Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Dr. Yasmin Rashid VS Respondent: Chief Secretary, Government Of The Punjab, Civil
Court Name: Labour Appellate Tribunal Judge(s): Riaz Kayani Title:Dr. Yasmin Rashid vs Chief Secretary, Government Of The Punjab, Civil
JUDGMENT
Reported As: K.L.R. 2003 Labour at Service Cases 210 Result: Appeal Accepted Judgment JUDGMENT JUSTICE (RETD.) RIAZ KAYANI, CHAIRMAN.- Dr. Yasmin Rashid, former Professor of Obstetrics and Gynae, Fatima jinnah Medical College, Lahore, has assailed the order of the Governor of the Punjab/competent authority dated 28.11.2002, whereby she was dismissed from service with immediate effect under the Punjab Removal from Service (Special Powers) Ordinance, 2000. A Review Petition having not been attended to within the statutory period, recourse was made to the Services Tribunal through the instant appeal. 2. Appellant being a doctor by profession claims to be a Member of Pakistan Medical Association, Lahore, since 1988 and finally elected as President of Pakistan Medical Association, Pakistan (hereinafter called P.M.A.) for a term of 2 years commencing form December, 2000, the association having been registered in the year 1948 under the Cooperative Societies Act, financially assisted by the Federal Government through grant in and. The Government of the Punjab promulgated Punjab Medical and-Health Institutions Ordinance, 2002 (hereinafter called the Ordinance). The main features of the Ordinance was creation of health university and other allied and ancillary objects and purposes application to the medical profession, by the large, It is stated that the appellant in her capacity as President, P.M.A. Pakistan, with the decision of the central council of the P.M.A- Pakistan being the only representative body of Doctors was not consulted in the preparation of the health policy, as such the basic purpose of the Ordinance was disputed, It was stated by the appellant that Board of Governors of Medical Colleges without having doctors as its members would not be beneficial, as it would loosen the rapport amongst the medical fraternity. The creation of the health university to accommodate the then Chief Minister for Health as its Vice
---
## Page 2
Chancellor was also desired to be re-considered and the service structure of doctors to be changed by the Ordinance was, submitted, highly detrimental to the interests of the medical profession as a whole and an appointment of the Chief Executive in place of Principals of the Medical College would entail extra financial burden on the already sapping resources of the hospitals/medical colleges. The banning of private practice of doctors, was stated, to create multiple problems for the poor patients and the fixation of fee to be taken from the patients for their treatment would neither be humanitarian nor would generate the desired funds, being basically against the concept of free medical treatment to the teeming masses below the poverty line, It was further submitted that representations, interviews sought from the health authorities for improvements in the Ordinance, 2002 fell on deaf ears closing all doors for an amicable settlement of issues. Mala fide was pleaded against the Health Secretary, Government of the Punjab, as doctor community resented help extended by the Secretary Health towards his brother, who was convicted of a criminal offence by the superior Courts of the country. Similarly, the then Minister of Health, Government of the Punjab was criticized for securing a job for himself as the Vice- Chancellor of the Health University. By way of retaliation, it is stated that the appellant and other office bearers of P.M.A. In Government service fell prey to the venom of the higher echelons in the hierarchy of the Health Department. To show resentment, it was submitted, against the high- handedness of the Minister of Health, Government of the Punjab and the Health Secretary, it was decided unilaterally to observe a peaceful hunger strike on 23.9.2002 for getting the attention of the higher authorities and in search for a meeting to sought out matters on the negotiation table. To being with, it is stated, that the appellant was suspended on 4.10.2002 and thereafter a decision dated 12.10.2002 by the authority to initiate disciplinary proceedings against her was taken under the provisions of Punjab Removal from Service (Special Powers) Ordinance, 2000. In consequence thereof appellant was served with the charge sheet, by the Inquiry Officer, also appointed vide order dated 12.10.2002 by the authority, containing the following charges:- "Subject. CHARGE SHEET 1, Mian Muhammad Jamil, Additional Chief Secretary (DMG/BS-21), Government of the Punjab, having been appointed as Enquiry Officer in your case by the Governor/Competent Authority to proceed against you under the Punjab Removal from Service (Special Powers) Ordinance, 2000 as amended, upto date hereby charge sheet you as under:- (i) You claiming to be the President of PMA, participated