1988 PLP 623 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.--This appeal by leave of this Court is by Government of Pakistan and Director-General, Bureau of Emigration and Overseas Employment, Islamabad, against the judgment, dated 26th February, 1985, by a Division Bench of the High Court of Sind, at Karachi, whereby the order, dated 20th December, 1983, passed by the Director-General, Bureau of Emigration and Overseas Employment, Islamabad, was declared to be without lawful authority and the appellants were directed to issue an Overseas Employment Promoter's licence to Furqan Ahmad Qureshi, the respondent herein.

2. The facts necessary for the disposal of this appeal are that M!s K.Q.Traders, then a partnership firm and presently claimed to be the proprietary concern of the respondent were granted a licence for running a recruiting agency under Emigration Act, 1922, in November 1973. The licensee operated the licence for sometime when on 2nd August, 1975, alongwith some other licensees the said licence was suspended by the Deputy Secretary, Emigration, until an inquiry against the holders of the licences was completed and final order was passed by the Federal Government. Subsequently a charge-sheet was served on the respondent against which a reply was filed denying the allegations contained therein. As the reply was not found satisfactory an Inquiry Officer was appointed and the respondent was informed that he would be intimated the date for the hearing of inquiry in due course. However, the respondent was served with a show-cause notice on 26th April, 1976, calling upon him to show cause why his licence should not be cancelled and security deposited be forfeited for violation of the provisions of Emigration Act, 1922. In reply to this show-cause notice once again the respondent denied the allegations of violation of the provisions of the Emigration Act and maintained that he had been carrying on business in accordance with law and the rules.

3. On 31st May, 1976, the respondent received a communication to the effect that his reply was not found satisfactory and the Government had, therefore, cancelled his licence and forfeited the security deposited by him. In the meanwhile a prosecution was also launched against the respondent but he was acquitted by the Court under section 249-A, Cr.P.C.

4. As the respondent was acquitted by the Court from the criminal charge leveled against him he wrote to the appellants for restoration of his licence but his request was declined. An appeal taken to the Government against the refusal of restoration of the licence having failed the respondent filed a Constitutional Petition No. D-1235 of 1980 before the Sind High Court. This constitutional petition was disposed of by an order of the Court, dated 4th March, 1981, relevant part of which reads as under:- "The learned Standing Counsel states that in case the appellant makes a fresh application for grant of a licence the same shall be considered by the respondents on its merits and regardless of charges as were leveled against him and on the basis of which he had been tried and acquitted by the Magistrate. Mr.Sibghatullah Hameed on such undertaking withdraws his petition and the same is dismissed in limine."

5. After this the respondent repeated his request in terms of the order of the Court and finally by a letter, dated 11th March, 1982, he was informed that his licence had been restored. The respondent thereupon complied with the requirements for the issue of licence and a proper licence was issued to him. This fact was noticed by the High Court in its final order, dated 29th February, 1982, in the following terms:-- "Mr. Hameed states that the licence has been restored on fresh security being given. He expressed his satisfaction and wants to withdraw this petition. The main petition is dismissed as withdrawn.

6. The present controversy started at this point of time on account of fresh action taken by the appellants by way of a letter, dated 1st August, 1982, whereby the licence issued to respondent was withdrawn on the ground that "the same was issued on misinterpretation of the order of the Sind High Court, Karachi, under which it was not mandatory on Bureau's part to renew your licence".

7. Being aggrieved by this order the respondent filed yet another Constitutional Petition No. D-712 of 1982 which was disposed of by a Division Bench of the Court vide its order, dated 12th September, 1983. In this order the Court agreed with the view taken by the authority that there was no mandatory direction of the High Court to issue a licence in favour of the respondent, and therefore, the Court affirmed the action of the authority to revoke the licence issued under misconception of the real import of the High Court's order. However, on a concession made by the learned counsel for the Government, the Court held that the decision to decline the request of the respondent for a fresh licence without affording an opportunity of hearing was illegal. The constitutional petition was accordingly allowed declaring the portion of the order refusing to grant licence to the respondent without hearing him, to be without lawful authority and of no legal effect. In the circumstances the Court directed that the respondent's application be considered afresh after notice to him and be disposed of according to law. It seems the respondent made a fresh application on which after hearing him the Director-General, Bureau of Emigration and Overseas Employment, Karachi, (respondent No.2) passed order, dated 19th December, 1983, rejecting his request for issue of a fresh licence under section 12(2) of the Emigration Ordinance, 1979. The appellant challenged this order in an appeal which was dismissed by the Central Government and then filed a constitutional petition before the Sind High Court which was accepted as already stated by the impugned judgment in this appeal.

