MUHAMMAD AFZAL CHEEMA, J.- F. A. Os. Nos. 70/63, 138/65, 126/67, 33/66, 181/65, 145/64, 132/65, 20/65, 13/65,195/64, 145/66, 144/66, 73/66, 72/66, 33/68, 142 61, 134/67, 40/65, 43/65, 166/65, 85/65, 92/05, 81/65 and 77/65 are all connected matters having been filed under section 12(5) of the Industrial Disputes Ordinance. 1959 (No. LVI of 1959) as amended by Ordinance No. LXXIX of 1962.
That Ordinance was subsequently repealed by the West Pakistan Industrial Disputes Ordinance of 1968, under which an Appellate Tribunal was set up to hear appeals from the decisions and awards of the Industrial Courts. Section 46(2) ibid however saved all pending proceedings and al "46. Repeal and savings.-(I).
(2) Notwithstanding the repeal, of the said Ordinance, anything done, rules, notifications or orders issued, officers appointed, Courts constituted, notices given, references and applications to Courts made. Proceedings commenced or other action taken under the sad Ordinance shall, so far as the same are not inconsistent with the provisions of this Ordinance, be continued and be deemed to have been respectively, done, issued, appointed, constituted, given, made, commenced or taken under this Ordinance. Ordinance IV of 1968 in turn was again repealed icy 01rdirance XXIII of 1969 wherein a similar provision by way of a saving clause was incorporated in section 07(2). It is as follows:- "67(2) Notwithstan4'ing the repeal of any law by sub--section t 1), and without prejudice to the provisions of section 24.of the Central Clauses Act, 1897 (X of 1897):-
(a) every Trade Union existing immediately before the commencement of this Ordinance, which was registered under any such law, shall to deemed to be registered under this Ordinance and its constitution shall, as far as it is not inconsistent with the provisions of this Ordinance, continue in force until altered or rescinded ; and
(b) anything done, rules made, notification or order Issued, officer appointed, Court constituted, notice given, proceedings commenced or other actions taken under any law shell be deemed to have been done, made, issued, appointed, constituted, given, commenced or taken, as the case may be, under the corresponding provisions of this Ordinance, to the extent of consistency therewith."
2. The important question arising in these appeals relates to the correct interpretation of the two saving clauses contained in section 6(2) of the 1962-Ordinance and section 67(2) of the 1969- Ordinance. Precisely stated the question is whether the appeals pending in this Court against the awards made by the Industrial Courts under the repealed Ordinance of 1959, as amended, should be heard and disposed of by this Court or whether in the alternative the object of the law-Fiver was to oust the jurisdiction of this Court even in respect of pending appeals, which otherwise has been taken away with the establishment of the Appellate Tribunal whose orders made is regard to the awards have been made final of course leaving intact the remedy of appeal to the High Court In criminal matters.
3. This question was considered by a Division Bench 'of this Court of which one of u; (Mr. Justice Muhammad Afzal Cheema was a member, in F. A. O. No. 147 of 1968, wherein the view taken was that the jurisdiction of the High Court having been ousted under the new law the pending appeals could not be heard and disposed of by this Court in view of the deeming clause and as such should be returned to be presented before the Appellate Tribunal. This judgment dated the 14th of October 1968, was of course passed before the enactment of the latest Ordinance of 1969, and as such did not, and in fact could not take notice of the provision contained in section 67(2) thereof.
4. Having heard the learned counsel for the parties quite at some length, we' are inclined to think that perhaps it would be necessary to reconsider the earlier judgment passed In F. A. O. No. 147 of 1968. Since it is a matter of considerable public importance having far reaching Implications, we are of the view that a larger Bench may be constituted for the final determination of the issue involved. The matter may, therefore, be placed before the learned Chief Justice for the constitution of a Full Bench, if it may please his Lordship. The case is accordingly adjourned sine die.
4. These are pretty old cases involving important rights of the poor workmen. We would, therefore, suggest that the larger Bench, if approved by the learned Chief Justice, may be constituted without delay.
K. E. CHAUHAN, J.-This judgment will deal with a preliminary point of jurisdiction arising in twenty- four appeals being F. A. Os. Nos. 70/63, 138/65, 126/67, 33/66, 181/65, 145/64, 132/65, 20; 65, 13/65, 195/64, 145/66, 144/66, 73/66, 72/66, 33/68, 142/67, 134./67, 40/65, 43/65, 85/65, 166/65, 92/65, 81/65 and 77/65. All these appeals are against the Awards of the Industrial Court given at the time when the (Central Law) Industrial Disputes Ordinance LVI of 1959, (as amended by Ordinance 79 of 1962) was in force. The appeals were filed in the years 1963, 1964, 1965, 1967 and 1968 under section 12(5) of the said Ordinance. During the pendency of these appeals, Ordin--ance LVI of 1959 was repealed and was replaced by the West Pakistan Industrial Disputes Ordinance IV of 1968 and later on by the Industrial Relations Ordinance XXIII of 1969. The question which has arisen is as to whether the High Court has jurisdiction to hear and dispose of these pending appeals or not. One school of thought based on (an interpretation of) a judgment of a Division Bench of this Court consisting of my learned brothers Muhammad Akram and Muhammad Afzal Cheema, JJ., in F. A. O. 147 of 1968 decided on 14-10-1968, it that this Court cannot bear and determine these appeals. 1n the said F. A.
O., the facts were that an application under section 21 of the West Pakistan Industrial Disputes Ordinance IV of 1968 was filed by Ahmad Hussain in 1968 It was decided and dismissed by the its Industrial Court on 6-6-1968 and against the said decision an appeal was filed in this Court on 29- 8-1968. Prior to promulga--tion of the 'West Pakistan Ordinance IV of 1968 (so far as relevant for the purposes of the present case), appeals only against Awards of the Industrial Court were provided for, and too appeal lay (as later on allowed by the Statute) against orders and decisions of the said Court (other than Awards). Under West Pakistan Ordinance IV of 1968, appeals against decisions and orders of an Industrial Court were to be filed before the Industrial (Appellate) Tribunal. It will thus appear that on the facts of that case (a) since the relevant application (that is plaint) was filed under Ordinance 1V of 1968; (6) it was decided under that Ordinance; (c) appeal was filed under that Ordinance and (d) the order was such which was not appealable under the old law, High Court held that the appeal before it was not maintainable. The decision of the Bench, so far as non-maintainability of that particular appeal was concerned has not been disputed before us and it is not the burden of this - judgment to/ go into that matter. An argument was raised before the Bench that since the relevant application which was made under section 21 of W. P. Ordinance IV of 1968, was in reality in continuation and for the enforcement, of some earlier Award dated 8-1-1965, therefore, it was liable to be enforced in accordance with the machinery, provided by Ordinance 56 of 1959, under which the Award was made. This argument was repelled in paras. 6 and 7 by the learned Judges who held that since old award (and as a matter of fact every thing done under the old law) was adapted by W. P. Ordinance IV of 1968, therefore, it was t-'- deemed to have been passed under-the new law and was, as such to be implemented and enforced In accordance with the machinery provided in the new law I.e., Ordinance IV of' 1968. 'This finding in my humble opinion is confined to the facts of that particular case and was not intended to cover appeals already pending in this Court under the Old Statute. However, the employers (whom I will be referring to as the responde0e), took up the stand on the basis of the judgment hereinbefore mentioned that the appeals had either abated in to be or in the alternative they should be returned to the appellants and cannot be heard. The employees (whom I will be referring to as appellants) were of the view that the pending appeals were not hit by the West Pakistan Ordinance 1V of 1968, or as a matter of fact even by the judgment In F. A. O. 147/1968 and that this Court could still bear them. It may be mentioned that the point was argued before us on the common ground that if appeals were not hit by the West Pakistan Industrial Disputes Ordinance IV of 1968, then they could continue and would not undergo any impairment due to the Industrial Relations Ordinance XXIII of 1969, which the parties argued did not shift the position any further. I have, therefore proceeded to examine as to whether West Pakistan Ordinance 1V of 1968, made any effect on the appeals already filed and pending in this Court under the earlier Ordinance of 1959.
2. After Searing the learned counsel for the parties, I have come to the conclusion that the contentions of the appellants seem to be quite correct and that these appeals can be heard and decided by this Court. My reasons for so holding and my replies to the various propositions raised before us are as follows:-- Reasons:
(a) West Pakistan Industrial Disputes Ordinance IV of 1968 (hereinafter called W. P. Ordinance IV of 1968) was published in the Gazette of West Pakistan, Extraordinary; dated 11-6-1968 and came into force with effect from the said date, because it is written in its section 1(3) that it shall come into force at once. A Statute is not to be supposed to be retrospective unless it expressly so stabs or there is a necessary implication to that effect. In section 1(3) of the Ordinance, It is not stated that it was to come into force from any retrospective day or that It was to be considered to have always been in force. In the absence of any such indication, it is not possible for me to hold or to proceed on any line of argument, which has the effect of assuming that the Statute was retrospective in any manner so as to touch the rights acquired under the previous Central Statute, namely, Industrial Disputes Ordinance LVI of 1959, which was repealed. If the interpretation advanced by the learned counsel for the respondents is accepted, it shall virtually amount to giving a retrospective operation to the West Pakistan Ordinance. IV of 1968 which in my respectful opinion cannot be done.
(6) Section 46 of the West Pakistan Ordinance IV of 1968, with which we are mainly concerned In this case reads as follows:- "46. Repeal and savings.-(1) The Industrial Disputes Ordinance, 1959 (LVI of 1959), in its application to the Province of West Pakistan, hereinafter referred to as the said Ordinance, is hereby repealed.
(2) Notwithstanding the repeal of the said Ordinance, anything done, rules. notifications or orders issued, officers appointed, Courts constituted notices given, references and applications to Courts made, proceedings commenced or other action taken under the said Ordinance shall be continued and be deemed to have boon respectively done, issued, appointed, constituted, given, made, commenced or taken under this Ordinance."
A perusal of subsection (2) of this section would show that it directs that any proceedings commenced under the repealed Ordinance shall continue. I pause here for a moment to pose a question, is not an appeal filed under the Old Ordinance, a proceeding commenced under that Ordinance? The obvious answer is that it is. If that is so then the mandate of the Statute is quite clear that it shall continue. The word "continue" suggests continuation of those proceedings as they were and wherever they wore and not shifting them from one forum to another: because In that context the process Will not be of continuation but of charge, shift or transfer. The words "commenced" and "continued" as applied to appeals fn my respectful opinion, lease no room for doubt that the appeal proceedings pending in the High Court under Ordinance LVI of 1959, are not to be disturbed. If the argument of the other side is accepted that the, appeal proceedings cannot continue in the High Court, it would run contrary to the mandate of the Statute which state: that they shall continue.
(c) A perusal of both the Statutes hereinbefore mentioned, that is, Ordinance of 1959, and the Ordinance of 1968, shows that whereas Ordinance of 1959 was a Central Statute, which applied to the whole of Pakistan, the new Ordinance IV of 1968, teeing a Provincial Statute applied only to the Province of West Pakistan (except the Tribal Areas).
In East Pakistan such a change had already been brought about earlier in 1965 by means of East Pakistan Labour Disputes Act VI of 1965. Section 44 of the said Act, which similarly repealed the Industrial Disputes Ordinance LVI of 1959, read as follows:- "44. Repeal and saving.--( 1969 PLC 390) The Industrial Disputes Ordi--nance, 1959 is hereby repealed. Anything done, action taken, rules framed, or notification or order issued under the said ordinance, shall, so far as it is not inconsistent with the provisions of this Act, be deemed to have been done taken, made or issued under the corresponding provision of this Act.
(3) Any reference to the Industrial Disputes Ordinance, 1959 In any other law for the time being in force shall be construed to have a reference to this Act."
In section 13(5) of the East Pakistan Act V1 of 1965, appeals against awards were preferable to the High Court with the leave of the Industrial Court concerned. It was argued that old appeals filed without any such certificate could not be proceeded with and should be dismissed. The effect of this change was considered by a Division Bench of Dacca High Court to Pakistan Pharmaceutical Industry Ltd. v. Workers' Union (1). It was held that the repeal did not have the effect of interfering with pending appeals in the High Court and that the old appeals could continue. This verdict was given despite the fact that in the section hereinbefore quoted there was no express provision allowing continuation of the old proceedings and the section was more brief simply laying down that, "notwithstanding the repeal anything done, action taken, rules framed, or Notification or under issued under the said Ordinance shall so far as it is not inconsistent with the provisions of tills Act, be deemed to have been done, taken, made or issued under the corresponding provi--sion of this Act." The present case is more strong because here there is in addition, an express provision, directing continuation of previous proceedings. Respectfully adopting the view which was arrived at by the Dacca High Court, with reference to the various authorities of the Supreme Court of Pakistan, and other Courts of high status like the Privy Council, I hold that here too the repealing section does not have the effect of impairing the present appeals as i9 being suggested by the learned counsel for the respondents and that the said appeals can continue in and be heard by this Court.
(d) Appeal is an important matter and in my respectful opinion, it cannot be assumed that the Legislature intended to deal with such an important thing innuendo and not in any specific direct form. If the intention was that all appeals pending in the High Court were to be transferred elsewhere then there was nothing in the way of the Legislature to say so expressly. We know that when it was thought to abolish Letters Patent Jurisdiction of this Court in Second Appeals Ordinance L of 1962 expressly stated that the jurisdiction was abolished and that all pending appeals wou13 stand transferred to the Supreme Court. That such a method has not been adopted in this case goes to show that it was never the intention to touch the appeals already pending in this Court.
(e) It is welt known that power to transfer a case from one Court to another is a substantive power and cannot be assume to exist in a Court how high it may be unless it is conferred by a Statute.
There is no indication in the W. P. Ordinance IV of 1968 that the appeals pending before the High Court shall stand transferred to any other Court. Nor any such power of transfer is even otherwise bestowed on the High Court. What then was to happen to the appeals pending here? Since the High Court had no previous jurisdiction to transfer nor was any such jurisdiction conferred on It afresh, were these appeals to abate or were memorandums of appeal to be returned to the appellants for presentation to any other Court of competent jurisdiction? In the absence of any Indication of this kind, it is not possible for me to hold that the appeals stood automatically transferred to any other forum. In this context, learned counsel for the respondent argued that the memorandums of appeals should be returned to the appellants who would be at liberty to present them to the Appellate Industrial Tribunal and that they will be free to invoke the provisions of subsection (I-A) of section 16 as added in the West Pakistan Ordinance IV of 1968 by WestPakistan Ordinance VIII of 1968, the effect of which was that the time during which the Appellate Tribunal was not constituted, could be availed of by them alongwith such other grounds which they may have had to urge under section 5 of the Limitation Act, which also was made applicable to appeals before the said Tribunals. They submitted that all the period during which the appeals remained pending In this Court, will be considered a period, during which no Tribunal was constituted. In this way, It was argued that the right of appeal, which, it was conceded, wail. a vested right, could be exercised by the appellants if they wanted to exercise it and that the old appeals commenced in this Court could not be proceeded with or continued here, Respectfully, I do not agree. West Pakistan Ordinance VIII of 196", was brought about to cover I a gyp of about three months during which the Appellate Tribunal was not set up after the promulgation of the West Pakistan Ordinance IV of 1968 and it cannot be said to apply to appeals which were validly instituted in this Court well within the period of limitation at the relevant time and about which the mandate was that they should continue. If they could continue, then they are to continue in the same state of affairs and not to be made katcha again. The effect of the return of the memorandums of appeals, on the other hand, will be to destroy their commencement and to deny them the status of continuation.
(f) It was argued that In section 4612) of West Pakistan O.4i,,-nce 1V of i9o8, it was wrist; n that, "anything done, rulesnotifications or orders issued, officers appointed, Courts constituted, notice given, reference and applications to Courts made proceedings commenced or other action taken under the said ordinance shall be continued and be deemed to have been respectively done, issued, appointed, constituted, given, made, commenced or taken under this ordinance.--- Continuing the argument, it was submitted that an Award under Ordinance LVI of 1959, according to the Provisions hereinbefore mentioned was of 19deemed to be giver under the new Ordinance and could, as such, considered to be an award under section 16 of the West Pakistan Ordinance IV of 1968. After thus making the old Awards as Awards under the new law, Earned counsel for the A% aids tried to invoke sub-clause (c) of subsection (1) and subsection (2) of section 16 of West Pakistan Ordinance IV and 1968, where it was written that the Awards were not to be of questioned in any manner by or before any Judicial authority including the High Court. It as argued that this amounted to ouster of jurisdiction of the High Court with regard to the appeals pending against old Award as well. Respectfully, I do not agree.Firstly, because the Scheme of section 46(2) is not the same in which direction the argument is bong put for word. After referring to various things done, actions taken etc. Under the old law, the first command given in the order of operation is that those actions are to continue. If proceedings of appeals have been commenced in the High Court then those are to continue. Thereafter in the order commands comes the next direction and that is that the said proceedings etc., shall be deemed to have commenced under the new law. This is quite logical; because earlier those proceedings have been allowed to continue under the old law, but in spite of that a legal fiction is being created and that is that they shall be deemed to be under the new law (as I suggest for the purpose of implementation of the orders to be passed therein); because in the converse case, If the previous proceedings were automatically to continue under one new law, then they would have so continued and creation of a special fiction in that respect was a sheer redundancy. This cannot be assumed. Secondly, assuming without conceding that proceedings commenced in the High Court and the appeals filed here, were by virtue of section 16 of the West Pakistan filed once 1V of 1968 to be impaired in an respect, then my answer is that it was for this very reason that a saving clause was inserted in-section 46(2) in order to clarify that notwith--standing the new law raving come into force, the intention was to save and not to destroy them. The saving clause in this manner works both ways, namely, to save the abatement of previous actions and proceedings due to repeal of the old law and also to save them from abatement under the new law. The argument, which is being advanced is just the half-way and does not reach its logical end. The proper way to follow the process suggested by the learned counsel for the respondent is to lift section 46(2) from its present place and put it under section 16 (which is the section dealing with appeals) and then see how the situation reads. If so done, the result will become quite clear that notwithstanding the provisions of section 16, the old appeals are not to be hit by it, but are to be continued under the old law and will nevertheless be deemed to have been disposed of under the new law.
(g) Learned counsel for the respondents argued that West Pakistan Ordinance IV of 1968 and as a matter of fact all Statutes on Industrial Disputes are procedural Statutes. With this premises, it was argued that since procedural Statutes are always retrospective, therefore, Ordinance 1V of 1968 was also retrospective with the result that it should be deemed to be in operation from a retrospective date and all appeals filed under the old law will either abate or will be dealt with by the new forums and that the High Court had no jurisdiction to deal with them any more. I have grave doubts a9 to whether the law in question can be termed wholly as a procedural law. The object of the Industrial Disputes Laws like various other Labour Laws is to ensure fair terms to the workmen, to bring about harmonious relations between the employer tend the employee, to preserve and promote the economy of the Country, to reconcile effective leadership with essentially impersonal character of big organizations to encourage collective bargaining and advancing the principle of laissez faire. Industrialisation means a social as well as an economic revolution and the problems of labour-management relations are a large part of human problem of adjustment to Industrial Change. The Laws of the kind under discussion are more of the kind of social legislation and not merely procedural. These laws create rights and liabilities; they lay down offences and prescribe penalties for the same. They provide for appeals and bestow other similar rights. They cannot, therefore, be called wholly procedural laws; because if the concept of procedural law is widened in this way, then all laws will be procedural inasmuch as they regulate the human and social conduct of the society. .
(h) Even if a law may be procedural still the right of appeal given thereunder is not a mere matter of procedure. As for example Civil Procedure Code and Criminal Procedure Code, are procedural laws, but they contain substantive provisions as well, like right of appeal (or review in Civil Matters), which have never been held to be mere matters of procedure. Moreover, in the instant case even assuming without conceding that the Statute in question is a procedural law, the theory that procedural laws are always retrospective is not correct and there again each case depends upon its own facts and features.
In Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187, this general theory with regard to Procedural laws was not accepted and at page 102 it was held as follows:- "The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes the view that questions relating to jurisdiction over a cause of action venue parties pleadings and rules of evidence also pertain to procedure, provided the burden of proof is .got shifted. Thus a statute purporting to transfer jurisdiction over certain causes of action n ay operate retroactively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only. Nevertheless, it must be pointed out that if in this process any existing rights are affected or the giving of retroactive operation cause inconvenience or injustice, then the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute. On the other hand, it the new procedural statute is of such a character that its retroactive application mill tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would favourably incline towards giving effect to such procedural statutes retroac--tively."
To the similar strain In Abdul Basir Bhuiyan v. Begum Asia Rahman and others (PLD 1968 Dacca 143) (A1. R. Khan and Maksum-ul-Hakim, JJ.), where at page 146 it was held:- "The doctrine that no suitor has vested right in the course of procedure, though well-settled is not unqualified and is not of universal application. This doctrine applies provided that no injury, hardship or injustice is caused by the application of the new procedural law. The same view was expressed by Ashutosh Mukherjee, I., in the case of Monjoor Bibi v. Akkel Ahmad 17 C W N 880. In Maxwell on Interpretation of Statutes, 9th Edition, p. 233, the observation in this regard is: 'The general principle, however, seems to be that alterations in procedure are retrospective, unless there be some good reason against it.
In James Gardner v. Edward A. Lucas ((1878) 3 A C 582) Lord Blackburn observed:- 'Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be.'
In the case of Delhi Cloth and General Mills Co. Ltd. v. Income-- tax Commissioner, Delhi (541 A 421), their Lordships of the Judicial Committee of the Privy Council observed: "The principle which their Lordships must apply in dealing with this matter has been authoritatively enunciated by the Board In the Colonial Sugar Refining Co. v. Irving 1905 A C 369 where it is in effect laid down that, while provisions of statutes dealing merely with matter' of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them.
Thus it is settled that any change in the procedural law has a retrospective effect provided such effect can be given thereto without affecting any substantive rights acquired or accrued before the change."
Examining the Statute in hand fn the light of the principles enunciated by the Supreme Court, there is no indication to show that it was retrospective in the sense in which it is being canvassed before us. Rather 9f it is given a retrospective effect it is likely to impair the rights already acquired, especially, the right of appeal to the High Court, which is definitely a far better forum than the Industrial Tribunal. It is to point out that whereas High Court has a definite and set procedure of hearing appeals, the procedure of the industrial Tribunals is neither certain, nor has it so far been taken down. Section 17(4) of the West Pakistan Ordinance IV o.1' 1963 contemplated that the Tribunal shall follow such procedure as may be "Prescribed", (which word was defined in section 210 to mean prescribed by Rules), but no rules regarding such a procedure have so far been made.
Again, appeals in the High Court are heard by a Division Bench which is also a great advantage and safeguard for a well-considered hearing. Further, it is an undisputed fact that after promulgation of West Pakistan Ordinance IV of 1968, the Industrial Appellate Tribunal was not set up for a good deal of time. Suppose these appeals had come up for hearing during the said interregnum period before the High Court, what would have been the position of the employees?
Could they successfully say at that time that since the scheme, of the new law is to set to new forums which have not been sat tip, the appeals should be thrown out (a factor day taken Note of in Kirpa Singh v. Ajaipal Singh and others (I L R 10 Lah. 165). All this show that even proceeding frown the point of view of any ambiguity in the Statute on the subject, the beneficial construction will be to hold that the vested right of appeal to High Court had not been destroyed with any retrospective effect and that the pending appeals were saved.
(i) Learned counsel for the respondents referred to section- 4 of the West Pakistan General Clauses Act. This section reads as follows:- "4. Effect of repeal.--(i) Where this Act or any other West Pakistan Act repeats any enactment then, unless a different intention appears, the repeal shall not--
(a) revive anything not in force or existing at the tine at which the, repeal takes effect ;
(b) affect the previous operation of any enactment so repealed or anything duly done or sufferer thereunder ; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed ; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed ; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid 1 and any such investiga--tion, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the Repealing Act had not been passed."
(2) The provisions of subsection (1) shall apply on the expiry or withdrawal of any Ordinance promulgated by the Governor as if it had been repealed by a West Pakistan Act."
They then referred to section 23 of the same Act. This section reads as follows:- "23. Continuation of appointment, notification, orders etc. issued under enactments repealed and re-enacted.- Where any West Pakistan Act, is repealed and re-enacted with or without modification, then, unless it i9 otherwise expressly provided, any appointment notification order, scheme, rule, form or bye-law made or issued under the repealed Act, shall so far as it is not inconsistent with the provisions re-enacted continue in force, and be deemed to have been made or issued under the provisions so re-enacted unless or until it is superseded by any appointment, notification, order, scheme, rule, form or bye-law made or issued under the provisions so re- enacted."
After keeping the aforesaid two sections in view, the learned counsel compared them with the wording of section 46(2) of the West Pakistan Ordinance IV of 1963 already reproduced above and argued that (a) while in section 4 of the West Pakistan General Clauses Act, it was written that the old proceedings continue as if the Repealing Act had not been passed, there was no such wording in section 46(2) ibid which meant that while continuing the old proceedings under West Pakistan Ordinance IV of 1968 a negative intention was intended and the proceedings will have to be continued under the now law in new forums and not under a scheme of the kind indicated in the West Pakistan General Clauses Act t (b) that sections 4 an I 23 of the West Pakistan General Clauses Act covered a vast range of matters and subjects, and the scheme in that Act was to deal with them in the form of two sections. As against this, section 46(2) was a composite provision in which the aforesaid subjects which were scattered in two sections of the West Pakistan General Clauses Act, have been jumbled up and the Legislature made the law in a brief form indicating that here the intention was different from the one envisaged in the West Pakistan General Clauses Act. It was further submitted that if the intention was the same a9 contained In West Pakistan General Clauses Act then there was no need to repeat the same over here in a different terminology. This argument was advanced for the purpose of showing that if in a saving clause of a particular statute, factors exiting in General Clauses Act are not mentioned then the intention is to save them.
Reliance was placed for this proposition on Khushi Ram Atma Ram Jaisinghani and others v.
Custodian of Evacuee Property rest Pakistan, Karachi and others (PLD 1965 SC 453). Eastern Pakistan Railway Workshop Employees' League v Chairman, East Pakistan Railway Board and another (PLD 1968 Dacca 681) and Sheikh Muhammad Amin v. Chief Settlement Commissioner and another (PLD 1966 Lab. 473). When asked how this doctrine is applicable to the facts and circumstances of the present case, learned counsel argued that since the word "right'", (as existing In section a of the West Pakistan General Clauses Act) has not been used in West Pakistan Ordinance IV of 1968 the effect was that no right (Including the right of appeal) was saved under the now law and, as such, all the old appeals must abate. This part of the argument can be straightway rejected because the word "proceedings" in section 46(2) of the West Pakistan Ordinance IV of 1968 is comprehensive enough to cover appeal proceedings. The rest of the argument though attractive in my respectful opinion does not advance the case of the employers.
In the instant case what has taken place is a repeal followed by a fresh legislation. Following passage in the Interpretation of Statutes and General Clauses Act by N. S, Bindra 4th (1965 Edition), at p. 844, with reference to section 6 of the General Clauses Act (which corresponds to section 4 of the West Pakistan General Clauses Act), is very instructive and may be reproduced as an answer to the argument advanced "Whenever, there is a repeal of an enactment the consequences laid down in section 6, General Clauses Act, will follow unless, as the section itself says, a different Intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary intention. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot therefore, subscribe to the bread proposition that section 6, General Clauses Act, is ruled oat when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law. See The State of Punjab v. Mohan Singh AIR 1955 SC 84 and Indira Sohan Lai v. Custodian, Evacuee Property AIR 1956 SC 77."
Applying the said test to the facts and circumstances of the present case, there appears to be no inconsistency between the West Pakistan General Clauses Act and section 46(2) of West Pakistan ordinance IV of 1968; up to the stage when it is laid down that the old proceedings shall continue, This is what West Pakistan General Clauses Act says and this is what section 46(2) Read also says. The said provision of law is merely declaratory of the normal law and no more. There is no suggestion in the two Statutes to destroy these proceedings. The contrary intention comes is only after the mandate of the first part of section 46(2) is carried out, where it is laid down that when the proceedings are continued (under- the old law), they shall be deemed to have been continued, under the new law. "Generally speaking when you talk of a thing being deemed to be something, you do not mean to say that it is that which it is to be deemed to be. It is rather an admission that it is not what It is to be d6emed to be, and that, notwithstanding it is not that particular thing nevertheless . . . . . it is to be deemed to be that thing. "(See The Queen v. The County Council of Norfolk ((1891) 60 L J Q B 379), Shakoor Hasan v. Emperor (AIR 1944 Nag. 40) and Habib & Sorry v. Income-tax Commissioner, Bombay (AIR 1947 Bom. 380) per Stone, C. J.). In the Bombay case, hereinbefore quoted, it was held, "deeming a past event or thing to be something other than what it was or is, may be an interference with the course of nature, since it creates artificial date in the place of existing fact. But it is not in my opinion retrospective changing of the Statute law." To the similar strain is ''To the similar strain is Basant Singh V. Rampal Singh and another (AIR 1919 Oudh 217), where the wording of the relevant statute was that, all orders issued under repealed enactment shall, so far as may be, be deemed to have been issued under the new Act," and on the strength of this it was argued that even if redemption (which was the subject involved in that case) took place under Act XVII of 1876, section 47 of Act III of 1999 should be held to be applicable. This contention was repelled and it was held:- --- Section 2 is merely the usual provision now, incorporated in modified form in section 24, U. P.
General Clauses Act, 1904, designed to safeguard the validity of orders, appointments etc., issued under a repeated enactment. It was certainly never intended to give retrospective effect to Act 3 of 1899."
Reference may also be made to Gulabchand Gambhirmal v. Kudilal Govindram Seksaria and another (AIR 1951 Madh. Bha. 1), where it was held:-- "Learned counsel for the appellant, however, relied on the proviso to stress the point that as the matters enumerated in the Proviso which were done under the Ordinance are by the proviso deemed to have been doze under the Act, the High Court Act is retrospective in operation as from the date of the Ordinance. I am not impressed by this contention. The statutory fiction resorted to In the proviso to Section 40 of the Act is merely designed to safeguard the validity of the matters mentioned in the proviso and done under the Ordinance, and prevent the Act from Interfering with rights already acquired by a party. A saving clause does not give to a party any further right than he already had. Nor does it give retrospective effect to an enactment."
Respectfully following the above line of approach, my view is that in the instant case as well, section 46(2) cannot be given a meaning different from what hat been held by me earlier and that it is merely a usual and normal provision of the West Pakistan General Clauses Act incorporated in a modified form designed to safeguard the continuation of previous proceedings and is merely declaratory in nature. The failure to repeat the exact wording and sentences of the West Pakistan General Clauses Act, makes no difference because the same result has been achieved by the word "continued" a W all comprehensive terminology than the lengthy provisions of West Pakistan; general Clauses Act. The situation is one of compliment to the draftsman who has achieved the same result in a brief form rather than of subjecting him to criticism for any destruction of vested rights. I may here again refer to Madhya Bharat case where in another place at page 28, 9n paragraph 142, it was held:- "(142) A saving clause, as its name implies, is a clause which is inserted in the repealing statute in order to protect or save a person as regards rights which he may have acquired under the then existing law. But to use it in determining the construction of the Act, or to extend it so as to give a wider scope to the Act amounts to ignoring the very purpose for which a saving clause is inserted."
I feel no hesitation to apply the principles hereinbefore enunciated to the facts of the present case.
(J) Argument was advanced that the forum of appeal as distinct from the right of appeal itself was a mere matter and procedure in which a suitor cannot be said to pens a vested right. No case-law with regard to change of forum of appeal was, however, cited before us and the proposition remains unsubstantia4ed, - On- the other hand, there is a clear pro--nouncement of the Judicial Committee of the Privy Council in The Colonial Sugar Refining Company Limited v. Irvt7g 1905 L R (A C) 369. In that case while an appeal before the Privy Council was pending, the forum oaf appeals with regard to the matters of the kind involved there, was changed and it was argued that the Privy Council could not hear this said pending appeal and It was further contended that change of forum of appeal was a mere matter of procedure. The con--tention was repelled and it was held as follows:- (The underlining in the passage reproduced is mine so as to highlight the point in hand).
"As regards the general principles applicable to the case there was no controversy. On the one hard, it was rot disputed that if the matter in question be a matter of procedure only, the petition as well founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested."
Similar view was expressed in Kirpa Singh v. Ajaipal Singh and others (I L R 10 Lab. 165), (Broadway, Addison and Tek Chand, It.), where the forum of appeal was changed and it was held that such a change was not a mere matter of procedure. In that case it was further held that the word "proceedings", included also the proceedings of appeal. The facts of the case were that on 23-10- 1962, two appeals were filed in the High Court. During the pendency of those appeals, Sikh Gurdowaras Act VIII of 1925 came i .to force, as a result whereof, the High Court had no jurisdiction to hear and dispose of the appeals for which a new tribunal was to be set up under the Act hereinbefore mentioned. A question arose whether the change of forum of appeal affected a vested right and could be said to affect the appeals already pending in the High Court or not. It was held that this was not a mere matter of procedure and following the Privy Council case of the Colonial Sugar Refining Company Limited v. Irving, it was held that the change to law could not affect the appeals pending in the High Court the same view was taken to Sutlej Cotton Mills Ltd., Okara v. Industrial Court, West Pakistan, Lahore and others (PLD 1966 SC 472) and Ch. Sir Muhammad Zafrullah Khan and others v. The Custodian of Evacuee Property, West Pakistan, Karachi and others (PLD 1964 SC 865), to which I will advert in detail later. Before us, learned counsel for the employers, relied upon Adnan Afzal v. Capt. Sher Afzal (PLD 1969 3 C 187), which was a case where, it was held that after the introduction of Muslim Family Laws Ordinance No. VIII of 1.961 the Family Courts became the Courts of exclusive jurisdiction regarding matters, "of maintenance" etc., and the jurisdiction of the Magistrates under section 488, Cr. P. C. no longer survived even to deal with pending cases before them. In that case, it was held that nobody had a vested right in a forum of trial and changes about forum of trial being a matter of procedure affected even pending cases. The case is not relevant because here we are not concerned with any original trial but forum of appeal on which we have the express pronouncement of the privy Council in the case of Colonial Sugar Refining Company Ltd. v. Irving. Moreover, in the case of Adnan Afzal v. Capt. Sher Afzal, the Supreme Court itself kept the matter of appeal distinct from original trials and held the appeal as "a matter of right". On page 193, the actual passage is as follows-- --- . . . But an order of a Family Court is appealable. This is a valuable right, for, a revision is not, like an appeal, a matter of right."
This is to be read alongwith Alifdin v. Shaukat Ali (PLD 1969 Pesh.62), decided by my learned brother Muhammad Afzal Zullah, J., which was approved by the Supreme Court in the case of Adnan Afzal v. Capt. Sher Afzal. The legal position as summed up by my learned brother Zullah, J., is quite instructive and since it was endorsed by the Supreme Court it is advisable to reproduce the relevant passage in this context which is as follows;-- (The underlining is mine t-- emphasise the important observations).
"It may be mentioned here that the learned counsel for Alif Din has cited Pakistan etc. v. Devachand Mulijimal and others PLD 19611 Kar. 107; Government of West Pakistan v. Ghulam Sarwar Khan P L 1)
1962 Pesh. 115 and Ghazi and others v. The State PLD 1962 Lab. 662, end some other old Indian cases, in support of the proposition that the change of forum by law is always retrospective because it is a matter of procedure. I have no dispute with the proposition that a procedural change brought about try a new law is to be treated as retrospective, unless by clear words or necessary intendment it is shown to be prospective. But the question whether or not the change of to, um is always a matter of procedure is not free from difficulty. In my view whenever the change of forum is in addition to dealing with purely procedure and it also affects the existing rights of the parties; as to the continuance or culmination of certain proceedings in the existing forums the change of forum may not be retrospective unless it is made retrospective by clear words used or clear intendment shown in the Amending Act. For example, where the remedies available in the earlier forum or, against the decisions of the earlier forum, are more substantial or are more in number than the remedies provided in or against the decisions of, the new forum, in my view the change of forum would affect the rights of the parties. Therefore, the change of forum in such a situation, will not only be mere procedural matter but something more than that; and thus will not be retrospective. The cases cited by the learned counsel in support of his contention do support him in so far as they go. But in none of these cases, it has been held that when the change of forum affects the rights of the parties, the change remains procedural and applies retrospectively. In each one of those cases, the circumstances of the relevant change were taken note of and then a decision mills was given."
I am in respectful agreement with the view of my learned brother Zullah, J., which has the approval of the Supreme Court as well. It is a common ground that right of appeal is a vested right. If that is so, then the change in the forum of appeal, according to the law, hereinbefore quoted, will affect that right and, therefore, cannot be held to be a mere matter of procedure. The case in band should, in my view, be considered on the basis of the principles and ratio decidendi of Sutlej Cotton Mills Ltd., Okara v. Industrial Court, West Pakistan, Lahore and others and Ch. Sir Muhammad Zafrullah Khan and others v. The Custodian of Evacuee Property and others. In The Essential Industries v. central Board of Revenue (PLD 1969 Lah. 24) (Waheeduddin, C. J., as then his Lordship was and Fazle-Ghani Khan, J.), it was held that right of appeal was vested right and could not be considered to be impaired by a new restriction imposed on appeals. Reference can also be made to Messrs Hoosein Kasam Dada v. The State of Madhya Pradesh and others (AIR 1953 SC 221), approving Nagardra Nath v. Mon Mohan Singha (AIR 1931 Cal. 100). At this stage I may mention that in some cases a principle has been enunciated or accepted that right of appeal arises when the lie starts or the suit is filed. See Garikapati Veeraya v. N. Subbiah Choudhry and others (PLD 1957 SC (Ind.) 448), The Essential Industries v. Central Board of Revenue and Ghazi and others v.
The State and another (PLD 1962 Lab. 662). Our Supreme Court, however, In Sutlej Cotton Mills Ltd., Okara v. Industrial Court, West Pakistan, Lahore and others, while examining the question as to whether appeals which were filed before the Constitution of 1962, continued and could be heard by them, held that the change in that respect did not affect pending appeals. They proceeded to deal with the case on the principle that the right of appeal had accrued at the time when the order appealed against was passed or the petition for special leave to appeal was filed, and that such right could not be Impaired and nor could the jurisdiction of the Appellate Court with regard to pending appeals be held to have been extinguished. Their Lordships did not use any word of the kind to suggest that the right of appeal goes back to the stage of the start of the lis or the filing of the plaint. It is pertinent to mention that the case before the Supreme Court was of art appeal against the award of an Industrial Court passed on the 25th of March 1962. The petition for Special Leave to Appeal was filed on the 7th of June 1962 (that is one day before the commencing day of the Constitution of 1962). The Constitution came into force on the 8th of June 1962, when jurisdiction of the Supreme Court for hearing appeals from judgments of Courts other than the High Courts was abolished. Questions arose whether this could affect pending appeals. The following passage in the judgment of Hamoodur Rahman, J. (now the Chief Justice), is instructive:- "Under Article 160 of the late Constitution this Court had undoubtedly the jurisdiction to grant special leave to appeal from an order of even a tribunal and where leave to appeal bad been granted before; the commencing day of the new Constitution, the appeal by such leave did not abate, as Article 58 of the now Constitution is not retrospective either by express enactment or by necessary implication vide Zafrullah Khan v. Custodian PLD 1964 SC 865. The question hero is whether the position would be the same if only the petition for special leave is filed before the relevant date. The answer to this question will depend upon whether the appeal by special leave allowed under Article 160 of the late Constitution, in our opinion was not a mere procedural provision, it gave to a person aggrieved by an order of any Court or tribunal the right to approach this Court for special leave even in cases where ordinarily no appeal lay. It was a suitable right and not a mere matter of procedure. This right the appellant in this case certainly had vested in him on the day he filed his petition in this Court, and if the petition was heard on that day, the objection now raised would not have been available. Can this right be now denied to him merely because in the ordinary course of business of this Court the petition came up for hearing later? Should the proceeding commenced for the enforcement of aright which had already accrued to the appellant before the commencing day, be not continued as if the Laws (Continuance in Force) Order, 1958, had not been repealed even under Article 250 of the new Constitution? In our view, a vested right cannot be so taken away, for the appellant had a right to have his petition heard on the basis of the law prevailing on the day he filed his petition.
