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Petitioner: PAK INDUSTRIAL & MINING SYNDICATE LTD., QUETTA AND Other VS Respondent: IQBAL JUDGMENT
Court Name: Balochistan High Court Judge(s): Zakaullah Lodi, Mir Khuda Bakhsh Marri Title:PAK INDUSTRIAL & MINING SYNDICATE LTD., QUETTA AND Other vs IQBAL
JUDGMENT
Reported As: 1977 PLC 593 Result: Petition accepted Judgment JUDGMENT MIR KSUDA BAKHSH MARRI, C. J.--The following three Constitutional Petitions No. 140/76, Pakistan Industrial and Mining Syndicate v. Government of Baluchistan through Secretary, Labour Health and Social Welfare Department, Government of Baluchistan. No. 23/77, F. B. Patel v. Iqbal Mohammad Khan, Presiding Officer, Labour Court, Quetta and No. 141/76, Azizur Rehman v. Iqbal Mohammad Khan. Presiding Officer, Labour Court, Quetta and others filed under Article 199 of the Constitution of the Islamic Republic of Pakistan seek to challenge the legality of the appointment by Government of Baluchis--tan of Mr. Iqbal Mohammad Khan as Presiding Officer, Labour Court, Quetta (hereinafter called the respondent No. 1) and requiring him to show cause under what authority of law he claims to hold that office with prayer that he may be restrained from exercising any power or taking any proceedings or passing any order as Presiding Officer. Labour Court, Quetta with a further prayer to declare that any orders passed and steps taken by him as such officer against the petitioners or other persons are without lawful authority and have no legal effect. 2. Petition No. 140/76 was filed by Pakistan Industrial and Mining Syndicate Ltd., a limited liability Company at Karachi on 12-7-1976. The petitioner carries on business of extraction, sale and export, sale and export of marble and other mineral in Baluchistan. The petitioner, it i$ stated, entered into some contracts with respondent No. 2, Syed Abdul Haleem Shah and other persons working under the contract. Respondent No. 2 filed an application under the Industrial Relations Ordinance, 1969, before the National Industrial Relations Commission complaining that his services were illegally terminated by the petitioner. His application was forwarded by N. I. R. C. to respondent No. 1 for
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disposal. In the meantime, respon--dent No. 2 filed a similar application before respondent No. 1, at Quetta when the respondent No. 1 took up the application and started proceedings against the petitioner who challenged his authority to do so. 3. In Petition No. 23/77, services of one Dilbar Hussain, a workman of the petitioner were terminated as there was no business for the petitioner at that time as his Steam Flour Mill stopped working in the year 1970. He, however, appointed him in his private office at part time basis but later on this workman became violent and allegedly attacked the petitioner and his wife causing them some injuries, a criminal cast is pending against him, as a result petitioner dismissed him from service. This workman moved an application under section 25-A of I. R. O., 1969 in the Court of respondent No. 1, who, ordered re-instatement of respondent No. 2. This order was challenged in appeal before the Labour Appellate Tribunal and the matter was remanded and thereafter instead of re- instatement he ordered the petitioner to pay gratuity to respondent No. 2 from September, 1947 to October, 1971 for his alleged employment with the petitioner's Flour Mill at Quetta. The petitioner, thereafter, challenged the very authority of respondent No. 1 and his appointment as Presiding Officer, Labour Court, Quetta. 4. Petition No. 141/76 was filed on 26-7-1976 at Karachi. Petitioner Azizur Rehman runs Cafe-Baldia, where, it is stated, there were less than 20 workers employed. One Mohammad Aziz, a temporary employee as waiter allegedly absented himself. He also misbehaved with the customers, demanded loan money and threatened the petitioner with dire consequences. He was charge- sheeted and ultimately removed from service on 14-5-1976. It seems that he also moved an application under section 25-A of I. R. O., 1969 before the respondent No. 1, against termination of his services. The petitioner appeared before the Court and filed written statement but later on respondent No. 1, framed charge for violation of section 15 of West Pakistan i Standing Orders) Ordinance, 1968 which is punishable under section 7(2) of the said Ordinance. He, thereafter, filed Constitutional petition challenging appointment of respondent No. 1, to act as Presiding Officer, Labour Court, Quetta. 5. As all the three petitions involve the same question of law, that is, legality or otherwise of appointment of respondent No. 1, as Presiding Officer, Labour Court, Quetta, all the three petitions were heard together. Earlier Mr. Khalid M. Ishaque appeared and at final hearing his partner Mr. Nasir Aslam Zahid, learned counsel for the petitioner in petition No. 140/76 undertook main burden of arguments, other counsel, namely, Mr. S. A. M. Qadri, in Petition No. 23/ 77 and Mr. Iftikhar Mohammad in Petition No. 141 of 1976 adopted his arguments and prayed that appointment of respondent No. 1 be declared null and void and without legal authority. I, therefore, propose to dispose of all the petitions with this single judgment. 