This Revision Application arises out of an application tiled on 7-9-1959 under section 15 of the Payment of Wages Act, 1936 (hereafter called the aid Act). And as the outset, I am constrained to express my very great regret that proceedings under an Act which was intended to eliminate the law's delays have led to such protracted litigation. Be that as it may, this application under section 15 of the said Act was hard and allowed by the Senior Civil Judge, Quetta who was then the authority appointed by the Provincial Government under sec--tion 15 of the said Act. The respondents had therefore filed as appeal in the District Court, Quetta 7nder section 17 of the said Act, and as this appeal was allowed on 11-6.-1963, the appli--cants went in Revision to the High Court. This Revision Application was allowed on 16-9-1965 and the case was remanded to the authority. I roust however pause to point out here that the High Court had given notice to one Mr. M.R. Ghori, who was then one of the authorities under the said Act, to assist amicus curiae on the legislation affecting Labour. The next important stop on the protracted litigation between the parties is that the application of the applicants under section 15 of the said Act came up for bearing before the Senior Civil Judge, Quetta in view of the order of remand by the High Court, but as I have pointed out Mr. M. R. Ghori was also an authority under the said Act and therefore on 13- 10-1965. the Senior Civil Judge transferred the application to the said Mr. M. R. Ghori. The applicants did not take any objection to the transfer of the case to Mr. M. R. Ghori, and on the contrary took the chance of obtaining a favourable decision from him. However, their application was dismissed by Mr. Ghori on 22-5-1967, therefore they filed a 2nd Revision in the High Court against the dismissal of their section 15 application. But this Revision Application was dismissed by the High Court on 14-5- 1970 on the ground that it was not competent. Accordingly, on 1-6-1970, the applicants filed an appeal In the District Court, Quetta against Mr. Ghori's order dated 22-5-1967. Now as the period of limitation for filing an appeal in the District Court under section 17 of the said Act is only 30 days, together with their appeal the applicants filed an application under section 5 of and 14 of the Limitation Act for the condonation of their delay in filing the appeal. This application was dismissed by the learned District Judge, Quetta by his order-dated 17-8-1970 and the appeal of the applicants was dismissed by a separate order dated 20th October 1970. The applicants have now come in Revision against the order of the learned District Judge dated 20th October 1970 but they also challenge the order of the learned District Judge dated 11-8-1970 dismissing their application for condoning delay.
2. This Revision Application has now been heard by me and as I found it difficult to understand how the learned District Judge had heard the appeal of the applicants after dismissing their application for condoning the delay in filing the appeal, I Invited Mao. Muftakhairud-Din to explain the position.
The learned counsel submitted that the failure of the applicants to file an appeal against the impugned order within the statutory period of limitation was immaterial, because, as that order was coram non judice, the applicants were entitled to challenge it at any time irrespective of the question of limitation. Learned counsel further claimed that this extra--ordinary submission was amply supported by authorities and his main stress was on this aspect of the case. However, as he also challenged the earlier order of the District Judge refusing to condone the delay of the applicants in filing their appeal in that Court, 1 would first consider this aspect of the case.
3. The appeal in the District Court was filed after a delay of nearly 3 years, although the statutory period of limitation was only 30 days. But Mr. Muftakhairuddin submitted that the entire period spent In the infructuous Revision Application in the High Court had to be excluded under section 14 of the Limitation Act. And if this submission is correct, it Is clear that the appeal of the applicants in the District Court was within time.
4. As Mr. Muftakhairuddin relied solely on section 29 of the Limitation Act, I would first quote it. This section reads as follows: "29(1) Nothing in this act shall affect section; 25 of the Contract Act; 1872.
(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provision of section 3 Shall apply, as if such period were prescribed therefor is that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law-
(a) the provisions contained in section 4, sections 9 to 18 and section 22 shall apply only in so far a9, and to the extent to which, they are not expressly excluded by such special or local law, and
(b) the remaining provisions of this Act shall not apply.
(3) Nothing In this Act shall apply to suits under the Divorce Act.
(4) Sections 26 and 27 and the definition of 'easement' In section 2 shall not apply to cases arising in territories to which the Easements Act, 1882, may for the time being extend."
