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Petitioner: STANDARD BANK LTD., KARACHI VS Respondent: SUB-DIVISIONAL MAGISTRATE, KARACHI JUDGMENT
Court Name: Sindh High Court Judge(s): Muhammad Haleem, Ghulam Rasool K. Shaikh Title:STANDARD BANK LTD., KARACHI vs SUB-DIVISIONAL MAGISTRATE, KARACHI
JUDGMENT
Reported As: 1974 PLC 138 Result: Petition accepted Judgment JUDGMENT GHULAM RASOOL K. SHAIKH J. This constitutional petition has been filed to assail the award passed by the Sub-Divisional Magistrate, Old Town, Karachi, acting as arbitrator, under Martial Law Order 52, issued by the Governor of Sind and Martial Law Administrator, Zone 'D'. Ganga Ram, respondent No. 3 claimed that he was an employee of the petitioner-Bank, working as an officer Grade III and in discharge of his functions, he held the power of attorney conferred by the Bank. On 18th January 1970, a bank draft purported to be for Rs. 19,000 issued by Sukkur Branch of the Bank, was received for payment in the branch, respondent No. 3 was working as incharge of the Draft Branch. The draft was cleared and cashed, without any advice having been received from Sukkur Branch. The respondent appeared to have sent a reminder to Sukkur Branch on 16-1-1970 i.e. After a delay of b days of the clearance of the draft and a triplicate advice was received on 20th April 1973, showing that the amount of the draft was 100 only. In spite of this advice the respondent neither took any action nor informed the Manager, Zonal Office or Head Office. After about a year on reconciliation of the accounts it was discovered that fraud was committed and there had been manipulation in the draft by changing the amount from Rs. 100 to Rs. 19,(00. On the detention of this fraud the respondent No. 3 was charge-sheeted on 31 March 1971. He submitted the explanation. After due inquiry, the respon--dent was found guilty of the gross negligence, wilful suppression of the information of the fraud and was dismissed by order dated 7 April 1971. Against this, he made a representation to the Board of Directors of the Bank. At the meeting held on 14-9-1971, the Board of Directors rejected the representation of the respondent for re-instatementst th
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but on compassionate ground gave option to him to resign from service. It appears that this option was not exercised. On 28th March 1972. Martial Law Administrator, Zone 'D' (Governor of Sind) promulgated Martial Law Order No. 52 in exercise of the powers conferred on him by Martial Law Order No. 5 promulgated-by the Chief Martial Law Administrator allowing the workmen aggrieved by the termination of their employment as a result of retrenchment, dismissal, discharge, lay of, lock-out or otherwise on or after Ist January 1971, to make an application to the Arbitrator appointed under the Order and having jurisdiction in the area in which the industry or the commercial establishment concerned was situated. In pursuance of this Martial Law Order various S. D. Ms were appointed as Arbitrators to receive and decide such grievances within their jurisdiction. Respondent No. 3 availed of the opportunity thus afforded by the Martial. Law Order and made an application dated 13th April 1972, to S. D. M., Old Town, Karachi, acting as arbitrator under the Martial Law Order. No further step could be taken on this application as on 21st March 1971, the Martial Law was lifted and the Interim Constitution of the Islamic Republic of Pakistan was enforced. It further appears that proceedings were kept in abeyance and the advice of the Law Department was sought. On the advice having been received the proceedings were resumed and a notice dated 4th July 1972, was issued by the Arbitrator to the petitioner for 15th July 1972. Reply to this was filed on 5th August 1972, and then the proceedings were adjourned to 9th August 1972. On the adjourned hearing the petitioner filed further objections. The proceedings were adjourned to 15-8-1972 for final hearing. On that date the preliminary objections were filed and the proceedings were adjourned to 23rd August 1972, on which date the arguments were heard. The award was given on the following day i.e. 24th August 1972. Aggrieved by this the present petition was filed. The learned counsel for the petitioner raised the following pleas at the time of arguments: (1) The respondent was not workman but an attorney and, therefore, Martial Law Order No. 52 was riot attracted. (2) The award had to be passed within 7 days of the date of the appearance of the parties as laid down by Article No. 7 of Martial Law Order No. 52 and since the award was made beyond that period, it was illegal and without jurisdiction. (3) The Martial Law was lifted and, therefore, Martial Law Regulation and Orders came to an end and that being so the office of the Arbitrator being Martial Law authority was abolished and his powers lapsed and no proceedings could be taken under Martial Law Order No. 52 much less any award could be