MUHAMMAD HALEEM, J.---Since some common questions of law have been raised in Petitions 152 and 168 of 1972, this Judgment will dispose them of. In both the petitions, the petitioners have challenged the legality of the awards of the arbitrator dated 17th and 20th April 1972, under Martial Law Order 52.
2. In Petition No. 152/72, the petitioner is a company which is engaged in the business of distribution and sale of pharmaceutical products. Respon--dent No. 5 was employed on 5th March 1971 by the petitioner as its sales representative for its Karachi Office subject to his remaining on probation for six months at a salary of Rs. 390 per month. It was only upon his work being found satisfactory during the probationary period that he was entitled to be confirmed. The rest of the terms and conditions of his service were, however, subject to the company's service rules. Respondent No. 5 was assigned the duty to take orders for the company's products, to collect cash against dishonoured cheques from the dealers, to organise and supervise the distribution of stocks of pharmaceutical goods by "vanment", to realise cash and deposit it with the Company and generally to carry out a survey of the market and to report on problems of the dealers, the market conditions and the competitive activities of other pharmaceutical concerns. In enumerating such activities the petitioner laid emphasis that his duties were supervisory in nature and did not fall within the concept of either skilled or unskilled, manual or clerical work. It was in July 1971, that the dealers complained -against respondent No. 5 that he was acting dishonestly and collecting money .On false promises to supply a particular brand of medicine, namely Valium, which was in short supply during those days. As a result of dishonesty in his dealings with the dealers, the petitioner suffered financial loss during his probationary period, whereupon in terms of his contract of service, his services were terminated. An intimation to this effect was sent by letter dated 14th July 1971 which was not accepted; therefore, the petitioner by a public notice in the issue of Dawn and Jang dated 16th July 1971 com--municated to its dealers that he was no longer in service and had no authority to collect money from them on its behalf. Having come to know that his services had been terminated, respondent No. 5 by letter dated 24th July 1971 complained about the termination of his service and threatened to take legal action, which letter was duly replied, but again it was not accepted.
He repeated the same complaint by letter dated 23rd December 1971 and its reply was again refused. In this connection, respondent No. 4 called upon the petitioner to attend a joint meeting on 15th March 1971, but the petitioner sent a reply stating that respondent No. 5 was not a workman; hence his case was not covered by the Governor's directive, dated 6th January 1971 and he could not, therefore, claim to be re-instated. Again, respondent No. 4 invited the petitioner to attend a meeting on 17th March 1972, and this time the petitioner attended the meeting but refused to re- instate him taking the same stand that he was not a workman and that his services were liable to be terminated during the probationary period if his work was found unsatis--factory. The petitioner also brought to the notice of respondent No. 4 that respondent No. 5 had realised Rs. 300 against the dishonoured cheques, but failed to deposit this amount with the petitioner; nonetheless, respondent No. 4 by his letter dated 21st March 1972 directed that he be re-instated in accordance with the Governor's directive. On that basis respondent No. 2, by his letter dated 28th March 1972, directed the petitioner to- attend his Court on 31st March 1972 as that order had not been implemented. The petitioner resisted his re-instatement giving out a detailed explanation as to why it had not done so. Lastly, the petitioner received a summons from the arbitrator to appear in his Court on 13th April 1972, which purported to have been issued under M.L.O.
52. The petitioner attended his Court and filed a written reply. However it is alleged that at no stage of the proceedings an opportunity was given to it to lead evidence. By an award dated 17th April 1972 passed under M.L.O. 52, the petitioner was ordered to re-instate respondent No. 5, which was sought to be implemented by letter dated 19th April 1972 issued on behalf of the District Magistrate, Karachi, pursuant to para. 13 of M.L.O. 52.
3. In Petition No. 168/72, the petitioner owns a printing press named Mueid Art Press. Respondents 3 to 6 were employed as workmen in the press. By a mutual settlement on 10th January 1971 the services of nine workers, including the said respondents, were terminated and their dues were paid.
