Amjad Zaman Afridi Vs Government of KPK

JUDGMENT SHPET

PE ARHIGH COURT, PESHAWAR

(fudicial DePortment)

W.P No.4701-Pl2Q24 With Interinl Relief (N)

Amjad Afridi . . . . o,o o o o o....... o o o.. o o.. o o o o.,.. (Petitioner) vs

of Khyber Pakhtunkhwa through its Chief , Civil Secretariat, Peshawar and others. (Respondents)

IVIr. Ali Azim Afridi, Advocate for the petitioner.

N[r. Shah Faisal Utmankhel, Advocate General, Khyber Pakhtunkhwa assisted by Syed SikandarHaYat Shah, Addl. AG.

Date of 27

.IUDGMENT

Through the

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instant petitior, the petitioner Amjad Zaman Afridi called in question the vires and validity of proviso to section L7(1Xa) of the KhYber Payment of wages Act,20I3 (',the Act'), whereby it is specified that an appeal preferred under section 1 tbid could only be maintained if the sum of wages against is deposited beforehand with the and the memorandum of aPPeal is

with a certifi cate of deposit issued by said

section l5(l) of the Act 'Appointed in terms

Abdul Sabooh (D.B.) Hon'ble Mr. Justice Muhammad Naeem Anwar Hon'ble Mr. Justice Qazi Jawad Ehsanullah

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2.Learned corursel representing the petitioner states that said impugned provision of law in fact puts a clog on a statutory right of appeal made available to an employer and is therefore in conflict with his fundamental right of fair-trial and due process as envisaged in Art. 10-A of the constitution of Islamic Republic of Pakistan , 1973 ('Constitution). He places reliance upon a recent pronouncement of the Lahore High Court rendered in the case of 'Jan Muhammad Tayab vs. Federation of Pakistan' reported in PLI) 2024 Lahore 2ll, wherein identical provisions as contained in section 23(Q$) of the Foreign Exchange Regulation Act, 1947 were struck down on the

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touchstone of Art. 4 and 10-A of the Constitution.

Besides, in order to bring his client urder ttre ambit of an aggrieved person within the meaning of Art. 199 of the Constitution so as to enable him to put a challenge to the impugned provisions of the Act, learned counsel has also stated a brief context within which the petitioner has approached the High Court in the instant writ petition. He states that petitioner is a mine contract in Kurram Local coal mines. one Gul zada has been working under him in the coal mines. Latter has fi[ed a case against him for recovery of outstanding wages Abdul Sabooh (D.8.) Hon'ble Mr. Justice Muhammad Naeem Anwar Hon'ble Mr. Justice Qazi Jawad Ehsanullah

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including gratuity, which sum has been adjudged against the petitioner to the tune of Rs. 1,497,000/- by the Commissioner / Authority on 10.09.2024. Against that order, the petitioner has preferred an appeal before the Labour Court in terms of Section 17 of the Act but that appeal could not have been entertained unless the amount appeal against was deposited with the Authority and the latter had issued a certifi cate of such deposit and the certificate was to be attached with the memo of appeal.

I Conversely, learned Advocate General, Khyber Pakhtunltrwa on notice under Order XXVII-A CPC assisted by Syed Sikandar Hayat Khan, Addl. AG has argued that the Khyber Pakhtunkhwa Payment of Wages Act, 2Ol3 is a beneficial legislation; that its prime object as is discernible from abare reading of its preamble is to regulate payment of wages to certain classes ofpersons employed in factories etc.; that right of appeal is never a vested right unless it is conferred upon by law and legislature is well within its competence to put conditions precedents to structure the right of filing of an appeal which it has done in the Act so as to ensure that payment of adjudged wages is made to the employee(s) without any undue delay that Abdul Sabooh (D.B.) Hon'ble Mr. Justice Muhemmed Naeem Anwer Hon'bte Mr. Justlce Qad Jawed Ehsanullah

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may have to be cause on account of protracted titigation; that validity of a legislative instrument could only be called in question if the same is promutgated by a law making body having no competence to legislate upon a subject and if in case the impugned law or any of its provisions are running in direct conflict with the letter of arLy of the Articles of the Constitution or are violating upon the fundamental rights. Reliance in this context was placed upon the judgment of apex court in the case of 'Lahore Development Authority ys. Imrano Tiwana' reported in 20lS SCMR 1739. According to the learned law I officers, the impugned provisions were inserted in the Act with competence (of the provincial legislature) and the same were neither in derogation of any of the Articles of the Constitution nor were they offending upon any of the vested rights of the petitioner, therefore, the writ petition was liable to be dismissed.

