AJMAL MIAN, C.J.--By this common judgment, we intend to dispose of the above five petitions. In four of the above petitions Mr. Noor Muhammad has appeared for the petitioners, and whereas in C.P. No, D-634 of 1985, the petitioners are represented by Mr. Nizam Ahmed, Advocate. Mr. Akram Zubairi, Advocate, has appeared for the National Industrial Relations Commission and so also Mr. Hussain Adil Khatri, Advocate. Whereas the private respondent No, 3 has been represented by Mr. Shahenshah Hussain, Advocate, in C.P. No, 852 of 1983, whereas Mr. Ali Amjad, Advocate, has represented private respondent No,12, in C.P. No, D-634 of 1985.
2. All the above cases involve common questions of facts and of law. In all the above petitions proceedings either civil or criminal for the unfair labour practice on the part of the petitioners have been initiated by the private respondents/employees under section 22-A(8)(g) read with section 15 of the Industrial Relations Ordinance, 1969 (hereinafter referred to as the Ordinance), before the National Industrial Relations Commission (hereinafter referred to as the Commission). The above proceedings have been impugned by these petitions on the ground that the Commission at the relevant time was not properly constituted.
3. Messrs Noor Muhammad and Nizam Ahmed in support of the above petitions have urged as follows:
(1) That since the function of the Commission is judicial, there cannot be any part time member of the Commission because of the nature of the work and in view of the language employed in section 22-A of the Ordinance and that if we were to exclude part time members, the Commission then had less than the mandatory seven members at the relevant time and, therefore, it was not properly constituted and the proceedings before it were coram non judice. of the employers and employees were not appointed in terms of subsection (5) -ofsection 22-A of the Ordinance.
That Mr. Nizam Ahmed, additionally submitted that one of the members of the Bench who passed order. Dated 19-8.1985, namely, Mr. Aziz Ahmed was not qualified to be a member of the Commission.
Messrs Akram Zuberi, Shahenshah Hussain and Ali Amjad who appeared for the. Commission and for the private respondents, have urged as under:--
(1) That in the four petitions in which the petitioners are represented by Mr. Noor Muhammad, the impunged orders of taking cognizance of the proceedings were passed by the Chairman of the Commission whereas in C.P. No, D-634 of 1985, the impugned order was passed by the Chairman and two full time members of the Commission and therefore, the petitioners have no cause to urge.
(2) That even otherwise there is no prohibition provided in section 22-A of the Ordinance and/or in any rules that a part time member cannot be appointed as member of the Commission.
(3) That the two representatives of the employers and the employees have been appointed in consonance with law.
(4) That Mr. Aziz Ahmed was qualified and was properly appointed as the member of the Commission.
5. Mr. Hussain Adil Khatri, learned Standing Counsel who has also appeared for the Commission supported the above submissions of the learned counsel for the respondents and pointed out that the concept of a part time member is not foreign to the judicial system prevailing in our country.
6. In order to appreciate the above contentions of the learned counsel for the parties, it may be advantageous to reproduce herein below section 22-A of the Ordinance which reads as follows:-- "22-A. National Industrial Relations Commission.--(1) The Federal Government shall constitute a National Industrial Relations Commission.
(2) The Commission shall consist of not less than seven members including the Chairman.
(3) The qualifications for appointment as a member or as the Chairman of the Commission shall be such as may be determined by the Federal Government.
(4) The Chairman and other members of the' Commission shall be' appointed by the Federal Government.
(5) Two of the members shall be appointed in the prescribed manner to advise the Chairman, one to represent the employers and the other to represent industry-wise trade unions, federations of such trade unions and federations at the national level.
(6) The Chairman of the Commission may, in addition to the representative of workers appointed to the Commission, co-opt in cases where he deems it necessary, from amongst workers belonging to federations at the national level such representatives of workers as he may deem fit.
