1996 PLP (C (PLC(CS))

.....The deeming clause in an enactment is introduced for something supposed to exist retrospectively which, in fact, did not exist prior to the introduction of such a clause. This is a legal fiction but the Courts have to give effect to this fiction ignoring the factual position obtaining prior to the introduction of the deeming clause. So unless the context provides otherwise all the consequences that flow from such a clause have to be recognised and acted upon. At this stage we would like to refer to a few authorities which deal with the effect of change of substantive law during the pendency of an appeal .....................

11. After laying down the rule as aforesaid its effect was summarised as follows:‑‑ "Judging against the principles elaborated in the above authorities we find that by virtue of section 3 of the IV Amendment Act the substitution of the term Naturalisation" for the term Nationalisation" in Schedule III of the Constitution Act is to take effect retrospectively. Since appeal is a continuation of the suit leaving the rights of the parties not finally decided this amendment will have effect retrospectively on the appeals pending in this Court. We do not find any force in the contention of the learned counsel for the respondents that the IV Amendment Act should be construed to have retrospective effect only up to the date of its assent and not before. A cursory glance at he preamble of the IV Amendment Act shows that the amendment was introduced in the Azad Jammu and Kashmir Interim Constitution Act, 1974 (Act VIII of 1974) and as such the deeming clause will take effect from 24th August, 1974 when Act VIII of 1974 received the assent of the President. We also do not agree with the contention that because of absence of non‑obstante clause or validating clause in section 3, the amendment is inoperative retrospectively. In view of this we uphold the contention of the learned Advocate‑General that because of the IV Amendment Act the term 'Naturalisation' is to be read in place of 'Nationalisation' retrospectively rendering the Timber Trade (Nationalisation) Ordinance Act as quite valid and intra vires of the legislative powers of the President and the Assembly."

12. As a consequence it was held that because of the IV Amendment Act the Timber Trade (Nationalisation) Ordinance/Act had been validated and was intra vires of the legislative powers of the President and the Assembly. The judgment clearly lays down that an act without jurisdiction can be validated by retrospectively amending the relevant law even if it adversely affects the existing rights. It also lays down that for validating a coram non judice act retrospective amendment is sufficient and no validation clause is necessary.

13. We now turn to the case‑law cited by the learned counsel for the respondent. In the case of Sardar Sikandar Hayat Khan it was held that a person is normally to be punished according to law as applicable when action started. It was also held that right of appeal is a substantive and‑ vested right and that law cannot be altered to take away such a right. This Court also laid down the rule that where two interpretations are possible statute should be interpreted as prospective and not retrospective. It was a case under the Holders of Representative Offices (Disqualification) Ordinance, 1979 under which a reference containing certain charges against Sardar Sikandar Hayat Khan was made to a Disqualification Tribunal set up under the aforesaid Ordinance. There was a difference of opinion between the two members of the Disqualification Tribunal. In pursuance of a provision contained in the Ordinance the case was referred to the Chief Justice of Azad Jammu and Kashmir for decision, but, before the case could be posted for hearing, the Ordinance was amended to provide that in case of difference of opinion the case would be referred for decision to the Supreme Court of Azad Jammu and Kashmir. When the case came up for hearing before this Court the amendment mentioned above was challenged by the learned counsel for Sardar Sikandar Hayat Khan for various reasons. One of the grounds was that appeal provided to the Supreme Court from the order of the Disqualification Tribunal had been rendered futile by the amendment under reference because it was not possible to challenge the decision of the Supreme Court before the Supreme Court. This Court treated the amending provision as non-existent after holding that right of appeal conferred by existing law could not be taken away. We have examined the Holders of Retrospective Offices (Disqualification) (Amendment) Ordinance, 1979, promulgated on 14th of November, 1979 by which the words "Chief Justice" were substituted by the words "Supreme Court". The Ordinance came into force at once and did not contain a provision indicating that it would apply retrospectively or, in other words, to the cases of disagreement, which had already been referred to the learned Chief Justice. In these circumstances well settled principles that a case has to be decided according to the law, as it existed when the action began and that a right of appeal is a substantive right were fully attracted. Another rule of interpretation which .was considered applicable was that statute had been interpreted as prospective and not retrospective. The facts of the precedent case were entirely different from the present case where there is a clear provision in the amending law that it will have retrospective effect. It may not be out of place to point out that the judgment in Kashmir Timber Corporation case was neither cited nor considered in Sardar Sikandar Hayat Khan's case. It also seems appropriate to observe that in that judgment various earlier judgments from different jurisdictions were relied and copious quotations were reproduced. In almost all of them it was held that a substantive right, including the right of appeal, could be taken away by express enactment or necessary intendment. These judgments includes Delhi Cloth and General Mills Company Ltd. v. Income Tax Commission (AIR 1972 P.C. 242), Nagendra Nath Bose v. Mon Mohan Singha Roy (AIR 1931 Cal. 100), Ata‑ur‑Rehman v. Income‑tax Commissioner (AIR 1934 Lah. 1013), Peoples Bank of Northern India v. Wahid Bux (AIR 1943 Lah. 170), Ghazi and others v. The State (PLD 1962 Lah. 662) and Nabi Ahmad and another v. Home Secretary, Government of W.P. (PLD 1966 Lah. 966). In these circumstances the judgment of this Court in "Referring Authority" v. Sardar Sikandar Hayat Khan" is applicable only to the facts of that case, the most conspicuous being that the change of law had not been given, expressly or impliedly, retrospective effect. The judgments mentioned above also fortify the principle of law laid down in Kashmir Timber Corporation case.

