This writ petition calls in question the validity of the order, dated 15-8-1981, of the Secretary, Ministry of Labour and Manpower, Government of Pakistan, Islamabad.
2. The facts relevant for the disposal of the writ petition may be briefly stated. Messrs Al-Qamar Recruiting Agency, Lahore (petitioner) is stated to be a firm of two partners, namely Muhammad Amin Butt and Muhammad Yunus Qamar. The petitioner has been working as Overseas Employment Promotors under a licence granted to it under Emigration Ordinance, 1979 (No. XVIII of 1979) and the Rules framed thereunder (hereinafter called the Ordinance and the Rules respectively). On receiving a demand for the recruitment of labour from their Principal, Messrs National Services Company Ltd. Maskat; the petitioner sought permission from the Protector of Emigrants. Lahore, for interviewing the candidates and processing the said demand at their Selection Office, situate at Bashir Building, outside Lahore Gate, Gujranwala, instead of Lahore. The permission sought for was granted from 16-7-1980 to 10-9-1980. It is alleged that the petitioner continued to process the demand ten days beyond the permission granted to them. The allegation is based on the report of the Protector of Emigrants who visited the recruitment place of the petitioner at Gujranwala, on 20-9-1980 and recovered 23 passports. In consequence, a notice dated 30-9-1980, (Annexure B), was served upon the petitioner to show cause as to why necessary action under section 12(3) of the Ordinance, be not taken against it which may entail cancellation of the licence and forfeiture of the security on two-fold charges i.e. Maintaining an unauthorised sub-office at Gujranwala and affixing a photograph of the partner, namely Muhammad Amin Butt instead of Muhammad Yunus Qamar on the licence.
3. The petitioner gave its reply, but during the pendency of the departmental proceedings, the validity of the licence expired by effix of time on 31-12-1980. Therefore, the petitioner applied for renewal which was rejected by the Director-General, Bureau of Emigration and Overseas Employment, Government of Pakistan, Islamabad, on 28-1-1981 (Annexure C) solely on the ground that the petitioner violated the Rules by opening a sub-office at Gujranwala without the approval of the competent authority. On appeal, under Rule 12 to the appellate authority, namely, the Joint Secretary Manpower, Government of Pakistan; the order of the Director-General was set aside on 1- 4-1981, (Annexure D) with the direction that the licence of the petitioner be renewed on payment of usual fee. The Appellate Authority observed that the recovery of some passports per se from the premises of the petitioner would not bring the case within the mischief of Rule 11, if for some reasons, the passports of the intending emigrants were kept lying in that office for a short period and that it did not amount to opening of a sub-office. He further held that the licence was m the name of the Firm and it made no difference if one of the partners affixed his photograph on the licence. He also took note of the fact that even the Director---General did not take into consideration this charge, while rejecting the application of the petitioner for renewal of the licence.
The Director General felt aggrieved with the aforesaid order and moved for a review before the Secretary, Labour and Manpower Division.
4. It may be pointed out that reference for review was made by the Director-General notwithstanding the fact that the 23 passports recovered from the premises of the petitioner at Gujranwala, related to the. Persons who admittedly have finally been allowed to go abroad partly under the orders of the High Court in Writ Petition No.11209/80 and mostly by the Director-General himself. The Secretary, Ministry of Labour and Manpower, after hearing the petitioner in person and the representative of the Director-General Mr. Abdul Jalil Khan Khatak, Director of the Bureau, accepted the appeal vide his order, dated 15-8-1981 (Annexure E) (para. 19 of the order on noting file No.4-6/81 Emg.), whereby the order of the Appellate Authority was set aside and that of the Director-General refusing to renew the licence was upheld.
5. The learned Secretary observed in the impugned order that notwithstanding the expiry of the period for which permission for recruitment was granted to the petitioner, 23 passports and files dealing with the recruitment of these passport holders were recovered from the premises of the petitioner and a photocopy of the licence was also permanently displayed in those premises, although, there was no reason for displaying copy of the recruiting licence in case of a special permission granted for processing a particular demand only. It was further observed that on' the photocopy of the licence, a photograph of Muhammad Amin Butt, partner, had been pasted instead of the photo of Muhammad Younas who was the real licence holder and thus there was a violation of the provisions of Form I to Rule 8. From these facts, he inferred that the petitioner not only opened a sub-office at Gujranwala in violation of the Rules but even the licence had been tampered with by pasting on it a photograph of an unauthorised person.
