P L D 1984 Peshawar 215 (PLP)

FAIZ MUHAMMAD KHAN, J.‑There is functioning at Dargai in Malakand Agency an Establishment called Dargai Vegetable Oil Processing Industries, Dargai (hereinafter referred to as the the Establishment), The Excise and Taxation Officer, Malakand Division (hereinafter referred to as the Prescribed Authority) issued a notice to the Manager of the Establishment to show cause as to why for the failure to deposit the education cess which had become payable under the Workers' Children (Education) Ordinance, 1972 (herein after referred to as the Ordinance) a penalty not exceeding the amount of the cess remaining unpaid be imposed on the Establishment. Thereafter many letters were exchanged between the Prescribed Authority and the Establish ment. the stand of the former being that the education cess was leviable in accordance with the prescription contained in the amended law and the stand of the latter being that since the amending Ordinance was not applied to Malakand Agency the education cess could not be levied in accordance with the amended law. Each party continued insisting upon its stand, and finding no other remedy available the Establishment filed this constitutional petition calling in question the demand of the education cess made by the Prescribed Authority from the Establishment as being without lawful authority and of no legal consequence.

2. The main grounds urged in this petition were that the Governor of the North‑West Frontier Province, and not the President of Pakistan, had the jurisdiction to apply the Ordinance to the Provincially Administered Tribal Areas, which included Malakand Agency where the Establishment is situated, and that the Ordinance having been applied to that area before it was amend ed by Act XXIV of 1973, it could not be applied and implemented in that area in the‑ amended form. It was, therefore, asserted that the Ordinance having been applied by the authority having no jurisdiction was inapplicable in Malakand Agency, and if at all it became applicable, it was applicable in unamended form.

3. In their written comments the respondents, however, asserted that the Ordinance was applied to that area in amended form by the authority having jurisdiction to do so and that the education eess leviable under the Ordinance was recoverable from the Establishment.

4. Qazi Muhammad Anwar, Advocate appeared on behalf of the petitioner and Mr. Bashirullah Khan, Assistant Advocate‑General appeared on behalf of the respondents.

5. Before us, however, the first contention raised by the learned counsel for the petitioner was that since the Workers' Children (Education) (Amend ment) Act, 1973 (Act XXIV of 1973), whereby sections 3 to 5 of the Ordinance were substituted by new sections 3 to 6, was not applied to the Provincially Administered Tribal Areas in accordance with the relevant constitutional provisions, the Ordinance, did not come into force in that area in its amended form. For that reason, he contended, the education cess could neither be demanded nor recovered by the Prescribed Authority from the Establishment. His other contention was that even if it be assumed that the amendments made in the Ordinance by the Workers' Children (Education) Amendment Ordinance, 1972 (Ordinance L of 1972), which are identical with the amendments made by Act XXIV of 1973, were applied to that area, then by the repeal of Ordinance L of 1972, by section 4 of Act XXIV of 1973, those amendments became inoperative in that area, with the result that the Ordinance in its original form stood revived, and for that reason the education cess as demanded by the Prescribed Authority was not recoverable from the Establishment.

6. In order to appreciate the arguments of the learned counsel for the petitioner it would be necessary to give brief history of the relevant legislation as it came into force and as it was applied to the Provincially Administered Tribal Areas.

7. The Ordinance was brought into force on the 13th day of April, 1972. This date was prior to the coming into force of the Interim Constitution of the Islamic Republic of Pakistan (hereinafter referred to as the Interim Constitution). Since the present controversy relates to the amended provisions of section 3 of the Ordinance, it would be useful to reproduce hereunder sec tion 3 as it stood before amendment : "

