Enforcement

The applicant filed an application under section 6 of the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 (the Act 2011) seeking enforcement of the foreign arbitral award

The dispute arose from a commercial relationship whereby the respondent purchased Porsche vehicles from the applicant for distribution in Pakistan

Due to commercial differences, the respondent initiated arbitration in a foreign country

Both parties appeared and submitted cross-claims

The arbitrator dismissed all claims except for the applicant's claim for outstanding sums

Despite notice, the respondent failed to file objections or appear

Held: None of the grounds for refusal for enforcement of a foreign award as provided under Article Vof the Schedule provided under the Act 2011 could be claimed by the respondent

First and foremost, it was the respondent itself who initiated the arbitration proceedings

Secondly, the respondent appeared and contested the arbitration

Finally, the respondent did not file any objections to the award, despite a lapse of over two years

There remained no impediment under the prescribed law to enforce the award

The award was recognized as binding and enforceable and as such the same was made a Rule of the Court

The applicant was granted the amount represented in the award which was to be executed as a decree of the High Court

In terms of O. XXI, R. 10, C.P.C., the present application was converted into execution proceedings

There was four Porsche vehicles belonging to the respondent lying at the Karachi port regarding which Nazir of the High Court was appointed to ascertain the status of the same for attachment of said vehicles in order to satisfy the award

Matter was adjourned for submission of report of Nazir regarding status of the mentioned vehicles

Present application was accepted and award was made rule of court.

Notification No.149-2017/186/Admin-I dated 22-06-2017 and Notification No. SOFT (EXT)XII-2/2009 dated 15-09-2009, issued by Government of Punjab

Fundamental rights

Enforcement

Mal governance

Natural disaster

Loss of human lives

Provincial Disaster Management Authority (PDMA), role of

Petitioners approached High Court to initiate actions against officials responsible for loss of lives of 22-tourists, who got stuck in a blizzard in Murree after remaining stranded in their vehicles for whole night

Validity

Legislative object of National Disaster Management Act, 2010, could best be achieved through proper coordination of the offices mentioned in schedule to Notification No.149-2017/186/Admin-I dated 22-06-2017, issued by Government of Punjab

Record showed that though role of PDMA in disaster management was nothing less than a protagonist but it badly failed to cope with the situation

Metrological Department issued forecast of heavy snowfall and not about the blizzard

Even forecast of heavy snowfall was not properly transmitted to concerned Departments either by Metrological Department or by PDMA

Event which led to loss of 22-lives did not give rise to any criminal aspect, thus registration of case was not warranted

Government of Punjab could not be absolved from its responsibility and mishandling of affairs in the region by various departments which could be described as one of the causes behind the tragedy

Provincial Government shall enhance compensation amount to the families of every victim

Provincial Disarter Management Authority should devise proper plan for achieving object of National Disaster Management Act, 2010, by making plans of disaster management in areas vulnerable to calamities, and organize specialized training programs for officials, voluntary rescue workers and members of communities

Representatives of Metrological Department should be included in the structure of District Disaster Management Authority

Administrative instructions or administrative guidelines or even Standard Operating Procedures without requisite legal backing cannot be allowed to make inroads in and dilute fundamental rights as contained in the Constitution

Administrative instructions are neither laws nor rules and these can only be subservient to laws and rules and, therefore, cannot be allowed to dilute the allowance and freedom afforded by the Constitution.

For enforcement of fundamental right against a Limited Company owned and managed by Government and engaged in discharge of any public duty, Constitutional petition can be maintained and High Court can exercise its jurisdiction in terms of Art. 199 of the Constitution.

