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Petitioner: METROPOLITAN CORPORATION, LAHORE VS Respondent: IMTIAZ HUSSAIN KAZMI
Court Name: Lahore High Court Judge(s): Ch. Mushtaq Ahmad Khan, Muhammad Aqil Mirza Title: METROPOLITAN CORPORATION, LAHORE vs IMTIAZ HUSSAIN KAZMI Case No.: Appeals Nos.170 to 174 of 1995 Date of Judgment:1996-01-29 Reported As: PLD 1996 Lahore 499 Result: Order accordingly
JUDGMENT
JUDGMENT ' MUHAMMAD AQIL MIRZA. J.--This order shall dispose of the following Intra-Court Appeals, as identical questions of law and facts are involved therein:-- (i) I.C.A. No,170/95, Metropolitan Corporation, Lahore v. Imtiaz Hussain Kazmi. (ii) I.C.A. No,171/95, Metropolitan Corporation, Lahore v. Shaukat Ali. (iii) I.C.A. No,172/95, Metropolitan Corporation, Lahore v. Zahid Razzaq. (iv) I.C.A. No,173/95, Metropolitan Coporation, Lahore v. Muhammad Ayub Zahid. (v) I.C.A. No,174/95, Metropolitan Coporation, Lahore v. Sardar Ali. 2. Four writ petitions forming subject-matter of the first four Intra-Court appeals referred to above, were decided by one consolidated judgment dated 20-3-1995 passed in Writ Petition No,10637 of 1994 while the last-mentioned intra-Court appeal was decided, subsequently by judgment dated 11-4-1995. The respondents in these appeals are the school teachers who were appointed under the orders of Mayor, Metropolitan Corporation, Lahore, respectively on 4-2-1993, 29-12-1992, 14-1- 1992, 14-12-1991 and 4-10-1991. Since after their appointments they have been performing their duties as school teachers under the appellant Metropolitan Corporation. Separate writ petitions were filed by the respondents by raising similar grievance that the salary has not been paid by the appellant to them despite the fact that they are continuously performing their duties as school teachers. Before the learned Single Judge, it was stated on behalf of the appellant that the salaries of the respondents have been withheld because their appointments were conditional and "till the lifting of the ban the salaries could not be paid". It was further stated that the case for regularization of their appointments had been sent to the Government of the Punjab but so far no effective step has been taken in the matter by the Government.
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3. The learned Single Judge accepted the writ petitions filed by the respondents on the ground that they having been allowed to work and perform their duties as teachers in schools run by the Metropolitan Corporation without any hindrance, their salaries cannot be withheld. Resultantly, the appellant was directed to pay the salaries to the respondents before the end of April, 1995. 4. The first four of the abovementioned Intra-Court Appeals, namely, I.C.A. No,170/95, I.C.A. No,171/95, I.C.A. No,172/95 and I.C.A. No,173/95 are barred by time by ten days, as per calculation made by the office. The applications for condonation of delay (C.M. No,2 of 1995 in each case) have been separately made on the averments "that no official copy and information has been made available to the office of the Administrator, Metropolitan Corporation, Lahore" and that the delay is not intentional". The impugned order passed by the learned Single Judge, however, reflects a different factual position. The impugned judgment was passed in open Court in the presence of the Legal Advisor of the M.C.L., the Chief Corporation Officer, the Assistant Education Officer and the Superintendent-General of the M.C.L. Therefore, it cannot be urged on behalf of the appellant Corporation that the impugned order was not in the knowledge of the functionaries of the Corporation. The applications for condonation of delay do not reflect the date on which the factum of passing of the impugned order came to the knowledge of the Administrator of the M.C.L. In these circumstances, no sufficient cause can be said to have been shown for not preferring the appeals within the prescribed period of limitation, and hence the applications for condonation of delay in all the four appeals are dismissed. Resultantly, all the four aforesaid appeals are dismissed in limine, being barred by limitation. The fifth I.-C.A. No,205 of 1995 though filed within the period of limitation, is liable to be dismissed on merits for the reasons hereinafter appearing. 