1989 PLP 3335 (MLD)

???????? 1‑2‑1981"

9. Subsequently, the Secretary called on the President who approved the existing arrangement of hearing of appeals and review petitions of the promotors as is apparent from his note, dated 3‑3‑1981 at paragraph 42 of the said file which reads:‑ "

42. I called on the President on the evening of 25th February, 1981 and discussed the question of hearing of Appeals and Review petitions under rules 12 and 13 of the Emigration Rules, 1979 against the orders of the Director General, Bureau of Emigration and Overseas Employment filed by the Overseas Employment Promotors. The President was pleased to direct that, as approved by him earlier, the existing arrangement for hearing of appeals of the Promotors bar J.S. (Manpower) and Review Petitions by the Additional Secretary, Incharge Ministry of Labour and Manpower should continue. Sd/‑ MA. Kazmi, ?????????? Secretary ????????? 3‑3‑1981'

10. In consequence of the President's directive, the following orders were issued:‑ "GOVERNMENT OF PAKISTAN ??????? Ministry of Labour, Manpower ???????????????????????????? and Overseas Pakistanis ?????????????????????????????????????????????????????????????????????????????????????????????? (MANPOWER DIVISION) No.1‑48/80‑Emg.??????? ??????????????????????????????????????????????? ???????????Islamabad the 9th April, 1981. Subject:‑HEARING OF APPEALS AND REVIEW PETITIONS AGAINST THE DECISION OF THE D.G. BE&OE. The President is pleased to direct that the existing arrangements for hearing of Appeals and Review Petitions filed by the Overseas Employment Promotors, against the orders of the Director‑General, Bureau of Emigration and Overseas Employment, by the Joint Secretary, Manpower Division and Additional Secretary Incharge, Ministry of Labour, Manpower and Overseas Pakistanis, respectively shall continue until further orders. ?? Sd/‑ S.M. Yasin, ???????????? ?????????????????????????????????????????????? ??????????????????????????Deputy Secretary. Copy for information and record to:‑‑ (1)??????? The P.S. to the Additional Secretary Incharge, Ministry of Labour, Manpower and Overseas Pakistanis. (2)??????? The Joint Secretary, Manpower Division. (3)??????? Director‑General, Bureau of Emigration and Overseas Employment. (4)??????? Section Officer (Emg.) Manpower Division."

11. A bare perusal of the aforesaid order read with the Noting Part of the file referred to above, would show that the Additional Secretary Incharge, Ministry of Labour Manpower and Overseas Pakistanis and not the Secretary, was authorised to hear Review Petitions filed by the Overseas Employment Promotors, against the orders of the Director‑General. No power has been conferred either on the Joint Secretary or on the Additional Secretary to hear Review Petitions filed by the Director‑General against the decision of the Federal Government in terms of Section 14(2) of the Ordinance. The remedy of review is available only to the Overseas Employment Promotors when they are aggrieved with the orders of the Federal Government refusing renewal of the Licence/ cancellation of the licence/forfeiture of security money. In any event, the delegation of power to hear Appeal and review in terms of the said order limits it upto tilt; Joint Secretary and the Additional Secretary, Incharge of the Division. A copy of this order for information has been despatched to "The P.S. to the Additional Secretary, Incharge of the Ministry of Labour." It is obvious, that there is no delegation of power or allocation of work of hearing the review entrusted to the Secretary who himself had put up his note to the President. It is not possible to substitute the Additional Secretary, particularly as it concerns a valuable right that has come to pass the petitioner by the order of the Joint Secretary who granted the renewal of the licence. Furthermore, the fact whether there is an Additional Secretary now or at any time in the Division is not relevant because even order of 9‑4‑1981, if read carefully, would indicate that the power of Review is also vested in the Joint Secretary and the matter could have been taken up by him if there was no Additional Secretary. Thus visualised, even if it were assumed that the power of hearing the Review Petitions vests with the Secretary, Incharge of the Division, the impugned order is liable to be quashed en the short ground that the Director‑General had no locus standi to seek review of the order of the Federal Government passed in Appeal. Further no power has been delegated on the Secretary to exercise suo motu review.

12. The order, dated 9th of April, 1981, is in conformity with rule 13(1) read with Form 5 referred to therein. This Form does not authorise the Director?-General to file review against the order as to renewal of licence. It is interesting to point out that in the parawise comments, the specific stand taken by the respondents is that "The Director‑General, Bureau of Emigration and Overseas Employment, referred the case again to Federal Government for review as provided under section 14(2) of the Emigration Ordinance 1979, read with rule 13 of the Rules 1979." The respondents have also taken a specific stand as per para. 41 of the Noting Part of File No.4‑6/81‑Emg. which reads:‑ "Since in the cancellation or non‑renewal of OEP Licence, the D.G.B.E. & O.E. and the Promotors are two parties, both have equal right to seek review under section 14(2) of the Ordinance." The respondents, therefore, cannot be allowed to approbate and reprobate in the same breath and take the plea that the Secretary has passed the impugned order independently, on the information supplied by the Director‑General.

