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Petitioner: MUHAMMADAFZAL VS Respondent: MUSHTARKA MULAZMIN ACTION COMMITTEE
1999 P L C (C
1999 P L C (C.S.) 1116
[Quetta High Court]
Before Iftikhar Muhammad Chaudhary and Aman Ullah Khan, JJ
MUHAMMAD AFZAL and others
Versus
MUSHTARKA MULAZMIN ACTION COMMITTEE and others
Civil Petitions Nos. 123, 175, 176, 143, 267 and 106 of 1998, heard on 19th November, 1998.
(a) Balochistan Civil Servants Act (IX of 1974)‑‑‑
‑‑‑‑S. 2(b)‑‑‑Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992, R.2(f)‑‑‑ Constitution of Pakistan (1973), Art. 17(1)‑‑‑Right of civil servants to go for strike, lock‑out or go slow and form Association or Union‑‑‑Reasonable restrictions‑‑"Civil servant" as defined under S. 2(b) of Balochistan Civil Servants Act, 1974, though had no right guaranteed to go for strike, lock‑up or go slow, for pressing their demands, but civil servants in exercise of their right, guaranteed by Art. 17(1) of Constitution of Pakistan (1973), could form Association or Union, subject to any reasonable restriction, imposed‑ by law in interest of sovereignty or integrity of Pakistan, public order or morality‑‑‑Such civil servants could agitate their claims or grievance before legal/competent forums, but had no legitimate right to resort to strike, go slow or lock‑out in view of restriction imposed by Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992.
PLD 1997 SC 781; Ghameshwar Prasad and others v. The State of Behar and another AIR 1962 SC 1166 and O.K. Ghosh and another v. Ex- Joseph AIR 1963 SC 812 ref.
(b) Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992‑‑‑
‑‑‑‑S. 2(f)‑‑‑Government Servants (Conduct) Rules, 1979‑‑‑"Misconduct"‑‑ Meaning and scope‑‑‑ "Misconduct" as defined in R. 2(t) of Balochistan Civil Servants (Efficiency and .Discipline) Rules, 1992 would mean, conduct prejudicial to good order or service discipline or contrary to Balochistan Government Servants (Conduct) Rules, 1979, or unbecoming of an officer and a gentleman‑‑‑Misconduct also included any act on part of civil servant to bring or attempt to bring political or other outside influence directly or indirectly to bear on Government or member or any Government Officer in respect of any matter relating to appointment, promotion, transfer, punishment, retirement or other conditions of service of civil servant‑‑‑Civil servant was not authorised to indulge in such activities which were prejudicial to good order or service discipline‑‑‑Resorting to a strike by civil servant would be prejudicial to good order or service discipline, because due to strike, go slow, or lock‑out, civil servant would ‑not be obeying good orders of their superiors and while denying to perform their duties they would be absenting themselves from duties and their said conduct would be unbecoming of an officer and a gentleman.
(c) Balochistan Civil Servants (Efficiency and Discipline) Rules, 1983‑‑‑
‑‑‑‑R. 9(d) Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition ‑‑‑Maintainability‑‑‑School teachers and Government officials having gone on strike, two citizens filed Constitutional petitions in which they requested that school teachers and Government officials be directed to call off strike to save valuable time of poor children who had been prevented from attending their classes and to save general public from difficulties faced by them due to illegal strike of Government officials‑‑‑Said Constitutional petitions were resisted on ground that citizens who had filed Constitutional petitions could not be granted relief asked for because in such like situation, it was duty of Government to have taker. action against officials who had gone on strike to press their demands in view of R.9(d) of Balochistan Civil Servants (Efficiency and Discipline) Rules, 1983 and under Industrial Relations Ordinance, 1969‑‑‑Validity‑‑‑Constitutional petitions were filed by citizens on behalf of public who were being directly affected on account of strike by school teachers and Government officials as future of their children was at stake and they were also facing difficulties due to non -functioning of Government officials‑‑‑Fundamental rights of public, guaranteed under Constitution of Pakistan, 1973, having been denied, for enforcement of said rights, jurisdiction under Art. 199(1)(c) of Constitution of Pakistan, 1973 could be exercised by High Court as Government servants, being functionary, responsible to run the affairs of Government, had refused to perform their duties‑‑‑Petitioners/citizens, in circumstances, had rightly approached High Court by availing speedy remedy and petitioners could not be denied relief on any technical ground‑‑‑Constitutional petitions filed by citizens were maintainable in circumstances.
I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041; Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC I and Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416 ref.
