1991 PLP (C (PLC(CS))

(iv) Muhammad Sadiq Khokhar v. Engineer-in-Chief Pakistan Army, G.H.Q and another (1985 S C M R 63), (v) Muhammad Ali Khan v. Pakistan and another (P L D 1986 SC 349), (vi) Muhammad Aslam Khan v. Secretary, Ministry of Defence and others (1986 S C M R 283) (vii) Ch. Nazar Muhammad and another v. Government of Punjab and 38 others (1986 S C M R 68), (viii) Muhammad Umar Malik and others v. Federal Service Tribunal and others (P L D 1987 SC 172), (ix) Ch. Muhammad Insha Ullah and others v. Chief Conservator of Forests (P&E) Punjab and others (P L D 1988 SC 155)

13. It is not necessary to deal with the above cited cases in detail. It will suffice to observe, that the consistent view of the superior Courts has been that a matter or dispute in relation to a civil servant which is covered by Article 212 (1) (a), should be agitated before the Service Tribunal which is more appropriate forum for examining the various Service Rules and the official memorandums etc. than a High Court in exercise of constitutional jurisdiction.

14. In the instant case, in my view, it is not necessary to examine whether any of the above quoted reliefs prayed for by the petitioners is barred by Article 212, as 1 am inclined to hold that the provisions of the Act are not applicable to the persons employed to the Government departments as the Act was enacted to regulate the working of the professional engineers as is evident from the various provisions of the Act. At this juncture, it will be pertinent to refer to the various provisions of the Act. The preamble of the Act provides that it is expedient to make the provisions for regulation of the engineering profession and for that purpose to constitute an Engineering Council. It may be pointed out that section 1 of the Act provides the name of the Act and also provides that it will extend to whole of Pakistan and shall come into force at once.

15. It may further be pointed out that section 2 contains definitions of the various terms. Clause (c) of section 2 defines the term `consulting engineer' as means `an engineer or body of engineers registered as such;' whereas clause (d) gives the definition of word `Council' as means `the Pakistan Engineering Council constituted under section 3.' It may further be noticed that clause (e) defines `engineering institution' as means `an institution within or without Pakistan which grants degrees in engineering and is recognised as such by the Council.' It may further be pointed out that clause (f) gives the definition of words `engineering public organisation' as means `a Department of the Federal Government or a Provincial Government, a public Corporation, autonomous or semi-autonomous body, cantonment board, municipality, improvement trust or other local authority. It may also be noticed that clause (j) defines `professional engineer' as means `a person who holds a recognised engineering qualification and is registered as a professional engineer.' It may further be noticed that clause (k) of section 2 provides that `professional engineering work' means `the giving of professional advice and opinions, the making of measurements and layouts, the preparation of reports, computations, designs, drawings, plans and specifications and the construction, inspection and supervision of engineering works in respect of the items specified in sub-clauses (i) to (vii).

16. It may further be noticed that clause (1) defines `recognised engineering' qualification' as, cans `any of the qualifications included in the First Schedule or the Second Schedule'. It may also be noticed that clause (m) gives the definition of word `Register' as means `a register maintained under section 16.' It may also be pointed out that section 3 relates to `constitution and incorporation of Engineering Council'. It provides that `there shall be constituted in accordance with the provisions of this Act an Engineering Council to be known as the Pakistan Engineering Council,' which shall be a body corporate having perpetual succession and a common seal, with power to acquire and hold property, both movable and immovable and to contract and shall by the name by which it is known sue and be sued. It also provides the composition of the Council by providing that the Council shall be composed of all persons whose names may hereafter be entered in the Register so long as they continue to have their names borne on the Register. It also provides the appointment of a Chairman, ten members, being engineers, of whom two each shall have to be nominated by the Federal or Provincial Government, one member being an engineer to be nominated by each University.