The question being of the applicability of section 14 of the Limitation Act, on the plain language of the section quoted, it is attracted only when the period of limitation under the special statute is different from that prescribed In the Sched to the Limitation Act. But as the period for filing an appeal to the District Court under section 17 of the said Act is the same as the period prescribed in Article 152 of the Schedule to the Limitation Act, it is clear that section 29 is not applicable to an appeal under the said Act. I am fortified in my opinion) by the judgment of Waheeduddin, J. in Hatim Alt v. Zulekha Bibi (PLD 1964 Kar. 399). But according to Mr. Muftakhairuddin his argument was supported by paragraph 1.0 of this judgment. This para. Reads:-- "After careful consideration of the question involved In this matter I have come to the conclusion that under section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959 no period of limitation different from the period prescrib--ed by Schedule I, Limitation Act, Is Indicated.
Therefore, the provisions of section 29(2) have no application :o as to exclude the previsions of section 5 of the Limitation Act, from being applied to appeals under the said special enactment."
These observations are fatal to Mr. Muftakhairuddin's reliance on section 14 of the Limitation Act and when I invited the learned counsel to explain how they supported his argument, he stated that they supported his argument with reference to the reliance placed by the applicants in their application before the District Judge on section 5 of the Limitation Act.
5. I would now consider this submission, and will assume for the sake of argument that the applicants can fall back on section 5 even though they have failed to make out a case under section 14 of the Limitation Act. On this assumption, according to the settled law, they had to explain and justify each day's delay. Now, the impugned order was passed on 22-5-1967, and I will assume that they had acted reasonably in challenging it by way of a Revision. But that Revision was dismissed on the ground that it was not maintainable on 14-5-1970. Thus, they learnt on that date that the only remedy available to them in law was an appeal, and according to Mr. Basharatullah, even if they were entitled to invoke section 5 they had to file the appeal the next day.
I would not go so far as to accept Mr. Basharatullah's submission, bur, litigation was going on continuously between the parties, and the applicants, though workmen, were assisted by Advocates, therefore they can hardly plead ignorance. In this view of the matter, as they tiled the appeal on 1st June 1970, they were required to justify the delay of every day between 14th May and let June 1970. But this they have not even attempted to do, therefore they have failed to bring their case under section 5 of the Limitation Act. Their application for condoning their delay in filing the appeal was thus rightly dismissed by the learned District Judge and Mr. Muftakhairuddin was conscious of this position. Hence his very great stress on the submission that Mr. Ghori's order dated 22-5-67 was coram non-judice and 1 will now consider this submission,
6. According to Mr. Muftakhairuddin Mr. Ghori---s order was coram non-judice because it was without jurisdiction, and authorities were cited In support of the proposition that an order without jurisdiction was a nullity. But authority is hardly necessary for the proposition that an order without jurisdiction is a nullity and the real point for determination is whether Mr. Ghori's order was without jurisdiction. However, in deference to learned counsel---s industry, I would refer here to the decision of the judicial Committee to Chief Qwame Asante v. Chief Kwame Tawia (PLD 1949 P C 45), which is the leading case on the point under discussion. There an appeal had been filed against a Court or tribunal constituted under the Native Courts Ashanti Ordinance, 1935 but as it was not properly constituted the applicant raised this objection for the first time in appeal, but ratter expiry of the period of limitation for filing ten appeal. The appeal Court held that this objection could not be entertained. Lord Simonds pointed out at page 46 that "certain chief had sat as Judges, who were not qualified to sit" and then observed: "Upon this the West African Court of Appeal observed that this additional ground of appeal was bled without the set necessary leave of the Court, and that it was too late in the proceedings to raise a point of this nature which was not raised in any 4 the three Courts below or at the beginning A the hearing of the appeal In that Court. Their Lordships cannot assent to this view. If It appears to an Appellate Court that an order against which an appeal is brought has been made without jurisdiction, it can never be too late to admit and give effect to the plea that the order is a nullity."