5. It is not denied on behalf of the Metropolitan Corporation, Lahore that the respondents are performing their duties as school teachers for the last several years in pursuance of letters of - appointment duly issued by the competent Authority. So long as an employee remains in service and performs his duty, it is not open to any employer to withhold his salary. This subject has been beautifully discussed by our learned brother Sharif Hussain Bokhari, J. In Mst. Zaibun Nisa v. Government of Punjab 1995 CLC 1288 as under:-- "As observed, the petitioner has been performing duties as teacher in the schools maintained and controlled by the respondents, she is therefore, entitled to full emoluments in her grade and pay scale with all the admissible allowances, as there is no provision, neither the concept for service without salary under the relevant law. Under section 43 of the Punjab Local Government Ordinance, 1979 (hereinafter referred to as the Ordinance) Local Council may, on prescribed terms and conditions employ such servant as are necessary for the efficient performance of its functions and under section 46 (ibid), Government may by Rules prescribe scale or grade of pay for the servants of local councils. The prescribed rules are the 'Punjab Municipal Committees Service Rules, 1969' as adopted under the said Ordinance. ' The present situation, where the petitioner, a local council servant, is made to work without payment of salary for more than two years is against Islam which envisages payment of wages before sweat of toil is dried up. The performance of duties under these circumstances may also amount to forced labour which is forbidden by our Constitution, Article 11 whereof states in unequivocal terms that "All forms of forced labour and traffic in human beings are prohibited". ' In terms of Article 29 of the Constitution of the Islamic Republic of Pakistan, 1973 the respondents are duty bound to act in accordance with the Principles of Policy set out in Chapter 2, Part II of the Constitution in so far as they relate to their functions. These principles include equitable adjustment of rights between employers and employees; to provide for all citizens facilities for work and adequate livelihood; to provide for all persons employed in the service of Pakistan or otherwise Social Security, to provide basic necessities of life, such as food, clothing, housing, education and medical relief, for all such citizens, irrespective of sex, caste, creed or race, as are permanently or
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temporarily unable to earn their livelihood on account of infirmity, sickness or unemployment. The respondents,. By not paying salary to the petitioner for the past more than two years have acted contrary to these Principles of Policy. They exploited the situation and denied to the petitioner her valuable right to remuneration according to her grade which is also in violation of Article 3 of the Constitution, which casts duty on the State to eliminate all forms of exploitation and gradual fulfilment of the fundamental principle, from each according to his ability, to each according to his work." 6. While respectfully agreeing with the afore quoted observations of Sharif Hussian Bokhari, J., we are further of the view that provisions of Articles 9 and 14 of the Constitution were also inviolable in the special circumstances of these cases. Article 9 of the Constitutions guarantees protection to life as a Fundamental Right. This article reads as follows:-- "No person shall be deprived of life or liberty. Save in accordance with law." In the instant case it can he legitimately said that the right to life of the respondents employees of the Metropolitan Corporation stands seriously jeopardized. If an employee/servant is not paid his salary/wages for the work done by him for his employer, he is not expected to live a proper life. If he does not get his salary then how can he sustain himself and his family members. Even if he does not start and manages to keep his soul and body intact, his own life and those of his dependent members of the family are bound to heavily suffer in quality. The life as contemplated by Article 9 does not merely mean a vegetative life but it also includes a qualitative life which should ensure enjoyment of such other amenities and facilities as are enjoyed by a person born in a civilised society. The term 'life' used in Article 9 of the Constitution has been used in a wider sense, which means that a man should not be able only to sustain life but to enjoy it as well. 7. Similarly Article 14 of the Constitution which guarantees dignity of man is contravened when an employee/servant is denied his right to receive his salary/wages by him. Article 14, inter alia, commands "the dignity of man and, subject to law, the privacy of home, shall be inviolable". A man who is denied the fruit of the labour and work done by him is bound to live in a manner which will deprive him of his dignity. In order to save himself from starvation and keep himself alive, such a person will have to steal, beg or borrow. A person who is forced to do any such things must suffer in dignity. Similarly, to keep his dignity intact he must enjoy facilities and amenities of life of modest level according to his station in life. The respondents in these cases are the school teachers. By virtue of their status in society and requirement of their office they need clean clothings. They also require health, care, shelter and food for themselves and, their families. For all these things they ought to get their monthly salary in lieu of the duties they have been performing by teaching children in the school. The total