited

through Chief Executive Vs. Province of Sindh through Secretary

Excise and Taxation, Karachi and another (PLD 2005 Kar 55) and Niaz

Ahmed Khan Vs. Province of Sind and others (PLD 1977 Kar 604).

12. Mr. Raheel Kamran, learned counsel for the petitioners in

Constitutional Petitions No.5 to 8/2016 submitted that after the 18th

Constitutional Amendment the concurrent legislative lists were abolished

and the subjects devolved upon the Provinces. He argued that there is an

order dated 14.1.2016 passed by the learned Single Judge of the High
Civil Appeal No.1049/2011 etc. -: 18 :-

Court of Sindh stating that the Full Bench (of the High Court of Sindh) has

declared such a levy to be a tax, and the outcome of this is that as a tax, it

would fall within Entry 47 of the Federal Legislative List which is tax on

income, therefore the Provinces can neither legislate on this subject nor

collect the levy.

13. Heard. The Constitution has provided the legislative

procedure for the introduction and passing of Bills by Parliament.

Generally, all Bills (pertaining to matters in the Federal Legislative List) though they

may originate in either house, i.e. National Assembly or Senate, must be

passed by both houses after which the Bill receives the Presidential

Assent. However there is an exception provided by the Constitution.

According to Article 73 of the Constitution, Money Bills are to originate in

the National Assembly and can be passed by the Assembly whilst

bypassing the Senate. What constitutes a Money Bill has been set out in

Article 73(2) of the Constitution, and Article 73(3) specifically sets out

what shall not constitute a Money Bill. The relevant portions of Article 73

are reproduced below for ease of reference:-

73. Procedure with respect to Money Bills.—(1)

Notwithstanding anything contained in Article 70, a Money
Bill shall originate in the National Assembly:

Provided…………………………………………………………

(1A) ………………………………………………………………

(2) For the purposes of this Chapter, a Bill or amendment

shall be deemed to be a Money Bill if it contains provisions
dealing with all or any of the following matters, namely:—

(a) the imposition, abolition, remission, alteration or

regulation of any tax;
Civil Appeal No.1049/2011 etc. -: 19 :-

(b) the borrowing of money, or the giving of any

guarantee, by the Federal Government, or the
amendment of the law relating to the financial
obligations of that Government;

(c) the custody of the Federal Consolidated Fund, the

payment of moneys into, or the issue of moneys from,
that Fund;

(d) the imposition of a charge upon the Federal

Consolidated Fund, or the abolition or alteration of
any such charge;

(e) the receipt of moneys on account of the Public

Account of the Federation, the custody or issue of
such moneys;

(f) the audit of the accounts of the Federal Government

or a Provincial Government; and

(g) any matter incidental to any of the matters specified

in the preceding paragraphs.

(3) A Bill shall not be deemed to be a Money Bill by reason

only that it provides–

(a) for the imposition or alteration of any fine or other

pecuniary penalty, or for the demand or payment
of a licence fee or a fee or charge for any service
rendered; or

(b) for the imposition, abolition, remission, alteration or

regulation of any tax by any local authority or body
for local purposes.

(4) ………………………………………………………………

(5) ………………………………………………………………
Civil Appeal No.1049/2011 etc. -: 20 :-

Therefore any Bill which does not fall within the purview of Article 73(2) of

the Constitution would not constitute a Money Bill and cannot be passed

under the legislative procedure (mandate) provided by Article 73, by

bypassing the Senate, rather the regular legislative procedure under

Article 70 would be required to be followed. In the instant matters, the

relevant sub-article is (2)(a) of Article 73, which pertains to the imposition,

abolition, remission, alteration or regulation of any tax, read with sub-

article (2)(g) which relates to any matter incidental to any of the matters

specified in sub-articles (2)(a) to (f). Thus we must consider whether the

levies/contributions in question under the various laws are in the nature

of a tax: which would render the amendments thereto through the Finance

Acts valid and lawful.

14. Whether the various levies/contributions in the instant

matter constitute a tax as opposed to a fee depends on whether they

possess the characteristics of a tax or not. The key characteristics of a

‘tax’ and a ‘fee’ have been the subject of much debate in our

jurisprudence. In the judgment reported as Government of North-West

Frontier Province through Secretary Agriculture and others Vs.

