Pir Law Associates

21/10/2023

"One reason why birds and horses are not unhappy is because they are not trying to impress other birds and horses.
So, shun to impress others and you will not be unhappy." - courtesy

20/10/2023

VIRES OF SECTION 3 OF THE LAW REFORMS ORDINANCE, 1972 REGARDING INTRA COURT APPEAL

It is a known maxim that nature makes no vacaum and the law makes nothing purposeless.

One do have right either to agree or not to agree and even to disagree with the maxim ibidem.

Correct. The law makes nothing purposeless. The law always volunteers to shackle itself for sake of remaining within defined limits.

Here, in this essay the vires of Section 3 of the Law Reforms Ordinance, 1972 are discussed and the scope of Intra Court Appeal provided therein with the assertion that the vires and the purpose of the same still remain undefined.

Admittedly, the right of an Intra Court Appeal cannot be supposed to equate with the right of an ordinary appeal because an appeal against a decision is always preferred to the higher forum; from inferior to the superior.

Whereas when a decision is petitioned against for revisiting the same before the same forum/Court, it may be done not through an appeal but review. The scope of review is not only narrow but is conditioned by certain limitations i.e, arithmetical mistakes in the decision, clerical mistakes in the decision, any error due to oversight or anything uneven because of accidental slip.

When an order/decision is passed under Article 199 of the Constitution of Pakistan, 1973 by a single or more Hon'ble Judges, this obviously is deemed to have been passed by the High Court. Therefore, if the decision passed by a Single Bench is assailed before the same Court, though it be a Division Bench or a Larger Bench constituted by the Hon'ble judges of the High Court, the same Court/High Court, under such circumstances, can not be supposed, stricto senso, to sit as a Court of appeal. It just amounts to reviewing or revisiting the order. The scope of ICA is not wider than that of the review. Reliance in this respect may be placed on 2004 CLC 1104 and 2000 MLD 240, wherein it has been held by the superior Courts that ambit of an Intra Court Appeal under Section 3 of the Law Reforms Ordinance, 1972 is like review petition under order XLVII Rule-1 of the C.P.C. and is meant to correct some error apparent on the face of the record; Intra Court Appeal Bench can not substitute its own viewpoint in place of one given by the Single judge in Chamber under the Constitutional jurisdiction.

Without prejudice to the foregoing submissions, it is supplicated that the validity of Section 3 of Law Reforms Ordinance, 1972 is under doubts.
In the Proviso to section 3 of the Law Reforms Ordinance, 1972 the words "Article 199" were introduced by Act VI of 1975. Admittedly, the power conferred upon Hon'ble High Courts to decide an ICA is statutory in nature while the order/decision passed in a Petition under Article 199 of the Constitution by a Single Bench of Hon'ble High Court is admittedly to be passed while exercising the power which is Constitutional in nature.

Had the legislature intended to provide a right of appeal against an order passed under Article 199 of the Constitution, it would have got the purpose by dint of making amendment in the Constitution!

Therefore, a Division Bench of a High Court can not be supposed to reverse an order passed under Article 199 of the Constitution while exercising its statutory powers. In view of this the scope of Section 3 of the Law Reforms Ordinance, 1972 is limited to that of a review and can not be stretched out to set aside the order passed under Constitutional jurisdiction by the learned Single Judge of a High Court.

Courtesy.

19/10/2023

The Association considers the death of the great S.M.Zaffar, a jurist & a lawyer, as loss of unparalleled witt, intelligence & skills of advocacy.
May his soul rest in eternal peace.

16/10/2023

09/10/2023

The association was blessed to have some moments of wisdom, sincerity & truth with learned (Sr.ASC) Shah Nawaz Khan Sikandri at the District Bar, Bannu KPK.

