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Constitutional Petition No. 482 of 1974, decided on 4th April 1977.

----S. 36‑D read with Karachi Port Trust Act (VI of 1886), S. 23(1), proviso and Penal Code (XLV of 1860), S. 21-- Officer"‑Defini tion‑‑Labour Welfare Inspector of Karachi Port Trust‑Held, an "Officer"‑Chairman of Karachi Port Trust delegating his powers to Labour Welfare Inspector of his office to present appeal on behalf of Trust before Labour Court‑Order of dismissal of appeal by Labour Court on ground that it was not filed by an authorised officer‑Held, without lawful authority and declared to be of no legal effect.

G. A. Monterio v. The Estate of Ajmer P L D 1956 S C (Ind.) 170 ref.

S. A. Sarwana for Appellants.

M. A. Rashid for Respondents.

Date of hearing t 4th April 1 977.

Sibghatullah respondent 1 filed an application under section 25‑A of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance) which was allowed by the Junior Labour Court II, Karachi by the order dated 14‑11‑1973.

2. Aggrieved by this order Karachi Port Trust and Chief Mechanical & Electrical Engineer, petitioners filed an appeal under section 36‑D of the Ordinance before the Labour Court V, Karachi which was later on transferred to the Labour Court II, Karachi and was numbered as Appeal No. 21 of 1974. This appeal was dismissed on the sole ground that it was not signed by authorised person.

3. It is this order which is impugned in the present petition under Article 199 of the Constitution.

4. Mr. S. A. Sarwana learned Advocate for the petitioners has produced before me the power of attorney which has also been seen by Mr. Mirza Abdul Rashid, Advocate for the respondent. This power of attorney was also produced before respondent 2 and it finds mention in his order. The relevant passage of the order is as follows :‑----

"From the title head of the appeal it is clear that the appeal has been filed by the Karachi Port Trust and Chief Mechanical and Electrical Engineer. There is nothing in the appeal to suggest that the appellants had authorised Mr. Sarwar the Labour Welfare inspector to file this appeal. Learned counsel for the respondent at the time of arguments just showed me the two powers of attorney which were with him. Now the question would arise whether the appellants were competent to authorise Mr. Sarwar. It is only the aggrieved party who could file the appeal but it is not left open for any body to come and file the appeal on behalf of aggrieved person Mr. Sarwar the Labour Welfare Inspector is of Grade II‑A therefore he could not be deemed to be either competent authority or even officer of the appellants because he is consi4ered to be of the lowest grade."

5. I have heard Mr. S. A. Sarwana, Advocate for the petitioners and Mr. Mirza Abdul Rashid, Advocate for respondent 1.

6. It is submitted by Mr. Sarwana that Mr. Sarwar the Labour Welfare Inspector who had presented the appeal was lawfully authorised by the Chairman to present the appeal on behalf of the Karachi Port Trust petitioner 1. He was also authorised by petitioner 2 namely, Chief Mechani cal & Electrical Engineer, K. P. T., Karachi. It is not disputed by Mr. Mirza Abdul Rashid, Advocate that the Karachi Port Trust is a statutory body and exercises its powers and functions either through its Board or through its Chairman or other officers and servants appointed either by the Board or by its Chairman. However Mr. Mirza Abdul Rashid, Advocate submitted that the Chairman could not delegate his powers to Sarwar who bad signed the appeal.

7. In my opinion the submission is misconceived in view of the pro visions of section 23 (1) of the Karachi Port Trust Act, 1886 which provides as follows :‑

"23.‑‑(1) Subject to the provisions of the regulations made under section 22 and of the schedule of officers and servants for the time being in force, all administrative powers including those of appointing promoting, suspending and punishing the officers and servants of the Board and of grant of leave to them shall be exercised by the Chairman in the case of persons drawing pay in the scale of which the maximum does not exceed five hundred rupees and in every other case by the Board provided that the Chairman may by order in writing delegate all or any of his powers under this subsection to the respective Heads of Departments or such other officer as he may think fit."

8. It will be seen from the above provisions that the Chairman, K. P. T. is authorised to delegate his powers to any officer of the Karachi Port Trust. The word 'officer' has not been defined in the Karachi Port Trust Act, 1886, nor has it been defined in the General Clauses Act. However, the word 'officer' finds place in the 10th description of the words 'public servant' contained in section 21 of the Pakistan Penal Code and was considered in that context by the Supreme Court of India in G. A. Monterto v. The Estate of Ajmer (P L D 1957 S C (Ind.) 170) and it was observed as follows :‑‑

"The true test, therefore, in order to determine whether a person is an officer of the Government, is;

(1) Whether he 1s in the service or pay of the Government, and

(2) Whether he is entrusted with the performance of any public duty.

If both these requirements are satisfied it matters not the least what is the nature of his office. Whether the duties he is performing are of an exalted character or very humble indeed. As has been stated in Becon's Abridgement at Vol. VI, page 2, in the article headed of the nature of an officer and the several kinds of officers.

The word 'offcium' principally implies a duty, and in the next place, the charge of such duty, and that it is a rule that where one man path to do with another's affairs against his will, and without his leave, that this is an office, and he who is in it is an officer"

The next paragraph thereafter may also be referred to in this context ;

"There is a difference between an office and an employment, every office being an employment, but there are employments which do not come under the denomination of offices 1 such as an agreement to make hay, herd a flock, etc. which differ widely from that of steward of a manor" etc, (Vide 12 Bom. H. C. R. 1 at page 5).

This was the sense in which the decision in 12 Bom. H. C. R. 1 was understood by the learned Judges of the Lahore High Court in Ahad Shah v. Emperor, when they observed at page 157;

But it is not enough that a person should be in the pay or service of Government to constitute him a public servant within the meaning of section 21 (ninethly), P. P. C. He must also be an 'Officer'. That expression is not, of course, to be restricted to its colloquital meaning of a Commissioned or non‑Commissioned Officer, it means a functionary or holder of some 'Offcum' or office. The office may be one of dignity or importance, it may equally be humble. But whatever its nature, it is essential that the person holding the office, should have in some degree delegated to him certain functions of Government."

9. Following the above observation I am inclined to hold that to be an, 'officer' it is not necessary that one must be of a higher grade and accordingly Sarwar the Labour Welfare Inspector even though ho was of Grade II was an 'officer' within the meaning of the proviso to subsection (1) of section 23 of the Karachi Port Trust Act, 1886. Moreover, it is not disputed before me that Sarwar was not an officer of the Karachi Port Trust or that he was not armed with the authority of petitioner 2. In any case, since Sarwar had been appearing and attending the proceedings before the Junior Labour Court without any objection from respondent 1 norm of justice required that the Chairman, K. P. T. should have been given an opportunity by respondent 2 to himself sign the appeal. Therefore, the order of dismissal of the appeal on the ground that it was not filed by an authorised officer is without lawful authority and it is accordingly declared to be of no legal effect.

10. I may also mention that another submission of Mr. Miiza Abdul Rashid was that the Chairman bad no powers to re‑delegate his powers but it is not a case of re‑delegation but simply of delegation of powers under the proviso to subsection (1) of section 23 of the Karachi Port Trust Act, 1886.

11. In the end, Mr. Mirza Abdul Rashid. Advocate consents to remand of the appeal for decision on merits. I accordingly, remand it for decision on merits. I however, leave the parties to bear their own coati.

S. Q. Case remanded.

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