(d) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Arts. 184(3) & 199‑‑‑‑Enforcement of Fundamental Rights‑‑‑Jurisdiction of Supreme Court and High Court‑‑‑Supreme Court and High Court respectively under Arts. 184(3) & 199 of Constitution of Pakistan (1973), were competent to enforce Fundamental Rights conferred by Chap. II, Part I of the Constitution of Pakistan, 1973‑‑‑High Court under Art. 199 of Constitution of Pakistan, 1973, was competent to give appropriate directions to functionaries of Provincial Government for enforcement of Fundamental Rights.
S.P. Gupta v. Union of India, 1981 Supp. SSC 87 and AIR 1982 SC 149 ref.
(e) Industrial Relations Ordinance (XXIII of 1969)‑‑‑
‑‑‑‑‑Ss. 28, 29, 32 & 33‑‑‑Strike on behalf of workers‑‑‑Legality‑‑‑Strike on behalf of workers/workmen, was only permissible, subject to procedure laid down in Industrial Relations Ordinance, 1969‑‑-Workers/workmen and other officials working in various organizations of Provincial Government, before resorting to strike, having failed to adhere to procedure as laid down under relevant sections of Industrial Relations Ordinance, 1969, strike on their behalf, was illegal.
AIR 1988 SC 1291; 1995 CLC 1047; 1995 SCMR 879; 1990 CLC 136; 1991 CLC 13, 1991 SCMR 1041; 1992 CLC 219; PLD 1993 SC 375; 1993 SCMR 833; PLD 1987 SC 304 and 1993 SCMR 1533 ref.
(f) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Arts. 199 & 25‑‑‑Notification No. FD(R) ‑1‑8/98/420‑520, dated 22‑4‑1998‑‑‑Civil service ‑‑‑Constitutional petition ‑‑‑Maintainability‑‑ Enforcement of Fundamental Rights ‑‑‑Government of Balochistan vide Notification No. FD(R)1‑8/98/420‑520, dated 22‑4‑1998, granted compensatory allowance to all employees of Province, except employees working in Quetta District‑‑‑Employees of Quetta District who were denied compensatory allowance, formed a body which consisted of various associations of civil servants, teachers' association and other associations‑‑ Representatives of said associations considering that employees of Quetta District having been discriminated by not allowing them compensatory allowance, which had been allowed to all employees of other Districts,. first observed strike and after calling off said strike by directions of High Court filed Constitutional petitions for enforcement of Fundamental Rights of affected employees in representative capacity‑‑‑Validity‑‑‑Petitioners were aggrieved persons and they being representatives of their respective unions and Associations had locus standi to institute Constitutional petitions for claiming relief in terms , of Art. 25 of Constitution of Pakistan, 1973‑‑ Constitutional petitions filed by petitioners were competent in circumstance.
1991 SCMR 1041 ref.
(g) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Arts. 25 & 199‑‑‑Notification No. FD(R)1‑8/98/420‑520, dated 22‑4‑1998‑‑‑Civil service‑‑‑Constitutional petition‑‑‑Equality of citizens‑‑ Provincial Government of Balochistan vide Notification No.F.D.(R)1 8/98/420‑520, dated 22‑4‑1998 granted compensatory allowance to all employees discharging their duties in all other Districts, of Province, but employees of Quetta District were denied the allowance‑‑‑Employees of Quetta District who were denied compensatory allowance had alleged that they had been discriminated against as they were entitled to equal treatment and were entitled to equal protection of law as envisaged in Art. 25 of Constitution of Pakistan, 1973‑‑‑Validity‑‑‑Equal protection of law does not mean that every citizen is to be treated equally in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike‑‑‑Reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis‑‑‑Different laws could validly be enacted for different sexes, persons in different age groups, persons having different financial standings and persons accused of heinous crimes‑‑‑No standard of universal application to test reasonableness of classification could be laid down‑‑‑Law applying to one person or one class of persons could be constitutionally valid if sufficient basis of reasons were available for it, but classification which was arbitrary and was not founded on any rational basis, was not classification as to warrant its exclusion from mischief of Art. 25 of Constitution of Pakistan, 1973‑‑‑Equal protection of law would mean that all persons equally placed be treated alike both in privileges and liabilities imposed‑‑‑In order to make a classification reasonable, it should be based on intelligible differentia which distinguishes persons or things that were grouped together from those who had been left out and differentia must have rational nexus to the object sought to be achieved by said classification‑‑‑Government by not allowing compensatory allowance to petitioners who were discharging their duties in Quetta District in similar and alike circumstances, had discriminated against them and said act of Government was in violation of Art. 25 of Constitution of Pakistan, 1973‑‑‑High Court, in exercise of its Constitutional jurisdiction, directed to amend impugned Notification granting compensatory allowance to all employees of the Province and to issue fresh notification accordingly.
