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Petitioner: MUHAMMAD ASLAM VS Respondent: DIVISIONAL ENGINEER, PAK. RAILWAYS and 4 others
Court Name: Supreme Court of Pakistan Judge(s): Saleem Akhter, Muhammad Afzal Zullah, Wali Muhammad Khan Title: MUHAMMAD ASLAM vs DIVISIONAL ENGINEER, PAK. RAILWAYS and 4 others Case No.: Civil Appeal No, 1337 of 1990 Date of Judgment:1993-01-18 Reported As: 1993 SCMR 1017 Result: Appeal allowed
JUDGMENT
JUDGMENT ' MUHAMMAD AFZAL ZULLAH, C.J.---This appeal through leave of the Court has arisen out of a service matter. The leave to appeal was granted as follows:-- "This is a petition for leave to appeal against the order of Federal Service Tribunal, Islamabad, dated 30-6-1990. The petitioner was serving in the Pakistan Railways as I.O.W. He had 37 years of service at his credit but on 31st July, 1984 he was served with a charge-sheet by the Divisional Engineer alleging that the petitioner was inefficient and responsible for shortage of 965514 cft. Of ballast and he was directed to deposit an amount of Rs,13,91,349. A reply was submitted by the petitioner denying the charge but he was proceeded against departmentally and an enquiry conducted against him. A joint enquiry committee consisting of AEN I, Lahore and APO-2, Lahore found the petitioner guilty of the charges levelled against him. The Divisional Engineer-II, Lahore served a show-cause notice upon the petitioner on 7-7-1987. The petitioner was, however, found guilty and a major penalty was imposed upon him and he was removed from service on one month's pay in lieu of one month's notice on 26-7-1987. The appeal of the petitioner before the departmental authority had failed and so was his appeal before the Service Tribunal. ' The learned counsel for the petitioner has been heard. He contended, inter alia, that the petitioner was a Grade-12 railway employee. The Divisional Engineer who is a Grade-18 Officer was not competent to issue the charge-sheet as it is only the Deputy Head of the department in Grade-19 who is an Authorised Officer in the case of the petitioner according to the list of Authorities/Authorised Officers in sub-rule (2) and (3) of Rule 2 of the Railway Servants (Efficiency and Discipline) Rules of 1975 as shown ih Schedule V, thus rendering the entire proceedings as
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without jurisdiction. He submitted that this point was urged before the Service Tribunal which was taken note of but has not at all adjudicated upon. After hearing the learned counsel we think that the case requires consideration." 2. It is not denied that the following argument in this case is important: "The Divisional Engineer, who is a Grade-18 Officer was not competent to issue the charge-sheet as it is only the Deputy Head of the department in Grade-19 who is an Authorised Officer in the case of the petitioner according to the list of Authorities/Authorised Officers in sub-rules (2) and (3) of Rule 2 of the Railway Servants (Efficiency and Discipline) Rules of 1975 as shown in Schedule V, thus, rendering the entire proceedings as without jurisdiction." However, it is not denied also that the question raised in the above argument is mixed one of law and fact. Even the legal part is confined to the particular case of the appellant. It is not one of general importance. If we resolve the same by examining the facts and circumstances of this case it will be a decision relevant only to the present case. Hence it is not a case in which a question of law of "public importance" is involved. Article 212 of the Constitution is thus not attracted/satisfied. 3. When we pointed out. This difficulty in proceeding any further with the appeal learned counsel for the appellant tried to argue that it is a special case in which the appellant alone has been awarded somewhat harsh punishment. One of his colleagues was only retired and may be mine more not at all proceeded. Against. 4. The statement made by the learned counsel does show a disturbing situation in so far as the dictates of justice and equal treatment before law is concerned but the remedy here is not the one: that who has been rightly punished should also be granted benefits which were allowed to the others while they were not entitled to them. If some other persons are guilty and they have not properly been punished steps can be taken to punish them also properly, if they are guilty. But on that account the appellant cannot be allowed the benefit of acceptance of this appeal. The same, accordingly, is dismissed. ' Appeal dismissed. 1993 SCM R 1019 [House of Lords] [ (1992) 3 WLR 1032] 1991 Nov. 4 Lord Bridge of Harwich, Lord Emslie, Lord Gnffiths, Lord Oliver of Aylmerton and Lord Browne-Wilkinson 1992 June 8. 9. 10. 