Plaintiff was employee of defendant Bank, who sought his reinstatement in the service and had also sought recovery of damages

Validity

Servant of private bank could not be forced upon his master

Master was always entitled to say that he was prepared to pay damages for breach of contract of service but would not accept services of servant

Contract of personal service could not be enforced under the provisions of S.21(b) of Specific Relief Act, 1877, whereas breach of contract could give rise to only two reliefs, i.e. damages or specific performance

If specific performance was barred under the law, only relief available was damages

When a master in breach of his contract refused to employ servant, only right that survived to employee was right to damages and nothing else

No relief or decree could be passed against unwilling master

Plaintiff had only one remedy i.e. to sue for damages / money

High Court declined to grant interim injunction in favour of plaintiff as no prima facie case was made out by plaintiff and no irreparable loss would be caused to him if injunction application was denied, balance of convenience also did not lie in favor of plaintiff

Application was dismissed, in circumstances.

When an Act of Parliament provided that it will come into force at once then every provision of it became enforceable from the day the Act received the assent of the President unless any provision of the Act itself suggested that it would come into force only when some authority nominated in such behalf so decided or on the happening of an event

Where the legislature intended to leave a matter for the Federal Government to decide before it was given effect to then it specifically stated so in the law itself.

Plaintiff agreed to deposit monthly instalments on the last day of each month failing which he was required to be penalized at the rate of 1% per day for late payment

Defendants before imposing penalty were required to serve three day's notice upon the contractor for doing the needful and in case of failure to pay instalment the penalty was to be imposed

Plaintiff committed default in payment of instalments and penalty

Plaintiff filed suit against the said penalty which was dismissed by the Trial Court but Appellate Court decreed the same

Validity

Entire clause of contract for the purpose of imposition of penalty should be read and a part thereof could not be interpreted in isolation from the rest of the contents of said clause

Plaintiff for invoking penal clause should have been served with a notice for payment of instalments within three days when first ever default was committed and contract should have been cancelled for non-payment of instalments

Defendants never opted to invoke the penal clause as per agreed terms but they waited till expiry of contract

Defendants after receiving entire contract amount had started recovery of penalty by pressing into service the penal clause of the contract

Defendants remained quiet in continuous default of contractor for his non-payment of monthly instalments within due time for eight months and had accepted amount being deposited after stipulated period

Principle of acquiescence was applicable in the present case

Defendants could not press into service the penal clause of contract after expiry of contract period

Three day's notice was sine qua non for invoking the penal clause of contract and in absence of said notice no penalty could be imposed

Controversy should have been resolved on the agreed terms and conditions of contract

Defendants had not served any notice to the plaintiff for making payment of instalments within three days from the first ever default

Contractor could not be penalized, in circumstances

Revision was dismissed accordingly.

Scope and significance.

Principles governing the judicial control of contracts through the instrument of public policy, stated.

Role of the Constitution (of South Africa), concepts of public policy, fairness, reasonableness, justice and 'ubuntu' with regard to enforcement of contractual terms.

Application of public policy in determining the unconscionableness of contractual terms and their enforcement must, where constitutional values or rights were implicated, be done directly in accordance with notions of fairness, justice and equity, and reasonableness, which could not be separated from public policy

Public policy took into consideration the necessity to do simple justice between individuals and was informed by the concept of 'ubuntu'

Question as to what public policy was and whether a term in a contract was contrary to public policy must be determined by reference to the said values

Such approach left space for pacta sunt servanda to operate, but at the same time also allowed courts to decline to enforce contractual terms that were in conflict with constitutional values even where the parties consented to them

In cases where constitutional values or rights were alleged to be implicated in the application of public policy in the invalidation or enforcement of contractual clauses, the notions of fairness, reasonableness and simple justice between persons were the unmediated standards against which the validity of the clauses or their enforcement was judged.

Scope.

Freedom of contract was not the only principle of law of contract, nor was good faith; they both complemented each other.