This was the principle upon which the Privy Council in the case of the Colonial Sugar Refining Co.
Ltd. v. Irving refused to dismiss an appeal, which had come before them by the leave of the Supreme Court of Australia. The action in that case had commenced on 25th October 1902. It was set down for hearing in July 1903, but was heard on 4th September 1903. In the meantime, the Judiciary Act of 1903 had received the Royal assent on 25th August 1903, and by this Act the right of appeal to his Majesty in Council given by the Order in Council of 1860 had been taken away.
Notwith--standing this, the Supreme Court of Australia granted leave to appeal from its judgment of 4th September 1903. The Privy Council held that the appeal was competent and observed."
(Their Lordships then quoted a passage from that case which has already been reproduced in sub-paragraph J of this judgment earlier) and then wound up by saying:-- "Upon the same principles we too are of the view that the present appeal is competent and hold that the preliminary objection is not sustainable."
Similar was the view expressed in Ch. Sir Muhammad Zafrullah Khan and others v. The Custodian of Evacuee Property, West Pakistan, Karachi and others, where the order appealed against was of 29- 7-1960, Special Leave to Appeal against which was granted on 30-11-1960. It was held at page 873:- " . . . When such leave was granted, the right became a vested right to have the decision of the Tribunal appealed from examined by the Court."
These cases maintain the principle that the right of getting an appeal heard from a particular Court which constitutes the Court of appeal, at the relevant time is a vested right and Is not a mete matter of procedure. However, adverting to 'the point with which I wits dealing at the moment it will be noticed that the Supreme Court called the right of appeal as vested from the date of the institution or admission of the appeal before them. Respectfully following the same view I would hold (without entering into any further controversy on this aspect which even otherwise is not necessary so far as the present occasion and the case is concerned), that the right of appeal to the High Court, In the instant cases accrued at the time, the orders appealed against were passed or when the appeals were actually filed and that the said right was neither destroyed nor the proceeding C of appeals abated or were impaired in only other respect and rather they were expressly saved by the mandate that they shall continue.
3. For the reasons, which I have given above, I am of the respectful view that the present appeals can continue in and be heard by this Court. However, I share the recommendation of my learned brother that since the matter is of an important nature' it should be referred to a larger Bench, especially when it is being contended that the effect of the judgment in F. A. O. No. 147 of 1968, is to the contrary.
MUHAMMAD AKRAM, J.-I have the advantage of having gone through the two separate judgments before me proposed by my learned brothers on the Full Bench. They have discussed at length all the different aspects argued before us at the heating. I have no hesitation in acknowledging that I have greatly benefited by their views on the subject.
2. After due deliberations I fully agree with their con--clusions. I do not intend to burden this record further by a detailed discussion of the immense case-law on the subject. Nor do I wish to enter upon a 'lengthy discourse on the general principles applicable in such cases. In my opinion an answer to the question posed before us can best be found by concentrating more on a correct interpretation of the relevant provisions of the different enactments discussed at the hearing.
3. All the above 27 appeals were separately filed its the High Court between 1963 to 1968 under section 12(5) of the Industrial Disputes Ordinance LVI of 1959 against the awards respectively made in each case by the Industrial Court. This Full Bench was constituted to consider the question as to how far, if at all, these pending appeals wore affected lay the subsequent repeal of this Ordinance, which was replaced by the new enactments.
4. On the 8th of March 1968 the West Pakistan Industrial Disputes Ordinance IV of 1958 was promulgated to replace the Ordinance of 1959. It introduced important changes in the then existing law. Under section 8 of this Ordinance Industrial Courts were constituted for resolving in industrial disputes. A special tribunal was set up under section 17 to hear appeals against the award of the Industrial Courts. Simultaneously under section 16 of the Ordinance the powers of the High Court to entertain appeals against the award of the Industrial Court were altogether withdrawn. Section 46 of this Ordinance contains important provisions, for the repeal of the previous Ordinance of 1959 and for saving the pending cases. Then came theIndustrial Relations Ordinance XXIII of 1969 promulgated on the 13th of November 1969. It provided Inter alia for the establishment of Labour Courts under section 35 and Labour Appellate Tribunals under section 38. It repealed Ordinance IV of 1968 and other connected statutes. It also contains a saving clause In section 67 of this Ordinance corresponding to the one contained in section 46 of the Ordinance IV of 1963. It was followed by the Industrial Relations (Amendment) Ordinance XIX of 1970. It has inter alia introduced minor changes in section 67 of Ordinance XXIII of 1969 containing the repealing-cum-saving clause.
5. The general principle applicable to these cases before us is embodied in the well-known maxim, "Omnis nova constitution futuris temporibus forman imponere debet non practeritis that is t except in special cases, the new law ought to be construed so, as to interfere as little as possible with vested rights. Bu sometimes it is expressly enacted that an enactment shall be retrospective. If it is a necessary implication from the language employed that the Legislature intended a particular section to have retrospective operation, the Court is bound to give effect to this intention. In all cases the endeavour is to ascertain the intention of the Legislature.
6. There is no dispute about these principles. However, the real difficulty lies in the true interpretation of the above repealing and the saving clauses of the enactments in question and their application to these pending appeals before us. As already mentioned all these appeals were filed in the High Court under section 12(5) of the Industrial Disputes Ordinance, 1959. 1t was afterwards repealed in its application to the Province of West Pakistan by virtue of subsection (1) of section 46 of the West Pakistan Industrial Disputes Ordinance IV of 1968 promulgated on the 8th of March 1968. At the same time the saving clause in subsection (2) of this section expressly provided that:- "Notwithstanding the repeal of the said Ordinance any--thing done, rules, notifications or orders issued, officers appointed, Courts constituted, notices given, references and applications to Courts made, proceedings commenced or outer action taken under the said Ordinance shall, so far as the same are not inconsistent with the provisions of this Ordinance, be continued and be deemed to have been respectively done, Issued, appointed, constituted, given, made, commenced or taken under this Ordinance."
In simple language it meant that notwithstanding the repeal of the Ordinance of 1959, Courts constituted, proceedings com--menced or other action taken under the said Ordinance shall, so far as the same are not inconsistent with the provisions of this Ordinance be "continued" and, be "deemed" to have been respectively constituted, commenced or taken under this Ordinance. I fully agree with my learned, brother K. E. Chauhan, J., fn holding that the key to the interpretation of this clause lies In the word "continued". It does not envisage any break in the appeals pending before the High Court and they must be continued as before. But by the fiction of the law they are deemed to have been commenced under the new Ordinance and shall have to be disposed of accordingly.
This subsection does not envisage any abatement of these appeals in the High Court or their transfer to the appellate tribunal for disposal under the flew disposal.
7. In turn the Ordinance of 1968 was repealed by sub-section (1) of section 67 of the Industrial Relations Ordi--nance XXIII of 1969 promulgated on the 13th of November 1969. The saving clause in subsection 2(b) of this section as amended by section 28(2) of the Industrial Relations (Amendment) Ordinance XIX of 1970 lays down that t :- "Notwithstanding the repeal of any law by subsection (1) and without prejudice to the provisions of section 24 of the General Clauses Act, 1897 (X of 1897):
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) anything done, rules made notification or order issued, officer appointed, Court constituted, notice given, proceedings commenced or other actions taken under any law shall. be doomed to have bean done, made, issued, appointed, constituted, given commenced or taken, as the case may be, under the corresponding provisions of this Ordinance."
This provision sufficiently saves these pending appeals commenced In the High Court under the old Ordinance and have got to be disposed of as if they were filed under the now Ordinance of 1969, under a fiction of the law, by virtue of the above deeming clause. This subsection does not contemplate withdrawal of these appeals from the High Court and their transfer to the Labour Appellate Tribunal for disposal. Nor does the repeal of the old Ordinance result in their abatement.
8. But before us the learned counsel for the respondents strongly relied on an unreported judgment by two of us in F. A. O. No. 147 of 1968 Re: Ahmad Hussain v. Messrs Sartaj Industries dismissed to limine on the 14th of October 1968. In this connection; I quite agree with any learned brother IC. 8.
Chauhan, J., that that case is distinguishable on facts. In that case the Industrial Court had made its award published in the Government Gazette on the Sib of January 1968, for reinstatement of some of the workman under the Industrial Disputes Ordinance, 1959. On the 11th of June 1968, this Ordinance was repealed with the promulgation of the West Pakistan Industrial Disputes Ordinance, 1968. Thereafter the Appellants in that case filed an application against their employer before the West Pakistan Industrial Court under section 21 of the West Pakistan Industrial Disputes Ordinance of 1968 for payment of money that had allegedly accrued to them on account of certain benefits conferred on them under the previous award. But the Industrial Court constituted under the Ordinance of 1968 rejected the applica--tion on the 2nd of August 1968 as incompetent. On this the appellants in that case filed their appeal (F. A. O. No. 147 of 1968) against the order in the High Court under section 12(5) of the Industrial Disputes Ordinance, 1959. But we rejected the appeal in limine as incompetent on the 14th of October 1968. The application in question was made by the appellant after the repeal of the Ordinance of 1959, under section 21 of the new Ordinance of 1968. It was rejected by the Industrial Court under the new Ordinance and the appeal did not lie against it to the High Court. Therefore, no exception can be taken against this decision on the facts in that case. In that case it was strenuously contended before as that the award dated the 8 of January 1965, passed in favour of the appellants under the Ordinance of 1959, was liable to be implemented under that law despite its repeal. But in repelling that contention we were of the opinion that by virtue of the saving clause and the adoptation in section 46(2) of the Ordinance of 1968 any order issued on the award made under the previous Ordinance must be implemented and enforced in accordance with the machinery provided by the new law. In my opinion thin does not militate against the view expressed by us now to this Full Bench and the general observations made in that case were necessarily confined to the facts of that case.
9. For the foregoing reasons I agree with my two learned brothers in the proposed answers to the, questions raised before the Full Bench.
K. E. CHAUHAN, J.--The judgment of the Full Bench has been announced by me to day in open Court. The concerned appeals should now be fixed for hearing on merits before the Bench dealing with such appeals.
MUHAMMAD AFZAL CHEEMA, J.--The question involved in F. A. O. No. 70 of 1963 and 26 other appeals detailed in the attached cause list, all separately filed on different occasions from 1963 to 1968 under section 12(5) of the Industrial Disputes Ordinance, 1959, is one of preliminary nature relating to the jurisdiction of the High (:curt In view of its ouster by West Pakistan Industrial Disputes Ordinance IV of 1968 and the successor statute Industrial Relations Ordinance XXIII of 1969. The fate of all these cases listed before the Full Bench hinges on the correct interpretation of the provisions contained is section 46(2) of Ordinance IV of 1968 and section 67(1) of Ordinance XXIII of 1969, which are deeming clauses purporting to have saved pending proceedings.
2. In an earlier case F.
A. O. No. 147 of 1968, Ahmad Hussain v. Messrs Sartaj Industries, the view taken by a Division mills Bench of this Court consisting of myself and my learned brother Muhammad Akram, J. was that because of the ouster of the High Court jurisdiction by the new law, the appeal was no longer competent in this Court. 1t may be observed in this context that this judgment was delivered on theth 14th of October 1968, before ordinance XXIII of 1969 came into force and as such, the provision contained in section 67(2) ibid could not be considered. Subsequently, several cases now listed before the full Bench came up before another Division Bench consisting of myself and my learned brother K. E. Chauhan, J. After hearing the learned counsel for the parties we suggested that in view of the importance of the legal question involved and a possible conflict of views thereon, the matter should be referred to the larger Bench, which was accordingly constituted by the learned Chief Justice.
3. In order to appreciate the precise question involved for determination In these cases it appears necessary to trace with a short background the Legislative changes introduced from time to time giving rise to this situation. Industrial Disputes Ordinance LVI of 1959, which repealed the Industrial Disputes Act, 1947 (XIV of 1947), provided for the remedy if appeal under section 12(5) ibid, in the following terms:- "12(5). Any award published under subsection (2) or sub--section (2-B) may be appealed against to the High Court by any party to the dispute within thirty days -of the publication of the-award; and the decisions of the High Court in such appeal shall be final."
Section 14 ibid provided for the period of operation of settlements and awards. A settlement was to come into operation on a date agreed upon by the parties to the dispute or on the data of signing the memorandum of settlement. The settlement was to be binding for such period as agreed upon, by the parties and if no such period was agreed upon for a period of one year from the date of signing the memorandum of settlement. The provisions also referred to the mode of its termination. Under subsection (3) a similar provision was made in respect of awards, which had to remain operative for a period specified therein not exceeding one year. The Court was given the power to extend the period of operation subject to the maximum limit of three years from the date on which it came into operation and could also terminate the period of the award specified or extended on the ground of material change in the circumstances forming the basis of the award.
Then came Industrial Disputes (Amendment) Ordinance, 1962, (LXXIX of 1962), vide section 3 of this Ordinance a new subsection (3-A) was added to section 14 of Ordinance LVI of 1959, whereby the operation of the High Court decisions in an appeal under section 12(5) was confined to a maximum period of one year. It reads as follows:- "(3-A) Tie decision of the Nigh Court in an appeal under subsection (5) of section 12 shall remain in operation for such period, not exceeding one year, as may be specified in the decision."
In subsection (3) reproduced below a minor consequential amend--ment was also incorporated by the insertion of the underlined clause.
"14(3).--An award published under subsection (2) or sub--section (2-B) of section 12 shall, unless it is appealed against to the High Court come into operation on such date and remain In operation for such period not exceeding one year, as may be specified in the award."
Ordinance LXXIX of 1962 was followed by Industrial Disputes (West Pakistan Amendment)
Ordinance, 1965 (XV of 1965) and Industrial Disputes (West Pakistan Amendment) Act. It intro-- duced certain amendments in sections 5 and 18 of Ordinance LVI of 1959, vie-a-vie, its application to West Pakistan dealing with conciliation proceedings and Trade Union etc. which are not relevant for our purpose. Subsequently, on 8th March 1968, the West Pakistan Industrial Disputes Ordinance 1V of 1968 teas promulgated which brought about important changes in the existing law. Not only did it repeal Ordinance LVI of 1959, which was a Central Statute vie-a-vie its application to West Pakistan, but also ousted the appellate jurisdiction of the High Court in favour of Appellate Tribunals constituted under section 17 ibid, to hear appeals both against awards as well as decisions. The relevant provision is contained in section 16 and roads as follows:- "16. Appeal.--M An appeal shall lie to the Tribunal-
(a) against an award given under clause (b) of subsection (1) of section 15, within thirty days of the announcement of the award
(b) against an award published under subsection (3) of section 15, within thirty days of the publication of the award;
(c) against a decision of the Court under section 26 or section 37, within thirty days of the announcement of the decision under clause (b) of subsection (1) of section 15, or its publication under subsection (3) of that section, as tae case may be; and the decision of the Tribunal in such appeal shall be final and shall not be questioned in any manner by or before any judicial or other authority, including the High Court.
(2) An award under subsection (5) of section 15, and any decision of the Court other than an award or a decision under section 26 or section 37, shall be final and shall not be questioned in any manner by or before any judicial authority, including the High Court."
It may also be mentioned in this context that the word "Court" referred to an Industrial Court constituted under section 8 of the Ordinance consisting of a Chairman and two members, one to represent the employers and the other to workmen, all to be appointed by the Government. Under section 17 ibid the Tribunal constituted for hearing of appeals was to consist of only one member to be appointed by the Government. He was to be a person who was or had been qualified to be appointed as a Judge of High Court.
Although the jurisdiction of the High Court was otherwise ousted as stated earlier and the decision of the Tribunal in mud appeals and awards etc. was not questionable before any judicialauthority including the High Court, the latter could nevertheless hear appeals against an order of conviction recorded by the Tribunal under section 17(5) ibid for the contempt of its authority provided the contemner was sentenced to imprisonment or fine exceeding Rs.
50. Section 46 of this Ordinance not only repealed the Industrial Disputes Ordinance LVI of 1959, in its application to West Pakistan but also saved inter alia pending proceedings to the extent of their consistency with the provisions of this Ordinance. It reads as follow:- "46. Repeal arid savings.-(1) The Industrial Disputes Ordinance, 1959 (LVI of 19.)9), in its application to the Province of West Pakistan, hereinafter referred to as the said Ordinance, is hereby repealed.
(2) Notwithstanding the repeal of the said Ordinance, anything done, rules, notifications or orders Issued, officers appointed, Courts constituted, notices given, references and applications to Courts made, proceedings commenced or other action taken under the said Ordnance shall, so far as the same are not inconsistent with the provisions of this Ordinance, be continued and be deemed to have been respectively done, issued, appointed, constituted, given, made, commenced or taken under this Ordinance."
Then came Ordinance XXIII of 1969, which was a Central Statute and was given a different nomenclature of the Industrial Relations Ordinance of 1969. It was enacted in the national interest of Pakistan with a view to the achievement of uniformity and to amend and consolidate the law relating to the formation of Trade Unions, the regulation of relations between employers and workmen and the avoidance and settlement of any differences or disputes arising between them.
It repealed Ordinance IV of 1968 and other connected Statutes and provided inter alia for the establishment of Labour Court under section 35 and Labour Appellate Tribunal under section 38. It safeguarded the Trade Unions right of collective bargaining, tried to ensure the true observance of good relationship between the employers and the workmen and provided a mechanism for dialogue between them. Like the Tribunal under Ordinance IV of 1968, the Labour Appellate Tribunal was also to consist of a member who was or had been a Judge of the High Court and could punish for contempt of its authority. The contemner could on conviction prefer an appeal to the High Court in case of an award of sentence of imprisonment or that of fine exceeding Rs.
50. But the provision directly in point and corresponding to the one contained in section 46 of Ordinance 1V of 1968 is contained in Section 67 of this Ordinance, which reads as follow:- "67. Repeals and savings.-(1) The following laws are hereby repealed, namely:-
(a) The East Pakistan Trade Unions Act, 1965 (E. P. Act V of 196s).
(b) The East Pakistan Labour Disputes Act, 1965 (E. P. Act VI of 1965).
(c) The West Pakistan Industrial Disputes Ordinance, 1968 (W. p. Ordinance IV of 1968); and
(d) The West Pakistan Trade Unions Ordinance, 1968 (W. P. Ordinance V of 1968).
(2) Notwithstanding the repeal of any law by subsection (1), and without prejudice to the provisions of section 24 of the General Clauses Act, 1897 (X of 1897):-
(a) every Trade Union existing Immediate'. y before the com--mencement of this Ordinance which was registered under any such law, shall be deemed to be registered under this Ordinance and its constitution shall, as far as it is not inconsistent with the provisions of this Ordinance, continue in force until altered or rescinded ; and
(b) anything done, rules made, notification or order issued officer appointed, Court constituted, notice given, proceedings commenced or other actions taken under any law shall be deemed to have been done, made, Issued, appointed, con--stituted, given, commenced or taken, as the case may be, under the corresponding provisions of this Ordinance, to the extent of consistency therewith."