6. The learned counsel for the petitioner has assailed the validity of the impugned order on various grounds:- (i)The review petition in terms of rule 13 of the Emigration Rules, 1981 was not competent at the instance of the Director-General because it does not permit review against grant/renewal of licence.
(ii)The review could be heard only by the authority which passed the order renewing the licence and not by the other delegatee of the Government.
(iii) The review is restricted only to rectify the errors apparent on the face of the record and not in the nature of fulfledged hearing whereby upsetting the whole facts already decided by the Appellate Authority which had attained finality in terms of section 12(1) of the Ordinance.
(iv) The petitioner was not maintaining any sub-office in that, the Protector of Emigrants had granted permission to the petitioner to process the demand at Gujranwala and if for some reason, the petitioner continued to process the demand 10 days beyond, this does not mean that the petitioner had opened a sub-office.
7.The Deputy Attorney-General makes the following submissions:- (i)The power of review under section 14(2) of the Ordinance is an independent power and not ancilliary to the appellate power contained in the Proviso to subsection (1) thereof. Reliance is placed on Mst. Zainab Khatoon v. Ghulam Shabbir and others (PLD 1965 SC 55).
(ii)There is no provision in the Ordinance for delegation of power for either hearing appeal or review by the Federal Government, therefore, the power has to be exercised by the Federal Government itself and this business of exercising the power could be allocated by the President in view of the provisions of Article 99(2) of the Constitution which permits delegation of powers by the Federal Government to the officers subordinate to at. In the instant case, the Secretary has been delegated the power of the Federal Government to hear review petitions against the decisions of the Director- General under the direction of the President as contained in office order, dated 4-9-1981;
(iii) In terms of the order of the President as contained in the office order, dated 9-4-1981 the power of hearing review petitions is to be exercised by the Additional Secretary, Incharge of the Ministry of Labour and Manpower Overseas Employment, Pakistan. In the instant case, the power of review has been exercised by the Secretary for the reason that the Secretary who exercised the review power is alone the Incharge of the said Division. He further submits that the allocation of power of review to be exercised by the Additional Secretary incharge was a misdescription and should be read as Secretary, Incharge of the Division, in that there is no Additional Secretary Incharge of the Division and, therefore, no prejudice has been caused to the petitioner by hearing the review by the Secretary.
(iv) The Secretary has independently applied his mind to the facts of the cas as is evident from para. 4 but he has rejected the view of the Director General that since his order of suspension was upheld by the High Court, therefore, the same may be upheld by the Secretary in review. He has given reasons for interfering with the order of the Joint Secretary in Paras. 6, 7 and 8 wherein he has concurred with the findings that the petitioner was maintaining a sub-office. This finding of fact is not open to interference in the exercise of writ jurisdiction as there is no jurisdictional defect.
Reference is made to Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139.
8. It is not necessary to' deal with all the respective contentions raised by the learned counsel for the parties. The writ petition can be disposed of on some short legal grounds. The departmental record pertaining to the impugned order has been produced in the Court. I have perused the record with the assistance' of the learned counsel for the parties. Paragraphs 17/18 of the Noting File read:- "17. Subsequent to my recording note on page 5/N of the linked file (No.4-25/79-Emg), I discussed the matter with the former Minister (Lt.-- Gen. F.A. Chishti) who desired that Joint Secretary, Manpower will continue to hear appeals against the orders of D.G., B.E. & O.E. Under rule 12 of the Emigration Rules, 1979.
18. He further directed that the Review petitions shall be heard by the. Additional Secretary, Manpower Division as he besides being Corps Commander was also Incharge of the Ministries of Kashmir Affairs and Natural Resources and had no time to attend to such work.
Sd/- MA. Kazmi, Secretary, 1-2-1981"
9. Subsequently, the Secretary called on the President who approved the existing arrangement of hearing of appeals and review petitions of the promotors as is apparent from his note, dated 3-3- 1981 at paragraph 42 of the said file which reads:- "42. I called on the President on the evening of 25th February, 1981 and discussed the question of hearing of Appeals and Review petitions under rules 12 and 13 of the Emigration Rules, 1979 against the orders of the Director General, Bureau of Emigration and Overseas Employment filed by the Overseas Employment Promotors. The President was pleased to direct that, as approved by him earlier, the existing arrangement for hearing of appeals of the Promotors bar J.S. (Manpower) and Review Petitions by the Additional Secretary, Incharge Ministry of Labour and Manpower should continue.
