2016 P L C (C.S.) 1267
[Balochistan]
Before Muhammad Noor Meskanzai, C.J. and Muhammad Hashim Khan Kakar, J
MUJEEBULLAH GHARSHEEN and another
Versus
GOVERNMENT OF BALOCHISTAN through Chief Secretary and 3 others
C.P. No.512 of 2012, decided on 9th November, 2015.
(a) Balochistan Civil Servants Act (IX of 1974) ---
----Ss. 15 & 16--- Balochistan Government Servants (Conduct) Rules, 1979, Rr.30, 27- B, 31, 2(r)
& 3---Civil service ---Strike by civil servants ---Misconduct ---Public functionaries ---Fundament al
rights ---Scope ---Formation of association had not been prohibited however restriction had been
imposed by law in the interest of public order ---Every right would correspond to a duty and if
there was no duty then there was no right ---Government/civil se rvants and employees of
statutory bodies owed some duties to the State as well as public -at-large---Holding
demonstration or observance of strike and/or sit -in (dharna) would attract provisions of relevant
law and any civil servant or employee of statutory body except those who fell within the
definition of workmen indulged in such activity should be held guilty of "misconduct" and
should be proceeded against departmentally ---Fundamental rights in essence were restrained on
the arbitrary exercise of power b y the State in relation to any activity that an individual could
engage ---Freedom of association was not absolute or unfettered and it would be subject to
reasonable restrictions imposed by law and morality and decency ---Word "subject to reasonable
restric tions" did not admit and permit total denial of right ---Association of employees observed
strike not recognized by any law rather such strikes had been prohibited under the law ---
Authorities concerned had been remiss in discharging its obligations under the Constitution or
the law ---Competent authorities were under constitutional and moral duty to take action against
those indulged in illegal strikes ---Executive was bound to enforce fundamental rights of
individuals and they could not be allowed to defeat a ny provision of Constitution---Strikes in
educational institutions and health- care centers and holding demonstrations on public
thoroughfare by sit -in (dharna) was infringement of fundamental rights of every citizen ---Civil
servants and employees of statut ory bodies were at liberty to form association or to be a member
of such association but strictly in accordance with law ---Chief Secretary of the Province was
directed to give serious consideration to the expediency of incorporating necessary amendments
in the Balochistan Government Servants (Conduct) Rules, 1979---High Court observed that if
government/civil servants and/or employees of statutory bodies in future were found indulged in
observance of strike or holding demonstrations/sit -in (dharna) at or by public thoroughfares then
they should not only be guilty of "misconduct" but also contempt of court ---Secretary of
concerned department/head of statutory body should initiate departmental disciplinary action
against the delinquents involved in such activi ties---If Secretary of the department
concerned/head of statutory body failed to initiate action then Chief Secretary should initiate
disciplinary proceedings against him as well as delinquent government/civil servants/employees -
--If Chief Secretary also f ailed to initiate departmental disciplinary proceedings then contempt
proceedings would be initiated---Constitutional petition was disposed of in circumstances.
Muhammad Afzal v. Mushtarka Mulazmin Action Committee 1999 PLC (C.S.) 1116;
Jamat -i-Islami Pa kistan v. Federation of Pakistan PLD 2000 SC 111; Pakistan Muslim League
(N) v. Federation of Pakistan PLD 2007 SC 642; Dr. Mobashir Hassan v. Federation of Pakistan
PLD 2010 SC 265; AIR 1950 SC 211; AIR 1964 SC 416; AIR 1960 SC 633; Mehtab Jan v.
Municipa l Committee Rawalpindi PLD 1958 (W.P.) Lah. 929; People's Union for Democratic
Rights v. Union of India 1984 PSC 314; Ghulam Murtaza v. Inayatullah 1998 PLC (C.S.) 274;
Khuda Bux Chandio v. Sattar 1999 MLD 3199; Watan Party v. Federation of Pakistan, PLD
2011 SC 997; Brookes Pharmaceutical Laboratories (Pakistan) Ltd., Karachi v. Karachi
Buildings Control Authority 2012 CLC 131; Khwaja Ahmad Hassan v. Government of Punjab
PLD 2004 SC 694; Pakistan Medical and Dental Council v. Ziauddin Medical University PL D
2007 SC 323 and Zahid Ahmed v. Province of Sindh 2012 PLC (C.S.) 124 rel.
(b) Contempt of court---
----Proceedings ---Scope ---Power to initiate proceedings of contempt should be used sparingly
and court should exercise judicial restraint as long as possible ---Such power should always be
exercised cautiously, wisely and with circumspection.
Syed Masroor Ahsan v. Ardeshir Cowasjee PLD 1998 SC 823; Naveed Nawazish Malik
v. Ghulam Rasool Bhatti 1997 SCMR 193 and Baz Muhammad Kakar v. Federation of Pakistan
through Ministry of Law and Justice PLD 2012 SC 923 rel.
(c) Constitution of Pakistan --
----Arts. 4 & 5---Protection of law ---Scope ---Every citizen had inalienable right to be treated in
accordance with law.
(d) Constitution of Pakistan ---
----Art. 3 ---Eli mination of exploitation ---State was under obligation to establish a society which
was free from exploitation ---Right to education and medical -care was valuable right and
infringement of said right was the worst form of exploitation of ordinary citizens.
Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473
rel.
(e) Constitution of Pakistan ---
----Art. 17---Public order' ---Meaning.
AIR 1950 SC 129; AIR 1960 SC 633 and AIR 1972 SC 1656 rel.
(f) Words and phrases ---
----`Strike' ---M eaning.
(g) Constitution of Pakistan ---
----Art. 199---Constitutional jurisdiction of High Court ---Scope ---When fundamental rights had
been violated, High Court must step in to investigate such facts and pass such order as might be
just, legal and equitabl e---High Court was to protect fundamental rights guaranteed by the
Constitution which would be regarded as inviolable under all conditions and could not be
abridged.
(h) Constitution of Pakistan ---
----Art. 4 ---'Law' ---Meaning.
2011 SCMR 1; 2009 PLC (C.S.) 966; 2010 SCMR 1301 and 2011 PLC (C.S.) 1130 rel.
(i) Public functionaries ---
----Duty ---Public functionaries were obliged to act within four corners of mandate of /
Constitution and law.
(j) Constitution of Pakistan ---
----Art. 9 ---'Life' ---Meaning .
Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan PLD
2010 SC 61; Rana Aamer Raza Ashfaq v. Dr. Minhaj Ahmad Khan 2012 SCMR 6 and AIR 1950
SC 27 rel.
(k) Constitution of Pakistan ---
----Art. 25- A---Right to education---Scope ---Every man and woman had right to acquire ability
to read, write and attain knowledge without discrimination.
Fiaqat Hussain v. Federation of Pakistan PLD 2012 SC 224 rel.
(l) Interpretation of statute ---
----Preamble---Scope and object ---Preamble was th e key to understand the statute and preamble
was a clause at the beginning of the statute explanatory of, the reasons for its enactment and the
object sought to be accomplished.
Baz Muhammad Kakar for Petitioners.
H. Shakil Ahmed and Mazhar Ilyas Nagi, Amici Curiae.
Kamran Murtaza along with Dad Muhammad, President, All Pakistan Clerks
Association.
Shai Haq Baloch, Assistant Advocate General, Rizwan Mehmood, Secretary, Services
and General Administration Department, Abdul Rehman Buzdar, Secretary, Agricultural
Department, Noor Hussain Baloch, Deputy Director (Judicial) S&GAD, Haroon
Rasheed, Deputy Secretary (Judicial) Education Department, Muhammad Aslam Pervaiz,
Assistant Director (Judicial), Education Department for Respondents.
Date of hearing: 7th O ctober, 2015.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. --- Petitioners, Mujeebullah Gharsheen
and Dad Jan Baloch, are, respectively, President and General Secretary of All Government
Teachers Association (Regd.), which espouse the cause of its members.
2. The factual matrix, which transpires, is that one of the members of the said association;
viz, Abdul Khaliq filed Service Appeal No.141 of 2010 against the respondents before the
Balochistan Service Tribunal, with a prayer to fill up the vacant posts of Sec ondary School
Teachers ("SST") by promotion on Provincial basis in accordance with the provisions of the
Balochistan Education Department (School Branch) (Men/Women Section) - (B-16 and above)
Services Rules, 1981 ("the Rules of 1981"), which was allowed vi de judgment dated 29th
September 2010. The said judgment was assailed by the respondents before Hon'ble Supreme
Court of Pakistan by means of filing Civil Petitions Nos.226- Q and 248- Q of 2010, however, the
same were dismissed vide judgment dated 15th Febr uary 2011. In spite of existence of aforesaid
judgments, no action was taken and, as there was no positive response to their Charter of
Demands, the Association went on hunger strike and established a camp at Shahrah- e-Aadalat in
front of Press Club, Quett a, where about 140 teachers, along with their office bearers, sat on
hunger strike till death and similarly, in every district, two teachers observed the said strike.
Since the respondents did not bother to pay any heed to their demands, therefore, a three days
lockout of the government schools in all over the province was observed. The said strike was
called off by the Association in view of the order dated 11th June 2012, passed by this Court in
Constitutional Petition ("CP") No.429 of 2012.