As would be clear from the language of clause (b) of subsection (2) of section 67 all proceedings commenced or other sections taken shall be deemed to bate commenced or taken under this Ordinance to the extent of their consistency therewith.
The last place of legislation in the series is Ordinance XIX of 1970, which by a calculated commission of a reference to consistency in regard to pending proceedings made the application of this provision unqualified and absolute In so far as the continuation of these proceedings was concerned. The relevant provision is contained In section 28 of the Ordinance and reads an follows:- "28. Amendment of section 67, Ordinance XXIII of 1969, In the said Ordinance, in section 67, in subsection (2)----------_
(1) in clause (a) the comets and words "as far as it is not In--consistent with the- provisions of this Ordinance" shall be omitted: and
(2) in clause (b), the comma acid words "to the extent of consistency therewith" shall be omitted."
4. Although the point, referred to the Full Poach wore snot specifically formulated, the precise questions that fall for determination are, firstly, as to whether the appeals filed In the High Court under section 12(5) of Ordinance LVI of 1959, are 011 alive or have abated, secondly, in case they arc alive having been saved by the provisions contained in section 46(2) of ordinance IV of 1968 and section 67(2) of Ordinance XXIII of 1969, whether they can still be hoard and disposed of 'by the High Court despite the ouster of its jurisdiction or alternatively whether they have to be returned so as to be filed before the Labour Appellate Tribunal or should be transferred to it despite the absence of express provisions to that effect. As stated at the outset, the answers to these questions depend on the correct inter--pretation of the saving clauses referred to earlier.
5. Arguments were addressed to us in support of three different propositions. Messrs Altaf Hussain A. H. Najfi and Muhammad Abdullah Bajwa, Advocates, contended that the High Court had the jurisdiction to hear and dispose of the pending appeals despite the ouster of its jurisdiction by Ordinance IV of 1968 and XXIII of 1969. On the other hand Mr. Khalil-ur---Rehman Khan advocated the extreme view that all the pending appeals had abated as a result of the ouster of the High Court jurisdiction Mr. Mahmood Zaman, Advocate, however, took a middle of the road path. His stand was that the appeals had not abated, but the High Court did not have the jurisdiction to decide them and as such they should be returned to the appellants so as to be preferred before the Labour Appellate Tribunal.
6. Before I proceed to consider the arguments, raised is support of the three irreconcilable and mutually exclusive positions, I would like to refer to some of the accepted principles of interpretation of Statutes supported by precedents. 1t is well settled firstly, that a Statute will be presumed to be prospective in its operation unless a contrary intention is indicated by express provision or necessary intendment except in case of a merely procedural matter. At pages 204, 205, Maxwell on Interpretation of Statutes (Eleventh edition) observed as follows:- " --- It is a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication."
The following quotation from Re: Athlumney ((1898) 2 Q B 551) was also reproduced in the same context:- "Perhaps no rule of construction is more firmly established than this, that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enact--ment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only."
Then followed a sentence taken from R. v. Oliver ((1944) 1 K B 68);- "But if the language is plainly retrospective it must be so interpreted"
It would also be advantageous to reproduce the other relevant observation made at page 206:- Retrospective operation as regards vested rights.
It is chiefly where the enactment would prejudicially affect vexed rights, or the legality of past transactions, or impair con--tracts, that the rule in question prevails. Every statute, it has been said, which takes away or impairs vested rights acquired under existing laws, or creates a now obligation, or imposes a now duty, or attaches a now disability in respect of transactions or considerations already past, must be presumed, out of respect to the Legislature, to be intended not to have a retrospective operation.
Regarding retrospective operation of procedural matters it was observed on the basis of Coat Rice v. Erlanger ((1874) 3 Ch. D 69) and Wright v._ Hale ((1866) 30 L J Ex. 40) that:- "No person has a vested right in any course of procedure. He has only the right of prosecution or defense in the manner prescribed for the time being, by or for the Court in which he sues, and, if an Act of Parliaments alters that mode of procedure, he has no other right than to proceed according to the altered mode. The remedy does not alter the contract or the tort; it takes away no vested right, for the defaulter can have no vested right in a state of the law which left the injured party without, or with only a defective remedy. If the tine for pleading were shortened, or now powers of amending were given, it would not be open to the parties tai gainsay such a change, the only right thus interfered with being that of delaying or defeating justice, a right little worthy of respect."
Secondly when a change is effected in the law, all pending proceedings are governed and determined by the law as It existed when the proceedings were commenced unless a contrary Intention eau be clearly spelt out from the new law. It was observed at page 212:- "In general when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the now statute shows a clear intention to vary each rights."
Quoting from Colonial Sugar Refining Co. v. Irving, an authority, which is a landmark in judicial pronouncements and entitled to the greatest respect having been consistently followed, 11 was mentioned:- "But to deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure."
Reference may also be made in this context to some relevant quotations reproduced by Craies in his book. "A treatise on Statute Law". It was observed at page 397 of 1963 Edition on the basis of Hough v. Windus ((1884) 15 Q B D 224):- "It is a well recognised rule that statutes should be inter--preted, if possible, so as to respect vested rights' and such a construction should never be adopted if the words are open to another construction"
Relying on Hutchison v. Jauncey ((1950) 1 K B 574 have), it was observed:- "In the absence of anything In an Act to show that it is to have a retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act is passed, and so far as regards fills repealing Acts, this rule is clearly recognised by section 38,2) of the Interpretation Act, 1889. Where, however, the necessary intendment of an Act is to affect pending causes of action, the Court will give effect to the Intention of the Legislature even though there Is no express reference to pending actions."
Referring to pending actions it was observed:- "If a statute deals merely with the procedure and does not affect the rights of the parties it will be held to apply prima facie to all actions pending as well as future."
Relying on Colonial Sugar Refining Co. v. Irving referred to earlier the view was reiterated that a right of appeal in a parti--cular form was not affected being a matter of existing right.
7. None of the learned counsel advocating different points of view had any cavil with the above accepted principles and prece--dents. As stated earlier the fate of these appeals will be deter-- mined by the correct interpretation of the saving clauses con--tained In section 46(2) of Ordinance IV of 1968 and section 67(2) of Ordinance XXIII of 1969.
8. Before dealing with the Issue or issues involved and the contentions raised in that regard by the learned counsel who took the floor one after the other I would like to observe that I have had the benefit of g3ing through the elaborate judgment of my learned brother K. E. Chauhan, J., and have by and large agreed with the reasoning and conclusions of his Lordship.
9. Milt tine development of the art of legislation we find that a repealing-cum-saving clause has become a regular feature and is almost invariably incorporated in an altering or consolidating Statute. In its absence, however, the provisions of the General Clauses Act are pressed into service with a view to seek--ing resolution of problems arising in consequence of the repeal of the earlier law and the enactment of the latter. Normally the two provisions if simultaneously available are sought to be con--strued as harmoniously as possible but in the event of a conflict between the provisions contained in General Clauses Act which are of a general application and the provisions contained in tile specified repealing-cum-saving clause in question, the latter has to prevail. In the Instant case, the two saving clauses in question contained in section 46(2) of Ordinance IV of 1968 and sec--tion 67(,2) of Ordinance XXIII of 1969 have already been repro--duced. It would be advantageous also to reproduce in this context the relevant provisions of the General Clauses Act contained in sections 6 and 24 ibid: "6. Effect of repeal.-Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-
(a) revive anything not in force or existing at the time at which the repeal takes effect ; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder: or
(e) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed : or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so -repealed : or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid ; and any such investiga--tion, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.
24. Continuation, of orders, etc., issued under enactments repealed and re-enacted.-Where any Central Act or Regulation is, after the commencement of this Act, repealed and re-enacted with or without modification, then unless it is otherwise ex--pressly provided, any appointment, notification, order, scheme, rule, form or bye-law made or issued under the repealed Act or Regulation, shall, so far as it Is not inconsistent with the provi--sions re-enacted, continue in force, and be deemed to have been made or issued under the provisions so re-enacted, unless and until it is superseded by any appointment, notification, order, scheme, rule, form or bye-law made or issued under the pro--visions so re-enacted and when any Central Act or Regulation, which, by a notification under section 5 or 5-A of the Schedule, ed Districts Act, 1874, or any like law, has been extended to guy local area, has, by a subsequent notification, been with--drawn from and re- extended to such area or any part thereof, the provisions of such Act or Regulation shall be deem to have been repealed and re-enacted in such area or part thin the meaning of this section."
Reading the above provisions of the General Clauses Act in juxtaposition with the two clauses in question I have no hesitation in saying that the extreme view advocated' by Mr. Khalil-urn Rehman on the basis of some quotations from Corpus Juris and Craies copiously reproduced in the judgment of my learned brother K. E. Chauhan. J., is wholly untenable. It cannot be disputed that the expressions "anything done" and "proceedings commenced" as used-in the two clauses in question fully cover the institution, entertainment and admission of appeals in the High Court under the repealed law and as such, cannot be construed to have abated by any stretch of imagination, their existence and continuation having been specifically protected by the saving clauses. It would not be out of place to mention in this context that it is in order to avoid complications and to resolve such matters as are now pending before us, that a deeming provision is incorporated In the saving clause as a fiction of law which has the effect of accepting artificially the existence of something which is factually nor;- existent as held in AIR 1930 P C 54. 1 am thus in no manner of doubt that the pending appeals were preserv--ed by the saving clauses.
This position has also been clearly envisaged in Corpus Juris relied upon by Mr. Khalil-ul-Rehman Khan himself as would be evident from the following quotation:- Corpus Juris, Volume III, section 53, page 330.
"53(3). Taking effect after appeal.-Ordinarily, a statute which alters the remedy by appeal, err,)r, or other mode of review, has no application to and does not affect the validity of an appeal or writ taken or allowed before the statute ,went into effect. If, however, an act altering or regulating the mode of review is expressly made retroactive, or if its language is so broad as to show an intention to include pending -appeals, it will be given effect as to appeals which were pending at the time when it went into effect. A statutory right of appeal may be taken away by repeal of a statute, even as to causes, which have been previously appealed unless rights as to pending appeals are preserved by a saving clause."
Even in Volume IV where effect of changes during pendency of appeals was discussed firm finding in support of the proposition urged by Mr. Khalil-ur-Rehman Khan was given, but a reference was made only to a conflict of views as would be clear from the following:- " . . Yet, on the main proposition as to whether the cause should be determined and disposed of according to the law in effect at the time the judgment was rendered in the lower Court or to the law fn effect at the time the cause is disposed of appeal, there is a sharp division of authority, the rule in some states being that the law in force at the time the judgment was rendered below is controlling and the rule in other jurisdictions being that the appellate Court must decide and dispose of the case in accordance with the law existing at the time of its own decision, even though it lead to the reversal of a judgment which was proper at the time of its rendition, or the affirmance of one wherein there was error which has since been obviated by a change in the law."
In the discussion under heading 'Actions and other proceedings pending' it was observed- "Acts done and suits concluded by final judgment before the repeal are not affected by the repeal of statutes relating to them; nor does a suit pending to enforce a vested right abate upon a repeal of the statute under which the right accrued. Where a statute has been made expressly applicable to pending pro--ceedings, a right given by it is not taken away by a revision before trial which omits the provision."
Under the heading 'Repeal which re-enacts similar provisions' It was observed:- "Where a statute repeals a former act, but re-enacts substan--tially the same provisions the new statute is generally construed as a continuance of the old one, and does not operate to abate an action pending at the time of its enactment."
10. In connection with a saving clause Mr. Khalil-ur---Rahman Khan also relied on certain observations made by. Bindra in his Interpretation of Statutes, which too in my view are not helpful to him and rather go against him. Under Article 16 deal--ing with repeal of saving clauses it is said:- "Whenever a-statute from which a Court derives its jurisdic--tion in particular cases is repealed the Court has no right to proceed under the repealed statute even in suits pending at the time of the repeal unless the right is expressly saved by the repealing Act or by a general Act regulating repeals . . . . ."
Under Article 317 it is observed:- "But retrospective operation of a repeal may be easily avoid--ed through the use of a saving clause, so that even inchoate rights may be preserved intact. Such clauses, whether attached to the repealing act, or existing in the form of a general statute, will easily include vested rights under the language usually used that the repeal of a statute shall not affect any duty imposed, rights accrued, or proceedings commenced thereunder."
11. Relying on Chittaranjan Cotton Mills Ltd. v. Staff Union (PLD 1971 SC 197), it was contended by Mr. Khalil-ur-Rehman Khan that with the establishment of an Appellate Tribunal of exclusive jurisdiction coupled with the express ouster of jurisdiction of the High Court, the appeals could not be deemed to have been kept alive. Having carefully considered this position in the light of the provisions contained to the General Clauses Act referred to earlier and the language employed in the saving clauses in question, I am clearly of the view that the position is wholly untenable and the real question to be determined is as to whether the appeals which are very much alive are to be dealt with and disposed of by the High Court or by the new forum established under the new law.
The determination of the choice between the High Court and the Appellate Labour Tribunal as the competent forum for the disposal of the appeals would depend in turn on answers to the questions as to whether the list of appeal in a particular forum is a vested right and secondly, whether the High Court would be a superior forum as compared to the Appellate Tribunal as urged by the employees appellants in these cases. The first point seems to be fully determined by the Judicial Committee in Colonial Sugar Refining Co. v. Irving. In this case an appeal was pending from the judgment of the Supreme Court of Queens land Australia. The proceedings culminating- in the appeal were com--menced on the 25th of October 1902. On 25th of August 1903, Australian Commonwealth Judiciary Act was passed. Leave to appeal was granted on September 4, 1903. An application was made before the Judicial Committee to dismiss the appeal on the ground that the power of the Court below to given leave to appeal had been abrogated by section 39 of the Australian Common--wealth Judiciary Act, 1903, which was dismissed with the following oft repeated and almost classic observations by Lord Macnaghten:- "As regards the general principles applicable to the case there was no controversy. On the one hand if it be more than a matter of procedure, if it touches a right in existence at the passing of the Judiciary Act, it was conceded that to accordance with a long line of authorities from the time of Lord Coke to the present day the appellants the Sugar Co. would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, was the appeal to High Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure."
12. It would not be out of place to mention in this context that In F. A. O. No. 147 of 1968, wherein the judgment was deli--vered by my learned brother Muhammad Akram, J., of course, with my concurrence, reliance was also placed on this authority and the above principle which was taken due note of was not invoked on the ground that contrary intention could be spelt out from the saving clauses which are now being sought to be interpreted. This authority has been consistently followed by our own Supreme Court and the correctness of the view expressed therein has never been challenged. Of Course, it is a different matter if in the given facts of a particular case a certain change In law may be construed as merely procedural in nature not amounting to an invasion of the vested right of a particular party as held by their Lordships in Adnan Afazal v. Capt. Sitar Afzal.
Even the relevant observations in the case were made by their Lordships In a rather cautious and qualified manner as would be elaborated in the latter part of this judgment, so as not to be construed as being conflict: ins with the principles laid down in (1905) A C 369. I am thus in no manner of doubt that the institution of appeals in the-High Court, their entertainment by it and pendency therein surely F amounted to the existence of a vested right in favour of the appel--lants which could not be taken away on the pretext that it was merely a matter of procedure.
13. The question could also be considered from another point of view. Apart from the defense of the pendency of their appeals in the High Court on the legal plane it was also contended by Mr. Altaf Hussain on behalf of the employees appellants that the High Court was superior forum enjoying greater confidence of the litigants. On the other band, Mr. Mahmood Zaman, learned counsel for the employer respondents contended that the appeals arose out of litigation relating to the so- called social legislation enacted with the object of dispensation of social justice, wherein having regard to the accumulation of work in the High Court end cumbersome procedure of the ordinary law special tribunals have been established to dispense speedy justice by resorting to simplified procedure, which could not be reasonably expected of the High Court pre-occupied as it was wilt more important type of work including cases pertaining to constitutional low and Involving complicated Questions of interpretation. In the first instance one should presume that it is for the employees for whose benefit principally this type of legislation has been enacted, to see as to where does their interest lie or which side of their bread Is buttered. They have unequivocally expressed their choice in favour of the High Court, but even otherwise we find that an appeal in the High Court is to be disposal of by a Division Bench and as such the balance obviously would be in favour of the com--bined wisdom of two Judges as against that of the Tribunal con--sisting of one member. Again on the factual plane we find this for the first three months no Tribunal was appointed and we were told that the procedure for disposal of appeals to be prescribed by rules under section 17(4) of Ordinance XXIII of 1969, had not yet been made available as no rules had been framed. Further more, In the event of the appellants' failure in this Court they might also be able to seek remedy before the Supreme Court in suitable cases. Thus also having regard to these consi--derations I am clearly of the view that the appeals pending in the High Court have been saved by the saving clauses. They amount to accrual of vested rights in the appellants which cannot be taken away on the pretest of a procedural change and that the High Court being a superior forum is competent to deal and dispose of these cases. Even otherwise, it is well settled that In cases of doubt a construction which promotes justice and is favour able to the subjects whose rights are likely to be prejudiced has to be preferred. These conclusions are supported by a choice of rulings. An authority directly In point I, Pakistan Pharmaceutical Indus--try Ltd. v. Workers'
Union (1), a D. B. judgment of Dacca High Court. The question for determination before their Lordships was one of the interpretation of repeal-cum-saving provisions contained In section 44 of the East Pakistan Labour Disputes Act, 1965, which bad repealed the industrial Disputes Ordinance LVI of 1959. vis----vis, its ap,3lication to East Pakistan. The precise question Involved was whether the appeals filed under the repealed Ordinance LVI of 1959 without a certificate by the Industrial Court the relevant provision having bean introduced for the first time in section 13(5) of the Repealing Act VI of 1965, could pro--ceed or toad abated. It was held by their Lordships that the repeal did not affect the pending appeals in the High Court, which could continue. As stated earlier, the basis of this view was the interpretation of the repeal-cum-saving clause contained in section 44, which identically with the clauses in question before us contained no express provision regarding the continuation of old proceeding, as would be clear from the perusal of the statutory provision reproduced below:- "44. Repeal and saving.-( 1969 PLC 390) The Industrial Disputes Ordinance, 1959, is hereby repealed.
(2) Notwithstanding the repeal, anything done, action taken, rules framed, or notification or order Issued under the said Ordinance, shall, so far as it is not inconsistent with the provisions of this Act, bus deemed to have been done, taken, made or issued under the corresponding provisions of this Act.
(3) Any reference to the Industrial Disputes Ordinance, 1959, in any other law for the time being in force shall be construed to have a reference to this Act."
To similar effect is The Colony Textile Mills Ltd., Lahore v. The West Pakistan Labour Court (Northern Zone), Lahore and 5 others (PLD 1971 Lab. 348). The question involved before their Lordships of the Division Bench was whether the Industrial Court constituted prior to the enforcement of Ordinance XXIII of 1969, and seized of an industrial dispute raised under the Industrial Disputes Ordinance LVI of 1959, or West Pakistan Industrial Disputes Ordinance. IV of 1968 could proceed with such dispute and adjudicate upon it, after the coming into force of the Industrial Relations Ordinance XXIII of 1969. It was held by their Lordships that under sections 6 of the General Clauses Act. the Industrial Court constitute i under the repealed Ordinance would have continued to exercise jurisdiction and thus competent to decide the industrial dispute pending before it under Ordinance IV of 1969 by virtue of the provisions contained in subsection (2) of section 67. Their Lordships observed:- "The intention of the law-makers is manifested by this provision that they did not want to interfere with the pending proceedings or the Courts which were already constituted. The object was to leave proceedings under the old Ordinance intact by the repealing Ordinance only so far as they had proceeded leaving thereafter progress to be regulated by the procedure in force after the repeal. The repeal of the Ordinance, therefore, did not affect the Industrial Court which had already been constituted and also the industrial dispute about which the proceedings had been commenced before the Industrial Court prior to the repeal."