The principle laid down in these observations is that an order of a Court or of a Tribunal is without jurisdiction if that Court or Tribunal is not properly constituted, and as the applicants rely on this principle they have to establish that Mr. Ghori did not lack jurisdiction to entertain claims under section 15 of the paid Act. But this they cannot possibly establish because learned counsel conceded that the Provincial Government had appointed Mr. Ghori as an authority under section 15 of the said Act. Therefore, Mr. Ghori did not lack the inherent jurisdiction to decide the claim of the applicants, and Mr. Muftakhairuddin, was compelled to admit that, for instance, the applicants could have filed a claim directly before Mr. Ghori. Thus the real objection of the applicants is to the transfer of their case from on authority under the said Act namely the Senior Civil Judge, to another authority, namely hit. Ghori. Learned coons, t could not however explain why the Senior Civil Judge was not competent to transfer the case before him to another competent authority, namely Mr. Ghori, nor could learned counsel explain why Mr. Ghori was competent to decide a case filed directly before him, but not a case B transferred to him, bus as Mr. Ghori had admittedly bean appointed an authority under the said Act, these are the real points for determine in this application, and the plea o coram non judice must- fail, in the absence of some mandatory provision prohibiting an authority duly empoweredunder section 15 of the said Act from entertaininga claim underthat sectionmerely because It was transferred to it by another competent authority.
7. That was the claim of the applicants in their Revision Application, and as they have pleaded that the transfer of their L use to Mr. Ghori was illegal because "only the Provincial Government could transfer the case consequently the entire proceedings are void, inoperative and without jurisdiction." I invited Mr. Muftakhairuddin to show me the provision in the said act, under which the Provincial Government alone was competent to transfer a case from one authority to another authority. Mr. Muftakhairuddin admitted that there was no such provision in the said Act, and he also stated that the rules framed under the said Act were silent on the question of the --transfer of a case from one authority to another. As there is thus no prohibition on the transfer of a case and as Mr. Ghori had the jurisdiction to hear and decide applications under section 15 of the said Act. I do not see how, it can even be argued that his order was without jurisdiction, in the absence of mala fides or some mandatory prohibition against transfers.
8. Mala fides are not alleged even in the arguments before me, and I have already observed that the learned counsel admitted that the said Act did not contain any prohibition on the transfer of cases. It would however be convenient to refer here to subsection (1) of section 15 which is relevant to the argument advanced. This subsection reads as follows:- "15(1). The (Provincial Government), may by notification in the (official Gazette), appoint any Commissioner for Workmen's Compensation or other officer with experience as a Judge of a civil Court or as a stipendiary Magistrate to be the authority to hear and decide for any specified area all claims arising out of deductions from the wages, or delay in payment of the wages of persons employed or paid in that area."
It is clear from the section that there is no prohibition on the transfer of cases by one competent authority to an--other. Secondly, it is significant that power has been conferred on the Provincial Government to appoint authorities and to confer on them jurisdiction to "decide for any specified area all clam's . . . . . of persons in that area." This means that when there is more than one authority the Provincial Government would frame rules to regulate the distribution of work between them.
Accordingly, even if it is assumed that some rules had been framed which have escaped the attention - of the learned counsel, the result would only be that the transfer of the case of the applicants to Mr. Ghori was contrary to such a rule, but at the highest this would be only a breach of a rule regulating the distribution of work on a territorial basis. Can the breach of such a rule possibly render subsequent proceedings without jurisdiction or make them coram non-judice as learned counsel described them. I may with advantage quote here the observations of. Kaikaus, J. on this point In Muhammad Swaleh v. United Grain 6c Fodder Agencies (P L D1964 SC 97). Kaikaus, 1., observed there: "By- merely showing therefore that an order passed was in violation of some provision of law or procedure, the conclusion that the order is it nullity, would nut follow. It should further be shown that there was such a violation of some statutory provision or principle of natural justice as would render the proceedings coram non Judice. I am In respectful agreement with these observations, and in my humble opinion the transfer of the east of the applicants by the learned Senior Civil Judge, in the circumstances stated, was neither the violation of any statutory provision, nor of any principle of natural justice, therefore, I do not see how it can be contended that the Impugned order was coram non judice or without jurisdiction.
9. Additionally, it is relevant to remember that the said Act is a piece of welfare legislation, and its object would be defeated if the Courts were to set aside the orders of the authority on technicalities. Bat the objection advanced by the applicants is of a very technical nature and to accept It would be make a fetish of technicalities. And I may point out here that as the applicants had taken their chance of succeeding before Mr. Ghori, the objection advanced would have been barred under section 21 of the Civil Procedure Code if that Code had applied to the proceedings before the authority. This section reads as follows:- "21. No objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was taken In the Court of first Instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice."
I am aware that the Civil Procedure Code is not applicable terms to proceedings under the said Act, but the principle contained in the section quoted is a principle of equity intend to avoid technicalities and delays in litigation. It is, therefore a principle, which is applicable with greater force to proceeding of the type contemplated under the said Act, and on this ground also the plea of coram non Judice fails.
