' These are appeals against the decisions dated 28-7-1977 of Punjab Labour Court No, 2, Lahore.
2. The services of Mr. A. T. Chaudhry, respondent, the Editor of Pakistan Times, were terminated on 28-9-1974 by Kb. M. Asif, the then Chief Executive of the Progressive Papers Ltd. And also the Chairman of the National Press Trust. The said order was conveyed to him on 26-11.1974. Mr. Ahmad Azle Zia, respondent, who was holding the post of General Manager in the Progressive Papers Ltd.
Was retired from service with effect from 7-12-1974, as the post of General Manager had been abolished. The services of Mr. Haroon Saad who was holding the post of Editor in the Daily Imroze, were terminated vile order dated 28-9-1974. All the respondents filed separate petitions under section 25-A of Industrial Relations Ordinance, 1969 for re-instatement with back benefits before the Labour Court, which passed the following order dated 28-7.1977 in each of the petitions :- "I have heard the learned counsel for the petitioner at length. Mr. Abdul Ghani Incharge, Litigation, P.
P. L. Has shown his inability to argue the case, so I accept the petitions. The detailed order with reasons would be dictated on 31-7-1977. None has turned up on behalf of the respondents to argue the case till 12-15. Learned counsel of the petitioner has made a statement that he has been told by a friend of his, who has come from the Punjab Labour Appellate Tribunal that Hon'able Tribunal has worked today, an his statement at the bar may be corrected to that extent."
3. Against that order, which was orally announced, the Progressive Papers Ltd., preferred three separate appeals on 2-8-1977. The Tribunal directed the counsel for the appellant to filo certified copies of the detailed orders as soon as they were supplied to him. The Tribunal also o passed the order, "status quo meanwhile", in each of the appeals. On 17-8-1977 the certified copies of the detailed orders were filed. According to these orders, the petitions of three respondents were accepted and they were ordered to be re-instated with back benefits. The Tribunal admitted the appeals and notices were ordered to be issued to the respondents. The operation of the detailed orders so far as back benefits were concerned, was suspended.
4. Since the point of law involved in all those appeals is the same, they will be disposed of together by one judgment.
5. The learned Counsel for the respondents raised preliminary objections, which will be taken up one by one.
6. It was contended that the memorandum of appeals and the power-of-attorney in favour of Mr. D. M. Awan, Advocate, were signed by Mr. Meer Babar who was not the Chief Executive of National Press Trust at the relevant time, and as such the appeals were not competent. In order to ascertain as to whether Mr. Zaheer Babar was the Chief Executive on 2.8.1977, additional evidence was ordered to be recorded. According to the statement of Sh. Rahmat Ullah, Controller of Finance, Progressive Papers Ltd., Mr. Zaheer Babar was appointed the Chief Executive of Progressive Papers Ltd., on 22-1.1975, and his resignation was accepted on 9-8-1977. Therefore, in view of above, it is clear that Mr. Zaheer Babar was the Chief Executive on the date when the appeals were filed.
7. On 16-7-1974, Kb. M. Asif took over charge as Chairman and Chief Executive of National Press Trust. On 22-1-1975, he passed the following Office Order :- ' It hereby, authorise Mr. Zaheer Babar, Chief Editor of Imroze and Chairman of the Local Management Committee to exercise the day to day functions and authority of Chief Executive."