8. The learned Judges of the Division Bench took the view that the application of the respondent was substantially a request for renewal of licence by a person who was already holding a licence which had been cancelled. In this perspective according to the learned Judges the approach of the relevant authority to consider the application as one for fresh licence was wholly misconceived. Upon scrutiny of the reasons that prevailed with the Deputy Director to reject the application of the respondent, the learned Judges held that the reasons and grounds relied upon were outside the scope of the relevant provisions of law and it seemed to them that the application was rejected for reasons on which the original licence was cancelled. As a result of these findings the learned Judges declared the impugned order before them as illegal and directed that the licence should be issued in favour of the respondent.

9. Being aggrieved by the judgment of the High Court, the appellants filed a petition for leave to appeal which was granted to consider the contention that the High Court could not substitute its own discretion in place of discretion of the relevant statutory authority and order the issuance of the licence itself rather than to have remanded the case to the concerned authority for a fresh decision in accordance with law.

10. It has been contended by Mr.Imam Ali Qazi, learned Deputy Attorney-General appearing for the appellants that in view of the well-established principles the High Court cannot sit in appeal over' the decision of statutory authorities and substitute their decisions with its own. He submitted that the constitutional jurisdiction of the High Court can be invoked ordinarily for correction of excess of jurisdiction committed by statutory authorities or Tribunals. The main grievance of the learned Deputy Attorney-General was that in the circumstances of this case the question before the Director-General was whether or not to grant the application for a fresh Overseas Employment Promoter's licence and not whether the earlier licence in favour of M/s.K.Q.Traders should be renewed. However, this aspect of the matter was not appreciated by the learned Judges of the Division Bench who examined the official record as though the application of the respondent was for renewal of licence.

11. We find substance in the contentions advanced by the learned Deputy Attorney-General. As the facts narrated above would show the original licensee M/s.K.Q.Traders, a partnership concern, was granted a licence under the Emigration Act, 1922, and the Rules framed thereunder. It may be stated that the aforesaid enactment was repealed by the Emigration Ordinance, 1979, (Ordinance NO.XVIII of 1979). Under section 16 of the aforesaid Ordinance (to be referred to as the Ordinance) the Government of Pakistan has framed Rule known as the Emigration Rules, 1979. From the facts it is clear that the aforesaid licence issued in favour of M/s. K.Q. Traders was cancelled on 31st flay, 1976. When the criminal prosecution launched by the Government against the respondent who appears to have been one of the partners in the firm of M/s. K.Q. Traders resulted in hip acquittal he requested for restoration of the licence. When his request did not find favour with the concerned authorities he filed a constitutional petition which was disposed of by order dated 4th March, 1981, reproduced above. This order clearly shows that the respondent gave up his claim for renewal and agreed to make an application for a fresh licence which the Government was prepared to consider on its merits without reference to charges earlier levelled against the licensee. It was on this basis that the constitutional petition was withdrawn and dismissed. From this it is abundantly clear that the case of M/s. K.Q. Traders stood finally concluded and it was not possible for the respondent, on his own admission to base any claim on the former licence issued in favour of M/s.K.Q. Traders. Without referring to the facts that intervened the next stage of the proceedings which is relevant is what followed the decision of the second constitutional petition in which the High Court upheld the view taken by concerned authorities that the licence of M/s.K.Q. Traders was issued under a misconception as to the real import of the orders of the High Court in the previous constitutional petition and the only direction given by the High Court disposing of the second constitutional petition vide order dated 12th September, 1983, was to consider the application of the respondent for a fresh licence on merits after giving him an opportunity of hearing. There can be no doubt whatsoever that the parties had agreed for the respondent to make an application for grant of fresh licence. This is clear from the following portion of the order of the High Court disposing of the second writ petition, date 12th September, 1983:- "T:iat as regards the second contention of Mr.Ilyas Khan, Mr. Inayat Ali, learned counsel for the respondents has conceded that the petitioner's application for grant of fresh licence could not have been declined without hearing him." The learned Division Bench in the impugned judgment before us also states that after the aforesaid order disposing of the second constitutional petition the respondent filed an application for grant of licence which was rejected by the Deputy Director, on 20th December, 1983. However, this order was challenged before the High Court on a plea that it was a culmination of the proceedings that started on 2nd August, 1975, which had clear reference to the cancellation of the licence issued in favour of M/s. K.Q. Traders. The official stand before the High Court was that the application was for grant of a new licence which was considered on its own merits and was rejected in accordance with the provisions of section 12(2) of the Emigration Ordinance, 1979. The learned Judges of the Division Bench, however, took the view that the case could not be approached as a request for the grant of new licence and examined the order passed against the respondent in this perspective and found fault with it on the ground that the facts already available on the record of the concerned authorities pertaining to Nl/s. K . Q . Traders were totally ignored. After examining the comments made by the Deputy Director in regard to the information furnished by the respondent in the various columns of the application form, the learned Judges formed the opinion that these comments were unjustified. The final conclusion arrived at by the learned Judges was summarized in the following passage of the judgment: - "The very basis on which this order proceeds seems to be suffering from serious and grave misconception. Basically it was a case of an old licence holder, who had exploited the licence for quite a number of years and whose licence had been cancelled for reasons which were found to be totally unwarranted and the charge against whom had been dismissed by the Court. As a matter of fact, it was a case of withdrawal of the order of cancellation and restoration of the old licence. This application, therefore, could not be treated as an application from a new-comer and scrutinized in a fashion as has been done by the Deputy Director. Moreover, if the contents of this so-called order are analyzed, it would appear that the answers furnished by the appellant had been scrutinised as if it was a quiz competition rather than an application for a licence. This so-called order does not at all inspire confidence and does not advance any good reason for refusing the licence to the appellant. It should be kept in mind that the application filed by an old licensee deserved a different treatment from an application filed by a stranger and new-comer."