On the analogy of reasoning this would also, apply to appeals pending in the High Court.
14. It may also be mentioned that the view of their Lordships of the Privy Council in Colonial Sugar Refining Co. v. Irving (L R 1095 A C 369) was re-affirmed by the Judicial Committee in Delhi Cloth and General Mills Co. Ltd v. Income-tax Commissioner Delhi and another (AIR 1927 P C 242) and has been consistently followed in the Indo-Pak. sub-continent. Reference may be made in particular to three Full Bench authorities, namely. Ramarkrishna Iyer v. Sithai Amal (1925 1 L R 48 Mad. 620), Ram Singh v. Shankar Dayal (I L R 50 Ali. 965) and Kirpa Singh v. Ajaipal Singh (I L R 10 Lah. 165). The facts of the last-mentioned case before their Lordships were that before coming into force of the Sikh Gurdiwara Act, 1925, which ousted the. High Court jurisdiction, constitute a separate tribunal as it has happened in the instant case, two appeals were already pending in the High Court. An Identical question arose before their' Lordships as to whether the - now law affected the pending appeals. It was held on the basis of Colonial Sugar Refining Co. v. Irving that the change in law did not affect the pending appeals. This view was also later followed by our own Supreme Court in Syed Ali Nawaz v. Lt.-Col. Muhammad Yusuf Khan (PLD 1962 SC 465), Ch. Sir Muhammad Zafrullah Khan and others v. The Custodian of Evacuee Property and others (PLD 1964 SC 865) and Sutlej Cotton Mills Limited, Okara v. Industrial Court, West Pakistan and others (PLD 1966 SC 472). Reference may also be made In this context to two more Full Bench authorities of this Court In Ghazi and others v. The State (PLD 1962 Lah. 662) and Malik Mir Hassan and another v. The State (PLD 1969 Lah. 786). In the last mentioned case their Lordships were considering the effect of certain Martial Law Regulations including Martial Law Regulation No. 42 on the jurisdiction of the High Court, which had been kept intact by the Provisional Constitution Order, and the dictum of the Privy Council in Colonial Sugar Refining Co. v. Irving was respectfully followed.
Proceeding chronologically, the last authority which could be pressed into service by analogy of reasoning is Mst. Qaisar Khatoon and 12 others v. Maulvi Abdul Khaliq and another (PLD 1971 SC 334). The question involved in the case and determined by their Lordships of the Supreme Court vas as to whether after- the merger of the State of Bahawalpur into the Province of West Pakistan, appeals pending in the Supreme Court from the decisions of the High Court of Baghdad-ul-Jadid which had since ceased to exist" had abated or could still be disposed of by the Supreme Court. It was observed by their Lordships "The argument that since the High Court of Baghdad-ul---Jadid has now ceased to exist, after the integration of Bahawalpur State with the Province of West Pakistan; this Court has lost its jurisdiction under the Federal Court (Enlargement of Jurisdiction) Act, 1949, is clearly devoid of force, because with regard to pending matters this Court's jurisdiction has not been affected in any way."
15. Having come to my conclusions on the basis of well-- settled principles of interpretation supported by authorities I now proceed to deal with some relevant precedents and rulings pressed into service by different parties to support of their respective views. In support of the conclusions already arrived at by me, Ch. Altaf Hussain contended on behalf of the appellants that when a previous Act was repealed by a new law, the substantive right already in existence could not be impliedly taken away. He argued that the right of appeal existed both under the repealed as well as the repealing law and as such there is no inconsistency as to its existence. It was argued that once this was conceded the existing rights could not be taken away which included not only the right of appeal but also that of its decision by a. particular forum, particularly when it was superior to the one prescribed under the repealing law. Reliance was placed in this regard on Pakistan through General Manager, P. W. R. Lahore v. Mrs. A. V. Issacs (PLD1970SC415), which is only collaterally helpful.
The relevant observation read as follows: - "The general rule is that the rights if the parties to a suit must be adjudicated upon the basis of the law prevailing the date of the institution of the suit."
The next authority cited in this regard was Province of East Pakistan v. Sharafatallah and 87 others (PLD1970SC514), which arose out of proceedings initiated by the Government of East Pakistan for acquisition of certain property. The question for decision before their Lordships was whether the notice under section 5(1) of the East Bengal (Emergency) requisition of Property Act, 1948, as amended, had a pre-emptive effect, for fixation of market value so as to exclude from consideration the amending Ordinances of 1961 and 1964, with a view to award higher rate of consideration for properties acquired under the Act. Their Lordships took note of the well- established rule of interpretation laid down by Dixon, J. in Kraljevich v. Lake View &-Star Ltd.
(7OCLRAus.647). It was to the effect that any change in the existing law did not affect the vested right of the parties, though in the circumstances of the case, before their Lordships was not attracted. Later, in the same judgment it was observed by their Lordships:-- "It is an established rule, that the Courts will adopt that construction which will remove the lacuna and advance the purpose and object of the statue."
16. For the contrary view reliance was placed by Mr. Khalil-ur-Rehman Khan on Adrian Afzal v.
Captain Sher Afzal (PLD 1969 SC 187) to which reference has already been made in the earlier part of the judgment. The point for consideration before their Lordships was whether or not West Pakistan Family Courts Act, 1964, affected the jurisdiction of Magistrates under section 488, Criminal Procedure Code or for that matter pending proceedings commenced before the Act came into force. Their Lordships took note of the principles laid down in Colonial Sugar Refining Co. v. Irving, which is the sheet-- anchor of the employees appellants as also of the case In re: Joseph Such & Co. Limited ((1875) 1 Ch. D 48) to the effect that if the matter in question be merely one of procedure the provisions of the repealing Act would be retrospective, but if they touch a right in existence at the passing of the Act, they would not affect pending actions. Their Lordships also quoted from the Book on Construction of Statutes, by Crawford, 1940 Edition, page 581. The relevant provisions read as follows:- "As a general rule, legislation which relates solely to procedure or to legal remedies will not be subject to the rule that statutes should not be given retroactive operation. Similarly, the presumption against retrospective construction is inapplicable. In other words, such statutes constitute an exception to the rule pertaining to statutes generally. There--fore, in the absence of a contrary legislative intention, statutes remedy right of action no matter whether ~it came into existence prior to, or after the enactment of the statute. Similarly, they may be held applicable to proceedings pending or subsequently commenced. 1n any event, they will, at least, presumptively apply to accrued and pending as well as to future actions."
In this case context reference was also made by their Lordships to State v. Maulvi Muhammad Jamil and others (PLD1965SC681) and Muhammad Alam v. The State (PLD1967SC293) in which tie same principle bad been adopted by the Supreme Court. Same view was reitereted by their Lordships in Muhammad Akhtar Hussain and 4 others v. Govern--ment of West Pakistan through 7ha Chief Secretary to Govern--ment of West Pakistan, Lahore and 454 others (PLD 1970 SC 146). It was observed.- "It is well settled that legislation may be made both pros--pectively and retrospectively but normally legislation, which is not of a purely procedural nature, will not be given retrospective effect so as to take away vested rights unless the Legislature has used express words in that behalf or such as intention necessarily flows from the language of the statute."
After a careful and comparative study of' the fat's and circum--stances of the case, their Lordships took the view that the change in law introduced by the West Pakistan. In Family Courts Act, 1964, vis-a-vis, pending proceedings way merely procedural in nature and as such retrospective in effect. The precise observa--tion of their Lordships is as follows:--- "Looking at the provisions as a whole we are of tae view that all that the Family Courts Act has done is that it has changed the forum, altered the method of the trial and empowered the Court to grant better remedies. It has, thus, in every sense of the term, brought about only procedural changes and not affected any substantive right. According to the general rule of interpretation, therefore, a procedural statute is to be given retroactive effect unless the law contains a contrary indication.
There is no such contrary indication in the West Pakistan. Family Courts Act. We would, therefore, hold that the Act affected also pending proceedings . . . . . ."
In my humble opinion what appears to have, weighed with their Lordships in tilting the balance in favour of this finding was the consideration that the West Pakistan Family Courts Act Was more beneficial in nature which afforded greater relief with a right of appeal either to the District Courts or to the High Court and further that the conferment of exclusive jurisdiction on the Family Courts did not in any manner diminish or curtail the rights already possessed by a litigant. It was observed:- "A comparison of these provisions thus indicates that the provisions of the West Pakistan Family Courts Act are of a more beneficial nature which enlarge not only the scope of the enquiry but also vest the Court with powers of giving greater relief with a right of appeal either to the District Court or to the High Court. Furthermore, the combined effect of sections 5 and 20 of the Act is clearly to give exclusive jurisdiction to the Family Courts without, in any way, diminishing or curtailing the rights already possessed by a litigant with regard to the scheduled matters."
Earlier in the same judgment it was observed: "Nevertheless, it must be pointed out that if in this process any existing rights are affected or the giving of retroactive operation cause inconvenience or injustice, then the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute. On the other hand, if the new procedural statute is of such a character that its retroactive application will tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would favour ably incline towards giving effect to such procedural statutes retroactively."
Thus the determining consideration was the promotion and safe--guard of justice.
As discussed earlier even considered from this point of view. I have no doubt in my mind that the High Court is a superior and more beneficial forum than the Appellate Tribunal.
Yet another authority pressed into service by Mr. Khalil-ur---Rehman Khan was Chittaranjan Cotton Mills Ltd. v. Staff Union.
The question for consideration before their Lordships was one of the validity or otherwise of an award given by the Labour Court partially constituted under the East Pakistan Labour Disputes Act, 1.965. Its validity was challenge) also on the ground that the two members of Court were not selected in accordance with the provisions of section 9(4) of the Act. It was, therefore, contended that the entire proceedings before the Labour Court were coram non judice. Having regard to the glaring dissimilarity and inconsistency between the two Statutes, namely, Ordi--nance LVI of 1959, and Act VI of 1965, particularly on the point of qualifications of members of the Labour Court, it was held by their Lordships that such substantial inconsistency could not be deemed to have been saved by the repealing-cum---saving section 44 of Act VI of 1965, for the reason that the constitution of the Labour Court had been radically altered by Act VI of. 1965, that it no longer retained the same or similar complexion or character. It was accordingly held by their Lordships that such a partially reconstituted Court could not come within the definition of the Court under Act VI of 1965, and as such, it was a case of adjudication by a body which was not a Labour Court in the legal sense $s defined in the Act. The position is obviously distinguishable there being nothing common between the two positions and as such, this authority has no relevancy to the case before us.
17. It was next contended by Mr. Khalil- ur-Rehman Khan that the expressions 'Courts' or 'Courts constituted', as used in section 46(2) of Ordinance 1V of 1968 and section 67(2) of Ordinance XXIII of 1969, obviously referred to the Courts as defined and constituted under the respective Ordinance and as such did not refer to the High Court as such or appeals pending before it. It was argued that the constitution mean 'creation, establishment and setting up etc.' Although the correctness of this position can hardly be disputed yet the institution and entertainment, admission and pendency of the appeals in the High Court is fully covered in my view by the expressions "anything done", "proceedings commenced" or "other action taken". This position not devoid of authorities which have already been discussed. It may be however, observed in this context that the saving clause has been incorporated in section 67 of Ordinance XXIII of 1969, without prejudice to the provisions of section 24 of the General Clauses Act, 1897 (X of 1897), which has already been reproduced in the earlier part of the judgment. The principle underlying the later provision is the same as envisaged by the repealing-cum-saving clauses. The fact that the section 67 has been made subject to the provisions of the General Clauses Act would mean that to protect the continuation of proceedings under the repealed law, the two provisions could be read as supplementary to each other so as to extend the scope of protection of pending proceedings. Accordingly, nothing contained in the deeming provisions of section 24 can be construed in derogation of the one contained- in the saving clauses in question.
18. Lastly, I come to the contentions raised by Mr. Mahmood Zaman, who as stated earlier, took a middle of the road stand saying that all pending appeals did not abate but stood transferred to the Tribunal. He argued that the change of appellate forum was merely procedural in nature and not a matter of right and, in any case the saving clause showed a clear intention to effect a change in the forum. Reliance was placed on Khushiram Atmaram Jaisinghani and others v.
Custodian of Evacuee Property. West Pakistan, Karachi and others (PLD 1965 SC 453) in support of the argument that the saving clause prevailed over section 6 of the General Clauses Act. In this case their Lordships were examining the proposition that even after coning into force of Pakistan (Administration of Evacuee Property) (Amendment) Ordinance (LXIII of 1962), curtailing the scope of review and confining it to correction of Arithmetical or clerical mistakes, the Custodian could still review his order by virtue of the saving provisions contained in section 4 ibid, read with section 6 of the General Clauses Act. The arguments did not find favour with their Lordships for the simple reason that section 6 applied only where a different intention did not appear. It was observed:- "According to the saving clause which has been reproduced above review applications pending immediately before the commencement of this Ordinance on which proceedings had started before the commencement of this Ordinance remained unaffected. As only applications for review have been men--tioned in the saving clause it ii proper to infer that sue motu reviews were not intended to be saved."
It was further observed:- "Expressio unius exclusio alterious, is not a rule of universal application for the Legislature may mention a matter on account of excessive caution, but if it is clear that the mention of one out of several matters is not on account of excessive caution it is legitimate to regard the provision as exhaustive and exclusive of what is not mentioned in it."
It was argued that since the old forum, namely, the High Court had not been specifically named in the saving clause, the High Court whose jurisdiction had otherwise been specifically ousted by the repealing Ordinance would no longer be competent to deal with pending appeals. Reliance was, not placed by the learned counsel in this regard on Adnan Afzal v. Capt. Sher Afzal (PLD 1969 SC 187), which has already been discussed and distinguished as also on Government of West Pakistan v. Ghulam Sarwar Khan (PLD 1962 Pesh. 15), It may be observed with utmost respect that the latter authority is contrary to the weight of judicial pronouncements and runs counter to a chain o' authorities based on the principle enunciated in Colonial Sugar Refining Co, v. Irving case. In view of the discussion contained in the earlier part of the judgment any further examination of this argument would be a mere repetition.
19. It was next argued that in the relevant provisions contained in section 46(2) of Ordinance IV of 1968 and section 67(2) of Ordinance XXIII of 1969, no deeming fiction was attached to continuation of proceedings and as such it could not be reasonably construed to have preserved the old appellate forum, namely, the High Court otherwise the deeming clause would have been differently 'worded having been also made applicable to continuation of proceedings. It was contended that no prejudice would be caused to the litigants by the transfer of their appeals to the Tribunal nor would their rights be curtailed in any manner. It was argued that in fact, the basic assumption was that the repealing law had envisaged an improvement over the repealed law having removed its defects and supplied its lacuna and must, therefore, be given full effect, particularly when it had provided for a separate, and self-contained machinery for dealing with matters of a specialised character. It was submitted that the High Court which was already over-burdened was relieved of its responsibility so as to spare time for dealing with more important and urgent matters.
20. Having considered the contentions I have not been persuaded to accept the arguments for the reasons firstly, that in view of Colonial Sugar Refusing Co. v. Irving, it is not that, right to file an appeal Itself, but to file it in a particular forum which vests in a litigant and cannot be taken away by the repeal of the Act, particularly when the appeals are pending in a superior, forum. Secondly, it has already been held on the basis of authorities that the expressions 'acts done' and 'proceedings commenced' as employed in the saving provisions are sufficient j to cover pending appeals in a particular forum. Thirdly, the provision contained in section 6 of the General Clauses Act, is normally subject to the specific provisions contained in the repealing-cum-saving sections of the Statute in question, and lastly, the saving clause in section 67(2) of Ordinance XXIII of 1969, has been made without prejudice to anything contained in section 24 of the General Clauses Act any as such both can be read in supplement to each other. Lastly, it may be reiterated that the transfer of an appeal already filed in a proper forum cannot be simply presumed in the absence of any specific provision to that effect which is conspicuous by its absence in the instant case. Yet another argument which ousts across the contention is that on the admitted facts for three months since after the enforcement of Ordinance XXIII of 1969, no Tribunal was set up and that up till now no rules have been prescribed for the disposal of the appeals as envisaged by section 67(2) Ibid.
21. Towards conclusion note may briefly be taken of some--what novel and rather original arguments advanced by Mr. A. H. Najafi in support of the contention that section 67 of Ordinance XXIII of 1969 did not affect or alter the forum of appeals pending in the High Court and that the Appellate Industrial Tribunal was not competent to hear the same. It was argued that the Martial Law Proclamation came into force on the 25th of March 1969. Para. 5-B of the Proclamation preserved the jurisdiction of all the Courts including the High Court. In pursuance of the same provisional Constitution order dated the 4th of April1969, was passed by the Chief Martial Law Administrator, which vide para. 3, inter alia kept intact the jurisdiction of the High Court as envisaged by the 196 -Constitution. The precise argument was that this jurisdiction could not be curtailed except by amending the Constitution in the first instance, inasmuch as there was no saving clause in the Provisional Constitution Order, which could be deemed to have empowered the Chief Martial Law Adminis--trator to curtail this jurisdiction. It was next argued that since none of the appeals pending in the High Court was filed under any of the laws repealed by section 67 of Ordinance XXIII of 1909, the latter clause was not applicable to them and as such we were left only with section 6 of the General Clauses Act to fall back upon. Constitutionality of, Ordinance XXIII of 1,969, questioned by the learned counsel is based on the Martial Law Proclamation dated the 25th of March 1969 read with Provisional Constitution Order which came into force on the 4th of April 1969. The President promulgated the Ordinance in exercise of all powers derived by him from these sources, which are of a supra-Constitution nature and as such not circumscribed by provi--sions of the Constitution which in turn for their very existence and survival are dependent on them secondly, the Constitu--tional provisions themselves do not bar such new legislation which creates separate tribunals Independent of the jurisdiction of the High Court, the Legislature being supreme in its own field. Since, However, the Chief Martial Law Administrator is the supreme law-giver no Court can call in question any piece of legislation based on the proclamation and the Provisional Constitution- Order, as clearly provided therein. No fault, therefore, could be found with the constitutionality of Ordinance XXIII of 1969. The other argument is equally misconceived.
22. In view of the above discussion, I respectfully agree with the view taken by my learned brother K.
E. Chauhan, J., and hold that the appeals pending in the High Court are very much D alive and can only be disposed of by this and no other forum.
K. E. CHAUHAN, J.-This judgment is to be read In continua--tion and should be considered as a part of my judgment and order, dated the 20th of March 1970. Before us arguments in support of the continuation of these appeals in the High Court were addressed mainly by Ch. Altaf Hussain, Mr. A. H. Najafi, and Ch. Muhammad Abdullah Bajwa, Advocates. As against them, Mr. Khalilur Rehman Khan, Advocate, took up an extreme stand and submitted that the appeals had totally abated and come to an end and could neither be heard by this Court nor by any other Tribunal or Curt. Mr. Mahmood Zaman and orate, who represented some of the respondents, how ever; took up the middle stand. He conceded that the appeal had not abated and could be proceeded with, though his view was that they could now be disposed of only by the Labour Appellate Tribunal set up under section 38 of the Industrial Relations Ordinance XXIII of 1969 and should, therefore, be transferred to that Tribunal for that purpose.