3. So far as the main prayer regarding promotion of Junior Vernacular Teacher B -7 ("JVT")
and Junior Arabic Teacher B -9 ("JAT"), possessing B.A/B.Ed. degrees with five years -
experience, is concerned, the same has already been granted by this Court vide judgment dated
31st December 2014 in C.P. No.59 of 2012, operating portion whereof reads as under:
"We have heard the learned counsel for the parties and have also gone through the
document appended with the petition, which reveals that neither the parties are at
variance, nor is there any live issue requiring determination by this Court. Even
otherwise, under Articles 187(2) and 190 of the Constitution, all the executive and
judicial authorities throughout the Pakistan are bound to comply with the directions of the
Hon'bl e Supreme Court. Thus, the respondents are directed to comply with the judgment
passed by the Balochistan Service Tribunal, Quetta, upheld by Hon'ble Supreme Court of
Pakistan and fill up the 50% vacancies of SSTs by way of promotion and rest of the 50%
by direct recruitment through Balochistan Public Service Commission. The latter is
directed to make the recruitment in question within a period of three months, positively."
4. At this juncture, Mr. Shai Haq Baloch, learned Assistant Advocate General ("AAG") ,
while conceding the prayer of the petitioners regarding appointment of 50% of SST by way of
promotion within the purview of the Rules of 1981 by making reference ,to paragraph No.4 of
the petition, raised a question as to whether the members of the Assoc iation, being civil servants
within the purview of the Balochistan Government Servants (Conduct) Rules, 1979 ("the Rules
of 1979") and the Balochistan Employees Efficiency and Discipline Act, 2011 ("the Act of
2011"), can observe strike, like "Go- Slow", "S it-Down", "Pen -Down", "Stay -In", "Token",
"Sympathetic" "Surrounding Chief Minister or Governor Houses" or any other similar strike?
5. Keeping in view the importance of the question, which would certainly lead to complete
revision of the accepted Civil Se rvice Philosophy, notices were issued to the representatives of
All Pakistan Clerks Association, Secretariat Staff Association, Pakistan Medical Association,
Pakistan Paramedical Association Balochistan as well as to the representative of different
Teacher s' Associations.
6. We have heard Mr. Kamran Murtaza, Advocate, appearing on behalf of All Pakistan
Clerks Association, Mr. Baz Muhammad Kakar, Advocate, representing the All Government
Teachers' Association, M/s H. Shakil Ahmed and Mazhar Ilyas Nagi, Advo cates, Amicus Curies,
Mr. Haroon Rasheed, Deputy Secretary (Judicial) Education Department, Mr. Rizwan
Mehmood, Secretary, Services and General Administration Department, Mr. Abdul Rehman
Buzdar, Secretary, Agricultural Department and Mr. Shai Haq Baloch, learned Assistant
Advocate General.
7. At the very outset, Mr. Shai Haq Baloch, learned AAG and Mr. Mazhar Ilyas Nagi,
learned Amici Curiae, brought to the notice of the Court that in the case of Muhammad Afzal v.
Mushtarka Mulazmin Action Committee (1999 PLC (C.S.) 1116), this Court seized of a matter,
involving same questions, which have been arisen in the instant petition and the Court, after
making survey of law pertaining to conduct, efficiency and discipline of civil servants a s well as
labour laws, had taken conscious decision on these points of law. It may be advantageous to
reproduce relevant paragraph from said judgment:
"Civil Servant" as defined under S.2(b) of Balochistan Civil Servants Act, 1974, though
had no right guar anteed 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,
impo sed by law in interest of sovereignty or integrity of Pakistan, public order or
morality."
8. On the Court's query, whether law allows civil servants to observe strikes or to hold
demonstrations, office bearers of different Associations and their counsel c ould not dispute the
legal position and candidly admitted that Civil Servants cannot lawfully resort to strikes, sit- ins,
go slow etc, to press their demands. It may also be noted that some of the office bearers of
Associations, who were present in the ins tant case in persons, were also associated with
proceedings of Muhammad Afazal's case (supra) and the said office bearers had undertaken
before the Court not to observe strikes and/or to hold demonstrations. When confronted with
aforesaid authoritative decision of this Court and undertaking given by them, office bearers of
different Associations reluctantly and half -heartedly again undertook not to observe strikes in
future, but, simultaneously, they emphatically pressed into service; inter alia, that Artic le 17 of
the Constitution clearly allows them to have the right to form Associations. It was shocking,
when office bearers of Pakistan Medical Association ("PMA") filed their comments/reply,
wherein they contumaciously contended that it was the standing policy of PMA to resort to
strikes etc. as and when felt expedient.
9. We have noted it painfully that aforesaid judgment passed by this Court has been
continuously disobeyed with impunity. Pushed into such an unfortunate situation, we
contemplated to issue contempt notices to the office bearers of different Associations as well as
the authorities concerned, whose duty was to get the aforesaid judgment obeyed. The instant
dispute brought before this Court was not so intricate and could be taken to its logical conclusion
by issuance of such contempt notices, however, we are conscious that power to initiate
proceedings of contempt should be used sparingly and the Court should exercise judicial restraint
as long as possible. Such power must always be exercised ca utiously, wisely and with
circumspection. Frequent or indiscriminate use of this power in anger or irritation would not help
sustaining the dignity or status of the Court, but may sometimes affect it adversely. Wise Judges
would never forget that the best way to sustain the dignity and status of their office is to deserve
respect from the public -at-large by the quality of their judgments, the fearlessness, fairness and
objectivity of their approach, and by the restraint, dignity and decorum, which they obse rve in
their judicial conduct. In the case of Syed Masroor Ahsan v. Ardeshir Cowasjee, (PLD 1998
Supreme Court 823), Hon'ble Supreme Court of Pakistan did not approve frequent initiation of
contempt proceedings and observed that:
"(v) That the power of contempt should be used sparingly and only in serious cases
and that the Court should not be either unduly touchy or over -astute in discovering new
varieties of contempt for "its usefulness depends on the wisdom and restraint with which
it is exercised."
10. On the question whether breach of undertaking given in the Court amounts to contempt
of Court or not, it would be appropriate to refer to the case of Naveed Nawazish Malik v.
Ghulam Rasool Bhatti, (1997 SCMR 193), wherein Hon'ble Supreme Court, while inter preting
the expression "contempt of Court", observed as under:
"To disobey or disregard an order, direction or process of Court which a person is legally
bound to obey, wilful breach of an undertaking given to a Court, any act intended to or
tend to bring the authority of the Court or the administration of law into disrespect or
disrepute and to obstruct, interfere; interrupt or prejudice the process of law or the due
course of any judicial proceeding fall within the category of contempt of Court."
(underli ning supplied by us)
11. Notwithstanding the reference to aforesaid case, we would hasten to add that the hands of
Court are not tied in initiating contempt proceedings against the contemnors. In the case of Baz
Muhammad Kakar v. Federation of Pakistan thr ough Ministry of Law and Justice, (PLD 2012
SC 923), his lordship Mr. Justice Jawad S. Khawaja, while quoting Shakespeare and reiterating
the principle of judicial restraint, has subjected the said principle to some exceptions in the
following words:
"7. This episode has been eloquently dealt with by Shakespeare in the following
words: -
Into the hands of justice. 'You did commit me:
For which I do commit into your hand
The unstained sword that you have used to bear;
With this remembrance, that you use t he same
With the like bold, just and impartial spirit
As you' have done against me. There is my hand" Shakespeare's Henry V, Part 2, Act 5,
Scene 2)
.
9. The above noted historical episodes highlight the significance of the power of the
court to punish contemnors. Societies which have attained the rule of law have done so at
a price. And that price, we too must be prepared to pay. This historical context also
makes it easier to understand why a people's movement for the restoration of
constitutional rule in Pakistan, which began with a defense of the constitutional
protections for judicial independence, now seems to be culminating in a series of highly
contested legal cases revolving around the law of contempt. Some lament that this is an
unfortunate traj ectory. But, in the light of history, this trajectory seems only natural. In a
government of laws, the courts of law are supposed to decide matters before them in
accordance with the law. Once they have passed a judgment, the government of the day is
requi red to implement it. But what happens if its functionaries do not do so? As stated
earlier in the judgment, that, ultimately, is the question with which we are repeatedly
being confronted whether through the executive's non- compliance or through
unconstitutional legislative action such as the impugned Contempt Act, 2012.
10. ... ... ...The scheme which emerges from the Constitution runs, in short, like this:
the Court, in and of itself has to pass orders and to require the implementation of its
orders; resp onsibility for implementation has been made obligatory on other organs of the
State, primarily the Executive. However, in the unfortunate situation that a functionary of
the Executive refuses to discharge his constitutional duty, the Court is empowered to
punish him for contempt. Of course, this power of punishing contemnors for
disobedience is meant more to be a deterrent than a weapon of aggression.
11. .........All the precedents which wax lyrical about the benefits of judicial restraint
are, in reality, cases where the issue was that of scandalization. In cases of disobedience
contempt, the approach is altogether different. In such cases, courts do not show restraint
because at stake is the people's right to the rule of law, not the ego of judges."
(unde rlining supplied by us)
12. On account of constitutional importance of the instant matter, we proceeded with the
matter by hearing the case at considerable length instead of its simple disposal in aforesaid terms.
The reason was that arguments advanced fro m both the sides involved element of public
importance requiring consideration. Office bearers of Associations and their counsel asserted that
fundamental rights to form an Association guaranteed by Article 17 of the Constitution cannot be
exercised freely and would stand frustrated unless they are set at liberty to enjoy their
fundamental rights of freedom of assembly guaranteed by Article 16 of the Constitution. It has
also been forcefully argued that Articles 16 and 17, being supplementary to each other, have to
be read together and right to form an Association would be a mere illusion if right to assemble
and hold demonstrations is restricted. It has next been contended that Articles 16 and 17 of the
Constitution are in the nature of safety valve against bureaucratic bottle -necks and administrative
atrocities and that if rights to form associations; freedom of assembly and holding
demonstrations are curtailed, it would amount granting licence to Executive to act arbitrarily,
whimsically and fancifully without any effective mechanism to ensure the sustenance of system
of check and balance.