effect of non-payment of salaries to the respondents is that they are suffering in honour and dignity and their quality of life is also adversely affected, and hence fundamental rights guaranteed under Articles 9 and 14 of the Constitution stand denied to them. The Hon'ble Supreme Court in Shahla Zia v. WAPDA PLD 1994 SC 693 made the following observations with regard to Article 9 of the Constitution:-- "The word 'life' is very significant as it covers all facets of human existence. The word ' life' has not been defined in the Constitution but it does not mean nor can be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally." 8. With reference to the combined effect of Articles 9 and 14 of the Constitution, the Hon'ble Supreme Court in the case of Shahla Zia (supra) made the following observations:- "Under our Constitution Article 14 provides that the dignity of man and subject to law, the privacy of home shall be inviolable. The fundamental right to preserve and protect the dignity of man under Article 14 is unparalleled and could be found only in few Constitutions of the word. The Constitution
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guarantees the dignity of man and also right to life under Article 9 and if both are read together, question will arise whether a person can be said to have dignity of man if his right to life is below their necessity like without proper food, clothing, shelter, education, health, care, clean atmosphere and unpolluted environment. Such questions will arise for consideration which can be dilated upon in more detail in a proper proceeding involved in such specific questions." 9. We have considered the circumstances involved in the instant cases, viz. That the respondents have been for years together denied their lawful right to receive salaries, although they are being made to perform their duties as school teachers without hindrance; and find that these cases do provide apt example of contravention of the fundamental rights provided by Articles 9 and 14 of our Constitution. 10. The submission made on behalf of the appellant Metropolitan Corporation, that the salaries have not been paid to the respondent school teachers because of the ban on recruitments and failure of the Punjab Government to regularize the appointments despite several requests in that behalf, may now be attended to. Even if sanction of the Provincial Government was required for the purpose of regularisation of the appointments of the respondents who were continuously performing their duties for the past several years, the same be presumed to have been accorded in the absence of specific refusal by the Punjab Government to regularise the appointment in question. When the respondents are in service without hindrance and the concerned functionaries of the Government being cognizant of this fact had not specifically decided to refuse regularisation of the appointments, it could legitimately be presumed that they had no objection to the regularisation of these appointments. If they had intended to refuse the regularisation they could have taken a positive decision in that behalf within a reasonable period of time. That being not done, it will have to be presumed that the Government had no objection to the appointments of the respondents as school teachers in the Metropolitan Corporation. On this ground the Metropolitan Corporation has neither legal nor moral basis for withholding the salaries of low-paid school teachers for several years. To say the least, it was callous on the part of the functionaries of the Metropolitan Corporation to have adopted an unreasonable technical excuse for withholding the salaries of the respondents. It may be clarified here that the presumption we have raised is peculiar to the circumstances of the cases in hand and it is not of general application nor should it be a precedent for other cases. 11. Before parting with this case it may be observed that salary is no longer a bounty of the State. The English theory of the bounty of the State. Was exploded long ago by our Supreme Court in Pakistan through General Manager, P.W.R., Lahore .v. Mrs. A.V. Issacs PLD 1970 SC 415. Salaries/wages are the rightful dues which the employees/servants must get from the employers without delay. 12. For what has been discussed above, I.-C.A. No,205 of 1995 also stands dismissed in limine. In addition to the ground of limitation, the first four appeals are also liable to be dismissed on merits, as discussed above. 13. The salaries of the respondent school teachers have not been paid on account of suspension of the impugned orders of the learned Single Judge, on the motion of the Metropolitan Corporation in the above appeals. Therefore, it is directed that the Administrator of the Metropolitan Corporation, Lahore shall pay the salaries and other admissible allowances to the respondents in all the five appeals with all despatch. To be more precise, the salaries for the months of January to April, 1996 shall be paid before 10th of May, 1996 while the remaining arrears shall be paid by 30th of June, 1996. Appeal dismissed. 1996 PLD Lahore 507 Before Malik Muhammad Qayyum, J Mst. HAMIDA BIBI and 4 others---Petitioners versus