14. Karam Hussain's case arose in the following circumstances. Respondent Basharat Hussain was being tried for the offence of murder before the Court of Sessions Judge. This was being done in pursuance of subsection (2) of section 24 of the Islami Tazerati Quaneen Nifaz Act which laid down that if the evidence prescribed for offences under the Islami Act were not available cases would be tried by ordinary Courts set up under the Criminal Procedure Code. The case against Basharat Hussain was about to be finalised when subsection (2) mentioned above was deleted. It gave rise to the question whether the case against Basharat Hussain would be decided by the Sessions Judge or would be transferred to the Zilaee Adalat set up under the Islami Act. The amending law itself was silent and did not lay down that the provision was retrospective. When the matter ultimately came up before this Court it was noted that if the case stood transferred then punishments different from those provided in the Penal Code would become attracted which meant that the amendment was not merely procedural. In these circumstances it was held that the amendment would operate prospectively and not retrospectively and thus pending cases would remain unaffected by it. The facts are clear that it was also a case in which there was no provision that the amendment under examination was retrospective as in the present case.

15. In Rafique Akhtar's case Raja Muhammad Khurshid Khan Acting C.J., (as he then vas) laid down the rule as follows:‑‑ "The fundamental rule of interpretation to which all others are subordinate is that a statute is to be expounded according to the intent that made it. That intent can be gathered from looking into the document as a whole and the Courts have to interpret the law as it is and not to correct and make law, as this is exclusively the function of Legislature. No part or word of a statute can be omitted from consideration in interpreting it."

16. The reliance of learned counsel for the respondent on the judgment of Supreme Court of Pakistan in Adnan Afzal's case is entirely misplaced. It is a judgment, which clearly lays down the rule that Legislature has the power to make laws retrospectively and while doing so it can take away an existing right. We may reproduce the following portion of the judgment of Hamoodur Rahman, C.J., who spoke for the Court:‑‑ "The general principle with regard to the interpretation of statutes as laid down in the well known case of the Colonial Sugar Refining Company Limited v. Irving (1905 AC 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 retroactive effect. To the same effect are the observations of Jessel, Master of the Rolls, 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 right of action, its enactments, unless in empress 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. 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 his 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." The principle has been admirably put by Crawford in his Book on Construction of Statutes, 1940 Edition, 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 retroactive 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 a contrary legislative intention, statutes pertaining solely to 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. This principle has also been fully adopted by this Court in the cases of The State v. Muhammad Jamil PLD 1965 SC 681; Muhammad Alain v. The State PLD 1967 SC 259).

17. The judgment in Haider Automobile Ltd. case also does not support the contentions of the learned counsel for the respondent. In fact it is laid down therein that vested right can be taken away retrospectively by the Legislature, however, while doing so the language should be clear and unambiguous. We may usefully reproduce a short passage from the judgment:‑‑ "The legislature, however which is competent to make a law, has full and plenary powers in that behalf and can even legislate retrospectively or retroactively. There is no such rule that even if the Legislature has, by the use of clear and unambiguous language, sought to take away a vested right yet the Courts, must hold that such legislation is ineffective or strike down that Legislation on the ground that it has retrospectively taken away a vested right. "

18. The last case on this point which was cited by the learned counsel for the respondent is the case of Novelty Enterprises Limited. In this judgment there is no observation that a vested right cannot be taken away by retrospective legislation. This judgment is found to be inapplicable.

19. This analysis of case‑law on the subject clearly leads to the conclusion that, we say so with great respect, the judgment in Kashmir Timber Corporation lays down the correct law and we respectfully follow it. It has become clear by now that the aforesaid judgment is fully applicable to the case in hand as the facts are similar. In the precedent case a law passed without jurisdiction was deemed to have been validated by a retrospective amendment. In the present case a Government order passed without legal cover has been validated by enactment of a retrospective law and we hold accordingly.

