1. GHULAM RASOOL K. SHAIKH J. This constitutional petition has been filed to assail the award passed by the Sub-Divisional Magistrate, Old Town, Karachi, acting as arbitrator, under Martial Law Order 52, issued by the Governor of Sind and Martial Law Administrator, Zone 'D'.
2. Ganga Ram, respondent No. 3 claimed that he was an employee of the petitioner-Bank, working as an officer Grade III and in discharge of his functions, he held the power of attorney conferred by the Bank.
3. On 18th January 1970, a bank draft purported to be for Rs. 19,000 issued by Sukkur Branch of the Bank, was received for payment in the branch, respondent No. 3 was working as incharge of the Draft Branch. The draft was cleared and cashed, without any advice having been received from Sukkur Branch. The respondent appeared to have sent a reminder to Sukkur Branch on 16-1-1970 i.e. After a delay of b days of the clearance of the draft and a triplicate advice was received on 20th April 1973, showing that the amount of the draft was 100 only. In spite of this advice the respondent neither took any action nor informed the Manager, Zonal Office or Head Office. After about a year on reconciliation of the accounts it was discovered that fraud was committed and there had been manipulation in the draft by changing the amount from Rs. 100 to Rs. 19,(00. On the detention of this fraud the respondent No. 3 was charge-sheeted on 31 March 1971. He submitted the explanation.
4. After due inquiry, the respon--dent was found guilty of the gross negligence, wilful suppression of the information of the fraud and was dismissed by order dated 7 April 1971.
5. Against this, he made a representation to the Board of Directors of the Bank. At the meeting held on 14-9-1971, the Board of Directors rejected the representation of the respondent for re-instatementst th but on compassionate ground gave option to him to resign from service. It appears that this option was not exercised.
6. On 28th March 1972. Martial Law Administrator, Zone 'D' (Governor of Sind) promulgated Martial Law Order No. 52 in exercise of the powers conferred on him by Martial Law Order No. 5 promulgated-by the Chief Martial Law Administrator allowing the workmen aggrieved by the termination of their employment as a result of retrenchment, dismissal, discharge, lay of, lock-out or otherwise on or after Ist January 1971, to make an application to the Arbitrator appointed under the Order and having jurisdiction in the area in which the industry or the commercial establishment concerned was situated. In pursuance of this Martial Law Order various S. D. Ms were appointed as Arbitrators to receive and decide such grievances within their jurisdiction.
7. Respondent No. 3 availed of the opportunity thus afforded by the Martial. Law Order and made an application dated 13th April 1972, to S. D. M., Old Town, Karachi, acting as arbitrator under the Martial Law Order. No further step could be taken on this application as on 21st March 1971, the Martial Law was lifted and the Interim Constitution of the Islamic Republic of Pakistan was enforced. It further appears that proceedings were kept in abeyance and the advice of the Law Department was sought. On the advice having been received the proceedings were resumed and a notice dated 4th July 1972, was issued by the Arbitrator to the petitioner for 15th July 1972. Reply to this was filed on 5th August 1972, and then the proceedings were adjourned to 9th August 1972. On the adjourned hearing the petitioner filed further objections. The proceedings were adjourned to 15-8-1972 for final hearing. On that date the preliminary objections were filed and the proceedings were adjourned to 23rd August 1972, on which date the arguments were heard. The award was given on the following day i.e. 24th August 1972.
8. Aggrieved by this the present petition was filed. The learned counsel for the petitioner raised the following pleas at the time of arguments:
(1) The respondent was not workman but an attorney and, therefore, Martial Law Order No. 52 was riot attracted.
(2) The award had to be passed within 7 days of the date of the appearance of the parties as laid down by Article No. 7 of Martial Law Order No. 52 and since the award was made beyond that period, it was illegal and without jurisdiction.
(3) The Martial Law was lifted and, therefore, Martial Law Regulation and Orders came to an end and that being so the office of the Arbitrator being Martial Law authority was abolished and his powers lapsed and no proceedings could be taken under Martial Law Order No. 52 much less any award could be given. It was also pleaded that the award was not saved by Article - 295 of the Interim Constitution.
(4) The award suffered from serious patent defects liable to be set aside inasmuch as no finding on merit was given and the law was ignored.
(5) There was no provision in Martial Law Order No. 52 investing the arbitrator with the powers of review and furthermore the review order itself was perverse and not Supported by the material on record.
9. Taking up the first contention we are inclined to agree with the learned counsel for the petitioner that the respondent No. 3 was not a workman but simply an attorney.
10. The terms "Employer" and "Workman" according to Martial La order No. 52 have the same meaning as have been assigned to them in A the West Pakistan Industrial and Commercial Employment (Standing Orders Ordinance,, 1968, which read as under: "Employer" means the owner of an industrial or commercial establishment to which this Ordinance for the time being applies, and includes-
(i) in a factory, any, person named under clause (e) of subsection (1) of section 9 of the Factories Act, 1934 (XXV of 1934) as manager of the factory ;
(ii) in any industrial establishment under the control of any department of the Central or any Provincial Government, the authority appointed -by such Government in this behalf, or where no such authority is so appointed, the head of the department; (i.e) in any other industrial or commercial establishment, any person 'responsible to the owner for the supervision and control of such establishment.
11. "Workman", means *any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical (work for hire or reward.
12. The meanings assigned to these two terms make it abundantly clear that only persons' doing skilled or unskilled, manual or clerical work are covered by the Ordinance. Those employed in Supervisory, administrative or managerial capacity are excluded from its scope. , Thus the nature of work performed is, the deciding factor, regardless of the pay or designation.