11,17, 18: Nov. 26 Lord Mackay of Clashfem, L.C., Lord Keith of Kinkel, Lord Bridge of Harwich, Lord Griffiths, Lord Ackner, Lord Oliver of Aylmerton and Lord ,Browne-Wilkinson PEPPER (INSPECTOR OF TAXES)--Respondent versus HART--Appellant Appeal from the Court of Appeal, decided on 26th November, 1992. (a) Statute-- ----Construction---Reference to Parliamentary proceedings as aid to, permissible---Roll of Parliamentary reports and other material in identifying the mischief aimed at, stated-- Statute law consists of the words that Parliament has enacted. It is for the Courts to construe those words and it is the Court's duty in so doing to give effect to the intention of Parliament in using those words. It is an inescapable fact that, despite all the care taken in passing legislation, some statutory provisions when applied to the circumstances under consideration in any specific case are found to be ambiguous. Why in such a case should the Courts blind themselves to a clear indication of what Parliament intended in using those words? The Court cannot attach a meaning to words which they cannot bear, but if the words are capable of bearing more than one meaning why should not Parliament's true intention be enforced rather than thwarted. The Courts can now
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look at white papers and official reports for the purpose of finding the 'mischief sought to be corrected, although not at draft clauses or proposals for the remedying of such mischief. A ministerial statement made in Parliament is an equally authoritative source of such information: why should the Courts be cut off from this source of information as to the mischief aimed at? In any event, the distinction between looking at reports to identify the mischief aimed at but not to find the intention of Parliament in enacting the legislation is highly artificial. The conclusion, therefore, is that parliamentary material can be used as an aid to the construction of statute where: (i) legislation is ambiguous or obscure, or leads to an absurdity; (ii) the material relied upon consists of one or more statements by a Minister or other prompter of the Bill together if necessary with such other parliamentary material as is necessary to understand such statements and their effect; (iii) the statements relied upon are clear. [pp. 1045, 1051] E & G (b) Interpretation of statutes--- ----Purposive approach---Looking at parliamentary debates as an aid---Need for looking at an extraneous material bearing upon the background against which the legislation was enacted, emphasised. The ever increasing volume of legislation must inevitably result in ambiguities of statutory language which are not perceived at the time the legislation is enacted. The object of the Court in interpreting legislation is to give effect, so far as the language permits, to the intention of the legislature. If the language proves to be ambiguous there is no sound reason not to consult Hansard (official record of parliamentary debates in U.K.) to see if there is a clear statement of the meaning that the words are intended to carry. The days have long passed when the Courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The Courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted. Why then cut ourselves off from the one source in which may be found an authoritative statement of the intention with which the legislation is placed before Parliament. [p. 1026] B (c) Parliamentary privilege-- --Reference to parliamentary proceedings as aid to construction of statute does not constitute a breach of parliamentary privilege. It was contended that reference to parliamentary proceedings as aid to construction of statute might be violative of Article 9 of the Bill of Rights, 1688 and might breach the privileges of parliament. Held, the use of Parliamentary debate as an aid to resolving an ambiguity in .a statute does not involve breach of parliamentary privilege. [pp. 1023, 1026, 1030, 1049, 1056] A, C, D, F & H (d) Parliamentary privilege-- --Courts to decide existence of the privilege---Parliament to decide the infringement of the privileges---[(1991) 2 WLR 483 reversed.]. Although in the past the Courts and the House of Common both claimed the exclusive Tight to determine whether or not a privilege existed, it is now accepted that it is for the Courts to decide whether a Parliamentary privilege exists or not, and it is for the Parliament to decide whether such privilege has been infringed or not [p. 1056] I (1991) 2 WLR 483 reversed. Stephen Oliver Q.C. And Jeremy Woolf for the Taxpayers at the first hearing. Alam Moses Q.C. And Timothy Brennan for the Crown at the first hearing. Anthony Lester Q.C. Jeremy Woolf and Clive Sheldon for the Taxpayers at the second hearing. Sir Nicholas Lyell Q.C., A.-G. Alan Mases .Q.C., Timothy Brennan and Rabinder Singh for the Crown at the second hearing. Kenwright & Cox for Jagger Son & Tilley, Birmingham; Solicitor of Inland Revenue. Dates of hearing: 4th November, 1991; 8th to 11th, 17th, 18th June and 26th November, 1992. JUDGMENT