Sd/- MA. Kazmi, Secretary 3-3-1981'
10. In consequence of the President's directive, the following orders were issued:- "GOVERNMENT OF PAKISTAN Ministry of Labour, Manpower and Overseas Pakistanis (MANPOWER DIVISION)
No.1-48/80-Emg.Islamabad the 9th April, 1981.
OFFICE ORDER Subject:-HEARING OF APPEALS AND REVIEW PETITIONS AGAINST THE DECISION OF THE D.G. BE&OE.
The President is pleased to direct that the existing arrangements for hearing of Appeals and Review Petitions filed by the Overseas Employment Promotors, against the orders of the Director-General, Bureau of Emigration and Overseas Employment, by the Joint Secretary, Manpower Division and Additional Secretary Incharge, Ministry of Labour, Manpower and Overseas Pakistanis, respectively shall continue until further orders.
Sd/- S.M. Yasin, Deputy Secretary.
Copy for information and record to:-- (1)The P.S. To the Additional Secretary Incharge, Ministry of Labour, Manpower and Overseas Pakistanis.
(2)The Joint Secretary, Manpower Division.
(3)Director-General, Bureau of Emigration and Overseas Employment.
(4)Section Officer (Emg.) Manpower Division."
11. A bare perusal of the aforesaid order read with the Noting Part of the file referred to above, would show that the Additional Secretary Incharge, Ministry of Labour Manpower and Overseas Pakistanis and not the Secretary, was authorised to hear Review Petitions filed by the Overseas Employment Promotors, against the orders of the Director-General. No power has been conferred either on the Joint Secretary or on the Additional Secretary to hear Review Petitions filed by the Director-General against the decision of the Federal Government in terms of Section 14(2) of the Ordinance. The remedy of review is available only to the Overseas Employment Promotors when they are aggrieved with the orders of the Federal Government refusing renewal of the Licence/ cancellation of the licence/forfeiture of security money. In any event, the delegation of power to hear Appeal and review in terms of the said order limits it upto tilt; Joint Secretary and the Additional Secretary, Incharge of the Division. A copy of this order for information has been despatched to "The P.S. To the Additional Secretary, Incharge of the Ministry of Labour." It is obvious, that there is no delegation of power or allocation of work of hearing the review entrusted to the Secretary who himself had put up his note to the President. It is not possible to substitute the Additional Secretary, particularly as it concerns a valuable right that has come to pass the petitioner by the order of the Joint Secretary who granted the renewal of the licence. Furthermore, the fact whether there is an Additional Secretary now or at any time in the Division is not relevant because even order of 9-4-1981, if read carefully, would indicate that the power of Review is also vested in the Joint Secretary and the matter could have been taken up by him if there was no Additional Secretary. Thus visualised, even if it were assumed that the power of hearing the Review Petitions vests with the Secretary, Incharge of the Division, the impugned order is liable to be quashed en the short ground that the Director- General had no locus standi to seek review of the order of the Federal Government passed in Appeal. Further no power has been delegated on the Secretary to exercise suo motu review.
12. The order, dated 9th of April, 1981, is in conformity with rule 13(1) read with Form 5 referred to therein. This Form does not authorise the Director---General to file review against the order as to renewal of licence. It is interesting to point out that in the parawise comments, the specific stand taken by the respondents is that "The Director-General, Bureau of Emigration and Overseas Employment, referred the case again to Federal Government for review as provided under section 14(2) of the Emigration Ordinance 1979, read with rule 13 of the Rules 1979." The respondents have also taken a specific stand as per para. 41 of the Noting Part of File No.4-6/81-Emg. Which reads:- "Since in the cancellation or non-renewal of OEP Licence, the D.G.B.E. & O.E. And the Promotors are two parties, both have equal right to seek review under section 14(2) of the Ordinance."
The respondents, therefore, cannot be allowed to approbate and reprobate in the same breath and take the plea that the Secretary has passed the impugned order independently, on the information supplied by the Director-General.