13. On the other hand, Mr. Mazhar Ilyas Nagi, learned Amicus Curiae and Mr. Shai Haq
Baloch, learned AAG argued that various Associations formed by civil servants and employees
of statutory bodies owned, controlled and managed by Federal or a Provincial Government
(hereinafter referred to as the "statutory bodies") use the threat of strikes to put pressure on
Government to accept their demands and in some cases to succumb to their illegitimate
capricious demands. Occasionally, they resort to sit -in (dherna)/meetings on the public
thoroughfares causing multiple problems including disorder and interruption in free movement
of general public as well as traffic. It was further argued that observing strikes by civil servants
and employees of statutory bodies attract the rigours of misconduct as defined in the Act of 2011
and other laws regulating the terms and conditions of service. It was also argued that observance
of strikes b y civil servants and employees of statutory bodies result in infringement of
fundamental rights of public -at-large, explained and discussed hereinafter. In support of their
contentions, the learned Amicus Curiae has referred to the following laws/rules whi ch are for the
time being in force to regulate the conduct, efficiency and discipline of civil servants and
employees of statutory bodies:
1. Balochistan Civil Servants Act, 1974.
2. Balochistan Government Servants (Conduct) Rules, 1979.
3 Balochistan Empl oyees Efficiency and Discipline Act, 1974.
14. At this juncture, following preliminary questions arise and need consideration:
1. Whether any law has been enacted by the legislature or statutory rules/regulations
have been framed by the executive to impose limitations/restrictions upon the enjoyment
of right of freedom of association by the civil servants?
2. Whether these restrictions, if any, are reasonable?
3. Whether right of freedom of association can be stretched to the extent of
observing strikes and holding demonstrations/sit -ins (dherna)? And
4. Whether right of freedom of assembly and holding of demonstrations is inherent
in the right of freedom of association?
15. Sections 15 and 16 of the Balochistan Civil Servants Act, 1974 deal with the conduct ,
efficiency and discipline of the civil servants in the Province of Balochistan. As provided in
Section 15 of the said Act, the conduct of a civil servant shall be regulated by the rules made, or
instructions issued, by Government or a prescribed authorit y, whether generally or in respect of a
specified group or class of civil servants. Section 16 of the said Act provides that a civil servant
shall be liable to prescribed disciplinary action and penalties in accordance with the prescribed
procedure.
16. Conduct of civil servants is practically and effectively regulated by the Balochistan
Government Servants (Conduct) Rules, 1979 made by the Government of Balochistan in
exercise of powers conferred on it by Section 25 of the Balochistan Civil Servants Act, 1974. It
would be advantageous to refer to relevant provisions of Rules, which read as under:
"30. Membership of Service associations.
No Government servant shall be a member, representative or officer of any association
representing or purporting to repre sent Government servants or any class of Government
servants, unless such association satisfies the following conditions, namely: -
(a) Membership of the association and its office -bearers shall be confined to a distinct
class of Government servants and sha ll be open to all Government servants of that class.
(b) The association shall not be in any way connected with or affiliated to, any
association which does not, or any federation of associations which do not, satisfy
condition (a) above.
(c) The associati on shall not be in any way connected with any political party or
organisation, or 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 Government; and
(ii) except with the previous sanction of Government, 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 au thority 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 electors, 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 of any member of a local authority or body, whether in Pakistan or elsewhere; or
(ii) pay or contribute towards, the expenses of any trade union which has constituted a
fund under Section 16 of the Trade Unions Act, 1926 (XVI of 1926); provided that this
sub-clause will not apply to Unions of the non- Gazetted staff of Pakistan Railways for
which separate rules already exist on the subject.
27-B. Government servant not to take part in or assist, any public demonstration
against Government decision, etc.
No Government servant shall t ake part in, or any manner assist any public demonstration
directed against a Government decision or policy or permit any member of his family
dependent on him to do so.
31. Use of political or other influence.
No Government servant shall bring or attempt to bring political or other outside
influence, directly or indirectly, to bear on Government or any Government servant in
support of any claim arising in connection with his employment as such."
17. Balochistan Assembly has also promulgated the Act of 2011. The intention of the
Provincial Legislature in promulgation of the said Act is discernible from its Preamble, which
reads as under:
"Preamble. Whereas it is expedient and necessary in the public interest and for good
governance to provide measures for im provement of efficiency and discipline of
employees in Government, autonomous bodies, authority and corporation service and
matters connected therewith or ancillary thereto;"
18. Intention of the legislature in the promulgation of the Act of 2011 is quite easy to discern
and comprehend from its preamble that it, was promulgated firstly in the public interest;
secondly for good governance and thirdly to provide for improvement of efficiency and
discipline of employees in Government, autonomous bodies, author ities and corporation services
and matters connected therewith or ancillary thereto. We are conscious of legal position that
preamble is not the substantive part of the statute, but it is also settled principle of law that
preamble is the key to understand the statute and it is a clause at the beginning of the statute
explanatory of the reasons for its enactment and the objects sought to be accomplished. Preamble
is the first door to open the book, which prescribes its values, comments, obligations, rights and
commitments. It is by now settled that in the preamble of a statute, the main objects of the Act
are set out. Preamble contains the recitals of mischief to be remedied and scope of the statute.
Preamble may only be looked upon as a key to unlock the mi nd of the legislature regarding the
intention in framing that particular law. Preamble is key to understand a statute.
19. It may be noted that, as provided in section 1 of the Act of 2011, it has been made
applicable to civil servants as well as the emplo yees in Corporation Services and Statutory
Authorities. This Act is also applicable to the retired employees of the Government and
Corporation Services, provided that proceedings under this Act are initiated against them during
their service or within one year of their retirement. It may also be worth -noting that the said Act
contains a non- obstante clause i.e. Section 19, which provides "The provisions of this Act shall
have overriding effect notwithstanding anything to the contrary contained in any other law for
the time being in force." The language employed in the said Section indicates that the Act stands
on a higher pedestal and applicability of Civil Servants Act and rules made thereunder or any
other law has been ousted. For removal of any doubt, in this regard, it is also declared that the
Balochistan Government (Conduct) Rules, 1979 are also applicable to the employees of statutory
bodies by force of Section 2 (r) read with Section 3 of the Act of 2011 even if separate
rules/regulations, pertaining to conduct, efficiency and discipline, have been made applicable to
such bodies.
20. Section 2 of the Act of 2011 defines certain terms used in the Act, some relevant terms
are reproduced under:
"2. Definitions. In this, act, unless there is anything repu gnant in the subject or
context, --
(a) "absence from duty" means un -authorised absence from duty without prior
permission or sanction of leave by the competent authority under the Rules for the time
being in force and applicable to the employee concerned;
(m) "inefficiency" means --
(i) failure to efficiently perform functions/tasks assigned to an employee in the
discharge of his duties; or
(r) 'Misconduct' includes --
(i) conduct prejudicial to good order or service discipline; or
(ii) conduct contrary to the Balochistan Government Conduct Rules, 1979 or any
other rules for the time being in force; or
(iii) conduct unbecoming of an officer and a gentleman; or
(vii) absence from duty without prior approval of leave; or
(x) violation/deviation from prescribed G overnment policy or rules; or
(xi) direct interaction with print or electronic media or holding press conference or
making any statement of fact or opinion or acting in a manner which is the cause of
embarrassment for the Government; or
(xii) call, attempt, threat or induce for strike or interrupt in smooth functioning of
Government." (underlining and emphasis supplied by us)
21. Grounds for proceedings and penalty have been laid down in section 3 of the Act
of 2011, which reads as under:
"3. Grounds for pr oceedings and penalty . "An employee shall be liable to be
proceeded against under this Act, if he is --
(a) inefficient or has ceased to be efficient for any reason, or
(b) guilty of misconduct; or"
22. A bare perusal of the aforesaid provisions of law pertaining to conduct, efficiency and
discipline, reveals that the legislature and Government of Balochistan has firstly imposed certain
restrictions to form associations and to be member of the said associ ations. Secondly, an
effective mechanism has been devised to initiate departmental disciplinary action against the
persons, alleged to be guilty of misconduct, indiscipline etc., in the Government/Civil Service as
well in the service of statutory bodies. I t may be observed from the aforesaid provisions of law
that formation of associations has not been prohibited, however, simultaneously, restrictions
have been imposed by law in the interest of public order. Whether these restrictions are
reasonable or othe rwise, said question has also been discussed hereinafter. To sum up, by
drawing conclusions from the aforesaid provisions of law pertaining to conduct, efficiency and
discipline in the service, we hold that holding demonstration or observance of strike and/or sit- in
(dherna) attracts following provisions of law and any civil servant or employee of statutory body,
except those, who fall within the definition of workmen, indulged in such activity, shall be held
guilty of "misconduct" and liable to be proceede d against departmentally, of course strictly in
accordance with law. Such acts of omissions or commissions may be summarized in the
following manner:
(1) They cannot publish any representation on behalf of its members, whether in the
press or otherwise, wi thout the previous sanction of the Government. (Rule 30(d) (ii) of
Rules of 1979)
(2) They cannot take part in, or in any manner assist any public demonstration
directed against a Government decision or policy or permit any member of his family
dependent on him to do so. (Rule 27(b) of Rules of 1979)
(3) There is absolute bar on them to bring or attempt to bring political or other
outside influence, directly or indirectly, to bear on Government or any Government
servant in support of any claim arising in connection with his employment as such. (Rule
27(b) of Rules of 1979)
(4) Employees in Government, Autonomous Bodies, Authority and Corporation
Services indulged in observance of strike and/or sit -in shall be liable to be proceeded
against departmentally on the charge of "misconduct" as defined in Section 2 (r) of the
Act of 2011, referred to hereinabove.