2. The first point argued by Messrs Khalil-ur-Rehman Khan and Mahmood Zaman, Advocates, was that right of appeal to a particular forum was not a substantive or a vested right but was a mere matter of procedure. For this purpose they referred to Adman Afzal v. Capt. Sher Afzal (PLD 1969 SC 187), Gul Akbar and others v. Deputy Chief of Air Staff. P. A. F. and others (PLD 1968 Pesh. 114), Government of West Pakistan v. Ghulam Sarwar Khan (PLD 1962 Pesh. 115). The first two cases do not deal with right of appeal and, therefore, need not detain me any longer. The first case dealt with forums for original trial of cases under the Muslim Family Laws Ordinance and the Conciliation Courts Ordinance and the second case with trial of criminal offences. I have already referred to the case of Adman Afzal v. Capt. Sher Afzal and dealt with the subject of original forums In my earlier order and, therefore, need not enter Into their details again. As regards PLD 1.962 Pesh. 115, no doubt at page 119, it states that right of appeal to a parti--cular forum is a matter of procedure, but with great respect I must say that to this extent it does not lay down correct law, especially,- :. in view of the various authoritative pronouncements to the contrary by the Supreme Court of Pakistan noted in my earlier order. Another thing to be noticed is that the two Privy Council cases of Colonial Sugar Refining Company- Ltd. v. Irving (L R 1905 A C 369) and Delhi Cloth & General Mills Company v. Income-tax Commissioner. Delhi (541 A 421) in which Lord Blanesburgh reiterated the same principle as laid down In the former case do not seem to have been brought to the notice of the learned Judges of the Peshawar Bench. The subject has been discussed by me in detail in sub-- paragraph (j) of paragraph 2 of my earlier judgment and need not be probed any further.
3. The next point argued was that West Pakistan Industrial Disputes Ordinance; 1968 (hereinafter referred to a9 West Pakistan Ordinance IV of 1968) and Industrial Relations Ordinance, 1969 (hereinafter called as Ordinance XXIII of 1969) were retrospective in nature in so far as the appeals pending in this Court were concerned and that they either destroyed those appeals altogether or at least purported to shift them from this Court to the Appellate Tribunal set up under these Ordinances. This argument was raised on the basis of the saving sections contained in the statutes, under discussion, which have been reproduced in extenso in thy judgments. I have already held that there is nothing to show that any of these statutes is retr3apective in any sense.
Saving clause is just a saving clause and can not be given the -status of retrospective changing of the statute law. It is this basic feature of a saving clause, which should never be lost night of. It is this thin and fine distinction, which, if not carefully noticed, is likely to create confusion. With this caution if we proceed to examine the statutes in hand, we will notice that the saving sections under adjudication have simply saved the previous acts and rights etc. They neither give new rights nor destroy the old ones. Merely by these saving sections, therefore, the new statutes could not be given a retrospective effect so as to impair the appeals pending in this Court.
4. Mr. Khalil-ur-Rehman Khan, who took up the extreme stand that the appeals have abated and could not be heard by any Court, based his contention on three principles viz., ,(i) that a saving clause .can operate only to the extent It is not repugnant to the main statute in which it occurs and in cases where it i3 repugnant, it would be avoid clause, (ii) that where a Court under the new law is denuded of jurisdiction, then even previously instituted cases before It cannot proceed and automatically abate and come to an end and (iii) that where a Special Tribunal is created then it amounts to ouster of jurisdic--tion of other forums. For the aforesaid three principles, he referred to various textbooks and some case-law, the particulars of which are given below:-
(a) Corpus Juris, Volume III, section 52. page 329.
"52(2) Taking Effect after Judgment.-Unless it Is evident from the terms of a statute which gives, takes away, or modifies he remedy by appeal or other mode of review, that It was intended to have a retroactive effect, it applies only to camera ending and undetermined at the time when it goes into effect, and has no application to causes in which judgments have been entered prior to that time. And sometimes it is expressly provided that the statute shall not affect existing remedies. But since such statutes are remedial, they may, when such a construction is called for, be given a retrospective effect, so as to apply to cases in which judgment had been rendered. It has repeatedly been held however that, while the Legislature has constitutional Jurisdiction over remedies, it is without power of interference by granting a right of appeal or otherwise, after all existing remedies have been exhausted and rights in a judgment have become vested. But no vested right is affected by a statute giving a right of appeal from an interlocutory order made before the passage of the act. And a statutory right to have cases reviewed on appeal may be taken away by a repeal of the statue as to cause in which judgment has been rendered. A statue saving premature or defective appeals, even if it has retroactive effect, does not apply to a case in which the right of appeal had been lost by lapse of time when the statue went into effect---
(b) Corpus Juris, Volume III, section 53, page 330: "53(3). Taking Effect after appeal.- Ordinarily, a statute which alters the remedy by appeal error or other mode on review, has no application to and does not affect the validity of an appeal or writ taken or allowed' before the statute went into effect. If, however, sit act altering or regulating the mode of review is expressly made retroactive, or if its language is so broad as to show an intention to include pending appeal it will be given effect as to appeals which were pending at time when it went into effect. A statutory rightappeal may be taken away by repeal of a statute even as to causes which have been previously appealed, unless rights as to pending appeals are preserved by a saving clause."
(c) Corpus Juris, Volume IV, page 1119, column 2:-- "Effect of changes during pendency of appeal- (a) change in law.-The effect of a change in the law, during the pendency of an appeal, on the determination and the disposition of cause by the appellate Court has given rise to many diverse and some conflicting decisions. While the Courts are agreed that an appellate Court will not by its decision allow a change in the law during the pendency of an appeal to affect vested rights, that it will give effect, according was pending and expressly intended to apply, or not to apply respectively, an: that, where a statute on which the judgment rests has beg i repeated pending the appeal, it will take notice of the rep-a; and conform its decision thereto, yet, on the main proposition as to whether the cause should be determined and disposed of according to the law in effect at the time the judgment rendered in the lower Court or to the law In effect at thetime the cause Is disposed of in appeal, there is sharp division of authority, tie rule in some states being that the law force at the time the judgment was rendered below is controlling and the rule in other jurisdictions being that the appellate Court must decide and dispose of the case , accordance with the law existing at the time of its own decision, even though it lead to the reversal of a judgment which was proper at the time of its rendition, or the affirmance of one wherein there was error which has since boon obviated by a change in the law."
(d) Corpus Juris, Volume 15, page 825 "Repeal or Amendment of Statute.-Jurisdiction over pending cause will be ousted by the repeal of the statute upon which it wholly depends, unless the repealing act contains a clause saving pending actions from the operation of the repeal or a substantial re-enactment of the provisions under which the action was brought. But necessarily this rule does not apply to exclusively constitutional Courts. It has been held that where a Court originally possesses and exercises its jurisdiction over a subject, its authority to proceed will not be divested or impaired by any legislative amendment of the law conferring jurisdiction unless express prohibitory words are used."
(e) Corpus Juris, Volume 59, page 11 69:- Actions and other proceedings pending.--(1) In General. As a general rule the repeal of a statute without any reservation takes away all remedies given by the repealed statute and defeats all actions and proceedings pending under it at the time of its repeal. The rule is especially applicable to the repeal of statutes creating a cause of action, providing a remedy not known to the common law or conferring jurisdiction where It did not exist before, and abates proceedings pending even after judgment but before the entry thereof, or pending an appeal. A suit the continuance of which is dependent upon the statute repealed stops whore the appeal finds it, and a process abolished by the repeal cannot be served, even though in the hands of an officer for service at the time of the repeal. So the repeal of a statute authorizing a particular defense operates to deprive defendant in a pending suit of such defense, even though it has already been pleaded. The repeal of a statute concerning when facts alleged should be considered a9 confessed is applicable to a pending case, even on appeal. Also the repeal of a statute authorising depositions to be read in evidence prevents the Introduction in evidence of depositions taken prior to the repeal of the statute. But where the repeal of a statute operates to change the kind of evidence necessary to establish plaintiff's case so that its application might defeat his right to recover, Ii will not apply to a case pending on appeal after judgment. Acts done and suits concluded by final judgment before the repeal are not affected by the repeal of statutes relating to them; nor does a suit pending to enforce a vested right abate upon a repeal of the statutes under which the right accrued. Where a statute has been made expressly applicable to pending proceedings, a right given by it is not taken away by a revision before trial, which omits the provisions. If plaintiff, a foreign corporation, could not legally, under the statutes then in force, institute or maintain an action at the time suit was commenced a subsequent repeal of the statutes without a saving clause will not affect the action.
Repeal affecting matters of procedure.-Where the respealing act relates merely to matters of procedure and substitutes new forms or methods in place of the old, the action does not abate, nor is the validity of proceedings already taken affected; further proceedings in such a case are bad, so far as possible, under the new law, and, where it does not apply, are conducted in accordance with the old.
Repeal which re-enacts similar provisions.-Where a statute repeals a former act, but re-enacts substantially the same provisions the new statute is generally construed as a continuance of the old one, and does not operate is abate an action pending at the time of its enactment.
Repeal of repealing act.-The repeal of a repealing act does not in itself operate to revive proceedings pending at the time of the repeal of the original act; but where the proceedings under the original act have not been formally abated since its repeal, the action may be continued under a subsequent act which expressly so provides."
(f) Interpretation of Statutes by Bindra (3rd Edition), page610: "16. Repeal with a saving clause.-. . . . . A similar principle applies to a law conferring jurisdiction and it has been held repeatedly that the repeal of a statute giving jurisdic--tion to a Court deprives it of the right to pronounce judgment in a proceeding previously pending. Whenever a statute from which a Court deprives its jurisdiction in particular cases is repealed the Court has no right to proceed under the repealed statute even in suits pending at the time of the repeal unless the right is expressly saved by the repealing Act or by a general Act regulating repeals . . . . . .
(g) The Construction of Statutes by Crawford (1940 Edn.). Article 317 at pages 645-647, Article 288 at page 587, Arti--cle 300 at pages 612613 and Article 284 at 580:
317. Effect oh vested rights.-Although some of the cases go so far as to say that the unqualified repeal of a statute as effectually destroys rights and liabilities dependent upon it, not past and concluded, as if the statute had never existed, it is perhaps more accurate to say that an unqualified repeal operates to destroy inchoate rights, as a release of obligations, and as a remission of penalties and forfeitures dependent upon it. But rights, which have become vested under the repealed law, no matter whether they have been acquired under a contract or have arisen by virtue of a tort claim, will not be destroyed by repeal of the statute under which such rights became vested. Similarly, an unqualified repeal will not take away the right to recover penalty, which has been reduced to a judgment. The same is equally true with reference to statutes imposing liabilities. But retrospective operation of a repeal stay be easily avoided through the use of a saving clause so that even inchoate rights may be preserved intact. Such clauses, whether attached to the repealing act, or existing in the form of a general statute, will easily include vested rights under the language usually used-that the repeal of a statute shall not affect any duty imposed, rights accrued, or proceedings commenced thereunder."
Consequently, at least in the absence of a saving clause, the problem created by the repeal of a statute, is simply to determine whether the repeal destroys or impairs a vested right, the right created by the repealed law, at the date the repeal becomes effective, has not vested then it may be impaired or totally abrogated by the new enactment. In other words, the rights involved must be scrutinized carefully in order to ascertain its real nature. This simply means the application of the general rule of law applicable in cases concerned with "he unlawful retrospective effect of legislation, generally. If the repeal merely abrogates a remedy as distinguished from a right, there is no interference with a vested right. A repeal may, therefore, abrogate any statute which simply provides a remedy for the enforcement of a right, except in those cases where the right is also created by the repealed statute, to which event the right will also terminate, unless it has attained that status where it can stand entirely independent of the statute, or has become a jus in re as distinguished from a jus ad ram, which, after all is simply the difference between a right which has matured and one which is inchoate."
"Article 288. Jurisdiction, venue and parties.-A Court may be given jurisdiction over a cause of action which arose before the jurisdictional statute was passed. On the other hand, it is also possible that a statute may be construed so as to take jurisdiction from a Court over a case already pending although such an-intent should be clearly expressed in the statute. So also a statute transferring jurisdiction over certain causes of action, may operate on existing causes of action."
Statutes pertaining to venue, like those pertaining to jurisdic--tion, may, too where such is the clear legislative intent, be construed as applicable to actions already existing or pending when they are enacted. In like manner, a statute which enumerates the proper parties in an action is subject to a retroactive construction so as to apply to an action pending at the time the statute is enacted, or even to a cause of action already in existence though not pending in Court.
Article 390. Saving clauses.-As we have stated elsewhere, the saving clause is used to exempt something from immediate interference or destruction. It is generally used in repeal--ing statutes in order to prevent them from affecting rights accrued, penalties incurred, duties imposed, or proceed--ings . . . . . started tinder the statute sought to be repealed. Its position or, verbal form is unimportant. But if it is in irreconcilable conflict with the body of the statute of which it is a part, it is ineffective or void. And whether the saving clause should receive a strict or liberal construction, is a matter upon which there seems to be some conflict of opinion. Perhaps the best rule would make the nature of the construc--tion of the saving clause depend upon the nature of the statute involved for example, whether it was remedial, penal, or procedural.
If the saving clause is a general one, that is, applicable to all repealing acts, it is considered as merely declaratory of rule of construction. But whether-they are general or not, they arc regarded as much a part of every repealing act as if writers therein. Nevertheless, they are subject to repeal by subsequent acts, that is they will not save from repeal any provision whose repeal Is clearly intended by the Legislature by the later act. To hold otherwise would abridge or limit the legislative power of the various later Legislatures, by the enactment of irrepealable legislation.
Article 284. Judicial proceedings.--While pending litigation may be exempted from the operation of curative statutes, in many instances it is not. But In either case however, a number of problems arise. Moreover, there is also considerable con--fusion in the decisions pertaining to their solutions.
For instance, where pending litigation is not exempt, some Courts have held that the curative act will apply even after the case has been appealed, and others that it will not apply to any case wherein judgment has been rendered in the lower Court. Perhaps the best rule is that a final judgment cannot be affected. Or stated conversely, until the judgment its final, it is subject to the power of the Legislature to enact curative legislation.
(h) Craies on Interpretation of Statutes (1963) Edition, page 353-Qualified repeals.-Where an act confirming jurisdic--tion is repealed by a later Act containing a saving clause to the effect that the repeal shall not affect any jurisdiction created by the repealed Act, that jurisdiction, in the absence of inconsistency between the two Acts containing a saving clause to the affect that the repeal shall not affect any jurisdiction created by the repealed Act, that jurisdiction, in the absence of In-- consistency between the two Acts, should be treated as continuing notwithstanding the repeal. The rule is thus stated by Collins M. R. In re: R. ((1906) 1 Ch. 730, 736) which turned on the question whether section 5 of the Trust Act, 1850, which applied to property held by a criminal lunatic, was wholly repealed by section 342 of the Lunacy Act, 1890, which did not deal directly with criminal lunatics, except in certain specific instances. He said: 'there were one or two other cases cited which have an important application to the present case, that is to say, cases where you find In an Act a repealing clause followed by a saving clause. There you have to see how far the two enactments can co-exist. It seems to me that the principle laid down in those cases is applicable to the present case. And that principle is this. Where you have a repeal and you have also a saving clause you have to consider whether the substituted enactment contains anything incompatible with the previously existing enactment. The question is, Aye or No, is there incompatibility between the two? And in those cases the Judges, in holding that there was a saving clause large enough to annul the repeal, said you must see whether the true effect was to substitute some--thing incompatible with the enactment in the Act repealed; and that, if you found something in the repealing Act Incompatible with the general enactments in the repealed Act, then you must treat the jurisdiction under the repealed Act as pro tanto wiped out. That is settled by the cases of Re- Busfied (1886) 32 Ch. D 123 and Hume v. Somerton (1890) 25 Q B D 239. In both those cases the Judges relied upon the incompatibility of the substituted enactments with the old enactments, and hold that in consequence of that incompatibility the jurisdiction under the old Act could not remain; but they were prepared to how that the saving clause would, if there were no in-- compatibility between the enactments, have the affect of annulling the repeal- la this state of the authorities it appears to me that there is enough here to enable us to hold that under this saving clause (in the Act of 1890). The useful jurisdiction under the Act of 1850 in the case of criminal lunatics has not been absolutely wiped out. It would be a public misfortune if there were no jurisdiction over funds held by criminal lunatics, and, in my opinion, we are not bound to hold that in consequence of the Act of 1890 no such jurisdiction now exists. On the contrary it seem; to me to lave been the intention of this saving clause to preserve that jurisdiction. Accordingly, I am of opinion that the jurisdiction under the old Act remains, though the practice muse be governed by the dew Act.
Page 108 (of the same book): "Words designedly omitted."-. .. . In order to know what a statute does mean, it is one important step to know what It does not mean: and if it be quite clear that there is something which it does not mean, then that which is suggested or supposed to be what it does mean must be in harmony and consistent with what it is clear that it does not mean. What it forbids must be consistent with what it permits. The seventh section contains the words "equip, furnish, fit out, and arm" but it does not contain the word 'build', and I think no one can doubt that that word was purposely omitted from the Act. Section 16 of the Licensing Act, 1872, consisted of a series of clauses headed 'Offences against Public Order'. The section contained three subsections, the first of which defines offences which must be 'knowingly' committed 1 the other two sections omitted the word 'knowingly'. Consequently, in Mullins v. Collins 1874 L R 9 Q B 292, 295 where the defendant was prosecuted because his servant supplied a constable on duty with drink, it was held to be no defence on his part that his servant had done this without his knowledge. 'The appellant said Archibald, J., -'has been convicted under the second subsection, where the word 'knowingly' is omitted. This seems to point to the conclusion that the licensed victualler will be liable for the act of his servant although he himself has not knowingly committed an offence against the second subsection ' "The use of the word 'permitting' In section 13 of the same Act has been held to make proof of knowledge necessary to constitute an offence within the clause, although in other sections (e. g., section 14), the Legislature has used the words 'knowingly permits: Halsbury's Laws of England (Third Edition), para. 7 page 463: "General principles.- Repeal by implication is not favoured by the Courts for it is to bb presumed that Parlia--ment would not intend to affect so important matter as the repeal of a law without expressing Its intention to do so.
If, however, provisions are enacted which cannot be reconciled with those of an existing statute, the only inference possible mills that Parliament, unless it failed to address its mind to the question, intended that the provisions of the existing statute should cease to have effect, and an Intention so evinced is as elective as one expressed in terms. The role is, therefore, that one provision repeals another by Implication if, but only if, it is so Inconsistent with or repugnant to-that other that the two are Incapable of standing together. If it is reason-- ably possible as to construe the provisions as to give affect to both, that must be done; and their reconciliation must in particular be attempted If the later statute provides for its construction as one with the earlier, thereby Indicating that Parliament regarded them as compatible, or If the repeals expressly effected by the later statute are so detailed that failure to include the earlier provision amongst them must be regarded as such an Indication."