8. When, the case came up before the Labour Court, the power-of-attorney in favour of Mr. D. M.
Awan was signed on 15-34975 by Kh. M. Asif and not by Mr. Zaheer Babar. It was, therefore, contended that since Mr. Zaheer Babar was a delegatee, he could not further sub-delegate his powers and authority and as such he could not have executed the power-of-attorney and that is why it was Kb. M. Asif and not Mr. Zaheer Babar, who had in the first instance executed the power- of-attorney in favour of Mr. D. M. Awan. In other words, the authority if any conferred upon Mr. Zaheer Babar by order dated 22-1-1975 did not include the power to authorise litigation on behalf of Progressive Papers Ltd. From the perusal of the record, I find that Mr. D. M. Awan, the counsel for the appellant. By virtue of Vakalatnama executed in his favour on 15-3-1975 by Kh. M. Asif, had also sufficient authority to sign or file appeals. In the case of Raman and others v. Allah Dlwaya it was observed "Order III, rule 4, clearly provides that every appointment of a pleader shall be filed in Court and shall be deemed to be in force until all proceedings in the suit are ended so far as the client is concerned. In these circumstances there can be no doubt that Mr. Mastafa Khan has been rightly representing the appeal in this Court on the basis of his Vakalatnama in the lower Appellate Court, as evident from the concluding words of Order III, rule 4.
9. In the case of Rasul Shah v. Diwan Chand it was observed : "Order III, rule 4 (2), Civil Procedure Code, provides that every appointment of Pleader shall be bled in Court and shall be deemed to be in force until all proceedings in the suit are ended so far as the client is concerned. So where a Pleader validly represents a party in the trial Court, be can present a memorandum of appeal on behalf of his client and prosecute the appeal in the lower appellate Court".
10. In the case Kura v. Udaml it was observed :-"The presentation of an appeal by a pleader, who held a power-of-attorney, which expressly authorised him to present the appeal, was held valid presentation though the power was not filed with the appeal".
11. In the case of Mst. Aziz Begum v. Piran Ditta appeal was filed by an Advocate on verbal instructions of counsel duly authorised to filo the appeal. The appeal was dismissed as having been filed by an Advocate who had no power-of-attorney. The order of dismissal was held to be illegal.1 2 3 4
12. In the case of Jhanam Lal v. Paima Nand it was observed, "Where a post-card authorising the pleader to file the appeal is stitched to a blank sheet on which court-fee labels of requisite amount are affixed, the document constitutes a valid power-of-attorney so as to enable the pleader to file the appeal."
13. In the instant cue as already mentioned above, the Vakalatnama in favour of Mr. D. M. Awan on 15-3-1975 was signed by Kh. M. Asif, the Chairman of National Press Trust and Chief Executive of Progressive Papers Ltd., who was authorised to do so in view of Martial Law Order No,
35. An appeal is said to be a continuation of a suit or is included within the word "suit". The institution of suit carries with it the Implication that all rights of appeal then in force are preserved to the parties till the rest of the career of the suit. The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced. I am fortified in this view by the judgment in the case of Jumma Khan v. M. Gul Ferosha.
14, In the case of Din Mohammad v. Bidayat Hussain it was held that an appeal is the transference of a case from an inferior Court to a higher Court or Tribunal in the hope of reversing or modifying the decision of the former.
15. In the case of Sri Lakhsh ni Narayan and others v. Sri Suresh Lal Ch2kraborti and others it was observed: "The whole case was brought by the plaintiff and contested at the instance of the defendants and then adjudicated upon by the original Court comes before an appellate Court for a proper disposal in relation to its entire aspects and not to a partial view of the matter. The test, in my view, is that an order of an appellate Court in setting aside or modifying the decision of an inferior Court becomes binding, and not only in the case of an affirmance, but also in the case of modification or reversal of the judgment and decree passed by an original Court become merged in the corresponding judgment and decree of the appellate Court. In my view, therefore, the litigation which starts at the instance of the plaintiff and continues as a contested one up till the highest Court is kept alive at the instance of the parties from one stage to another, that it is to say, the cause of action which is said to have given rise to the subject-matter of the suit is kept alive and becomes the subject-matter of consideration and adjudication in the hands of the appellate Court. I am, therefore, inclined to think that although for ordinary purposes the proceeding may be characterised as an appeal yet the substance of the B proceeding which starts at one stage in the suit continue to be so, though at the subsequent stage it might be called an appeal.