in a token hunger strike on 23.9.2002 organised jointly by your group and Pakistan Teachers Action Committees at the Faisal Square, The Mall, Lahore, against the Government Policies promulgated through the Punjab Medical and Health Institutions Ordinance, 2002. (ii) You instigated the participants of the hunger strike for starting countryside agitation against the government policies. (i.e) You instigated the doctors and teachers to participate in the agitational processions scheduled on 4.10.2002. (iv) You made a statement during the hunger strike to observe countrywide boycott of teaching in the Medical and Educational Institutions on 14.10.2002. (v) Your instigation was meant to create law and order situation in the teaching institutions and disrupt the peaceful academic atmosphere. 2. By reasons of the above, you appear to:- (a) be guilty of misconduct within the meaning of rule 2(b) and 3(b) of the Punjab Removal from Service (Special Powers) Ordinance, 2000 as amended, and in violation of rule 5-B of West Pakistan Government Servants (Conduct), Rules, 1966;
---
## Page 3
(b) be engaged, or is reasonably believed to be engaged, in subversive activities within the meaning of rule 3(d) of Punjab Removal from Service (Special Powers) Ordinance, 2000, as amended." 3. Appellant through a written reply dated 25.10.2002 replied that P.M.A. Was a legally formulated body recognized by the Government and the action taken by P.M.A. Fell strictly within the powers conferred upon its members through its constitution. Alluding to the hunger strike on 23.9.2002, it was submitted that the same was organized by the P.M.A; because such an activity was allowed within the frame-work of the constitution, being non-violative of any law whatsoever. Reference was also made to article 5(a), 5(p) and 15(g) of the Constitution of P.M.A. Appellant also urged that she was made a scape goat by picking her up as one single person, whereas the activity conducted was by the members of the association, which depicted the mala fide of the respondents simply for the reason that she was out spoken in her views. The photographs in the newspapers was referred to make a point that on 23.9.2002 the strike was general in nature and a large number of people belonging to the medical profession as well as P.M.A. Participated according to their on free-will. Peaceful hunger strike, it was submitted, was well within the ambit of law, during a message to the Government that the Ordinance was protested by all and sundry in the medical fraternity. Instigating the participants of the hunger strike for starting countrywide agitation against the Government policy was denied. Use of the word "subversive", "anti- Government" or "anti-state" was objected to in an articulate manner adding that it was not only scandalous and defamatory but smacked of malice of the author, at whose behest the charge sheet was drafted. Charge No. 3 was denied and stated to be shorn of necessary details hence being vague in nature. Similarly, charge No. 4 was denied, that the appellant made a statement during the hunger strike to observe countryside boycott in the medical and education institutions on 14.10.2002. It was specifically pleaded that articles 16, 17 and 19 of the Constitution of Islamic Republic of Pakistan, 1973 guaranteed the appellant the fundamental rights of assembly, association and speech, as such she has not violated or breached any law or committed an unlawful act in any manner whatsoever. An unreported judgment of the Honorables Supreme Court of Pakistan in C.P.L.A. No. 272-P/2002 belonging to the right of protest against Government policies including the right to issue statements, hold press conferences and call for strike. 4. The Inquiry Officer held the inquiry proceedings from 14.10.2002 upto 13.11.2002 allowing full participation to the appellant in the said proceedings. Prosecution examined only one witness Mr. Zulfiqar Ali Butt, SHO, P.S. Old Anarkali, Lahore. His statement which runs into one full page is reproduced for the facility of reference as it would come for discussion in the ensuing paragraphs, time and again:- "Mr. Zulfiqar Ali Butt, stated on Oath that a joint procession of the students, teachers and doctors was to be taken out on 4.IQ.2002 in the city. I was deputed by the higher authorities to maintain law and order situation. According to the duty programme, I was deputed by higher police authorities. I was on duty at Istanbul Chowk alongwith my senior and other police officials. "On 4.10.2002 at about 12.00 O, clock the procession consisting of about 1400 persons emerged at the Chowk Istanbul in front of Punjab University and procession was being led by a few teachers and doctors including Dr. Yasmin Rashid. The processionist blocked the Mall Road by parking a coaster on the top of which the leaders stated making speeches against the Government. The processionist were gathered on the road and the leaders were addressing them facing PMG office. Those who made speeches they include Mr. Azam Butt, teacher, Dr. Yasmin Rasheed and Mr. Nazim Hussan, Lecturer and few other leaders made speeches to whom I know them by their faces. All the