23. Before proceeding further, it would be in the fitness of the things to mention here that this
Court, in the case of Muhammad Afzal (supra) had also exam ined the permissibility to
workers/workmen to resort to strike in accordance with law. It was held:
"Undoubtedly, a strike on behalf of the workers/workmen, is only permissible, subject to
following the procedure laid down in Industrial Relations Ordinance , 1969. At the time of
hearing, nothing was brought on record on behalf of the workers/workmen other than
civil servants, working in various Organizations of the Provincial Government, that
before restoring to a strike, they adhered to the procedure laid down under sections 26 to
33 of the I.R.O. Therefore, in such view of the matter, strike on their behalf as well, was
illegal."
24. It may also be noted that some of the office -bearers of the associations ventured upon
advancing contention that they do not observe strikes in support of their claims, rather they
'protest' against the administrative atrocities in determination of their terms and conditions of
service. By raising such contention, an attempt was made to confuse the terms 'strike' and
'protest'. In the case of Jamat -i-Islami Pakistan v. Federation of Pakistan, (PLD 2000 Supreme
Court 111), concept of 'strike' was elaborated in the following terms:
"The term "strike" is popularly used in labour laws of the country and is generally
understood as a s imultaneous cessation of work on the part of the workmen, and its
legality or illegality depend on the means by which it is enforced and upon its object
having reference to specific provision in the relevant laws. The "strike" is the combined
effort of workmen to obtain higher wages or other concessions and privileges from their
employers by stopping work at a pre -concerted time until their demands are met. The
question as to whether a call of strike given by workmen or members of Labour Union or
members of the Union of workers/employees is lawful or otherwise depends upon the
facts and circumstances of each case having regard to the specific provisions laid down in
the relevant statutes and the object sought to be achieved."
25. From the above, it is crysta l clear that the term "strike" relates to labour laws and can be
resorted to by workmen through their elected unions alone and, that too, strictly in accordance
with law relating to labour disputes for the time being in force. We are not persuaded to accept
the relating of the term "strike" to employees' Associations or treating said term as a synonym of
the term "protest". We are of the view that in case, where there is some concerted action or
combined effort by the members of Association, which is designed to exert pressure on the
Government by stopping work/absenting from duty, holding demonstrations and/or sit -ins
(dherna) on the public thoroughfares, amounts to "strike" and not a "protest" simpliciter.
26. Now the moot question i.e. whether aforesaid r estrictions imposed by law on the exercise
of right to form Associations are reasonable or otherwise, is required to be determined. We have
examined the contentions raised by the office -bearers and learned counsel appearing in the
instant case. We deem it proper to first determine the nature and extent of right guaranteed under
Article 17 of the Constitution of Islamic Republic of Pakistan 1973 ("the Constitution"), which
reads as under:
"17. 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 restrictions 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 form ed 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."
27. There is by now a broad consensus, and it is beyond debate that the Constitution lays
down a very broad concept of fundamental rights of an individual, which demands a very high
level of respect. Purpose of such constitutional guarantees is to enable an ordinary citizen to live
more meaningful and fulfilling life in pursuit of goals, which may result in the progress of
country and in the happiness, peace and tranquility o f citizens. Fundamental Rights in essence
are restraints on the arbitrary exercise of power by the State in relation to any activity that an
individual can engage. In the case of Mian Muhammad Nawaz Sharif v. President of Pakistan
and others, (PLD 1993 Supreme Court 473), Hon'ble Supreme Court emphasized on need to re -
evaluate the essence and soul of the Fundamental Rights under the changed conditions of the
society. Relevant extract from the said judgment is reproduced as under:
"With the passage of time a nd the evolution of civil society great changes occur in the
political, social and economic conditions of society. There is, therefore, the
corresponding need to re -evaluate the essence and soul of the fundamental rights as
originally provided in the Const itution. They require to be construed in consonance with
the changed conditions of the society and must be viewed and interpreted with a vision to
the future. Indeed, this progressive approach has been adopted by the Court in the United
States and the reas ons given for doing so is that: --
"While the language of the Constitution does not change, the changing circumstances of a
progressive society for which it was designed yield a new and fuller import to its
meaning: (Hurtade v. California --110 U.S. 516)."
28. As we intend to discover the true meanings of the words and phrases employed by the
legislature in Article 17 of the Constitution, therefore, before proceeding further, we consider it
necessary to determine the principle of construction to be applied to the said Article. Some other
cases, which have also been of assistance in the matter include the case of Mian Muhammad
Nawaz Sharif (Supra), wherein it was held as under:
"6. While construing Article 17 which guarantees fundamental right, our approach
should not be narrow and pedantic but elastic enough to march with the changing times
and guided by the object for which it was embodied in the Constitution as a fundamental
right. Its full import and meaning must be gathered from other provisions such as
preamble of the Constitution, principles of policy and the Objectives Resolution, which
shed luster on the whole Constitution."
29. Right of freedom to engage in association for the advancement of beliefs and ideas is an
inseparable aspect of the 'liberty' as sured by Article 17 of the Constitution. But the language
employed in the said Article is quite unambiguous and connotes that inbuilt limitations have
been imposed on the right of freedom of Association guaranteed by the Constitution. Freedom of
Associatio n is not absolute or unfettered, as it can be subjected to reasonable restrictions
imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality.
Words "subject to reasonable restrictions" employed in Article 17(1) of the Constitution, do not
admit and permit total denial of right. Total prohibition on freedom of Association is not
envisaged by Article 17(1) of the Constitution, but the right can be regulated/restricted by law if
any of the four ingredients of Article 17(1) is present i.e. interest of "sovereignty" or "integrity of
Pakistan", "public order" or "morality". While deliberating upon the supremacy and inviolability
of fundamental rights and limitations on exercise of such rights, Hon'ble Supreme Court in the
case of Pakistan Muslim League (N) v. Federation of Pakistan, (PLD 2007 SC 642), opined that:
"The idea behind the concept of Fundamental Rights is that the preservation of certain
basic human rights against State interference is an indispensable condition of free society.
The paramountcy to State -made laws is the hallmark of a Fundamental Right. It follows
that the aim of having a declaration of Fundamental Rights is that certain elementary
rights of the individual such as his right to life, liberty, freedom of speech, freedom of
faith and so on, should be regarded as inviolable under all conditions and that the shifting
majorities in the Legislatures of the country should not be able to tamper with them.
Absolute and unrestricted individual rights do not exis t in any modern State and there is
no such thing as absolute and uncontrolled liberty."
30. It must not lose sight of that if Government/civil servants have certain fundamental rights
conferred by the Constitution, ordinary citizens are also governed by the same Constitution.
Ordinary citizens too have fundamental rights and certain safeguards have also been provided to
them by the Constitution. Enjoyment of fundamental rights cannot be confined only to
individuals (Government/civil servants), but the same must also be made meaningful for other
citizens, who have inalienable right to live with such amenities and facilities, which a person
born in a free country is entitled to enjoy with dignity, legally and constitutionally. It is
fundamental principle of jurisprudence that every right corresponds to a duty; if there is no duty
there is no right. Government/civil servants and employees of statutory bodies owe some duties
to the State as well as public -at-large. If a person or class of persons is not inclined to respect the
rights of others, they cannot justifiably demand enforcement of their rights on the strength of
general principle that he who wants equity must do equity. Citizens, as a class, is like human
body consisting of 99 elements and "Rook- spirit", Hon'ble Supreme in the case of Dr. Mobashir
Hassan v. Federation of Pakistan, (PLD 2010 Supreme Court 265) in a very impressive manner
discussed the scheme of the Constitution based on rights and obligations of individuals.
Paragraph 17 (page 470) from the said judgment reads as under: --
"The body of human being consists of 99 elements with proportionate qua each body of
human being. Once the imbalance in the said elements occur then the body as a whole
would be disturbed and affected. The body of human being otherwise consists of two
parts. Body along with the elements and "Rooh- spirit". All of us have an experience that
once the rooh/spirit is missing from the body then body would become dead
automatically that is why the body of human being is a compound of aforesaid elements
and spirit, The scheme of the Constitution of Pakistan is based on rights and obligations
wherein chapter 1 contains fundamental rights and principles of policy in chapter 2.
According to my understanding every chapter and every Article has its own significance
but chapter 1 and 2 had a unique significance. Once these two chapters be held in
abeyance as part of the Constitution or to do the things in violat ion of these two chapters
by any organ of the State then according to me constitution would be dead organ that is
why chapter 1 and 2 be called as flowers and beauty of the Constitution." (underlining
supplied by us)
31. It is by now well- settled that individual interest is to give way to the collective good and
public interest. In the case of Pakistan Muslim League (supra), Hon'ble Supreme Court
deliberated upon the collective interest of the society vis - -vis individual interests. Hon'ble Court
emphasized on the need to strike balance between rights of individuals and the interests of the
community. It would be advantageous to reproduce the relevant paragraph as under:
"The collective interests of the society, peace and security of the State and the
mainte nance of public order of vital importance in any organized society. Fundamental
Rights have no real meaning if the State itself is in danger and disorganized. If the State
is in danger, the liberties of the subjects are themselves in danger. It is for thes e reasons
of State that an equilibrium has to be maintained between the two contending interests at
stake; one, the individual liberties and the positive rights of the citizen which are declared
by the Constitution to be Fundamental, and the other, the nee d to impose social control
and reasonable limitations on the enjoyment of those rights in the interest of the
collective good of the society. ...