13. The view taken by the Arbitrator cannot be supported by the power of attorney, which has been produced. Bare perusal of the power of attorney shows that these were the powers of the owner or the management, which had been delegated to the respondent No. 3. It may be noted that the petitioner is a bank and although a juristic person but all its functions have to be performed through a Board of Directors whether individually or collectively according to the charter of the bank and other laws applicable. Almost all the powers, which were conferred upon the respondent are of the owners or the management. Take for instance the powers of supervision, sale, mortgage, lease and the performance of all other functions pertaining to the bank. These powers could not be exercised by a subordinate or a clerk or 'a workman as defined by the Ordinance. It maybe that in the discharge of his duties and the performance of functions he had to do some clerics job but these are incidental. The main job of 'the respondent was to act on behalf of the management and perform all such functions as were necessary for the effective and efficient cannot and management of the bank.. He was, therefore, functioning in an administrative capacity, and belonged to a superior category, distinct from and above the body of manual and clerical workers.
14. Martial Law Order No. 52 was intended to settle dispute between two categories viz. Employer on one side and workman on the other. A person employed in the superstructure could not be permitted to raise the dispute and approach the Arbitrator for determination of the dispute and redress of his grievance, whatever he had.
15. The award of the arbitrator is simply based on some of the clerical duties, which the respondent had to perform and completely ignored his main duties. In this connection the pertinent observation made in the case of Chairman, Brooke Bond v. General Secretary, Union (PLD 1969 Lah. 717) may be noted. It reads as under: "A `workman' is employed in an industry to do skilled or unskilled work which is `manual or clerical'.
16. Manual work entails physical exertion to distinguish from the mental or intellectual exertion involved in the clerical work. But both the manual and clerical work, in the sense these terms are used here, connotes that it is more or less a routine work, not requiring any great amount of initiative, imagination, direction, control and supervision in discharging the same. The true nature of the duties performed by the employee is the determining factor in ascertaining if he was a workman or not within this definition. In case the manual work forms only a small and auxiliary part of his responsibilities or he- is incidentally required to prepare a statement, maintain a register or submit a report, he cannot be considered to be a workman if otherwise his main and primary duties do not belong to this category. The true test, therefore, is to look to the direct, immediate and the substantial part of the work for which he is employed and not to the sundry duties incidentally performed by him. The true answer to this question will, therefore, depend upon the proved facts in each case."
17. According to the arbitrator it was irrelevant to consider whether the person was a supervising officer or a manager. This view is clearly contrary to the duties of the respondent and against the spirit and the main principle of the various laws regulating the relations between the employer and the workmen and supplying means to maintain overall harmonious relations between the two categories. Although the arbitrator considered that the respondent was signing various documents as an officer yet he entertained the view that the respondent was a workman. Reasons given by the learned arbitrator are contrary to the status enjoyed by the respondent as is evident from the duties and functions which he had to perform according to the power of attorney. Thus the arbitrator had no jurisdiction to entertain the application made by the respondent and, therefore, the award is without jurisdiction and without lawful authority.
18. PLD 1965 SC 698): "A purely administrative officer who is empowered to pass an order if certain circumstances exist has no jurisdiction to determine those circumstances and the objective existence of those circumstances is an essential condition of the validity of his order. In respect of every order passed by him the Court can make an enquiry and if it finds that all the circumstances needed "or passing the order were not present it will declare the order to be void. Of course, although the officer has been granted no jurisdiction to determine any facts he will have to ascertain whether the requisite circumstances exist for otherwise he cannot pass the order, but his conclusion as to the existence of those circumstances binds nobody and it is open to any person affected to challenge his act on the ground that those circumstances do not in fact exist. An administrative officer or authority may be given jurisdiction to determine some facts on proof of which he can pass an order and in that case he will act in a quasi judicial manner for the determination of those facts and his determination validly reached will support his order in relation, to those facts. . . So far as special judicial tribunals are concerned they are given jurisdiction to determine certain facts but they are not Judges of the facts, which are the foundation of their jurisdiction nor can they define the limits of their own jurisdiction. It is possible, of course, that special tribunal may be made the Judge of its own jurisdiction, but this would be a very exceptional provision and one which should be made by altogether clear words."
19. To the same effect the following observations were made in the case of State of Bombay v.
20. Laxmidas Ranchoddas and another (AIR 1952 Bom. 468)
21. "According to the Bombay Land Requisition Act, 1948, it is only the premises to which the Act applies which can be requisitioned of its falling vacant. No discretion is given to the Government and the question whether the premises are the premises to which the Act applies is to be determined as an objective fact. Therefore, the High Courts can issue mandamus if it is not established that the order of requisition was in respect of such premises. If the Court, is satisfied that Government or any Government officer is acting contrary to statute or is contravening the limitations laid down upon the exercise of his power, the Court would interfere by a writ of mandamus and compel hire to forbear from so acting."
22. Apart from this, the rights, duties 'and obligations of the respondent are embodied in the power of attorney which was the sole evidence produced before the arbitrator and formed the basis of his decision. This document being the direct foundation of the claim of the respondent, can be examined as its proper legal' effect, which in my humble opinion, is essentially a question of law. In this connection the proposition laid by the Judicial Committee of the Privy Council in the case of Wali Muhammad and others v. Muhammad Bakhsh and others ((1929-30) 57 1 A 80), as to what are and what are not questions of law, may be read with advantage.
23. Taking tip the next contention that the award had to be made within seven days from the date of the appearance as laid clown in Article 7 (1) of the Martial Law Order 52 and since this was not done, the award was illegal and without jurisdiction, I find no force in this contention for the simple, reason that the provision is directory and not mandatory, and therefore, non-compliance does not render the award illegal or without jurisdiction: It seems that the learned counsel or the petitioner based his contention on the analogy of an arbitration under the Arbitration Act which fixes the time limit for making the award unless, time has been extended by the Court. The learned counsel however, ignored the fact that even in that case the Court has the power to enlarge the time for making the award, even after the award has been made. But that analogy can not be extended to a statutory arbitration and the award made by a public functionary in discharge of his official duties. There is nothing in the Martial Law Order providing any consequence on account of not making the award within the time prescribed by Article 7 (1) of the Martial Law Order. This principle has been fully discussed in Maxwell on Interpretation of Statutes as under "Where powers, rights or immunities are granted with a direction that certain regulations, formalities or conditions shall be complied with, it seems, neither unjust nor inconvenient to exact a rigorous observance of them as essential to the acquisition of the right or authority conferred, and it is, therefore, probable that such was the intention of the Legislature. But when a public duty is imposed and the statute requires that it shall be performed in a certain manner, or within a certain time, or under other specified conditions, such prescriptions may well be regarded us intended to be directory only in cases when justice or inconvenience to others who have no control over those exercising the duty would result if such requirements were essential and imperative."