13. Rule 13 provides:‑‑ "Review.‑‑(1) A petition under subsection (2) of section 14 shall be made in duplicate, in, Form 5, accompanied by a fee of five hundred rupees within thirty days of the decision of the Federal Government. (2) Before an order is passed in review the petitioner shall be afforded an opportunity of being .heard ".

14. Application on Form 5 relates to a petition for review of orders of the Federal Government refusing renewal of the licence/cancellation of the licence/suspension of the licence/forfeiture of security money. Under Item No.6 of the Form, the applicant is required to specify "Grounds on which the grant or renewal of the licence has been refused or the licence suspended/cancelled or security has been forfeited." Under Item No.7, the grounds for which review has been sought are to be specified. Under Item No.8, the date of the order of refusal/cancellation/suspension or forfeiture of the security, as the case may be, is to be stated.

15. A bare reading of rule 13(1) read with Form 5 and the office order, dated 9‑4‑1981, referred to above, would show that submission of an application for review by an aggrieved promotor is a condition precedent for vesting jurisdiction in the Reviewing Authority to entertain review of the orders of the B Federal Government refusing renewal of the licence to a promotor. Further the application must be accompanied by a Treasury Challan of Rs.500 and unless and until the requisite fee is deposited, no review petition can be entertained. In the instant case, the impugned order was passed by the Secretary in the purported exercise of his powers of review at the instance of the Director‑General which was ex facie ultra vires.

16. I also agree with the submission of Mr. S.M. 7‑afar, the learned counsel for, the petitioner that the provisions mentioned in Section 14(2) of the Ordinance must be construed in the same manner as an ordinary power of review hemmed by the principles laid down in Order XLVII rule 1 of the Civil Procedure Code (V of 1908). The scope and extent of the power of review has been authoritatively determined by the Supreme Court in Zulfiqar Ali Bhutto v. The State PLD 1979 SC 741, wherein it was held that "a review proceeding is neither in the nature of re‑hearing of the whole case, nor it is an appeal against the judgment under review. It is accordingly not permissible to embark upon reiteration of the same contentions as were advanced at the time of the hearing of the appeal, but were considered and repelled in the judgment under review, in an effort to discover errors said to the record." The scope and extent of review in the context of Martial Law Regulation 116 has been interpreted by the Division Bench of this Court in Muhammad Aslam Bajwa v. Federation of Pakistan PLD 1974 Lah.

545. The relevant portion reads thus:‑ "that on a general plane mere filing of an application for review does not destroy the finality of the orders sought to ‑be reviewed inasmuch as incidents of review are different from those of appeal. Appeal is a continuation of the trial proceedings and as and when appeal is filed the whole matter gets re‑opened and becomes sub judice whereas this is not the case of review in general. See Sagar Mal and another v. Parsotam Das and another AIR 1942 All. 36, wherein it was held that "the proceedings in review are not a suit and the mere filing of an application will not reopen a suit." Also see Raja Bhagwan Bakhsh Singh v. Mst. Manraji Kunwar AIR 1922 Oudh 148, where it was held that "a petition of appeal of necessity re‑opens in a Court of higher jurisdiction matter decided by a Court of lower jurisdiction. An application for review on the other hand does not of necessity, by the mere fact of its being filed, re?open questions settled between the parties by the same Court." in Dwarka Das Kedar Bux v. Ganjanan Jagannath and others AIR 1946 Cal. 10, it was held that proceedings by way of review are independent proceedings‑‑and we may respectfully add are not a continuation of the suit."

17. In the light of the precedent cases, I am of the view that as finality attaches to the decision given in appeal by the Federal Government under the proviso to subsection (1) of section 14 of the Ordinance, no review is permissible against the said order by the Federal Government in the exercise of its powers under section 14(2) read with Rule 13, by re‑opening the whole matter and that the power of review is confined to discover errors apparent on the face of the ' record.

18. In view of the above discussion, the impugned order dated, 15‑8‑1981 of the Secretary, Ministry of Labour and Manpower, Government of Pakistan, Islamabad, is declared to be without lawful authority and of no legal effect. The Director‑General is directed to renew forthwith the licence of the petitioner on payment of usual fee and other charges in terms of the order dated, 1‑4‑1981 of the Joint Secretary. The writ petition is accepted with costs. M.Y.H./A‑570/L Petition accepted.