18. In the instant cases the Vakalatnama given by Kb. M. Asif to Mr. D. M. Awan continued to be in force and could only be terminated with the leave of the Court by a writing signed by the client or the Pleader. The appointment of Mr. D. M. Awan as pleader was never terminated as required under the law. The other Vakalatnama by Mr. Zaheer Baba, Resident Chief Executive of Progressive Papers Ltd., would not make any difference and was a mere duplication. No adverse inference can be drawn from it. In view of the above the preliminary objection has no force.
17. The learned counsel for the respondents raised another preliminary objection that the appeals were not filed against the decision dated 31-7-1977 but were filed against the decision, which was verbally announced on 28-7-1977, which in the eye of law was no decision and as such there was no appeal.
18. In this connection, he relied on the judgment of the Lahore High Court in the case of Nisar Ahmad v. Presiding Officer, Punjab Labour Court No, 2 and another wherein it was observed : "The ratio decendi of the above judgment appears to be that if law requires that the judgment should be in writing, be announced publicly and signed, then an oral order may be merely an intention of the Court as to what judgment is going to be but that certainly is not a valid, operative and a final judgment in the eye of law. That judgment can be altered at any time before it is announced and signed and even fresh proceedings can be started." From the perusal of the record, I find that the5 6 7 8 9 appeals were filed on 2-8-1977 against the decision dated 28-7-1977, which was orally announced and not against the decisions dated 31-7-1977. On 17-8-1917, when the certified copies of the written judgment dated 31-7-1977 were filed, additional grounds of appeals were also filed. It was not mentioned that the appeals were filed against the written judgment dated 31-7-1977. In view of the above, I uphold the preliminary objection and held that the appeals were not competent.
19. Since the written judgment dated 31-7-1977 has come to my notice during the course of arguments in these appeals the point for determination is as to whether the said judgment is revisable or not. In this connection, it will be convenient to reproduce section 38 (3-a) of Industrial Relations Ordinance, 1969. It reads as under :- ' The Tribunal may, on its motion at any time, call for the record of any case or proceedings under this Ordinance in which a Labour Court within its jurisdiction has passed an order, for the purposes of satisfying itself as to the correctness, legality or propriety of such order and may pass such order in relation thereto as it thinks fit: ' Provided that no order under subsection shall be passed revising or modify any order adversely affecting any person without giving such person a reasonable opportunity of being heard."
20. In view of the above, the said judgment is revisable by the Tribunal.
21. under section 38 (3-a) of the Ordinance the Tribunal has any vast powers to call for the record of a case or proceedings suo moto or on the application of any person and examine the matter, it can pass any appropriate order, which may be called for. Under the law, a revision can also be filed by a person, who is not a party to the case. Now the record is before me I can treat the appeal as revision and if necessary to pass any appropriate order, in view of the legal position.
22. During the course of arguments, In those appeals, the aforementioned Judgment was discussed and both the parties advanced arguments as to whether the judgment was a valid judgment in the eye of law or not, therefore, the respondents had reasonable opportunity of being heard and so fresh is not necessary.
23. Now the next point for determination is as to whether these appeals can be treated as a revision against the judgment dated 31-7.1977.
It is well settled law that when an appeal is incompetent, or not maintainable, it may be treated as a revision. Powers given to the Tribunal uncle section 38 (3-a) of Industrial Relations Ordinance, 1969 are much wider than F those given in section 115, C. P. C. In the case of Ghularn Ali v. Nawaz Ali and 2 others it was held : "That a revision application may be treated as appeal and vice versa."
24. In the case of Fareed Majeed and another v. Mohammad Nawab it was held that when an appeal preferred in a case is not appealable, the appeal may be treated as application for revision.
25. The same view was expressed in the cases of Faqir All v. Mohammad Hayat, Mohammad Sharif Khan v. Gohar Khan.
26. Now the next point which arises is as to whether the judgment dated 31-7-1977 is a valid judgment in the eye of law. In this connection, it will be appropriate to reproduce section 37 of Industrial Relations Ordinance, 1969, which reads as under :- "An award or decision of a Labour Court shall be given in writing and delivered in open Court and two copies thereof shall be forwarded forthwith to the Provincial Government provided that if the Federal Government be a party, two copies of the award or decision shall be forwarded to that Government as a whole."