24. This principle, was approved by the Supreme Court in the case of Sutlej Cotton Mills Ltd. v. Industrial Court (PL D 1966 SC 472) The relevant observation reads as under: "This section does not itself provide the consequence of such failure on the part of the Conciliation Officer nor have the parties before the conciliation officer any control over his actions. In the cir-- cumstances, the direction in the statute as to the time within which the conciliation officer is to perform a public duty cannot be regarded as a mandatory provision."
25. Reference may also be made to the case of Pakistan Petroleum Workers Federation v. Burmah- Shell Oil Storage & Distributing Company of Pakistan Ltd. (PLD1961SC479). The relevant observation reads as under: "Mr. Fazlur Rehman's argued that the provisions of section 15 (PLD1964SC633) of the Act which limit the time for the making of an award by a Tribunal should be strictly construed, and that at any rate if the making of the award take place after the expiry of the time limited, it must be assumed that this is illegal and the award has been made without jurisdiction. There is, however, another aspect of these provisions for limitation of time, and that is that they express the intention of the Legislature that industrial disputes shall be taken tip for investigation and shall be enquired into and either reported upon adjudicated upon with the greatest possible expedition.In employing the expression "shall submit its award within in a period not exceeding three months from the date of the reference", the emphasis may well be upon expedition, without making the validity of the action depend upon the exact observance of the limit of time. This interpretation is supportable by the consideration that the jurisdiction is given to a Tribunal, not in relation to any outside factor which imposes a time limit upon the necessity for that jurisdiction, but simply that the Tribunal should decide the matter. Instances of the other kind readily come to mind. During the Second World War, a great number of special jurisdictions were created under rules and other instruments, which came to an end with the War. In cases of emergency such as those brought about by disturbances in particular areas, special Courts are established whose jurisdiction ceases when the declaration of emergency expires. There are jurisdictions, which essentially are temporary, the time being limited not by the necessity of the case or the cases, but by some extraneous consideration such as the duration of a war or of an emergency. Here, the assumption in the relevant sense is that a disturbed state of affairs affecting the relations between the employers and the workers in an industry must be composed, and the task is entrusted to a Tribunal. No extraneous consideration, apply and therefore it is reasonable to assume that considerations of mere time will not operate to take away the jurisdiction. The imposition of limits of time upon the successful conclusion of the adjudication must therefore be intended for purposes of securing expedition."
26. It may be noted that the above was a case under the Industrial Disputes Ordinance relating to the settlement of dispute between the manage--ment and labour. The present case is also of the same nature and the Martial Law Order No. 52 was promulgated to settle such disputes. Similarly it was held in the case of Hotel Metro pole Ltd. v. Hotel Metro pole Employees' Union and others (2), wherein, while rejecting the contention that the certificate could not be issued later than the time prescribed by the Industrial Disputes Ordinance, it was observed that the process of law could not be defeated by applying the most restricted meanings to provisions for intermediate proceedings.
27. These authorities clinch the controversy and it must be held that simply because the award was given beyond the period of seven days, it is not rendered invalid.
28. Dealing with the third contention that the award having been made after the lifting of Martial Law and the repeal of the Martial Law Regulations and Orders, the arbitrator ceased to function and neither the proceedings could be continued nor the award could be made, it has no force.
29. Before taking up this pica, it may be noted that, as pointed out by the learned Attorney-General who was specially requested to assist us, the Interim Constitution was enforced with effect from 21st April 1972 i.e. From midnight falling between 20th April 1972 and 21st April 1972 and the proclamation withdrawing Martial Law issued immediately after midnight: e. 21st April 1912. So the Proclamation withdrawing Martial Law has no relevancy as it was issued after the enforcement of the Interim Constitution. So the present case will be regulated by the Constitution itself. According to the Constitution the Martial Law Order No. 52 was an existing law and was repealed by Article 280 0111). Bar sub-clause (2) of the same Article the proclamation of 25th March 1969, Martial Law was also revoked with effect from the commencing day of the Constitution. Thus it was by virtue of this Article that all Martial Law Orders were repealed and, therefore, the subsequent proclamation lifting Martial Law becomes redundant. Indeed, I am conscious of- the Full Bench decision of this Court, wherein it was held that Martial Law Regulations and Orders were repealed by the proclamation lifting Martial, Law and re-enacted by Interim Constitution, but with due respect, this decision proceeded on the assumptions as the Bench was given to understand, that the proclamation lifting the Martial Law was issued on 20th April 1972, i.e. Before the enforcement of the Constitution. This confusion arose as wrong date was noted in the proclamation published in P. L. D.
30. The learned Attorney --General pointed out that this mistake was corrected and a corrigendum was issued showing the correct date i.e. 21st April 1972 in the Gazette Extraordinary.
31. It was, however, contended that the principle of law laid down by the Full Bench is binding on Division Bench and so long it holds the field it must be followed. Indeed, there is no dispute account the proposition canvassed before us but it is to be noted that the principle laid down by the Full Bench is based on a certain fact and if different set of facts appear, the case has to be dealt with in the light of the facts thus placed. It is not purely a question of law independently of facts but a question of law based on facts. So the authority of the Full Bench is clearly distinguishable.
32. Now turning to the plea taken before us, I may refer to Article 295 of the Interim Constitution, which reads as under.
33. "295. Where a law (including a President's Order, a Martial Law Regulation or a Martial Law Order) is repealed, or is deemed to have been repealed, by, under, or by virtue of this Constitution, the repeal shall not except as otherwise provided in this Constitution.