It is the case of the petitioner that their services were terminated because of the paucity of work but later on, the conditions improved and five others, whose services had been terminated, were re-employed. Since the volume of work did not permit a further incease in the number of workers, the said respondents were not recalled. These respondents, therefore, moved the Directorate of Labour for their re-instatement vide letter dated 9th March 1972, which referred their case to the Committee which was constituted under the Governor's directive dated 6th January 1972. That Committee called upon the petitioner to appear before it on 12th April 1972, but when the petitioner went there at the appointed time he was told by the S. D. M., Nazimabad, that since the directive was no longer in force in view of M.L.O. 52, the Committee would not function as such. He was told to attend his Court on 14th April 1972 which he did attend that day and on other subsequent days.
However, on 20th April 1972, the S. D. M. Held an inquiry and gave his award that day, by which he ordered the re-instatement of these respondents, which was sought to be implemented by letter dated 26th April 1971 signed by some one on behalf of the District Magistrate, Karachi, pursuant to para. 13 of M. L. O. 52.
4. In Petition No. 152/72, respondent No. 5 in his counter-affidavit pleaded that he is a workman, that his duties were those of a salesman and not a sales representative, that he was further required to fix tin-plates which involved skill, that the petitioner wilfully cancelled the names of those dealers who had complained against him, that he had not refused to accept the letters but that he did not for some personal reason, reside at the address given by him, that it was wrong to allege that he had collected money on false promises and misappropriated it, that his work was not unsatisfactory as is alleged, that at the behest of Anwar Ahmed, Field Sales Supervisor, he was not allowed to resume his duties disputing at the same time that his services were not terminated, that it was false to allege that he had misappropriated Rs. 300 and, lastly, that the award is valid and is legally enforceable upon the repeal of M. L. O. 52.
5. In Petition No. 168/72, respondents 3 to 6 in their written statement denied any settlement and alleged that their services were illegally terminated without complying with the provisions of the Standing Orders XII and XV, West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and, therefore, they approached the Governor of Sind for their re- instatement. While denying para. 3 of the petition, they asserted that at the instance of the Labour Directorate, the petitioner had re-instated the other workers except these respondents. They also asserted that there was no paucity of work and that they should have been preferred over those who have been re-instated as they were earlier employed and that, therefore, they were justified in moving the arbitrator under M. L. O. 52 who had validly assumed jurisdiction and given his award after hearing the parties and in the presence of Mr. Khalil, counsel for the petitioner, and, lastly, that "a valuable right" had accrued to them upon the award having been made in their favour, which is legally enforceable in spite of the repeal of M. L. O. 52 by the Interim Constitution.
6. Martial Law Order 52 was issued by the Martial Law Adminis--trator, Zone `D', on 28th March 1972, hereinafter referred to as the order but it was published in the Gazette of Sind, Extraordinary, dated 13th April 1972. The order provided another Forum for the speedy disposal of certain labour disputes.
Para. 4 of the order gave a right to a workman, whose services had been terminated as a result of retrenchment, dismissal, discharge, lay off, lock-out or otherwise on or after the first day of January 1971 to move the arbitrator appointed under the order for adjudica--petition of the issue, namely the termination of his employment. However, clause (2) of para. 4 provided an exception to any dispute regarding dismissal which had been adjudicated upon by Labour Court or the Labour Tribunal. Para. 5 relates to the appointment of an arbitrator, which has to be by a notification in the official Gazette. Para. 6 deals with the powers of the arbitrator in regard to the summoning of the employer, the witnesses and for compelling the production of documents. Para. 7 prescribes for holding an inquiry, for making an award within seven days of the appearance of the parties and for deciding the dispute ex parte if the party summoned does not appear. It also enumerates the powers to be exercised namely of re-instatement, awarding of other consequential benefits and of rejecting the application. Para. 6 relates to the rectification of mistake on the face of the record within seven days and other ancillary powers in this regard. Para. 9 deals with the powers of the Government to transfer an application from one arbitrator to another. Para. 10 excludes the appearance of a legal practitioner without permission, but even if it was given still it does not give to him the right to address the arbitrator. Para. 11 gives to the arbitrator exclusive jurisdiction to construe an agreement or other instrument and all matters to which the order applies; and bars jurisdiction of another Court to decide such matters.
