1978 PLP 497 (PLC)

10. In the case o' guru v. Udami (A I R 1925 Lah. 331) it was observed: "The presenta tion 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. Azra Begun v. Piran Ditta(P L D 1967 Lah. 807) appeal was filed by an Advocate on verbal instructions of counsel duly authorised to file the appeal. The appeal was dismissed as having been filed by an Advocate who had no power‑of‑attorney. The order of dismissal was hold to be Illegal.

12. In the case of Jhanam Lal v. Parma Nand (A I R 1951 All. 451) 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 after the document constitutes a valid power‑of‑attorney so as to enable the pleader to file the appeal."

13. In the instant case as already mentioned above, the Vakalatnama in favour of Mr. D. M. Awan on 15‑3‑19 7 5 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 these 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 Its commences and although it may be actually exercised when the adverse judgment is pronounced. I am ortified in this view by the judgment in the case of Jumma Khan v. Mat. Gul Ferosha (P L D 1972 Posh. 1) 14, In the case of Din Mohammad v. Hidayat Hussain (P L D 1968 Lah. 207) 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 Lakhshmi Narayan and others v. Sri Suresh Lal Chakraborti and others (P L D 1964 Dacca 177) it was observed: "The whole case as 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 arid 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 Proceeding which starts at one stage in the suit continue to be so, though at a subsequent stage it might be called an appeal.

16. 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. Zabeer Babar, 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 (P L D 1976 Lah. 1162) wherein it was observed: "The ratio decidedness 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 the 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 their written judgment dated 31‑7‑1971 were filed, additional grounds of appeals were also filed. It was not mentioned that the appeals were filed against o 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 tot 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 modifying 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. Since under section 38 (3‑a) of the Ordinance the Tribunal has very vast powers to call for the record of a case or proceedings sue mote E 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 these appeals, the aforemen tioned 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 under section 38 (3‑a) of Industrial Relations Ordinance, 1969 are much wider than those given in section 115, C. P. C. In the case of Ghulam All v. Nawaz Ali and 2 others (P L D 1975 Kar. 1090) 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 Nawaz (P L D 1976 Kar. 891) it was held that when an appeal preferred in a case is not appeal able, the appeal may be treated as application for revision.

25. The same view was expressed in the cases of Faqir All v. Mohammad Hayat (P L D 1976 Lah. 298), Mohammad Sharif Khan v. Gohar Khan (P L D 1967 Posh. 259).

26. Now the neat 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 then 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, Punjab Labour Court No. 2 and others in which the provisions of section 37 of Industrial Relations Ordinance, 1969 were held to be mandatory. The learned counsel for the respondents, oh 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 Alta Mohammad Qureshi v. The Settlement Commissioner, Lahore Division, shore and 2 others (PLD1971SC61) 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 to 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. 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 rte 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 propitiatory language. 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 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 must "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 Met. Nawab Biai v. Mst. Rafeeq Bano (PLD 1971SC481) This judgment does not lay down any specific rule but only says that to determine the mandatory on 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 Jagaa Nath v. Firm Nand Ram Das‑Atma Ram (AIR 1938PC292) 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 arid another (P L D 1971 S C 857) 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 an 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 mesh v. Hafizz.Ullah Dhuni and others (P L D 1960 Dacca 114) it was observed: "Enactments regulating the procedure in Courts am usually Imperative and not merely directory. If, for Instance, a right of appeal is given with provisions requiring the fulfilment of certain condi tions, arch as giving notice of appeal and entering into the recognizance s 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 s, Col. Basheer Hussain and 10 others v. Land Acquisition Collector, Lahore Improvement Trust, Lahore and 2 other (P L D 1970 Lah. 321) 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 (A I R 1936 P C 253) 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 Ghulam Abbas v. State (P L D 1968 Lah. 101) it was hold: "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 a others (P L D 1968 Lah. 283) 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 Din and another (P L D 1971 Lah. 217) 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 Mst. Sardar Begum v. Lahore Improvement Trust, Lahore (P L D 1972 Lah. 458) 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 Mian Abdul Majeed and 7 others v. Tile Chief Administrator of Auqaf, West Pakistan (P L D 1972 Lah. 66) 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 Mirs and three others (P L D 1965 Kar. 625) 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 al all."

37. In the case of Mohammad Ashraf and another v. State (1971 P Cr. L J 985) 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 dated 31‑7‑1977 were in a contravention of section 37 of Industrial Relations Ordinance, and as such were nullity in law.

39. In the result, I accept all these revisions, set aside the decisions of the Labour Court and remand the cases back to it for decision in accordance with law.