(a) revive anything not in force or existing at the time at which the repeal takes effect;
(b) affect the previous operating of the law or anything duly done or suffered under the law ;
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred sander this law ;
(d) affect any penalty, forfeiture or punishment incurred in respect 9f any' offence committed against tire law ; -or'
(e) affect any investigation, legal proceeding or remedy in such right, privilege, obligation, liability, penalty, forfeiture or punishment ; or
(f) affect the continuance of any body or authority constituted by or under such law ; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed and such body or authority continued as if the law had not been repealed."
34. There is an authoritative view that right to sue is more than mere matter of procedure. It is a substantive and vested or existing right, which is not affected by the repeal of the enactment, following quotation from Craies on Statute Law, Fifth Edition, 1962 at page 370 may be noted: ---It is a general rule that when the Legislature alters the right of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them. But there is no exception to this rule, namely, where enactment merely affect procedure, and do not- extend to rights of action."
35. This rule is based on the difference, which exists between laws, which affect vested rights and those laws which merely affect the proceedings of Courts.
36. What is a "vested right", and "accrued right" and a "substantive right" has been aptly defined by the Supreme Court in the case of Rafiuddin v. Chief Settlement Commissioner (PLD 1971 SC 2523). The relevant portions read a under: "Vested right', an `accrued right' or a `substantive right' does not mean only title to property or office; a right, benefit or an advantage conferred by a statute, if availed of by doing a thing as required b the statute, is also a right of this kind. Again, if a right, benefit, o advantage conferred by a statute is dependent on the happening o a contingency, then the same becomes a `vested or accrued right' after the contingency has happened.
37. Similarly, the right to obtain specific performance of a contract of sale is a right conferred by statute. This is his vested `right of action' in the sense that it is he who alone can seek specific per-- formance of the contract. This right is to be availed of by the presentation of a plaint in Court. After he gets a decree for specific performance, the decree becomes his property and his right thereto is his `vested right'.
38. The right conferred by a statute, which is awaiting adjudication, as in the present case, is as much a substantive or vested right as title to property or office.
39. The right of action or the cause of action arising out of a contract or under a statute is the vested cause of action of the person to whom it accrues, and these, as regards effect of law on them, stand on the same footing as other substantive rights or title to property or office. Like the existing substantive rights including benefits or advantages that have accrued under statutes and title to property or office, the right of action or the cause of action which has already accrued cannot be destroyed or impaired by a new law unless that law, by its express provision or by necessary intendment, is retrospective in operation."
40. This question was also considered in an earlier decision, in the case of Adnan Afzal v. Capt. Sher Afzal (PLD1969SC187) as under: "The general principle with regard to the interpretation of statutes as laid down in the well known case of Colonial Sugar Refining Company Limited v. Irving (1905 A C 369) is that "if the matter in question. Be a matter of procedure only", the provisions would be retrospective. "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", then "in accordance with a long line of authorities extending from the time of Lord Coke to the present day", the legislation would not operate retrospectively, unless the Legislature had either "by express enactment or by necessary intendment" given the legislation retrospective effect.
41. To the same effect are the observations of Jessel, Master of the Polls, in the case of In re: Joseph Suche & Co. Limited (1875) 1'Ch. D 48 where it was observed that as a "general rule when the Legislature alters the rights of parties by taking away or conferring any rights of action, its enactments, unless in express terms they apply pending actions, its enactments, unless in express terms they apply to pending actions, do not affect them. It is said that there is one exception to that rule, namely, that these enactments merely affect procedure and do not extend to rights of action, they have been held to apply to existing rights"
42. The question for consideration there was regarding the right of a secured creditor of a company to prove for the full amount of his debt without deducting the value of this securities in the course of the winding up. That was held to be, in substance, a right of action for the recovery of a debt and, therefore, section 10 of the English Judicature Act was held not to apply retrospectively.
43. The principle has been admirably put by Crawford in his book on Construction of Statutes, 1960, page 581, 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 retrospective operation. Similarly the presumption against retrospective construction is inapplicable. In other words, such statutes constitute an exception to the rule pertaining to statutes generally. Therefore, in the absence of contrary Legislature intention, statutes pertaining actually the procedure or legal remedy may affect a 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. In any event, they will, at least, presumptively apply to accrued and pending as well as to future actions."
44. This principle has also been fully adopted by this Court in the case of The State v. Muhammad Jamil (PLD 1965SC681) and Muhammad Alam v. The State (PLD 1965SC681)
45. 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 actions are all matters relating to jurisdiction over the cause of action, venue, parties pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus a statute purporting to transfer jurisdiction over certain causes of action may operate retrospectively. This is what is meant by saying that a change of forum by 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 retrospective operation cause inconvenience or injuries, then the Courts will not even in the case of 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 retrospective application will tend to promote injustice without any consequential embarrassm ent or detriment to any of the parties concerned, the Court would favourably incline towards giving effect to such procedural statutes retrospectively, It was a case under West Pakistan Family Courts Act XXXV of 1964 giving exclusive jurisdiction to Family Courts to decide question of maintenance. Previously the maintenance to the were could be granted under section A88, Cr. P. C. The aforesaid Act changed the forum for the enforcement of the right of maintenance. It was thus observed in the above reported decision that "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" Here I would lay, emphasis on the expression "the rights already possessed", and that the right to mainte--nance was a right already possessed.
46. Reference may also be made to the authority of the Supreme Court in the case of Chaudhry Sir Zafrullah Khan v. Custodian of Evacuee Property (PLD 1964 SC 865) in which it was held that the appeal did not abate on coming into force of Constitution of Pakistan (1962) and the special leave gave a vested right to the appellant as the right became a vested right to have the decision of the tribunal appealed from examined by the Court and there was no provision in the new Constitution to the contrary. This view was confirmed by the Supreme Court in the case, of Sutlej Cotton Mills v.
