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Petitioner: PERWEZ, ] Airleague Of PIA Employees Union And Another VS Respondent: Federation
Court Name: Sindh High Court Judge(s): Sayed Saeed Ashhad Title:PERWEZ, ] Airleague Of PIA Employees Union And Another Versus Federation
JUDGMENT
Reported As: K.L.R. 2003 Labour fit Services Cases 44 Result: Petitions Dismissed Judgment JUDGMENT SAIYED SAEED ASH HAD, C.J. - In Constitution Petition No. D-1574/2001, the petitioners have sought t following reliefs:- [Vol.XXlI Airleague of PIA Employees Union V. LacS.C.. 47 Federation of Pakistan and the President and Chief Executive (Sayed Saeed Ash had, C.J.) "(i) ....That this Honorables'Court may kindly be pleased to declare and hold that the Order No. 6/2001, dated 5th July, 2001 have been passed without any lawful authority and competence, therefore) nullity in the eyes of law and the Constitution not capable* of conferring any authority on any functionary including the President and Chief Executive, therefore, unconstitutional and quash the same. (ii) Declare that the respondent No. 3 cannot exercise the powers under the impugned legislation No. 6/2001 could not be the basis of the impugned Rules and orders at Annexures F, G, H, 1, J and K respectively and declare them to be unlawful and quash the same. * In particular hold that the agreement could not be suspended nor the unilateral rules could be imposed by the President and Chief Executive and quash rules dated 17.7.2001. (iiij Suspend the operation of the impugned orders and Rules pending disposal of the main petition as per attached application. (iv) Award costs. (v) Any other relief as the circumstances may warrant and this Honorables Court may deem fit." In Constitutional Petition No. D-2024/2001, the petitioners have sought the following reliefs:-
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"(i) hold and declare that the impugned Order No. 6/2001, dated 5th July, 2001 has been passed without authority and Competence is nullity in law, not enforceable, unconstitutional, in capable of conferring any authority on the respondent No. 3 management or for that matter on any other functionary and, therefore, the same may be quashed. (ii) hold and declare that the impugned actions taken by the respondent No. 4 after the promulgation and pursuant to the impugned Order No. 6/2001 in the shape of admin, Orders, Rules, Circulars, etc. (Ann. A/9 to A/l 1) and may be pleased to strike down and quash the same. (i.e) hold and declared that the terms and conditions of employment and work settled through Collective Bargaining Agreements could not be altered to the disadvantage of the workers unilaterally and that the terms prevailing on-5th July, 2001 continue. (iv) suspend the operation of the impugned Orders, Circulars and Rules pending disposal of the petition/appiication. (v) award costs. (vi) any other relief as may be deemed fit and proper in the circumstances of the case." Both the aforesaid petitioners are the trade unions of workers employed in the establishment of M/s. Pakistan International Airline Corporation (hereinafter referred to as "PIAC"). Petitioner Airleague of P1A Employees Union is the present Collective Bargaining Agent in the establishment of PIAC. Petitioner Peoples Unity of PIA Employees was the Collective Bargaining Agent in the establishment of PIAC until 1. I 0.1997. Both the petitioners in their respective petitions submitted that in view of the concluded agreements relating to the terms and conditions of service and worjk the office bearers of Collective Bargaining Agent union were exempted from duties and were also granted other facilities like provisions of vehicles, fuel, drivers, telephone at the union office and residences and passage- for free travel. The petitioners further submitted that on 12.10.1999 the electee Government was ousted and the Chief of the Army Staff after dismissing the parliament and the provincial assemblies assumed the powers by taking over the administration of the [Vol.XXII Airleague of PIA Employees Union V. LsrS.C. 49 Federation of Pakistan and the President and Chief Executive (Sayed Saeed Ashhad, C.J.) country as Chief Executive and in violation of the mandate given by the Supreme Court in the case of Syed Zafar Ali Shah and others Vs. General Pervez Musharraf, Chief Executive of Pakistan and others, reported in PLD 2000 SC 869 = PSCC 2000 (SC) 881 + 1290 assumed the office of the President of Pakistan. The petitioners further submitted that on 5.7.2001 the President of Pakistan promulgated Chief Executive Order No. 6/2001 suspending the activities of the unions in PIAC as well as the agreement arrived at between the union and PIAC. It was further submitted that the aforesaid order also contained a provision for removal or retirement of the employees of PIAC in contravention of the Administrative Manual. The petitioners further submitted that as a result of the impugned Order No. 6/2001 the management of PIAC started capitalizing thereupon and withdrew the facilities which were conferred on the office bearers of the union and unilaterally changed their terms and conditions of service to their disadvantage, increased the number of working hours, reduced the rest hours, allowances and ordered re- assessm ent of suitable cabin cress. It was further submitted that such actions were not being taken in good faith and with honest intention but the object thereof was to ground all those who were not liked by the management. The petitioners further submitted that Chief Executive Order No. 6/2001 was also discriminatory as it only suspended the activities of the petitioners unions in PIAC in Pakistan whereas the trade unions and the Collective Bargaining Agents formed in the foreign airlines operating in Pakistan as well as the trade union* operating in the establishment of PIAC in foreign countries were not suspended which amounted to victimisation of the office bearers of the petitioner unions. The petitioners further submitted that as there was no other alternative, adequate and efficacious remedy available to the petitioners for their grievance, they approached this Court under Article 199 of the. Constitution of the Islamic Republic of Pakistan.
