1997 PLC 81 (PLP)

At the final date of hearing Deputy Attorney‑General at the very outset raised an objection on the maintainability of petition on the ground that the Government of Pakistan has been pleased to issue Notification No. F.No.1(10)/94‑Admn.II, dated 30‑10‑1996 with the effect that respondent No. 4 is no more holding public office or judicial office of Member, N.I.R.C., therefore, the petition has become infructuous. As far as orders impugned dated 25‑6‑1996 and 30‑7‑1996 are concerned, it was contended that alternate remedy for the same by way of filing petition before Full Bench of N.I.R.C. is available but the same has not been availed, hence the petition is liable to be dismissed. In the first instance it may be observed that since the Federal Government has been pleased to issue notification that respondent No. 4 is no more holding public office as Member, N.I.R.C., hence the first prayer in which a writ in the nature of Quo Warranto had been made become infructuous. However, we heard the counsel for petitioner as regards the second prayer wherein orders passed by respondent No. 4 have been impugned in this petition. The counsel for petitioner assailed the order impugned herein on various grounds including the point that appointment of respondent No. 4 was not in accordance with law as he was not qualified at the relevant time to be appointed as Member, N.I.R.C., therefore, any order passed by him is a nullity in the eye of law. We have already stated that the Government of Pakistan has removed the respondent No. 4 as Member, N.I.R.C., therefore, prayer in the nature of quo warranto has become infructuous. The only question left to be determined is whether actions taken, decisions' made or orders passed by respondent No. 4 in the capacity of Member, N.I.R.C. can be challenged on the sole ground that his appointment was de facto and not de jure? In this respect passage in Cooley's "A Treatise on the Constitutional Limitations" (8th Edition, Vol. 2: pages 1355‑1358) as reproduced in AIR 1937 SC 237 will be of much assistance thus are reproduced as under:‑‑ "An officer de jure is one who, possessing the legal qualifications, has been lawfully chosen to the office in question, and has fulfilled any conditions precedent to the performance of its duties. By being thus chosen and observing the precedent conditions, such a person becomes of right entitled to the possession and enjoyment of the office, and the public, in whose interest the office is created, is entitled of right to have him performed its duties." ......In all other cases the acts of an officer de facto are as valid and effectual, while he is suffered to retain the office, as though he were an officer by right and the same legal consequences will flow from them for the protection of the public and of third parties. This is an important principle, which finds concise expression in the legal maxim that the acts of officers de facto cannot be questioned collaterally. " Although in AIR 1977 SC 237 it was clearly held that it is the duty of the High Court to strike down usurpation of office in exercise of their Constitutional jurisdiction and when a matter is directly challenged in the High Court in the nature of quo warranto the High Court must exercise such powers. But here in case in hand the Government has rectified the wrong as the respondent No. 4 has been removed as Member, N.I.R.C. The question of actions taken by respondent or orders passed by him have been protected in view of the above‑quoted passage. Similarly in view of a decision of the Ontario Supreme Court in Re Toronto R. Co. v. City of Toronto 46 DLR 547 in which it was observed:‑‑ "That it is not open to attack, in a collateral proceeding, the status of a de facto Judge, having at least a colourable title to the office and that his Acts are valid, is clear. I think, on principle and on authority and it is also clear that the proper proceeding to question his right to the office is by quo warranto information. " From the above authorities, the conclusion likely to be drawn is that it is not open to attack action taken, orders passed or decision made by a de facto Judge having at least a colourable title to the office. The petitioner's counsel, however, in order to controvert this principle of de facto doctrine relied on 1971 PLC