The Fundamental Rights can neither be treated lightly nor interpreted in a casual or
cursory manner but while "interpreting Fundamental rights guaranteed by the
Constitution, a cardinal principle has always to be borne in mind that these guarantees to
individuals are subject to the overriding necessity or interest of community. A balance
has to be struck between t hese rights of individuals and the interests of the community. If
in serving the interests of the community, an individual or number of individuals have to
be put to some inconvenience and loss by placing restrictions on some of their rights
guaranteed by the Constitution, the restrictions can never be considered to be
unreasonable." (underlining supplied by us)
32. The phrase "reasonable restriction" employed in Article 17 of the Constitution connotes
that the limitation imposed upon a person in enjoyment of a right should not be arbitrary or of an
excessive nature beyond what is required in the interest of the public. The specified rights of a
free citizen are controlled by what the framers of the Constitution thought were necessary
restrictions in the interest of the rest of the citizens. But the reasonableness of a restriction
depends upon the values of life in a society, the circumstances obtaining at a particular point of
time when the restriction is imposed, the degree and the urgency of the evil sought to be
controlled and similar others. Reference in this regard can be made to numerous cases decided by
Pakistani as well as Indian superior Courts including those reported in AIR 1950, SC 211, 214,
217; AIR 1964 SC 416, 422 and AIR 1960 SC 633, 640. The reasonableness of restrictions, if
any, would have to be judged by the magnitude of the evil, which is the purpose of restraints to
curb or eliminate. "Reasonable" is an objective expression and its objectivity is to be determined
judicially by Courts of l aw. No limit has been placed upon power of the Court to consider nature
of restrictions from every point of view. Greater is the obligation of Court to scrutinize
restrictions placed by Legislature as carefully as possible, for Court being the organ to saf eguard
fundamental rights. In the case of Pakistan Muslim League (supra), Hon'ble Supreme Court
examined the reasonableness of restriction imposed by law on the enjoyment of fundamental
rights and it was held as under:
"No infringement or curtailment in an y Fundamental Right can be made unless it is in the
public interest and in accordance with valid law. No doubt that reasonable restriction can
be imposed but it does not mean arbitrary exercise of power or unfettered or unbridled
powers which surely would be outside the scope of "reasonable restriction" and it must be
in the public interest ......... A reasonable restriction is one which is imposed with due
regard to the public requirement which it is designed to meet. Anything which is arbitrary
or excessi ve will of course be outside the bounds of reasons in the relevant regard, but in
considering the disadvantage imposed upon the subject in relation to the advantage which
the public derives, it is necessary that the Court should have a clear appreciation of the
public need which is to be met and where the statute prescribes a restraint upon the
individual, the Court should consider whether it is a reasonable restraint, in the sense of
not bearing excessively on the subject and at the same time being the min imum that is
required to preserve the public interest."
33. It must also be borne in mind that fundamental right of freedom of association is also
subject to morality and decency. In an old case of Mehtab Jan v. Municipal Committee
Rawalpindi" (PLD 1958 (W .P.) Lahore 929), his lordship Mr. Justice M.R. Kayani observed
that:
"Morality and decency are as fundamental as the fundamental rights themselves, and in
the context of our Constitution, bearing in mind the preamble and the directive principles,
a fundam ental right is like the moon and morality like the disk of light surrounding it."
In the case of Dr. Mobashir Hassan (supra), word "morality" used by the fathers of the
Constitution in Article 17 of the Constitution has been interpreted in the following words:
"The word "morality" is not used in any narrow sense, but in a general sense, such as the
law of conscience, the aggregate of those rules and principles of ethics which relate to
upright behavior and right conduct of elected representatives and prescr ibe the standards
to which their action and in particular those who are Muslims, who are guided by the
Holy Qur'an and Sunnah should conform, in their dealings with each other or with
institutions or the State", M. Saifullah Khan v. M. Afzal PLD 1982 Lah. 77 "
34. It may also be observed that according to Article 17 of the Constitution, right of freedom
of association has further been subjected to "public order". "Public order" is synonymous with
public peace, safety and tranquility. Danger of human life, s afety and disturbance of public
tranquility fall within purview of "public order". Reference to "public order", therefore,
manifests its reference to public peace, safety and tranquility. Superior courts of India have also
interpreted the expression "publi c order" in various cases by holding that "public order" in the
general sense may be construed to have reference to the maintenance of what is generally known
as law and order. It is clear that anything, which affects public tranquility within the State or the
province will also affect public order and the State Legislature is, therefore, competent to frame
laws on matters relating to public tranquility and public order (AIR 1950 SC 129, 130, 134). The
words "public order" are also understood in America and England as offences against public
safety and public peace (AIR 1960 SC 633, 637, 639, 641). Public order is what the French call
"order publique" and is something more than ordinary maintenance of law and order (AIR 1972
SC 1656, 1659).
35. None can dispute that observance of strike and holding demonstrations or sit -ins at public
places causes public disorder. It obstructs smooth flow of traffic. General Public is disabled to
have approach to schools, hospitals and their work- places. Restrictions imposed by law, referred
to hereinabove, cannot be said to be unreasonable. We have no hesitation in holding that such
restrictions qualify the test of reasonableness and they are in the interest of public order. As
Martin Luther King, Jr. rightly opined that "Mor ality cannot be legislated but behaviour can be
regulated. Judicial decrees may not change the heart, but they can restrain the heartless". If
certain persons become so heartless that they are not inclined to respect the rights, dignity and
liberties of other citizens, the Courts cannot stand aloof and must pass appropriate orders to
restrain heartless persons from doing acts touching the rigours of immorality and public disorder
so that an ordinary citizen may be enabled to live more meaningfully and fulfi lling life in pursuit
of goals, which may result in the progress of country and happiness, peace and tranquility of its
citizen.
36. Now adverting to the next contention of the office -bearers of Associations and their
counsel, Article 16 of the Constitution, we proceed to determine whether fundamental right of
freedom of assembly in itself contains right to hold demonstration? It would be advantageous to
reproduce Article 16 of the Constitution:
"16. Freedom of assembly. Every citizen shall have the right to assemble peacefully
and without arms, subject to any reasonable restrictions imposed by law in the interest of
public order."
37. It is not disputed that right of freedom of assembly under Article 16 of the Constitution
embodies within itself right to ho ld demonstration, but language employed in the said Article
again unambiguously conveys clear intent of the legislature that the right to assemble is also not
absolute. It is limited and again subjected to any reasonable restriction imposed by law in the
interest of public order. We have held extensive deliberations hereinabove on the expressions
"reasonable restrictions" and "public order". It is difficult for us to agree with the contention of
office -bearers of the Associations that right to assemble and hold demonstrations is unfettered
and cannot be restricted or subjected to restrictions.
38. Mr. Mazhar Ilyas Nagi, learned Amicus Curiae, argued that observance of strike and/or
sit-in (dherna) by employees of different departments/institutions results in infringement of
fundamental rights of public -at-large guaranteed by the Constitution. Before thorough
examination of instances of such infringements of fundamental rights, we think it appropriate to
discuss the very nature of fundamental rights guaranteed by the Constitution and its significance
for every citizen. By observing strikes, the civil servants/employees of statutory bodies claim it
to be part of their endeavours for protection of their "rights". As observed in earlier part of this
judgment, such claim is in complete negation of the basic principle of Jurisprudence that "every
right corresponds to a duty". Where there is no duty there is no right. It must also be borne in
mind that the ordinary citizens too have some rights and the rule of law is meant for them also.
Before dilating upon the Fundamental Rights expressly guaranteed by the Constitution to every
citizen irrespective of the fact whether he belongs to privileged class of poor and downtrodden,
we feel fortified in our view by the case of "People's Union for Democratic Rights v. Union of
India" (1984 PSC 314) wherein it was held as under:
"The rule of law does not mean that the protection of the law must be available only to a
fortunate few or that the law should be allowed to be prostitut ed by the vested interests
for protecting and upholding the status quo under the guise of enforcement of their civil
and political rights. The poor too have civil and political rights and the rule of law is
meant for them also, though it exists only on pap er and not in reality. If the sugar barons
and the alcohol kings have the fundamental right to carry on their business and to fatten
their purses by exploiting the consuming public, have the `chamars' belonging to lowest
strata of society no fundamental ri ght to earn and honest living through their sweat and
toil? The former can approach the courts with a formidable army of distinguished lawyers
paid in four or five figures per day and if their right to exploit is upheld against the
government under the label of Fundamental Right, the courts are praised for their
boldness and courage and their independence and fearlessness are applauded and
acclaimed. But, if the Fundamental Right of the poor and helpless victims of injustice is
sought to be enforced by publ ic interest litigation, the so called champions of human
rights frown upon it as a waste of time of the highest court in the land, which, according
to them, should not engage itself in such small and trifling matters. Moreover, these self -
styled human rights activists forget that civil and political rights, priceless and invaluable
as they are for freedom and democracy, simply do not exist for the vast masses of people.
Large numbers of men, women and children who constitute the bulk of population are
living a sub -human existence in conditions of object poverty; utter grinding poverty has
broken their back and sapped their moral fibre. They have no faith in the existing social
and economic system."
39. Yet in another case of Ghulam Murtaza v. Inayatullah, (1998 PLC (C.S.) 274), his
lordship Mr. Justice Ch. Ijaz Ahmed, Judge of Lahore High Court (as he then was), reiterated the
view of superior Courts of India and Pakistan in various cases in the following words:
"19. The Constitution of a country is a kind of "social contract" which binds a people,
society and a State. The terms of the contract foster feeling of interdependence, of
belonging to an entity and of adherence to law. An honest commitment to the goals set
out in the Constitution ensures promotion of nationhood and stability of a system.