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Comrhents/objections were filed by the respondents Federation of Pakistan and PIAC, In the comments filed on behalf of respondent Federation of Pakistan objections were raised with regard to the maintainability of the Constitutional Petitions on the ground that no process could be issued against the President of Pakistan or the Chief Executive under Article 248 of the Constitution. The maintainability was also objected on the ground that it was barred -by the Proclamation of Emergency dated 14.10.1999, the Provisional Constitution Order No. 1/1999 (thereinafter referred to as "PCO") as amended from time to time and Chief Executive Order No. 6/20Q1, The contention that the impugned order was in violation of the mandate given by the Supreme Court in the case of Syed Zafar Ali Shah and others Vs. General Pervez Musharraf, Chief Executive of Pakistan and others, supra was vehemently denied and it was submitted that the Supreme Court while validating over throw of the elected Government and taking over the reins of Government by President and Chief Executive, empowered President and Chief Executive to exercise the powers and perform the functions as enumerated in clauses 1 to 18 of at pages 1219 to 1223 of the cited case and the powers specified in clause 6(i)(a), (b)> (c), 6(iv) and (v) fully empowered and authorised President and Chief Executive to pass an order in the nature of Order No. 6/200 T .-'Factually it was submitted that petitioners in their capacity as the sole Collective Bargaining Agent/trade union had caused unwarranted and wasteful expenditure of Rs. 9,69,13,105/- from 1.10.1997 to 6.7.2001 which was a staggering loss to the national airline which had virtually crippled the airline as its financial state stood mined, which ultimately effected the working of the airline resulting not only in further financial loss to the airline of the contrary but also depriving the citizens of the country proper travelling facilities and handling cargo. It was further submitted that suspension of trade union of PIAC was in public interest reasonable and for advancing public good of maintaining smooth communication and good order for [Vol.XXIl Airleague of PIA' Employees Union V. ' LetS.C. 51 Federation of Pakistan and the President and Chief Executive (Sayed Saeed Ashpad, C.J.) running the airline within the outside Pakistan and to prevent hardship to the public. . Respondent PIAC also filed written reply wherein they also raised preliminary objections with regard to the maintainability of the Constitutional Petitions. The first such objection was that the petitioners had filed the aforesaid Constitutional Petitions for protecting and safeguarding the terms and conditions of the employees in the establishment of PIAC, who were civil servants in view of Section 2-A of the Service Tribunals Act, and Article 212 of the Constitution of the Islamic Republic of Pakistan barred invocation of jurisdiction of this Court under Article 199 of the Constitution as their remedy lay before the Federal Service Tribunal. The petitions were also objected on the ground that they involved resolution of disputed questions of facts which could not be made the subject-matter'of a Constitutional petition and further that they were filed with mala fide intention with a view to enforce the rights, privileges and entitlements which were not sanctioned by law. On facts PIAC admitted that the office bearers of union-had been exempted from duties and were also provided other facilities but submitted that these privileges were extended under great pressure coercion and duress of the petitioners unions, It was further submitted that even otherwise these facilities which consisted of travel hotel accommodation, vehicles, fuel and telephone at union offices were provided for legitimate use but the same were misused and abused which was a source of huge financial loss to PIAC. It was further submitted that in view of derogatory financial position of PIAC the only solution was to cancel the privileges as they were neither the requirement of law nor had any legal sanction but were made available due to political pressure, coercion and duress from 1988 onwards. It was further submitted on behalf of PIAC that the Supreme Court in the case of 'Syed Zafar Ali Shah and others Vs. General Pervez Musharraf, Chief Executive of Pakistan and others, supra held that the fundamental rights contained in Article 17 would continue but their continuance was not to cause hindrance in the working of the Government. It was further submitted that the order was bona fide as PIAC was facing