The case-law referred to was do Re: R ((1906) 1 Ch. 730), Prabirendra Mohan v. Berhampore Bank Ltd. and others (AIR 1954 Cal. 289), Hume v. Somerion ((1890) 25 Q B D 239), Whaley v. Busfield ((1886) 32 Ch. D 123), National Planners Limited v. Contributories (A I It 1959 Pb. 230), and Mst. Qaisar Khatoon and 12 others v. Maulvi Abdul Hag and another (PLD 1971 SC 334). Subject - to any finding recorded by me to the contrary herein, I have no cavil with the generality of the principles quoted above or the case-law cited in support thereof. The question in the Instant case, however, is as to whether the saving sections in the present case are in any manner inconsistent with, or repugnant to, the body of the statutes in which they occur. Mr. Khalil-ur-Rehman Khan argued that section 46 of West Pakistan Ordinance IV of 19680 should be considered to have saved only such "things done" or "Courts constituted", "references and applications to Courts made" or "proceedings commenced" or "actions taken" under the old Ordinance of 1959 which were consistent with the said Ordi--nance of 1968. He submitted that in the new Ordinance of 1968, there was no warrant for filing appeals in the High Court and. therefore, the previous action of appeals having been filed here being repugnant to the scheme of the new Ordinance; the said action was inconsistent with the same, and therefore, could not be and was not saved at all. He also submitted that in the new Ordinance the jurisdiction of the High Court had been abolished, therefore, this Court was not competent to hear old appeals. I have given my anxious thought to these con--tentions, but I mast say that I have not been able to endorse them. I have already held that the saving section under consideration here was a sort of exception to the new section--which dealt with only future appeals. Moreover, tae word "continue", when applied to previously instituted proceedings of appeals In this Court shows that the intention of the Legislature was not to destroy those appeals as is being contended. For the same reason the theory of denudation of jurisdiction of this Court is also irrelevant on account of the fact that old proceedings have been directed to continue especially, when the Court concerned viz., the High Court still exists. Similarly, as already mentioned the right of appeal to a particular forum is a vested right and there is no indication in - the statutes under discussion that they intended to act retrospectively so as to destroy even vested rights. The appeals in hand are covered with the principles relied upon by the learned counsel himself as reproduced in various sub-paragraphs of para. (3) above Similarly the cases of Prabirendra Mohan v. Berhampore Bank Ltd and others and Mst. Qaisar Khatoon and 12 others v. Maulvi Abdul Khaliq and another go against the contentions of the learned counsel. In the former case, it was held that old right of appeal cannot be exercised in new forums except so far as it may be expressly provided for. It is to be pointed out that there is no such express provision in the cases in hand. In the later case, appeals from the Baghdad-ul-Jadid High Court which had been preferred to the Judicial Committee of the State, were transferred to the Supreme Court in 1959. Contention was that after Merger of State into Province of West Pakistan. High Court of Baghdad-ul-Jadid had ceased to exist, therefore, the said High Court could not be one of the Courts against which the appeals could come to the Supreme Court and as such the old appeals pending in the Supreme Court had come to an end. The argument was repelled and it was hold that:- "Article 60 of the Constitution of 1962, gives to this Court, in addition to the jurisdictions conferred upon it by Articles 57 to 59, 'such other jurisdiction as may be conferred on it by law.' The Federal Court (Enlargement of Jurisdiction) Act, 1949, is still an existing law and it does confer a jurisdiction upon this Court which has not been 'taken away by any outer statute or Act. The argument that since the High Court of Baghdad-ul-Jadid has now ceased to exist, after the integration of Bahawalpur Stet.- with the Province of West Pakistan, this Court has lost its jurisdiction under the Federal Court (Enlargement of Jurisdiction) Act, 1949, Is clearly devoid of force, because with regard to pending matters this Court's jurisdiction has not been affected in any way. That this Court still has, in this case the jurisdiction to grant, special leave particularly since there are substantial questions of law arising for decision in this case."
Applying the same principle and reasoning to the present case, it can safely be held that with regard to pending cases, the jurisdiction of the High Court has not been affected in any manner, especially, when this Court still exists in its own right.
5. I have in sty earlier judgment reproduced section 46 of West Pakistan Ordinance No. IV of 1965: 1 now reproduce section 67 of Ordinance No. XXIII of 1969 as amended by Ordinance No. XIX of 1970. It is to be mentioned that in clause (a) of subsection (2) of section 67 there existed a sentence, as far as it is not inconsistent with the provisions of this ordinance Similarly in clause (b) of subsection (2) of the said section there existed a sentence, "to the extent of consistency therewith." Both these sentences were deleted by Ordinance No. X (X of 1970. Section 67 now reads as follows:- "67. Repeals and savings.-(1) The following laws are hereby repealed namely:-
(a) The East Pakistan Trade Unions Act, 1963 (E. P. Act V of 1965);
(b) The East Pakistan Labour Disputes Act, 1965 (E. P. Act VI of 1965) ;
(c) The West Pakistan Industrial Disputes Ordinance, 1968 (W. P. Ordinance IV of 1968) ; and
(d) The West Pakistan Trade Unions Ordnance, 1968 (W. P. Ordinance V of 1968.).
(2) Notwithstanding the repeal of any law by subsection (1) and without prejudice to the Provisions of section 24 of the General Clauses Act, 1897 (X of 1897):
(a) every Trade Union existing immediately before the com--mencement of this Ordinance, which was registered under any such law, shall be deemed to be registered under this Ordinance and its constitution shall continue in force until altered: or rescinded ; and
(b) anything done, rules, made notification or order issued, Officer appointed, Court constituted, notice given, proceedings commenced or other actions taken under any law shall be deemed to have been done, made, issued, appointed, constitut--ed, given commenced or taken, as the case may be under the corresponding provisions of this Ordinance."
6. Keeping the above sections in view Mr. Mahmood 7,aman propounded the following propositions:--
(a) That in the instant case the saving clause should prevail over section 6 of the General Clauses Act;
(b) that saving clause should determine the extent and manner in which pending proceedings have be6n saved;
(c) that the deeming clause as contained in the section under discussion has to be given its full effect;
(d) that change of forum of appeal is a matter of procedure and not a matter of right, and
(e) that even if it is not so, the saving clause showed a clear intention to effect a change in the forum of pendingappeals. .
So far as the point contained at (d) is concerned, it stands answered in previous pages of this, and my earlier judgment, The rent .f the points were also covered in various sub-pares of paragraph of my previous judgment though at that time the law referred to by the learned counsel for the parties was section 4 of the West Pakistan General Clauses Act and now reference is being made to section 6 of the General Clauses Act which, however, in substance, is similar to the former.
Section 6 of the General Clauses Act is reproduced below:- "6. Effect of repeal.-Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not--
(a) revive anything not in force or existing at the time at which the repeal takes effect ; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder ; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed ; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed."
8. Reference at this stage may also be made to section 24 of the General Clauses Act, which corresponds to section 23 of the West Pakistan General Clauses Act, which I reproduced in my earlier judgment. Section 24 of the General Clauses Act reads as follows:- "24. Continuation, of orders, etc., Issued under enactments repealed and re-enacted.-Where any Central Actor Regulation is, after the commencement of this Act, repealed and re-enacted with or without modification, then unless it is otherwise expressly provided, any appointment, notification order, scheme, rule, form or bye-law made or issued under the repealed Act or Regulation, shall, so far as it is not inconsistent with the provisions re-enacted, continuo in force, and be deemed to have been made or issued under the provisions so re-enacted, unless and until it is superseded by any appointment, notification, order, scheme, rule, form or bye-law made or issued under the provisions so re-enacted and when any Central Act or Regulation, which, by a notification under section 5 or 5-A of the Scheduled Districts Act, 1874, or any like law, has been extended to any local area, has, by a subsequent notification, been withdrawn from and re-extended to such area or any part thereof, the provisions of such -Actor Regulation shall be deemed to have been repealed and re-enacted in such area or part within the meaning of this section."
9. These sections are to be read, as the case may be, along with section 46 of West Pakistan Ordinance IV of 1968, and section 67 of Ordinance XXIII of 1969, as amended. It will be noted that reference to section 24 of the General Clauses Act is contained only in section 67 of the Ordinance XXIII of 1969, and there is no similar express reference in section. 46 of West Pakistan Ordinance IV of 1968. It may also be mentioned that while examining the provisions of West Pakistan Ordinance IV of 1968, it will be West Pakistan General Clauses Act which will be relevant and for Ordinance XXIII of 1969, subject to what I will say later, it will be the General Clauses Act which will be more in point.
After this clarification,reverting to the contentions of Mr. Mahmood Zaman with regard to West Pakistan Ordinance IV of 1968, thistime the learned counsel advanced an additional argument and submitted that whereas in section 46 of West Pakistan Ordinance IV of 1968, after mentioning various matters, it w-as written, that they shall be deemed to have been done etc., under the, newOrdinance, but so far as their continuation was concerned, it was not indicated that such continuation was also to be deemed to be under the Now Ordinance.With respect, the argumentadvanced instead of favouring Mr. MahmoodZaman goes against him. If the continuation, as the learned counsel, submitted, was not to be deemed to be underThe new Ordinance,then on his own argument it would imply that continuationof all proceedings was to be under the old law. Tome, however, it appears that repetition of word "continue" was not necessary because continuation of old proceedings wasthe mandate of the new law itself. At this juncture, standof Mr. Khalil-ur-Rehman Khan was that section 46 ibid referred to proceedings of the original nature before original forums (like the industrial Courts) and did not refer to appeals or appellate proceedings or the appellate forums. I have already expressed my views on this point earlier and will develop them further later on, but assuming (without conceding), the argument as correct literally, it would then mean that appeals, appellate proceedings and appellate forums were not to be touched as there was no indication that they were to bedestroyed and in that view of the matter in the absenceof anything of this nature in the aforesaid section, I would have no hesitation in applying the provisions of section 4 ofthe West Pakistan General Clauses Act where it is written that, "unless adifferent intention appears, . .. . the repeal shall not .. . . . . affect any right, privilege . . . . . . acquired, accrued .. . . . . . under any enactment so repealed . . . . . or affectany investigation, legal proceeding or remedy in respect ofany such right . . . . . . . and any such investigation, legal proceeding or remedy may be instituted, continued or enforced .. . . . . as if the repealing Act had not been passed." It was hold by Anwar-ul-Haq, J. (as then his Lordship was) in Akhtar v. The State (PLD 1961 Lah. 1049) while determining the validity of the proceedings instituted under section 3 of the Punjab (Control) of Goondas Act, 1951 that "there being nothing to the contrary, the provisions of section 4 (1)(e) of the West Pakistan General Clauses Act would apply, with the result that the proceedings which were pending before the District Tribunal, consisting of the District Magistrate and the Superintendent of the Punjab (Control of Goondas) Act, 1951,runder the provisions veto Initiated, notwithstanding its rope al These which they carried their own law with them and had to be proceedings decided under the Act of 1951 and not under the Ordinance of 1959". Respectfully adopting that view 1 would hold that the appeals instituted under the old law can continue 4n this Court and are not to be impaired in any manner subject of course, to one modification and that is that the new law wherever it applies to the points in controversy between the parties 4t may have to be taken due notice of. This conclusion is supported from another angle and that is that (keeping apart the appeals filed under Industrial Disputes Ordinance LVI of 1959 for the present), It is evident that certain appeals were filed in Labour Appellate Tribunals under West Pakistan Ordinance IV of 1968 Itself. When that Ordinance was repealed by Ordi--nance XXIII of 1969, then under section 67 of the later Ordinance the aforesaid appeals (and it has not been contested to the contrary), were saved and were allowed to continue. If within the terminology of the later Act, the subject of appeals and of appellate forums was fully covered, then the argument that in the similar terminology as contained in West Pakistan Ordinance 1V of 1968, the appeals filed in High Court under Industrial Disputes Ordinance LVI of 1959, were not covered, is not a sound one. To give consistent meanings to the similar terminology as employed in Ordinance XXIII of 1969, and in West Pakistan Ordinance IV of 1968, it has to be held that section 46 of West Pakistan Ordinance 1V of 1968, did cover and save appeals filed In the High Court, just as Ordinance XXIII of 1969, covered and saved appeals filed in the Labour Appellate Tribunals, and both these types of appeals could continue in the forums in which they had been instituted so long as those forum retained their existence otherwise.
10. When confronted with this situation the learned counsel argued that section 46 of West Pakistan Ordinance IV of 1968 expresses an intention contrary to section 4 of the West Pakistan General Clauses Act, Inasmuch as, it did not use all such terms, words or phrases as existed in the aforesaid Act and, therefore, such matters which were not mentioned in the saving clause were not saved.
They particularly referred to the words "right", "privilege", "legal proceedings" and argued that since these words and phrases did not exist in section 46 of the West Pakistan Ordinance IV of 1968, therefore, these rights etc., were not saved. I have already held that appeal proceedings can be held to fall within the terminology employed in West Pakistan Ordinance 1V of 1968. Even otherwise my humble view is that omission of word "right" in section 46 of West Pakistan Ordinance IV of 1.968, does not necessarily show that right of appeal and as a matter of fact, all other right; acquired under the old law were intended to be destroyed.In 'that context my finding will be that in West Pakistan Ordinance 1V of 1968, no different intention appears as contemplated by section 4 of the West Pakistan General ClauseAct in so far as the exercise of vested rights or their pursuit was concerned and that the same could be continued or followed. Mills I may at this stage refer to a case reported in Deep Chand v. State of Uttar Paradesh (AIR 1959 SC 648). In section 24 of the General Clauses Act it is written that old appointments, notifications, orders, in, schemes, rules, forms or bye-laws could continue after the repeal of old la -v and re-enactment of a new law. In section 6 of the General Clauses Act it is, inter all, mentioned that the repeal shall not affect "anything duly done or suffered under" the old law. It was argued that though section 6 of General Clauses Act was applicable, but as it did not make mention of schemes framed under the old law, therefore, simply by virtue of the said section 6, the old schemes could not continue. The argument was repelled and it was held that all schemes could be covered by "anything done" under the repealed law. The actual passage in the said judgment is as follows:- "But it is said that a comparison of the provisions of section 6 with those of section 24 would indicate that anything duly done excludes the schemes. Section 24 deals with the continuation of orders, schemes, rules, forms or bye-laws made or issued under the repealed Act . . . . . . . . But the exclusion of the scheme is sought to be supported on the basis of the argument that in the case of a repeal of a Central Act, both the sections apply and, in that context, a reasonable interpretation would be to exclude what Is specifically provided for from the general words used in section 6.
Whatever justification there may be in that context, there is none when we are concerned with the repeal of a State Act to which section 24 does not apply. In that situation we have to look to the plain words of section 6 and ascertain whether those words are comprehensive enough to take in a scheme already framed. We have no doubt that a scheme framed is a thing done under the repealed Act."
Applying the above reasoning to the facts and circumstances of the present case, here too in the words "anything done" I would include inter alia (a) filing of appeals in the High Court by the appellants; (b) entertainment of those appeals; (c) and assumption of jurisdiction on the part of the High Court for their disposal and (d) passing orders incidental thereto and In connection therewith. All these things, in other words, will be saved and will continue and shall be deemed to have be-n done under "this" Ordinance. The words "anything done", in my opinion, there--fore, are very wide and will cover all acts Including the confer--ment of jurisdiction on High Court with regard to disposal of appeals Instituted here. Similarly, if any rules, notifications and orders were issued, officers were appointed, Courts were constitu--ted, notices were given, references and applications to contest were made, proceedings were commenced and other actions were taken - all these would be covered normally by the words "anything done" under the said Ordinance and mention of all the aforesaid words separately should not confuse us, because they seen' to have been used simply for the sake of Illustration and the list of the items and terms intended to be covered thereby can,, of be said to b;, exhaustive and may expand according to the situations, facts and circumstances of each case so is to cover many more matters which may fall within the aforesaid terminology via., "anything done". In this way, to come nearer to the: object-in-hand, if under the repealed Statute, any right was conferred that would be a thing done by or under the Statute. If for the vindication of the right a jurisdiction was conferred on a Court, which still exists, that too would be a thing done under that Statute. Thus if we examine the point involved herein is this perspective, no ambiguity is left in reaching the result that jurisdiction conferred on the Hig1t Court to deal with appeals instituted therein (and pending at the moment) being a thing done under the repealed law was continuing. In Messrs Universal Import Agency and another v. The Chief Controller of Imports and Exports and others (AIR 1961S C 41) which followed State of Travancore- Cochin and others v. Bombay Company Ltd. (AIR 1952 SC 366) and State of Travancore-Cochin and others v Shanmugha V11-7s Cashewnut Factory, Quilon (AIR 1953 SC 333) It was held that "thing done" includes legal effects and conse--quences of thing done prior to merger. Similarly, in The Brihan Maharashtra Sugar Syndicate Ltd. v. Janardan Ramchandra Kulkarni and others (AIR 1960 SC 794) it was held that if under section 6 of the General Clauses Act, the proceedings in respect of an application under section 153(c) of the Companies Act of 1913 are continued after tee repeal of that Act, it followed that the District Judge controlled to have jurisdiction to entertain them, because if that were not so then section 6 of the General Clauses Act would become infructuous. Applying the same reasoning to the facts and circumstances of the present case, if the proceedings of appeals in Via High Court were not allowed to continue, then the very saving clause (and as a matter of fact section 4 of, West Pakistan General Clauses Act which, as I have already held, is not excluded so far as the continuation of old proceedings is concerned) would become infructuous.
11. Turning now to the deeming provision, it presents no difficulty. When applied to the facts of this case it will mean that the conferment of jurisdiction on the High Court for the purposes of disposal of appeals filed therein should be deemed to have been done or given under tae new Ordinance.
During the course of debate at this juncture a point came up for consideration as to whether the words, "Courts constituted" or "Courts" in the saving section hereinbefore mentioned, could cover High Court or not. Mr. Khalil-ur-Rehman Khan referred to Prem---s Judicial Dictionary, Volume I, page 390, for the purpose of showing that the word "constituted" is of wider import and that it means "established". He cited Shorter Oxford Dictionary, Volume 1, page 378, Column I to show that "constituted" means "set up, ordained or appointed". He referred to Messrs Noor 11ussain v.Commissioner of Income-tax, Dacca(1964 Dacca 373) where at page 398 Murshed, J., held that words milts"constitute" or "create" were interchangeable. He also cited R. C. Mitter & Sons v.
Commissioner of Income-tax, West Bengal (AIR 1956 Cal. 303) to show that "constituted" means sat up or created. With ", Jthisbackground he argued that High Court was not a Court created or set up by Ordinance LVI of 1959, and therefore, referencein the saving section under discussion here, was not to High Court but the Industrial Courts which were set up under the relevant Ordinance.
Each case, in my opinion, dependsupon its own facto, features and circumstances, and no uniform meaning of the word "constituted" can either be accepted or laid down. Since I have held that the words "anything done"were of a wider import, therefore, to remain consistent I have no hesitation in holding that the words 'Courts constituted" have not been used in any strict or technical sense. As the section itself says (for example) references and applications to Courts made" and "proceedings commenced" or "other actiontaken" under the old Ordinance is to continue therefore, it is obvious (when read with words "anything done") that the aforesaid words covered High Court also. "Constituted" may have different connotations in different contexts depending upon the situation and the place in which it occurs. A Court may already be, existing but if its jurisdiction is extended, or it is, for example constituted as a Court of Appeal for various mattersoutside its ordinary jurisdiction, it can well be said to be a "Court constituted" for that purpose. Word "constituted" thus is not necessarily confined to the initial setting up or creation of a Court and in the context in which it occurs here, it can be given the meaning, which I have given to it. If that is not done, then irrational and unjust results might flow, namely, whereas at one place it is slid that anything done under the old law is to continue and for that purpose proceedings in Industrial Courts are continued, but the proceedings initiated in the High Court are not to continue etc. The view, which I have taken that the word "Courts" in section 46 of West Pakistan Ordinance IV of 1968, include High Court can be supported from certain other aspects as well. Firstly, if we concede (as was conceded by Mr. Mahmood Zaman) that "proceedings commenced" included proceedings of appeal, then it is legitimate to assume that the Court in which they were initiated is also connected with those proceedings and as such should not be considered as never to have existed or recognised for final disposal of the cases pending therein. Secondly, in section 46 it is written, that "applications to Courts made" are also saved. Apart from the fact that appeal is also a sort of application to the higher Court to send for the records of the Court subordinate to it to find out the correctness of its judgment, In the main appeal itself sometimes certain other miscellaneous applications, as for example, for stay of the execution or implementation of- the judgment under appeal, issuance of a temporary injunction and passing of various other orders on interlocutory matters, are generally given. This shows that if those applications and actions taken on them were intended to be saved-in section 46 "action taken" is also saved-then obviously the proceedings (namely, the appeals) in which those applications were filed must also be held to be saved. This argument for saving of appeals Is independent of, and in addition to the view based on the two Privy Council cases of Colonial Sugar Refining Company Ltd. v. Irving and Delhi Cloth & General Mills Ltd. v. Income-tax Commissioner, Delhi and others and other cases of similar strain that appeal to a particular forum is a substantive and a vested right and was not a there matter of procedure and cannot easily be assumed to have been destroyed or impaired in any manner. Since the section saves applications made to Courts and similarly action taken by Courts, it is lawful to presume that it has in contempla--tion the applications to and actions taken by the High Court as well. This leads to a clear inference that the word "Courts" is wide enough to cover High Court and its actions.