12. From the above quoted passage of the judgment it is clear that the learned Judges were of the view that the order rejecting the application of the respondent was illegal and not in accordance with law for the reason that this case was a case for the renewal of the previous licence--nay, indeed it was a case of withdrawal of the order of cancellation and restoration of the old licence. Therefore, in the opinion of the learned Judges the Deputy Director was entirely wrong in treating the application of the respondent as an application for a fresh licence. We may at this stage point out that the power to grant an Overseas Employment Promoter's licence is conferred on the Federal Government under section 12 of the Ordinance, relevant provisions of which may usefully be reproduced as under:- "Grant of Overseas Employment Promotor's Licence.--(1) Whoever desires to engage, or to assist or to recruit any person to emigrate shall apply for a licence to the Federal Government and shall with his application furnish such information and documents, pay such security and fee, and at such time and in such manner as may be prescribed. (2) On receiving an application_ under subsection (1) , the Federal Government may after such inquiry as it may deem necessary, grant the licence applied for on such terms and conditions, if any, and on payment of such fee and on furnishing such security, as may be prescribed, or withhold such licence, and the decision of the Federal Government shall be final." In subsection (3) of section 12 there is a power given to the Government to cancel the licence issued under subsection (2), in case it is satisfied, after necessary inquiry that the licensee has been guilty of misconduct or that his conduct and performance have been unsatisfactory or he has committed a breach of provisions of the Ordinance or the Rules etc. Rule 8 of the Emigration Rules, 1979, provides for the application for grant of licence which is to be made to the Director-General in Form 2 alongwith a character certificate from the District Magistrate or any other person authorised by the Federal Government. Sub-rule (4) of rule 8 then provides as under:- "The Director-General may on being satisfied that the applicant has complied with the provisions of sub-rules (1) and (2) and after such inquiry as, he may deem fit, approve the grant of licence and direct the applicant to deposit licence fee of five thousand rupees and a security of one lac rupees for good conduct in any branch of the bank." These are the provisions in the rules for application for the grant of licence. The renewal of licence is dealt with by rule 9 which may also be reproduced:- "Renewal of licence.--(1) A licence granted under rule 8 shall be valid for a calendar year or part thereof and may be renewed by the Director-General for another calendar year on an application made in that behalf to him in Form 3 through Director of Emigrants at least one month before its expiry and on payment of renewal fee of five thousand rupees after a demand notice has been issued by the Director-General." It is important to point out that section 12 of the Ordinance and rule 8 of the Rules do not provide guidelines or grounds for the grant or renewal of the licence applied for. But it will be seen that rule 8 requires the application for a licence to be made in Form 2 attached to the Rules and an application for renewal of licence in Form 3 attached to the Rules. A scrutiny of Form No.2 reveals that it requires the applicant to furnish particulars and qualifications in the various columns of the form in which the requirements are mentioned. These columns require information and particulars on matters like domicile of the applicant, previous experience in handling and supply of skilled labour in particular fields mentioned alongwith documentary proof, business if any with firms in foreign countries, and financial status and ability to meet initial expenses in exploring foreign labour markets. As against this Form No.3 for renewal of a licence calls for information on matters like number of individuals employed in office and outside, number of persons sent abroad during the last three years, total number of persons sent abroad, since issuance of licence and total amount of foreign exchange earned since issuance of licence. We think that these requirements of the respective forms clearly indicate the matters upon consideration of which the licence can be granted or refused or renewal can be granted or refused. The primary thing to take into consideration is that the relevant authorities are required to consider these matters in accordance with the particular form submitted by an applicant and normally the considerations of the one cannot be imported into the considerations of a case under the other form. In other words the law makes a clear distinction between the case of an application for grant of a licence and an application for renewal of a licence.