given. It was also pleaded that the award was not saved by Article - 295 of the Interim Constitution. (4) The award suffered from serious patent defects liable to be set aside inasmuch as no finding on merit was given and the law was ignored. (5) There was no provision in Martial Law Order No. 52 investing the arbitrator with the powers of review and furthermore the review order itself was perverse and not Supported by the material on record. Taking up the first contention we are inclined to agree with the learned counsel for the petitioner that the respondent No. 3 was not a workman but simply an attorney. The terms "Employer" and "Workman" according to Martial La order No. 52 have the same meaning as have been assigned to them in A the West Pakistan Industrial and Commercial Employment (Standing Orders Ordinance,, 1968, which read as under: "Employer" means the owner of an industrial or commercial establishment to which this Ordinance for the time being applies, and includes- (i) in a factory, any, person named under clause (e) of subsection (1) of section 9 of the Factories Act, 1934 (XXV of 1934) as manager of the factory ;
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(ii) in any industrial establishment under the control of any department of the Central or any Provincial Government, the authority appointed -by such Government in this behalf, or where no such authority is so appointed, the head of the department; (i.e) in any other industrial or commercial establishment, any person 'responsible to the owner for the supervision and control of such establishment. "Workman", means *any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical (work for hire or reward. The meanings assigned to these two terms make it abundantly clear that only persons' doing skilled or unskilled, manual or clerical work are covered by the Ordinance. Those employed in Supervisory, administrative or managerial capacity are excluded from its scope. , Thus the nature of work performed is, the deciding factor, regardless of the pay or designation. The view taken by the Arbitrator cannot be supported by the power of attorney, which has been produced. Bare perusal of the power of attorney shows that these were the powers of the owner or the management, which had been delegated to the respondent No. 3. It may be noted that the petitioner is a bank and although a juristic person but all its functions have to be performed through a Board of Directors whether individually or collectively according to the charter of the bank and other laws applicable. Almost all the powers, which were conferred upon the respondent are of the owners or the management. Take for instance the powers of supervision, sale, mortgage, lease and the performance of all other functions pertaining to the bank. These powers could not be exercised by a subordinate or a clerk or 'a workman as defined by the Ordinance. It maybe that in the discharge of his duties and the performance of functions he had to do some clerics job but these are incidental. The main job of 'the respondent was to act on behalf of the management and perform all such functions as were necessary for the effective and efficient cannot and management of the bank.. He was, therefore, functioning in an administrative capacity, and belonged to a superior category, distinct from and above the body of manual and clerical workers. Martial Law Order No. 52 was intended to settle dispute between two categories viz. Employer on one side and workman on the other. A person employed in the superstructure could not be permitted to raise the dispute and approach the Arbitrator for determination of the dispute and redress of his grievance, whatever he had. The award of the arbitrator is simply based on some of the clerical duties, which the respondent had to perform and completely ignored his main duties. In this connection the pertinent observation made in the case of Chairman, Brooke Bond v. General Secretary, Union (PLD 1969 Lah. 717) may be noted. It reads as under: "A `workman' is employed in an industry to do skilled or unskilled work which is `manual or clerical'. Manual work entails physical exertion to distinguish from the mental or intellectual exertion involved in the clerical work. But both the manual and clerical work, in the sense these terms are used here, connotes that it is more or less a routine work, not requiring any great amount of initiative, imagination, direction, control and supervision in discharging the same. The true nature of the duties performed by the employee is the determining factor in ascertaining if he was a workman or not within this definition. In case the manual work forms only a small and auxiliary part of his responsibilities or he- is incidentally required to prepare a statement, maintain a register or submit a report, he cannot be considered to be a workman if otherwise his main and primary duties do not belong to this category. The true test, therefore, is to look to the direct, immediate and the substantial part of the work for which he is employed and not to the sundry duties incidentally performed by him. The true answer to this question will, therefore, depend upon the proved facts in each case." According to the arbitrator it was irrelevant to consider whether the person was a supervising officer or a manager. This view is clearly contrary to the duties of the respondent and against the