491. Facts in the said case were that an award given by the Labour Court partially constituted under East Pakistan Labour Disputes Act, 1965 was challenged on the ground that two members of the Court had not been selected in accordance with the provisions of section 9(4).of the Act. It was, therefore, urged that the entire proceedings before the Labour Court were null, void and without jurisdiction. It was further held that proceedings by such Court are coram non judice. With all respect it may be stated that the de facto doctrine was not considered in the above case. In Gokarajti Rangaraju v. State of Andhra Pradesh reported in AIR 1981 SC 1473, it was held by Indian Supreme Court that the de facto doctrine is now well established and that the acts of the officers de facto performed by them within the scope of their assumed official authority in the interest of the public or third persons and not for their own benefit are generally as valid and binding as if they 'were acts of an officer de jure. It was further held that a Judge de facto is one who is not a mere intruder or usurper but who one holds office under colour of lawful authority though his appointment is defective and may later be found to be defective. In Pakistan jurisdiction we can find case of Abdul Salam Qureshi v. Special Court of Banking reported in PLD 1984 Kar. 462 which discussed de facto doctrine as regards appointment of Mr. Ahmad Ali U. Qureshi as a District Judge while he was performing the functions of Banking Court under the Banking Companies (Recovery of Loans) Ordinance, a Division Bench of Sindh High Court held that orders, judgments and decrees passed by him were saved by de facto doctrine. Similarly Mr. Justice Ajmal Mian in case of Sabir Shah v. Federation of Pakistan in PLD 1994 SC 738 observed as under:‑‑ "In my view for orderly governance and as a matter of public policy, the validity of the appointment of an incumbent of a public office or a Government functionary cannot be impugned through a collateral proceeding. In this view of the matter, I am inclined to hold that it is not necessary in the above proceedings to hold, whether the Acting Governor was validly appointed or not for the reason that the acts, actions taken or orders passed by the Acting Governor are covered by the de facto doctrine." Following the said principle it may be seen that respondent No. 4 in capacity of Member, N.I.R.C. has passed several orders and has made various decisions, thus the same cannot be called in question on the de facto doctrine. Thus, the challenge to the actions taken or orders passed by respondent No, 4 on the basis of defect in his appointment are fully saved‑by de facto doctrine. Now attending to the preliminary objection raised by learned Deputy Attorney‑General supported by Mr. Tariq Mehmood, as regards alternate remedy it may be observed that the petitioner's counsel canvassed that rule of Policy and convenience are not equivalent with rule of law and that if an order is nullity in law the bar of alternate remedy shall not be available. Reliance was placed on 1972 SCMR 257, PLD 1972 SC 279 and PLD 1967 SC

294. The counsel, however, could not satisfy us how the order was a nullity in law except that there might be some defects in appointment of respondent No. 4 who passed such orders about which we have already held that his actions were covered under de facto doctrine. The order impugned is appealable under section 22‑D of I.R.O. which is reproduced as under:‑‑ "22‑D. Appeals.‑‑‑(1) Notwithstanding anything contained in this Ordinance, or in any other law for the time being in force, any person aggrieved by an award or decision given or a sentence or order determining and certifying a collective bargaining unit passed by any Bench of the Commission, other than a Full Bench may, within thirty days of such award, decision or, sentence or order prefer an appeal to the Commission. (2) An appeal preferred to the Commission under subsection (1) shall be disposed of by the Full Bench of the Commission which shall. (a) if the appeal is from an order determining a collective bargaining unit, have the power to confirm, set aside, vary or modify such an order; and (b) if the appeal relates to any other matter, have the same power in relation to the appeal as the Labour Court, the Tribunal or the High Court, as the case may be, would have had if the matter to which the appeal relates were a matter in relation to which an appeal can be preferred to the Labour Court, the Tribunal or the High Court. Bare perusal of above provision would reveal that any person aggrieved by an award or decision given or a sentence or order determining and certifying a collective bargaining unit passed by any Bench of the Commission other than the Full Bench may within thirty days of such award, decision or sentence or order prefer an appeal to the Commission. Applying this principle to the facts of the present case it is evident from the impugned order dated 30‑7‑1996 that the Member, N.I.R.C. declared that petitioner shall have no entitlement to claim the rights of collective bargaining agent in the Establishment of WAPDA, for the Province of Balochistan, therefore, the petition is accepted and respondents Nos. 1 to 6 are permanently restrained from entertaining the respondent No. 7 as collective bargaining agent. This clearly shows that the order falls in the purview of section 22‑D, I.R.O. which is appealable before the N.I.R.C. The same