(7) The workers' representatives co-opted under subsection (6) shall be entitled to such honorariam as the Federal Government may, on the advice of the Chairman of the Commission, determine.
(8) The following shall be the functions of the Commission, namely:--
(a) to promote the formation of trade unions of workers within the same industry whether in establishments within a Province or in more than one Province and federations of such trade unions;
(b) to promote the formation of federations at the national level;
(c) to adjudicate and determine an industrial dispute to which an industry-wise trade union or a federation of such trade unions is a party and any other industrial dispute which is in the opinion of the Federal Government, of national importance and is referred to it by that Government;
(d) to register industry-wise trade unions, federations of such trade unions and federations at the national level;
(e) to determine the Collective Bargaining Agents amongst industry-wise trade unions, federations of such trade unions and federations at the national level;
(f) to try offences punishable under--
(i) section 53, other than subsections (1) and (5) thereof; and
(ii) any other sections, in so far as they relate to employers or workers in relation to an industry- wise trade union, a federation of such trade unions, a federation at the national level or officers of such union or federation;
(g) to deal with cases of unfair labour practices specified in sections 15 and 16 on the part of employers, workmen, trade unions of either of them or persons acting on behalf of any of them, whether committed individually or collectively, in the manner laid down under section 25-A or section 34 or in such other way as may be prescribed and to take in such manner as may be prescribed by regulations under section 22-F, measures calculated to prevent an employer or workman from committing an unfair labour practice;
(h) to advise Government, industry-wise trade unions and federations in respect to the education of workers in the essentials of trade unionism, including education in respect of their rights and obligations, and to secure the provision of facilities required therefor, and to apportion the cost thereof between the Provincial and Federal Governments, industry-wise trade unions, federations of such trade unions and federations at the national level, and the employers, in such manner as may.Be considered equitable by the Commission; and
(i) such other powers and functions as the Federal Government may by notification in the official Gazette, assign to it from time to time.
(9) The Commission may, on the application of a party, or of its own motion.-
(a) initiate prosecution, trial or proceedings or take action, with regard to any matter relating to its functions; and
(b) withdraw from a Labour Court any application, proceedings, or appeal relating to unfair labour practice.
(10) For the purpose of dealing with a case of unfair labour practice of which the Commission is seized, the Commission may--
(a) proceed directly with the case, or
(b) ask the Registrar within whose jurisdiction the case has occurred or is likely to occur to enquire into it and submit a report, or
(c) refer the case to Labour Court within whose jurisdiction the case has occurred or is likely to occur, either for report or for disposal.
(10-a) The Labour Court to whom the case is so referred shall enquire into it and, if the case was referred to it for report, forward its report thereon to the Commission or, if the case was referred to it for disposal, continue the proceedings and dispose of the case as if the proceedings had originally commenced before it and grant such relief as the Commission has the power to grant.
(11) Save as provided in subsections (10-a) and 12 no Registrar; Labour Court or Tribunal shall take any action, or entertain any application or proceedings, in respect of any matter which falls within the jurisdiction of the Commission.
(12) Nothing in this section shall be deemed to exclude the jurisdiction of Labour Court to entertain cases of unfair labour practices on the part of employers or workmen, whether individually or collectively; Provided that no Court, including a Labour Court, shall take any action or entertain any application or proceedings in respect of a case of unfair labour practice which is being dealt with by the Commission.
Explanation.-In this section and in the succeeding provisions of this Ordinance, the expressions "industry-wise trade union", "federation of such trade unions", and "federation at the national level" refer to a trade union the membership of which extends to establishments in more than one Province and a federation of trade unions whose membership extends to registered trade unions in more than one Province."