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spirit and the main principle of the various laws regulating the relations between the employer and the workmen and supplying means to maintain overall harmonious relations between the two categories. Although the arbitrator considered that the respondent was signing various documents as an officer yet he entertained the view that the respondent was a workman. Reasons given by the learned arbitrator are contrary to the status enjoyed by the respondent as is evident from the duties and functions which he had to perform according to the power of attorney. Thus the arbitrator had no jurisdiction to entertain the application made by the respondent and, therefore, the award is without jurisdiction and without lawful authority. PLD 1965 SC 698): "A purely administrative officer who is empowered to pass an order if certain circumstances exist has no jurisdiction to determine those circumstances and the objective existence of those circumstances is an essential condition of the validity of his order. In respect of every order passed by him the Court can make an enquiry and if it finds that all the circumstances needed "or passing the order were not present it will declare the order to be void. Of course, although the officer has been granted no jurisdiction to determine any facts he will have to ascertain whether the requisite circumstances exist for otherwise he cannot pass the order, but his conclusion as to the existence of those circumstances binds nobody and it is open to any person affected to challenge his act on the ground that those circumstances do not in fact exist. An administrative officer or authority may be given jurisdiction to determine some facts on proof of which he can pass an order and in that case he will act in a quasi judicial manner for the determination of those facts and his determination validly reached will support his order in relation, to those facts. . . So far as special judicial tribunals are concerned they are given jurisdiction to determine certain facts but they are not Judges of the facts, which are the foundation of their jurisdiction nor can they define the limits of their own jurisdiction. It is possible, of course, that special tribunal may be made the Judge of its own jurisdiction, but this would be a very exceptional provision and one which should be made by altogether clear words." To the same effect the following observations were made in the case of State of Bombay v. Laxmidas Ranchoddas and another (AIR 1952 Bom. 468) "According to the Bombay Land Requisition Act, 1948, it is only the premises to which the Act applies which can be requisitioned of its falling vacant. No discretion is given to the Government and the question whether the premises are the premises to which the Act applies is to be determined as an objective fact. Therefore, the High Courts can issue mandamus if it is not established that the order of requisition was in respect of such premises. If the Court, is satisfied that Government or any Government officer is acting contrary to statute or is contravening the limitations laid down upon the exercise of his power, the Court would interfere by a writ of mandamus and compel hire to forbear from so acting." Apart from this, the rights, duties 'and obligations of the respondent are embodied in the power of attorney which was the sole evidence produced before the arbitrator and formed the basis of his decision. This document being the direct foundation of the claim of the respondent, can be examined as its proper legal' effect, which in my humble opinion, is essentially a question of law. In this connection the proposition laid by the Judicial Committee of the Privy Council in the case of Wali Muhammad and others v. Muhammad Bakhsh and others ((1929-30) 57 1 A 80), as to what are and what are not questions of law, may be read with advantage. Taking tip the next contention that the award had to be made within seven days from the date of the appearance as laid clown in Article 7 (1) of the Martial Law Order 52 and since this was not done, the award was illegal and without jurisdiction, I find no force in this contention for the simple, reason that the provision is directory and not mandatory, and therefore, non-compliance does not render the award illegal or without jurisdiction: It seems that the learned counsel or the petitioner