Rahimullah and others (1992 SCMR 750) it was held that:-

“The distinction between "tax" and "fee" lies primarily in

the fact that a tax is levied as a part of common burden
while a fee is paid for a special benefit or privilege.”

This Court in the more recent judgment reported as Federation of

Pakistan through Secretary M/o Petroleum and Natural Resources

and another Vs. Durrani Ceramics and others (2014 SCMR 1630), after
Civil Appeal No.1049/2011 etc. -: 21 :-

taking into account considerable case law from our jurisdiction and

abroad, came to the following definitive conclusion:-

19. Upon examining the case-law from our own and

other jurisdictions it emerges that the 'Cess' is levied for a
particular purpose. It can either be 'tax' or 'fee' depending
upon the nature of the levy. Both are compulsory exaction
of money by public authorities. Whereas 'tax' is a
common burden for raising revenue and upon collection
becomes part of public revenue of the State, 'fee' is
exacted for a specific purpose and for rendering services
or providing privilege to particular individuals or a class
or a community or a specific area. However, the benefit so
accrued may not be measurable in exactitude. So long as
the levy is to the advantage of the payers, consequential
benefit to the community at large would not render the levy
a 'tax'. In the light of this statement of law it is to be
examined whether the GIDC is a 'tax' or a 'fee'.
[Emphasis supplied]

There are no two opinions about the fact that a tax is basically a

compulsory exaction of monies by public authorities, to be utilized for

public purposes. However its distinguishing feature is that it imposes a

common burden for raising revenue for a general as opposed to a specific

purpose,#; the latter being one of the key characteristics of a fee. Now let

us examine each of the subject levies/contributions in light of the above

touchstone.

15. According to the Preamble of the Ordinance of 1971, it was

passed to provide for the establishment of a Workers’ Welfare Fund, in

order to provide residential accommodation and other facilities for workers

and for matters connected therewith or incidental thereto. The Workers’

Welfare Fund is constituted under Section 3 of the Ordinance of 1971

Civil Appeal No.1049/2011 etc. -: 22 :-

which, amongst other things, consists of contributions by industrial

establishments. ‘Industrial establishments’, as defined in Section 2(f) of

the Ordinance of 1971, are liable to pay to the Workers’ Welfare Fund a

sum equal to two percent of their total income per year, provided that the

total income of which [in any year of account commencing on or after the

date specified by the Federal Government in the official gazette in this

behalf] is not less than five lakh rupees. Section 7 pertains to the creation

of the Governing Body of the Workers’ Welfare Fund to whom the

management and administration whereof shall be entrusted. According to

Section 10, amongst other things, the function of the Governing Body

shall be:-

(a) to allocate funds, in accordance with the principles

laid down under section 9, to the Provincial Governments,
any agency of the Federal Government and any body
corporate for any of the purposes mentioned in clauses
(a) and (b) of section 6;
[Emphasis added]

Section 6 provides for the purposes to which monies in the Workers’

Welfare Fund may be applied. It reads as follows:-

“6. Purposes to which moneys in the Fund may be

applied.—Moneys in the Fund shall be applied to –
(a) the financing of projects connected with the
establishment of housing estates or construction of
houses for the workers;
(b) the financing of other welfare measures including
education training, re-skilling and apprenticeship
for the welfare of the workers;
Civil Appeal No.1049/2011 etc. -: 23 :-

(c) the meeting of expenditure in respect of the cost of

management and administration of the Fund;
(d) the repayment of loans raised by the Governing
Body; and
(e) investment in government, government guarantees,
non-government securities and Real Estate.”

Going further, Section 10A provides that:-

10A. Vesting of money allocated from the fund.—Any

money allocated under clause (a) of section 10 shall be a
grant-in-aid and shall vest in the Government, agency or
body corporate, to whom it is allocated under that clause,
but it shall not be applied to any purpose other than that
for which it is allocated, or permitted, by the Governing
Body.
[Emphasis added]

From the above it is clear that the Governing Body of the Workers’

Welfare Fund, established to manage and administer the said fund, is

supposed to do so in light of the exhaustive purposes enumerated in

Section 6 ibid. Further, the Governing Body can only allocate funds to

the Provincial Government, or any agency of the Federal Government and

any Body Corporate for the purposes mentioned in Section 6(a) and (b)

and for no other purpose, and any funds so allocated to any such body

cannot be used for any purpose other than that for which they are

allocated or as permitted by the Governing Body. This clearly establishes

two things: that the Government has no control over the Workers’

Welfare Fund, and that the funds can only be used for very specific

purposes as stated exhaustively in the Ordinance of 1971 itself, and not

for general or undefined purposes. This particular feature of the

Civil Appeal No.1049/2011 etc. -: 24 :-

contribution(s) made in terms of the Ordinance of 1971 automatically

preclude them from being classified as a tax.

