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Petitioner: AKHTAR ALI VS Respondent: DIRECTOR OF AGRICULTURE (ECONOMICS AND MARKETING) PUNJAB AGRICULTURE HOUSE, LAHORE
2000 P L C (C
2000 P L C (C.S.) 784
[Lahore High Court]
Before Malik Muhammad Qayyum and Ghulam Mahmood Qureshi, JJ
Qazi AKHTAR ALI
Versus
DIRECTOR OF AGRICULTURE (ECONOMICS AND MARKETING) PUNJAB AGRICULTURE HOUSE, LAHORE and another
Writ Petition No. 19271 of 1996, heard on 1st March, 2000.
(a) Punjab Agricultural Produce Markets Ordinance (XXIII of 1978)‑‑‑
‑‑‑‑S. 16‑‑‑Employees of Market Committee‑‑‑Status as civil servants Validity ‑‑‑Employees of Market Committee cannot be said to be employees of Provincial Government nor can they be said to be holding a. post in connection with the affairs of the Province.
(b) Punjab Agricultural Produce Markets Ordinance (XXIII of 1978)‑‑‑
‑‑‑S. 16(3)‑‑‑Employees of Market Committee‑‑‑Transfer from one Committee to other Committee anywhere in the Province‑‑‑Status of civil servants to such employees‑‑‑Nature‑‑‑Validity‑‑‑Employee of one Market Committee can be transferred to another Market Committee under S. 16(3) of Punjab Agricultural Produce Markets Ordinance, 1978‑‑‑Such transfer order does not confer the status of civil servants upon the employees of Market Committee.
(c) Punjab Agricultural Produce Markets Ordinance (XXIII of 1978)‑‑‑
‑‑‑‑S. 16‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Employee of market committee ‑‑‑Withholding of monthly salary of such employees‑‑‑Employee of market committee was transferred to another market committee and Civil Court suspended the order of such transfer‑‑ Pursuant to the order of the Court market committee cancelled the transfer order‑‑ ‑Employee was allowed to join his duty but he was not paid his monthly salary‑‑‑Validity‑‑‑Employee was entitled to receive his salary from the committee and refusal to payment of salary amounted to forced labour which was violative of the Constitution as also the Islamic Injunctions and social justice‑‑‑Committee was directed to pay the salary to the employee.
(d) Constitution of Pakistan (1973)‑‑
‑‑‑Art. 3 & Chap. 2, Part. 11 [Arts. 29 to 40)‑‑‑Principles of policy ‑‑‑Non‑payment of salary to employee for work done‑‑‑Validity‑‑‑Such act is violative of principles of policy contained in Chap. 2, Part 11 of the Constitution‑‑‑Article 3 of the Constitution casts duty on the State to eliminate all forms of exploitation.
Akhtar Masood Khan for Petitioner.
Nemo for Respondents.
Date of hearing: 1st March, 2000.
JUDGMENT
MALIK MUHAMMAD QAYYUM, J.‑‑‑Qazi Akhtar Ali, the petitioner, was working as Secretary, Market Committee, Bhalwal when vide order dated 6‑8‑1995 he was transferred from Bhalwal to Tandlianwala under the orders of Director of Agriculture (E & M) Punjab, Lahore. The petitioner challenged that order by filing a civil suit alongwith which an application for temporary injunction was also moved, on which the learned Civil Court on 21‑8‑1995 suspended the operation of the impugned order of transfer. In view of the temporary injunction issued by the Civil Court respondent No. l cancelled the order dated 6‑8-1995 so far as it related to the petitioner as is obvious from the order passed by him on 15‑10‑1995 (Annexure B). According to the petitioner he did not relinquish the charge. He, however, submitted the copy of the order passed by the Civil Court to respondent No.2 who accepted the same and the petitioner was allowed to join again as Secretary. It appears that some correspondence was exchanged between the respondent No.l and respondent No.2. However, although the petitioner continued performing his duties during this period, he was not paid any salary which obliged him to approach this Court for a direction to the respondents to pay the salaries to the petitioner for the last 15 days.