13. Rule 13 provides:-- Review-(1) A petition under subsection (2) of section 14 shall be made in duplicate, in, Form 5, accompanied by a fee of five hundred rupees within thirty days of the decision of the Federal Government.
(2) Before an order is passed in review the petitioner shall be afforded an opportunity of being .Heard ".
14. Application on Form 5 relates to a petition for review of orders of the Federal Government refusing renewal of the licence/cancellation of the licence/suspension of the licence/forfeiture of security money. Under Item No.6 of the Form, the applicant is required to specify "Grounds on which the grant or renewal of the licence has been refused or the licence suspended/cancelled or security has been forfeited." Under Item No.7, the grounds for which review has been sought are to be specified. Under Item No.8, the date of the order of refusal/cancellation/suspension or forfeiture of the security, as the case may be, is to be stated.
15. A bare reading of rule 13(1) read with Form 5 and the office order, dated 9-4-1981, referred to above, would show that submission of an application for review by an aggrieved promotor is a condition precedent for vesting jurisdiction in the Reviewing Authority to entertain review of the orders of the B Federal Government refusing renewal of the licence to a promotor. Further the application must be accompanied by a Treasury Challan of Rs.500 and unless and until the requisite fee is deposited, no review petition can be entertained. In the instant case, the impugned order was passed by the Secretary in the purported exercise of his powers of review at the instance of the Director-General which was ex facie ultra vires.
16. I also agree with the submission of Mr. S.M. 7-afar, the learned counsel for, the petitioner that the provisions mentioned in Section 14(2) of the Ordinance must be construed in the same manner as an ordinary power of review hemmed by the principles laid down in Order XLVII rule 1 of the Civil Procedure Code (V of 1908). The scope and extent of the power of review has been authoritatively determined by the Supreme Court in Zulfiqar A.I Bhutto v. The State PLD 1979 SC 741, wherein it was held that "a review proceeding is neither in the nature of re-hearing of the whole case, nor it is an appeal against the judgment under review. It is accordingly not permissible to embark upon reiteration of the same contentions as were advanced at the time of the hearing of the appeal, but were considered and repelled in the judgment under review, in an effort to discover errors said to the record." The scope and extent of review in the context of Martial Law Regulation 116 has been interpreted by the Division Bench of this Court in Muhammad Aslam Bajwa v. Federation of Pakistan PLD 1974 Lah. 545. The relevant portion reads thus:- "that on a general plane mere filing of an application for review does not destroy the finality of the orders sought to -be reviewed inasmuch as incidents of review are different from those of appeal.
Appeal is a continuation of the trial proceedings and as and when appeal is filed the whole matter gets re-opened and becomes sub judice whereas this is not the case of review in general. See Sagar Mal and another v. Parsotam Das and another AIR 1942 All. 36, wherein it was held that "the proceedings in review are not a suit and the mere filing of an application will not reopen a suit."
Also see Raja Bhagwan Bakhsh Singh v. Mst. Manraji Kunwar AIR 1922 Oudh 148, where it was held that "a petition of appeal of necessity re-opens in a Court of higher jurisdiction matter decided by a Court of lower jurisdiction. An application for review on the other hand does not of necessity, by the mere fact of its being filed, re--open questions settled between the parties by the same Court." in Dwarka Das Kedar Bux v. Ganjanan Jagannath and others AIR 1946 Cal. 10, it was held that proceedings by way of review are independent proceedings--and we may respectfully add are not a continuation of the suit."
17. In the light of the precedent cases, I am of the view that as finality attaches to the decision given in appeal by the Federal Government under the proviso to subsection (1) of section 14 of the Ordinance, no review is permissible against the said order by the Federal Government in the exercise of its powers under section 14(2) read with Rule 13, by re-opening the whole matter and that the power of review is confined to discover errors apparent on the face of the ' record.
18. In view of the above discussion, the impugned order dated, 15-8-1981 of the Secretary, Ministry of Labour and Manpower, Government of Pakistan, Islamabad, is declared to be without lawful authority and of no legal effect. The Director-General is directed to renew forthwith the licence of the petitioner on payment of usual fee and other charges in terms of the order dated, 1-4-1981 of the Joint Secretary. The writ petition is accepted with costs.
M.Y.H./A-570/L