16. Besides there are certain other features of the contributions

made to the Workers’ Welfare Fund that suggest they are not in the

nature of a tax. In this regard, Section 4(7) of the Ordinance of 1971 is

important which reads as follows:-

“4(7) The payment made by an industrial establishment to

the Fund under sub-section (1) shall be treated as an
expenditure for purposes of assessment of income-tax.

Section 4(7) basically states that the payments made by industrial

establishments to the Workers’ Welfare Fund under the Ordinance of 1971

are to be considered as expenditure while assessing income tax. It is a

necessary corollary that the contributions to the Workers’ Welfare Fund

cannot be a tax if they are to be considered as an expenditure while

assessing income tax. This argument is bolstered by Section 60A in Part

IX of Chapter III of the Income Tax Ordinance, 2001 (Ordinance of 2001) which

reads as follows:-

“60A. Workers’ Welfare Fund.—A person shall be entitled

to a deductible allowance for the amount of any Workers’
Welfare Fund paid by the person in tax year under
Workers’ Welfare Fund Ordinance, 1971.”

A deductible allowance has been defined in Section 2(16) of the Ordinance

of 2001 as “an allowance that is deductible from total income under Part IX of Chapter

III”, meaning thereby that any contributions made by a person under the

Ordinance of 1971 will be deducted from the total income of that person.
Civil Appeal No.1049/2011 etc. -: 25 :-

This also suggests that the contributions are not a tax, as they are being

deducted from the total income, as opposed to being considered as a tax

credit, in which case the contributions would be subtracted from the total

tax to be paid. In the light of the foregoing, we are of the view that the

contributions made to the Workers’ Welfare Fund are not in the nature of

a tax.

17. We now advert to the levies/contributions made under the Act

of 1976. According to the Preamble of the Act of 1976, it is a law relating

to old-age benefits for the persons employed in industrial, commercial and

other organisations and matters connected therewith. The Employees’

Old-Age Benefits Institution was set up under Section 4 of the Act of 1976;

the Institution is to be generally directed and superintended by the Board

(see Section 6). The Employees’ Old-Age Benefits Fund was set up under

Section 17 of the Act of 1976 into which all contributions made under the

said Act are to be paid. The employer [defined in Section 2(c)] is required to

make monthly payments or contributions to the Institution in respect of

insured employees at the rate of five per cent of his wages (see Section 9).

Section 3 provides that all employees in an industry or establishment [both

of which terms have been defined in Section 2(g) and (e) of the Act of 1976 respectively] shall be

insured in the manner prescribed by or under the Act of 1976. Under the

said Act, the insured person is also required to make monthly

contributions under Section 9B thereof at the rate of one per cent of his

wages, from 1.7.2001. Section 17(4) of the Act of 1976 is important, it

provides that “the assets of the Institution shall be utilized solely for the purposes of

this Act”. The various benefits available under the Act of 1976 are old-age

pension (Section 22), old-age grant (Section 22A), survivors’ pension (Section 22B)

and invalidity pension (Section 23). Thus the scheme of the Act of 1976

clearly suggests that the contributions are to be used for specific purposes
Civil Appeal No.1049/2011 etc. -: 26 :-

pertaining to employees’ old-age benefits, as opposed to general purposes.

Again this feature of the subject contribution removes it from the ambit of

a tax.

18. Coming to the five different labour laws amended by the

Finance Act of 2007; one of them was the Act of 1976 which we have

discussed in the preceding paragraph hence is not required to be

addressed again. The Preamble to the Workmen’s Compensation Act, 1923

states that it was passed to provide for the payment of compensation for

injury by accident by certain classes of employees to their workmen.