---
## Page 4
leaders condemned the Government policies and stated that students and. Teachers and doctors will not accept the Government policies and they will continue their struggle till the change in the policies of the Government. Till the acceptance of our demands our unity will continue. Neither the President nor the Governor is acceptable to us till the acceptance of demands. Dr. Rasheed Yasmin was highly enthusiastic and was participating by raising anti-Government slogans. After the speeches the procession dispersed gradually." Neither at the close of the examination-in-chief indicates that the appellant was allowed a chance to cross-examine this witness, nor on her refusal, a note was given at the conclusion that the accused does not wish to cross-examine the witness nor in the order sheet containing the daily proceedings particularly the order dated 11.11.2000 there is any indication that the appellant was given a chance to cross- examine Mr. Zulfiqar AH Butt, SHO, but she declined to do so. The accused was not asked to sign the order sheet. However, the inquiry Officer in his report dated 16.11.2002 on the first page has stated in so many words that after the statement of the only prosecution witness was recorded appellant was afforded an opportunity to cross-examine him which was not availed of. I have no reason to disbelieve the Inquiry Officer, yet the Tribunal is entitled to scrutinize and make close exegesis of the inherent worth of the statement of Mr. Zulfiqar Butt, the prosecution witness. The Inquiry Officer based his report on the testimony of Mr. Zulfiqar Butt and reports of the Special Branch placed before him as Ex.P-1 and news items appearing in the various "Dailies" and press clippings, by concluding that being a Government servant appellant was governed by the West Pakistan, Civil Servants Conduct Rules, 1966. Rule 25(b) specifically stops ail Government servants to take part in or assist any public demonstration against Government decision. The appellant, in flagrant violation of this rule, participated in the hunger strike claiming to be the President of P.M.A. Charge No. 1 was, therefore, held to be proved in view of the admission of the appellant as well as the documentary evidence in the shape of press clippings. Charges Nos. 2 and 3 was also stated to be proved on the basis of press clippings and reports of the Special Branch in addition to the statement of prosecution witness Mr. Zulfiqar Ali Butt, SHO, Old Anarkali, Lahore. Denial of the appellant was not considered sufficient and reliance was placed on the press clippings as well as the report of the Special Branch to reach the conclusion of guilty on the two charges viz. The charge No. II and III. Charge No. 4 was also stated to be proved as press clipping of Daily "JANG" of 24th instant 2002 was reproduced to hold appellant guilty of instigating the medical community to observe countrywide boycott of teaching in the medical and educational institutions on 14.10.2002. Charge No. V regarding instigation to create law and order situation in the teaching institutions and disrupting the peaceful academic atmosphere was held to be not proved. The discussion in the inquiry report with the caption "Basic issue" by the Inquiry Officer was with reference to rule 25(b) of the Government Servants Conduct Rules, 1966. This rule is being re- produced for ready reference: "25(b). Government servants not to take part in or assist, any public demonstration against Government decisions, etc.- No Government Servant shall take part in, or in any manner assist, any public demonstration directed against a Government decision or policy or permit any member of his family dependent on him to do so". The Inquiry Officer has observed that un-doubtedly the constitution of the country gives the appellant a fundamental right of freedom of expression, right to form an association etc. But such a right could not be made available to a Government servant as the activity of the appellant was termed to be anti-Government. If the appellant desired to continue her "agitation" she should have first resigned from Government post and then raise voice against Government policy, In nutshell the for out of five charges were held to be proved against the appellant and major penalty of
---