Feelings of patriotism do not sprout out of a big arsenal. Those are not borne in the
battlefields where warring camps shed colossal human blood in the name of narrow
nationalism, not in the "Chambers of Politics" whe re high sounding clich s are spun out
to inflate one's ego and innuendoes are hurled to humble the opponents. These are borne
in schools which impart good education, in the fields where tiller gets wages for his blood
and sweat, in factories where labourer gets a fair deal, in the hospitals which provide
medical care to the sick, in the Courts which dispense justice and in a socio- political
system where merit reigns supreme. If we want a system to be stable and if we want the
people to defend the system we will have to create conditions where they feel that the
system protects their fundamental rights which were recognised in the social contract. A
people fight for something which is worth fighting for, worth living for and worth dying
for. Contemporary hist ory is testimony to the fact that systems have collapsed less on
account of foreign invasion and more on account of internal mismanagement and on
account of betrayal to the social contract". (underlining supplied by, us)
40. Undoubtedly, the whole edifice of governance of the society has its genesis in the
Constitution and laws aimed at to establish an order; inter alia, ensuring the provisions of socio-
economic justice, so that the people may have guarantee and sense of being treated in accordance
with law and that they are not being deprived of their due rights. A Judge cannot stand aloof on
chill and distant heights. The great tides and currents, which engulf the rest of men, do not turn
aside in their course and pass the Judge by. Our Constitution contai ns express provisions i.e.
Articles 199 and 184(3) of the Constitution, which provide abundant scope for the enforcement
of the Fundamental Rights of an individual or a group or class of persons in the event of their
infraction. If High Court enforces Fund amental Rights of citizens, its action is always in
discharge of a duty plainly laid upon it by the Constitution. As regards the "fundamental rights",
this Court has been assigned the role of a sentinel on the Qui Vive. Provisions which confer
fundamental rights on a citizen, whenever violated and complaint is made to a High Court about
their violation, the Court must step in to investigate such facts under the discretionary
jurisdiction conferred on it under Article 199 and pass such order as may be found just, legal and
equitable taking into consideration the facts and circumstances of each case. It is the solemn duty
of the High Court to protect the fundamental rights guaranteed by the Constitution zealously and
vigilantly. Fundamental Rights guaranteed under the Constitution would be regarded as
inviolable under all conditions and cannot be abridged. It is almost a gospel now that no
expediency or other consideration should be allowed to stand in the way of Court, nor can a
deviation or contravention of t he Constitution be condoned or allowed to be perpetuated.
41. Having, thus, looked into the powers of High Court to enforce the Fundamental Rights of
the citizens, now situation is ripe to examine as to whether strikes observed by various
representative fo rums in general and Teachers Association as well as Medical/Paramedical
Associations in particular results in infringement of Fundamental Rights of citizens and if so
what mechanism can be evolved to put a curb on such strikes in accordance with law. There may
be no cavil with the proposition that every citizen is vested with certain rights in the Constitution
with regard to education and medical care. As discussed in preceding paragraphs, social and
economic justice is guaranteed to every citizen under the Constitution. When students are not
imparted meaningful and inexpensive education in public educational institutions, we are of the
considered view that the same is violative of Article 25 -A of the Constitution. Similarly, when
Medical/Paramedical Associations etc. observe strike, it deprives the citizens of their
fundamental right of good and inexpensive medical -care. Citizens are also compelled to
approach private clinics/hospitals run by the same doctors/ paramedical staff, but poor people
cannot afford the expenditure incurred on their treatment. It is a classic example of infringement
of fundamental right of social and economic justice. It may be mentioned here that under Article
3 of the Constitution, it is the constitutional obligation of the State to eliminate all forms of
exploitation. Islamic Welfare State is under obligations to establish a society, which is free from
exploitation, wherein social and economic justice is guaranteed to its citizens. In our view, the
right to education and medical -care is a valuable right and infringement of said right is the worst
form of exploitation of the ordinary citizens and poor and down- trodden community in
particular.
42. Article 4 of the Constitution recognizes supremacy of law, under which every citizen has
inalienable right to be treated in accordance with law as envisaged in said Article. Public
functionaries are obliged to act within four corners of mandate of Constitution and Law. The
whole edifice of governance of the society has its genesis in the Cons titution and laws aimed at
to establish an order; inter alia, ensuring the provisions of socio- economic justice, so that the
people may have guarantee and sense of being treated in accordance with law that they are not
being deprived of their due rights. I n the case of Khuda Bux Chandio v. Sattar (1999 MLD
3199), it was held as under:
"Every statutory body or public functionary is supposed to function in good faith,
honestly and within precincts of its powers so that the person concerned should be treated
in accordance with law as guaranteed by Article 4 of the Constitution of Islamic Republic
of Pakistan. A departure from this grund- norm will render their actions destitute validity
and will resultantly strip off the cloak of protection provided to it under the law."
43. Word "law" used in Article 4 of the Constitution has also been interpreted by the superior
Courts in numerous cases, some of which are referred to herein below:
"It may also be pertinent that word "law" used in Article 4 of the Constitution includes all
such principles as having binding force on account of moral, customary or other
sociological reasons." (2011 SCMR 1 = 2009 PLC (C.S.) 966 (S.C.)).
"According to Ar ticle 4 of the Constitution the word "law" is of wider import and in itself
mandatorily cast the duty upon every public functionary to act in the matter justly, fairly
and without arbitrariness." (2010 SCMR 1301=2011 PLC (C.S.) 1130 [S.C.])
44. We, therefo re, hold that Associations of employees, whether of Government or statutory
bodies, observe strike not recognized by any law, rather such strikes are prohibited under the law
relating to Conduct, Efficiency and Discipline, discussed in detail hereinbefore. Under the
circumstances, their action is not only violative of the Constitution and law, but also
infringement of right of citizens to be dealt with in accordance with law.
45. At this juncture, it is noted with concern that the authorities concerned are remiss in
discharging its obligations under the Constitution or the law. It is seldom noticed that illegal
strikes are dealt with by the authorities concerned in accordance with law. They are under
constitutional and moral duty to take action against those indulged in illegal strikes, but they
behave like a tamed and subservient bureaucracy. There is by now a broad consensus that public
functionaries are obliged to act within four corners of mandate of the Constitution and Law.
Even Chief Executive of the C ountry is not above the Constitution and is bound as envisaged
under Article 5(2) of the Constitution. Articles 4 and 5 of the Constitution make it clear that
deviation from law has not to be countenanced; this is an assurance to the people of Pakistan tha t
people in authority shall treat them in accordance with law and each one is bound by these
stipulations of the Constitution. It is also worth mentioning that Article 5 imposes upon every
citizen of Pakistan an inviolable obligation to obey the Constitution. Pakistan as a nation State is
defined by its Constitution. There can be no allegiance to Pakistan without allegiance to the
Constitution of Pakistan. It is also the duty of Executive to enforce fundamental rights of
individuals. If the executive fails to do so, they have to face consequences envisaged by the
Constitution and law. Executive functionaries have also to protect and preserve the Constitution
and they cannot be allowed to defeat any provision of the Constitution, whatever the
circumstances ma y be. Ensuring good governance, maintaining law and order situation and
providing security to the persons is a primary duty of the Government. Reference in this regard
may also be made to the case of Watan Party v. Federation of Pakistan, (PLD 2011 SC 997) .
46. We are also fortified in our view by the case of Dr. Mobashir Hassan (supra), wherein
Hon'ble Supreme Court held as under:
"An instrument like the Constitution of 1973, to achieve the objects spelt out in the
preamble, has the support of 176 million people, meaning thereby that this instrument has
on its back moral strength of the nation, therefore, it would be their earnest desire and
wish that everyone must show loyalty to the State and obedience to the Constitution and
the law, as it has been envis aged under Article 5 of the Constitution. This object can be
achieved if the moral or ethical values, the desires of the nation, have been transformed
into a legally enforceable formulation."
47. Similarly, the Hon'ble Sindh High Court in the case of Brook es Pharmaceutical
Laboratories Pakistan) Ltd., Karachi v. Karachi Buildings Control Authority, (2012 CLC 131
[Sindh]) observed as under:
"Every person and authorities alike howhighsoever, are mandated by Constitution to
perform their duties and discharge t heir function within the limits prescribed by law,
respect and obey the Constitution and law in letter and spirit, it is only then anarchy,
chaos and disorder in the society can be eliminated."
48. As held, in preceding parts of the judgment, strikes obser ved by Medical/Paramedical
Associations etc. is violative of Articles 2 -A, 3 and 4 of the Constitution, such violation attracts
the rigours of Article 5 of the Constitution and amounts to disloyalty to State and disobedience of
the Constitution, which cannot be countenanced at any cost. As already observed, we the Judges
have made an oath before Allah Almighty to "preserve, protect and defend the Constitution of
the Islamic Republic of Pakistan" and, thus, it is our bounden duty to take appropriate action
whenever we find that the Constitution is not being obeyed or its express commands are,
wittingly or otherwise, being disregarded.
