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Petitioner: UNION OF CIVIL AVIATION EMPLOYEES, LAHORE and another VS Respondent: CIVIL AVIATION JUDGMENT
Court Name: Lahore High Court Judge(s): Malik Muhammad Qayyum Title:UNION OF CIVIL AVIATION EMPLOYEES, LAHORE and another vs CIVIL AVIATION
JUDGMENT
Reported As: PLD 1993 Lahore 306 Result: Order accordingly Judgment JUDGMENT This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, raises an important question as to the interpretation of Article 17 of the Constitution of the Islamic Republic of Pakistan, 1973. 2. Union of Civil Aviation Employees, petitioner No.1, herein, claims to be a union formed by the employees of Civil Aviation Authority while petitioner No.2, Maqsood Ahmad, is one of its members. The vires and validity of Section 23 of the Pakistan Civil Aviation/Ordinance (XXX of 1982) and Regulations Nos. 6.22 and 6.26 of Civil Aviation Authority Service Regulations have been questioned in this petition as being violative of Article 17 of the Constitution. 3. The necessary facts are that in 1980 when Civil Aviation was a department attached to the Ministry of Defence, Government of Pakistan, petitioner No.1 was registered as an industrywise trade union under Section 8 of the Industrial Relations Ordinance, 1969 by the National Industrial Relations Commission and a certificate to that effect was issued by the Commission on 7th September, 1980. 4. On 14th December, 1982 by the promulgation of the Civil Aviation Authority Ordinance, 1982 (XXX of 1982), a separate authority known as "Civil Aviation Authority" was established with a view to provide for regulating civil aviation activities and to develop a structure for safe, efficient, adequate, economical and properly co-ordinated Civil Aviation Service of Pakistan. The authority has been given "corporate status" by section 3 of the Ordinance. Its functions and powers are defined in section 5 thereof. The other provision which is relevant for present purposes is Section 14 of the Ordinance by virtue of which all persons in employment of department of Civil Aviation, became employees of the authority on its establishment. In Section 23 of the Ordinance, it is
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provided that Industrial Relations Ordinance, 1969 shall not apply to or in relation to the Authority or any person in service of the Authority 5. In exercise of the powers conferred upon it by section 27, the Civil Aviation Authority has framed Regulations known as Civil Aviation Authority Service Regulations, Chapter 6 of which relates to conduct of its employees. Regulation 6.22 bars the empolyees of the Civil Aviation Authority from participating in or supporting an illegal strike while Regulation 6.26 forbids the employees from becoming a member or office holder of any association representing the employees of Authority unless the formation of such association has been permitted by the Authority and it satisfies the conditions specified therein 6. According to the petitioner, on the promulgation of the Civil Aviation Authority Ordinance and the aforesaid regulations, the respondents have not only refused to recognize the petitioner No.1 as a union representing the employees of the Civil Aviation Authority but are also not permitting the petitioner No.1 to perform its functions as a representative union 7. In the written statement filed by the respondents, the right of the employees of the Civil Aviation Authority to form a union has not been disputed but it has been asserted that in view of Section 23 of the Pakistan Civil Aviation Authority Ordinance, 1982, appellant No.1 has ceased to exist and its registration stands revoked 8. Before embarking upon any discussion , it is useful to re-produce the provisions which are relevant for the present purposes. Article 17 of the Constitution of Islamic Republic of Pakistan, 1973, ordains that:- Freedom of Association-- (1) Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality (2) Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restriction imposed by law in the interest of the sovereignty or integrity of Pakistan and such law shall provide that: where the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall, within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final. (3) Every political party shall account for the source of its funds in accordance with law". 9. Section 23 of the Pakistan Civil Aviation Authority Ordinance, 1982, which is impugned in this petition, reads as under:-- "Ordinance. XXIII of 1969 not to apply to Authority.--The Industrial Relations Ordinance, 1969 (XXIII of 1969) shall not apply to or in relation to the Authority or any person in the service of the Authority." Two regulations, namely, 6.22 and 6.26 of the Civil Aviation Authority Service Regulations, 1983, which are under challenge, are in the following terms:-- 6.22 No employee of CAA shall commence, continue, instigate or incite others to take part in or expend or supply money, or otherwise act in furtherance or support of an illegal strike of a go-slow. 6.26 No CAA employee shall be a member, representative or officer of any association representing or purporting to represent CAA employees or any class of CAA employees unless formation of such association has been permitted by the Director General and satisfy the following conditions, namely:-- (a) Membership of the association and its office-bearers shall not be confined to a distinct class of CAA employees and shall be open to all CAA employees of that class. (b) The association shall not, in any way, be connected with, or affiliated to any association or any federation of associations which does not, satisfy condition (a). (c) The association shall not, in any way, be connected with any political party or organization, or