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considerable problem due to .Malfunctioning and mismanagement requiring serious action to make it fully viable. Further that if the relevant action had not. Been taken, . PIAC would have been in total disarray bring its management to resort to were scale retrenchment and downsizing to make it operative which would cause injury and harm to a large number of employees, It was also denied that Order No. 6/2001 was violative of Articles 15, 16*17, 18, 19 and 24 of the Constitution as the judgment in the case of Syed Zafar Ali Shah and others Vs. General Pervez Musharraf, Chief Executive of Pakistan and others, supra authorised President and Chief Executive to make any law notwithstanding the provisions of the aforestated Articles. It was also denied that the said order was discriminatory and invalid in view of Article 25 of the Constitution as it did not suspend the working of the trade unions either in the establishment of the foreign airlines operating in Pakistan or in the establishment of PIAC in foreign countries inasmuch as the trade unions/Collective Bargaining Agents in the foreign airlines or in the establishment of PIAC in the foreign countries were not causing obstacles, hazards, financial loss, mismanagement, misuse and abuse of the benefits and privileges in the working of PIAC and the other airlines. The petitioners had filed rejoinder/further reply to the written reply filed by respondents Federation of Pakistan and PIAC, wherein they had denied the Stand taken by the respondents and had reiterated the facts stated by them in their petitions. The petitions came up for hearing on 19.9.2001 when it was decided by the learned counsel for the parties that both the petitions would be heard and disposed of on merits at katcha peshi stage. We have heard the arguments of Mr. M.L. [Vol.XXIi Airleague of PIA Employees Union y. LstS.C. 53 Federation of Pakistan and the President and Chief Executive (Sayed Saeed Ashhad, C.J.) Shahani the learned counsel for petitioner Airleague of PIA Employees Union in C.P. No. D-l574/2001, Mr. Farogh Naseem, the learned counsel for petitioner Peoples Unity of PIA Employees in C.P. No. D-2024/2001. Mr. Javed Altaf the learned counsel for PIAC andMr. Syed Zaki Muhammad, the learned DAG, who.Appeared on behalf of the Federation of Pakistan. Mr. M.L. Shahani appearing on behalf of petitioner Airleague of PIA Employees Union assailed Order No. 6/2001 on the following grounds:- (1) that it was ultra vires of Article 7 of the Constitution; (2) that it was against the declared objectives and the authority given by the Supreme Court to President and Chief Executive by its judgment in the case of Syed Zafar Ali Shah and others Vs. General Pervez Musharraf, Chief Executive of Pakistan and others, supra; (3) that it was discriminately thereby violating Article 25 of the Constitution of the Islamic Republic of Pakistan; (4) that it was redundant as it contained provision for situations/actions for which provisions already existed in other laws/regulations; (5) that it was the derogation of the Constitution of the Islamic Republic of. Pakistan as. Fundamental rights even if suspended could violated; and (6) that it could not suspend agreements/contractual obligations mutually arrived at by the contracting parties in view of Article 2-A of the Constitution. In support of his above contentions he placed reliance on the case of (1) Syed Zafar Ali Shah and others Vs. General Pervez Musharraf, Chief Executive of Pakistan and others, supra; (2) Mohtarma Benazir Bhutto Vs. President of Pakistan, reported in PLD 1998 SC 388; (3) Civil Aviation Authority, Islamabad and others Vs. Union of Civil Aviation Employees and another, reported in PLD 1997 SC 781; and (5) Madan Mohan Pathak and another Vs. Union of India and others, reported in (1978) 2 SCC 50. Mr. Farogh Naseem, the ieamed counsel appearing on behalf of Peoples Unity of PI A Employees in C.P. No. D- 2024/2001 adopted the arguments of Mr. H.L. Shahani and submitted following further
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arguments. (1) That the decision of the petition required interpretation of Article 17 of the Constitution needing the enquiry as to whether the impugned order was in accordance with the provisions and requirements of the said Article 17 and the judgment in the case of reported in Benazir Bhutto Vs. Federation of Pakistan and another, reported in PLD 1988 SC 416; and (2) that suspension. Of . Agreements/contractual obligations arrived at between the parties was violative of Article 2-A of the Constitution. Mr. )aved Altaf, the learned counsel for the PIAC vehemently refuted the arguments advanced by the learned counsel for the petitioners and supported the impugned Order No. 6/2001 on the following grounds:- (1) that the order was in pursuance of the authority