AIR 1988 SC 1291; AIR 1989 SC 29; 1996 SCMR 818; PLD 1998 SC 1445; Government of Pakistan through Secretary, Ministry of Religious Affairs, Islamabad and 3 others v. Zafar Iqbal and 3 others 1992 CLC 219; Pakistan Petroleum Workers' Union through its General Secretary v. Ministry of Interior through its Secretary, Islamabad and another 1991 CLC 13; Charanjit Lal Chaudhry v. The Union of India and others AIR 1951 SC 41; The State Bank of Bombay and another v. F.N. Balsara AIR 1951 SC 318; Lachamandas Kewalram and another v. The State of Bombay AIR 1952 SC 235; Jibendra Kishore and others v. The Province of East Pakistan and another PLD 1957 SC (Pak.) 9; Waris Meah v. The Estate and another AIR 1957 SC 157; Asgharali Nasarali Singaporewalla v. State of Bombay AIR 1957 SC 503; Zain Noorani v. Secretary of the National Assembly of Pakistan PLD 1957 Kar. 1; Khari Abdul Akbar Khan v. The Deputy Commissioner of Peshawar and others PLD 1957 Pesh. 100; Toti Khan v. District Magistrate, Sibi and Ziarat PLD 1957 Quetta 1; Ram Krishna Dalmia v. Justice Tendolkar AIR 1958 SC 538; Malik Muhammad Usman v. The State and another PLD 1965 Lah. 229; F.B. Ali v. The State PLD 1975 SC 506; Mubarak Ali Khan and 7 others v. Government of Punjab through Secretary, Finance 1990 CLC 136; I.A. Sherwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041; Muhammad Shabbir Ahmed, Nasir v. Secretary, Finance Division, Islamabad and another 1997 SCMR 1026; Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445; Randhir Singh v. Union of India and others AIR 1982 SC 879; P. Savita and others v. Union of India and others AIR 1985 SC 1124; Federation of All India Customs and Central Excise Stenographers (Recognized) and others v. Union of India and others AIR 1988 SC 1291; 1992 SCMR 1847; PLD 1993 SC 375; Ghulam Haidar Badni and 520 others v. Government of Pakistan through Ministry of Information and Broadcasting, Islamabad and another 1995 CLC 1027 ref.
H. Shakil Ahmed and Tariq Mehmood for Petitioners.
Malik Sikandar Khan, A.‑G. for the Government.
K.N. Kohli, Ahmad Khan Lashari,, Salahuddin Mengal, Azam Zarghoon and Ayaz Sawati: Amicus curiae.
Date of hearing: 19th November, 1998.
JUDGMENT
IFTIKHAR MUHAMMAD CHAUDHARY, J.‑‑‑In Constitutional Petitions Nos. 106, 123, 143, 175, 176 and 267 of
1998, points for determination are interconnected, therefore, we intend to dispose of them jointly by this common judgment.
Succinctly, the root cause of the edifice, is a Notification, bearing No. FD (R) 1‑8/98/420‑520, dated the 22nd April, 1998 issued by the Government of Balochistan, Finance Department. For reference the Notification in extenso, is reproduced hereinbelow:‑‑
GOVERNMENT OF BALOCHISTAN FINANCE DEPARTMENT
Dated Quetta, the 22nd April, 1998
No. FD (R) 1‑/8/98/420‑520.‑‑In supersession of this Department's Notifications No. FD (R) 1‑8/97/2857‑2982, dated 10th December, 1997 and No. FD(R)1‑8/97/3101‑3220, dated 31st December, 1997 the Government of Balochistan is pleased to sanction Agency Allowance @ 40% of running pay to all employees in B‑1 to 17 posted/working in Zhob, Killa Saifullah, Musakhel, Barkhan, Loralai ( except Dukki Tehsil), Kohlu, Dera Bugti, Chagai (except Nushki Town) Districts and Compensatory Allowance Ca) 40% of running pay to all employees in B‑1 to B‑17 posted/working in Turbat (KECH), Punjgoor, Gawadar, Kharan. Kalat. Khuzdar, Mastung, Lasbella Awaran. Sibi, Ziarat, Pishin, Jhalmagsi, Bolan, Jaffarabad, Killa Abdullah, Dera Murad Jamali Districts, Dukki Tehsil and Nushki Town. The above allowances would be admissible w.e.f. 1st December, 1997, in lieu of following allowances only:‑‑
(1) AGENCY ALLOWANCE sanction vide No. FD(R)1‑1‑/70, dated 13‑12‑1974 and FD (R) 1‑70/1972‑2072, dated 22nd July, 1992.