L Heard. Before we proceed on to decide the core issue with rcgard to the vires of the impugned proviso, it is in the fitness of things to have an understanding of the jurisdictional contours of a High Court in matters of examination of the validity of the legislative judgment instrument or any of its parts while siuing in Abdul Sabooh (D.8.) Hontble Mr. Justice Muhammad Naeem Anwrr Hon'ble Mr. Justice Qazi Jawad Ehsanullah

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under Art. lgg of the Cdnstitution. In this particular conteXt, Lahore Development Authority suprd, &s has been aptly relied upon by the learned Advocate Gene rul I(hyber Pakhtunkhwa, is one of the most celebrated judgments of the apex court. In this very precedent, guiding principles for courts seized to exercise judicial review in matters of vires of a legislative enactment been highlighted, which for the sake of brevity are herein below;

i)There is a in favour of and a law must not be declared unless the statute placed next to the Constitution no way can be found in two;

ii)Where more one interpretation is possible, one of which would make the law valid the other void, the 1-) Court must the interpretation validity:;

which

iii)A statute never be declared unless its invalidity is beyond doubt. A reasonable must be resolved in favour of the being valid;

iv)If a case can decided on other or narTower the Court will abstain deciding the constitutional

v)The Court not decide a larger constitutional question than is necessary for determination of the case;

vi)The Court not declare a statute on the ground that it violates the of the Constitution

22015 scMR 1739.

Abdul Sabooh (D,8.) Mr. Justice lluhammad Naeem Anwar lVIr. Justice Qazi Jnwad Ehsanullah

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unless it also violates the letter of the Constitution;

vii)The Court is not concerned with the wisdom or prudence of the legislation but only with its constitutionality;

viii)The Court will not strike down statutes on principles of republican or democratic govemment unless those principles arePlaced beYond iegislative encroachment bY the Constitution;

ix)Mala fides will not be attibuted to the Legis

5.Having urderstood j urisdictional frameworks of the powers of the High Court in such like matters, it is now relevant to examine the significance of right of appeal and reasons why it has been considered so important to be provided in a particular statute(s). In the case of 'Federation of Pahistan and others v's' Public at Large and others 'reported in PLD 1988 SC

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202, the apex court while dilating upon the issue in hand has held as follows;

"We also consider that the Islamtc Ini ofA Oist and .sw authentication qf the declaration in bv Dis the s be E test the of such an

also

[emphasis suPPtied[

Abdul Sebooh (D.8.) Ilon'ble ll!r. Justice Muhemmad Naeem Anwar Hon'ble Mr. Jusdce Qrd Jrwed Ebsenulleh

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L Similar view was by the apex court while deciding other as well, and it was held that at least one right of was a natural right of an individual and same not be taken awaY3. Now coming back to the of the case, it is relevant to mention here that the in hand revolves around the proposition that whether of appeal provided in a statute could be clogged th a condition precedent of making fulI payment of amount appeal against before such appeal could entertained? And whether such condition is upon the fundamental rights of the petitioner, in other words a iudgment- debtor, guaranteed to by Art. 4, 9 and 10-A or e even 25 of the ?

L The proposition court is seized to decide is not of first impression jurisprudence in Pakistan is quite rich on the subject. before the insertion of Art. 10-A in the there have been a

ptethora of case-law identical sections in many other statutes Putting clog against the right of appeal have been before the suPerior courts and matters have been tatively laid to rest and 3 'Commissioner of Income Ta)c, Zone, Pesha,Yar v. Semen A.G' reported in PLD 1991 SC 368 and c through Secretary Ministry of Defence v. General Public'tePorted in 1989 SC 6 Abdul Sabooh (D.B.) Mr. Justicc Muhammad Naeem Anwar IVfr. Justice Qazi Jawad Ehsanullah

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decided. So as to reach to a just conclusion, it is irnperative to have a glance to such cases and judgments rendered which succinctly runs as follows;

L In the case of Eastern Rice Syndicate Y^s Central Board of Finance Ministry, Government of Pakistan others'reported in PLD 1959 SC (Pak) 364, the provisions of section 188 of the Sea Customs Act, 1878 came before the apex court for judicial . This impugned section of law also provided for deposit of adjudged sum of duty at the time of of an appeal. In this particular case, it was as under;

'oWe have been in each of these cases by the severity of the relevant law which is on the hand understood to empower the to multiply penalties up to as as five times arry value they may fix the goods in question, merely nugator,-v."