06/10/2023

"The fact that an opinion has been widely held is no evidence that it is not utterly absurd".- Berterend Russell

05/10/2023

Constructive Dismissal and Wrongful Termination

Constructive dismissal, more commonly known as constructive discharge, is a modified claim of wrongful termination. Wrongful constructive discharge occurs when, instead of firing the employee, the employer wrongfully makes working conditions so intolerable that the employee is forced to resign. As in wrongful termination, the employer must violate the employment contract or public policy by targeting the employee. Continue below to learn more about constructive discharge.

What Is Constructive Discharge?
Most states recognize the legal concept of constructive discharge, in which an employee quits because the working conditions have become so intolerable that they can no longer work for the employer. Even though the employee voluntarily quit, the employee had no reasonable alternative because of the intolerable working conditions.

The employee's resignation is overlooked for legal purposes because the employment relationship was in effect terminated involuntarily by the employer's conduct. In this situation, the resignation is treated as a firing. If the employer's actions constitute unlawful conduct or a breach of an express or implied employment contract, the employee may have a claim for wrongful constructive discharge.

Elements of a Constructive Discharge Claim
An employee can't simply quit and claim that they were constructively discharged. For example, California requires an employee to prove that:

Their working environment was so unusually adverse that a reasonable employee in their position would have felt compelled to resign, and
The employer either intended to force such resignation or had actual knowledge of the intolerable working conditions.
An employee claiming to have been constructively discharged must show that the conditions giving rise to the resignation were sufficiently extraordinary and egregious to overcome the normal motivation of a competent and reasonable employee to remain on the job.

Generally, a continuing pattern of extraordinary and egregious conduct is required before an employee's resignation will be considered a constructive discharge. A single negative evaluation or other isolated acts don't typically establish intolerable or unusually adverse employment conditions. However, in severe situations, a single act, such as a crime of violence by the employer against an employee or the employer's requirement that an employee commit a crime, may be enough to constitute unusually adverse conditions.

In addressing whether an employer's conduct amounts to sufficiently intolerable or egregious working conditions to permit constructive discharge, courts focus on factors including:

Whether the employee was requested or required to participate in illegal activity,
Whether the employer duly acknowledged or investigated the employee's complaints,
The nature of the employer's illegal conduct,Standard passage of time between the allegedly illegal conduct and the employee's resigKnowledge
It's not enough for the employee to subjectively believe their working conditions are intolerable. Courts instead look at whether a reasonable person would find the conditions to be unusually egregious and adverse. If a reasonable person working in the employee's position wouldn't find the conditions intolerable, the employee's resignation will be treated as a voluntary resignation by the employee, even if the employee believes that they can't work under the conditions imposed by the employer.

Employer Knowledge

In general, in order to prove that the employer forced the employee to resign, an employee must show that the employer either intended to create or maintain intolerable working conditions or that the employer had knowledge of such conditions. If an employer should have known about the intolerable conditions, but didn't, a constructive discharge generally wouldn't occur.

Employees generally must notify management or someone in a position of authority of the conditions. In this way, the employer has an opportunity to correct the situation. If the employee doesn't inform the employer, and the employer hasn't independently learned of the intolerable working conditions, the employee generally won't be able to prove a constructive discharge claim.

Considerations
Employees are typically presumed to be employed in an at-will employment relationship. This means that the employee can be terminated at any time and with or without cause. Generally, the law doesn't require that employers treat their employees fairly or provide a stress-free environment. Instead, employers are required not to act in a discriminatory manner or in an otherwise unlawful manner. Absent improper or unlawful conduct or breach of an employment contract on the part of an employer, courts generally won't allow employees to bring constructive discharge claims.

03/10/2023

Today .i.e 03-10-2023, in Life Imprisonment Appeal No. 33-B/ 2022, titled (Niaz Ali versus the State, etc) argued before the division bench of the learned Peshawar High Court Bannu , Bench, by the senior partner of the association Mr. Pir Shahan Liaqat Sayyed who successfully established the appellant stance of innocence and secured his acquittal from the charge.