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ABDUL MAJID and 3 others---Respondents Civil Revision No,1477-D of 1988, heard on 3rd March, 1996. Punjab Pre-emption Act (I of 1913)- ----S.15---Limitation Act (IX of 1908), Ss. 5 & 14---Civil Procedure Code (V of 1908), S.115---Filing of appeal in wrong forum---Effect on limitation---Entitlement to condonation of delay---Dismissal of pre-emption suit by Trial Court---Suit though valued at Rs,24,300 in plaint, plaintiff filing appeal against dismissal of suit in High Court instead of filing the same before District Judge on the wrong advice of his counsel---When appeal was filed in High Court, neither the office nor defendant raised objection to maintainability of appeal, which was heard and decided by High Court on merits in favour of plaintiff-pre-emptor---Order of High Court challenged in petition for leave to appeal before Supreme Court---Objection to competency of appeal before High Court was raised for the first time before Supreme Court ---Plaintiff, thus, could not be deemed to have acted mala fide or with contumacy---Where litigant had engaged counsel who had committed mistake due to carelessness by filing appeal before wrong forum, which was not attributable to any conduct of parties themselves, client could not be penalised---Plaintiff, on account of mistaken _advice of counsel had filed appeal before High Court and had paid court-fee on valuation of appeal; he had not derived any benefit out of such mistake but had suffered disadvantage inasmuch as if appeal had been valued at Rs,24,300 which was found by Supreme Court as correct value, no court-fee was required to be paid on appeal at all in view of exemption to pay court-fee on valuation of less than Rs,25,000---Judgment and decree of Appellate Court refusing to condone time spent in wrong forums in filing appeal was set aside and appeal was to be deemed to be pending before Appellate Court for decision afresh on merits.--[Counsel and client]. [p. 510, 511] A, B, C & D Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584; Nazar Muhammad and others v. Mst. Shahzada Begum and another PLD 1974 SC 22; Islam Din v. Allah Nawaz and others 1988 SCMR 2; Mst. Mahmooda Begum and others v. Major Muhammad Ishaq and others 1984 SCMR 890; Abdul Ghani v. Mst. Musarrat Rehana 1985 CLC 2529 and Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102 .Rel. Nazar Muhammad and others v. Mst. Shahzada Begum and another PLD 1974 SC 22; Islam Din v. Allah Nawaz and others 1988 SCMR 2; Mst.Mahmooda Begum and others v. Major Muhammad Ishaq and others 1984 SCMR 890; Abdul Ghani v. Mst. Musarrat Rehana 1985 CLC 2529 and Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102 ref. Muhammad Yaqoob Sindhu for Petitioners. Ata-ul-Mohsin Laic for Respondents. Date of hearing: 3rd March, 1996. JUDGMENT ' This petition under section 115 of Code of Civil Procedure seeks revision of the judgment and decree dated 6-4-1988 of the learned Additional District Judge, Gujranwala whereby the appeal filed by the appellant against the judgment and decree of the learned trial Court dated 25-11-1980 was dismissed as being barred by time. 2. In order to appreciate the contentions of the learned counsel for the parties reference to certain facts is necessary which are that on 25-11-1975 a suit was filed by the present petitioner-. Seeking to pre-empt sale of land measuring 162 Kanals 2 Marlas situated in 'village' Naurozepur, Tehsil Hafizabad, District Gujranwala by Amer Hayat to the respondent ostensibly for a sum of Rs,90,000. The suit was valued for the purposes of court-fee and jurisdiction at Rs,24,300 which was dismissed by the trial Court on 25-11-1980. Aggrieved by that decree an appeal was filed by the petitioner before this Court being R.F.A. No,47 of 1981 which was heard without any objection as to its competency the appeal was accepted by a Division Bench of this Court on 27-1-1985 . 3. The decision of this Court was challenged by the respondent by filing Civil Appeal No,25 of 1983 which was allowed by the Hon'ble Supreme Court on 2-5-1987 on the ground that as the valuation for the purposes of court-fee and jurisdiction had been fixed in the plaint at Rs,24,300 the appeal should have been filed in the District Court and as such the appeal filed by the petitioner in the