7. A perusal of the above quoted section shows that under subsection (1) the Federal Government has been empowered to constitute a Commission, whereas subsection (2) provides that the Commission shall consist of not less than seven members including the Chairman. It may further be noted that subsection (3) empowers the Federal Government to determine the qualifications for appointment as a member or as the Chairman of the Commission. Whereas subsection (4) provides that the Chairman and other members of the Commission shall be appointed by the Federal Government. It may also be noted that subsection (5) lays down that two of the members shall be appointed in the prescribed manner to advise the Chairman, one to represent the employers and the other to represent the industry-wise trade unions, federations of such trade `unions and federations at the national level. It may further be noted that under subsection (6) the Chairman has been empowered to co-opt in cases where he deems it necessary, from amongst workers belonging to federations at the national level such representatives of workers as he may deem fit, in addition to the representative of workers appointed to the Commission, whereas subsection (7) lays down that the workers' representatives co-opted under subsection (6) shall be entitled to such honorarium as the Federal Government may, on the A advice of the Chairman of the Commission, determine. It may also be pointed out that subsection (8) defines the functions of the Commission, which inter alia includes the powers to deal with the cases of unfair labour practices specified in sections 15 and 16 on the part of the employers, workmen, trade unions of either of them or persons acting on behalf of any of them, whether committed individually or collectively, in the manner laid, down under section 25-A or section 34 or. In such other way as may be prescribed, and, to take, in such manner as may be prescribed by regulations under section 22- F, measures calculated to prevent an employer or workman from committing an unfair labour practice. It may also be noted that subsection (9) empowers the Commission, upon an application of a party or of its own motion, to initiate prosecution, trial or proceedings or take action, with regard to any matter relating to its functions, and to withdraw from a Labour Court any application, proceedings, or appeal relating to unfair labour practice, whereas subsection (10) further empowers the Commission that for the purpose of dealing with a case of unfair labour practice of which the Commission is seized, the Commission may-- (a) proceed directly with the case, or (b) ask the Registrar within whose jurisdiction the case has occurred or is likely to occur to enquire into it and submit a report or (c) to refer the case to Labour Court within whose jurisdiction the case has occurred or is likely to occur, either for report or for disposal. It may also be noted that subsection (10-a) provides that the Labour Court to whom the case is so referred shall enquire into it and, if the case was referred to it for report, ,forward its report thereon to the Commission or, if the case was referred to it for disposal, continue the proceedings and dispose of the case as if the proceedings had originally commenced before it and grant such relief as the Commission has the power to grant. It may also be noted that subsection (11) provides that save as provided in subsections (10- a) and (12) no Registrar, Labour Court or Tribunal shall take any action, or entertain any application or proceedings, in respect of any matter which falls within the jurisdiction of the Commission, It may also be pointed out that subsection (12) lays down that nothing in this section shall be deemed to exclude the jurisdiction of Labour--Court to entertain cases of unfair labour practices on the part of the employers or workmen, whether individually or collectively. It may also be pointed out that the proviso to above subsection (12) provides that no Court including a Labour Court, shall take any action or entertain any application or proceedings in respect of a case of unfair labour practice which is being dealt with by the Commission. The explanation to the above subsection (12) lays down that in this section and in the succeeding provisions of this Ordinance, the expressions "industry-wise trade unions", "federation of such trade unions", and "federation at the national level", refer to a trade union, the membership of which extends to establishments in more .Than one Province and a federation of trade unions whose membership extends to registered trade unions in more than one Province.
8. Mr. Noor Muhammad in furtherance of his above first submission 'that since the function of the Commission is judicial, there cannot be any part time member of the Commission because of the nature of the work and in view of the language employed in section 22-A of the Ordinance and that if we were to exclude part time members the Commission then had less than the mandatory seven members at the relevant time, and therefore, it was not properly constituted and the proceedings before it were coram non judice; has referred to sections 35(5), 36, 38, clauses (e) and (f) of subsection (8) of section 22-A, section 22-B, and has urged that the Ordinance has provided judicial forums for adjudicating upon labour disputes and that the main function of the Commission is judicial which comprises of civil and criminal jurisdiction, and therefore, there cannot be any part time member of the Commission particularly the personnel attached to the executive cannot be made part time members of the Commission. He has invited our attention to the case of Huzoor Alain and 2 others v. National Industrial Relations Commission, Karachi and another 1974 PLC Kara 161, in which a Division Bench of the erstwhile High Court of Sindh and Balochistan while dealing with the provisions of the Ordinance in relation to Commission observed that "if by the expression "apex" is meant merely the highest position in a system of Tribunals then perhaps the description of the Commission as standing at the apex of these Tribunals is justified".