49. Article 9 of the Constitution, which provides that "No person shall be deprived of life or
liberty save in accordance with law." Needless to say that word "life" occurring in the said
Article does not only mean vegetative or animal life. It would include all such rights, which are
necessary for leading proper and comfortable life, worthy of citizens of a free country. It cove rs
all facets of human existence. It is the duty of the State to see that the life of a person is protected
as to enable him to enjoy it within prescribed limits of law. In the case of Chief Justice of
Pakistan Iftikhar Muhammad Chaudhry v. President of Pa kistan, (PLD 2010 SC 61), Hon'ble
Supreme Court, while dilating upon the significance of the word "life" employed in Article 9 of
the Constitution, held that:
"58. The above -mentioned Article 9 of the Constitution guarantees protection of one's
life. All the judges and jurists in different ages and from different jurisdictions have been
one in saying that the word "LIFE" protected and assured by various constitutions could
never be understood to have been used in a limited or a restricted sense and therefor e, did
not mean just the vegetative and the animal life of a man or his mere existence from
conception to death. This word had, in fact, to be understood in its widest and fullest
context to include all such rights, amenities and facilities which were necessary and
essential for the enjoyment of a free, proper, comfortable, clean and peaceful life. When
confronted with concrete situations, it was held through various judgments from various
countries that the right to live meant the right to live with dignit y and honour and
included rights such as the right to proper health- care, the right to proper food and
nutrition, the right to proper clothing, the right to education, the right to shelter, the right
to earn one's livelihood and even a right to a clean atm osphere and an un- polluted
environment.... "
50. There is also a direct precedent on the proposition of "Nexus of right to education with
quality of life", that is the case of Rana Aamer Raza Ashfaq v. Dr. Minhaj Ahmad Khan, (2012
SCMR 6), wherein Hon'ble Supreme Court made following observations:
"Right to education is a fundamental right as it ultimately affects the quality of life which
has nexus with other Fundamental Rights guaranteed by the Constitution under Articles 4
and 9 of the Constitution of Is lamic Republic of Pakistan. Awareness of rights and duties,
growth of civic consciousness in a society, enjoyment of Fundamental Rights guaranteed
under the Constitution and legal empowerment of people depend to a great extent on the
quality of education. People cannot be free in the real sense unless they are properly
educated."
51. We are in agreement with the arguments advanced at the bar that observance of strike in
educational institutions and health- care centers and holding demonstrations on public
thoroughfares by sit -in (dherna) is infringement of Fundamental Rights of every citizen
guaranteed in Article 9 of the Constitution. For what has been discussed above, we hold that
inexpensive quality education in public sector educational institutions and i nexpensive medical -
care at Public Health Centers without any interruption or hindrance of any kind is an
indispensable ingredient of the Fundamental Rights of every citizen enshrined in Article 9 of the
Constitution and its denial amounts to violation of t he said constitutional provision. No
reasonable person of normal prudence can be of the view that without proper education and
health -care any citizen can even imagine to leading a proper human life with dignity
contemplated by said Article. Strike observe d by Associations etc. is tantamount to snatching of
Fundamental Rights of the citizens guaranteed to them by the Constitution.
52. It has next been argued at bar that Freedom of Movement etc. has also been guaranteed as
Fundamental Rights of every citizen s in Article 15 of the Constitution. "There can be no doubt
that freedom of movement is the last analysis the essence of personal liberty, and just as a man's
wealth is generally measured in this country in terms of rupees, annas and pies, one's personal
liberty depends upon the extent of his freedom of movement." (Reference: AIR 1950 SC 27). It
may be noted that when strike is observed by Teachers or Medical/Paramedical Associations
etc., they usually stage sit -in (dherna) and block public roads that confr ont the general public
with a hazard, resulting in restricting their free movement. School -going children cannot find
their way to schools. Serious patients cannot be shifted to hospitals for necessary medical aid that
not only endangers their lives, but a lso causes mental agony to their attendant near and dear,
ones. Under these peculiar circumstances, it can safely be held that such strikes are also violative
of Article 15 read with Article 9 of the Constitution.
53. It may be mentioned here that right to education has been incorporated in Chapter 1 of
Part II of the Constitution (Fundamental Rights) by insertion of a new Article 25- A vide
Constitution (Eighteenth Amendment) Act, 2010 (X of 2010). It is the right of every man and
woman to acquire ability t o read, write and attain knowledge without discrimination. In the case
of Fiaqat Hussain v. Federation of Pakistan, (PLD 2012 Supreme Court 224), after considering
the role of education, in individual's life, it was held as under:
"Education plays an impor tant role in the successful life of an individual --- Generally,
education is considered to be the foundation of society which brings economic wealth,
social prosperity, political stability and maintaining healthy population ---Further progress
of society is stopped in case of deficit of educated people --Educated people enjoy respect
among their colleagues and can effectively contribute to the development of their country
and society by inventing new devices and discoveries ---Islam is a scientific religion
emphasizing on the need of scientific inquiry ---Need, purpose and kinds of education and
as under the mandate of Quran and Ahadith, elucidated. .... Under Art. 29 read with Art.
25-A, of the Constitution the Fundamental Rights were required to be enforced by the
State ---Especially in view of Art.25- A of the Constitution, it had been made mandatory
upon the State to provide the education to the children of the age of 5 to 16 years."
54. In view of the above discussions, it is difficult to subscribe to the cont ention of office -
bearers of different Associations and their learned counsel that Associations are at liberty to
resort to strikes, sit- ins or demonstrations on public places or thoroughfares. To hold the -
opposite would amount to attributing fraud to the Constitution and the law and to suggest it that
these provisions mean to afford security only to Government Servants/employees of statutory
bodies and the same are not meaningful for public -at-large, It would also tend to give an
impression that fundamenta l rights guaranteed to them were enacted merely as cloak and the
intention was just the opposite. We cannot persuade ourselves to lead to the conclusion that the
whole edifice of governance of the society has its genesis in the salutary provisions of the
Constitution, so that the people may have guarantee and sense of being treated in accordance
with law that they are deprived of their due rights. We were contemplating and in fact could
move a step forward than what has been held in opening lines of this pa ragraph, but we are tied
by the basic structure provided by the Constitution and system of trichotomy of powers provided
therein. Societies grow and nations progress by strict adherence to rule of law. Judges have
nothing to do with shades of public opinion, which holders of public office may represent or with
passions of the day, which may sway public opinion. Task of Judges is to tenaciously and
fiercely uphold and implement the Constitution and the law. We remember the words uttered by
our-lordships in t he case of Khwaja Ahmad Hassan v. Government of Punjab, (PLD 2004
Supreme Court 694) at page 725:
"It is no doubt true that the felt necessities of the times must, in the last analysis, affect
every judicial determination, for the law embodies the story of a nation's development
through the centuries and it cannot be dealt with as if it contains only axioms and
corollaries of a book of mathematics. A judge cannot stand aloof on chill and distant
heights. The great tides and currents which engulf the rest of men, do not turn aside in
their course and pass the Judge by. But at the same time, the Judge must remember that
his primary function is to interpret the law and to record what the law is. He cannot allow
his zeal, say, for social or agrarian reform, to overrun his true function. He does not run a
race with the Legislature for social or agrarian reform. His task is a more limited task, his
ambition a more limited ambition. Of course in this process of interpretation he enjoys a
large measure of latitude in herent in the very nature of judicial process. In the skeleton
provided by the Legislature, he pours life and blood and creates an organism which is
best suited to meet the ends of society and in this sense he makes and moulds the law in a
creative effort. But he is tied by the basic structure provided by the Legislature which he
cannot alter and to appeal to the spirit of the times or to the spirit of social or agrarian
reforms or for the matter of that any other reform for the purpose of twisting the lang uage
of the Legislature is certainly a function which he must refuse to perform."
55. After having examined the various provisions of the Constitution and legal questions,
now the situation is ripe to look into the importance of roles to be played by the t eachers and
doctors in a civilized society, their obligations moral as well as constitutional and statutory. So
reverting to the merits of the case in hand, we must bear in mind that office -holders of the
Associations and their followers are also EDUCATORS and DOCTORS, both apart from their
statutory duties are mainly under an abiding moral duty to serve the suffering community.
Teachers, Doctors and paramedical staff provide essential services on behalf of the State
government, like police and fire -fighter s. Teachers are under constitutional, statutory and moral
obligation to work from the start of school to the final bell. Doctors must change their priorities
and devote more time to relieve suffering community by providing them medical- care in public
hospi tals, rather than to focus their concentration on private practice. By observing strike, they
set a terrible example for children and ailing poor people, respectively. The lesson is this:
threaten to do something illegal to get what you want, especially wh en you think you can get
away with it.
56. We are of the considered view that it is the high time to build the institutions and it can
only be strengthened if they respect rule of law and fundamental rights of each and every
individual. In the case of Paki stan Medical and Dental Council v. Ziauddin Medical University
(PLD 2007 SC 323), Hon'ble Supreme Court laid much emphasis on strengthening the
institutions in the following words:
"A society in transition witness two parallel strains i.e. a process of ins titutional erosion
and attempt by the reformers/ idealists to build the institutions. Effort should be to
strengthen the latter. Because institutions play a vital role in civilizing people and in their
onward march towards socio- economic and political prog ress. In the comity of nations
the credibility and progress of a country is measured by the strength of its institutions. A
nation which fails to respect the institutions falls in grace, decays, splits and is
condemned in ,history. A society bereft of stable institutions would be at odds with itself.
"
57. Learned Amicus Curiae has placed on record a Code of Ethics made in exercise of the
powers conferred by Section 33 of the Pakistan Medical and Dental Council Ordinance, 1962, as
revised with the approval by the Council in the 97th Session held on 29th and 30th December
2001 at Islamabad. On a cursory glance at Oath of Medical and Dental Practitioners, we
wondered that if any of the person related to Medical Profession has ever taken care of said Oath,
reproduced here under:
"5.0 Oath Of Medical And Dental Practitioners
Adapted from the 2nd General Assembly of the World Medical Association, Geneva,
Switzerland, September 1948; and amended by the 22nd World Medical Assembly,
Sydney, Australia, August, 1968; and the 35th World Medical Assembly, Venice, Italy,
October, 1983; and the 46th World Medical Association General Assembly, Stockholm,
Sweden, September, 1994 and the Islamic Medical Association Oath for Muslim
Doctors."
At the time of being admitted as a member of the medical profession:
"I solemnly pledge myself to consecrate my life to the service of humanity;
I will give to my teachers the respect and gratitude which is their due;
I will practice my profession with conscience and dignity;
The healt h of my patient will be my first consideration;
I will respect the secrets which are confided in me, even after the patient has died;
I will maintain by all the means in my power, the honour and the noble traditions of the
medical profession;
My colleagues will be my sisters and brothers; and I will pay due respect and honour to
them.