According to Section 3 of the Act of 1923, an employer shall be liable to

pay compensation in accordance with the provisions of Chapter II of the

said Act if personal injury is caused to a workman by accident arising out

of and in the course of his employment. The Act of 1923 contains very

comprehensive details of the amount of compensation to be paid (Section 4),

the method of calculation of wages (Section 5) and the distribution of

compensation (Section 8), etc. The scheme under the Act of 1923 is a form of

insurance, providing compensation to workers (or their dependents in case of a

fatal accident if the Commissioner thinks fit) injured in the course of employment in

exchange for relinquishment of the employee’s right to take legal action

against the employer (see Section 3(5) of the Act of 1923). In the light of the above

it is manifest that the compensation payments made under the Act of

1923 are not a common burden exacted to meet the general expenses of

the State, rather they are particular payments made for a very specific

purpose, i.e. to compensate workmen injured in the course of

employment, therefore they cannot be said to be in the nature of a tax.

19. The same is the case with the payments made under the

Ordinance of 1968 which provides for the regulation of the conditions of

Civil Appeal No.1049/2011 etc. -: 27 :-

the employment of workmen and other incidental matters in industrial or

commercial establishments in accordance with the Standing Orders in the

Schedule to the said Ordinance (See section 3). The Ordinance of 1968 is

quite extensive, however we are only concerned with the contributions

which have been amended by the Finance Act of 2007, as it is the said Act

which has been called into question as being unlawful. The provision

which was amended by the Finance Act of 2007 is Clause (6) of Standing

Order 12 which broadly provides for payment of gratuity by the employer

in case a workman resigns from service or his services are terminated by

the employer for any reason other than misconduct. The proviso that was

added by the Finance Act of 2007 reads as follows:-

“Provided further that if through collective

bargaining the employer offers and contributes to an
“Approved Pension Fund” as defined in the Income Tax
Ordinance, 2001 (XLIX of 2001), and where the
contribution of the employer is not less than fifty per cent of
the limit prescribed in the aforesaid Ordinance, and to
which the workman is also a contributor for the remaining
fifty per cent or less, no gratuity shall be payable for the
period during which such contribution has been made.”

The subject contribution is gratuity payments. What is gratuity? Basically

it is a lump sum payment made by the employer to an employee at the

end of his service (either by retirement or termination for reasons other than misconduct) as

a mark of recognition for the latter’s service. In other words it is a defined

benefit plan. These payments made by employers are very specific as

opposed to having a generic purpose to meet the State’s expenses and can

therefore by no stretch of imagination be referred to as a tax.

Civil Appeal No.1049/2011 etc. -: 28 :-

20. The Act of 1968 provides for companies [defined in Section 2(b)] to

which the Act applies to establish a Workers’ Participation Fund and to

make annual payments of five per cent of its profits during that year to the

said Fund (see Section 3) to provide benefits that accrue from it to the eligible

workers of the company. Employees may voluntarily choose to contribute

to the Workers’ Participation Fund as per Clause 7 of the Schedule of the

Act of 1968. The Workers’ Participation Fund is to be managed and

administered by a Board of Trustees in accordance with the provisions of

the Act of 1968, the scheme and any rules made in this behalf [see Section

4(5)]. The Workers’ Participation Fund is basically a profit-sharing plan

that gives employees a share in the profits of a company, with the primary

aim to give the employees a sense of ownership and greater participation

in the company. These contributions too, are for a specific purpose, i.e. a

plan for the benefit of employees, much like other investment plans, and

therefore do not qualify as a tax.

21. Finally, according to the Preamble of the Ordinance of 1969, it

was enacted to fix the minimum rates of wages for unskilled workers

employed in certain commercial and industrial establishments [defined in

Section 2(b) and (f) respectively]. Such responsibility was pinned on commercial

and industrial establishments under Section 4 of the Ordinance of 1969.

Not only was this statute enacted for the aforementioned specific purpose,

we fail to understand as to how the requirement of payment of minimum

wages to unskilled workers can be construed as a tax, thereby permitting

any amendments made to the Ordinance of 1969 to be effected through a

Money Bill.

22. As we have established from the discussion above that none

of the subject contributions/payments made under the Ordinance of

Civil Appeal No.1049/2011 etc. -: 29 :-

1971, the Act of 1976, the Act of 1923, the Ordinance of 1968, the Act of

1968 and the Ordinance of 1969 possess the distinguishing feature of a

tax, i.e. a common burden to generate revenue for the State for general

purposes, instead they all have some specific purpose, as made apparent

by their respective statutes, which removes them from the ambit of a tax.