47. Industrial Court, West Pakistan. In that case the petition for special leave to appeal against the order of the tribunal was filed under Article 190 of the Constitution of Pakistan 1956 read with Laws (Continuance in Force) Order, 1958 only a day prior to coming into force of the Constitution of Pakistan (1962). The petition was accepted after coming into force of the new Constitution. At the hearing of the appeal a prelimi--nary objection was raised that the appeal was not maintainable inasmuch as under Article 58(i.e) of the new Constitution of Pakistan (1962) the Supreme Court had jurisdiction to bear and determine the appeals from judgments, decrees, orders of sentences of High Court only and not from that of a tribunal. This objection was overruled. It was also observed that the position would be the same whether the leave had been granted before the commencing day of the New Constitution or the petition for leave had only been filed before the relevant day. It was ruled that appeal by special leave was not mere matter of procedure but valuable right and this right the appellant had certainly vested ire him on the day he filed his petition. Similarly, there are numerous authorities to (sic,) that the right to action is a vested right and can be enforced even after repeal of an enactment. For the sake of brevity I may quote the case of S. W. Hamid Ali v.
48. C. R. Machado (PLD 1963 Kar. 715). In the case of Abdul Rehman's v. Settlement and Rehabilitation Commissioner (PLD 1966 SC 362) the right of revision was held to be a vested right and, therefore, the party having acquired that right could not be deprived of it unless there was a provision to the contrary: On the other hand, the learned counsel for the petitioner made reference to two authorities of the Supreme Court but these also confirm the aforesaid view. The first authority is in the case of Saeed Ahmed v. State (PLD 1964 9 C 266). The following observations made by his Lordship Kaikaus, J.
49. May be noted: "As to the applicability of a statute which is enacted after the coming into existence of the acts or events, the legal effects which are to be determined, the law is rot in any doubt. So far as substantive rights of parties to a litigation are concerned a law which comes into force either during the pendency of the proceedings in a Court or even before the institution of such proceedings, but after the coming into existence of the events, the legal effect of which is to be determined, can have no effect whatsoever on the proceedings except to the extent of the retrospective effect which it may possess expressly or by necessary implication. If a person died before 1948 and he was governed in matters of inheritance by custom, an act passed in the year 1948 according to which all, his property is to descend to his heirs in accordance with Muhammadan Law has obviously no effect whatsoever on the rights of parties even though the litigation began after the new act came into force. When rights once vest in parties they are not affected by any legislation that has merely prospective effect. This is the position so far as substantive rights are concerned. So far as the procedural provisions are concerned the ordinary rule is that Courts continue to have the jurisdiction, which they had at the time when a proceeding was instituted even though that jurisdiction is subsequently taken away but an interpretation of the new Act may lead to a different result. Not long ago we held that all appeals, which were competent under the old Constitution, could be filed if the judgment under appeal had been delivered when the previous Constitution was still in force. Even if the appeal was in such a case filed after the coming into force of the new Constitution that would make no difference to the competence of the appeal. It is true that sometimes the jurisdiction of a Court to pass a particular kind of order may be taken away by a new Act so that it can henceforth pass no order of that kind even in a pending proceeding, but as I have said, this will depend upon the interpretation of the new statute."
50. After reproducing the provisions of section 6 of General Clauses Act it vas observed that in accordance with the section all rights and liabilities, etc. Continued in spite of repeal and all proceedings could have been taken or continued if the repealing Act had not come into force.
51. The second Authority is in the case of Khashiram Atmaram Jaisinghani v. Custodian of Evacuee Properly, West Pakistan, Karachi and others (PLD 1965 SC 453). It was a case relating to the owner of suo motu review which was not intended to be saved by repealing Ordinance but only the review applications pending immediately before the commencement of the repealing Ordinance were expressly saved While dealing with the clause (e) of the General Clauses _Act, following observation was made: "Reliance is placed on clause (e) .Of this section and it is urged that any proceedings which could have been taken if the Act remained in force can be taken if it is repealed. It will be observed however that ' clause (e) refers to `such right, privilege, etc. As-aforesaid and this has reference to clause (c) in accordance with which any "right, privi--lege, obligation or liability' which has already accrued or been incurred, remains unaffected. For the application of clause (e) therefore, there has first to be a right and then a legal proceeding in respect of such right. This does not appear to be applicable to a case where the only possible right, which can be said to have accrued, is the right to prefer a particular legal proceeding. From its wording clause (e) would apply to legal proceedings in respect of substantive rights which have' already occurred under a repealed enactment rind would not cover a ease where only a procedural right is granted."
52. Reference was also made to the case of Haji Adam Hassan and others v. The Federation of Pakistan (P L.D 1962 Kar. 21). In that case plea was taken that notwithstand--ing repeal of Government of India Act the bar contained in section 226 of the said Act still operated and rendered the suit inc6mpotent. On considera--tion of the various Articles of the Constitution of 1956, Sind Courts Act, Establishment of West Pakistan Act and High Court of West Pakistan (Establishment) Order, the contention was repealed, While interpreting section 6 of the General Clauses Act, it was held that nobody had any vested right to a particular procedure and, therefore, normally it was the procedure, in force at the time of trial or disposal of the suit which must be applied' and, therefore, the Court could not refuse to exercise jurisdiction if it had got it when the case came up for trial upon the ground that it did not have such jurisdiction.
53. I have extensively quoted the principle laid down in the various decisions. To conclude, there exists a clear distinction between statutes, which effect a procedural change and those, which create or affect substantive rights. The distinction is important as after the repeal of a statute, the procedure prescribed by the statute cannot be invoked but a vested right created by the statute is not affected and can be enforced, unless it is expressly taken away g or such a result necessarily follows as a necessary implication. A right of action is a vested right. A statute can be procedural as well as substantive In other words it may create a right, a forum and lay down the procedure for the enforcement of the right and to secure the remedy provided by it. In such a situation the right created by the statute can be enforced by the pro--cedure prescribed by it, unless contrary intention appears.
54. So the real question to be considered in this case is whether Martial Law Order 52 is a procedural law or substantive law affecting or impairing an existing right or creating new rights including right of action. In order to appreciate this question it is necessary to refer to the legislative history of the Labour Laws.
