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Petitioner: AIRLEAGUE OF PIA EMPLOYEES, UNION VS Respondent: FEDERATION OF PAKISTAN/THE PRESIDENT/ CHIEF EXECUTIVEHonorable Justice SAIYED SAEED ASHHADFarough Naseem,Syed Zaki Muhammad
2003 P L C (C
2003 P L C (C.S.) 145
[Karachi High Court]
Before Saiyed Saeed Ashhad, C. J. and Zia Perwez, J
AIRLEAGUE OF PIA EMPLOYEES, UNION and another
Versus
FEDERATION OF PAKISTAN/THE PRESIDENT/ CHIEF EXECUTIVE and another
Constitutional Petitions Nos.D‑1574 and D‑2024 of 2001, decided on 29th March, 2002.
(a) Pakistan International Airlines Corporation (Suspension of Trade Unions and Existing Agreements) Order [Chief Executive's Order 6 of 2001]---
‑‑‑Preamble, Arts. 1, 2, 3, 4 & 5‑‑‑Provisional Constitution Order (I of (999), Premable, Arts.2(3) & 6‑‑‑Proclamation of Emergency by Chief executive of Pakistan dated 14‑10‑1999‑‑‑Industrial Relations Ordinance (XXIII of 1969), Ss.1(3), 2(xxviii) & 22‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), Ss.2(a) & Sched.‑‑‑Service Tribunals Act (LXX of 1973), Ss.2‑A & 4‑‑‑Constitution Of Pakistan (1973), Arts. 17 & 199‑‑‑Constitutional petition‑‑‑Promulgation 4 Chief Executive's Order 6 of 2001‑‑‑Suspension of trade unions activities ad agreements arrived at between unions and Corporation as a result of ,eating obstacles. hurdles, problems in smooth and orderly running and functioning of Corporation‑‑‑Contention of petitioners was that impugned order No.6 of 2001 was in violation of the mandate given by Supreme Court Syed Zafar Ali Shah's case (PLD 2000 SC 869)‑‑‑Validity‑‑‑Petitioners td not challenged authority of President/Chief Executive to promulgate legislative measures in view of suspension of National Assembly and Senate subsequent dissolution thereof‑‑‑Power of Parliament were exercisable by President/Chief Executive‑‑‑Impugned Order could not be said to be in excess of powers in view of the provisions of Proclamation of Emergency, Provisional Constitution Order, 1999 and authority/powers exercisable by him for achieving the declared objectives/goals embodied in cl. 6(a), (b), (c) of judgment of Supreme Court (PLD 2000 SC 869)‑‑‑Impugned Order had not amended/modified, superseded or repealed any law‑ nor provisions thereof were contradictory or violative of any provisions of the Constitution, Industrial Relations Ordinance, 1969, West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and Service Tribunals .Act. 1973‑‑‑Provision of Art.6 of Provisional Constitution Order, 1999, was sufficient to hold that country was in the state of emergency at the time, when impugned Order was made by President/Chief Executive‑‑ Articles 2 & 4 of impugned Order related to giving effect to such declared objectives, thus, same could not be said to be redundant or surplusage, which should be considered as integral part of the Order and were to be given the meanings appearing from plain reading thereof‑‑‑Impugned Order was in exercise of the powers conferred by Supreme Court as well as such authority would be derivable from Provisional Constitution Order, 1999‑‑‑High Court dismissed Constitutional petitions being without any force.
Syed Zafar Ali Shah and others v. General Pervaz Musharraf. Chief Executive of Pakistan and others PLD 2000 SC 869; Mohatrama Benazir Bhutto v. President of Pakistan PLD 1998 SC 388; Civil Aviation Authority, Islamabad and' others v. Union of Civil Aviation Employees and another PLD 1997 SC 781; Madan Mohan Pathak and another v. Union of India and others, (1978) 2 SCC 50 and Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416 ref.
(b) Interpretation of statutes‑‑‑--
‑‑‑‑ Power of Legislature to legislate‑‑‑Scope‑‑‑Power of Court to strike down a law‑‑‑Scope and limitations‑‑‑ Legislature was competent to legislate retrospectively and retroactively and take away a vested right by express words or necessary intendment ‑‑‑Courts would not hold such a legislation as ineffective and strike down same‑‑‑Before striking down a law as being opposed to Constitutional provisions, one would have to establish specifically violation of Constitutional provisions, in absence whereof it could not be said that law was bad merely because same violated some principle of justice and fair play.
Haider Automobile Ltd. v. Pakistan PLD 1969 SC 623 fol.
(c) Interpretation of statutes‑‑‑‑
‑‑‑ Motive or policy of Legislature‑‑‑Duty of Court‑‑‑Scope‑‑‑Courts not to question motives or policy of Legislature or refuse to give effect to a statute merely because same appeared to be harsh or unreasonable or vindictive.
The Province Punjab v. Malik Khizar Hayat Khan PLD 1956 FC 200 fol.
(d) Constitution of Pakistan (1973)‑‑‑-
‑‑‑‑Art.25‑‑‑Expression "equal protection of law" ‑‑‑Connotation and scope.