20. We may now advert to the argument raised by the learned counsel for the respondent that the requests made by the respondent were conditional and were in fact more of protests than prayers for retirement. This argument runs counter to the contents of the applications moved by the respondent from time to time. In the lengthy application firstly moved by hint the respondent narrated different grievances and grouses and then ultimately made the following prayer:‑‑ In the circumstances and the reasons stated above the undersigned has decided to retire on 4th of February 1994, approval for which may be obtained. However, if it is deemed appropriate, steps may also be taken for final disposal of the following applications, copies of which are attached. A....... B....... C....... D....... E....... F....... Signed (Syed Muhammad Akbar Shah) Officer on Special Duty (Translated) Another application, which is Exh. PG in the Service Tribunal file, was filed by him on 30th of January, 1994. In it he stated that he had filed different applications for seeking retirement in which he had narrated the circumstances, which forced him to seek retirement. He stated that it is the right of a civil servant to seek retirement after putting in the qualifying service. He again protested against certain observations made by Senior‑Member of the Board of Revenue and also stated that an impression might have been conveyed that he was seeking retirement in order to get posting but it was not true. He stated that where the honour of a civil servant was not safe it was better to beg rather than asking for a posting. In the last sentence of the application he stated as follows:‑‑ "In these circumstances necessary proceeding may be taken for my retirement from the 1st of February, 1994. On that date I would consider myself to have retired and would go away." He moved another lengthy application on 12th of February 1994, which is Exh. P.H. in the Service Tribunal file. In it he stated that he had completed the qualifying service for pension of 33 years. According to pension rules a civil servant can intimate to the Government that he wanted to retire on the completion of 25 years' service. In light of that provision he had applied for retirement with effect from 1st of February, 1994. After making this request retirement becomes final. It cannot be changed nor be withdrawn. Copy of the rules were also attached with the application. It was further submitted that he had already gone away and that he was only coming to the Services Department for his pension. In the end he also stated that due to delay in the issuance of his retirement order it may be misconstrued that he was trying to get a good posting by displacing the favourite civil servants. He said that he reserved the right of taking legal action but prayed that within one week order for his retirement with effect from Ist of February, 1994, may be issued after settling all matters. It may be pointed out that this application was moved on 12th of February, 1994, when the date fixed by the respondent had already passed. We have already noted that the respondent said that he had already proceeded on retirement.

21. It was the contention of the learned counsel for the respondent that the applications should have been read as whole to arrive at the correct conclusion. In this connection a reliance was placed on Anwarul Haq v. Federation of Pakistan 1995 SCMR 1505. We agree that the document must be read as a whole and we have accordingly read each application as a whole but the irresistible conclusion is that the option of retirement was clear and unequivocal. The unconditional option was backed up by reminders and an expression of anger that his request has not been acceded to. In fact he ultimately informed the Government that he had already proceeded on retirement. There is protest in the applications but they leave no doubt that the prayer for retirement was unconditional, clear and repeated.

22. Reliance was placed on a judgment of Supreme Court of Pakistan Muhammad Masihuzzaman v. Federation of Pakistan and another which is reported as PLD 1992 SC 825 in support of the contention of the respondent. A request made by Muhammad Masihuzzaman that he may be allowed to retire from a particular date was not covered by any law because he had not yet completed 25 years of service. Therefore the acceptance of the request was found to be void and inoperative. A detailed perusal of the judgment shows that view taken by the Supreme Court of Pakistan is based on the fact that it was provided in the Constitution of Pakistan that a person could retire from service gn his option after the completion of 25 years of service. It was therefore, held as follows:‑‑ "Since the appellant had not completed 25 years of service qualifying for pension on 15‑2‑1973, (the date from which he was retired from service) the order directing his retirement from the said date was illegal and void. It is settled law that no party can circumvent the provisions of the Constitution. Accordingly, even reliance on a request made by the employee and giving effect to it, in contravention of a provision made in the Constitution, is impermissible. Indeed this Court has held that it is not possible, to contract out of a statutory safeguard because any agreement which defeats a statutory provision, despite being in accord with wishes of a party, cannot be allowed as giving effect to it is a course which is violative of public policy ‑and the resultant action is void in law (see Ghulam Sarwar v. Pakistan (1962) 2 PSCR 429). Hence in the present case, it was not possible for the appellant to seek premature retirement, as this would involve a violation of the Constitutional provisions contained in the Interim Constitution of 1972. " In the present case the situation is entirely different because the request made by the respondent has been given legal cover by retrospectively amending the law.

23. It was half heartedly argued by the learned counsel Sardar Rafique Mahmood Khan, that the appeal was not maintainable on behalf of the Government, which is appellant No. 1 in the appeal, on the ground that the Chief Secretary was not authorised to institute the appeal on behalf of the Government. This point was not raised in the concise statement and, according to the practice of this Court, cannot be allowed to be raised for the first time during the arguments and that too without moving an application seeking permission to raise the point. In light of the foregoing analysis the order of retirement of the respondent is held to be valid. We therefore, accept the appeal and set aside the order passed by the Service Tribunal. The appeal filed by the respondent before the Service Tribunal shall stand dismissed. A.A./102/S. (AJ&K) Appeal accepted.