and power given by the Supreme Court to President and Chief Executive in its judgments in the case of Syed Zafar Ali Shah and others Vs. General Pervez Musharraf, Chief Executive of Pakistan and others, supra, detailed in 6(i)(a), (b) and (c); (2) that the Constitution had empowered the parliament to suspend fundamental rights during emergency period; [Vol.XXII Airleague of PIA Employees Union V. LscS.f 55 Federation of Pakistan and the President and Chief Executive (Sayed Saeed Ashhad, C.J.) (3) that the order was not violative of Article 25 of the Constitution as the existence of trade unions and the activities of the trade unions in PIAC office in foreign countries were to a very limited extent and were not detrimental to the welfare, smooth working and profit earning by the PIAC; (4) that the orders of suspension of the trade unions and subsequent order suspending the agreements/contractual obligations arrived at between the petitioners unions and the establishment of PIAC were not violative of Articles 2-A and 17 inasmuch as all such agreements/contracts were not voluntary or due to freewill by were on account of illegal pressure, coercion, duress and brute force used by the trade -unions forcing the establishment of PIAC to surrender to their illegal and lawful demands. Mr. Javed Altaf in support of his first argument relied upon the judgment of the Supreme Court in the case of Syed Zafar Ali Shah and others Vs. General Pervez Musharraft Chief Executive of Pakistan and others, supra. With regard to his contention at Sr. Nos. 3 and 4 he elaborated that after 1988 the trade unions/Collective Bargaining Agents in the establishment of PIAC were having the support and backing of the Governments in power as a result of which they had assumed the role of pressure group who were always at war with establishment of PIAC and threatened to create hindrances, obstacles and hazardous in the smooth working of PIAC if the demands put by them for their members relating to provisions of facilities and benefits over and above the facilities and benefits provided to the members and office bearers by the labour laws in the nature already mentioned above were not provided to them. He further submitted that in view of such backing and support the establishment. PIAC had no alternate but tc concede to the illegal and unlawful demands put forward by the petitioners unions granting the office bearers and members benefits, facilities ^nd advantages to which they were not legally entitled, which resulted in colossal and enormous financial burden and drain on PIAC virtually bringing it to financially ruination. He further submitted that such agreements/contracts could not be said to have been arrived with at free consent and will of the establishment of PIAC and could not by any stretch of imagination be considered to be legal, valid and in accordance with law so as to be protected by Article 2-A of the Constitution. Mr. Syed Zaki Muhammad, the learned DAG while adopting the arguments of Mr. Javed Altaf drew our attention to paras 7 and 10 of the comments filed by PIAC. He further submitted that the Supreme Court in the case of Syed Zafar Ali Shah and others Vs. General Perviz Musharraf, Chief
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Executive of Pakistan and others, supra had given were powers to the President and Chief Executive to perform all such acts and promulgate all legislative measures in respect of the following matters:- (a) AII acts or legislative measures which are in accordance with, or could have been made under the 1973 Constitution, including the power to amend it; (b) AII acts which tend to advance or promote the good of the people; (c) All acts required to be done for the ordinary orderly running of the State; and . 4 . (d) AII such measures as would establish or lead to the establishment of the declared objectives of the Chief Executive. He further submitted that in the Same judgment the Supreme Court while holding that the fundamental rights provided in Part-!!, Chapter I of the Constitution would [Vol.XXII Airleague of PIA Employees Union V. .LfilS.'C. .57 Federation of Pakistan and the President and Chief Executive (Sayed Saeed Ashhad, C.J.) continue to hold the field empowered the Chief Executive/State to make any law or to take any executive action in deviation of Articles 15, 16, 1*7, 18, 19 and 24 and further that these acts or legislative measures were to be performed and carried out by means of orders issued by the Chief Executive or through Ordinances on his< advice. Mr. Syed Zaki Muhammad further submitted1 that in view of the above provisions the President and Chief Executive had absolute authority to take any action or promulgate any legislative measures which in his