9. On the other hand Mr. All Amjad has submitted as observed herein above that the function of the Commission is three-fold, namely, advisory, executive and judicial. In furtherance of his above submission he has invited our attention to clauses (a), (b) and (h) of subsection (8) of section 22- A, to show that the function to promote the formation of trade unions of the workers or to promote the formation of federations at the national level, envisaged by the above clauses (a) and (b) and to advise Gbvernment, industry-wise trade unions and federations in respect to the education of workers etc. Under clause (h) are of advisory nature. Whereas under clauses (d) and (e) of subsection (8) the powers to register industry-wise trade unions, federations of such trade unions and federations at the national level and to determine the collective bargaining agents amongst industry-wise trade unions, federations of such trade unions and federations at the national level are in fact powers of executive nature and whereas the other clauses, namely, clauses (f) and (g) of subsection (8) empower the Commission to try offences under section 53 other than those mentioned in subsections (1) and (5) thereof, and under any other sections, and to deal with cases of unfair labour practice under the above clauses, are of judicial nature. We are inclined to hold that the function of the Commission is not exclusively of judicial nature but the Commission's functions comprise of 'advisory', 'executive' and 'judicial'.
10. Messrs Noor Muhammad and Nizarn Ahmed, Advocates have invited our attention to paragraph 16 of the counter-affidavit dated 8-2-1984, sworn by one Shaikh Riazul Hague, Deputy Registrar for the Commission, containing the details of the composition of the Commission. It may be advantageous to reproduce the same, which reads as follows:- "16.That I am advised to submit and I state that at no stage, the strength of the learned Commission (N.I.R.C.) was less than 7 members and presently the "Commission" consists of 12 members as per details submitted below:-- (1)Dr. Justice (Retd.) Ibrahim Mahmud, Chairman SRO 733(1)/80, dated 7-7-1980.
(2)S. Rais Ahmed Jafri, Senior Member SRO 391(1)/80, dated 24-4-1976.
SRO 4(4)/72-Ad-1, dated 4-8-1979.
(3)Mr. Mahmood Akhtar, Member Com.2(3)/83, dated 27-9-1980.
(4)Mr. Aziz Ahmed, Member No, 4(36)/74-Admn-I, dated 5-12-1983.
(5)Raja Iftikharullah Khan Member Com. 2(1)83,/83 dated 4-4-1983.
(6)Mr. Ashraf Ali, Labour Member Com. 2(3)/82, dated 21-7-1982 (7)Four Secretaries Labour of each Provincial Government SRO. 1139(1)/72, dated 6-11-1972.
(8)Ch. Rahmatullah to represent the workers SRO. 1114 (1)/81, dated 12-10-1981.
(9)Mr. Hashim A. Dada to represent the employers LR. 9(5)/72, dated 19-12-1972."
11. On the basis of the above paragraph 16, it has been contended that factually there were altogether five members including the Chairman as the full time members of the Commission.
According to Mr. Noor Muhammad, Mr. Aziz Ahmed, who was appointed on 5-12-1983, should be excluded as the impugned order in the first petition was passed in August, 1983, whereas according to Mr. Nizam Ahmed after issuance of notification dated 13-7-1982, providing Grade-20 for a member of the Commission, Mr. Aziz Ahmed was not qualified to continue as a member as he was having Grade-19 being the Registrar at the time of his appointment as the member of the Commission under notification dated 21-9-1982. They have further submitted that the members mentioned at Sr. Nos. 6 to 9 in the above quoted para. 16 of the counter-affidavit were liable to be excluded as they were part time members.