[Per Theron, J (Majority view): Public policy imperative to enforce contractual obligations that had been voluntarily undertaken recognised the autonomy of the contracting parties and, in so doing, gave effect to the central constitutional values of freedom and dignity

Such imperative provided the requisite legal certainty to allow persons to arrange their affairs in reliance on the undertakings of the other parties to a contract, and to coordinate their conduct for their mutual benefit

With respect to enforcement of a term, notions of unfairness, unreasonableness or unduly harsh consequences were abstract values which had not been accorded autonomous, self-standing status upon which a court may interfere in contractual relationships]

[Per Froneman, J (Minority view): In cases where constitutional values or rights were alleged to be implicated in the application of public policy in the invalidation or enforcement of contractual clauses, the notions of fairness, reasonableness and simple justice between persons were the unmediated standards against which the validity of the clauses or their enforcement was judged

[Per Victor, AJ (Minority view): Adjudication of fairness in contract could not be plucked from a set of neutral legal principles

'Ubuntu' was an important value which stood alongside other values such as good faith, fairness, justice, equity, and reasonableness

Characterising ubuntu as an adjudicative value in reaching substantive fairness between contracting parties, would achieve a constitutionally transformative result

Furthermore, the recognition of ubuntu in interpreting contracts would not undermine the concept of certainty and contractual autonomy]

Comparative jurisprudence on the role of 'good faith' in enforcement of contractual terms.

Regulation of unfairness in contract law involved making an underlying moral or value choice within the objective value system of the Constitution

Further guidance should be provided on how such objective values could possibly be translated into practical application

Purpose of court must be to delineate reasonably certain, practical and objective legal principles and rules to guide prospective contracting parties

In so doing the caricature of rogue judges imposing their own subjective and arbitrary opinions of what was fair and reasonable upon unsuspecting litigants must be dispelled

Such approach was best achieved by recognising that the individualism of the law of contract was one that had always taken account of the reasonable expectations of the parties to the contract as well as those of the wider community; this could be done in a manner that ensured objective, reasonable practicality and certainty. [Minority view]

In case of an oral contract, clearest and more satisfactory evidence is demanded by Court.

Relief sought by petitioners was primarily with regard to enforcement of contractual obligations between parties and same could not be enforced or granted while exercising discretionary jurisdiction of High Court under Art. 199 of the Constitution

Appropriate remedy for such matters was through suit before civil court of competent jurisdiction

High Court declined to interfere in the matter as petition was not maintainable for seeking directions of payment through enforcement of contractual obligation where there was serious objection regarding execution and completion of work

Constitutional petition was dismissed in circumstances.

NAB authorities did not follow legal course as provided under National Accountability Ordinance, 1999, and also violated principles of natural justice, while initiating proceedings under National Accountability Ordinance, 1999, against accused person, even without proper authorization of inquiry and investigation

National Accountability Bureau in most of the cases, instead of providing opportunity to accused to explain allegations against him by issuing notice in terms of S.9 of National Accountability Ordinance, 1999, the arrest of accused is made against spirit of provisions of Ss.19 & 24 of National Accountability Ordinance, 1999, and also in violation of express provision of S.54, Cr.P.C. and deprive a citizen of his fundamental right of liberty and fair trial as guaranteed under the Constitution

Court has to jealously safeguard Fundamental Rights as guaranteed by the Constitution, particularly right to life and liberty of a citizen by invoking its extra ordinary constitutional jurisdiction under Art.199 of the Constitution

Any authority is required to act strictly in accordance with law and to perform its duty in the manner in which it has been authorized under the law

Violation of any statutory provision, rules or regulations makes such act of the Authority as illegal and unwarranted under law.

Plaintiff filed suit for specific performance of agreement to sell and the same was decreed on the basis of compromise between the parties

Housing Authority declined to transfer plot in favour of plaintiff on the ground that no title existed in the name of defendant which could be transferred

Single Judge of High Court declined to direct Housing Authority to transfer suit plot in favour of plaintiff

Validity

Decree passed on the basis of compromise by and between the parties was essentially a contract between parties which derived sanctity by court by superadding its seal to a contract

Such compromise even after it was superadded with seal of court had almost all the ingredients of a contract, therefore, it could be set aside on any of the ground on which a contract could be attacked such as fraud, mistake or misrepresentation

Only the parties who were signatory to the contract were bound by terms and conditions so recorded and agreed upon between them

Court could not while enforcing terms and conditions so agreed between parties to the contract notwithstanding that such contract was superadded with seal of court and turned in a consent decree would compel a third party to obey unless a fiduciary relationship between judgment debtor and such third party was established

Division Bench of High Court declined to interfere in order passed by Single Judge of High Court

High Court appeal was dismissed in circumstances.