55. Originally, the Trade Disputes Act, 1929 was passed; it was repealed by Industrial Disputes Act, 1947, promulgated on IIth March 1948, Le. Before the creation of Pakistan. In neither of these two Acts was there any provision for the entertainment and investigation of individual grievance of a workman.
56. According to Industrial Disputes Act, 1947, the Government had the power to refer any Industrial Dispute, which existed or was apprehended to a Board for promoting of a settlement, or to a Court for inquiry or to a tribunal for adjudication. This Act was repealed by Industrial Disputes Ordinance 1959, promulgated on 9th October 1959. In this Act also there was no provision for any individual grievance. According to section 10 the Court could take cognizance of Industrial Dispute in respect of which an application had been made or inquire into and adjudicate any matter referred to it by the appropriate Government. This Ordinance was repealed by West Pakistan Industrial Relations Ordinance IV of 1968, promulgated by the Govern--ment of West Pakistan on 29th February 1968. In this Ordinance also there was no provision :or the entertainment and determination of individual grievance but the powers of the Labour Court were restricted to adjudicate and determine any Industrial Dispute in respect of which application has been made or any matter referred to it by the Government for inquiry and adjudication. This Ordinance with certain amendments was approve by the Provincial Assembly of West Pakistan, on 30th May 1968 but so far as the powers of the Industrial Court and individual grievance were concerned, no change was effected. Subsequently, this Ordinance was repealed by Industrial Relations, Ordinance XXIII of 1969, promulgated by the President of Pakistan. In this Ordinance section 34 was added to adjudicate upon a grievance but it provided that any party to an Industrial Dispute relating to the matter arising out of any right guaranteed or secured to an employer or workman by or under any law for the time in force or award or settlement could apply to the Labour Court for adjudication of the dispute. Thus even this provision of law had a limited scope and did not give any right to individual workman to approach the Labour Court but this permitted only the party to Industrial Dispute to move the Labour Court.
57. Subsequently, section 34 was substituted by Industrial Relations (Amendment)Ordinance XIX of 1970, promulgated on I4th October 1970 by the President of Pakistan, allowing a workman to approach the Labour Court. It laid down that any collective bargaining agent or employer or workman may apply to the Labour Court for the enforcement of any right, guaranteed or secured to it or him by or under any law or any award or settlement. The Industrial Relations Ordinance, 1969 was further amended by Labour Laws (Amend--ment) Ordinance IX of 1972, promulgated on 13th April 1972 whereby section 25(a) was added with regard to the redress of individual grievances. It laid down that a workman may make a grievance in respect of any right, guaranteed or secured to him by or under any law or any award or settlement tot the time being in force. Notice in writing either by himself or through his shop steward or Trade Union was required to be given to the employer within three months of the day on which cause of such grievance arose and the employer was required to decide his grievances within 15 days and in case of his failure to do so or if the worker was dissatisfied with the such decision then he could move the Junior Labour Court within a period of two months of the communication by the employer or as the case may be from the expiry of the aforesaid period. Simultaneously Standing Order No. 18 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance 1968 was omitted. Another change which was brought about in section 34 by Act XXIX of 1973 was that the words "or workman" appear--ing in section were omitted.
58. The other provisions of law applicable to the present case are the Stand--ing Orders. The first statute known as Industrial Employment Standing order Act XX of 1946 was passed. In this Act only model Standing Orders were laid down for the guidance of employers who had to submit a draft of Standing Orders based on that model for the approval of the certifying officer appointed under the Act. It was only after the approval, the Standing Orders had any binding force. In view of the changing conditions this Act was repealed and the procedure prescribed by it was abolished by Industrial and commercial Employment (Standing Orders) Ordinance No. 111 of 1960. By section 3, the Standing Orders were made applicable to regulate the conditions of employment and other incidental matters. According to Standing Order No. 12 the services of the permanent workmen could be terminated by giving one month, notice in writing or one month's pay in lieu of the notice.
59. The workmen other than the permanent workmen were not entitled to any notice or pay in lieu thereof. Standing Order No. 13(4) laid down that no order of dismissal could be made unless the workman concerned was informed in writing of the alleged , misconduct and was given an opportunity to explain the circumstances alleged against him and the approval of the manager or of the employer was sought. There was no provision for approaching the Labour Court for redress of individual grievances. This Ordinance was repealed by the West Pakistan Industrial and Commercial Employment (Standing Orders)Ordinance No. 6 of 1968, promulgated on 8th March 1968. This Ordinance was subsequently approved by the Provincial Assembly of West Pakistan with certain amendments on 8th May 1968, In this also provisions regarding the termination of the employment or dismissal were, similar. However, Standing Order No. 18 was added in respect of individual grievance, allowing an individual workman to seek relief through a Labour Court in respect of any matter under the Ordinance other than the grievance against the order of termination except if the workman concerned was an officer of a Trade Union and his employment was alleged to have been terminated for Trade Union activities. Standing Order No. 12 - relates to the termination of the employment and provided that for terminating the employment of a permanent workman, one month's notice in writing was required to be given or one month's pay in lieu of the notice. Other categories of workmen were not entitled to any notice or pay in lieu thereof.
60. Subsequently Standing Order No. 18 was omitted and instead section 25(a) was added to the Industrial Relations Ordinance, 1969 by Labour Laws (Amendment) Ordinance IX of 1972, promulgated on 13th April 1972 by the President of Pakistan as already indicated. This section materially differs from Standing Order No. 18 in so far as the Standing Order permitted the relief in respect of any matter under that Ordinance while the section permits the relief in respect of any right guaranteed or secured by or under any law or any award or settlement for the time being in force. Originally there were five subsections in section 25-A when inserted in the Ordinance of 1969 but subsequently two more subsections were added by Act XXIX of 1973. The subsection (6) reads as under: "Notwithstanding anything contained in subsections (1) to (4) any worker aggrieved by the termination of his employment as a result of retrench--ment, dismissal, discharge, lay-of, lock-out, or otherwise not earlier than two months preceding .The commencement of the Industrial Relations (Amendment) Ordinance, 1972, may, within a period of two months from the commencement of the Industrial Relations (Amend--ment) Act, 1973, or the termination of the employment, whichever is later, either himself or through his Shop Steward or Trade Union, take the matter directly to a Junior Labour Court having jurisdiction in the area in which the establishment is situated."