## Page 5
dismissal from service was recommended. The authority through the hearing Officer provided opportunity to the appellant to present her case. However, I am convinced after going through the original file that summons were served on the appellant to appear before the hearing Officer on the 25th of November, 2002, which she declined to do so. Resultantly, there was no alternative left for the hearing officer but to transmit his findings to the authority that the charges stood proved. The authority, thereafter, passed the order of dismissal, which has been impugned in the present appeal. 5. Learned counsel for the appellant contended that the action taken against the appellant was outcome of mala fides as she voiced the demand of the medical community being the President of P.M.A. After the high ups in the Health Department refused to budge on their stand exhibiting obduracy today conciliatory measures but bent upon to enforce the ordinance having the effect of cutting the roots of the doctors in general and poor patients in particular, It was further contended that articles 16, 17 and 19 of the Constitution of Islamic Republic of Pakistan, 1973 gave her mandate to voice her protest in a peaceful manner and any fetters contained in the subordinate legislation like rule 25(b) of the West Pakistan Government Servants Conduct Rules, 1966 had to be subdued as it was subservient in nature and it would be a misnomer to observe even tacitly that the said rule over rides the provisions of the fundamental rights enshrined in the constitution. Taking his argument to its logical conclusion, learned counsel contended that statement of the only prosecution witness examined did not at all spell out any action the part of the appellant to disturb public peace and tranquility or to pose threats to life and property of public or an individual or to disturb public order. The report of the special agencies and press clippings was urged to be inadmissible in evidence. The penalty imposed was in any case stated to be extremely harsh requiring reversal as full opportunity to defend was not provided by the Inquiry Officer not allowing a chance to cross-examine the witness or to produce defence. On the other hand, learned District Attorney assisted by the Director Law, Health Department present with the original record mainly banked upon the Provisions of Rule 25(b) of the West Pakistan Government Servants (Conduct) Rules, 1966 to state that the fundamental rights embodied in the Constitution of Islamic Republic of Pakistan, 1973 could only be exercised within the ambit of law, which meant law through ordinance or rules and since the rules prohibited a civil servant from participating in public demonstrations against the policies of the Government, the penalty was not only rightly imposed but was the call of the. Day, because such acts of misfeasance would be a bad example to follow by encouraging others in the medical and teaching profession. 6. I have heard the arguments of the respective counsels at length very attentively and perused the complete record made available through the good offices of the Director Law, Health Department. 7. In a regular inquiry in order to determine whether the charge stands proved, the prime consideration is the evidence, oral and documentary, which prosecution has adduced. As observed, only one witness namely Mr. Zulfiqar Ali Butt, SHO, Old Anarkali, Lahore, has been examined. The sum and substance of his statement when analyzed boils down to, that on 4.10.2002 in his presence appellant alongwith others made speeches addressed to about 1400 persons condemning the Government policies with a resolve that students, teachers and doctors will not accept them and their struggle shall continue till a change is brought in the said policies of the Government. Dr. Yasmin Rashid was stated to be highly enthusiastic and was participating by raising anti- Government slogans. After the speeches the procession dispersed gradually. The statement speaks of the condemnation of the Government policies and the continuation of the struggle till it is resolved. The witness has not stated or clarified as to what were the anti- Government slogans shouted by the appellant in an enthusiastic manner. No detail whatsoever
---
## Page 6
was given about the so-called anti- Government slogans. Any discreet person would have restrained from cross-examining the witness by asking questions regarding the anti-Government slogans as desultory statement, shorn of necessary details, prudence required that the vacuum should not be filled through cross-examination. Probably, it is for this reason that the appellant did not desire the cross-examination of the witness, In the present form the statement at the most amounts to a protest vociferously raised by the speakers including the appellant against the policies of the Government enforced through the ordinance. What were those anti-Government slogans raised by the appellant remains a mystery. Use of the words "Anti-Government slogans" could at the most be construed in view of lack luster statement, criticism against the Government impinging the provisions of the Ordinance without allowing the participation of the P.M.A. One aspect which becomes evident from the statement of the witness is that the procession was absolutely peaceful, did not pose danger to life and property of any individual or public, the peace and tranquility of the locality was not at all disturbed, no force or any kind of coercive measures was considered necessary, by the