Vested right should in letter and spirit be enforced at all costs, except where it was unenforceable on account of any specific legal bar or it stood obliterated or taken away by or under the law.

Right of a company and power of its shareholders/Board of Directors, to increase or decrease authorized share capital, if denied, can be enforced through a court of law

Such valuable right of company and special and exclusive power of its shareholders/Board of Directors is not intangible, imaginary or incapable of being transferred.

Question as to whether the petitioner completed the work in accordance with terms and conditions of contract or not, could not be resolved in the constitutional jurisdiction as recording of evidence was necessary to resolve the same

Unpaid amount for the work carried out by the petitioner, could be proved, through evidence in ordinary court, having jurisdiction, because if the amount was ascertained and was admitted by the respondent in that eventuality High Court could exercise its discretion in favour of the petitioner

Not only claim of the petitioner but also the work claimed to be done by the petitioner was disputed

Such controversy being fatual could not be resolved in the constitutional jurisdiction

Constitutional petition was dismissed.

Directions given to Capital Development Authority stated.

Remedy of specific performance of a contract being equitable in nature cannot be granted to enforce a transaction declared void by a statute.

Participation in a public auction subject to fulfilling requisite qualification is a legal right of a person and a wrong action in respect of such right in breach of the law is actionable at law; therefore a successful bidder in an public auction may on wrongful rejection of his bid by availing the legal remedy take action for enforcement of his right but an unsuccessful bidder cannot defeat the legitimate right of contract of successful bidder on the basis of claim of re-auction for technical reasons

Principles.

Pre-emptor asserted that he came to know about the sale of suit-land when he was sitting in his house along with the witnesses at evening time

Trial Court decreed the suit in favour of plaintiff but Lower Appellate Court dismissed the same

Validity

Witness of pre-emptor contradicted his statement and stated that he came to know about the sale of suit property on the same day at about 4/5 in the evening and he informed the pre-emptor about the sale of suit property in presence of other witnesses

During cross-examination pre-emptor's witness admitted that before sale of suit-land everybody was informed that any person who was interested in purchase of the land he could purchase the same; proper notice as required under the law therefore, was served upon residents of the area including pre-emptor

Pre-emptor's witness stated that "Shaam"/evening meant after 7:30 P.M. and another witness of pre-emptor stated in his examination-in-chief that pre-emptor was informed about sale of suit-land at 5`O' clock afternoon

None of the witnesses was constant on the point and there were discrepancies amongst the statement of all pre-emptor's witnesses

Pre-emptor was also estopped by his words and conduct to file the suit because vendor had already announced about the sale of suit-land which was in the knowledge of residents of the area

High Court did not find any jurisdictional error in the judgment passed by Lower Appellate Court, warranting interference by High Court

Revision was dismissed in circumstances.

Employee, who was dismissed from service on ground of misconduct, filed grievance petition against dismissal, which was allowed and he was directed to be reinstated in service

Employer filed appeal against such order of the Labour Court, urging that matter be remanded to the Labour Court as Presiding Officer of the Labour Court in his judgment had concluded that no cross-examination of employee's witness was conducted

Cross­-examination of witness of the employee was marked nil as none was found present for the employer

Said error was very apparent on the face of the record of the case

Matter was remanded to the Labour Court to examine afresh the evidence and afford an opportunity to employer for cross-examination of the witness of the employee

If the witness would fail to appear or other side failed to cross-examine without sufficient cause, then the order as deemed fit be passed and the matter he decided accordingly within specified period.