27. The learned Labour Court after orally accepting the petitions and closing the proceedings, proceeded to dictate the judgment on 31-7-1977, which was not given in writing, publicly announced and signed in the open Court as required under the law. Therefore, it was not a valid judgment in the eye of law. I am fortified in this view by the judgment of the Lahore High Court in the case of Nisar Ahmad v. Presiding Officer, Pulp& Labour Court No, 2 and others in which the10 11 12 13 provisions of section 37 of Industrial Relations Ordinance, 1969 were held to be mandatory. The learned counsel for the respondents, on the other hand, contended that the provisions of section 37 of Ordinance were directory and not mandatory, because the language was affirmative and not negative. In support of his contention, he relied on the judgment of the Supreme Court in the case of Atta Mohammad Qureshl v. The Settlement Commissioner, Lahore Division, Lahore and 2 others wherein it was observed :-"It is well settled that the neglect of the plain requirements of a statutory enactment, which prescribes how something is to be done, will invalidate the thing being done in some other manner if the enactment is absolute but not if it Is merely directory. The real question which thus arises for consideration is when an enactment is to be considered as absolute and when as merely directory? It is not possible to lay down a general rule of universal application in this behalf, but the one which is suggested by reported authorities in this connection is the affirmative or negative character of the language in which the provision is couched. If it is negative, that is to say, if the statute enacts that certain action shall be taken in a certain manner and in no other manner, it has been held that the requirements are absolute and that neglect to attend them will invalidate the whole procedure. If, on the other hand, language is affirmative, it may be considered as a directive provision. Nonetheless, it appears that in several reported English cases, it has been held that enactment, prescribing the formalities which are to be observed for validating an action, are not absolute, although expressed in a negative or prohibitory language. A. a general rule, statutes, which enable persons to take legal proceedings under certain specified circumstances, demand that these circumstances must be accurately obeyed notwithstanding the fast with the provisions thereof are expressed in merely affirmative language".
28. This ruling does not help the respondents because it has been held that it is not invariable rule that to be mandatory, a provision must be in negative terms and that an affirmative provision may be mandatory. In paragraph 2 on page 71 of the said ruling, it was observed: "One other principle which has been enunciated in this behalf is that as a general rule, statutes which enable persons to take legal proceedings under certain specified circumstances demand that these circumstances must be accurately obeyed, notwithstanding the fact that the provisions thereof are expressed only in affirmative language. At page 226 of Craise Statutory Laws, VI Edition, this rule is stated thus: "That when a statute confers jurisdiction upon a Tribunal of limited authority and statutory origin, the conditions and qualifications annexed to the grant must be strictly applied." The affirmative rule was thus held to be mandatory in this case. The learned counsel for the respondents also relied on the judgment of the Supreme Court in the case Mn. Nawab Mai v. Mst. Rafeeq Bano. This Judgment does not lay down any specific rule but only says that to determine the mandatory or directory nature of a provision the act should be looked at as a whole with reference to the significance and object of the act. The learned counsel for the respondents also relied on the case of Firm Gokal Chand Jagan Nath v. Firm Nand Ram Das-Atma Ram in which it was held that rule 31 of Order XLI, C. P. C. Does not say that if its requirements are not complied with, the Judgment shall be a nullity. This case does not in any way advance the case of the respondents as in this case the judgment of the Division Bench could not be signed by Mr. Justice Harrison through oversight before he proceeded on leave, but it was pronounced in his absence by Mr. Justice Agha All Haider, the other member of the Bench. The true factor on which the omission was condoned as observed by Privy Council was that the defect of not signing the judgment by the second Judge when it had been signed by one High Court Judge was cured by sections 99 and 108 of the Code of Civil Procedure. Furthermore these provisions of C. P. C. Only apply to appeals, if the appellate Court has not failed to apply its mind.