Article 25 of the Constitution permits reasonable discrimination. It guarantees equal protection of law, which means that all persons shall be treated alike under like circumstances and conditions, both in privileges conferred and liabilities imposed. It does not mean that all citizens shall be treated alike under all sets of circumstances and conditions, both in respect of privileges conferred and liabilities imposed. By the expression "equal protection of law", it is envisaged that no person or class of persons would be denied the same protection of law, which is enjoyed by person or class of persons placed in like circumstances in respect of their life, liberty, property or pursuit of happiness. This expression does not provide that every citizen is to be treated alike in all circumstances, but permits reasonable classification founded on reasonable distinction or basis.
Pakistan Burmah Shell Limited and another v. Federation of Pakistan and 3 others 1998 PTD 1804 fol.
(e) Islamic jurisprudence‑‑
‑‑‑‑ Contract/agreement‑‑‑Obligation of party to perform acts thereunder‑‑ Essential‑‑‑Agreements entered into between parties are to be honoured by executing parties, who would be under an obligation to perform all acts to give effect to contract/agreement‑‑‑Such would be the case, when it could be established that agreement/contract was arrived at, wig free‑will of contracting parties without application of pressure, undue influence or coercion by any of them, so as to force into submission the other party for agreeing to demands privileges and benefits, which otherwise it would not agree to. [Contract Act (IX of 1872), Ss. 10, 13, 14, 15 & 16.
(f) Interpretation of statutes‑‑‑‑‑‑
----Legislature is competent to amend an earlier Act or declare its meaning by enacting a new Act‑‑‑Legislature while doing so was competent to declare a meaning which is not consistent or is in deviation of plain language of earlier Act‑‑‑A later statute declaring a meaning of an earlier Act operates directly by its own force and not merely as an aid to construction of earlier statute‑‑‑Legislature is competent to incorporate an earlier Act or certain provisions thereof in a later Act‑‑‑When such is done, then provisions so incorporated become part and parcel of later Act.
(g) Interpretation of statutes‑‑‑
‑‑‑‑ Incorporation of former Act or some of its provisions/clauses into a subsequent Act either by reference or. reproduction‑‑ ‑Legal effect of such incorporation‑‑‑Repeal or amendment in former Act‑‑‑Effect on subsequent Act‑‑‑Statute incorporating provisions of former Act‑‑‑Judging validity of such statute‑‑Criteria.
Incorporation of an earlier Act into a later Act is a legislative device adopted for sake of convenience in order to avoid verbatim reproduction of the provisions of earlier Act into the later. When an earlier Act or certain of its provisions are incorporated by reference into a later Act, the provisions so incorporated become pan and parcel of later Act as if they had been "bodily transposed into it". If a subsequent Act brings into itself by reference some of the clauses of former Act, the legal effect of that is to write those sections into the new Act as if they had been actually written in it with the pen or printed in it. The result is to constitute the later Act alongwith the incorporated provision of earlier Act, an independent legislation, which is not modified or repealed by a modification or repeal of earlier Act.
Where a single section of an Act is reproduced into another statute, then it has to be read in the sense, which it bore in original Act and from which same was taken. Where a subsequent Act. incorporated provision of a previous Act, then the borrowed provision would become an integral and independent pan of subsequent Act and would be totally unaffected by any repeal or amendment in previous Act.
The validity of a statute, which incorporates the provisions of an earlier Act, is to be judged with reference to powers of Legislature enacting the fresh statute and not with reference to the powers of Legislature enacting the original legislation.
Principles of Statutory Interpretation Fourth Edition 1988, p.174; N.S. Bindra Interpretation Statutes Eight Edition 1997, on page 276 and State of Kerala v. M/s. Attesee Agra Industrial 'trading Corporation AIR 1989 SC 222 rel.
(h) Interpretation of statutes‑
‑‑‑‑ Duty of Court to so construe a statute that no part of same is to be rendered void and nugatory‑ ‑‑Effect must be given, if possible, to all the words used in statutory provision, for Legislature is deemed not to waste its words and same should not be regarded as surplusage ‑‑‑Every Act or part of an Act not to be ignored or treated as being meaningless, rather same must be construed as having some operating results.
(i) Interpretation of Statutes‑‑‑-
‑‑‑‑Intra vires or ultra vires statutes‑‑‑Presumption and rebuttal ,thereof‑‑ General presumption is in favour of constitutionality of an enactment‑‑ Burden upon person, who attacks such presumption, to show that there has been a transgression of Constitutional principles.
Pakistan Burmah Shell Limited and another v. Federation of Pakistan and 3 others 1998 PTD 1804 rel.
(j) Interpretation of statutes‑‑‑--
‑‑‑‑ Words used in a statute‑‑‑Presumption of law is that each and every clause of statute has been inserted for some useful purpose‑ ‑‑Statute must be read as a whole to ascertain both its intent and general purpose and also the meaning of each part‑‑‑No word or clause should ordinary be rejected as superfluous‑ Rule of interpretation does not permit to treat words or clause as redundant, unless reading them in the statute would lead to absurdity‑‑‑No provisions of Act should be rendered totally ineffective as a result of interpretation‑‑ Statute is always allowed the privilege of using words not absolutely necessary.
