' It is proposed to decide Writ Petitions Nos.6203/96, 6387/96, 6388/96, 9192/96 and 10015/1996 as common questions of law and facts are involved, therefore, are being decided by single judgment.
2. The relevant facts are that the petitioner filed a petition under section 22(8)(g) read with sections 15 and 25 of the Industrial Relations Ordinance, 1969 against respondents Nos.4 to 6. The petition was initially heard by Mr. Muhammad Hussain Chaudhry, Member, N.I.R.C. And ultimately Agha Saleem Khurshid, Member accepted the application to the extent of the petitioner vide order, dated 18-5-1995, which was assailed through an appeal before the Full Bench. It is maintained that the appeal was admitted to regular hearing and order was suspended but the order was not signed by the Members of the Full Bench. Thereafter, the file was misplaced. The counsel for respondents Nos.4 to 6 made application for taking up the appeal. He was asked to appear on 28- 3-1996 at Rawalpindi but as the file was not available, therefore, he was given authority to collect the file from Lahore Office and appear on 2-4-1996 but the file was not even available at Lahore.
Thereafter, the learned counsel made another application wherein he requested for fixation of the appeal urgently and notified that it should not be fixed before a Bench of Mr. Muhammad Hussain Chaudhry, Member as he has dealt with the matter on the original side. It is on record that the matter ultimately was placed on 10-4-1996 before respondent No,2, who heard the same sitting alone and directed the service of respondents and adjourned the appeal to 11-4-1996, on which date it was placed before respondents Nos.2 and 3, who admitted the appeal and proceeded to suspend the order of Single Bench. The petitioner has challenged this order through present writ petition, which came up for limine hearing before my learned brother Tanvir Ahmad Khan, J. On 17- 4-1996, when it was admitted to hearing and notices were issued to the respondents. Respondents Nos.3 to 6 have appeared and contested the petition while the others are proceeded ex parte.
3. The learned counsel for the petitioner argued that qualifications of Chairman and Members of the N.I.R.C. Were determined through notification dated 3-4-1976, according to which, a law graduate, who has practised as an Advocate for not less than 10 years was qualified for the appointment as a Member of the Commission. But this was amended through notification, dated 11-2-1987 whereby this clause was substituted with the result that now a person who has been or is or has been qualified to be a Judge or Additional Judge of a High Court could be appointed. It is added that qualifications of Judge of a High Court are contained in Article 193(2) of the Constitution of Islamic Republic of Pakistan, 1973, therefore, as Advocate of High Court before he could be appointed as Member, N.I.R.C. Should be of 40 years age and have 10 years standing as Advocate of the High Court. It is argued that respondent No,3 did his law graduation in the year 1980 from the University Law College, Lahore and joined National Bank of Pakistan as an Officer. But his service, when he was serving as Officer Grade II, were terminated vide order, dated 3-6-1986.
However, Review Board constituted by the Labour Division accepted his application set aside this order and recommended to the Federal Government to direct the management of National Bank of Pakistan to re-instate him. The Bank Authorities, accordingly, asked him to report for duty vide letter, dated 29-6-1990. Respondent No,3 was appointed as Member vide notification, dated 25-10- 1995 and he assumed the charge as such on 5-11-1995 as is clear from the documents placed by the learned Deputy Attorney-General on record. It is, therefore, concluded that he was not a person qualified to be appointed and in this behalf reliance is placed on cases of Chittarnjan Cotton Mills Ltd. v. Staff Union (1971 PLC 499), Pak. Industrial and Mining Syndicate Ltd., Quetta and others v. Iqbal Muhammad and 2 others (1977 PLC 593), Muhammad Siddique, Advocate v. Farhat Ali Khan and another (PLD 1994 Lah. 183), Farhat Ali Khan v. Muhammad Siddique, Advocate and another (1995 SCMR 1570).
' The next argument is that appeal, against the decision of Single Bench of the Commission, is to be heard by a Full Bench of the Commission, which must consist of at least three Members. Since the impugned order, dated 11-4-1996 was passed by respondents Nos.2 and 3, therefore, the order was without jurisdiction and illegal.
4. On the other hand, the learned counsel for respondents Nos.4 to 6 argued that when he took over the charge as Legal Advisor of WASA he inspected the files and in this case the appeal has been admitted to hearing and order of the Single Bench suspended by the Full Bench but he very candidly conceded that the order was not signed by any member of the Full Bench and subsequently when he pursued the matter hectically and it was on his request that Appeal was fixed but at that stage it transpired that the file was not available either at Lahore or at Islamabad.