Consequently, the amendments sought to be made by the various Finance

Acts of 2006, 2007 and 2008 pertaining to the subject

contributions/payments do not relate to the imposition, abolition,

remission, alteration or regulation of any tax, or any matter incidental

therto (tax). We would like to point out at this juncture that the word

‘finance’ used in Finance Act undoubtedly is a term having a wide

connotation, encompassing tax. However not everything that pertains to

finance would necessarily be related to tax. Therefore merely inserting

amendments, albeit relating to finance but which have no nexus to tax, in

a Finance Act does not mean that such Act is a Money Bill as defined in

Article 73(2) of the Constitution. The tendency to tag all matters pertaining

to finance with tax matters (in the true sense of the word) in Finance Acts must

be discouraged, for it allows the legislature to pass laws as Money Bills by

bypassing the regular legislative procedure under Article 70 of the

Constitution by resorting to Article 73 thereof which must only be done in

exceptional circumstances as and when permitted by the Constitution.

The special legislative procedure is an exception and should be construed

strictly and its operation restricted. Therefore, we are of the candid view

that since the amendments relating to the subject

contributions/payments do not fall within the parameters of Article 73(2)

of the Constitution, the impugned amendments in the respective Finance

Acts are declared to be unlawful and ultra vires the Constitution.

Civil Appeal No.1049/2011 etc. -: 30 :-

23. There is another aspect of the matter which requires due

attention. No doubt the feature of having a specific purpose is a

characteristic of a fee, which the subject contributions/payments possess

as discussed in the preceding portion of this opinion. However, there are

certain other characteristics of a fee, such as quid pro quo, which must be

present for a contribution or payment to qualify as a fee. This was the

main argument of the learned counsel who categorized the subject

contributions in the nature of a tax, that they (the contributions) lacked the

element of quid pro quo or in other words the benefit of the contribution

did not go the payers. The industrial establishments or employers etc.

were liable to pay the contribution but they were not the beneficiaries of

the purpose for which such contributions were being made; the

beneficiaries were their employees or workers etc. Mr. Rashid Anwar

attempted to argue that the benefit need not be direct and can be indirect,

therefore although the employees were directly benefited by contributions

made to the Employees’ Old-Age Benefit Fund as they received the

disbursements, the employers received an indirect benefit in that this

results in happier employees which ultimately leads to greater

productivity. Whilst this may be true, albeit a strained argument, the

attempt of the learned counsel challenging the legality of the amendments

in the Finance Acts has all along been to categorize the

contributions/payments as a fee, which would mean that they were not a

tax. While a fee is obviously not a tax, there was absolutely no need to try

and squeeze the contributions/payments into the definition of a fee, when

all that is required is to take them out of the ambit of a tax. We may

develop this point further; although Article 73(3)(a) of the Constitution

states that a Bill shall not be a Money Bill if it provides for the imposition
Civil Appeal No.1049/2011 etc. -: 31 :-

or alteration of a fee or charge for any service rendered, this does not

mean that if a particular levy/contribution does not fall within Article

73(2) it must necessarily fall within Article 73(3). Sub-articles (2) and (3)

are not mutually exclusive. There may very well be certain

levies/contributions that do not fall within the purview of Article 73(3) but

still do not qualify the test of Article 73(2) and therefore cannot be

introduced by way of a Money Bill, and instead have to follow the regular

legislative procedure. The discussion above that the subject

contributions/payments do not constitute a tax is sufficient to hold that

any amendments to the provisions of the Ordinance of 1971, the Act of

1976, the Act of 1923, the Ordinance of 1968, the Act of 1968 and the

Ordinance of 1969 could not have been lawfully made through a Money

Bill, i.e. the Finance Acts of 2006 and 2008, as the amendments did not

fall within the purview of the provisions of Article 73(2) of the

Constitution.

24. In light of the foregoing, the instant matters are disposed of in

the following manner:-

(a) Civil Appeals No. 1049 to 1055/2011, 24 to 26/2013,

64 to 66/2013, 1266 to 1299/2014, 1364 to

1379/2014, 72 to 74/2015, 316 to 321/2015,

388/2015, 583 to 585/2015, 107 to 114/2016,

755/2016, 1022/2016, 1341/2016, and Civil Petition

for Leave to Appeal No.1005/2016 are dismissed;

(b) Civil Petition for Leave to Appeal No.1767/2012 is

dismissed. Besides, the noted CPLA is barred by 586

days and no sufficient cause for condonation of delay