I will not permit considerations of age, disease or disability, creed, ethic, origin, gender,
nationality, political affiliation, race, sexual orientation, or social standing to intervene
between my duty and my patient;
I will protect human life in all stages and under all circumstances, doing my utmost to
rescue it from death, malady, pain and anxiety. To be, all the way, an instrument of
Allah's mercy, extending medical care to near and far, virtuous and sinner and friend and
enemy."
I make these promises solemnly, freely and upon my honour."
58. We have also noticed that the Pakistan Medical and Dental Council was duly constituted
under the Medical and Dental Council Ordina nce No.XXXII, 1962, in June 1964 and is
empowered to:
1. Look after Public interest -- by maintaining proper medical/dental standards.
2 Supervise Medical/Dental Education in the country.
3. Maintain a register of qualified doctors and dentists, qualifying from duly
recognized institutions.
4. Take such disciplinary actions, which may be required for criminal convictions or
serious professional misconduct of a doctor. The Council is not an Association or a
Union for protecting professional interests.
59. We leave the question of performance of statutory duties by the Pakistan Medical and
Dental Council to be considered in some other appropriate case, however, we are of tentative
view that much is desired from the Council in regulating the Medical Profession and maintaining
discipline amongst the doctors registered by the Council as well as Medical Colleges being run
under its supervision. For the time -being, we also leave it up -to the Doctors to determine the
sanctity of aforesaid Oath and to decide as to whe ther they have ever taken care of said Oath?
60. Doctors having profession dealing with human life should always resort to legal means to
ventilate their feelings and should avoid jeopardizing medical facilities provided to innocent
persons by Government. Similarly Teachers belonging to a noble profession must behave like
gentlemen and avoid hooliganism. By their conduct, what message they convey to their pupils?
If at all, they have any grievance relating to their terms and conditions of service or enforce ment
of rights, efficacious judicial remedy is available to them by resorting to Service Tribunals and in
some cases by invoking constitutional jurisdiction of High Court under Article 199 of the
Constitution. But we apprehend that these Associations are l ess interested in protections of their
demands and more in facilitating the causes of their political bosses as majority of these
Associations are openly or secretly affiliated with one or the other Political Party.
61. Teachers use strikes to punish children as a way to get pay raises and other concessions.
When the adults are fighting, it is the children, who get hurt. The real penalty, the loss of
learning time, is paid by the children, who sit at home, playing video games and watching
television, while they wait for school to open. The academic damage done to the children has
been unconscionable. They lose a day, a week, or more of school. They lose hours and days of
instruction, they lose confidence in the, public schools to provide a safe environment, conducive
to learning, and especially for young students, they lose the excitement of a new school year.
They learn that if you don't like something, you walk out in a huff, instead of peacefully working
with others to solve problems.
62. We have also adverted to the Khyber Pakhtunkhwa Government Servants (Conduct)
Rules, 1987, Sindh Government Servants (Conduct) Rules, 1966 and found that there is marked
distinction between the Rules for the time being in force in the Provinces of Balochis tan, Khyber
Pakhtunkhwa and Sindh. We feel that there is a need to bring appropriate amendments in the
Balochistan Government Servants (Conduct) Rules, 1979 in the line with Rules applicable in the
Province of Balochistan, Khyber Pakhtunkhwa and Sindh.
63. After having discussed the constitutional provisions and law discussed hereinabove, the
principles of law enunciated can be summarized as under:
(i) The right of freedom of association is an inalienable fundamental right of every
citizen including of cour se civil servants and employees of statutory bodies;
(ii) Like any other fundamental right, right of freedom of association is not absolute,
unfettered or uncontrolled and the same can be regulated and controlled by restrictions
imposed by law and not othe rwise;
(iii) Restriction imposed by law on the right of freedom of association must qualify
the test of reasonableness and must not suffer from arbitrariness;
(iv) So long the restrictions imposed by law on the right of freedom of association
satisfy the test of reasonableness and do not suffer from arbitrariness, Courts will not
interfere with such law/s;
(v) If restrictions imposed by law on the right of freedom of association are found
arbitrary and not in public interest, the Court cannot stand aloof and shut its eyes. The
Court, in its Constitutional jurisdiction, can interfere in arbitrary and capricious
restrictions i.e. where none of the four ingredients of Art. 17(1) is present i.e. interest of
"sovereignty" or "integrity of Pakistan", "public order " or "morality";
(vi) Civil servants and employees of statutory bodies are at liberty to form
associations or to be a member of such associations but strictly in accordance with law
i.e. Balochistan Civil Servants Act, 1974; Balochistan Government Servants (Conduct)
Rules, 1979 and Balochistan Employees Efficiency and Discipline Act, 1974 or any other
law for the time being in force;
(vii) Individual interest is to give way to the collective good and public interest.
Observance of strikes and demonstrations at public places by a number of individuals i.e.
civil servants or employees of statutory bodies causes inconvenience and embarrassment
to public -at-large and frustrates or impedes their pursuit of legal activities;
(viii) Restrictions imposed by laws on observance of strike or demonstrations at public
places by civil servants and employees of statutory bodies qualify the test of
reasonableness in view of exhaustive discussion made hereinbefore and precisely
speaking for the reason that such strikes and de monstrations result in public disorder and
infringement of fundamental rights of ordinary citizens;
(ix) Chief Secretary, Government of Balochistan is directed to give serious
consideration to the expediency of incorporating necessary amendments in the
Balochistan Government Servants (Conduct) Rules, 1979 in the line with Rules
applicable in the Province of Balochistan, Khyber Pakhtunkhwa and Sindh;
(x) In future, if government/ civil servants and/or employees of statutory bodies are
found indulged in obser vance of strike or holding demonstrations/ sit -ins (dherna) at or
by public thoroughfares, they shall not only be guilty of misconduct but also contempt of
court liable to be proceeded against accordingly;
(xi) It shall be the duty of the Secretary of the concerned Department/ head of
statutory body to immediately initiate departmental disciplinary action against the
delinquents involved in the activities mentioned in preceding paragraph;
(xii) Secretary concerned must be vigilant and watchful in respect of strikes declared
by workmen or their representative bodies to determine as to whether pre- requisites of
BIRA, 2010 have been fulfilled before declaring strike. He must have recourse to
remedies provided under BIRA, 2010 before the Labour Court or NIRC, as the case may
be;
(xiii) In the event of failure of Secretary concerned/ head of statutory body to initiate
action in above terms, Chief Secretary Government of Balochistan shall initiate
disciplinary proceedings against the Secretary concerned as well as delinquent
government/ civil servants/ employees;
(xiv) In case the Chief Secretary too disables himself or fails to initiate departmental
disciplinary proceedings against the Secretary concerned/ head of statutory body as well
as delinquents, they all sha ll expose themselves to penal consequences under Article 204
of the Constitution read with Contempt of Court Ordinance, 2003;
(xv) Needless to say that Article 204 empowers the High Court to punish for contempt
of Court all persons across the board without any exception, be he an ordinary citizen,
any government servant or the holder of any public office alike how -high-so-ever;
(xvi) If in any department of Government/ statutory body, violation of law or inefficiency
is rampant on the part of employees, the re shall be two presumption, namely (1) that head
of the department/ institution himself is violator of law or (2) he is so inefficient that he
cannot enforce law and maintain discipline amongst his sub- ordinates. There may not be
any third presumption;
64. Before parting with the judgment, we must convey a message to public functionaries
sitting at the helms of the affairs that it is their foremost duty to maintain office discipline in the
public interest. Loose Administration would amount to anarchy which is fatal to foundation of
'sacred land' which, in no case, is tolerable. Maintenance of office discipline in all walks of
activities has to be maintained otherwise law of jungle would prevail. If they fail to take
appropriate action against delinquents, c ommon people would be at their cruel mercy; and there
would be a general unrest and chaos in society. They must also be adept in law relating to
conduct, efficiency and discipline so that they may be in position to take action against
delinquents by applyi ng correct law and completing all codal formalities. We also want to
remind them that actions taken by them against delinquents are normally set aside by the Courts
only for the technical reasons that, while taking such action, law was not properly adhered to.
Simultaneously they must bear in mind that they are also under abiding duty to safeguard legal
and legitimate interests of their subordinates. We would also like to advert them towards the
view of his lordship in the case of Zahid Ahmed v. Province of Sindh, (2012 PLC (C.S.) 124
[Sindh High Court]), which reads as under:
"Authority given to public servant is a sacred trust and the public servant is required to
perform his duties honestly and diligently. If any wrong is being committed by his
subordinat e, it is his duty to ensure that not only the act of wrong is brought to an end but
also the delinquent officer is taken to task in accordance with the rules. On the other
hand, it is also his responsibility that none of his subordinates is being unfairly treated or
denied any of his service rights and if it happens it is his duty to raise hue and voice to
high heavens so that the grievance of his subordinates is redressed according to law. If
the public servant does not act in accordance with the above pri nciples, either he is
complicit or is merely negligent and, therefore, must be burdened with requisite
consequences."
65. At this juncture, we would like to record our deep appreciation for extremely valuable
assistance provided by M/s H. Shakil Ahmed and Mazhar Ilyas Nagi, learned Amici Curiae, who
did not only provide assistance on the question of law, but also searched a number of judgments.
It is extremely rare that such good assistance is provided by the Amici Curiae. In our considered
view, they have discharged their obligations towards the profession in an exemplary manner.
The petition is, accordingly, disposed of on above terms. Office is directed to circulate
the judgment in hand to the Chief Secretary, Government of Balochistan as well as all the
administrative Secretaries and Heads of the administrative Departments for compliance and
necessary action.
ZC/11/Bal. Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.