3. Education of workers' children.‑(1) Every employer of an estab lishment (i) in which the number of workers employed in any shift at any time during a year is one hundred or more ; (ii) the paid‑up capital of which as on the last day of its year of account is twenty. lakh rupees or more ; (iii) the value of fixed assets of which (at cost) as on the last day of its year of account is forty lakh rupees or more ; or (iv) which belongs to a class of establishments specified in this behalf, by notification in the official Gazette, by the Provincial Government. shall provide education free of cost up to matric to one child of every worker employed in that establishment, who desires a child of his to receive such education. (2) Education to be provided free of costs under subsection (1) shall be such education, involving such cost as may be prescribed by rules made under section 44." This section 3 was later amended by the Workers' Children (Education) (Amendment) Ordinance, 1912 (Ordinance L of 1972), which had come into force on the 16th day of November, 1972, and after such amendment it stood asunder :‑‑ "

3. Levy of education cess.‑(1) Every employer of an establishment in which the number of workers employed at any. time during a year is twenty or more shall pay to the Provincial Government an education cess at the rate of one hundred rupees per worker per annum. (2) Every employer shall, within every three months beginning from the first day of the calendar month following the commencement of this Ordinance, prepare and deliver, or cause to be prepared and delivered, in the form and to the officer prescribed by the Provincial Government, a return showing the number of workers employed in the establishment during the preceding quarter and shall subscribe a declaration of the truth of the return at the foot thereof. (3) The levy of education cess shall be on the basis of the number of workers shown in the return referred to in subsection (2)." By that time the Interim Constitution had come into force in the country and the amending Ordinance was, therefore, made by invoking relevant constitutional provisions. Since the Ordinance in its original or amended form did not automatically apply to the Provincially Administered Tribal Areas, the President, by invoking the provisions of clause (4) of Article 261 of the Interim Constitution, by means of the Provincially Administered Tribal Areas (Application of Laws) Regulation, 1972 (Regulation 1 of 1972) applied, on the 28th day of November, 1972, besides other laws, the Ordinance to the Provincially Administered Tribal Areas of N.‑W. F. P. and Baluchistan. This would mean that the Ordinance as it stood on the 28th day of November, 1972 was applied, with effect from the said date, to the area where the Establishment is situated, and on that date the Ordinance, undisputedly had stood amended, having been amended by Ordinance L of 1972 which had come into force on the 16th day of November, 1972, as already mentioned. The National Assembly of Pakistan later passed an Act called the Workers' Children (Education) (Amendment) Act, 1973 (Act XXIV of 1973), which became law after receiving the assent of the President on the 9th day of February, 1973. By this Act the amendments made in the Ordinance by Ordinance L of 1972 were re‑enacted and Ordinance L of 1972 was repealed. This amending Act has, however, not been applied to the Provincially Administered Tribal Areas.

8. Wish this legislative background in mind, we can now deal with the arguments of the learned counsel for the petitioner. His first contention is without substance. We have seen that when the Ordinance was applied by the President to the Provincially Administered Tribal Areas, by Regulation 1 of 1972, the relevant section 3 of the Ordinance had already stood amended by Ordinance L of 1972. Obviously, therefore, the Ordinance was applied to the area in which the Establishment is situated in its amended form. Act XXIV of 1973 had only re‑enacted those amendments which were carried out by Ordinance L of 1972 in the principal law and such legislation had A become necessary because of other constitutional provisions, which were not relevant in so far as the Tribal Area was concerned. To conclude, therefore, relevant section 3 in the Ordinance was applied to the Provincially Administered. Tribal Areas in its amended form and the education cess leviable there. Under could competently by recovered by the Prescribed Authority from the Establishment.

9. The other contention of the learned counsel for the petitioner is also without force. The fact of the matter is that Act XXIV of 1973 has not been applied to the Provincially Administered Tribal Areas. The learned counsel for the petitioner has also so contended. If that Act has not been applied to that area, then none of its provisions would be applicable to that area, and so would be inapplicable section 4 thereof which repealed the amending Ordinance L of 1972. Such repeal, therefore, had no effect in that area. Even otherwise, the principle is that the repeal of the amending law does not affect the continuance of the amendment made by the enactment repealed, unless the repealing law intends otherwise. This principle is embodied in section 6‑A of the General Clauses Act, 1897.

10. In the result, there being no substance in this writ petition, it is hereby dismissed with costs. M. Z. M. Petition dismissed.