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based his contention on the analogy of an arbitration under the Arbitration Act which fixes the time limit for making the award unless, time has been extended by the Court. The learned counsel however, ignored the fact that even in that case the Court has the power to enlarge the time for making the award, even after the award has been made. But that analogy can not be extended to a statutory arbitration and the award made by a public functionary in discharge of his official duties. There is nothing in the Martial Law Order providing any consequence on account of not making the award within the time prescribed by Article 7 (1) of the Martial Law Order. This principle has been fully discussed in Maxwell on Interpretation of Statutes as under "Where powers, rights or immunities are granted with a direction that certain regulations, formalities or conditions shall be complied with, it seems, neither unjust nor inconvenient to exact a rigorous observance of them as essential to the acquisition of the right or authority conferred, and it is, therefore, probable that such was the intention of the Legislature. But when a public duty is imposed and the statute requires that it shall be performed in a certain manner, or within a certain time, or under other specified conditions, such prescriptions may well be regarded us intended to be directory only in cases when justice or inconvenience to others who have no control over those exercising the duty would result if such requirements were essential and imperative." This principle, was approved by the Supreme Court in the case of Sutlej Cotton Mills Ltd. v. Industrial Court (PL D 1966 SC 472) The relevant observation reads as under: "This section does not itself provide the consequence of such failure on the part of the Conciliation Officer nor have the parties before the conciliation officer any control over his actions. In the cir-- cumstances, the direction in the statute as to the time within which the conciliation officer is to perform a public duty cannot be regarded as a mandatory provision." Reference may also be made to the case of Pakistan Petroleum Workers Federation v. Burmah- Shell Oil Storage & Distributing Company of Pakistan Ltd. (PLD1961SC479). The relevant observation reads as under: "Mr. Fazlur Rehman's argued that the provisions of section 15 (PLD1964SC633) of the Act which limit the time for the making of an award by a Tribunal should be strictly construed, and that at any rate if the making of the award take place after the expiry of the time limited, it must be assumed that this is illegal and the award has been made without jurisdiction. There is, however, another aspect of these provisions for limitation of time, and that is that they express the intention of the Legislature that industrial disputes shall be taken tip for investigation and shall be enquired into and either reported upon adjudicated upon with the greatest possible expedition.In employing the expression "shall submit its award within in a period not exceeding three months from the date of the reference", the emphasis may well be upon expedition, without making the validity of the action depend upon the exact observance of the limit of time. This interpretation is supportable by the consideration that the jurisdiction is given to a Tribunal, not in relation to any outside factor which imposes a time limit upon the necessity for that jurisdiction, but simply that the Tribunal should decide the matter. Instances of the other kind readily come to mind. During the Second World War, a great number of special jurisdictions were created under rules and other instruments, which came to an end with the War. In cases of emergency such as those brought about by disturbances in particular areas, special Courts are established whose jurisdiction ceases when the declaration of emergency expires. There are jurisdictions, which essentially are temporary, the time being limited not by the necessity of the case or the cases, but by some extraneous consideration such as the duration of a war or of an emergency. Here, the assumption in the relevant sense is that a disturbed state of affairs affecting the relations between the employers and the workers in an industry must be composed, and the task is entrusted to a Tribunal. No extraneous consideration, apply and therefore it is reasonable to assume that considerations of mere time will not operate to