12. Mr. Shahenshah Hussain has vehemently contended that if we were to hold that only full time members are eligible for the appointment as the members of the Commission, we would be adding into something in subsection (2) of section 22-A which has not been provided. In support of his submission, he has relied upon the following passages from Maxwell on the Interpretation of Statutes, Twelfth Edition, page 32, and Craies on Statute Law, Seventh Edition, page 64.
"MAXWELL.-- Just as the literal rule prevents the undue restriction of wide language, so also it precludes the undue extension of narrow language. So a provision in the Rules of the Supreme Court which referred to "an agreement (whether in writing or not) for the sale or purchase of property" was held inapplicable to a contract for the grant of a lease. And a provision that the period of any disqualification imposed on a conviction for the offence of driving while disqualified "shall be in addition to any other period of disqualification imposed" was held not to permit the imposition of periods of disqualification other than consecutive ones."
"CRATES ON STATUTE LAW.-- As Scott L.J. Said "Where the words of an Act of Parliament are clear, there is no room for applying any of the principles of interpretation which are merely presumptions in cases of ambiguity in the statute."
"The safer and more correct course of dealing with a question of construction" said Warrington L.J.
Is to take the words themselves and arrive, if possible, at their meaning without, in the first place, reference to cases," and Evershed M.R. Said: "I prefer to avoid exegesis of the statutory language unless they are absolutely necessary: for the result would otherwise tend thereafter to substitute for the problem of construction of parliainentary language the problem of the construction of the judgments of the Courts."
13. Whereas Mr. Nizam Ahmed has vehemently contended that factually the learned counsel for the respondents wish to read something into the relevant provision of the Ordinance though the same has not been provided in it. It is true that while interpreting a provision of a statute the Court will not read into it something which has not been provided for and the words are to be construed in ordinary meaning unless the words and phrases are of technical legislation which are to be construed in their technical meanings, if they have acquired one, otherwise they are also to be construed in their ordinary meaning. In the instant case the word "member" is susceptible -to a wider connotation as to include full time and part time member, as it is not prefixed by the words "full time" or "part time". Keeping in view the nature of the functions of the. Commission, which comprise of 'advisory', 'executive', and 'judicial': we are inclined to hold that the appointment of a part time member does not infringe section 22-A of the Ordinance but it seems to be in consonance with the spirit and the object of the Ordinance.
14. We may also point out as observed herein above that admittedly the impugned orders in the aforesaid four petitions have, been passed by the Chairman of the Commission. There is no challenge to his appointment and, therefore, factually the petitioners in the above four petitions cannot have any cause to complain. Similarly, the impugned order which is the subject-matter of C.P. No, D-634 of 1985, was passed by a Bench comprised of the Chairman and two full time members, and, therefore, the petitioners in the said, petition cannot have grievance that any of the members of the Bench was a part time member.
15. As regards Mr. Nizam Ahmed's submission that Mr. Aziz Ahmed was not qualified to act as the member of the Commission after the qualifications of the members were prescribed by SRO (685)182, dated 13-7-1982, providing Grade-20 for the members, it may be advantageous to reproduce herein below the SRO, dated 21-9-1982, which reads as follows:- "No, COM-2(2)/78:- In supersession of this Division's Notification of even number dated 28th November, 1981 Mr. Aziz Ahmed, Registrar (Grade-19), National Industrial Relations Commission has been allowed with the approval of the, competent authority to hold the current charge of the post of Member (Grade-20), National Industrial Relations Commission with effect from 18th September, 1981 to 17th September, 1982. He shall be entitled to the minimum of the higher post but without increments during this period."
16. The. Above notification was extended from time to time. We are unable to accept the above contention of Mr. Nizam Ahmed that Mr. Aziz Ahmed was not competently appointed.