The appellant was accused of intentional murder of his father in law inside the house of the accused, wherein the complainant party have arrived from Peshawar to Karak for patching-up issues between their son in law and their daughter ( the alleged set-up motive). The elder son of the complainant, & the deceased wife furnished the eye witness account. Beside being a son in law of the deceased, the accused was first degree maternal cousin of his wife, with whom he had estranged relationship since 1-1/2 months prior to the date of occurrence.

01/10/2023

The Chairman of TATA Steel was holding weekly meetings, with Tata Steel staff in Jamshed Pur.

Once a worker took up a serious issue.

He said, "the quality and hygiene, of toilets for the workers, is very bad". Whereas, he pointed out, that the cleanliness and hygiene, of executive toilets are always very good.

The Chairman asked, his top executives, "how much time they needed, to set it right".

The executives asked, for a month to set it right.

The chairman said, "I would rather do it, in a day". Send me a carpenter."

The next day, when the carpenter came, *he just ordered the sign boards of toilets, to be swapped*.

The sign board on the workers’ toilet displayed *"Executives"* and the Executives toilet displayed *"Workers”.

The Chairman then instructed *these signs to be changed, every fortnight.

The quality of both the toilets, came at par, in the next three days.

*Leadership is something much more, than being an Executive

Moral of the story:
*Problem identification, requires critical thinking, But solving a problem just requires, creative thinking.

We require such leadership, with creative thinking, to bring any Organization, out of any mess.

01/10/2023

*The law of the state or the state of law*

*The personal bodyguard of Osama bin Laden.. Tunisian nationality. He is forty years old. A religious, polite and committed man.

*He left for Germany after the killing of Osama bin Laden to live and work in Germany, and he used to lead people in mosques and give lectures there. His lectures were characterized by moderation and balance.

*The German government tightened its grip on him. But she could not deport him because he had German citizenship, on the one hand. There is no incriminating evidence against him on the other hand.

*German intelligence tried to fabricate any charges against him. The German police asked the court judge to issue an order to arrest him and deport him to Tunisia!!️But the judge refused...and justified his refusal by saying that this was not possible unless two conditions were met:-

*First condition:

*Evidence convicting him of incitement to terrorism.

*The second condition:

*To receive a firm commitment from the Tunisian government not to kill or torture him.

*But the German Interior Ministry ignored the judge’s memorandum and arrested Bin Laden’s Tunisian bodyguard and actually deported him to Tunisia.

*When the judge knew of this, he escalated the matter to the highest level, and this escalation caused (7) senior police commanders to resign from their positions... The judge also warned the Minister of the Interior... that he would lift his immunity and throw him in prison if he did not apologize to this Tunisian and take him back. From his country by private plane and gives him compensation for the harm and insult he suffered.

*Indeed...the Ministry of the Interior complied with the judge's order...and returned the Tunisian from Tunisia to Germany by private plane and apologized to him and compensated him financially.

*from here ..
*Did you realize, my dear Muslim, why the Germans developed and their country is one of the developed countries of the European infidels...?
Do you understand the meaning of the rule of law? What is the difference between it and state law?
I do not think that you will be arrogant or ungrateful when someone tells you: Because they put the law above everyone else. as if they were Muslims... if it were not for the fact that they do not pronounce the Shahada and do not pray...!
Justice is the basis of success in governance...in word and deed, not just a slogan.
Nepotism, racism, tribalism... and similar cases recognized by state law... are all considered among the most severe types of injustice.and among the most powerful tools for demolishing the state and the state’s law.

30/09/2023

Maturity is tough to sustain, & its till grave. Strong nerves required. Eat healthy , stay wealthy but remain humane to yourself & all.

27/09/2023

The heart, hope & vision of the association & its founder. Spent 25 years 24/7 with our mentor. A xerox copy in every manner and InshAllah Sky is the Limit for him.
Mr Pir Afaq Liaqat Sayyed.