2. This petition was placed before the learned Single Judge of this Court who called for report and parawise comments from the respondents in which one of the objections raised was that as the petitioner was a civil servant his petition was not maintainable in view of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. In support of the plea two unreported orders of the Single Bench and one unreported order of the Division Bench were appended.
3. When the matter came up for consideration before the learned Single Judge he noted that there was divergence of opinion on the question as to whether employee of the Market Committee can be said to be a civil servant and he referred the matter to the Honourable Chief Justice for considering the feasibility of referring the matter to a larger Bench.
4. We have heard the learned counsel for petitioner. He submits that under the Punjab Agricultural Produce Markets Ordinance, 1978 the Market committee is considered to be a body corporate and the employees of the 4arket Committee are servants of the Committee and not of the Provincial Government and, as such, he cannot approach the Service Tribunal. Unfortunately, no one has appeared on behalf of the respondents and we have been deprived of the benefit of their assistance. However, in the parawise comments submitted by them this objection has been raised.
5. The primary question for determination in this petition is as to whether the employees of the Market Committee are civil servants or not?
6. After hearing the learned counsel for the petitioner and going through the law on the subject we are of the view that answer to the above question has to be in negative and the employees of the Market Committee cannot be said to be the employees of Provincial Government nor can they be said to be holding a post in connection with the affairs of the Province. On he other hand, section 14 of the Punjab Agricultural Produce Markets Ordinance, 1978 contemplates that every Market Committee shall be a body corporate and‑ shall have perpetual success and may' sue and be sued in its corporate name and can also hold property. Section 16 of the Punjab Agricultural Produce Markets Ordinance, 1978 authorises the Market Committee to employ any person for the management of the Market. 4owever, According to section 16(3) subject to such rules as may be made )y the Government every employee of a market committee shall be liable to be transferred for service in any market committee of the Province.
7. It follows from the above that the employees of the Market Committee are servants of the Committee and not that of the Provincial Government. The only deviation in this respect is that under subsection (3) of Section 16 the employees of one market committee can be transferred to another market committee. This, however, does not confer the status of civil servants upon the employees of the Market Committee. On the other hand, it shows that as the legislature was aware that the employees of the market committee are not the civil servants and, therefore, a separate Provision with regard to their transfer was made in the form of section 16(3). If these employees‑ are civil servants then under the Civil Servants Act, 1974 they were liable to be transferred anywhere in the Province and no separate Provision was necessary.
8. So far as the judgments cited by the respondents in the comments are concerned, in none of those cases there is any discussion on the subject and it has been assumed as that the servants of Market Committee are civil servants. These precedents are, therefore, of no help in this regard. It may, however, be mentioned that this question considered in the case reported as Majid Ahmad v. Chairman, Market Committee Baddu Malhi and 2 others (1986 PLC (C.S.) 474), where the view taken by the Tribunal was that the employees of the Market Committee were the employees of a corporate body and were paid from the funds of the Market Committee and not from the funds of the Provincial Government and, as such, they were not civil servants and cannot invoke the jurisdiction of the Service Tribunal. We fully endorse the view taken by the Services Tribunal in the above cases.
9. As regards the merits, the transfer order of the petitioner was suspended by the civil Court pursuant to which the order itself was cancelled by the competent Authority on 15‑10‑1995. The petitioner reported for joining the post and was allowed to do so by respondent No.2. In these C circumstances the petitioner was clearly entitled to receive the salary from the Market Committee and refusal of pay would amount to forced labour which is violative of the Constitution as also the principles of Islam and Social Justice. We may in this regard refer to the case of Sughran Begum v. Metropolitan Corporation of Lahore etc. (1996 CLC 472), in which it was observed that if the employee is made to work without payment of salary it would be against Islam which envisages payment of wages before sweat of toil is dried up. This act would also be violative of the principles of Policy contained in Chapter 2, Part‑II of the Constitution as also Article 3 of the Constitution which casts duty on the State to eliminate all forms of exploitation.
In view of the‑above this petition is allowed and the respondents are directed to pay the petitioner his salary for the period during which he remained with the respondent No.2. No order as to costs.
Q.H.H./M.A.K./A‑30/L Petition allowed.