Iemphasis

9.Likewise, in Chenab Cement Product (Pvt.) Ltd. and others Ys Banking Tribunal, Lahore Abdul Sabooh (D.B.) Mr. Justice llluhammad Naeem Anwar Mr. Justice Qazi Jawad Ehsanullah

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and others' reported in PLD 1996 Lahore 692, amongst others, the provisions of Section g of the

Banking Tribunal Ordinance, 1984 were under challenge before a full bench of the Lahore High Court on the same ground that first proviso to Section 9 also contained a condition of full deposit of decreed sum so as to enable a pW to file an appeal against the judgment I decree of the Banking Tribunal. While deciding the core question, it was held as follows;

"7 .lnview of Article 2A and Article 227 of the Constitution of Islamic Republic of Pakistan, 1973, there cannot be any doubt that this Court is under an obligation to construe the statutes keeping in view the principles enshrined in the Holy Qur'an and Sunnah. See Commissioner of Income Tax, Peshawar Zone, Peshawar v. Semen A.G. PLD l99l SC 368. The Supreme court of Pakistan while examining the provisions of Pakistan Army Act ruled in Pakistan through \ Secretary, MinistrY of Defence v. General Public PLD 1989 SC 6 that under of of nsa a rsa natural riqht a tinq an ual w hich of be taken v

8.The question as to whether the right of appeal can be made subject to condition of deposit came before the Supreme Court of Pakistan in trI/s. Eastern Rice Syndtcate v. Central Board of Revenue PLD 1959 SC (Pak) s64 whe rein it was ruled that such a ndition. amoun to tion of the t w o rovNo to section 9 a

the view th the ble nd n be unheld.

9.While so holding we are fully conscious -of the fact that the public dues especially Abdul Ssbooh (D.B.) Hon'ble Mr. Justice Muhammad Nrecm Anwar Ilon'ble ll{r. Justice Qazi Jawed Ehsanullah

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those advanced under the Islamic System of Banking cannot be allowed to be stuck up and anxiety of the Legislature in this behalf must be respected. However, this purpose, can be achieved by enacting a law in the same nature as section 12 of the Banking Companies (Recovery of Loans) Ordinance, 1979 which vests a discretion in the Court to dispense with the condition of deposit of the decretal amount and instead order furnishing of security. We mav also state that as a matter of practice the execution of monev decrees are not staved bv this Court while hearine apoeals asainst such decree and as such apPrehension that durine pendencv of the appeals the Banks would bed of e decretal amount. is not well-founded. On the other hand, we have come across some cases, where the decrees have been passed against persons who are not borrowers or customers and in respect of properties belonging to third persons without following due procedure or keeping in view, the well-accepted principles of justice. In such cases one cannot deny the right of appeal, to the affected persons. If the decree passed by the Tribunal is legal and valid in all respects, surely the Appellate Court may not even interfere at the ltmine stage. The Appellate Court may well make stay subject to deposit of decretal amount. At this stage, it may also be mentioned that under section I I of the Banking Tribtrnals Ordinance, 1984, in case of non-payment of the decretal amount within the stipulated period, the Court is not powerless to Lompensate the decree-holder but can award liquidated damages."

[emphasis supPlied]

10.In 'Majeed Enterprises and others v,s. United Bank Ltd.A too the provisions of section 9 of the Banking Tribunal Ordinance, 1984 were subject matter 1994 CLC 2292 [Karachi].

Abdul Srbooh (D.8.) Hon'ble Mr. Justice Itluhemmed Neeem Anwer Hon'ble Mr. Justice Qrd Jawed Ebsanullah

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of challenge before the Sindh High Court at Karachi and it was ruled as follows;

"2. Through this application learned counsel for the appellant seeks exemption from furnishing security as a precondition of the filing of this appeal. In fact even if the appellant wanted to furnish security we could not accept it in view of the mandatory provision in the first proviso to section 9 of the Banking Tribunals Ordinance, 1984. Since the requisite deposit of the decretal amount has neither Preceded nor is contemporaneous with this appeal, the application has to be dismissed and the appeal also simultaneously has to meet the same fate. We do so accordinglY.

\ However. it is the consistent view of the superior Courts in this countrv that ana denosit the a t as L D ndi the risht of anneal is illusorv and not the nature of an adequate remedv. In such circumstances Constitutional jurisdi ction of the Court is attracted. The appellant may if it chooses file a Constitutional petition."

[emphasis supptied]

11.In the case of 'ltI/S Sonia Silk vs. Central Board of Revenue through Chairman, Islamabad and 4 others' reported in 2001 PTD 1789, section 129(2) ot the Income Ta>r Ordinance, 1979 were examined by the Lahore High Court whereby the right of appeal was identically clogged by the condition precedent of the deposit of whole or portion of adjudged tax liability.