(2) COMPENSATORY (MEKRAN/KHARAN) ALLOWANCE sanctioned vide No. FD (R) 1-1/78, dated 18‑6‑1978 FD (R)1‑1/92 201‑235, dated 28‑1‑1992.
(3)ADDITIONAL AGENCY/ ADDITIONAL COMPENSATORY (MEKRAN /KHARAN/KALAT) ALLOWANCE sanctioned vide No. FD (R) 1‑1‑/91, dated 12‑1‑1995 and No FD (R) 1‑8‑1710 1840, dated 16‑10‑1996.
(Sd.) ATA MUHAMMAD JAFAR, SECRETARY, FINANCE. "
As in accordance with the above Notification, Compensatory Allowance, at the rate of 40 % of running pay to the Employees of Quetta District in B‑1 to B‑17, was not granted, therefore, it generated dissatisfaction amongst the employees working in Quetta District, both civil servants as well as workers/workmen, thus, at a large scale, majority of the employees, including the members of Civil Secretariat, its attached Departments as well the Education Department (School Teachers) etc. started physical demonstration to launch a protest against the Provincial Government, by holding Public Meeting, as well as resorting to a strike, to impress upon the Provincial Government, that they be not discriminated by not allowing them Compensatory Allowance, which has been allowed to all other employees of different Districts, who are also working under same circumstances and conditions. In this regard, the employees constituted a Body, known as Balochistan Mushtarka‑Mulazmeen. Action Committee, which consists of various Associations of civil servants, like Teachers, Associations, Clerks' Associations, Secretariat Staff Association and Unions, registered under the Industrial Relations Ordinance, 1969. As such, through this body, they successfully got closed the Schools and Educational Institutions in Quetta District, due to which, innocent students could not attend their classes, as Teachers were on strike. Similarly, during strike the civil servants closed their offices, including the Provincial Civil Secretariat and mainly all other Attached Departments, as well as Para‑medical Staff of Health Department, posted in different Medical Hospitals, situated in Quetta District., In fact, in other words, due to strike, general functioning of the Government Institutions, particularly the Institutions, referred to hereinabove, came to standstill. Although it was the duty of Government to have adopted adequate effective measures, for declaring the strike, uncalled for on resorting to relevant provisions of law, namely, Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992, as well as under the Industrial Relations Ordinance, 1969, but no timely action was taken, except reportedly registering cases against the demonstrators and causing their arrest. Under these circumstances, on 31st March, 1998, a citizen Abdul Nasir Baloch, invoked the jurisdiction of this Court, by filing a Miscellaneous Application, requesting therein, that notice of illegal strike of the School Teachers be taken, to save the valuable time of the poor children, who have been prevented from attending their classes, as teachers have proceeded on strike. The application was ‑treated as Constitutional petition and was registered as C.P. No. 106/1998. Accordingly notices were issued to the prominent Teachers Associations, on obtaining details from the Director Education. Simultaneously, Chief Secretary, ‑‑ Secretary, Education and Director, Education were asked through Advocate‑General, to convene a meeting, so as to find out the ways and means, for prohibition of the strike and agitation, going on at present, in order to get opened the schools at the earliest. In pursuance of such directions, the Representatives of the Teachers' Associations made a commitment that there would be no hurdle, in any manner in the education of children in the schools throughout the province and every teacher, irrespective of his concern with any Union/Association, will perform his duty and in case of failure on the part of anyone of them, his services will be liable to be terminated, in accordance with law. The commitment Memorandum duly signed by all of them, was also placed on record. At this stage, it may be noted, that as per the information collected by Secretary, Education, the Teaching Staff in B‑7 to B‑16 Grades, was partially on strike, but the schools were opened, as staff of B‑17 and above, were on duty. Thus, orders were issued to the teachers to call‑off the strike/agitation/protest/demonstration, which they have launched against the Government, for pressing their demand and to positively join their duty with effect from 17th April, 1998. The Headmasters/Incharges of all Schools, functioning throughout the Province, particularly in Quetta District, were also directed to ensure the opening of schools and to monitor; whether all the teachers have attended their duty respectively and have taken the classes regularly? They were also directed that if any one of them fails to do so, it will be their duty to report the matter to the next immediate officer in writing, who in term would bring such matter in the notice of competent Authority, for initiating action under the relevant provisions of Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992. The District Magistrates were also directed to extend full cooperation to the Headmasters of .the Schools in opening and running of schools smoothly, with further directions that if any hurdle is caused by any of the members of the Association/Union of Teachers or their Office‑Bearer, they will report the matter to the Registrar of this Court, etc. To monitor the functioning of the schools, a Committee, comprising of Additional Chief Secretary, Secretary Home, Secretary Education and Inspector‑General of Police, was also constituted, As a consequence of this order, the teachers called off the strike and the schools started functioning. In order to examine the legal character of the Teachers Associations, their Constitutions, Bye‑laws, and details of members etc. were also collected.