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' LORD MACKAY OF CLASHFERN, L.C. [26th November].---My Lords, I have had the advantage of reading in draft the speech of my noble and learned friend. Lord Browne-Wilkinson. I respectfully adopt his narrative of the proceedings in this appeal and his account of the statutory provisions by reference to which it falls to be decided. ' A fact which I regard as crucial to the decision of these appeals if stated by the special commissioner (1990) S.T.C. 6, 11 F-G, as follows: "on the facts, the taxpayers' sons occupied only surplus places at the college and their right to do so was entirely discretionary." ,I regard it as important, in considering the benefit which is to be subject to taxation that the benefit should be identified. The benefit which the taxpayers in this case received was the placing of their children in surplus places at the college, if as a matter of discretion the college agreed to do so. As I read the stated case there was no question of the taxpayers being entitled to have their children educated at the school. They were in a similar position to the person coming along on a standby basis for an airline seat as against the passenger paying a full fare, and without the full rights of a standby passenger, in the sense that the decision whether or not to accommodate them in the college was entirely discretionary. If one regards the benefit in this light I cannot see that the cost incurred in, or in connection with, the provision of the benefit, can properly be held to include the cost incurred, in any event, in providing education to fee paying pupils at the school who were there as a right in return for the fees paid in respect of them. The expenses incurred by the college - were all incurred necessarily in order properly to provide for these pupils. No further expense over and above that was incurred in, or in connection with the provision of surplus places to the taxpayers' children. Although the later words of section 63(2) provide that the expense incurred in, or in connection with, the provision of a benefit includes a proper proportion of any expense relating partly to the benefit and partly to other matters, I consider that the expenses incurred in provision of places for fee paying pupils were wholly incurred in order to provide those places. The benefit conferred upon the taxpayers was one which logically followed only when it was determined that there were surplus places and the authorities of the college in their discretion agreed to admit the taxpayers' children to these places. This decision was the decision to provide the benefit to the taxpayers' children and this decision involved no further expense on the college. I conclude that looking at the matter from the point of view of expense incurred and not from the point of view of loss to the emloyer no expense could be regarded as having been incurred as a result of the decision of the authorities of the college to provide this particular benefit to the taxpayer. ' Notwithstanding the views that have found with others I consider this to be a reasonable construction of the statutory provisions and I am confronted in the fact that, apart from an attempt to tax airline employees, which was taken to the Special Commissioners who decided in favour of the taxpayer, this has been the practice of the Inland Revenue in applying the relevant words where they have occurred in the Income Tax Acts for so long as they have been in force, until they initiated the present cases. ' At the very least it appears to me that the manner in which I have construed the relevant provisions in their application to the facts in this appeal is a possible construction and that any ambiguity there should be resolved in favour of the taxpayer. ' For the reason I would allow these appeals, I should perhaps add that I was not a member of the committee who heard these appeals in the first hearing since I became involved only when your Lordships who sat in the first hearing suggested a second hearing under chairmanship and accordingly I have not been asked to consider this matter apart from the discussion of the extracts from Hansard which have been put before us in this appeal. However, this is the conclusion that I would have reached apart altogether from considering Hansard. ' But much wider issues than the construction of the Finance Act, 1976 have been raised in these appeals and for the first time this House has been asked to consider a detailed argument upon the