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engage in any political activity. (d) The association shall not: (i) issue or maintain any periodical publication except in accordance with any general or special order of the CAA. (ii) except with the previous sanction of the CAA, publish any representation on behalf of its members, whether in the Press or otherwise. (e) The association shall not, in respect of any election to a legislative body, or to a local authority or body, whether in Pakistan or elsewhere: (i) pay or contribute towards any expenses incurred in connection with his candidature by a candidate for such election; (ii) by any means support the candidature of any person for such election; or (iii) undertake or assist in the registration of election, or the selection of a candidate for such election. (f) The association shall not: (i) maintain or contribute towards the maintenance of any member of a legislative body, or any member of a local authority or body whether in Pakistan or elsewhere; (ii) pay, or contribute towards the expenses of any trade union which has constituted a fund under section 16 of the Trade Union Act, 1926 (Act XVI of 1926). 10.Dr. A. Basit, learned counsel for the petitioners has contended that Article 17 of the Constitution of Islamic Republic of Pakistan, 1973, guarantees to all citizens including those in employment of the Civil Aviation Authority, 'a fundamental right to form a union and to be its member and no restriction can be placed upon right of petitioner No.1 to function as a trade union except on grounds mentioned in Article 17 of the Constitution of Islamic Republic of Pakistan, 1973. According to the learned counsel the restrictions imposed by Section 23 of the Civil Aviation Authority Ordinance, 1982 and Regulations 6.22 and 6.26 of the Civil Aviation Authority Service Regulations, are not only unreasonable but cannot be said to have been imposed in the interest of sovereignty or integrity of Pakistan or for public order or morality and are, therefore, void. 11. Mr. Faqir Muhammad Khokhar, learned Deputy Attorney-General for Pakistan, appearing on behalf of the respondents, has on the other hand, maintained that the interpretation being placed upon section 23 of the Civil Aviation Authority Ordinance, 1982 by the learned counsel for the petitioners was not warranted. He has contended that this provision does not prohibit the workers in the employment of the Civil Aviation Authority to form an association or a union and its effect is that neither the Industrial Relations Ordinance, 1969 nor the rights conferred upon the said Ordinance can be invoked by the persons in employment of Civil Aviation Authority. It was elaborated that though to form a union may be a fundamental right but there is no further, right guaranteed by the Constitution that the union formed by the employees must be recognized by the respondents or that it should be allowed to function, so as to achieve the object for which it has been formed. In this context the learned Deputy Attorney General has relied upon the decisions of the Indian Supreme Court in All India Bank Employees' Association v. The National Industrial Tribunal, Bombay and others (AIR 1962 SC 171) and MA. Raghubar Dayal Jai Parkash and others v. The Union of India and another (AIR 1962 SC 263). The further argument of the learned Deputy Attorney General was that the respondents can in any case regulate the rights guaranteed by Article 17 of the Constitution and Regulations Nos.6.22. and 6.26 being regulatory in nature are legal and valid. 12. As the dispute related to enforcement of a fundamental right and was one of considerable importance, I had called upon some of the learned Advocates of this Court to be of assistance. I am grateful to Raja Muhammad Akram, Syed Jamshed Ali, Mr. M. Saleem Sahgal and Mr. Tariq Khokhar, Advocates, who have rendered valuable assistance in this case.
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13. Article 17 of the Constitution enshrines in itself one of the most important fundamental rights guaranteed by the Constitution. Although freedom of association has always been given due weight and importance but it has assumed greater significance and proportion in modern times of political awareness and industrialization. Lord Denning in his book "Road to Justice" (1955 Edition) at page 98 explains that "If men are ever to break the bonds of oppression or servitude, they must be free to meet and discuss their grievances and to work out in unison a plan of action to set things right". 14. The impact of this right on society can well be assessed by taking into account the role which voluntary associations are playing today. Robson in "Justice and Administration Law", 3rd Edition at page 317 states that:-- "The association and co-operation of human beings in voluntary groups is one of the most important facts of social development. As life becomes more highly organized and complex, the groups formed by men and women associating freely for particular purposes increase in number, size, power and diversity. In England today, for example, it is impossible even to enumerate the countless thousands of voluntary associations which exist for one purpose or another... Taken in the aggregate, the voluntary associations, with membership rolls running into many millions and a huge accumulation of property, present a formidable array of power; and their activities extend into almost every field of human activity--economic, professional religious, educational, political, scientific, athletic, artistic, social and one knows not what else." 15.The importance of this right can also be visualised from the fact that it has been given due recognition by the comity of nations in its different charters and declarations. Two important documents in this behalf are the Universal Declaration of Human Rights of 1948, Article 20 of which states that every one has the right to freedom of peaceful assembly and association; the other document being the International Covenant on Civil and Political Rights, 1966, Article 22 of which is to the similar effect. It has been said that right to form association is greatest bulwark against power in any form. 16.Article 17 of the Constitution assures and guarantees to all citizens a right to form not only an 'association' but also a 'union'. The two expressions, namely, 'association' and 'union' have by now acquired definite meanings. An association is generally understood to be a combination of persons for a common purpose for which it is established. It may be a combination of persons to further the cause of art, literature, religion, sports, politics, or academic interest. It may also be for caste and community interest. In Wills' Constitutional Law, it is stated that an association, according to Cole is "any group of persons pursuing a common purpose or system or the aggregation of purposes, or aggregation of purposes by a course of co-operative action, extending beyond a single act and for this purpose agreeing together upon certain methods of procedure and laying down in however rudimentary form, rules of common action. In Ballentine's Law Dictionary (Third Edition) at page 102 an Association is defined as "a collection of persons, who have joined together for a certain object which may be for the benefit of the members or the improvement, welfare or advantage of public or some scientific, charitable or similar purposes. 