It also gives finality to any order passed or award given by the arbitrator and lastly it provides that as soon as the dispute is brought to the arbitrator other proceedings pending in any other forum in regard to it, to which this order applies, shall abate. Paras 13 and 14 provide procedure for the execution of the award, namely that as soon as the award is announced, its copy shall be sent to the District Magistrate who shall require the employer to implement it within seven days of the communication of the order, failing which the defaulter shall be punished with rigorous imprisonment for a period which may extend to three years. Para. 15 indicates, as to how the proceedings can be initiated for prosecution. Lastly, para. 16 of the order gives power to the Government to make rules for carrying out the purposes of this order.
7. Having enumerated the various aspects of the order, I now propose to deal with the contentions.
Mr. Salim Akhtar on behalf of the petitioner in Petition No. 152/72, in the first instance, urged that the arbitrator had no jurisdiction to take cognizance of the dispute as respondent No. 5 was not a workman. In elucidating his stand, he emphasized on the nature of the duties performed by respondent No. 5. According to Mr. Salim Akhtar, they were supervisory in nature and, therefore, respondent No. 5 could not be regarded as a workman in the context of the performance of his work, which is the determinative factor. This plea raises a question of jurisdictional fact and law.
Since Mr. Salim Akhtar urged before us that the dispute as to the jurisdictional fact was raised before the arbitrator but not considered by him, and that on the facts, as it is urged, that the jurisdictional fact is obvious; it is therefore that I have ventured to examine this plea as a whole.
8. The legal contention that emerges is that being a sales representative, respondent No. 5 could not be placed in the category of workman, for its definition visualises that he should either be skilled or unskilled, which in turn must be either manual or clerical. Thus `skilled' must convey the sense of manual or clerical. Similarly, unskilled work should also be such. This is how he wanted us to construe the words "skilled or unskilled, manual or cleri--cal work" occurring in the definition of the word `workman' in section (2)(i) of the West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968, hereinafter referred to as the Ordinance, which meaning is also assigned to it by para. 3(b) of the order, which reads:- "Any person employed in any industrial and commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward."
PLD 1969 Lah. 717), where the definition of `workman' as it is worded in the Industrial Disputes Ordinance (LVI of 1959) was under con--sideration. No doubt, the words "skilled or unskilled, manual or clerical work" also occur in the definition of that term and it was construed as such in the above case. It was while elucidating definition of `workman' that it was observed that he was employed in an industry to do skilled or unskilled work, which could either be manual or clerical. If that is so, then a peon will not be covered by the definition of the term `workman', who neither does manual nor clerical work, but that does not seem to be the intention of the Legislature, which while laying emphasis on the nature of work seems to give to it a wide meaning by using the words "skilled or unskilled, manual of clerical which, to my mind, illustrate the nature of the work and have to be read disjunctively. As such, it is not possible to read the words "skilled or unskilled" to mean either manual or clerical, whether comma is or is not taken into consideration while construing these words. Therefore, the nature of the duties performed would not except him from the definition of the word "workman". There is another distinction. In that case, the definition had a bearing to the key word `industry', which is defined in Ordinance LVI of 1959 and it was therefore that the observations of the Supreme Court in Pakistan Tabacco Company Ltd. v. Pakistan Tobacco Emplayers' Union, Dacca and others (PLD 1961 SC 403) were relied on, which are to the effect that a salesman cannot be regarded as a workman because he is not assimilable either to the group of workers, whose manual labour contributed to that product or those of the clerical establishment who perform the paper work connected with the operation of the company. It seems, if I may say so, that the observations of their Lordships of the Supreme Court that the work of a salesman is in a wholly different category from manual or clerical work have weighed with the minds of the learned Judges, who decided that case, while construing the definition of `workman'. Such construction cannot be given to the term `work--man' as defined in the Ordinance.
9. Not having accepted the construction placed on the words in the definition of the term 'workman', I now propose to examine whether the jurisdictional fact is beyond dispute as is urged.