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take away the jurisdiction. The imposition of limits of time upon the successful conclusion of the adjudication must therefore be intended for purposes of securing expedition." It may be noted that the above was a case under the Industrial Disputes Ordinance relating to the settlement of dispute between the manage--ment and labour. The present case is also of the same nature and the Martial Law Order No. 52 was promulgated to settle such disputes. Similarly it was held in the case of Hotel Metro pole Ltd. v. Hotel Metro pole Employees' Union and others (2), wherein, while rejecting the contention that the certificate could not be issued later than the time prescribed by the Industrial Disputes Ordinance, it was observed that the process of law could not be defeated by applying the most restricted meanings to provisions for intermediate proceedings. These authorities clinch the controversy and it must be held that simply because the award was given beyond the period of seven days, it is not rendered invalid. Dealing with the third contention that the award having been made after the lifting of Martial Law and the repeal of the Martial Law Regulations and Orders, the arbitrator ceased to function and neither the proceedings could be continued nor the award could be made, it has no force. Before taking up this pica, it may be noted that, as pointed out by the learned Attorney-General who was specially requested to assist us, the Interim Constitution was enforced with effect from 21st April 1972 i.e. From midnight falling between 20th April 1972 and 21st April 1972 and the proclamation withdrawing Martial Law issued immediately after midnight: e. 21st April 1912. So the Proclamation withdrawing Martial Law has no relevancy as it was issued after the enforcement of the Interim Constitution. So the present case will be regulated by the Constitution itself. According to the Constitution the Martial Law Order No. 52 was an existing law and was repealed by Article 280 0111). Bar sub-clause (2) of the same Article the proclamation of 25th March 1969, Martial Law was also revoked with effect from the commencing day of the Constitution. Thus it was by virtue of this Article that all Martial Law Orders were repealed and, therefore, the subsequent proclamation lifting Martial Law becomes redundant. Indeed, I am conscious of- the Full Bench decision of this Court, wherein it was held that Martial Law Regulations and Orders were repealed by the proclamation lifting Martial, Law and re-enacted by Interim Constitution, but with due respect, this decision proceeded on the assumptions as the Bench was given to understand, that the proclamation lifting the Martial Law was issued on 20th April 1972, i.e. Before the enforcement of the Constitution. This confusion arose as wrong date was noted in the proclamation published in P. L. D. The learned Attorney --General pointed out that this mistake was corrected and a corrigendum was issued showing the correct date i.e. 21st April 1972 in the Gazette Extraordinary. It was, however, contended that the principle of law laid down by the Full Bench is binding on Division Bench and so long it holds the field it must be followed. Indeed, there is no dispute account the proposition canvassed before us but it is to be noted that the principle laid down by the Full Bench is based on a certain fact and if different set of facts appear, the case has to be dealt with in the light of the facts thus placed. It is not purely a question of law independently of facts but a question of law based on facts. So the authority of the Full Bench is clearly distinguishable. Now turning to the plea taken before us, I may refer to Article 295 of the Interim Constitution, which reads as under. "295. Where a law (including a President's Order, a Martial Law Regulation or a Martial Law Order) is repealed, or is deemed to have been repealed, by, under, or by virtue of this Constitution, the repeal shall not except as otherwise provided in this Constitution. (a) revive anything not in force or existing at the time at which the repeal takes effect; (b) affect the previous operating of the law or anything duly done or suffered under the law ; (c) affect any right, privilege, obligation or liability acquired, accrued or incurred sander this law ; (d) affect any penalty, forfeiture or punishment incurred in respect 9f any' offence committed against tire law ; -or'
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(e) affect any investigation, legal proceeding or remedy in such right, privilege, obligation, liability, penalty, forfeiture or punishment ; or (f) affect the continuance of any body or authority constituted by or under such law ; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed and such body or authority continued as if the law had not been repealed." There is an authoritative view that right to sue is more than mere matter of procedure. It is a substantive and vested or existing right, which is not affected by the repeal of the enactment, following quotation from Craies on Statute Law, Fifth Edition, 1962 at page 370 may be noted: ---It is a general rule that when the Legislature alters the right of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them. But there is no exception to this rule, namely, where enactment merely affect procedure, and do not- extend to rights of action." This rule is based on the difference, which exists between laws, which affect vested rights and those laws which merely affect the proceedings of Courts. What is a "vested right", and "accrued right" and a "substantive right" has been aptly defined by the Supreme Court in the case of…
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