witness, to exercise or to stop or to prohibit the assembly from taking the law in their on hands. The concluding sentence of the witness, that after the speeches the procession dispersed gradually, proves it beyond shadow of doubt that the assembly, during which the speeches were made, was a mere protest against the Government and was totally and absolutely peaceful in nature. I am aware that the appellant has admitted her participation in the assembly on 4.10.2002 by making a speech as well as hunger strike observed on 23.9.2002, therefore, no evidence is required to prove these facts. However, instigation of the participants at the time of hunger strike on 23.9.2002 for starting countrywide agitation against the Government policies has not been proved through oral evidence as the witness Mr. Zulfiqar Ali But, has not stated a single word about it, rather he was not even present on 23.9.2002. Similarly, instigating doctors and teaches to participate in the agitational procession scheduled on 4.10.2002 also does not stand proved as the witness has simply stated that the appellant and others made speeches condemning the Government policies and resorted to continue their struggle till they succeed in altering the said policies. To instigate is to goad, coax or to stimulate a person into action. The word "instigate" when used with respect to charge No. 3 would mean that the appellant actively suggested to the doctors and teachers to participate in the agitational processions schedule on 4.10.2002. No such word was spoken by the witness in his statement. The word "agitational" is a derivative of the word "agitate". The dictionary meaning of this word is to move violently, to stir up or ask the people to rise against some-one with show of force or otherwise. The charge does not stand proved through the statement of the said witness. Charge IV relates to a hunger strike during which a statements was made asking the teaching and medical community to observe countrywide boycott in the medical and educational institutions on 14.10.2002. Appellant has denied this charge and the prosecution has failed to prove it through oral evidence. Charge No. V, relates to the instigation by the appellant to create law and order situation in the teaching institutions and to disrupt the peaceful academic atmosphere, could land the appellant on a very strictly wicket but according to the inquiry report dated 16.11.2002 of the Inquiry Officer this charge does not stand proved. Now coming to the documentary evidence, the perusal of the original file shows that appellant was examined on 11.11.2000 and she stated that her reply to the charge sheet submitted on 25.10.2002 may be treated as her statement, In the statement, she claimed that the office bearers of the Pakistan Medical Association re-iterated her stance that the President of the Association is its spokesman and whatever is said by her, it had the blessings of the decision made by the counsel and should not be construed the statement of a individual voice. Neither the clandestine report of the secret agency nor the press clipping of the daily newspapers were put to the appellant in cross-examination by
---
## Page 7
the departmental representative. The appellant was not confronted with the special report of the Police or agency or with any damaging statement against her interests appearing in the press clippings, by the departmental representative, It is a cardinal principle of evidence that any statement or document intended to be used against the accused, he/she must be confronted with the same so as to get an answer whether the contents are admitted or denied. Neither the author of the report of the special agency was brought in the witness-box as a witness to prove the said report no the reporte or the publisher of any one of the press clipping was produced as a prosecution witness to prove its contents, In the absence of evidence regarding any portion of the contents of these documents, which go against the appellant, cannot be used as the same has not been proved in the manner indicated. At the risk of repetition except for making the speech of the appellant on 4.10.2002 and her observing the hunger strike on 23.9.2002 nothing else stands proved. 8. Embarking upon crucial question determining the fate of this appeal is the reliance placed by the appellant on fundamental rights embodied in Article 16, relating to freedom of assembly, 17 relating to freedom of association and 19 relating to freedom of speech etc. The articles are reproduced for examination of the question mooted. Article 16 Freedom of Assembly. "Every citizen shall have the right to assemble peacefully and without arms, subject to any reasonable restrictions imposed by law in the interest of public order". Article 17 Freedom of Association. (1) "Every citizen shall have the right to form an association or unions, subject to any reasonable restriction imposed by law in case of sovereignty…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.