On the one hand, the petitioner has enumerated the duties performed by respondent No. 5 in the petition as a sales representative, which take him out of the category of workman and, on the other, respondent No. 5 claims to be a workman and that he was doing skilled work as well. Such a plea, as .Is raised now, was not raised in this form before the arbritrator. What is emphasised in the written statement is that he could not be trusted and that he was discharged according to his contract of service his work was found unsatisfactory during the probationary period. The learned counsel, nonetheless, wanted us to construe para. 12 of the written statement in a way to spell out this plea from the words "not covered" in it. The nature of the plea is not apparent and all that is stated is that his case is not covered by the Governor's direc--tive, which he invoked to get himself re-instated before the Labour Direc--torate and for that matter the arbitrator, but reading the contents of the written statement as a whole, the only stand that is apparent is that he wanted to resist. Re-instatement on the basis of his contract of service and to no other. I am also unable to construe that by calling him as sales represen--tative that plea was impliedly being raised. There is also nothing in the award to show that the petitioner challenged his jurisdiction on this account.
Therefore, it was necessary that the jurisdictional fact, which could deprive the arbitrator of his jurisdiction, should have been raised before him to enable him to give a finding on it before raising this question in the constitutional petition. Not having done so, it is not open to the petitioner to raise it for the first time in these proceedings when the jurisdictional fact is dispu--ted, even on the assumption that the nature of duties would have made the difference in holding that be was not a workman when the determination rests on the jurisdictional fact being resolved upon evidence.
Such a plea cannot, therefore, be raised now to impugn the jurisdiction of tae arbitrator.
The Labour case cannot be relied on as an instance where a salesman was held not to be a workman. That finding was given upon a review of evidence recorded before the Labour Tribunal and in particular also rested on the connotation of the word `industry' as it was in that context that their Lordships of the Supreme Court in the case of Pakistan Tobacco Company Ltd. Had observed that he could not be assimilable either in the category of workman or those of the clerical establishment which is not the case here, as the definition of `workman' is in a different Ordinance without any bearing to the word `industry'. This plea was not raised in Petition No. 168/72 as respondents 3 to 6 were undisputedly workmen.
10. The next contention centres around the controversy that respon--dent No. 5 in Petition No. 152/72 and respondents 3 to 6 in Petition No. 168/72 cannot be said to have been aggrieved by the termination of their services which was in accordance with law and, therefore, this issue no longer remained open for decision. In other words, it was contended that they had no locus stand! To move an application before the arbitrator for their re-instatement. This brings me to the consideration of paras. 4, 7 and 11 of the Order, which read:- "4. (1) Subject to the provisions of sub-paragraph (2) any workman aggrieved by the termination of his employment as a result of retrench--ment, dismissal, discharge, lay-off, lock-out or otherwise on or after the 1st day of January 1971, may make an application to an arbitrator appointed under this Order and having jurisdiction in the area in which the industry or the commercial establishment concerned is situated.
(2) Nothing in sub-paragraph (1) shall apply to any dispute regarding dismissal which has been adjudicated upon by a Labour Court or Appellate Labour Tribunal."
"7. (1) An arbitrator shall, after holding such inquiry as he may deem fit, make an award, in writing, and announce it within seven days of the appearance of the parties before him.
(2) If any party does not appear before the arbitrator despite notice, he may proceed to hear and decide the dispute ex parte.
(3) While making an award, the arbitrator may direct the re-instatement of the workman and allow consequential benefits to him or reject his application."
"11. (1) Notwithstanding anything contained in any law for the time being in force for any rule, agreement or other instrument, all matters to which this Order applies shall be exclusively decided by an arbitra--tor in accordance with the provisions of this order and shall not be inquired into or decided by any Court.
(2) Any order passed or award given by the arbitrator shall be final and shall not be called in question in any manner by or before any Court.
(3) All applications or other proceedings pending in any Labour Court or appeals pending in the Labour Appellate Tribunal regarding the matters to which this Order applies shall abate as soon as the dispute involved in such application, proceeding or appeal, as the case may be, is brought before the arbitrator."