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extent to which reference can properly be made before a Court of law in the United Kingdom to proceeedings in Parliament recorded in Hansard. ' For the appellant Mr. Lester submits that it should now be appropriate for the Courts to look at Hansard in order to ascertain the intention of the legislators as expressed in the proceedings on the Bill which has then been enacted in the statutory words requiring to be construed. This submission appears to me to suggest a way of making more effective proceedings in Parliament by allowing the Court to consider that has been said in Parliament as an aid to resolving an ambiguity which may well have become apparent only as a result of the attempt to apply the enacted words to a particular case. It does not seem to me that this can involve any impeachment, or questioning of the freedom of speech and debates or proceedings in Parliament, accordingly I do not see how such a use of Hansard can possibly be thought to infringe Article 9 of the Bill of Rights and I agree with my noble and learned friend's more detailed consideration of that matter. ' The principal difficulty I have on this aspect of the case is that in Mr. Lester's submission reference to Parliamentary material as an aid to interpretation of a statutory provision should be allowed only with leave of the Court and where the Court is satisfied that such a reference is justifiable: (a) to confirm the meaning of a provision as conveyed by the text, its object and purpose; (b) to determine a meaning where the provision is ambiguous or obscure; or (c) to determine the meaning where the ordinary meaning is manifestly absurd or unreasonable. ' I believe that practically every question of statutory construction that comes before the Courts will involve an argument that the case falls under one or more of these three heads. It follows that the parties' legal advisors will require to study Hansard in practically every such case to see whether or not there is any help to be gained from it. I believe this is an objection of real substance. It is a practical objection not one of principle, and I believe that it was the fundamental reason that Lord Reid, for example, considered the general rule to be a good one as he said in the passage my noble and learned friend has cited from Beswick v. Beswick (1968) A.C. 58m 74-A. Lord Reid's statement is, I think, worthy of particular weight since he was a parliamentarian of great experience as well as a very distinguished judicial member of your Lordships' House. It is significant that in the following year, in his dissenting speech in Reg. v. Warner (1969) 2 A.C. 256, 279, he, while agreeing with the general rule, was prepared to consider an exception from it although not that the time was right to do so. But the exception he contemplated was in respect of a particular type of statute, namely, a statute creating criminal liability in which the question was whether or not a guilty intention was required to create liability. Now that type of exception would mean that the practical difficulties to which he referred would not arise except in the comparatively few cases that arise of the particular type. The submission which Mr. Lester makes on the other hand is not restricted by reference to the type of statute and indeed the only way in which it could be discovered whether help was to be given is by considering Hansard itself. Such an approach appears to me to involve the possibility at least of an immense increase in the cost of litigation in which statutory construction is involved. It is of course easy to over estimate such cost but it is I fear equally easy to underestimate it. Your Lordships have no machinery from which any estimate of such cost could be derived. Two inquiries with such machinery available to them, namely, that of the Law Commission and the Scottish Law Commission, in their Joint Report on the Interpretation of Statutes (1969) (Law Corn. No,21) (Scot. Law Corn. No,11) and the Renton Committee Report on the Preparation of Legislation (1975) (Cmnd. 6053), advised against a relaxation on the practical grounds to which I have referred. I consider that nothing has been laid before your Lordships to justify the view that their advice based on this objection was incorrect. ' In his very helpful and full submission Mr. Lester has pointed out that there is no evidence of practical difficulties in the jurisdictions where relaxations of this kind have already been allowed,
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but I do not consider that, full as these researches have been, they justify the view that no substantial increase resulted in the cost of litigation as a result of these relaxations, and, in any event, the Parliamentary processes in these jurisdictions are different in quite material respects from those in the United Kingdom. ' Your Lordships are well aware that the costs of litigation are a subject of general public concern and I personally would not wish to be a party to changing a well-established rule which could have a substantial effect in increasing these costs against the advice of the Law Commissions and the Renton Committee unless and until a new inquiry demonstrated that that advice was no longer valid. ' I do not for my part find the objections in principle to be strong and I would certainly be prepared to agree the rule should no longer be adhered to were it not for the practical consideration to which I have referred and which my noble and learned friend agrees to be of real substance. Reference to proceedings in Parliament has already been allowed in Pickstone v. Freemans