17. Mr. Noor Muhammad in support of his submission has referred to the cases of (1) Ijaz v. Board of Revenue and others PLD 1976 Lah. 563; (2) Khawajdin v. Rationing Controller Food, Faisalabad and 2 others PLD 1980 Lah. 15; (3) Chittaranjan Cotton Mills Ltd. v. Staff Union PLD 1971 SC 197 and (4)
Mansab All v. Amir and 3 others PLD 1971 SC 124.
18. In the first case the facts were that one Mr. S.M. Nasim, Additional Chief Land Commissioner was notified by the Government to perform the functions of Member, Board of Revenue Punjab for the purpose of disposal of Colony Judicial cases, in addition to his own duties as Additional Chief Land Commissioner. The learned Single Judge of the Lahore High Court while construing sections 3 and 4(2) of the West Pakistan Board of Revenue Act, held that the aforesaid notification did not have the effect of appointing Mr. S.M. Nasim as a Member of the Board of Revenue who could exercise powers. The above case has no application to the present cases inasmuch as in the instant cases the orders have been passed by the full time Members of the Commission and, secondly, even the part time Members have been appointed as the Members of the Commission and they have been conferred with the powers of the Commission.
The above second case is also distinguishable as in the above case the powers to hear a revision under section 6(3) of the West Pakistan Foodstuffs Distribution Order, 1967, were given to the Secretary who instead of exercising the powers himself authorised the Deputy Secretary to exercise the same. It was held by a learned Single Judge of Lahore High Court that the above judicial powers could not have been delegated by the Secretary to his subordinate by virtue of Rules of Business which were applicable to the cases of administrative or ministerial nature.
The above third case of the Honourable Supreme Court is also not applicable as in the above case two members of the Labour Courts were not appointed in accordance with the provisions of section 9(4) of the East Pakistan Labour Disputes Act (VI of 1965).
' The above fourth case of the Honourable Supreme Court referred to herein above, namely, Mansab Ali's case, reiterated a well-settled principle of law that "if a mandatory condition for the exercise of jurisdiction by a Court, Tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction".
The above case is also not applicable to the present cases.
19. On the other hand Mr. Akram Zuberi has referred to the case of Gokaraju Rangaraju v. State of Andhra Pradesh AIR 1981 SC 1473, in which case the Indian Supreme Court while dealing with, as to the effect of the defective appointment of a Judge on the orders passed by him, observed as follows:- "15. A Judge, de facto, therefore, is one who is not a mere intruder or usurper but one who holds office, under colour of lawful authority, though his appointment is defective and may later be found to be defective. Whatever be the defect of his title to the office, judgments pronounced by him and acts done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a Judge de jure.
Such is the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief. There is yet another rule also based on public policy. The defective appointment of a de facto Judge may be questioned directly in a proceeding to which he may be a party but it cannot be permitted to be questioned in a litigation between two private litigants, a litigation which is of no concern or consequence to the Judge except as a Judge. Two litigants litigating their private titles cannot be permitted to bring in issue and litigate upon the title of a Judge to his office. Otherwise as soon as a Judge pronounces a judgment a litigation may be commenced for a declaration that the judgment is void because the Judge is no Judge. A Judge's title to his office cannot be brought into jeopardy in that fashion. Hence the rule against collateral attack on validity of judicial appointments. To question a Judge's appointment in an appeal against his judgment is, of course, such a collateral attack.
16. We do not agree with the submission of the learned counsel that the de facto doctrine is subject to the limitation that the defect in the title of the Judge to the office should not be one traceable to the violation of a Constitutional provision. The contravention of a Constitutional provision may invalidate an appointment but we are not concerned with that. We are concerned with the effect of the invalidation upon the acts done by the Judge whose appointment has been invalidated. The de facto doctrine saves such acts. The de facto doctrine is not a stranger to the Constitution or to the Parliament and the Legislatures of the States. Art.71(2) of the Constitution provides that acts done by the President or Vice-President of India in the exercise and performance of the powers and duties of his office shall not be invalidated by reason of the election of a person as President or Vice-President being declared void. So also section 107(2) of the Representation of the People Act 1951 (Act 43 of 1951) provides that acts and proceedings in which a person has participated as a member of Parliament or a member of the Legislature of a State shall not be invalidated by reason of the election of such person being declared to be void."