Para. 4, as it is worded, leaves it to the subjective opinion of the work--man, if he considers his termination as improper to move the arbitrator while para. 7 empowers the arbitrator to hold an inquiry, which could not by otherwise than for determining the legality of the termination of services having regard to the reliefs that he can grant either in terms of re-instatement and allowing of such consequential benefits or rejecting the application. 1c Para. 11 gives exclusive jurisdiction to the arbitrator to decide that matter. Therefore, whether the termination was proper or not, is left to the exclusive jurisdiction of the arbitrator and as such it is a judiciable issue. It is of no value to urge that there was no infringement of law as it stood when their services were terminated and, therefore; these respondents can have no legal grievance to make vis-a-vis their termination of services. It is at best a stand of the petitioner which, whatever worth it is, will be judged again by the arbitrator but this consideration cannot be imported while judging he--their a workman is or is not an aggrieved person. Accordingly I would reject this contention.
11. Mr. Khalilur Rehman in Petition No. 168/72 urged that the award was without jurisdiction as the Order ipso facto ceased to have effect and the arbitrator was denuded of his function thereunder upon the Martial Law being lifted on 20th April 1972. Further to avoid the controversy as to at what time the Order was issued he urged that it must be deemed to have taken effect from the previous mid-night. In this connection he referred to the proclamation of withdrawal of Martial Law which is dated 20th April 1972 hereinafter referred to as the proclamation but was published in the Gazette of Pakistan, Extraordinary, on 21st April 1972. He stressed that in the Full Bench judgment of this Court, of which I was a member, in H. C. A. No. 4/72, it was held that the laws, which had lapsed or expired, were again notionally re-enacted and repealed to avoid a legal vacuum and, therefore, the effect of the proclamation, namely, the lifting of the Martial Law on 20th April 1972 was accepted. This being so, para. 2 of the proclamation should be given full effect, which reads: ---- "The offices of the Chief Martial Law Administrator, the Martial Law Administrator and all other Martial Law Authorities and Military Courts appointed in pursuance of the aforesaid proclamation are hereby abolished."
12. Adverting now to the judgment of the Full Bench it cannot be in doubt that it was so held. This was not the only finding but it was further held that looking to the preamble, which recites that the Martial Law would be withdrawn on the enforcement of the Interim Constitution having been passed by the National Assembly on 17th April 1972, it was issued ex abundanti coutela to do away with the effect of the judgment in Asma Mani's case (PLD 1973 SC 1) in case the Supreme Court upheld the rule laid down in State v. Dosso (PLD 1958 SC (Pak.) 533). However, at the time when the case was argued the corrigendum notified in the Gazette of Pakistan, Extraordinary, dated 21st May 1973 was not brought to the notice of the Full Bench, which reads: --- "In the Gazette of Pakistan, Extraordinary dated 21st April 1972, at page 640, in line 5 from the top, and in line 7 from the bottom, for `20th April' read `21st April'."
This has materially altered the factual aspect as to the date of the issue of the proclamation and the mistake has been rectified as it could never have been intended to leave the country without a legal Order for its governance. Thus the proclamation was issued on 21st April 1972 and the Interim Constitution also came into force as from that day. The language of Article 280 of the Interim Constitution leaves no room for doubt that the intention was to revoke the proclamation dated 25th March 1969 and to repeal, the Martial Law Regulations and Orders, which intention is also manifest from the preamble of the proclamation of withdrawal of Martial Law which had to be lifted only upon the "enforcement of the Constitution". With respect, if I may say so, the reasoning in the Full Bench judgment is distinguishable on this short ground. Therefore, the irresistible conclusion is that it is the Interim Constitution which came into force before the proclamation was issued. Having reached this conclusion, the proclamation must be regarded as without any legal implication. The Order was thus in force on 20th April 1972 and was only repealed by Article 280(3) of the Interim Constitution, hence no exception can be taken to the competency of the arbitrator to give his award. The contention is misconceived and is rejected.