PLC (1989) A.C. 66 without, I think, any argument upon whether or not it was permissible for, ascertaining the purpose of subordinate legislation and also in other cases for ascertaining the purpose for which a power to make subordinate legislation was used. I believe that such statements are likely to be readily identified in Parliamentary proceedings and the cases in which they are relevant will be determined by the nature of the subject-matter. Allowing reference to Hansard in such cases does not have the large practical consequences to which I have referred. If reference to Parliamentary material is permitted as an aid to the construction of legislation which is ambiguous, or obscure or the literal meaning of which leads to an absurdity, I believe as I have said that in practically every case it will be incumbent on those preparing the argument to examine the whole proceedings on the Bill in question in both Houses of Parliament. Question of construction may be involved on what is said in Parliament and I cannot see how if the rule is modified in this way the parties' legal advisers could properly come to Court without having looked to see whether there was anything in the Hansard Report on the Bill which could assist their case. If they found a passage which they thought had a bearing on the issue in this case, that passage would have to be constructed in the light of the proceedings as a whole. ' I fully appreciate and feel the force of the narrowness of the distinctions which are taken between what is admissible and what is not admissible, but the exception presently proposed is so extensive that I do not feel able to support it in the present state of our knowledge of its practical results in this jurisdiction. For these reasons, I agree that these appeals should be allowed, although I cannot agree on the main issue, for the discussion of which this further hearing was arranged. ' LORD KEITH OF KINKEL.---My Lords, for the reasons set out in the speech to be delivered by my noble and learned friend, Lord Browne-Wilkinson, which I have had the opportunity of considering in draft and with which I agree, I would allow this appeal. ' LORD BRIDGE OF HARWICH.---My Lords, I was one of those who were in the majority at the conclusion of the first hearing of this appeal in holding the opinion that section 63 of the Finance Act, 1976, construed by conventional criteria, supported the assessments to income-tax made by the revenue on the appellants which had been upheld by Vinelott, J. And the Court of Appeal. If it were not permissible to take account of the Parliamentary history of the relevant legislation and of ministerial statements of its intended effect, I should remain of that opinion. But once the Parliamentary material was brought to our attention, it seemed to me, as, I believe, to others of your Lordships who had heard the appeal first argued, to raise an acute question as to whether it could possibly by right to give effect to taxing legislation in such a way as to impose a tax which the Financial Secretary to the Treasury, during the passage of the Bill containing the relevant provision, had, in effect, assured the House of Commons it was not intended to impose. It was this
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which led to the appeal being re-argued before the Appellate Committee of seven which now reports to the House. ' Following the further arguments of which we have bad the benefit, I should find it very difficult, in conscience, to reach a conclusion adverse to the appellants on the basis of a technical rule of construction requiring to ignore the very material which in this case indicates unequivocally which of the two possible interpretations of section 63(2) of the Act of 1976 was intended by Parliament. But, for all the reasons given by my noble and learned friend, Lord Browne-Wilkinson, with whose speech I entirely agree, I am not placed in that invidious situation. ' It should, in my opinion, only be in the rare cases where the very issue of interpretation which the Courts are called on to resolve has been addressed in Parliamentary debate and where the promoter of the legislation has made a clear statement directed to that very issue, that reference to Hansard should be permitted. Indeed, it is only in such cases that reference to Hansard is likely to be of any assistance to the Courts. Provided the relaxation of the previous exclusionary rule is so limited, I find it difficult to suppose that the additional cost of litigation or any other ground of objection can justify the Court continuing to wear blinkers which, in such a case as this, conceal the vital clue to the intended meaning of an enactment. I recongnise that practitioners will in some cases incur fruitless ,costs in the search for such a vital clue where none exists. But, on the other hand, where Hansard does provide the answer, it should be so clear to both parties that they will avoid…
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