' AJMAL MIAN, J.-This High Court Appeal is directed against the judgment dated 27-3-1978 passed by a learned Single Judge of this Court in Writ Petition No, 631/1975 dismissing the appellant's above petition.
2. The brief facts leading to the filing of the above case are that Respondent No, 3 applied to the Assistant Director (Registration) for amendment of its name from Bata Shoe Company (Pak.)
Limited Store Managers Association to M/s. Bata Shoe Company (Pak.) Limited Employees'
Association, which request was declined by the Assistant Director (Registration) by his letter dated 31-3-1975. Respondent No, 3 being aggrieved by the above order filed an appeal, namely, Appeal No, 3/1975 under section 8 (7) of the Industrial Relations Ordinance (hereinafter referred to as the I R 0) in the Second Sind Labour Court, Karachi, which was allowed by an order dated 30-4-1975. The appellant being aggrieved by the above order had filed aforesaid Constitution Petition No, 631/1975, which was dismissed by the learned Single Judge as mentioned hereinabove. The appellant being aggrieved by the above order of the learned Single Judge has filed the present High Court Appeal.
3. (a) Since the aforesaid Writ Petition was filed against an appellate order dated 30-4.1975 passed by the learned Labour Court a preliminary objection has been raised by the learned c?Unsel for Respondent No, 3 Mr. Ali Ahmad Fazeel that the above appeal is not competent in view of the language employed in section 3 of the Law Reforms Ordinance, 1972 (hereinofter referred to as the Ordinance) as amended by the relevant time. We have, therefore, heard the arguments of the learned Counsel for the parties on the above preliminary objection.
(b) Mr. Mansoor Ahmad Khan, learned counsel for the appellant, has urged that since no right of appeal was provided to the appellant in the I R O the order impugned by the appellant in the Writ Petition was an original order so far the appellant was concerned and hens the embargo provided in section 3 of the Ordinance cannot be pressed into service, ' On the other hand it was urged by Mr. Ali Ahmad Fazeel that the question in issue before the Court is, as to whether the order which was impugned in the Writ Petition was an appellate order or was it an original order, and not whether the appellant could file an appeal or not. It was further contended by him that a perusal of sections 5 to 11 of the I, R.
0. Indicates that the appellant has no locus standi to challenge the registration of an employees' association or to an amendment to the name sought under section 8 of the I. R.
0. And, therefore, no right of appeal could have been provided to the appellant under the I. R.
0.
4. (a). In order to appreciate the respective contention of the parties it may be advantageous to reproduce hereinbelow section 3 of the Ordinance : "Section 3. Appeal to High Court in certain cases, -(1) An appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a Single Judge of that Court in the exercise of its original Civil jurisdiction.
(2) An appeal shall also lie to a bench of two or more Judges of a High Court from an order made by a single Judge of that Court under clause (1) or Article 199 of the Constitution, of the Islamic Repuclic of Pakistan not being an Order made under sub-paragraph (i) of paragraph (b) of that clause ' Provided that the appeal referred to in this subsection shall not be available or competent if the application brought before the High Court under Article 199 arises out of any proceedings in which the law applicable provided for at least one appeal for one revision or one review to any Court, Tribunal or authority against the original order.
(3) No appeal shall lie udder subsection (1) of subsection (2) from an interlocutory order or an order which does not dispose of the entire case before the Court.
(4) Nothing contained in this Ordinance, shall be construed as affecting-
(a) any appeal under the provisions of the Letters Patent applicable to a High Court or under section 102 of the Code of Civil Procedure 1908 (V of 1908) which was pending immediately before the commencement of this Ordinance ; or
(b) any appeal or Petition for leave to appeal from a decree, judgment or order of a Single Judge of a High Court made to the Supreme Court before the commencement of the Law Reforms (Amendment) Ordinance, 1972."
' We may mention that the above section 3 was further amended recently providing a right of appeal against an interlocutory order passed by a Single Judge of the High Court exercising original jurisdiction to a D.B. The above amendment is not relevant for the purpose of resolving the controversy in issue.
(b) It may be noticed that in subsection (2) of section 3, it has been provided that an appeal shall lie to a Bench of 2 or more Judges of the Hight Court from an order made by a Single Judge of that Court under clause (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan not being an order made under sub-paragraph (i) of paragraph (b) of the said clause. It also further provides that an appeal referred to in the above subsection shall not be available or competent if the application brought before the High Court under Article 199 arises out of any proceeding, in which the law applicable provided for at least one appeal or one revision or one review. It is, therefore, evident that under above section 3, no appeal is competent if the order impugned before the learned Single Judge arises out of any proceedings in which the law applicable provides for at least one appeal or one revision or one review.
Respondent No, 3 had filed the aforesaid application for amendment of the name of the association under section 8 (4) of the I.R.O. Which was refused by the Assistant Director (Registration) under subsection (5), which order was appealable under subsection (7) of section 8 by any officer or member of the Board within 7 days before the Labour Court. Consequently, respondent No, 3 in fact filed an appeal from a proceeding arising out of section 8 of the I. R.O.