13. The learned counsel for the petitioners took exception to the execution of the awards. While Mr. Salim Akhtar urged that the award cannot be executed after the repeal of the Order, Mr. Khalilur Raman attacked it from a different angle, namely that there was only an obligation to execute, provided the order was in force and not otherwise. Both the counsel advanced their respective submissions in ignorance of Article 295 of the Interim Constitution,, which not only applies to repeal of laws but also to Martial Law Regulations and Orders. On the one hand, clauses (a) to (e) of Article 295 correspond to section 6 of the General Clauses Act, and on the other, clause (1) is inserted with the manifest intention to save the continuance of any body or authority constituted by or under such law from the effect of repeal; therefore, the jurisdiction of the District Magistrate, who is a prescribed functionary under the Order, to execute the award under para. 13 is saved after its repeal. The question, which next arises for consideration, is whether any right had accrued or incurred under the law, in regard to which any legal proceedings for the enforcement of the remedy could be instituted in terms of clause (c) of Article 295. It cannot be denied that the issue of termination of employment was adjudicated upon, and respondent No. 5 in Petition No. 152/72 and respondents 3 to 6 in Petition No. 168/72 were ordered to be re-instated by the respective awards. They had thus acquired a vested right under the order, which prescribed the remedy, namely its execution by the District Magistrate. Accordingly such a right must be regarded as one falling under clause (c) of Article 295, in regard to which proceedings can legally be instituted for enforcing the remedy even after the repeal of the order within the meaning of clause (e) of Article
295. However, the learned counsel for the petitioners relied on K. A. Jaisinghani v. Custodian of Evacuee Property (PLD 1965 SC 453) and urged that what can be discerned from the order is a procedural right to pursue a particular remedy and, therefore, clause (e) will have no application in view of the observations of their Lordships of the Supreme Court. In that case, what was being considered was the saving clause in Ordinance LVIII of 1962 on the basis of which the jurisdiction of the Custodian was challenged. The contention raised in that case was that in spite of the saving clause, jurisdiction of the Custodian to suo motu review his order remained intact in view of section 6 of the General Clauses Act. In its light, therefore, section 6 of the General Clauses Act came to be considered and it was held that the words "such right" in clause (e) refer to a right in clause (e) which has accrued under any enactment, but would not apply to a repealed enactment where only a procedural right is given. In the instant cases, what is being enforced are the awards directing the re-instatement of the said respondents, which is a substantive right and has accrued to them after adjudication. It is, therefore, not correct to adjudge it on the footing of a procedural E right. Again, whether the Order confers only a procedural right is also a debatable question, which I would not venture to decide here in view of the above distinction. Lastly, the case is one of express repeal, to which Article 295 of the Interim Constitution applies. How can it then be urged by Mr. Khalilur Rahman that the obligation to execute the award could only be there if the Order was in force. This would amount to not giving effect to Article 295. The position would have been different if Article 295 was not there. There is, therefore, no force in the above contention.
14. The learned counsel in both the petitions impugned the respective awards on the ground that they were not made within seven days of the appearance of the petitioners before the arbitrator. In this connection they relied on para. 7(1) of the Order, which reads:- "An arbitrator shall, after holding such inquiry as he deemed fit, make an award, in writing, and announce it within seven days of the appearance of the parties before him."
According to the learned counsel, the object of this Order was to make a provision for speedy disposal of certain labour disputes, and in this context, the provision as to time should be strictly construed. Therefore, the violation of the period, within which the awards were to be announced, would make them invalid. While prescribing the time limit, no consequence is provided for not complying with it. Therefore, in spite of the use o F the word `shall' the direction as to the time, within which the public official has to perform his duty according to it, should be construed as directory. If authority is needed, it will be found in the judgment of the Supreme Court in Chief Commissioner, Karachi v. Jamil Ahmad (PLD 1961 SC 145) and Sutlej Cotton Mills Ltd., Okara v. Industrial Court West Pakistan, Lahore (PLD 1966 SC 472). Again the Supreme Court in Pakistan Petroleum Workers'
Federation, Karacai v. Burmah Shell Oil Storage & Distributing Co. Of Pakistan Limited and others (PLD 1961 SC 479) while construing section 15(1) of the Industrial Disputes Act XIV of 1947, which prescribed time limit in relation to an award which was made after three months, held that the consideration of time will not operate to take away the jurisdiction, which is intended for the purpose of securing expedition of the adjudication. The instant cases are on different footing as the emphasis on time is on a successful conclusion of the inquiry having regard to the object underlying the promulgation of the Order. The case of Saleemsons Ltd, v. The Second Sind Labour Court (PLD 1973 Kar. 1) is distinguishable as in that case a Division Bench of this Court held that the word `shall' in Standing Order 18 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 is mandatory according to the accepted principle of interpretation as that provision creates new rights and obligations and prescribes the mode of its enjoyment or enforcement. Such is not the case here as para. 7(1) concerns the performance of duty by a public officer which is construed on a different footing as afore stated. Since this objection does not affect the jurisdiction of the arbitrator to make the award, no exception can be taken to it, for Article 281(2) of the Interim Constitution gives protection to it. Again, Article 269(2) of the present Constitution, which repealed the Interim Constitution, gives to it a blanket protection to an extent that the Court cannot enquire into the legality of the non-observance of the direction relative to them.