As soon as the order passed in C.P. No. 106 of 1998, against the School Teachers to call‑off the strike and assume their duties was implemented, another citizen namely Muhammad Afzal, instituted a petition, which was registered as C.P. No. 123 of 1998, wherein, he pointed out the difficulties and problems of the general public, being faced by them, on account of illegal strike in the Civil Secretariat, particularly mentioning the fact that Mushtarka‑Mulazmeen Action Committee had given a call of shutter‑down, in Quetta on 29th April; 1998 and stated that if they will succeed in doing so, it would cause multiple problems for the general public. Accordingly, office‑bearers of Mushtarka‑Mulazmeen Action Committee, alongwith office‑bearers of other Employees Unions including President, QDA Employees Union, President, Balochistan Labour Federal, President, All Pakistan Secretariat Employees Co‑ordination Union, President, Secretariat Staff Association etc. were summoned besides the Officers of Local Administration and after providing hearing to all concern. The employees of the Civil Secretariat and its Attached Departments, were directed to call off the strike immediately and assume their respective duties with effect from 29th April, 1998. Simultaneously prohibition order for general strike in the city i.e. shutter down of the Trade Business Centres was also issued. It was also observed that the Government may take a decision for releasing salaries of the employees, who have not attended their duties, for one or the other reason for the month of April, 1998, subject to implementation/obedience of the Court order, as well as any action, if Government decided to take against them under the relevant provisions of Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992. This order was accordingly implemented and the employees called off the strike and joined their duties. Simultaneously the Provincial Government also released their salaries respectively.
Later on, Abdul Sattar Baloch, General Secretary, Agriculture Workers Union, Balochistan, Muhammad Sadiq Khamosh and Muhammad Hassan, General Secretary, All Pakistan Clerks' Association, Pakistan Tourism Department, Culture Unit, Quetta, Khair Muhammad Sumalani President, Quetta Municipal Corporation, Mehantkash Union and Khair Muhammad Shaheen, President, Balochistan School Teachers Union, Quetta, submitted Miscellaneous applications, which were registered as Constitutional Petitions 143, 175, 176 and 267 of 1998 (Last named petitioner has filed a Constitutional Petition within the meaning of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973). In all the petitions, they prayed that the employees, working in Quetta District are also entitled for 40% Special Consolidated Allowance of running pay with effect from 1st December, 1997 respectively. As the claim set out in these petitions was related to the strike by the employees in Quetta District, therefore, these matters were also ordered to be heard alongwith C.Ps. Nos. 106 and 123 of 1998.
There is yet another petition being C.P. No. 185 of 1998, the facts of which. are not relevant nor the relief claimed therein is identical with above petitions, therefore, we intend to dispose it of separately, by passing appropriate orders.
As in instant matter. important questions of public interest litigation, were involved, therefore, we asked Messrs Tahir Muhammad Khan, M. Riaz Ahmad, Tariq Mehmood, H. Shakeel Ahmad, Mrs. Ashraf Abbas, Salahuddin Mengal, Sarwar Javed, Ayaz Sawati and Mumtaz Yousaf Chaudhry, Advocates, to assist the Court.
In view of the controversy involved in these petitions, following points emerge for determination:‑‑----
(i) Whether under Article 17 of the Constitution of Islamic Republic of Pakistan 1973, a right of strike, go slow/lock‑out has been conceded to Provincial Civil Servants under any Statutory Provision, and if not, what would be the effect of strike, which they observed, to press the Government for acceding to their demand of paying 40 % Compensatory Allowance to them in terms of under-consideration Notification, dated 22nd April, 1998?
(ii) Whether the workers/workmen defined under Factories Act and Workmen's Compensation Act working in Quetta District, being employees of Provincial Government, have resorted to strike, for pressing the demand of payment of 40% Compensatory Allowance, in accordance with the Industrial Relations Ordinance, 1969? And
(iii) Whether the Provincial Employees (both Civil servants as well as workers/workmen) discharging duties in Quetta District, have been discriminated, in not allowing them 40% Compensatory Allowance, in terms of Notification, dated 22nd April, 1998?
Learned counsel appearing as amicus curiae as well as Malik Sikandar Khan, learned Advocate‑General, conceded that the civil servants, functioning in Civil Secretariat and its attached Departments, including…
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