Thirdly, if in this way and for this purpose High Court comes within the ambit of section 46, then it is a logical corollary that when it Is written that the Courts constituted under the repealed law were to continue (for pending matter) it Included the High Court also which was constituted as a Court of A. weal under the said Ordinance.
12. Mr. Mahmood Zaman argues that the extent of the applicability of saving sections to the facts and circumstances of the present case, however, was only this much that the proceedings commenced in the High Court under the old law were to be deemed to have been commenced under the new law. After so deeming he submitted that this deeming should be given its full effect with the result that their further trial should be under the new law and the appeals should as such be remitted to the Appellate Tribunal set up under the now Ordinance. I am afraid that by this deeming operation latter part of the argument of the learned counsel Is not correct and charge of forum is not to be affected though there may be some variations, if at all, with regard to the applicability of the law for decision of the points of controversy arising In any particular case If on any of the points involved In any appeal, the law has undergone a change, then by the High Court, but the deeming clause could not be extended to destroy the vested right of appeal being heard by a particular appellate forum. It is well settled principle of law that if a right has vested in a person and the authority through whom that right can be enforced continues to exist, the inference is that there was no Intention to deprive that person of that right. This principle was deducible even from the textbooks and case-law referred to by Mr. Khalil-ur-Rehman Khan in para. 4 of this judgment in the instant case, the High Court continues to exist and the vested right of appeal to this Court, therefore, with regard to appeals already pending herein can be followed and pursued.
In Muhammad Bashir v. Province of West Pakistan etc. (PLD 1958 Lab. 853) Kaikaus, J., observed that, "a substantive right or liability created by an Act acquires an existence independent of the Act which created it so that even after the Act is repealed it continues." With respect I would say that it is in this perspective that right of appeal to a particular forum is to be really under--stood and is not to be mixed up with mere matters of procedure. This is all the more so when West Pakistan Ordinance IV of 1968 itself stated that things done or proceedings commenced under the old law were to continue. Another thing to be noticed, as already pointed out In my earlier judgment is that the process employed is first directing the continuation of proceedings and thereafter saying that they shall be deemed to be under the new Ordinance and it not first deeming them to be under the new Ordinance and then directing their continuation as such. The argument of the learned counsel purports to reverse this process, which, it is obvious, cannot be allowed to be done.
13. The, discussion heretofore kept in front mostly W. P. Ordinance IV of 1968. This was because all the learned counsel at the previous hearing, and even now before the full Bench, took up the stand that it was W. P. Ordinance IV of 1968 which had done the real damage and impaired the appeals pending herein. They were earlier of the view that If the appeals could continue here despite the provisions of the aforesaid Ordinance, they would continue even under Ordinance XXIII of 1969. This is why in my previous judgment also I highlighted the various points with reference to the provisions of W. P. Ordinance 1V of 1968. Now, however, some change has been made in this posi-- tion and it is argued that Ordinance XXIII of 1969 saves only those things which were actually done and those proceedings which were actually commenced under W. P. Ordinance IV of 1968, but as the present appeals were not filed under the aforesaid Ordinance but under the law which was in vogne prior thereto, therefore, they were not saved. At this stage I advert also to Ordinance XXIII of 1969 as amended Jater on by Ordinance XIX of 1970. Its relevant section is 67 which has been reproduced above. It is to be noted that its provisions are "without prejudice to the pro--visions of section 24 of the General Clauses Act". The aforesaid section 24 has been quoted by me above In extenso. The points to be noticed are:
(a) That section 24 of the General Clauses Act applies when any Central Act or Regulation Is repealed and re-enacted. The position here, however, is that Ordinance XXIII of 1969 did not repeal any Central Act. It repealed the East Pakistan Trade Union Act V of 1965, the East Pakistan Labour Disputes Act VI of 1965, W. P. Industrial Disputes Ordinance 1V of 1968 and West Pakistan Trade Union Ordinance V of 1968, none of which were Central Acts and, to be more precise, prima facie, they were "existing laws". )n these circumstances the learned counsel for the parties were not in a position to explain a3 to whether any reference to General Clauses Act, prima facie was In order or not. Since no arguments were addressed on this points, we leave it here.
(b) The next thing to be noticed Is that the phrase "without prejudice to the provisions of section 24 of the General Clauses Act." suggests that the provisions of the aforesaid section were to operate and nothing in section 6'7 of Ordinance XXIII of 1969, we find that the rule laid down therein is the same as is contained in section 24 of the General Clauses Act and we apparently do not find any purpose for which section 24 of the ' General Clauses Act wag saved. Be that as it may, since the Legislature itself referred to section 24 of the General Clauses Act, we can proceed on the assumption that that Act was attracted to the present situation.
After this preamble, reverting to the points in hand, it can be held that under W. P. Ordinance 1V of 1968, the proceedings of appeal herein could continue. This is what the said Ordinance itself directed. This according to the relevant deeming clause, was to be considered as a "thing done" or "proceedings com--menced" under the Ordinance. When once these appeals attain this deeming status; then provisions of Ordinance XXIII of 1969 saved them because it says "anything done" or "proceedings con--tinued" under the West Pakistan Ordinance IV of 1968 are to be considered to have been done etc., under Ordinance XXIII of 1969. The argument raised to the contrary has lost sight of the effect of a deeming provision in support whereof the learned counsel themselves cited authorities like Begum B. H. Syed v. Mst. Afzal Jahan Begum and another (PLD 1970 SC 29), Commissioner of Income-tax, Bombay v. Bombay Trust Corporation Ltd. (AIR 1930 P C 54), Begum B. H. Syed v. Mst. Afzal Jahan Begum and another (PLD 1966 Lah. 967), Agha Shaukat Ali v. S. & R. C., Lahore and another (PLD 1965 Lah. 445). Ali this case-law would show that these proceedings are quite intact and this Court can deal with and dispose of the same though the law on the points In contro--versy wherever it has undergone a change will have to be taken due notice of.
14. Another point argued was that since; much delay: bas taken place in the hearing of there appeals in this Court, there--fore, from that point of view also the correct Interpretation would be that intention of the Legislature was to send these appeals to the Industrial Appellate Tribunal. If there is nothing otherwise in the statute under discussion for transferring these appeals elsewhere, than according to me, mere delay by, itself will 'be on ground to throw away these appeals (See Basudeva Samiar: In re. (AIR 1929 Mad. 381) and Sadar Ali and others v. Doliluddin Ustagar (AIR 1928 Cal. 640). The principle to be remembered is that in statutes of the present kind where a repeal and re-enactment has taken place the general law (under the relevant General Clauses Act, Provincial or Central is that vested rights and proceedings are always saved. In order k to arrive at a correct conclusion the test, therefore, is not to see whether those proceedings have been caved but to see whether they have been destroyed because, as already indicated, saving is the rule and destruction is an exception. Proceeding from this point of view, there is nothing to show in the laws under discussion here, that pending appeals in the High Court were to be destroyed.
Rather indications are that they are to continue and, as already ex--plained in my earlier judgment, it would mean continue wherever of they are and it was for that purpose that after their continu--ation they were given the status of "to be deemed to be under the new law", because conversely if actually they were to continue in the new forum other than the High Court, then deeming label was not necessary to be engrafted upon them, as In the new forums they would have continued per force of the new law Itself and the deeming clause would have been Inappropriate in the whole context:
15. It was argued that there was inconsistency between the saving sections as contained in the statutes under reference and the provisions of the relevant (Provincial or Central) General Clauses Act. I have already referred to this matter in detail in my earlier judgment and have tried to clarify the same in the present pages also, that so far as the subject in hand is concerned, there is- no inconsistency and the present statute so far as the hearing of the appeals by the High Court is concerned, did not strike a note different from the relevant General Clauses Act. On the subject in hand both these laws authorised continuation of appeals in the previous forums and can operate simultaneously except with this clarification that when the appeals are disposed of by the High Court, it shall be deemed as if they were disposed of under the new law. This is the only modification made in the statutes under consideration, and this modification cannot be called as an inconsistency with any Genera) Clauses Act.
17. 1 have in my earlier order referred to certain case-law. Mr. Mahmood Zaman referred to a few of them and pointed out some points which, according to him were of distinction, so far as the facts and circumstances of the present appeals are concerned: As for example, he submitted that in Eastern Pakistan Railway"', Workshop Employees' League v. Chairman, Eastern Pakistan Railway Board and another, toe appellate forum had not undergone a change'' and only certain strings were attached to future appeals. In Kirpa Singh v. Ajaipal Singh and others, lie submitted there was no saving clause and all it said was that old appeals could not be--come dead. He further submitted that the finding in that case was based on concession of the counsel concerned, In Colonial Sugar Refining Company Ltd.'s case he submitted there was no saving clause in the relevant statute and there was no indication to the contrary. In Sutlej Cotton Mills Limited, Okara v.
Indus--trial Court, West Pakistan and others, he submitted, the case wag decided with reference to Article 250 of the late Constitution of 1962 and same, according to him was the position of Ch. Sir Muhammad Zafrullah Khan and others v. The Custodian of Evacuee Property and others. Without verifying and at the sumo time without dilating upon them these comments may be there but, according tome, they do not make any difference to the appeals in hand. The aforementioned cases, in spite of the said com--ments, do establish that right of appeal to a particular forum is not a mere matter of procedure but is a vested right. The dis--tinctions pointed out, therefore, are without any substance. The argument that there was no saving clause in the aforementioned cases Instead of helping the learned counsel would go against him, because in the present case there is a saving clause which, as I have analysed, has saved the pending appeals instead of destroying them or their continuation in this Court.
18. The learn,.1c counsel arguing for the continuation of these appeals also cited Malik Mir Hassan and another v. The State (PLD 1969 Lab. 786), Jamshed Ahmad Khan v. Aurangzeb Khan and others (PLD 1964. Pesh 250), Harjina & Co. (Pak.) Limited, Karachi v. Commissioner of Income-- tax (Central), Karachi (PLD 1963 Kar. 996), Ch. Sir Muhammad Zafrullah Khan and others v. The Custodian of Evacuee Property and others, Dr. Mahboob Rabbani v. Government of West Pakistan (PLD 1963 Lab. 53), The Colony Textile Mills Limited, Lahore, v. The West Pakistan Labour Court (Northern Zone), Lahore and others, Karim Shah v. Mst. Zinat Bibi (I L R 22 Lab. 773), Nur Muhammad and another v. Zaffar Ali (PLD 1952 Lab. 245), Messrs Nawa-i-Waqat Publications Ltd. v. Messrs Lakshmi Insurance Company (PLD 1959 Lab. 980), Messrs Khaliq & Najam Company v. Sales Tax Officer, B- Ward, Lahore and another (PLD 1959 Lab. 915), Akhtar v. The State (PLD 1961 Lah.1094) and Syed Ali Nawaz v. Ltd. -Col.. Muhammad Yusuf Khan to show that pending proceedings are invariably allow--ed to be continued in the forums in which they are initially instituted. I need not refer to each of these cases in detail and would state only this much that all this and other similar case-law quoted herein shows that such proceedings., ere generally saved unless there is a clear indication that they are destroyed which finding is to be given on the terms of the relevant statute involved in each case. I have already expressed my view on the statutes involved herein in favour of the continuation of these appeals flu this Court.
19. Mr. Mahmood Zaman, while arguing that appeals should be transmitted to the Industrial Appellate Tribunal, sub--mitted that the real function of a Court of the status of the High Court was to deal with matters Involving interpretation of statutes and laying down law on important constitutional or other matters, and. the matters which pertained to regulating the relations between the employers and employees, masters and labours should be allowed to be adjudicated upon by local and special tribunals. It was for this purpose, he submitted, that the Legislature brought about a change in law, and appellate jurisdiction of High Court with regard to labour disputes and problems was brought to an end. It would be acting, he submitted in aid of this realistic approach, if the saving sections involved herein were Interpreted In that light and no anxiety should be shown to keep the pending appeals here, especially when the High Court was already over worked and could not find time to dispose them of earlier. While admiring the boldness of the argument I must say, that it is nei--ther towards the right direction nor bussed on any genuine grounds. I must straightaway make it clear that there has never bun any anxiety on the part of this Court to extend its jurisdiction unnecessarily into the spheres and fields where it does not exist. Similarly regardless of the work-load on it, this Court has never thrown away its jurisdiction merely on considerations of the kind, which are being suggested as a guideline for interpretation of statutes in these cases. Making of a law is the function of the Legislature and Its interpretation is the job and sacred duty of this Court. If on a proper construction any viewpoint has to be laid down, then it ' is not to be shunned merely because it will increase the High Court work or the turn for the disposal of relevant cases of a particular kind will come late. The argument raised, to say with respect is nothing but a polished satire en the backlog in this Court. After making this clarification I must state that it is this very job of interpretation of statutes which we are to perform in the instant cases and if we find a particular view to be the only correct view, then suggestions of the kind put forward- cannot stand in our way for giving effect to the said view. Again, statutes ate not to be interpreted on the basis of the canons and considerations suggested by the learned counsel but on their own language and wording and the intention of the Legislature as manifest there from. It is to be mentioned that decisions on labour disputes by whomsoever taken, wherever they suffer from excess of jurisdiction and are without lawful authority, can be set right under Article 98 of the Constitution .by this Court. The argument, therefore, that these disputes are not a subject fit for adjudication by a High Court is totally misconceived. Rather magnitude of these disputes, their importance in the social structure of the society and their connection with law and order, speak volumes to the contrary. However be that as it may since the whole approach of the learned counsel in this respect is not towards a proper direction, I would not dwell further on this subject and would end it by saying that such like considera--tions should not obsess anybody to put a proper and a correct Interpretation on the relevant provisions of a given statute.
20. Another allied argument raised by Mr. Mahmood Zaman was that statutes of the kind involved herein pertained to the sphere of social justice which was better administered by domestic tribunals than by the High Court and, therefore, the present appeals should be sent to the said tribunals. As against this, Ch. Altaf Hussain submitted that social justice is not any defined law. It may differ from place to place and party to party. According to him, social justice cannot be separated from law and is always subservient to statutory Instru--ments and laws of the country.
He further submitted that even domestic tribunals cannot act on their own ideas of social justice.
For all these propositions, he referred to Bannu Woollen Mills v. Chairman, Industrial Court. West Pakistan, Lahore and others (PLD 1966 SC 498), Messrs Dalmia Cement Ltd. v. The Dalmia Cement Factory Workers and others (PLD 1958 SC (Pak.) 153), Sui Gas Transmission Cry. Ltd. v. The Islamic Republic of Pakistan and others (PLD 1959 SC (Pak.) 66). Muhammad Mohsin Siddiqi v.
Government of West Pakistan (PLD 1964 SC 359), Mill owners' Associations v. Rashtrya Mill Mazdoor Singh (1950 L L J 1247) and Sridhaman Motor Service Atteer v. Industial Tribunal, Madras ((1959) 1 L L J 380). He also quoted Labour Law and practice In India by Kothari (1961 Edition), page 14 and (with modesty) his own research as compiled in his book "Law and Procedure of Industrial Disputes in Pakistan" (1966 Edition), page 153 and Supplement portion, page 33. I do not want to go into the subject of social justice, its concept or relevancy and would end the topic by observing that the point raised in question is alien to the subject in hand and what we are concerned in this case is to see as to whether on a correct construction of statute under consideration the appeals remain pending here or not a point on which I have already given my finding. A proper debate on the subject of social justice, I would leave to be attended to in some more appropriate case in future.
21. Before parting with this case one argument of Mr. Najafi may also be adverted to. He submitted that Ordinance XXIII of 1969 was ultra vires of the authority and powers of the President. The precise submission was that Industrial Disputes Ordinance LVI of 1959 (as amended) conferred jurisdiction on High Court to hear appeals. This jurisdiction, according to him was preserved by W. P. Ordinance IV of 1968. On the 25th of March 1969 was promulgated Martial Law in the country and "Proclamation" to that effect was issued. According to para. 5 (6) of the said "Proclamation," all Courts were to continue in their jurisdiction. This was followed on the 4th of April 1969 by the "Provisional Constitution Order" which was In addition to the "proclamation" and not in derogation thereof. Paragraph 6(3) of this "Order" also preserved the High Court's jurisdiction. The learned counsel submitted that Ordinance XXIII of 1969 which was published on the 13th of November 1969 if (at all) it purported to take away the High Court's jurisdiction with regard to pending appeals, then it was ultra vires of the powers of the President, because by Ordinance he could not override the "proclamation" and the "Provisional Constitution Order "which are supra-Constitutional laws. He submitted that while promul--gating the Ordinance, the President could exercise only such powers which were contained in the late Constitution which, according to the learned counsel, obviously could not be exercised to amend or modify Constitutional or surpa-Constitutional Instruments. The provision in Ordinance XXIII of 1966 doing away with the jurisdiction of the High Court, according to the learned counsel, was of a Constitutional or a supra-Constitutional nature, to introduce which the President should have issued an "Order" of that nature end not an Ordinance simpliciter. The argument, to say with respect, suffers from various misconceptions firstly, I have had earlier that Ordinance XXIII of 1969 did not take away the jurisdiction of High Court to deal with pending appeals. Secondly, the point as to whether in future 'also the appeals are still to be instituted here is not arising in this case and need not have obsessed the learned counsel. Thirdly, the preamble of Ordinance XXIII of 1969 is worth-noticing. It reads as follows:- "Whereas it is expedient to amend and consolidate the law relating to the formation of Trade Unions, the regulation of relations between employers and workmen and the avoidance and settlement of any differences or disputes arising between them or matters connected therewith and ancillary thereto: And whereas the national interest of Pakistan in relation to the achievement of uniformity requires Central Legislation in the matter; Now, therefore, in pursuance of the Proclamation of the 25th day of March 1969, read with the Provisional Constitu--tion Order, 1969, and In exercise of all powers enabling him in that behalf, the President is pleased to make and promulgate the following Ordinance."
The above preamble shows that the President was promulgating the law, inter alia, in exercise of all powers enabling him in that behalf. I asked the learned counsel what were those powers to which reference had been made in the; preamble apart from the powers of issuing Ordinance simpliciter as contended by him. The learned counsel had no answer. It is obvious that the Ordinance had all the support of its promulgator whose overall power to promulgate laws of any kind is beyond question. Without conceding that any of the provisions of the Ordinance partook the character of an "Order" in any respect, even if that were so since the authority of the law-giver was supreme, merely because he called it as an Ordinance it would not detract from the validity of the said law and it was exactly to save such criticism that he clarified in the preamble that he was promulgating it in pursuance of all powers enabling him in that behalf. Lastly, the argument raised even otherwise is not available to the learned counsel here because it is written in the "proclamation" and the "Provisional Constitution Order" that law promulgated by the President and Chief Martial Law Administrator cannot be called in question in any Court. For all these reasons, the contention of Mr. Najafi is totally devoid of substance and is rejected.
22. The result of all this discussion is that for the reasons already given in my judgment and order dated 20-3-1970, and those contained above, 1 am of the respectful view that the present a2peals can continue in and be heard by this Court. The reference to the Full Bench is answered accordingly.