Such provisions as contained in section 129 ibtd were held to be contrary to the law laid down by the fulI Abdul Saboolt (D.8.) Hon'ble Mr. Justice Muhrmmrd Naeem Anwer Ilon'ble Mr. Justice Qad Jawad Ehsanullah

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bench of Lahore High Court in the case of 'lt'I/S Chenab Cement supras and was not given effect to' For the facility of reference, relevant paxagraph of the ibid judgment is reproduced as under;

"Prima facie the condition to deposit a portion of the tax amount is contrary to the judgment of the Full Bench in the case of Messrs Chenab Cement Product (Pvt) Ltd. and others v. Banking Tribunal, Lahore and others PLD 1996 Loh. 672 and, as such, it is directed that petitioner's appeal shall be entertained without insisting upon any deposit."

12.The proposition of deposit of excessive amount of court fee of Rs. 5 million urder the relevant provisions of Pakistan Public Proctrement Authority Rules was dilated upon and decided by learned Islamabad High Court too in the case of 'I'I/S ZOHONGDING International Engineering Company Ltct. through Authorized Representative v^t. National Highways Authority and 2 others' reported in 2023 c[,c 1163, in which such provisions were not subscribed to and the appeal was decided on merits.

13.Last but not the lease, the case of Jan o

Muhammad Tayab ys. Federation of Pabistan and 7 others' reported in PLD 2024 Lahore 2ll, reference to which has already been given in the beginning of s PLD lggfLahore 672

Abdrtl Snbooh (D.8.) Ilon'ble Mr. Justice Muhemmed Neeem Anwar Hon'blc Mr. Justicc Qad Jrwrd Ehsenullah

this judgment, which case-law was emphatically relied upon by the learned counsel for the petitioner as it has struck down similar provisions in the Foreign Exchange Regulations Act, 1947 by following the precedents that have made reference of.

14.A careful analysis of the case-law noted above clearly gives it to understand that no doubt a right of appeal is not an inherent or vested right but is a creation of statute. Legislature is quite competent to lay different conditions when is proposes to confer upon a party such right to challenge an order before a higher forum lforo like for instance requirement to pay

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court fee; of sending pre-filing notice to the other side etc. But if incase the conditions so imposed are such that these are too onerous and cumbersome so as to render the very right of appeal as illusory, redundant or arduous, then obviously the same are not to be given effect to by the courts. Such clogs infioduced have consistently been considered so as to curtail the right of appeal and render the sarne nugatory; and are taken as they run in direct conflict of the letter of Art' 4, 9 and 10-A ofthe Constitution.

It needs hardly to reiterate that the Khyber Paktrtun}*rwa Payment of Wages Act, 2Ol9 is a Abdul Sabooh (D.B.) Hon'ble l{r. Justice llluhammad Naeem Anwer Hon'ble Nfr. Justice Qazi Jawed Ehsanullah

v -t4- beneficial legislation promulgated for the larger benefit of worker / labour class of employees but while providing a right of appeal to one litigating side, a balance has to be maintained for both parties and undue preference and tilt towards the employee by relegating the employer or any other party in the mafller that it has to necessarily deposit the whole sum adjudged against before it could have a recourse to appeal is too onerous and arduous as it renders the very purpose of appeal just illusory, ineffective and sham' Besides, it is also too lop-sided and discriminatory against one set of litigating pW that it cannot withstand the test of Art. 25 0f the constitution of Pakistan. It can therefore be safely concluded that the impugned proviso to section 17(1)(a) of the Khyber Paktrtunktlva Payment of Wages Act, 2013 is ultra vires the Constitution of Pakistan with particular' reference to Art. 4,g,lo-A and25 thereof. such being a case the courts / tribunals shall not give effect to such impugned provisions6 and the appeals filed under section 17 ibid are to be dealt with, entertained and decided on merits without requiring a party to deposit the sum adjudged in the order appealed against' 6,Wali Muhammad vs. Government of West Pakistan utd 3 others'reported in PLD 1970 Peshawar 119

Abdul Sabooh (D.8.) flon'ble Mr. Justice lVluhammad Naeem Anwar llon'ble Mr. Justice Qazi Jawatl Ehsanullah

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15.As a sequel to above, the writ petition in hand succeeds and is accordingly allowed I accepted on the above terms.

Announced:

Dt: 27,03,2025 N JUD GE

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DGE

Abdul Sabooh (D.B.) Hon'ble Mr. Justice Muhammad Naeem Anwar Hon'ble Mr. Justice Qazi Jawad Ehsanullah