Income Tax Commissioner v. Pemsel 1891 AC 532 and Auchterader of Presbytery v. Lord Kinnoull 6 CL & F 646, 686 rel.
M. L Shahani for Petitioners (in C. P. No. D‑1574 of 2001).
Farough Naseem for Petitioners (in C.P. No.D‑2024 of 2001).
Syed Zaki Muhammad Dy. A.‑G. for Respondents.
Javed Altaf for Respondent.
Date of hearing: 15th February, 2002.
JUDGMENT
SAIYED SAEED ASHHAD, C.J.‑‑‑In Constitutional Petition No. D‑1574 of 2001, the petitioners have sought the following reliefs:‑‑
(i) ...... that this Hon'ble Court may kindly be pleased to declare and hold that the Order No.6 of 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, un‑Constitutional and quash the same.
(ii) Declare that the respondent No.3 cannot exercise the powers under the impugned Legislation No.6 of 2001, could not be the basis of the impugned Rules and orders at Annexures F, G, H, I, 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.
(iii) 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 Hon'ble Court may deem fit."
In Constitutional Petition No. D‑2024 of 2001, the petitioners have sought the following reliefs:
"(i) hold and declare that the impugned Order No.6 of 2001, dated 5th July, 2001 has been. passed without authority and competence is nullity in law; not enforceable, un‑Constitutional, 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 of 2001 in the shape of admin, Order, Rules, Circulars, etc. (Annexures A/9 to A/11) and may be pleased to strike down and quash the same.
(iii) 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 petitioner application.
(v) award costs.
(vi) any other relief as may be deemed. fit for 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 Airlin Corporation (hereinafter referred to as "PIAC"). Petitioner Airleague of PIA 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 1‑10‑1997 Both the petitioners in their respective petitions submitted that in view of the concluded agreements relating to the terms and conditions of service and work the office‑bearers of Collective Bargaining Agent union were exempted from duties and were also granted other facilitates' like provisions of vehicles, fuel, driver, telephone at the union office and residences and passage for free travel. The petitioners further submitted that on 12‑10‑1999 the elected 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 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 v. General Pervaz Musharraf. Chief Executive of Pakistan and others. reported in PLD 2000 SC 869 assumed the office of the President of Pakistan. The petitioner further submitted that on 5‑7‑2001 the President of Pakistan promulgated Chief 'Executive Order No.6 of 2001 suspending the activities of the union 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 provisions 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 of 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 reassessment of suitable cabin crew. 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 of 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 unions operating in the establishment of PIAC in foreign countries were not suspended which amounted to victimization 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,
Comments/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 of 1999 (thereinafter referred to as "PCO") as amended from time to time and Chief Executive Order No.6 of 2001. 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 v. 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), 67(iv) and (v) fully empowered and authorised President and Chief Executive to pass an order in the nature of Order No.6 of 2001. 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 reined, 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 running the airline within and 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 tiled 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 sourse of huge financial loss of 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 v. General Pervaz 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 tide as PIAC was facing considerable problem due to manufacturing 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 being its management to resort to wide scale retrenchment and downsizing to make operative which would cause injury and harm to a large number employees. It was also denied that Order No.6 of 2001 was violative Articles 15, 16, 17, 18, 19 and 24 of the Constitution as the judgment in the case of Syed Zafar Ali Shah and others v. General Pervez Musharraf Ch Executive of Pakistan and others, (supra) authorised President and Chi Executive to make any law notwithstanding the provisions of the aforesaid 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 tiled 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. Shahani the learned counsel for petitioner Airleague of PIA Employees Union in C.P. No.D‑1574 of 2001. Mr. Farogh Naseem the learned counsel for petitioner Peoples Unity of PIA Employees in Cl. No.D‑2024 of 2001 Mr. Javed Altaf the learned counsel for PIAC and Mr. Syed Zaki Muhammad, the learned Dy. A.‑G., 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 of 2001 on the following grounds:
(1) that it was ultra vires of Article 17 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 v. General Pervez Musharraf, Chief Executive of Pakistan and others. (supra):
(3) that it was discriminatory 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 in derogation of the Constitution of the Islamic .Republic of Pakistan as fundamental rights even if suspended could not be violated; and
(6) that it could not suspend agreements/contractual obligations mutually arrived at by the contracting parties in view of Article 2A of the Constitution.
In support of his above contentions he placed reliance on the cases of (i) Syed Zafar Ali Shah and others v. General Pervez Musharraf Chief Executive of Pakistan and others (supra): (2) Mohatrama Benazir Bhutto v. President of Pakistan, reported in PLD 1998 SC 388; (3) Civil Aviation Authority, Islamabad and others v. Union of Civil Aviation Employees and another, reported in PLD 1997 SC 781; and (5) Madan Mohan Pathak and another v. Union of India and others, reported in (1978) 2 SCC 50.
Mr. Farogh Naseem, the learned counsel appearing on behalf of the Peoples Unity of PIA Employees in C.P. No.D‑2024 of 2001 adopted the arguments of Mr. M.L. Shahani and submitted following further 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…
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