6. Respondent No. 1, prior to his appointment to the post of Presiding Officer, it is stated, was a Public Prosecutor of Kalat Area for many years. He was appointed by the Government of Baluchistan vide Notification No. 9-2/70 Labour, dated 10th September, 1975 published in Baluchistan Government Gazette, 1975 (Annex. 'A') which reads as under:-- "In exercise of the powers conferred by section 35 of the Industrial Relations Ordinance, 1969 (XXIII of 1969) and in supersession of all previous notifications issued in this behalf; the Governor of Baluchistan i3 pleased to appoint Mr. lqbal Mohammad Khan, B. A., LL.B., as Presiding Officer of the Labour Court at Quetta having jurisdiction in Baluchistan on purely temporary and ad hoc basis for a period of six months or till such time as a nominee of the Baluchistan Public Service Commission is made available." 7. It may be noted that respondent No. 1 remained as temporary and ad hoc appointee beyond the period of six months, i.e. from September, 1975 till the so-called regularization order of Government of Baluchistan in 1977.
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8. The relevant prevision, which regulates the appointment of Presiding Officer. Labour Court, Quetta, by the Provincial Government, is section 35(3) of I. R. O. 1969, which reads as under:- "Section 35.-(3) A person shall not be qualified fur appointment as Chairman unless he has been or is qualified to be a Judge or Additional Judge of a High Court or is a District Judge, or an Additional District Judge." 8-A. The petitions were admitted at Karachi and interim stay was granted by the then High Court and after some adjournments the matters carne for final hearing on 10-5-1977 when a submission was made by Mr. Basharatullah learned counsel for the respondent No. 1 and Mr. S. H. Jafri, learned counsel for respondent No. 2, Syed Abdul Haleem Shah in Petition No. 140/76 that since section 35, I, R. O, 1969 bas been amended and the restriction placed there in respect of the qualifications for appointment of Presiding Officer, Labour Court. Baluchistan that he should be qualified to be a Judge or Additional Judge of a High. Court or served as a District Judge or Additional District Judge, has been removed by Ordinance IX of 1977 and respondent No. 1's services also since have been regularised by the Government of Baluchistan through Public Service Commission vide Notification No. 9-2/77 Labour dated 20th Aprils 1977 the petitions have become infructuous which may be dismissed as such. 10. It is the case of ail the petitioners that a simple reading of section 35 of I. R. O., 1969 makes it clear that a person who is not qualified for appoint--ment in terms of section 35(3) cannot hold office of Presiding Officer, Labour Court and exercise any functions as such and that according to the informa--tion of the petitioners, respondent No. 1 has never been appointed or acted as a District Judge or Additional District Judge nor is qualified to be appointed as a Judge or Additional Judge of a High Court. Under Article 193 of the Constitution, a person is not qualified to be appointed a Judge of High Court unless he has, for a period of, or for a period aggregating not less than 10 years, been an Advocate of a High Court. 11. That on inquiries made by the petitioners at the office of the Sind & Baluchistan Bar Council, Karachi and in the list of the Advocates available with said Bar Council, the tame of respondent No. 1, does not appear as an Advocate of the High Court. It may be noted that respondent No. 1 has not denied this fact. It was further revealed that respondent No. 1 had obtained a certificate from Judicial Commissioner, Baluchistan in 1947 authorising him to practise as a pleader in the criminal and civil forums except the Court of Judicial Commissioner in Baluchistan. The permission given by the Judicial Commissioner referred to above, dated 20-12-1947, is Annexure 'A' to the parawise Comments and reads as under:-- "Under the provisions of clause (r) of section 4 of the Code of Criminal Procedure, 1898 (V of 1898) and clause (15) of section 2 of the Code of Civil Procedure, 1908 (V of 1908) as in force in British Baluchistan vide Schedule I to the British Baluchistan Law Regulation, 1913 (II of 1913), the J.C. is pleased to grant authority to Messrs Iqbal Mohammad Khan, B. A., LL.B., and Mohammad Moquim Ansari. M. A., LL.B. to practise in Civil and Criminal Courts of the Sibi and the Bolan, Nushki and Kachhi Railway District with a special condition that they can appear in appeal or revision cases at Quetta arising out of the cases originating in the said District in which parties may engage them." 12. It appears that the respondent No. 1 alongwith Mr. Mohammad Muquim Ansari was granted another permission to practise in Baluchistan in Civil and Criminal Courts by the Judicial Commissioner which is Annexure 'B' dated 21-5-1948 on the term and condition placed by the Judicial Commissioner speaks for itself. It reads as under: "Under the provisions of clause (r) of section 4 of the Code of Criminal Procedure, 1898 (V of 1898) and clause (15) of section 2 of the Code of Civil Procedure, 1908 (V of 1908) as in force in British Baluchistan vide Schedule I to the British Baluchistan Law Regulation, 1913 (II of 1913), the Judicial Commissioner is pleased to grant authority to- (1) Mr. Mohammad Muquim Ansari, M. A., LL.B. Pleader, Sibi.