20. Mr. Akram Zuberi has also referred to the case of Abdul Salam Qureshi and another v. Judge, Special Court of Banking for Sindh and another PLD 1984 Kar. 462, in which a Division Bench of this Court while dealing with the question of the alleged irregular appointment of the Judge, Special Court of Banking also referred to the above doctrine of de facto and held that the judgment and decree passed by Mr. Qureshi were saved by de facto doctrine. The reliance was placed on a passage from Colley's Constitutional Limitations 8th Edn. Vol. II p. 1357; and the cases of Lt.-Col. Farzand Ali and others v. Province of West Pakistan through Secretary, Department of Agriculture, Government of West Pakistan, Lahore PLD 1970 SC 98; (2) Milward v. Thatcher, (1787) 2 T.R. 81 p. 87;
(3) Scadding v. Lorant, (1851) 3 H.L.C. 418; (4) State v. Gardner (Cases on Constitutional Law by Mc.
Gonvey and Haward, p. 102; (5) Norton v. Sheiby County (886) 118 U.S. 425 and the above referred case of Gokaraju Rangaraju v. State of Andhra Pradesh AIR 1981 SC 1473.
21. We are inclined to hold that a Judge or a member of a Tribunal, who holds office under colour of lawful authority and not as a mere intruder or usurper, though his appointment may be defective, is a de facto judge or a member of a Tribunal, his judgments/orders/actions, have the same effect as of a judge or a member of Tribunal de jure--and that the same are saved by the de facto doctrine as a matter of necessity and of public policy in order to avert chaos and confusion. We are also inclined to hold that the appointment of a judge or a member of Tribunal cannot be challenged in a proceeding between the two litigant parties in which an order passed by the judge or the member of a Tribunal is impugned as the question of any alleged defect in the appointment of such a judge or a member of Tribunal is foreign to the dispute between the litigant parties, which is the subject-matter of such proceedings. The above view seems to be rational and logical as if the judgment/order/action in such a proceeding is saved by the de facto doctrine and cannot be set aside, it must follow that in such a proceeding no declaration can be given to the effect that the appointment of the Judge concerned or the member of Tribunal concerned was invalid.
22. We may point out that the requirement of law is that there should be seven members of the Commission including the Chairman. Admittedly at the relevant time there were more than seven members of the Commission though some of them were part time members. Even if we were to exclude the above part time members on account of their alleged infirmity in their appointments, the effect would be that their appointments would be treated as void and it would be deemed that there existed vacancies. In the case of Mr. Zulfikar Ali Bhutto v. The State PLD 1978 SC 40, the Honourable Supreme Court has dilated upon the question as to effect of the office of the Chief Justice of the High Court remaining vacant and after reviewing case law of English and Indian jurisdictions observed as follows:-- "We have no hesitation in adopting the view taken in these cases from the Indian jurisdiction. There is indeed a distinction between a vacancy in any office, and its abolition. The existence of a vacancy implies that the office exists. The true requirement of Article 192 of the Constitution is that in order to bring a High Court into existence there should be created the offices of a Chief Justice and the prescribed number of Judges. If these offices have been created, then the High Court has properly come into existence, and would be able to start functioning as soon as appointments to these offices, or to some of them have been made. Any temporary vacancy in any of these offices.
Would not affect the constitution and jurisdiction of the High Court."