It is submitted that name of Mr. Muhammad Hussain Chaudhry, Member was incorrectly typed out in the order dated 11-4-1996. Similarly, his name was also typed out in the Full Bench in order, dated 3-7-1996 whereas he was not Member of that Bench. The Deputy Registrar of the N.I.R.C. Is present.
He stated that the Bench was not constituted but as these were the only three members besides Mr. Muhammad Hussain Chaudhry, Member, therefore, they heard the appeal of the respondents Nos.4 to 6 on 3-7-1996. It is added that once the appeal was fixed by a Full Bench and during the proceedings if of the Members became absent then Full Bench would remain properly constituted.
In this behalf, reference is made to subsection (4) of section 22-B. It is maintained that in any case the Bench which heard the appeal on 3-7-1996 was properly constituted, therefore. This order was legal.
5. Respondent No,3 requests for time to engage a counsel as according to him Mr. Khurram Shehzad Baig, Advocate was asked by him only to keep a watching brief. It is added that even he is not available today and he wanted to engage Malik Saeed Hassan, Advocate, who at the moment was abroad.
6. I have given my anxious consideration to the arguments advanced on behalf of the parties, gone through the record, relevant provisions of law and precedents. This petition was earlier fixed for 11- 7-1996 when it was deemed in the interest of justice to send for Deputy Attorney-General and in response to the Court call Sh. Maqbool Ahmad, learned Deputy Attorney-General appeared and he was directed to requisition the record as to the appointment of respondent No,3. The order has been complied and documents placed on record on 21-7-1996. In order to have a clear perception of the case it was also decided to send for Secretary, Punjab Bar Council as well as Deputy Registrar, N.I.R.C., Lahore. Mr. Muhammad Akbar Ali Bhatti, Secretary, Punjab Bar Council has appeared and his statement was recorded, according to which, respondent No,3 did his law graduation in year 1980 while he was enrolled as Advocate of the Lower Courts on 30-4-1984 and that of this Court on 25-5-1986. Before proceeding any further it is worthwhile to refer to the qualifications of Member of N.I.R.C. The same are contained originally in the notification dated 3-4- 1976, which read as under:-- "(ii) To be qualified for appointment as a Member of the Commission, a person shall be:
(a) a Joint Secretary to the Government of Pakistan.
(b) Secretary to a Provincial Government in the Labour Department
(c) A law graduate who has practised as an Advocate for not less than ten years; or
(d) An officer of the Federal Government or a Provincial Government who has, for not less than three years, held a post in Grade-19 of the National Pay has not. Less than the years 8 experience in the administration or interpretation of Labour Laws."
' However, clause (c) above was substituted by notification dated 12-2-1987. The inserted clause read as under:-- "(c) A person who has been, or is or has been qualified to be, sa Judge or Additional Judge of a High Court or"
' The qualifications of Judge of High Court are prescribed in Article 193(2), which reads as under:-- "(2) A person shall not be appointed a Judge of High Court unless he is a citizen of Pakistan, is not less than forty years of age, and--
(a) he has for a period of, or for periods aggregating, not less than ten years been an Advocate of a High Court (including a High Court which existed in Pakistan at any time before the commencing day); or
(b) he is, and has for a period of not less than ten years been, a member of a civil service prescribed by law for the purposes of this paragraph, and has, for a period of not less than three years, served as or exercised the functions of a District Judge in Pakistan; or
(c) he has, for a period of not less than ten years, held a judicial office in Pakistan.'
It is clear from the statement of Secretary Bar Council that respondent No,3 was enrolled as an Advocate on 25-5-1986, therefore, he was not qualified to be appointed as Member, N.I.R.C. On 25- 10-1995 as he was not having 10 years practice as an Advocate of the High Court to his credit.
7. Respondent No,3 applied for enrolment as an Advocate of the Lower Courts on 6-3-1984. The application was submitted in prescribed pro forma, which contained besides others following column:-- "Col. No,7. Whether he engaged in any business, profession or vocation in Pakistan, if so, the nature thereof and the place at which it is carried on?"
' The reply thereto was recorded as No, This way he successfully concealed that he was in service of National Bank of Pakistan and to cover up the same he submitted an affidavit dated 5-3-1984 and para. No,5 of which reads as under:- "That the deponent was running the construction business, during the academic period."