13. We enquired from Mr.Sibghatullah Hameed, learned counsel appearing for the respondent to clarify whether the respondent had made an application in Form No.2 or No.3 and his reply was that he had made an application in Form No.2. It, therefore, clearly follows that the stand taken by the respondent that his case was of renewal of an earlier licence which was wrongfully cancelled, is totally baseless. Unfortunately the learned Judges of the High Court were not invited to see the legal position in the true prospective of the provisions of law pointed out above. Indeed the very fact that the respondent gave up his case on the basis of the previous licence at the time of disposal of the second constitutional petition is sufficient for holding that the respondent was given assurance that if he made a fresh application for grant of licence, it would be considered on its own merits. As conceded by his counsel he actually made an application for grant of a fresh licence. In this view of the matter criticism of the High Court that the Deputy Director ignored the previous facts on record is untenable. We are, therefore, unable to agree with the High Court that the impugned order before it was liable to be set aside on the basis that the Deputy Director ought to have considered the application of the respondent as a request for restoration of the previous licence or for renewal. This would have been sufficient to set aside the order of the High Court but we find that the first entry in the application form of the respondent was subjected to comments which indicate that the learned Deputy Director himself kept into consideration the case of M/s. K.Q.Traders. In the application form the respondent had shown his own name as the name of the applicant on which the Deputy Director commented that the name should have been M/s.K.Q.Traders "as the previous licence was in the name of M/s.K.Q.Traders". The plea of the respondent that the same firm was renamed as Furquan Enterprises was rejected for want of evidence. We are unable to understand that if the present case was of a fresh application for licence why the authorities insisted on evidence to be produced to prove that the same concern was renamed and was applying for a licence afresh. Additionally in the concluding part of the order the learned officer recorded his decision as under:- "In the light of above I am not satisfied with the applicant's request as his application is misconceived. I, therefore, reject his request for issuing of fresh licence under section 12(2) of Emigration Ordinance, 1979." It is not understood how the learned officer came to the conclusion that the application was "misconceived". The law required the officer to satisfy himself that the applicant had complied with the requirements of the rules and was entitled to the licence or not. Therefore, there was no question of disposing of the application as misconceived. It is, therefore, not possible to uphold the order in its present form as it leaves a doubt whether the concerned officer properly applied his mind to the legal requirements for a decision on the application for grant of licence. In the result while setting aside the judgment of the High Court, we would remand the case to the Director General, Bureau of Emigration and Overseas Employment for a fresh decision on the application of the respondent, which shall be deemed to be pending, in the light of this judgment and in accordance with law. The appeal is allowed in these terms. As the success of this appeal is divided I there will be no order as to costs. S.Q./G-68/S Appeal allowed.