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High Court (R.F.A. No,47 of 1981) was not competent. As a consequence, the Supreme Court of Pakistan after setting aside the judgment and decree of this Court directed that the memorandum of appeal be returned to the present petitioner for presenting it before the appropriate Court. 4. Pursuant to that order the memorandum was returned to the petitioner who presented it before the District Court on 31-5-1987 along with an application, under sections 5 and 14 of Limitation Act, 1908, seeking exclusion for time spent by him in prosecuting the appeal before this Court, where it had been filed under a bona fide mistaken advice and with due indulgence. This application was rejected by the learned Additional District Judge on 6-4-1988 and the appeal was dismissed being barred by time. 5. In support of this petition Mr. Muhammad Yaqub Sindhu, Advocate has contended that R.F.A. No,47 of 1981 was filed by the petitioner under a bona tide mistaken advice rendered by his counsel that the appeal would lie before this Court and as such the petitioner is entitled to the exclusion of time spent by him in prosecuting the matter before the High Court. He has relied upon pronouncement of Supreme Court of Pakistan in Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584 as also on an earlier judgment of the Supreme Court in Nazar Muhammad and others v. Mst. Shahzada Begum and another PLD 1974 SC 22. 6. In reply Mr. Ata-ul-Mohsin Lak, learned counsel representing the respondent argued that as in the plaint the petitioner himself had fixed the valuation for the purposes of jurisdiction at Rs,24,300 question of having bona fide mistaken impression does not arise and that the first appeal was filed in this Court without any jurisdiction and the petitioner having not acted bona fidely is not entitled to any indulgence. He pointed out that while filing the first appeal before this Court the petitioner , had fixed the valuation of the appeal at Rs,80,000 without any reason or justification. Learned counsel further mentioned that in any case at the time when the appeal was presented before the High Court, the limitation for filing it in District Court had expired and consequently also even if the- period spent in prosecuting the appeal before this Court is excluded the appeal would be barred by 11 days. Reliance has been placed by the learned counsel on Islam Din v. Allah Nawaz and others 1988 SCMR 2, Mst. Mahmooda Begum and others v. Major Muhammad Ishaq and others 1984 SCMR 890, Abdul Ghani v. Mst.. Musarrat Rehana 1985 CLC 2529 and Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102. 7. Having heard the learned counsel for parties at length and perused the record as also going through the case-law I am of the view that in the circumstances of the case the learned Additional District Judge was clearly in error in refusing to condone the delay in filing the appeal.. The first thing to be noted in this behalf is that at the time when the appeal was filed in this Court no objection was raised by the office. Not only that but even subsequently at the time of hearing the respondent too did not object to the maintainability of the appeal but the two learned Judges of this Court heard the appeal and accepted it on merits. It was only for the first time before the Honourable Supreme Court that an objection to the competency of the first appeal before this Court was raised by the respondent which was allowed. In these circumstances it cannot be said that the appellant by filing the appeal before this Court had acted .Mala fidely or with contumacy. 8. It has been pointed out by the learned counsel for the petitioner on an objection raised by the respondent the trial Court while deciding the suit had held that the suit was not properly valued for the purpose of court-fee and jurisdiction. In these circumstances if the learned counsel representing the respondent has fixed the valuation of the appeal at Rs,80,000 that is the price at which according to the petitioner the respondent has purchased the property the learned counsel cannot be said to have acted in contumacious disregard of the law. 9. The question as to whether the mistaken advice rendered by a counsel constitutes sufficient cause for condonation of delay for such cause has been subject-matter of dispute before various Courts for a long period. Earlier the trend of authorities was that the mistaken advice of a counsel
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per se is not a ground for seeking condonation of delay, unless it is shown that the counsel has acted with the diligence and was misled into filing the appeal before the wrong forum on account of some confusion in law. The situation appears to have been dramatically changed by the judgment of the Supreme Court in Sherin's case supra where the Hon'ble Supreme Court has laid down that if the litigant engages a counsel who commits a mistake due to carelessness by filing the appeal before the wrong forum which is not attributed to any conduct of the parties themselves the client cannot be penalised. The following observation in Sherin's case was instructive and may be reproduced with advantage: "In the present case record showed that out of five appellants four were utterly illiterate. This was inferable from the factum of thumb-impressions put by them on the documents forming part of the trial Court's file. Fifth appellant was not an educated person and presumably…
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