P L D 1977 Quetta 45 (PLP)

Representation

• ----S. 35(3) read with Labour Laws (Amendment) Ordinance (IX of 1977), Sched. I-Constitution of Pakistan (1973), Art. 193-Presiding Officer of Labour Court, appointment of.-Person first enrolled as pleader in criminal and civil forums except Court of Judicial Commissioner, Baluchistan, later allowed to appear before Judicial Com missioner subject to certain conditions, and appointed Public Prosecutor and Government Pleader-Contention that appointment of such person as Presiding Officer of Labour Court was not justified in law and all orders passed by such Court are illegal and of no affect-- Held: Public Prosecutor's office-Not a judicial office - Public Prosecutor, hence, not a Judicial Officer-Judicial Commissioner's Court in Baluchistan-Not a High Court-Respondent enrolled in Judicial Commissioner's Court in Baluchistan only as a Pleader and not as Advocate-Respondent also not enrolled as an Advocate in any other High Court nor could he be treated to be an Advocate by implication-Appointment of respondent as Presiding Officer of Labour Court in contravention of provisions of S. 35(3) and illegal --Respondent's appointment not justifiable even by amendment intro duced by Ordinance IX of 1977 for reason of no previous permission of Federal Government having been obtained by Provincial Government to make such appointments.-[Judicial officer-Civil services].
• final hearing on 10-5-1977 when a submission was made by Mr. Bashatatullah learned counsel for the respondent No. 1 and Mr. S. H. Jafri, learned counsel for respondent No. 2, Syed Abdul Haleem Shah in Petition No. 140/76 that since section 35, I, R. O , 1969 has been amended and the restriction placed there in respect of the qualifications for appointment of Presiding Officer, Lubour Court, Baluchistan that he should be qualified to be a Judge or Additional Judge of a High Court or served as a District Judge or Additional District Judge, has been removed by ordinance IX of 1977 and respondent No. 1's services also since have been regularised by the Government of Baluchistan through Public Service Commission vide Notification No. 9-2/77 Labour dated 20th April. 1977 the petitions have become infructuous which may be dismissed as such.
• 10. It is the case of all the petitioners that a simple reading of section 35 of I. R. O., 1969 makes it clear that a person who is not qualified for appoint ment in terms of section 35(3) cannot hold office of Presiding Officer, Labour Court and exercise any functions as such and that according to the informa tion of the petitioners, respondent No. 1 has never been appointed or acted as a District Judge or Additional District Judge nor is qualified to be appointed as a Judge or Additional Judge of a High Court. Under Article 193 of the Constitution, a person is not qualified to be appointed a Judge of High Court unless he has, for a period of, or for a period aggregating not less than 10 years, been an Advocate of a High Court.
• 11. That on inquiries made by the petitioners at the office of the Sind & Baluchistan Bar Council, Karachi and in the list of the Advocates available with said Bar Council, the name of respondent No. 1, does not appear as an Advocate of the High Court. It may be noted that respondent No. 1 has not denied this fact. It was further revealed teat respondents No. 1 had obtained a certificate from Judicial Commissioner, Baluchistan in 1947 authorising him to practise an a pleader in the criminal and civil forums except the Court of Judicial Commissioner in Baluchistan. The permission given by the Judicial Commissioner referred to above, dated 20-121947, is Annexure A' to the parawise Comments and reads as under;----
• "In pursuance of Notification No. 9-2/70-Labour dated 101h September, 1975, issued by the Government of Baluchistan, Labour, Health and Social Welfare Department, Quetta, the Advocate-General, Baluchis tan is pleased to relieve Mr. Iqbal Mohammad Khan, B. A., LL. B., of his duties as Public Prosecutor, Kalat with effect from 15-9-1975 forenoon.
• 30. Although not necessary, but we must make a reference to letter No. 623/29 (52) I & J, dated 26th May 1956 from the Additional Registrar, High Court of West Pakistan, Quetta Circuit, Quetta, in reply to querries made by the Registrar, High Court of West Pakistan, Lahore, with regard's to the list of Advocates and pleaders practising in the High Court, Quetta circuit wherein respondent No. 1's name finds place in Category B, Serial No. 3 as a pleader and not as Advocate of any High Court. The letter is' reproduced hereunder which finds place at page No. 129 of file No. 29 of this Court;
• "With reference to your letter No. 4147-Gen./XIlI P. 4, dated the 24th April 1955, 1 have the honour to enclose a list of Advocates and pleaders etc. who had the authority to practise in the former Lahore High Court, Sind Chief Court and Judicial Commissioner in Raluchistan's Court and continue to practise in various Courts of Qaetta-Kalat Division."
• List of Advocates is as under;-----
• ADVOCATES
• 1. Sh. Muhammad Arif, B. A., LL.B., Advocate, Lahore High Court
• 7. Mr. Atta Elahi Asim Malik, Advocate, Sind B. A.,
• Those who were not Advocates of any High Court but were permitted to practise in the Court of Judicial Commissioner is Baluchistan.
• 31. Mr. Nasir Aslam zahid, learned counsel for the petitioner also relied upon Khan Hamidullah Khan v. Mst. Nazir Begum (P L D 1953 Lah. 98), wherein the entire question as to what is pleads; of the High Court or pleader of sub ordinate Court and the entitlement or otherwise of each class has been discussed and it was held amongst others by Muhammad Munir, C. J. that no person who is not entitled to practiss as a pleader in a High Court, can be described as a pleader of that Court, though he has been admitted by it under section 6 of the Legal Practitioners Act as a pleader and on the issue of a certificate under section 7 of that Act he is entitled to get himself enrolled in the Court or revenue offices mentioned in the certificate and on such enrolment he becomes entitled to practise H the enrolling Court or revenue office and the Courts and revenue offices subordinate thereto. I have, of any High Court has a restricted meaning and, apart from Advocates who are included in the definition of "pleader" by section 311 of the Constitution Act, only refers to pleaders who have been enrolled by non- chartered High Courts under section 6 of the Legal Practitioners Act in those Courts. A person who is not entitled to practise in a High court cannot be described as a pleader of that Court".
• 32. Apart from the above, the ratio of the judgment do not lend support to the contention of counsel for the respondent No. 1, that a pleader without being enrolled under a relevant Bar Council Act as an Advocate of a High Court can ay mare implication can be treated as an Advocate of a High Court by mere of the opinion that the Judicial Com missioner's Court, Baluchistan was never raised to the Stains of a High Court by any legislation, therefore, the claim of the petitioner that mere obtaining a permission to practise before the High Court entitled him by implication and to be treated as an Advocate of a High Court. It is a common sense when very Court is not a High Court and the respondent No. 1 was never enrolled as an Advocate he cannot be considered to be qualified as enrolled Advocate of a High Court.
• 34. For the reasons given above, we accept these petitions with cost and hold that the Court of Judicial Commissioner, Baluchistan was not equal to a High Court and respondent No. 1, was and is not an Advocate of any High Court. He was a pleader and remained as much. That being position he was not qualified to be appointed as Presiding Officer, Labour Court, Quetta as required under section 35 (3) I R. O., 1969, nor he became qualified by the, latest amendment made under the Labour Laws 'Amendment) Ordinance, 1977. The net result is that the appointment of respondent No. 1 is without legal authority and bad in law.

Headnotes / Summary

Judgment & Decree