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(2) Mr. Iqbal Mohammad Khan, B. A., LL.B., Pleader, Sibi; to practise in all the Civil and Criminal Courts of Baluchistan. In order to ensure that legal aid will be available to the public of Sibi District the above-named two pleaders shall visit Sibi regularly during the summer months and stay in Sibi continuously from 20th of April every year." 13. After utilizing the above conditional authority from 1948 to 1959, respondent No. 1, was appointed as Public Prosecutor and Government Pleader for Kalat on 17-1-1959 and continued in that capacity until he was appointed as Presiding Officer, Labour Court, Quetta on 10-9-1975. He eras relieved of his duties as Public Prosecutor on 15-9-1975, vide Notification No. 343/AG, dated 17-9-1975, published in Baluchistan Government Gazette of 19-9-1975, which is Annexure ---B--- and reads as under:- "In pursuance of Notifications No. 9-2/70-Labour dated 10th September, 1975, issued by the Government of Baluchistan, Labour, Health and Social Welfare Department, Quetta, the Advocate- General, Baluchistan is pleased to relieve Mr. Iqbal Mohammad Khan, B. A., LL.B., of his duties as Public Prosecutor, Kalat with effect from 15-9-1975 forenoon. Mr. Noor Muhammad Magsi. Public Prosecutor, Kachhi will perform the duties of Public Prosecutor, Kalat in addition to his own duties till further order." 14. The main grounds raised by the counsel for the petitioner, there--fore, are that the very appointment of respondent No. 1 as Presiding Officer Labour Court, is patently illegal because he did not have the requisite quali--fication for appointment as required under section 35(3) of I. R. O., 1969 hence his appointment accordingly is null and void ands without jurisdiction. That being so all the actions and proceedings taken by him and all orders passed as such are without jurisdiction and wholly incompetent and that he has no right or jurisdiction to entertain application of respondent No. 2 against the petitioners and all proceedings taken and orders passed thereon by him are bad in law. 15. It may be pointed out that whets these petitions were transferred from Karachi to Quetta and came for nearing learned counsel for the petitioners submitted that it has come to their knowledge that by Ordinance IX of 1977, section 35(3), I. R. O., 1969 has been amended after 6 months of the filing of these petitions and even under the amended section 35(3) the respondent could be appointed to the post by the Provincial Government after consultation with the Federal Government and decidedly no such permission from the Federal Government, as required by amended sec--tion 35(3) has been obtained by the Provincial Government nor produced in the Court and it is also not in the case of respondent No. 1 that such permission has been accorded. The learned counsel submitted that although qualification clause has been removed by the amendment yet requisite of prior consultation with the Federal Government has not been made. It was also argued that in spite of the notification of the Government of Baluchistan dated 20April, 1977, no change has taken place regarding the position of the holding of office by respondent No. 1 as Presiding Officer, Labour Court, Quetta, which is illegal and without jurisdiction, and which he is wholly incompetent to hold, and that the notification, dated 20-4-1977 cannot legalise or regularise the initial illegal appointment of respondent No. 1 because the notification itself is illegal and also without jurisdiction over and above the same is retrospective in nature. In absence of consultation with Federal Government the appointment of respondent No. 1 could not be regularised with prospective or retrospective effect. In any case the said Notification ex facie does not fulfil the requirement of amendment made in section 35(3), I. R. O., 1969 by the Labour Laws (Amendment) Ordinance, 1977. 16. Unamended section 35(3), I. R. O., 1969 as well as section 35(3) as amended by the Labour Laws (Amendment) Ordinance, 1977 (IX of 1977) are hereby reproduced for the sake of convenience:-- Unamended section 35(3).---A person shall not be qualified for appoint--ment as Chairman unless has been or is, qualified to be a Judge or Additional Judge, of a High Court or is a Districtth
