1977 PLP 593 (PLC)

Laws Cited

Representation

• Nisar Zahld for Khalid M. Ishaque for Petitioner.
• Basharatullah and Maquim Ansari for Respondent No. 1.
• S. H. Jafri for Respondent No. 2.
• Muhammad Ahmed Mirza, A.‑G. for Respondent No. 3.
• Dates of hearing : 26th and 27th May 1977.
• ----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 Commissioner 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 effect---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 be he 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 introduced by Ordinance IX of 1977 for reason of no previous permission of Federal Government having been obtained by Provincial Government to make such appointments.
• 8‑A. The petitions were admitted at Karachi and interim stay was granted by the then High Court and after some adjournments the matters carne for final hearing on 10‑5‑1977 when a submission was made by Mr. Basharatullah 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 bas been amended and the restriction placed there in respect of the qualifications for appointment of Presiding Officer, Labour 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 Aprils 1977 the petitions have become infructuous which may be dismissed as such.
• 10. It is the case of ail 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 tame 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 that respondent No. 1 had obtained a certificate from Judicial Commissioner, Baluchistan in 1947 authorising him to practise as 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 20‑12‑1947, is Annexure 'A' to the parawise Comments and reads as under:‑‑
• "In pursuance of Notifications No. 9‑2/70‑Labour dated 10th September, 1975, issued by the Government of Baluchistan, Labour, Health and Social Welfare Department, Quetta, the Advocate‑General, Baluchistan 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.
• 17. Mr. Iqbal Mohammad Khan was represented by Mr. Basharatullah, Advocate in all petitions and the Government of Baluchistan by Mr. Muhammad Ahmed Mirza, Advocate‑General, Baluchistan, and Mr. S H. Jafri. Advocate appeared for respondent No. 2, Syed Abdul Haleem Shah. They opposed the petitions, took the stand that although the respondent has never been enrolled as an Advocate of High Court nor appointed or acted as a District Judge or Additional District Judge or a Judge or Additional Judge of High Court nonetheless, he was eligible to be appointed as a District Judge or Additional District Judge or a Judge or Additional Judge of a High Court by virtue of his being a pleader of more than 10 years standing, practising in Court of Judicial Commissioner, Baluchistan and later in the High Court of West Pakistan.
• (a) he has for a period of or for period aggregating not less than ton years been an Advocate of a High Court (including the High Court which existed in Pakistan at airy time before the commencing day ; or
• 20. It may be noted that a plain reading of Article 193 makes it clear that one of the prerequisites to be appointed as a Judge or Additional Judge of a High Court is that one has to have practice of not less than ten years as an enrolled Advocate of a High Court. In the present case it has not been denied that respondent No. 1 has never been enrolled as an Advocate ox any High Court in Pakistan. He, however, obtained an authority from Judicial Commissioner, Baluchistan on 20‑12‑1947 to practise at first instance in lower civil and Criminal Court later on extended to include the Court of Judicial Commissioner with certain conditions. The main argument advanced on behalf' of respondent No. 1 was that the Court of Judicial Commissioner may be treated and had the status of is High Court as contained in Article 219 of the Government of India Act, 1935 which position it continued to enjoy until establishment of High Court of West Pakistan in October, 1955. These enactments, it was submitted as well as the West Pakistan (Establishment of High Court) Order, 1955, provide that the Judicial Commissioner's Court was treated as a High Court. That being the position, it was argued, the respondent having been permitted to act as a pleader in the Judicial Commissioner's Court in 1947 until he became Public Prosecutor ire 1959, he, of necessity and by implication, be considered as an Advocate of the High Court, if that is so, then he fulfils the pre‑qualifications as provided by Article 193 of the Constitution of Islamic Republic of Pakistan as well as section 35(3) of I. R. O., 1969.
• 22. It was argued that respondent 1 was a pleader of the judicial Commissioner, Baluchistan therefore, no fresh enrolment as err Advocate of a High Court is required because he has already joined service as Public Prosecutor in 1959, he had no right of private practice. Hence when questioned as to why respondent No. 1 after establishment of West Pakistan High Court or earlier failed to get himself enrolled as an Advocate as others amongst the pleasers practising at Quetta did, because there was no restriction in this regard except for paying court‑for, and fulfilling some routine formalities, no worthwhile answer was given on behalf of respondent No. 1. The necessary conclusion may be that he is responsible for his own negligence in this regard which in the circumstances of this case cannot be rectified. His holding of office as Public Prosecutor for more than 17 years without getting himself enrolled as an advocate of High Court under Bar Council Act, it was argued shay by implication to be treated equal to that as an Advocate of High Court. To say the least, this argument has no basis whatsoever. To substantiate the argument that respondent No. 1 appeared in Judicial Commissioner's Court during early period of mere than ten years between 1947‑1959 as a pleader, a copy of solitary order of that Court in a revision petition dated 10‑2‑1948 was filed.
• 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 to the list of Advocates and pleaders practising in the High Court. Quetta circuit wherein respondent No. 1's name finds place in Category 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./XIII P. 4, dated the 24th April 1956, I 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 Baluchistan's Court and continue to practise in various Courts of Quetta‑Kalat Division"
• List of Advocates is as under :----
• Sh. Muhammad Arif, B. A., L.L.B., Advocate, Lahore High Court
• Advocate, Sind Chief Court
• Those who were not Advocates of any High Court but were permitted to practise in the Court of Judicial Commissioner in Baluchistan.
• "no person who is not entitled to practise 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 5 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 office mentioned in the certificate and on such enrolment he becomes entitled to practise in 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 tend 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 by mere implication can be treated as an Advocate of a High Court. We are of the opinion that the Judicial Com missioner's Court, Baluchistan was never raised to the status 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 arid respondent No. 1, was and is not an Advocate of any High Court. He was a pleader and remained as much. That being D 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) I 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