61. Thus this subsection was given retrospective operation. It allowed a workman aggrieved by termination of his employment within a period of two months of the commencement of the Industrial Relations (Amendment) Act, 1972 to 'seek relief. . This Act is known as Labour Laws (Amendment) Act V of 1972 enacted on 7th September 1972 as will be referred to in the succeeding paragraph.
62. Later on Standing Order No. 12 was substituted by another --- Standing Order No. 12 by Labour Laws (I1 Amendment) Ordinance No. - 18 of 1972, promulgated on 24th May 1972 laying down that for terminating: the employment of a permanent workman, for .Any reason other than mis--conduct, one month's notice shall be given either by the employer, or by the "workmen or one month's pay shall be paid in lieu of notice. Other categories of workmen were not entitled to any notice. Ft further lays down that the services of a workmen shall not be terminated nor shall a workman be removed, retrenched, except by an order in writing which shall expressly state the reasons for the action taken and in case a workman is aggrieved by the termination of the service or removal, retrenchment, discharge or dismissal, he may bring his grievance to the notice of his employer in the manner laid down in section 25-A of the Industrial Relations Ordinance, 1969 and thereupon the provision of the said section shall apply to the redress of individual grievance. On termi--nation of services the wages earned and the dues including payment for un-availed leave shall be paid to the workman. It also laid down that services, of a permanent or temporary workman shall not be terminated on rile ground of misconduct otherwise than in the-manner prescribed in Stand--ing Order No. 15 which defines the term "misconduct". At this stage it may be noted that this' amendment was brought about after the promul--gation of Material Law Order 52. I may restate that the Martial Law Order No. 52 was promulgated or. 28th March 1972 while this amended ordinance was issued on 24th May 1972, i.e., after the promulgation of the Interim Constitution and lifting of the Martial Law. Again the Standing, order No. 12 was substituted by another Standing Order No. 12 by Labour Laws (Amendment Act V of 1972), passed by the National Assembly and received the absent of the President or, 7tf,September 1.972. There is a slight change which it is not necessary to state for the reason that an amendment in Standing Order Not 12. Or in the Labour Laws brought about after the promulgation of the Interim-Constitution has no relevancy on the present case is to the decided in according with, 06 law in force before the enforcement of the Interim Constitution and the lifting of Martial Law.
63. From the legislative history of the various Labour Laws it is clear that prior to the insertion of Standing Order No. 18 in 'the West Pakistan industrial and Commercial Employment (Standing Orders) Ordinance by the provincial Assembly of West Pakistan on the 8 May 1968, there was no provision allowing any individual workman to seek relief through a Labour Curt. Even Standing Order No. 18 had a limited application and only the workman who was an, officer of a Trade Union and whose employment was alleged to have been terminated for Trade Union activities could approach the Labour Court for redress of grievance against the orders of his termination of his employment. It however, allowed the individual work--man to seek relief in respect of any matter other than the termination of service: The next provision for individual grievance was the insertion of section 34 in the Industrial Relations Ordinance of 1969: Its scope was restricted and permitted a party to an industrial dispute to approach tile Labour Court in respect of any matter arising out of any right guaranteed or secured by or under any law for the time-being in force or award or settlement. This section was substituted by Industrial Relations (Amendment) Ordinance of 1970 allowing a work man to apply to the Labour Court for the enforcement of any right guaranteed or secured by Or under any law or any award or settlement. Even the addition of section 25(A) to the Industrial Relations Ordinance, 1969 by Labour Laws "Amendment) Ordinance 1X of 1972, promulgated on 13th April 1972 restricted the grievance to any right guaranteed or secured by or under any law' or tiny award or settlement for the time being in force. By this Ordinance the Standing Order No. 18 was omitted from the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. The words "or workmen" appearing in section 34 were also omitted. ' It was only by the substitution of Standing Order No. 12 by Labour Laws (II Amendment)
64. Ordinance No. 18 of 1972, promulgated on 24th May 1972 that an individual workman was permitted to approach the Labour Court to assail the termination of service or-removal, retrenchment, discharge or dismissal and the procedure laid down by section 5(a) of the Industrial Relations Ordinance 1969, as amended from time to time made applicable Thus it follows that on the day when Martial Law Order No. 52 was promulgated, there was no provision of law permitting a workman to approach the Labour Court to challenge the termination of service or removal, retrenchment, discharge or dismissal. Prior to it, he could however, approach the Labour Court for redress of other grievances under the Standing Order No. 18 of Standing Orders Ordinance and for the enforcement of any right guaranteed or secured by or under any law or any award or settlement under section 34 of the Industrial Relations Ordinance, 1969 as, amended from time to time till the words "or workman" were deleted by Labour Laws (Amendment) Ordinance promulgated on 13th April 1972.
65. Reverting to M. L. O. No. 52 promulgated on 28th March 1972, it is clear that it created the right of action against the termination of employment whether by discharge or by dismissal or by retrenchment. It also created a forum for redress of the grievance. Thirdly, a remedy by way of re-th instatement was provi0ed. Thus it was not only procedural statute but also created a substantive right as of have already indicated that the right of action is a substantive right. When the right is created by a statute which also prescribes the manner in which that right may be enforced the party complaining of any infringement of such right is entitled to seek remedy as provided by that statute. It is also clear that with regard to other relief, the M. L. O. Is to be treated a procedural statute as prior to it a workman for the redress of those grievances could approach the labour Court under Standing Order No. 18 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordi--nance and section 3 of the Industrial Relations Ordinance, 1969. ---What then is the true nature of the distinction? The law of procedure may, defined as that branch of the law which governs the process of litigation. It is the law of actions Jus quod ad actions pertinent using the term action in a were sense to include all legal proceedings, civil or criminal. All the residue in substantive law, and relates, not to the process of litigation, but to its purposes and subject matter. Substantive law is concerned with the ends, which the administration of justice seeks; procedural law deals with the means and instruments by which those ends are to be attained. The latter regulates the conduct and relations of Courts and litigants in respect of the litigation itself; the former determines their conduct and relations in respect of the matters litigated.