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Judge, or an Additional District Judge. Amended section 35(3).---A person shall not be quaffed for appointment as Presiding Officer unless he hue been or is qualified to be a Judge or Additional Judge of a High Court or is a District Judge, or Additional District Judge. Provided that the Provincial Government of Baluchistan may, after consultation with the Federal Government, appoint any person not so qualified to be the Presiding Officer of a Labour Court." 17. Mr. Iqbal Mohammad Khan was represented by Mr. Basharatullah, Advocate in all petitions and the Government of Baluchistan by Mr. Muhammad Ahmed Mirza, Advocate-General, Baluchistan, and Mr. S H. Jafri. Advocate appeared for respondent No. 2, Syed Abdul Haleem Shah. They opposed the petitions, took the stand that although the respondent has never been enrolled as an Advocate of High Court nor appointed or acted as a District Judge or Additional District Judge or a Judge or Additional Judge of High Court nonetheless, he was eligible to be appointed as a District Judge or Additional District Judge or a Judge or Additional Judge of a High Court by virtue of his being a pleader of more than 10 years standing, practising in Court of Judicial Commissioner, Baluchistan and later in the High Court of West Pakistan. 18. 1t was argued that respondent No. 1 was granted permission by the Judicial Commissioner as Pleader on 20-12-1947 vide his Order No. 1114-J, dated 20-12-1947 and revised by Order No. 1640 dated 21-5-1948, Annexures 'A' and ---B---. 19. It would be pertinent to reproduce the necessary qualifications to be appointed a Judge or Additional Judge of a High Court which arc contained in Article 193(2) of the Constitution of Islamic Republic of Pakistan which reads as under:- "(2) A person shall not be appointed as Judge of a High Court unless he is citizen of Pakistan, is not leas than forty years of age; and (a) he has for a period of or for period aggregating not less than ton years been an Advocate of a High Court (including the High Court which existed in Pakistan at airy time before the commencing day ; or (b) he is, and has for a period of not less than ten years been, a member of a Civil service prescribed by law for the purpose of this paragraph, and has, for a period ref not less than three years, Served as or exercised the functions of a District Judge in Pakistan ; or (c) he has, for a period of not less than ten years, held a judicial office in Pakistan. It is not the case of the respondent No. 1 that he ever acted as District Judge or Additional District Judge, therefore further discussion of this point is unnecessary. 20. It may be noted that a plain reading of Article 193 makes it clear that one of the prerequisites to be appointed as a Judge or Additional Judge of a High Court is that one has to have practice of not less than ten years as an enrolled Advocate of a High Court. In the present case it has not been denied that respondent No. 1 has never been enrolled as an Advocate ox any High Court in Pakistan. He, however, obtained an authority from Judicial Commissioner, Baluchistan on 20-12- 1947 to practise at first instance in lower civil and Criminal Court later on extended to include the Court of Judicial Commissioner with certain conditions. The main argument advanced on behalf' of respondent No. 1 was that the Court of Judicial Commissioner may be treated and had the status of is High Court as contained in Article 219 of the Government of India Act, 1935 which position it continued to enjoy until establishment of High Court of West Pakistan in October, 1955. These enactments, it was submitted as well as the West Pakistan (Establishment of High Court) Order, 1955, provide that the Judicial Commissioner's Court was treated as a High Court. That being the position, it was argued, the respondent having been permitted to act as a pleader in the Judicial Commissioner's Court in 1947 until he became Public Prosecutor ire 1959, he, of necessity and by implication, be considered as an Advocate of the High Court, if that is so, then he fulfils the pre-
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qualifications as provided by Article 193 of the Constitution of Islamic Republic of Pakistan as well as section 35(3) of I. R. O., 1969. 21. It was also argued that as the respondent No. 1 was appointed Public Prosecutor and Government Pleader on 17-1-1959 and in that capacity he could appear before the High Court of West Pakistan and that even other--wise office of Public Prosecutor relates to administration of justice both under clause (r) of section 4 of Criminal Procedure Code and clause (15), section 2 of Civil Procedure Code as in force in Baluchistan vide rule 11 of Baluchistan Regulation, 1913, he, therefore, by implication fulfils the necessary qualifica--tion of Article 193 of the Constitution. Reliance was placed on definition of Judicial office as defined in Black's Law Dictionary, Revised Fourth Edition, p. 986, as under:- "Judicial Office.