opinion was necessary for achieving the goals enumerated above' and the declared objectives. Elaborating their arguments the learned counsel appearing on behalf of the petitioners submitted that it was not denied that the President and Chief Executive could exercise legislative power which authority or power was not challenged as they conceded that in the absence of parliament he was exercising powers of the parliament and in such capacity was entitled and authorised to promulgate legislative measures. Their contention was that in exercise of his such authority/power he could not promulgate legislative measures which the parliament itself did not have the power to legislate and ail such legislative measures were to be promulgated within the framework of the power available to the parliament under the Constitution, It was further submitted that what could not be enacted or made by the parliament, President and Chief Executive could not do the same. According to them Order No. 6/2001 was derogatory of the provisions of Constitution as it was violative of the fundamental rights which were holding the field and further that even if they had been suspended no legislative measures could be., promulgated by violating the fundamental rights. The main thrust of the arguments advanced by the learned counsel for the petitioners was that the order was in derogation of Articles 2-A, 17 and 25 of the Constitution, It was described to be ultra vires of Article 2-A of the Constitution by which the objectives resolution had been made a substantive provisions of the Constitution thus embodying- the provision of the Quran and Sunnah in the Constitution, It was submitted that the petitioners had entered into an agreement with PIAC whereby. Certain rights and privileges were allowed or provided by PIAC to the office .Bearers/members of the petitioners and under Islamic Law a contract or agreement entered into between the contracting parties was a solemn transaction which bund both the parties to observe and fulfil their respective duties and obligations under such contract or agreement and its cancellation/suspension unilaterally by one party was only an un-islamic act but also violative of Article 2-A of the Constitution thus rendering Order No. 6/2001 as ultra vires' of the Constitution and a nullity in law.-The learned counsel in support of their aforesaid contention had placed reliance on the case of Syed Zafar Ali Shah and others Vs. General Pervez Mushrraf, Chief Executive of Pakistan and others, supra. Another ground raised by the learned counsel for the petitioners was that Articles 3 and 4 of Order No. 6/2001 were redundant as provisions for dealing with the matters and situations to which they related already existed*in the Industrial and Commercial Employment (Standing Orders)
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Ordinance, 1968 (hereinafter referred to as "the Ordinance of 1968) and the Industrial Relations- Ordinance, 1969 (hereinafter referred.To as "the IRO") respectively. It was further submitted that both the. Petitioners were trade unions duly registered under the IRO in accordance with the provisions relating to formation of trade union and could only be cancelled suspended or removed in accordance with the provisions contained in the IRO for cancellation of the registration and further that when the law had provided a mode for cancellation of registration of a trade union then neither any' legislative measure therefore was required for authorising the President and Chief Executive, to suspend the activities of the trade union nor its activities could be [Vol.XXII Airleague of PIA Employees Union V, LatS.C 59 Federation of Pakistan and the President anc^Chief Executive (Sayed Saeed Ashhad, C.J.) * suspended in a manner other than the manner provided in.The IRO. In support of the above reliance was placed on the case Of Civil Aviation Authority, Islamabad and o&kr's Vs. Union of Civil Aviation Employees and another, reported in PLD 1997 SC 78l. For resolving the issue/question as to whether Order No. 6/2001 by the President and Chief Executive of Pakistan could have been validly made by him or was ultra vires of the Constitution of contrary to the authority and powers conferred on him by the Supreme Court, it will be necessary to examine the provisions of the PCO and the pronouncements made by the Supreme Court in the case of Syed Zafar Ali Shah and others Vs. General Pervez Musharraf, Chief Executive of Pakistan and others, supra. The relevant provision of the PCO for the purpose If Article 2(3) and it will be necessary to reproduce the same, which is as under:- "(3) The Fundamental Rights conferred by Chapter 1 of Part II of the…
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