66. A glance at the actual contents of the law of procedure will enable us to judge of the accuracy of this explanation. Whether I have a right to recover certain property is a question of substantive law, for the determination and protection of such rights are among the ends of the administration of justice, but in what Courts and within what time I must institute proceedings are questions of procedural law, for they relate merely to the modes in which the Courts fulfil their functions. What fact constitute a wrong is determined by the substantive law what facts constitute a proof of a wrong is a question of procedure. For the first relates to the subject-matter of litigation, the second to the process merely."
67. From what has been stated above, I feel no hesitation in stating that the present case is covered by Article 295 of the Interim Constitution of Islamic Republic of Pakistan 1972 and all the pending proceedings, the remedy and the authority survived although the Martial Law was revoked and the Martial Law Regulation and Martial Law Orders were repealed. So the objection raised on behalf of the petitioner, assailing the jurisdiction of the Arbitrator and the award made by him is overruled.
68. The 4th and 5th contentions may be taken together. It was urged by the learned counsel for the petitioner that in the award dated 24th August 1972 the Arbitrator failed to give any finding on merits and therefore, the error was patent on the face of the award and was bad in law. There can be no manner of doubt that there is force in this contention as the question referred to him was whether the dismissal of the respondent was legal or illegal and he was bound to give finding with regard to this question and he failed to do so but after holding that the petitioner was a workman he proceed to order that the respondent be re-instated and all legal dues should be paid to him as the case fell under the purview of Martial Law Order No. 52. He did not hold that the termination of service was illegal or the procedure, which was to be followed, was not adopted. In fact noth--ing was said on merits. However, the position has been altered as review application was made and order on merits was passed. On the basis of that order the application was dismissed.
69. The learned counsel for the petitioner took exception to the powers of the review of the Arbitrator.
70. He urged -that according to Article 8(1) of the Martial Law Order No. 5, the Arbitrator could only rectify any mistake on the face of the record or proceeding connected with the award but he could not add the reasons for disposing of the case on merits. I am unable to entertain this objection for the simple reason that the petitioner himself invoked the jurisdiction of the arbitrator by making a review application and invited the order, which was passed thereon. It was observed in the case of Zainab Tiwana v. Aziz Ahmad Waraich (PLD 1967 Lah. 977) that a party which has acquiesced in an erroneous order or irregular proceedings or even defective jurisdiction is not entitled to question it subsequently by invoking a high prerogative jurisdiction. In the present case there was not mere acquiescence but the petitioner himself invoked the jurisdiction.
71. "According to the enquiry report and dismissal order Mr. Ganga Ram has been found guilty of gross negligence in the discharge of his duties. This is not covered by the definition of misconduct given 'under Order 15(3) of West Pakistan Industrial and Commercial Employment (Standing Orders)
72. Ordinance, 1968.
73. As such punishment of dismissal could not be given to Mr. Ganga Ram. Further according to section 15(4): `No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct and is given an opportunity to explain the circumstances alleged against him, the approval of the employer shall be required in every case of dismissal and, when circumstances appear to warrant it, the employer may institute independent inquiries before dealing with charges against a workman.
74. Reading this order, it is clear that according to the learned arbitrator the act of gross negligence in discharge of duties was not covered by the definition of misconduct given under Order 15(3) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and since the enquiry report and dismissal order indicate that the respondent No. 3 was found guilty of gross negligence, he could not be dismissed from service. This is contrary to the statement of facts and their substance detailed in the charge-sheet and the dismissal order. Of course both the documents are not happily worded but they give a clear indication that the respondent No. 3 was an accomplice and guilty of fraud. The dismissal order also shows that he wilfully suppressed the information of the fraud for about one year and this came to light on reconciliation of accounts. On the basis of the facts stated in the two documents such an officer could not be allowed to remain on service and no over punishment except the dismissal could be the appro--priate punishment: Me original pay order was for Rs. 100 and this figure was changed to Rs. 18.900 by manipulation in the very pay order. This was clearly indicated in charge-sheet. So the use of the word negligence in the two documents is of no material consequence. It is substance of the allegation, which had to be taken into consideration by the arbitrator.
75. The other ground seems to have been taken by the arbitrator is that the compliance with section 5(4) was not made inasmuch as no opportunity was allowed to the respondent and the approval of the employer for dismissal was not sought. This finding is clearly contrary to the record. Even no such plea was taken by the respondent himself in the application which he had made under Martial Law Order No. 52 to the arbitrator. No evidence in this case was recorded and no other documentary proof was furnished. It is not understood how the arbitrator came to that conclusion.
76. The award, undoubtedly, not only lacks evidence but is perverse and, therefore, cannot be supported. It had been clearly held in the case of Smt. Moolibai and 2 others v. Custodian, Evacuee Property and another (PLD 1964 SC 648) and in the case of Commission, and others v. Mian Sher Muhammad (1972 SC N1 R 395) that the finding of facts can be interfered when the decision of the tribunals is patently erroneous on based on no evidence or misreading of evidence or ignoring of material N evidence or that it could net have been honestly arrived at. The earlier view taken in the - case of Muhammad Saeed and others Election Petition Tribunals, West Pakistan and others (1972 SC N1 R 395) was followed.
77. Since I have cone to the conclusion that the respondent was not a workman and the ground, which found favour with the arbitrator holding the dismissal illegal, is not sustainable, I allow the petition with costs and declare the award to be without jurisdiction and without lawful authority.