10. Mr. Muftakhairuddin then submitted that the impugned order was void because the Tribunal which pasted it was biased and according to Mr. Muftakhairuddin the Tribunal had bias because, as pointed out earlier. Mr. Ghori had been called by the High Court to assist as amicus curiae in the earlier revision application. The result of this, according to the applicants, was that Mr. Ghori "was not legally competent to decide the case and he by his conduct was disqualified to act as authority under the Payment of Wages Act." The learned District Judge has repelled this allegation with the observation that Mr. Ghost had merely assisted the High Court and had no personal Interest In the case. Not only is the view of the learned District Judge correct but a party Invited to assist the Court amicus curia is expected to assist the Court by placing the law before the Court.
Therefore, the very fact that Mr. Ghori was ' called upon to assist amicus curiae would suggest that he had as open mind about the claim of the applicants, and there is absolutely nothing in the judgment of Qadeeruddin Ahmed. J. (as he then was) to suggest the Mr. Ghori had shown any bias in the d1AC118rge of his duties to the Court. It Is also relevant to refer here to the reasons for the notice to Mr. Ghori to assist the Court. In his order dated 16,9-1965 remanding the case Qadeeruddin Ahmed J. (as he then was) observed with regard to the notice issued him to Mr. Ghori as follows "Additionally, I felt that this arrangement might possibly cut across some provisions of the Industrial Employment Standing Orders, 1960 and some provisions of the Workmen's Compensation Act. Owing to this impression I sent word to Mr. M. R. Ghori. I have been with his assistance to refer to several provisions of relevant statutes and rules; but it is unnecessary to go into those details at present because after reading the evidence that is on the record . . . . . it appears that an omission has been made which should not have been allowed to exist. That omission is the non-produce ion of the contracts that must have been made between the Jorisaras and the respondents . . . . : " It is clear from these observations that Mr. Ghori had assisted this Court only on the question of the various statutes affecting labours, whereas the case was remanded for further evidence on a question of fact, namely the type of contract made by the respondents for recruiting labour and whether that contract was with the applicants. Prima facie therefore, the points on which Mr. M. R. Ghori assisted the Court had nothing whatever to do with the question remind to the authority, Mr. Basharatullah also pointed out in this connection that the applicants had been assisted by an Advocate throughout the protracted proceedings between the parties, and they bad not objected to Mr. Ghori hearing the case until the decision went against them. This is correct and in the circumstances discussed I am satisfied that the objection advance is a frivolous objection. It is unfortunate that an allegation has been made against a person who is not available to answer it, but I am satisfied that it Is a false allegation, and no rule of natural justice was violated by the transfer of the case to Mr. Ghori. Therefore. It cannot be said that his decision was coram non Judice and, on the other hand as be had the jurisdiction to entertain claims under the said Act, the applicants are barred by their conduct from challenging the transfer of the case to him.
11. The only other argument advanced by Mr. Muftakhairuddin on the point of Mr. Ghori's jurisdiction to bear the claim of the applicants was that the case had been remanded by the High Court to the learned Senior Civil Judge. The learned counsel took me through para. 8 of the order of Qadeeruddin Ahmed, J. (as he then was), and I find that Qadeeruddin Ahmed, J. has observed "I set aside the order of the learned District Judge, Quetta dated the 11th June 1963, and the order of the learned Senior Civil Judge and authority under the Payment of Wages Act, Quetta, dated the 30th of April 192, and remand this case far re-decision."
I do not think this order prevented the learned Senior Civil Judge from transfering the case to any other competent authority under the said Act. But even if I am wrong, the transfer of the case was a matter, which could have been challenged in appeal, but it did not amount, in the words of Kaikaus, J. In Muhammad Swaleh's case, to "such a violation of some statutory provision or principle of natural justice as would render the proceedings coram non Judice."
2. The result, the applicants have failed to show that the Impugned order was passed by a person or a tribunal not competent to pass it. Therefore, the plea of coram non-judice fails, and the result is that the applicants can challenge 'the impugned order only in an appeal under section 17 of the said Act. But they failed to file their appeal within time and as they also failed to make our sufficient cause for their delay In filing their appeal, the appeal and the application for condoning the delay in filing it were rightly dismissed by the learner'. District Judge. The Revision is without merit and is dismissed with costs.
Petitioner dismissed.