17. Section 4 deals with the election of the Chairman and Vice-Chairman, whereas section 5 provides the holding of annual general meeting of the Council. Section 6 deals with extraordinary general meeting of the Council. It may also be pointed that section 7 deals with the procedure of the general and extraordinary meetings. It may also be noticed that section 8 deals with the functions of the Council, which inter-alia, includes maintenance of a Register of persons qualified to practise as professional engineers and consulting engineers, recognition of engineering qualifications- for the purpose of registration of professional engineers and consulting engineers, removal of names from the Register and restoration to the Register of names which have been removed, laying down of standards of conduct for the members safe-guarding the interest of the members, promotion of reform of engineering profession, management of funds and properties of the council, promotion of engineering education and review of courses of studies in consultation with the Universities, levy and collection of fees from applicants for registration or temporary licences and members, exercise of such disciplinary powers over the members and servants of the Council as may be prescribed, formation of such committees as may be prescribed and performance of all other functions connected with, or ancillary or incidental to the aforesaid functions.

18. It may be pointed out that section 9 deals with the constitution of an Executive Committee and its functions, whereas section 10 provides for recognition of engineering qualifications granted by institutions in Pakistan. Whereas section 11 deals with the recognition of foreign engineering qualifications. It may also be noticed that section 12 provides for grant of temporary licences, whereas section 13 empowers the Council to require information as to the courses of studies and examination from every engineering institution in Pakistan which grants a recognised engineering qualification. It may also be pointed out that section 14 empowers the council to appoint such number of inspectors as it may deem requisite to attend at any or all of the examinations held by the engineering institutions in Pakistan. Whereas Section 15 deals with the withdrawal of recognition. It may also be pointed out that section 16 provides the maintenance of Register in prescribed manner containing the names and other particulars of persons possessing recognised engineering qualifications, whose applications for registration as professional engineers and consulting engineers are from time to time granted by the Council.

19. It may further be noticed that section 17 deals with the registration and removal of names from the Register. Subsection (2) of it provides that the enrolment committee in its discretion may refuse to permit the registration of any person or direct the removal altogether or for a specified period from the Register of the name of any registered professional engineer or consulting engineer, who or which has been convicted of any such offence as implies in the opinion of the committee a defect of character or 'who or which, after an inquiry at which opportunity has been given to such person to be heard in person or through an Advocate, has been held by the committee as guilty of infamous conduct in any professional respect or who or which has shown himself or itself to be unfit to continue in practice on any ground including, in the case of a professional engineer, mental ill-health. 19-A. Section 8 provides right of appeal to the professional engineers or consulting engineers, whose names are removed under section

17. It may also be pointed out that section 19 provides the revision of Register from time to time for the reasons stated therein.

20. It may also be pertinent to refer to section 20 which provides lodging of a complaint against a professional engineer, whereas section 21 contemplates constitution of Tribunal for holding inquiry into the professional misconduct of professional engineers and consulting engineers. It may also be pointed out that section 22 lays down the procedure of inquiry.

21. It may be pertinent to refer to subsection (6) of section 22 which provides that "in any case in which it has recommended the imposition of any penalty on, or the prosecution of, the respondent, the Tribunal may also recommend that an amount not exceeding twice the amount of the fee received by the respondent from the complainant may be recovered from the respondent and paid to the complainant as compensation".

22. It may also be pointed out that section 23 vests in the Tribunal the power of Civil Court under the Code of Civil Procedure for the purposes mentioned therein and also provides that every inquiry shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, P.P.C. and the Tribunal shall be deemed to be a Criminal Court for the purpose of sections 480 and 482 of the Code of Criminal Procedure, 1898. It also empowers the Tribunal to send to any Civil Court in the place where the Tribunal is sitting any summons or other process for service.

23. It may further be noticed that section 24 deals with the funds of the council, accounts and audit, whereas section 25 empowers the executive committee, with the previous sanction of the Federal Government to frame bye laws for carrying out the purposes of the Act.