Which provided the right of appeal. The order which was impugned by the present appellant in the aforesaid writ petition was an order passed in a proceeding in which the law applicable provided an appeal. In our view it is not relevant whether the appellant had the right of appeal or not. The relevant fact is, as to whether the order which was impugned in the writ petition was an order arising out of proceeding in which the law applicable provided an appeal.
5. (a) Mr. Ali Ahmad Fazeel has referred to the cases of Malik Ahmad Khan v. Lqbal and 8 others (1), Yousuf Ali Khan v. Muhammad Javed Iqbal Cheerna and others (2), Khawaja Fakhruddin Huseenuddin Qureshi and 3 others in support of his contention that the above appeal is not competent.
(i) Reverting to 1975 SCMR 275, it may be observed that the Supreme Court while construing section 3 of Law Reforms Ordinance, 1972 (as amended by Act VIII of 1972) held that no appeal to a D.B. Is competent against an order passed by a Single Judge in a writ petition in which the order impugned was passed in a proceeding wherein statute provided an appeal against the original order. It may be pertinent to reproduce hereinbelow relevant observation of the Supreme Court : "On the facts set out above the proviso to subsection (2) of section 3 of the Law Reforms Amendment Act VII of 1972 is plainly applicable. The Writ Petition in the High Court arose out of proceedings in which the West Pakistan Consolidation of Holdings Ordinance VI of 1960 provides for one appeal and two further revision Petitions to the higher Revenue Authorities. As seen all the three remedies were fully availed of by the Petitioners. No further appeal from the order passed by the learned Single Judge therefore lay to a Bench of two or more Judges in the case."
(ii) As regards PLD 1975 Lah. 1339, it may be stated that in the above case it was urged before a D.
B. Of the Lahore High Court that an order passed by a learned Single Judge in a writ petition is an order of the nature of original jurisdiction and, therefore, an order passed under writ jurisdiction is appealable under section 3 of the Ordinance before a D. B. This contention was repelled by the Division Bench and it was held that the order passed by a learned Single Judge in a Writ Petition is not an order in the exercise of original jurisdiction and that no intra-Court appeal would be competent against an order of a Single Judge passed in a Writ Petition if the impugned order was passed in a proceeding in which the law applicable provided at least one appeal. It may be advantageous to reproduce hereinbelow para 10 of the above judgment : "10. The expression "original order" in the context of this proviso has been used to distinguish it from the appellate or. Revisional order, or an order passed in the exercise of review jurisdiction. In order to attract the application of the proviso one has to see if the law applicable to the proceedings (giving rise to the constitutional application) provided for at least one appeal or one revision, or one review against the original order. It may be that although an appeal, revision or review against the original order was provided by the law but the right was not actually availed of and no appeal, revision or review was, in fact. Filed against it. It is immaterial even if no appeal, revision or review against the original order was actually filed as long as the law itself provided for the one against it."
(1) 1975 SCM R 275 (2) PLD 1975 Lah. 1339
(iii) With reference to PLD 1980 Lah. 778, it may be observed, a D. B. While construing section 3 of the Ordinance has made the following observations : "9. The case of Mirza Ashiq Hussain is of no help to the appellant because the simple question there was whether an intra-Court appeal could like in a case where the original order was not appealable but revisable or reviewable and in this context it was observed that as Act VI of 1975 was not retrospective, it did not affect vested right of such intra-court appeal as had been lied before the enforcement of that Act. This authority cannot be invoked to press the contention that an intra-Court appeal could lie even when the law applicable to the proceeding provided for an appeal. Learned Counsel also referred to two appeals, namely, L. P. As Nos. 123/1973 and 143/1976 which both had been entertained in this High Court. The difficulty, however, is that the point in controversy here had not been raised and discussed or even adverted to in those appeals."
(b) The above-cited cases clearly lay down that no appeal is competent against an order of Single Judge before a D. B. If the order impugned before the Single Judge was an order passed in a proceeding in which the law provides the right of appeal. However, Mr. Mansoor Ahmad Khan, learned counsel for the appellant, attempted to distinguish the above cases on the ground that admittedly no right of appeal was provided to the appellant under the I. R. O. And, therefore, the learned Labour Court's order was original order for the appellant. We may again observe that this is not relevant. The competency of an appeal is to be judged on the basis, as to whether the law under which the impugned order was passed, and which was impugned before the learned Single Judge provided one appeal or one revision or one review. If the answer of the above question is in the affirmative, no intra-Court appeal will be competent.
6. Mr. Ali Ahmad Fazeel has referred to sections 5 to 11 of the I. R.
0. In support of his contention that the appellant had no locus standi to file an appeal under the I. R.
0. Or to impugne the learned labour Court's order of the nature in issue through a writ petition as it related to the amendment of the name of respondent. No, 3 association, to which the appellant had nothing to do. We do not wish to advert to the above aspect. However, it will suffice that the above contention found favour with the learned Single Judge in the order under appeal.
7. Since we are of the view that the present appeal is not competent as the impugned order before the learned Single Judge was an order passed in a proceeding in which the law provided an appeal, the above appeal is dismissed on the above preliminary objection with no order as to costs.