may be further clarified from the fact that the petitioner has already invoked the jurisdiction of the Commission as regards the similar order earlier passed and it is main ground that since against such order the Commission has already passed orders, therefore, the impugned order, is hit by res judicata. Thus the petitioner in similar circumstances and against an order of like nature has already invoked jurisdiction of the Commission under section 22‑D of 1.R.O., but this time he without having resort to alternate remedy of filing an appeal directly challenged the impugned order in Constitutional petition ostensibly under impression that appointment of respondent No. 4 has not been validly made. But since the respondent No. 4 has already been removed by the Government of Pakistan, as such his order would be conveniently assailed before the Commission. There is no cavil to the proposition that petitioners have already filed appeals against similar orders but this time they by circumventing the process of appeal directly approached this Court Constitutional petition which fact was emphatically and vehemently opposed by learned Deputy Attorney‑General as well as Mr. Tariq Mehmood. The petitioner's counsel while trying to prove that the order is a nullity in the eye of law contended that the Member, N.I.R.C. ignored order of High Court of Balochistan passed by a Division Bench on 3‑8‑1986, thus he had to directly come in Constitutional jurisdiction bringing this fact to the notice of this Court. . In Division Bench the following order was passed as back as in 1986:‑‑ "By consent of the parties, the following order is passed: (i) That the petitioner and the respondent No. 2 shall continue to operate as they were operating prior to the order dated 24‑2‑1986 passed by the learned Member of N.I.R.C. and prior to the directive issued by the Registrar on 19‑11‑1984 and 4 1‑1986. (ii) That both the parties shall be entitled to raise whatever factual or legal objections they wish to raise before the N.I.R.C. (iii) That it is clarified that the interim order dated 18‑3‑1986 passed by this Court in this petition did not intend to create any new situation or confer any right upon the petitioner or upon respondent No. 2 which they were not enjoying, prior to the passing of the above interim order of the N.I.R.C. dated 24‑2‑1986 and prior to the above two directives of Registrar, Trade Unions dated 19‑11‑1984 and 4‑1‑1986. (iv) The petition stands disposed of in the above terms with no order as to costs." Mr. Tariq Mehmood, however contended and rightly so that the said order has merged into the appellate order passed by the Commission in prior proceedings. This order in fact was passed with clear intention that both the parties shall be entitled to raise whatever factual legal objections they want to raise before N.I.R.C. It was not intended to strangulate the jurisdiction of the N.I.R.C. but to allow breathing time to the parties to maintain status quo and approach the N.I.R.C. N.I.R.C. is competent in law to determine about C.B.A. and that is what the Member, N.I.R.C. has done in this matter. Since alternate remedy by way of appeal is available to the petitioner hence present petition is not competent as the petitioners had an adequate and effective alternate remedy. Besides the petitioner's counsel raised several questions in order to show that impugned order suffers from infirmities as the Member, N.I.R.C. could not take a decision without recording of evidence and that the second application on the same subject‑matter could not have been initiated again before Member, N.I.R.C. when the matter is pending before Full Bench of the Commission or question of locus standi to file second petition on the same subject. He also took exception to the conduct of Mr. Hafeez Amjad, Advocate who in derogation of ethical standards appeared for respondent No.6 although he had been representing the petitioner in the High Court. All such questions are open and could be conveniently urged before Full Bench of N.I.R.C. We have already mentioned that in peculiar circumstances the petitioners have approached the Full Bench and obtained certain orders passed by Member, N.I.R.C. even prior to this. Thus, they could again adopt the same course as the law has given them a right of appeal within the meaning of section 22‑D of I.R.O. ‑ In the circumstances and for foregoing reasons we are not inclined to interfere with an ad interim order passed by Member, N.I.R.C. determining C.B.A. for which an alternate remedy by way of appeal was available. However, we noted with concern that this matter is pending since 1986 and for last 10 years the same has not been disposed of by N.I.R.C. which in any case is not commendable. Resultantly the petition is dismissed. However, in view of intricate legal questions we don't pass any orders as to costs. A.A./602/Q Petition dismissed.