24. It may be pertinent to reproduce section 27 of the Act which reads as follows:- "

27. Penalties and procedure.--(1) After such date as the Federal Government may, after consultation with the Council, by notification in the official Gazette, appoint in this behalf, whoever undertakes any professional engineering work shall, if his name is not for the time being borne on the Register, be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both, and, in the case of a continuing offence, with a further fine which may extend to two hundred rupees for every day after the first during which the offence continues. (2) After the date appointed as aforesaid, whoever employs for any professional engineering work any person whose name is not for the time being borne on the Register shall be punishable, on first conviction, with imprisonment for a term which may extend to six months, or with fine which may extend to five thousand rupees, or with both, and on a second or subsequent conviction, with imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both. (3) whoever wilfully procures or attempts to procure himself or itself to be registered under this Act as a professional engineer or consulting engineer by making or producing or causing to be made or produced any false or fraudulent representation or declaration, either orally or in writing, and any person who assists him therein shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both. (4) Whoever falsely pretends to be registered under this Act, or not being registered under this Act, uses with his name or title any words or letters, representing that he is so registered, irrespective of whether any person is actually deceived by such pretence or representation or not, shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both. (5) No person undertaking any professional engineering work shall unless he is registered under this Act, be entitled to recover before any Court or other authority any sum of money for services rendered in such work. (6) No Court shall take cognizance of any offence punishable under this Act save on complaint made 6y, or under the authority of, the Council. (7) No Court inferior to that of a Magistrate of the first class shall try any offence punishable under this Act."

25. A perusal of the above section indicates that after the notified date, whoever undertakes any professional engineering work, if his name is not for the time being borne on the Register, shall be punishable with imprisonment for a term which may extend to six months or with a fine which may extend to ten thousand rupees or with both anti in case of continuing offence with a further fine which may extend to two hundred rupees for every day after the first during which offence continues.

26. It may also be noticed that after the appointed date, whoever employs for any professional engineering work, any person whose name is not for the time being borne on the Register, shall be punishable, on first conviction, with imprisonment for a term which may extend to six month; or with fine which may extend to five thousand rupees or with both, and on a second or subsequent conviction, with imprisonment for a term which may extend to one year or with fine which may extend to ten thousand rupees, or with both.

27. It may also be noticed that subsection (3) of section 27 deals with the cases where a person wilfully procures or attempts to procure himself or itself as a professional engineer or consulting engineer on false or fraudulent representation or declaration etc. It may also be pointed out that subsection (5) provides that no person undertaking any professional engineering work shall, unless he is registered under this Act, be entitled to recover before any Court or other authority any sum of money for services rendered in such work. Whereas subsection (6) provides that no Court shall take cognizance of any offence punishable under this Act save on complaint made by, or under the authority of the Council.

28. The other provisions of the Act namely, sections 28, 29, 30 and 31 deal with the power to exempt from the operation of the provisions of section 27, constitution of the Commission of Inquiry by the Federal Government and repeal of the Pakistan Engineering Council Ordinance, 1975 whereas the first Schedule and second Schedule contain the names of the Universities and the recognised academic qualifications.

29. Having referred to the various provisions of the Act, the question, which requires consideration is, as to whether the provisions of the Act are applicable only to professional Engineers and professional consultants, who are in practice or do they also apply to the persons working in the Government Departments, autonomous bodies, local authorities and private firms and companies or employed by the private persons as paid employees etc. I am inclined to hold that the provisions of the Act are applicable only to the professional engineers and consulting engineers, who are in practice. My reasons for holding so, inter alia, are as follows:

(i) That though preamble to an Act does not control the provisions of the Act, but reference can be made to it to ascertain the legislative intendment in case of any doubt/ambiguity. In the instant case the object of the Act given in the preamble is to make provision for regulation of engineering profession". (ii) That the definition of "Professional Engineer" as given in clause (g) of section 2 of the Act provides two pre-conditions, namely, (a) the person should hold a recognized engineering qualification, and (b) he should be registered as a professional engineer with the council. The word engineer is prefixed by the word professional, which has a definite connotation and is used when a person is in practice of a particular profession. (iii) The term "professional engineering work" as defined in clause (k) of section 2 of the Act refers to the services/works which are normally rendered by a professional engineer, who is in practice, namely, giving of professional advice and opinions. The other services/works mentioned after the above two services/works are to be read in conjunction with them, otherwise it would lead to absurdity. I may give an illustration. Suppose A for his private residential building employs B, a diploma holder in engineering to take weekly measurements of the work executed. The work, measurements and the residential building both have been mentioned in the above clause (k). If we were to read the words professional advice and opinion dis-conjunctively with the word `measurement', it must follow that A and B have rendered themselves liable to be prosecuted under subsections (1) and (2) of section 27 of the Act referred to hereinabove, which could not have been the intention of the law maker. (iv) That section 8 of the Act, which defines the functions of the Council inter alia provides for the -maintenance of a Register in terms of Section 16 of the Act "of persons qualified to practice as professional engineers and professional consultants" and not persons in service, (v) That section 12 of the Act empowers the Executive Committee to grant to any person domiciled outside Pakistan, who does not hold any recognized engineering qualification but holds a diploma in engineering, or a degree in applied sciences or an equivalent diploma from an institution recognized by the Council etc. a temporary licence for a specific project to work as an associate of a professional engineer, but the latter will have to sign and seal the plans and specifications for the project. (vi) That section 16 provides for the maintenance of a register and for enrolment of professional engineer and professional consultants, whereas section 17 of the Act provides for removal of the name of a professional engineer or professional consultant and de-enrolment. It may be observed that subsection (2) of section 17 of the Act empowers the Enrolment Committee in its discretion to refuse to permit the registration of any person or to direct the removal altogether or for a specified period from the Register the name of any registered professional engineer or consulting engineer, who or which has been convicted for any such offence as implies in the opinion of the Committee a defect of character or who or which after an enquiry and of hearing has been held by the Committee as guilty of infamous conduct in any professional respect or who or which has shown himself or itself to be unfit to continue in practice on any ground including in the case of a professional engineer mental ill health. (vii) That section 20 of the Act provides for lodging of a complaint against any professional engineer or consulting engineer, whereas Section 21 contemplates constitution of Tribunals of Inquiry for inquiring into such complaints. Furthermore, subsection (6) of section 22 provides that in any case in which it (i.e. the Tribunal) has recommended the imposition of any penalty on or the prosecution of, the respondent: the Tribunal may also recommend that an amount not exceeding twice the amount of the fee recovered by the respondent from the complainant may be recovered from the respondent and be paid to the complainant as compensation. (viii) That subsection (5) of section 27 of the Act provides that no person undertaking any professional engineering work shall, unless he is registered under the Act, be entitled to recover before any Court or authority any sum of money for services rendered in such work.

30. It may be pertinent to observe that the Government departments, local authorities, corporate bodies, which are engaged inter alia in the construction of various kinds of building works have hierarchy of the personnel, who execute/supervise the construction work. The hierarchy generally comprises of as follows from the bottom to top:- (i) Mason, (ii) Head Mistary, (iii) Overseer, (iv) Assistant Engineer, (v) Assistant Executive Engineer, (vi) Executive Engineer, (vii) Superintending Engineer, and (viii) Chief Engineer etc. It is also matter of common knowledge that normally' the personnel upto the cadre of Assistant Engineer generally do not possess a degree in engineering, but hold either diploma or certificate. The members of the staff, who do not possess degree in engineering, are assigned the work of taking measurements, preparing lay outs, reports, specification etc. which are specified in clause (k) of section 2 of the Act, though they work under the supervision of the persons holding engineering degrees. At the same time we have a number of private companies and firms which are engaged in the construction work and which employ staff, some of them may not possess of degree in engineering. If 1 were to accept the contention of the learned counsel for the petitioner and learned counsel for respondent No.3, it would mean that after the enforcement of the Act the members of the staff working either in the Government departments or other Government organizations or in private organizations (whose number throughout Pakistan may be in millions), had become disqualified from discharging their functions and the employers as well as the employees had become liable to be prosecuted under section 27 of the Act. This could not have been the intention of the law maker.