29. On the other hand, in the case of Alhaj Abdul Rab v. Mubarak Ullah and another it was observed : The word "employed" in subsection (1) of section 2-11, Cr. P. C., is "shall", which is normally mandatory and there are number of decisions, which have taken the view that the failure to ask an14 15 16 17 accused person to give his list of witnesses would vitiate the proceedings and render them liable to be quashed.
30. In the case of Mohammad Hakim Meah v. Hafts-Ullah Dhuni and others it was observed : 'Enactments regulating the procedure in Courts are usually imperative and not merely directory. If, for instance, a right of appeal is given with provisions requiring the fulfilment of certain conditions, such as giving notice of appeal and entering into the recognizance or transmitting documents within a certain time, strict compliance with these provisions would be imperative and non- compliance would be fatal to the appeal,".
31. It is well established that if law prescribes a particular mode of doing an act, it must be done in that mode to gain validity. In the case of Col. Basheer Hussain and 10 others v. Land Acquisition Collector, Lahore Improvement Trust, Lahore and 2 others it was held : "It is an accepted principle of law that if the statute requires something to be done and also prescribes the mode for doing it the requirements of law can be fulfilled by doing the act, in the manner prescribed."
32. In the case of Nazeer Ahmad v. King Emperor it was observed : "The rule which applies is a different and not less well-recognised rule, namely, that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all other methods of performance are necessarily forbidden." In the case of Khula Abbas v. State it was held : "It is well settled that where a power is given to a particular person to do a certain thing in a certain way, the thing must be done in that way or not at all; other methods of performance are necessarily forbidden. In the case of Mohammad Sharif v. Sh. Mohammad Rafiq, Settlement & Rehabilitation Commissioner, Lahore and 2 others it was held that when a particular act is directed by the Legislature to be done in a particular manner it should be done by that and that manner alone.
33. In the case of Chairman, Evacuee Trust Property', West Pakistan, Lahore v. Mohammad Diu and another it was held : "Whenever a statute limits a thing to be done in a particular manner it necessarily includes in itself a negative viz., that the thing shall not be done otherwise."
34. In the case of Mit. Sardar Begum v. Lahore Improvement Trust, Lahore it was held that when law requires a particular thing to be done in a particular way, the provisions of such law must be complied with. Failure to do so renders proceedings invalid.
35. In the case of Man Abdul .Majecd and 7 others v. The Chkf Administrator of Auqaf, West Pakistan it was held that when Legislature intends a thing to be done in a particular manner, the thing must be done in that and in no other manner.
36. In the case of Ghulam Abbas v. The Additional Commissioner and Election Tribunal, Khairpur firs and three others it was held that when a statute provides a thing to be done in a particular manner, it is to be done in that manner or not at all."
37. In the case of Mohammad Ashraf and another v. State it was held that a power given to do a certain thing in any certain way must be done in that way or not at all."
38. The upshot of the whole discussion is that the decisions date 31-7-1977 were in a contravention of section 37 of Indu3trial Relational" Ordinance, and as such were nullity in law.
39. In the result, I accept all there revisions, set aside the decisions of the Labour Court and remand the cases back to it for decision in accordance with law. PLD 1953 B .1 45 AIR 1936 Lah. 583 AIR 1925 Lab. 331 PLD 1967 Lab. 807 AIR 1951 All. 451 PLD 1972 Pesb. 1 PLD 1968 Lah. 20718 19 20 21 22 23 24 25 26 27 1 2 3 4 5 6 7 PLD 1964 Dacca 177 PLD 1976 Lab. 1162 PLD 1975 Kar. 1090 PLD 1976 Kar. 891 PLD 1976 Lah. 298 PLD 1967 Pah. 25 PLD 1971 SC 61 PLD 1971 SC 481 A 1 R 1938 P C 292 PLD 1971 SC 857 PLD 1960 Dacca 114 PLD 1970 Lah. 321 AIR 1936 PC 253 PLD 1968 Lah. 101 PLD 1968 Lab. 263 PLD 1971 Lab. 217 PLD 1972 Lab. 458 PLD 1972 Lab. 66 PLD 1965 Kar. 625 1971 P Cr. L J 985