' The academic period according to this affidavit was from 1962, when he did his Matriculation to 1980, when he passed his LL.B. Examination. Thereafter, he applied for enrolment as an Advocate of the High Court. The same information was required. The only difference is that it was Column No,11, of the form prescribed for enrolment of an Advocate of High Court. The same was left blank while in the two certificates issued by Mr. Irshad Hussain Bhatti and Mr. Arif Iqbal Hussain Bhatti, Advocates he was shown as an Advocate and to same effect is his own affidavit dated 19-4-1986. He also did not divulge his termination from service in Column 13 of this form, where he has recorded categorical "No". This column is provided in pursuance of Rule 5.3 of the Punjab Legal Practitioner of the Bar Council Rules, 1974 and according to which an application by a person dismissed from service shall be accompanied by copy of charge-sheet, the statement of the charges, reply thereto, if any, by the applicant and final order. Respondent No,3 suppressed the factum of employment with the National Bank of Pakistan in order to show that he had been practicing as an Advocate of Lower Courts and to conceal his termination from service, which would have been considered by the Bar Council as adverse factors while processing his application for enrollment as an Advocate of the High Court. The Honourable Supreme Court in the judgment of Farhat Ali Khan (Supra) noted that Rule 175 of the Rules of 1976 prohibited the Advocates from carrying on any other profession or business or being active partners in or salaried officials or servants in connection with any such profession or business. It is clear from the record that he was not practising as an Advocate of the Lower Courts for two years before he applied for enrolment as an Advocate of the High Court. The same was manoeuvred deceitfully and cannot be considered legal. Therefore, the question arises whether respondent No,3 was the person qualified to be appointed as Judge of the High Court? The reply would be in negative.
8. This is not all. Respondent No,3 was serving as Officer Grade-II in the National Bank from where his services were terminated vide order dated 3-6-1986 and he was reinstated in service by the Review Board in 1990. The Bank Authorities .Asked him to report for duty vide letter, dated 19-6-1990.
If this period is also taken into consideration in the light of judgment of this Court in the case of Muhammad Siddique, Advocate (supra) then period in service has to be excluded from the actual period of practice as an Advocate. In the precedent case the appointment of Farhat Ali Khan, the then Chairman, Income-tax Appellate Tribunal was challenged on the same grounds. It is interesting to note that the qualification for appointment as Chairman, I.T.A.T. Is also same as that of a Judge of High Court. The relevant portion of the judgment reads as under:-- "8. After having given anxious consideration to the matter, we are clearly of the view that answer to this question has to be in the negative. The only reason advanced by the learned counsel for the respondent in support of the assertion that he had been an Advocate of 10 years standing was that respondent No,1 continued to remain as an Advocate even during the period of his service in Uganda, as during that period, his name had remained on the rolls of the Bar Council as an Advocate. We are unable to accept this argument, which on the face of it is fallacious. There is no warrant for the claim that even during the period respondent No,1 was in service in Uganda, he continued to remain as an Advocate of the High Court of Sindh and Balochistan."
' If the above rule is taken into consideration then even the enrolment of respondent No,3 as an Advocate on 25-5-1986 was not legal as till 2-6-1986 he was not practising as an Advocate of Lower Court but serving as Officer Grade-II in the National Bank of Pakistan.
9. The requirement of law is 10 years' practice as an Advocate, therefore, there is no merit in the argument of the learned counsel for the petitioner that one should be exclusively engaged in the High Court. The ratio decidendi of the cases of Chittarnjan, Cotton Mills Ltd., Pak Industrial and Minning Syndicate Ltd., Muhammad Siddique, Advocate, C.P. Agarwal v. C.D. Parikh (AIR 1970 SC 1061) and Farhat Ali Khan (supra) is the same. Above all the recent pronouncement of the Honourable Supreme Court in the case of Al-Jehad Trust through Raeesul Mujahideen Habib-ul- Wahab-ul-Khairi and 6 others v. Federation of Pakistan and 27 others (PLD 1996 SC 324) confirmed this view. The learned counsel for the petitioner rightly referred to the cases of Chittarnjan Cotton Mills Ltd. And Pak Industrial and Minning Syndicate Ltd. (supra). In the case of Chittarnjan Cotton Mills Ltd. (supra) the constitution of Labour Court was challenged. The objection was upheld and the proceedings before the Labour Court were declared coram non judice due to Labour Court being not properly constituted. Similarly, in the case of Pak Industrial and Minning Syndicate Ltd.
(supra) the appointment of Presiding Officer Labour Court was challenged. The Karachi High Court after examining the law and facts up to date accepted the petition. The appointment of respondent No,1 was declared without lawful authority. It is made clear that the question of vires of the two notifications prescribing the qualification would be dealt with in appropriate case.
10. It is clear from the record produced by learned Deputy Attorney-General that Labour Manpower and Overseas Pakistanis Division as well as Establishment Division, Government of Pakistan dealt with the case of appointment of respondent No,3 in a most careless and casual manner while not caring to ascertain whether the said respondent possessed qualification for appointment as Member of N.I.R.C. Or not. It is interesting to note that the said respondent claimed membership of Lahore High Court since 1986 in his biodata available in the documents produced on behalf of Federal Government.