31. The use of the words, "Professional Engineer" and "Professional Consultants," with the words "in practice" in the various section of the Act highlighted hereinabove, bear out that the Act is intended to regulate the working of the professional engineers and consultants, who are engaged in practice. It may be pertinent to refer to the meaning of the words "practice" and "profession" given in some of the dictionaries. (a) Venkataramaiya's Law Lexicon with Legal Maxims Second Edition, page 1867. " `Practice' what the expression `practice' means is duly laid down by the Supreme Court to include both acting and pleading. See Aswini Kumar Ghose v. Arabinda Bose, (1952 SC 369) State of Madhya Pradesh v. Lohra Maghe Urson (1975 Jab. L.J. 687 at p. 687)" The phrase "practising as a solicitor" connotes a person who is a principal; it connotes a person who has clients; it connotes a person, in short, who has practice. The expression is not apt to describe the managing clerk of a solicitor who is acting as the servant of another who is a practising solicitor, Way v. Bishop [(1928)] Ch. 647 at p.660]". (b) Stround's Judicial Dictionary, Fourth Edition. "(5) Solicitor practising in the Court' (Sheriff Courts) (Scotland) Act 1907 (c. 51) Sched. 1,152), see Hunter, 1959 S.L.T. (Sh. Ct) 75 ; Sh. Ct. Rep. 124. (6) To "practise" as a `SURGEON' :see Rawlinson v. Clarke, 14 L.J Ex.

364. See further Robertson v. Buchanan, 90 L.T. 390 cited SET UP." (c) Words and Phrases Permanent Edition Vo1.33. PRACTICE A PROFESSION, That one making survey for his father, who was owner of property, had no licence under C.L.S. 4696 to practice surveying, did not render his testimony as to location of corner incompetent; to practice a profession being to hold one's self out as following it, as calling or one's usual business, Beaver Brook Resort Co. v. Stevens, 230 p. 121, 122, 76 Colo. 133. (d) Venkataramaiya's Lavy. Lexicon with Legal Maxims Second Edition, page 1921 `Profession' as defined in the Concise Oxford Dictionary means among other things, vocation, calling, specially one that involves some branch of learning or science, as the learned profession (divinity, law, medicine). A profession is normally associated with the exercise of intellectual or technical equipment resulting from learning or science. A Chartered Accountant is approached by his client for advice and guidance in his problems with regard to trade, business or industry, and it is expected that the chartered accountant to the best of his ability would be in a position to help him in his difficulties and not betray the confidence that is placed in him. This is one of the elements which should be sought when considering whether a particular person is practising a profession or is merely doing a business: The above quoted definitions of the terms "practice" and "profession" support the conclusion, which I am inclined to take.

32. The effect of the Act is that no one can practice as a professional engineer or as a professional consultant without getting himself registered with the council or without having a-temporary licence in terms of section 12 of the Act and that no one, including the departments and organizations mentioned in clause (f) of section 2 of the Act (which defines the term "engineering public organization"), can employ any person as a professional engineer or professional consultant unless his name is borne on the register of the council maintained under section 16.

33. It will not be out of context to refer to the Legal Practitioners sand Bar Councils Act, 1973 (Act NOXXXV of 1973), which is in pari materia with the present Act, the object of which given in the preamble is to re-enact the law relating to Legal Practitioners and Bar Councils and to provide for certain incidental and ancillary matters. Section 13 of the Bar Councils Act provides the functions of the Council. The functions of the Pakistan Bar Council are akin to the functions of the Council given in section 8 of the Act. Whereas section 22 of the Bar Councils Act provides that save as otherwise provided in the Act, no person shall be entitled to practice the profession of law unless he is an Advocate. Similar provisions are contained in the Provincial Bar Council Act. It is a matter of common knowledge that there are thousands of law graduates, who are working in various Government and private organizations as Labour Officers or Law Officers and their functions include legal work but they are not amenable to the Bar Councils Act for the reason that they are not practising as advocates and they are not enrolled as Advocate. The position of the engineers, who are not practising as professional engineers and professional consultants is similar to that of law graduates, who are not in practice.

34. In my view the question .as to what should be the basic qualification for holding a particular post in a Government department or in any other organisation, is a matter to be regulated by the relevant recruitment or promotion rules and not by the provisions of the Act. The petitioners' claim that the private respondents are not entitled to hold Grade-17 or Grade-18 posts founded on the provisions of the Act is mis-conceived. I am, therefore, of the view that the above petition has no merits and hence I would dismiss it, but there would be no order as to costs. M.Y.H./M-1382/K Petition dismissed.