17. Although union is also a combination of persons formed to further their interest but it is generally understood as being associated with particular groups, especially labour and trade. In Ballentine's Law Dictionary (Third Edition) at page 1317, the 'union' has been defined as under:- "Union. A labour union 21 Am J Rev ed Lab $ 13.A trade union. Tracy v. Banker, 170 Mass 266, 49 NE 308. Consolidation or merger, especially of churches. 45 AM Jist Reli Soc $ 78. According to Black's Law Dictionary (5th Edition) at page 1374, union is "an organization of workers formed for the purposes of negotiating with employers on matters of wages, seniority, working conditions and like". 18. It will be appreciated that Article 17 of the Constitution not only assures the right to form an
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association but in addition to that it also specifically/guarantees the right of formation of a union. It is well-established principle of interpretation of constitutional documents that each and every word has to be given due meaning. The use of word 'union' in addition to `association' is clearly indicative of the importance which the Constitution attaches to the right of the workmen to form themselves into a trade union. The rationale for doing so is not difficult to understand. Though freedom to form political parties has been held to be a highest right vesting in an individual, the right to form a union is equally important, moreso in a country like ours where we are ushering into an era of industrialization and it is of utmost importance that the relation between the employers and the workers remains smooth or free from turbulence. The maintenance of industrial peace in the country is, therefore, of utmost importance. One of the methods for achieving this objective is collective bargaining between the representatives of the workmen of the employers, which can best be done by the union of workmen. It was so observed by the American Supreme Court in National Labour Relations Board v. Truck Drivers Local Union ((1956) 353 U.S. 87). In New Standard Engineering Co. Ltd. v. NL Abhyankar and another AIR 1978 SC 982, it was opined that collective bargaining is the best guarantee for industrial peace. 19. In view of Article 17 of the Constitution of the Islamic Republic of Pakistan, 1973, there cannot be any doubt that the employees of the Civil Aviation Authority have as much a right to form a union as any other citizen. The question which, however, arises is as to the effect of section 23 of the Pakistan Civil Aviation Authority Ordinance, 1982, on this right. This section ordains that provisions of Industrial Relations Ordinance, 1969 are not applicable to the employees of the Civil Aviation Authority. But the non-application of the Industrial Relations Ordinance, does not in any manner imply that the right of the workmen to form a union has been taken away. Indeed this right exists independently of and is not conferred by the Industrial Relations Ordinance, 1969, which is regulatory in nature. In Volume 48 of American Jurisprudence 2nd para. 59, while commenting upon the right of workers to form a union, it is stated that:-- "It has long been recognized, generally without regard to statute, that employees are entitled to organize for the purpose of securing the redress of grievances and to promote agreements with employers relating to rates of pay and conditions of work, or that they have the right to organize the labour unions for the purpose of promoting their common welfare by lawful means and that labour unions are legal when instituted for mutual help and lawfully carrying out their legitimate objects. American Courts gave scant heed to the common-law rules for the suppression of labour unions, and only two States ever seem to have accepted the view that a combination of workmen to raise wages constituted a criminal conspiracy." 20.The importance of this right is such that even in countries like United States where there is no constitutional guarantee, this right has been spelt out of other provisions like due process clause and the freedom of speech and has been held to be a fundamental right. The right to form a trade union has been given specific recognition by Article 23(4) of the Universal Declaration of Human Rights, 1940 which provides that "everyone has the right to form and to join trade union and for protection of his interest". Similarly, in Article 22 of International Covenant on Civil and Political Rights, 1966, apart from freedom of association, the right to form and join trade union is specifically guaranteed. 21. Even learned Deputy Attorney-General was not in a position to dispute that the employees of Civil Aviation Authority have the right to form a union and conceded that there was no prohibition on the formation of such a union in any law. He, however, argued that as the Industrial Relations Ordinance, 1969, is inapplicable to the employees of Civil Aviation Authority by virtue of section 23 of the Civil Aviation Authority Ordinance, 1982, the union formed by the employees cannot claim recognition from respondents nor can it exercise the right which vests in a "trade union" under the Industrial Relations Ordinance, 1969 like collective bargaining and industrial action. According to