Employee serving as Junior Store-Keeper, was dismissed from service on allegation that he was found to be negligent and responsible for shortage of material

Employee though was reinstated in service, but, he was denied back­-benefits

Validity

Once court of competent jurisdiction would come to the conclusion that termination of service of an employee was unlawful, such employee, as a matter of course, should be granted back-benefits, unless employer was able to establish by cogent evidence that said employee had been gainfully employed elsewhere

Initial burden to prove lay upon the employer and not upon the employee to prove that such employee was gainfully employed during the relevant period

No evidence had been brought on record by the employer to establish that employee was gainfully employed elsewhere

Employee, in circumstances, had become entitled for back-benefits for the period for which he had not been found to be gainfully employed elsewhere

Order passed by the Labour Court was modified accordingly.

Employee was dismissed from service after charge-sheeting him and holding inquiry against him on allegation of misconduct

Grievance application filed by employee against his dismissal having been dismissed by the Labour Court, employee had filed appeal

Employee was afforded full and fair chance to participate in the inquiry proceedings

Employee cross-examined all the witnesses produced before the Enquiry Officer at sufficient length and after recording of the statements of the witnesses the signature of the employee was obtained on each and every page of the enquiry proceedings

Enquiry conducted against the employee did not suffer from any illegality or infirmity and no independent evidence had been brought on record to inflict any dent in the enquiry conducted by the Enquiry Officer against the employee

Dismissal of employee on the basis of recommendation of the Enquiry Officer was not result of bias or mala fide against employee

Employee had also not led any evidence to show that Enquiry Officer had any personal grudge, bias or enmity against him to hold him guilty of committing misconduct

Findings of the Labour Court not suffering from any illegality or infirmity, could not be interfered with by the High Court in appeal.

Employee, who was employed as helper in the employer's factory, was removed from service after serving upon him notice and holding inquiry against him on allegation that he was guilty of misconduct

Enquiry Officer, after evaluation of whole evidence available before him, observed that employee was guilty of misconduct and recommended his removal from service on said recommendations

Full and fair chance was afforded by the Enquiry Officer to the employee to participate in the enquiry proceedings and employee had participated in the enquiry proceedings

Throughout proceedings the employee did not raise any objection on the appointment of the Enquiry Officer nor allege any mala fide, bias and enmity against him

Effect

Employee was afforded full and fair opportunity to rebut the allegations contained in the charge-sheet against him, but he failed to produce any evidence showing reasonable discrepancy in the statements of the witnesses recorded before the Enquiry Officer

Enquiry Officer had produced all the enquiry papers, statements and his recommendations before the employer against the employee, in his enquiry report

Trial Court appraised the whole evidence brought on record regarding allegation of misconduct committed by the employee

Trial Court did not find any material defect in the enquiry conducted by the Enquiry Officer against the employee and had rightly refused the reinstatement of the employee

Order passed by the court below, did not suffer from any illegality or irregularity so as justify interference with it.

Services of employee were terminated after serving him show-cause notice and holding ex parte enquiry against him on allegation that he misbehaved with Shift Engineer and also had beaten him mercilessly

Enquiry Officer served notice on the employee for his appearance before him on appointed date

Employee in pursuance of said notice appeared before the Enquiry Officer and applied for adjournment for two days on the ground that his co-worker was not in attendance and that in his absence he could not participate in the enquiry proceedings

Enquiry Officer, instead of granting two days time as prayed for by the employee, allowed only two hours time and after expiry of said two hours employee did not turn up, and Enquiry Officer proceeded ex parte and after recording statements of the witnesses submitted his report to the employer, who, on basis of said report of Enquiry Officer, terminated services of the employee

Validity

Granting only two hours time to the employee by the Enquiry Officer, in any way was not justified and same was not sufficient to delinquent worker to put forward his defence before the Inquiry Officer

Even otherwise grant of two hours time was not supported with any provisions of law holding the act of Enquiry Officer as lawful

Enquiry Officer proceeded with the enquiry in absence of the employee and recorded the statements of the witnesses; and said act of the Enquiry Officer appeared to be in violation of principles of natural justice

Labour Court, in circumstances, had rightly found that Enquiry Officer did not conduct the enquiry legally and properly

Appeal was dismissed

Employee was reinstated because enquiry was not conducted properly

Employer was at liberty to conduct enquiry against the employee.