23. Recently in the case of Karachi Electric Supply Corporation Progressive Workers Union v.
Registrar of Industrywise Trade Unions and others C.P. No,D-256 of 1989, decided on 20-4-1989, we had the occasion to consider the effect of the office of the Chairman of the Commission remaining vacant and observed as follows after relying upon the above Supreme Court's judgment in Zulfikar Ali Bhutto's case.
"The ratio of the above Hon'ble Supreme Court's case is very much applicable to the instant case and, therefore, we are inclined to hold that the factum that the office of the Chairman of the NIRC was vacant during the aforesaid period would not vitiate various actions or the orders passed by the members of the Commission in accordance with the provisions of the IRO and the regulations framed for the working of the NIRC."
24. There remains to be considered the second submission of the learned counsel for the petitioners, namely, that even otherwise two part time members, namely, the representatives of the employers and the employees were not appointed in terms of subsection (5) of section 22-A of the Ordinance, it may be observed that in furtherance of the above submission, they have referred to subsection (5) of section 22-A of the Ordinance, which provides the appointment of the two members of the Commission in the prescribed manner representing the employers and the industry-wise trade unions, federations of such trade unions and federations at the national level and have urged that since no rules have been framed the appointments of the two members under the above subsection (5) of section 22-A of the Ordinance are not in the prescribed manner.
Reliance has been placed on clause (xix) of section 2 of the Ordinance which reads "prescribed" means "prescribed by rules".
25. On the other hand the learned counsel for the respondents have submitted that even if it is to be held that the rules should have been framed, the absence of statutory rules would not vitiate the appointment. Mr. Shahenshah Hussain has also invited our attention to the fact that the words "in the prescribed manner" do not necessarily mean "prescribed by rules" as under section 43 of the Ordinance an industrial dispute could be raised in the manner prescribed under sections 31 and 32 of the Ordinance and not in the manner prescribed by rules.
He has further pointed out that the words used in subsection (5) of section 22-A of the Ordinance are "in the prescribed manner" and not "as prescribed by rules". In our view, the above controversy seems to be futile as in the famous case of M.UA. Khan v. Rana M. Sultan and another PLD 1974 SC 228, the Honourable Supreme Court of Pakistan has held that 'the failure or omission of the designated authority to frame the necessary rules and regulations, cannot be construed as having the effect of rendering the statute nugatory and unworkable'. The learned counsel for both the parties have made a reference to the above case which is in fact a complete answer to the above submission of the learned counsel for the petitioners.
26. Mr. Akram Zuberi has also invited our attention to section 15 of the General Clauses Act and the cases of Hafeez-ur-Rehman v. The Additional Rent Controller, Lahore Cantonment and 2 others 1981 CLC 185, Muhammad Siddiqui v. Ch. Fazal Din and 3 others PLD 1982 Lah. 262 in order to contend that a member of the Commission could be appointed by name or by virtue of his office. It is not necessary to go into the above controversy in view of the above discussions.
27. It was also submitted by Mr. Akram Zuberi that the jurisdiction of a Tribunal is determinable at the commencement of the proceeding and not at the conclusion of the proceeding. Reliance was placed on the case of Settlement and Rehabilitation Commissioner, Hyderabad Division, Karachi and another v. Mannu Khan and 3 others 1973 SCMR 62 at 68 in which the question involved was, whether the Additional Claims Commissioner, who exercised suo motu revision powers under the Registration of Claims (Displaced Persons) Act (III of 1956), had the jurisdiction. In that context it has been held by the Hon'ble Supreme Court that the jurisdiction of a Tribunal is determinable at the commencement and not at the conclusion of the proceeding as it was contended in the above case that the person who had passed the impugned order had the requisite jurisdiction at the time of passing of the order though at the time when the proceeding had commenced, he had no jurisdiction. The contention was repelled.
28. The upshot of the above discussion is that the above petitions have no merits and, therefore, they are dismissed. However, there will be no order as to costs.
The cases are remanded back to the Commission which will proceed from the stage at which as they were, when the above petitions were filed.