- Offices which relate to the administration of justice ; Valdo v. Wallace 12 Ind. 569: and which should be exercised by persons of sufficient skill and experience in the duties which appertain to them. A general term including Courts of record and Courts not of record. Buckpy v. Holmes 259 Pa 176=102 A. 49 , 500. A term used in 31 & 35 vict. C. 91 to define qualifications of additional members of the Judicial Committee of the Privy Council" The argument that Public Prosecutor's office is a Judicial office is fallacious. Admittedly the respondent No. 1 did have the requisite qualification as provided in Article 193(2) of the Constitution. If at all, for sake of arguments, respondent can have any claim to hold the pest as Judicial Officer then he should have held a post of Judicial Officer and post of Public Prosecutor does not come within the definition of Judicial Officer either. Judicial Officer in the same Black's Law Dictionary at the same page is defined as under :- "Judicial Officer.----The term in the popular sense applies generally to an Officer of a Court, but in tee strictly legal sense applies only to an Officer who determines causes between parties or renders decision in a judicial capacity. Hitt. v. State 182 Miss 184, 181, So. 331; Allexander v. Holt 180 Ga. 397, 179, S E 77, 78. One who exercises judicial function. Adams v. State 214 Ind. 603, 17 N E 2d-84. 118 A L R 1095. A person in whom is vested authority to decide causes or exercise powers appropriate to a Court. Settle v. Van Evrea 49 N Y 284; People v. Willey 2 Cal. 203 ; Reid v. Hood; 2 Nott. & McC : SC 170, 10 Dec. 582." 22. It was argued that respondent 1 was a pleader of the judicial Commissioner, Baluchistan therefore, no fresh enrolment as err Advocate of a High Court is required because he has already joined service as Public Prosecutor in 1959, he had no right of private practice. Hence when questioned as to why respondent No. 1 after establishment of West Pakistan High Court or earlier failed to get himself enrolled as an Advocate as others amongst the pleasers practising at Quetta did, because there was no restriction in this regard except for paying court-for, and fulfilling some routine formalities, no worthwhile answer was given on behalf of respondent No. 1. The necessary conclusion may be that he is responsible for his own negligence in this regard which in the circumstances of this case cannot be rectified. His holding of office as Public Prosecutor for more than 17 years without getting himself enrolled as an advocate of High Court under Bar Council Act, it was argued shay by implication to be treated equal to that as an Advocate of High Court. To say the least, this argument has no basis whatsoever. To substantiate the argument that respondent No. 1 appeared in Judicial Commissioner's Court during early period of mere than ten years between 1947-1959 as a pleader, a copy of solitary order of that Court in a revision petition dated 10-2-1948 was filed. 23. As to respondent No. 1's claim having right of audience and appearing before the High Court of West Pakistan not a single judgment of High Court wherein respondent No. 1 appeared as of right even as Public Prosecutor was produced to substantiate.
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24. On the other hand it was argued by Mr. Nasir Aslam Zahid that Article 219 (1) of the Government of India Act, 1935 gives a list of the High Courts of the then British India but it clearly excludes the Judicial Commissioner's Court of Baluchistan as a High Court. Judicial Com--missioner's Courts of N.-W. F. P. and Chief Court of Sind were included and are defined as High Court of their respective areas. 'Therefore, in view of above clear constitutional provision which brooks no different or extended interpretation so as to include tae Judicial Commissioner's Court in Baluchistan as a High Court, simply for the reason the Legislature did not intend so. It follows, therefore that Judicial Commissioner. Court in Baluchistan was got a High Court, then the respondent is disqualified for the post for he is even up to now not qualified to be appointed as a Judge or Additional Judge of a High Court. 25. There is another circumtances which goes to show that at no time the then Government of India intended to include the Court of Judicial Commissioner, Baluchistan within the definition of High Court, if it would have so intended it would leave provided the same under Article 219 (1). This position remained uncharged, as submitted by tire counsel, up to 1940 when India and Burma (Miscellaneous Amendment) Act, 1940 was passed wherein by section 6, Article 219 (1) of the Government of India Act, 1935 was amended but again the name of Judicial Commissioner's Court at Baluchistan as a High Court is conspicuously absent. Section 6 is as under: "6. For the proviso to subsection (1) of section two hundred and nineteen of the principal Act (which enumerates the Courts in British India which are to be deemed to be High Courts for the purpose of that act) there shall be substituted the following proviso: Provided that, if provision has been made whether before or…
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