15. Mr. Salim Akhtar next invited our attention to the award and urged that there is error 'apparent on the face of the award which makes it invalid. Elucidating his stand he urged that as the law stood, condition of contract could be enforced to terminate his service if it was found unsatisfactory, yet the arbitrator construed it as one involving misconduct and in the absence of a show cause notice he held his termination of service as illegal, apparently on the footing of dishonest conduct as was pleaded in the written statement. In so urging he relied on the observations of Qadeeruddin Ahmad, J. As he then was, in Mst. Kaniz Fatima v. Chief Settlement Commissioner (PLD 1969 Kar. 401) and stressed that the award should be struck down on the same footing in the exercise of constitutional jurisdiction. That was a case; in which the mistake of fact was of such a glaring character as to lead to the conclusion that the ostensible exercise of jurisdiction was in reality no exercise and a finding was reached without due care and caution which amounted to negligence, and misunderstanding in respect of facts. Therefore, such a question was held "to be of law and jurisdiction" so as to be amenable to an attack in the exercise of constitutional jurisdiction. In essence, therefore, it is a case where, while, exercising jurisdiction, the tribunal had only reached a con--clusion of fact, but it cannot be a case where it can be said to have acted without jurisdiction. Thus the defect is on the same footing as an illegality or irregularity in the exercise of jurisdiction within the meaning of section 115(1)(c), C. P. C. Which provision has been construed to mean that where a Court acts within its field, its act, though illegal, would not be without jurisdiction. In the instant case, undoubtedly, the arbitrator had jurisdiction to give his award. It was in the exercise of that jurisdiction that at best he could be said to have committed an error of law which cannot point to absence of jurisdiction. As such constitutional validity is given to it not only by Article 281(2) of they Interim Constitution but also by Article 269(2) of the present Constitution which repealed the Interim Constitution. The latter provision further bars the Court from enquiring into the legality of the action on any ground whatsoever. It is only when an action is coram non judice, that is without jurisdiction, that it would not be covered by the protection given by Article 281(2) of the Interim Constitution as was held by the Supreme Court in State v. Ziaur Rahman (PLD 1973 SC 62). Such is not the case here. There is, therefore, no substance in this contention.
16. Lastly, Mr. Salim Akhtar urged that the letter directing the petitioner to implement the award was not signed by the District Magistrate but by someone on his behalf, which was a violation of para. 13 of the Order. That provision, according to him, only authorises the District Magistrate to order for the implementation of the award. The learned Additional Advocate-General pointed out after examining the relevant file that it was the District Magistrate who had directed for the issue of the letter, upon which Mr. Salim Akhtar did not press this contention.
17. As for Mr. Khaliur Rahman in Petition No. 168/72, he also took the objection that in his case too, the letter is signed by someone on behalf of the District Magistrate. The learned Additional Advocate-General, however, could not get the file from the D. M's office in spite of his efforts add was therefore unable to make any statement. This, however, is not conclusive, for if the petitioner had taken objection before the District Magistrate, which he had not done, possibly the error, if any, would have become manifest. Moreover, it is to be presumed that all judicial and official acts are regularly performed subject to the proof to the contrary and I do not see why such a presumption should not be drawn in this case when in the file of the connected petition, such a direction was given by the District Magistrate. In this view of the matter, I see no force in this contention.
18. In the result, therefore, both the petitions have no substance and are dismissed, but I would make no order as to costs.
K. B. A.