' In this view of the matter, the objection raised by petitioner is upheld and appointment of respondent No,3 as Member of N.I.R.C. Is declared illegal and without lawful authority.
11. Now coming to the second limb of arguments that the appeal against the order of Single Bench of the Commission is to be heard by a Full Bench, which term has been defined in section 22-B(2), which reads as under:--
(2) For the efficient performance of the functions of the Commission, the Chairman shall constitute---
(a) a Full Bench of the Commission which shall consist of not less than three members of the Commission; and
(b) as many other Benches of the Commission consisting of one or more members of the Commission as he may deem fit."
' The argument is that the Bench is to be constituted by the Chairman of the Commission and a Full Bench shall not consist less than three members. On the other hand, the argument initially was that a Bench once constituted would remain properly constituted even if a Member is absent or not available. In this behalf, reference was made to subsection (4), which reads as under:-- "(4) If any member of the Commission is absent from, or is otherwise unable to attend any sitting of the Commission or of a Bench consisting of more than one member of which he is a member, the proceedings of the Commission or Bench may constitute and the decision or award may be given or judgment or sentence may be passed in the absence of such member and no act, proceedings, decision, or award of the Commission or Bench shall be invalid or be called in question merely on the ground of such absence or of the existence of vacancy in or any defect in the constitution of the Commission or Bench."
' The learned counsel for the petitioner rightly referred to clause (b) of subsection (2), as reproduced above. This subsection deals with the Benches other than Full Bench. I am in agreement with the learned counsel for the petitioner that it shall not consist of less than three Members because if the other argument is accepted then if two Members are absent then single Member sitting would have to be deemed as a Full Bench as in this case Mr. Muhammad Hussain Chaudhry, Member did on 10-4-1996. The cardinal principle of interpretation is that all provisions of a statute are to be read in harmony and at the same time absurdity is not to be attributed to the Legislature. Subsection (4) deals with the Benches constituted under subsection (2)(b), as reproduced above and not Full Bench. The interpretation put by respondents violates written word of the statute. Subsection (4) deals with Benches constituted by Chairman where the number of Members has not been specified by the statute itself.
12. The other argument that at least on 3-7-1996 Bench was properly constituted, therefore, that order is legal. Once it is held that the order, dated 11-4-1996 is without lawful authority and passed by not a legally constituted Bench then the same could not be confirmed by even a properly constituted Bench. Moreover, the second Bench was not properly constituted as respondent No,3 was Member of the same. Therefore, both the orders i,e, 11-4-1996 and 3-7-1996 are liable to be set aside.
13. Now coming to the request of respondent No,3 for an adjournment of the matter for a date after vacation. The same is disallowed for the following reasons:--
(i) That the writ petition was admitted to hearing on 17-4-1996 and the notices were issued to the respondents for 14-5-1996 (A.D.). Mirza Khurram Shahzad Baig, Advocate appeared on behalf of respondent No,3 on 11-6-1996. The respondent admits having instructed him but states that he was only holding watching brief. It was a notice case, therefore, the plea is incorrect. This is not all. The petition was fixed for 21-7-1996 and the said counsel made a request in writing for an adjournment to any other date as he has to go out of station to attend an important family matter. Request was granted and the petition was adjourned to 22-7-1996. This negates the story of watching brief.
(ii) The factual controversy became clear with the statement of Secretary, Punjab Bar Council, therefore, it is unjust to allow a person, who lacks basic qualification to hold a public office to continue even for a day. There is no justification to grant further adjournment.
(iii) As an abund and caution this Court directed issuance of a notice to respondents Nos.1 to 3 telegraphically for 21-7-1996. The same were sent as per receipt on 18-7-1996; and
(iv) As early as on 14-5-1996 this Court passed following order:-- "... ...Now the main writ petition to come up on 11-6-1996 for final arguments. This order to be conveyed to respondents Nos.1 to 3. This C.M. Should also be taken up along with the main petition." and as per record notices were accordingly issued. The service is proved as Mirza Khurram Shahzad Baig, Advocate has appeared on behalf of respondent No,3 on 11-6-1996.
15. The upshot of the above discussion is that this writ petition is accepted with costs. The result is that the appointment of respondent No,3 as Member, N.I.R.C. Is declared without lawful authority and void ab initio and as result thereof orders dated 11-4-1996 and 3-7-1996 passed by the N.I.R.C.
On the appeal of respondents Nos.4 to 6 are also declared without lawful authority and jurisdiction, therefore, set aside.