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the learned Deputy Attorney-General, petitioner cannot claim as a fundamental right that the union formed by them should be allowed to achieve the objective for which it was formed. 22. It is difficult to agree with the learned Deputy Attorney-General. In order to correctly appreciate the concept of a trade union and the rights which it possesses on account of its formation, a brief reference to history of trade union may be relevant. In earlier days the concept of combination of workers to protect themselves, was totally absent and it was felt that under the contract of employment, each individual has to directly deal with his master. With the passage of time, however, it was felt that an individual cannot effectively protect his rights. In Britain, the early combination of workers is said to have appeared in the middle of 18th century and was known as a trade group. By various laws then in force the activities of such union were treated as illegal as it was thought that these activities amounted to conspiracy. It was in 1881 that the first Trade Union Act was passed by the British Parliament on the report of Royal Commission recognizing the right of the workers to form a trade union. 23. In United States of America, the trade union movement began in 18th century and for a considerable period of time, it was resisted by both States as also employer on the ground that combination of workmen amounts to conspiracy and hinderance to inter-State trade. In 1886, killing of Chicago workmen took place on 1st of May, which gave impetis to the labour movement. This day is still commemorated as Labour Day throughout the world. Till early 20th century, the formation of a trade union was held to be illegal by the United States Supreme Court (See Adair v. U.S. (1908) 208 U.S. 178). However, in 1937, the Supreme Court of United States recognized the right of the workmen to form trade union since its object was considered to be legitimate i.e. improvement of conditions of their members and wage-earners. (Refer National Labour Relations Board v. Jones & Laughlin Steel Corporation ((1937) 301 U.S. 1). After the First World War there has been tremendous developments in the field of labour relations which led to the formation of international labour organization. So far as Indo-Pak sub-continent is concerned, Industrialization is a recent phenomenon. The earliest legislation on the subject appears to be the Trade Union Act, 1926, which was followed by Industrial Disputes Act, 1947, the Industrial Disputes Ordinance of 1959, the Industrial Dispute Ordinance, 1968 and the Industrial Relations Ordinance, 1969. 24. It needs also to be noted that in the Objectives Resolution, which is now a part of the Constitution, the right of association and of obtaining social and economic justice is guaranteed. Reference may also be made to principles of policy as contained in Chapter II of the Constitution, Article 38 of which makes it the responsibility of the State to ensure equitable adjustment of right between the employer and employees. These principles must be kept in view while interpreting or enforcing the law. 25. The contention of the learned Deputy Attorney-General that though the workers in the employment of Civil Aviation Authority can form a union but there is no obligation to allow it to function and achieve the objectives for which it has been formed is inherently unsound. As has been held by the Supreme Court of Pakistan in its celeberated judgment in Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416, the right under Article 17 of the Constitution is not confined only to the formation of an association but also extends and guarantees the continuance and functioning of an association. It necessarily follows, therefore, that if the respondents refuse to allow the union formed by the workers to function as such, their action would be illegal as otherwise the right guaranteed by the Constitution shall be rendered futile and nugatory. After all this right was not meant to be an empty vessel or merely a legal jargon. Its importance lies in allowing members of the union to meet and effectively seek the objectives for which they have formed the union. The pronouncement of the Supreme Court in Miss Benazir Bhutto's case (supra) is destructive of this argument of the learned Deputy Attorney-General as
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would appear from the following passage of the judgment of the learned Chief Justice appearing at page 531 of the report:-- "Reading Article 17(2) of the Constitution as a whole it not only guarantees the right to form or be a member of a political party but also to operate as a political party. As earlier held, the words "right to form" is not only confined to its formation but to its function as a political party. The political party, according to its texture, of being an aggregate of citizens composing the party can exercise the other rights guaranteed under the Constitution like an individual citizen. Again the forming of a political party necessarily implies the carrying of all its activities as otherwise the forming itself would be of no consequence. In other words the functioning is implicit in the formation of the party." Again at page 566 of the report, Dr. Nasim Hasan Shah, J, while repelling similar contention raised by the learned Attorney-General before the Supreme Court was pleased to observe that:-- "I cannot agree with the learned Attorney-General. The term "right to form" a party not only merely means the right to form or start an association, but includes therein the right of continuing it. The word "form" is not confined only to the initial formation of an association but also implies its continuation namely that the association shall have the right to continue its activities and propagate its political opinions without any restriction which could result in suspension or discontinuance of its activities. Any legislation, therefore, which provides for restricting, suspending or terminating the activities of an association (political party) during its existence would be in violation of Fundamental…
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