' SABIHUDDIN AHMED. C.J.--- In all these petitions the same notification of the Provincial.
Government and the consequential acts undertaken pursuant thereto have been called in question and are, therefore, being disposed of through this common judgment. The petitioner No,1 in C.P. No,D-1477 of 2006 is the Sindh Professors and Lecturers Association (SPLA), which is a duly registered body under the Society Registration Act, 1860, and claims to be committed to rights, interests and welfare of the members of the Teaching community with further commitment of development and advancement in Educational system in the country. The petitioner No,2 is an Associate Professor in a Government controlled college in Karachi and is a member of the petitioner No,
1. The petitioners appear to be aggrieved by the Notification of the Government of Sindh, Education and Literacy Department, dated 21-7-2006 (impugned notification), which may be reproduced as follows:-- "Government of Sindh Education and Literacy Department Karachi, dated the July, 21, 2006 Notification- ' No,SO(HE-1)/Misc/257/2006: Whereas, the Government Servants/Civil Servants serving in. The Educational Institutions have formed illegal Unions/Associations which are being used by them as bargaining agent and they are involved in anti-social activities including agitation and illegal strikes and as such have ruined the academic atmosphere which is detrimental to the educational standard of the students in the Province of Sindh; ' Whereas, all the employees of Education and Literacy Department including the teaching staff are the Civil servants and their terms and conditions are regulated by the Sindh Civil Servants Act, 1973 and the rules made thereunder; ' Whereas, there is no provision in the Societies Registration Act, 1860 and the Voluntary Social Welfare and Voluntary Agencies (Regulation and Control) Ordinance, 1961, for registration of Civil Servants' Unions/Associations in the Province of Sindh; and ' Whereas, for the better education and future of the students, it is expedient to disallow the illegal activities of such unions/ associations.
' Now, therefore, with the approval of the competent authority (Chief Minister, Sindh), the Government of Sindh is pleased to ban all such Unions/Associations, illegally formed in the Education and Literacy Department, Government of Sindh, with immediate effect and if any Civil Servant is found involved in such activities, disciplinary action will be taken against him under the Removal from Service (Special Powers) Ordinance, 2000.
' Secretary to Government of Sindh."
2. The petitioner in C.P. No,D-1611 of 2006 is an Associate Professor in Government Boys Degree College Razzakabad Karachi and a member of the SPLA. He aggrieved by Notification dated August, 23, 2006, purportedly issued under proviso to section 4 of the Removal from Service (Special Powers) Ordinance, 2000, (RSO) sending him on forced leave and a subsequent show- cause notice requiring him to show cause why action should not be taken under section 3 of the RSO for the following allegation:-- "You have participated/are participating actively in protest against Government orders/policy banning Professors/Lecturers/ Teachers/Clerks Association."
3. The petitioner in C.P. No,D-1622 of 2006 is another. Association known as "Government Secondary Teachers Association Sindh (GSTAs), which is an association of School Teachers registered under the Societies Registration Act with objects similar to SPLA. In this petition, it has been alleged that after issuance of the impugned notification illegal victimization of the members of the petitioner has commenced and the services of about 500 teachers have either been terminated or they have been sent on forced leave and their salaries are not being paid. C.P. No,D-1629 of 2006 has been filed by 33 School Teachers upon whom show-cause notices under the RSO have been served. The allegations against the petitioners 2 to 33 are identical to those against petitioners in C.P. No,D-1611 of 2006 to which most of them have replied and some cases have been favourably recommended by their respective Controlling Officers. The allegations against the petitioner No,1 are somewhat different which are reproduced as follows:-- "Being a Government servant you have used an unparliamentary language in the statement appeared in newspaper against the Honourable Chief Minister Sindh, Honourable Minister Education and Literacy and worthy Secretary, Education and Literacy Department."
4. Mr. Akhtar Hussain, learned counsel for the petitioners in C.P. No,D-1477 of 2006, in the first place pointed out that the impugned notification does not even name any particular association or union which might be involved in anti-social activities, illegal strikes and responsible for ruining academic atmosphere. The main thrust of his argument appear to be that right to form a union or association was guaranteed to every citizen of Pakistan including a Government servant under Article 17(1) of the Constitution which could only be subject to reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality. No sub- constitutional legislation or executive action could place fetters upon constitutionally guaranteed fundamental rights. It was further argued that the hostile attitude of the respondents towards educationists demanding better working conditions displayed through the impugned notification and consequential acts is violative of the dignity of man guaranteed by Article 14 of the Constitution. Reliance was placed upon the pronouncement of the Honourable Supreme Court in Government of N.-W.F.P. v. Hussain Ahmed Haroon 2002 SCMR 104.
5 .Learned counsel further contended that the impugned notification was discriminatory and violative of Article 25 of the Constitution inasmuch as no restrictions were placed on Associations of teachers in the other Provinces of the country and even on Associations of other Government servants, i,e, Doctors, Engineers and Architects in Government service in the Province of Sindh.
6. Mr. Abdul Mujeeb Pirzada argued that notwithstanding the invalidity, of the impugned notification no action against the petitioner Association could be taken without divulging the material on the basis of which it was assumed that the ban was justified and without hearing the petitioners in accordance with the elementary principles of natural justice. He further urged with reference to C.P. No,D-1629 of 2006 that the notices in question were mala fide as was, evident from the replies of the petitioners and the recommendations of their superior officers in some cases to which no counter-affidavit has been filed. Moreover, mere issuance of such notices in cyclostyled form demonstrated that they were issued without any independent application of mind. With respect to the notice to petitioner No,1, he pointed out that no statement allegedly made in the press by him was provided despite a specific request and in any event mere criticism of a decision of a Chief Minister was not actionable under any law. Learned counsel augmented his contention by adding that stoppage of the salaries to the petitioners reflected clear mala fides as even during the period of a valid suspension, pending enquiry a civil servant cannot be denied his salary as held by the Honourable Supreme Court (Shariat Appellate Bench) in Government of N.-W.F.P.v. I.A.
Sherwani PLD 1994 SC 72.
7. Mr. Khalid Anwar, learned counsel for the respondents in all the petitions, argued that civil servants in general were specific class of persons subject to certain provisions of the Government Servants (Conduct) Rules, 1966, evolved in the public interest. Learned counsel argued that under Rule 28, the very Membership of Service Association was severely restricted inasmuch as no Government servant could be a member of an Association representing Government Servants or a class thereof unless:--
(a) the membership was confined to Government Servants serving in one and the same functional unit and only if there was no functional unit by those serving in a specific single cadre,
(c) the association should neither affiliate nor associate itself with any association belonging to any other cadre, (d)
(e)
(f) the association shall not engage in any activity which its members are prohibited to engage in under any instructions issued by the Government, (g)
(h) the association shall not publish any representation on behalf of its members, whether in the press or otherwise except with the previous sanction of the Government.
' Sub-rule (2) requires that the Association shall not represent or purport to represent Government servants unless it is recognized by the competent authority; and ' sub-rule (6) contemplates that the appointing authority may at any time and on the direction of the Government withdraw recognition of an association if in its opinion such association does not satisfy or has violated any of the aforesaid conditions and the orders passed by the Government in this behalf shall be final.
' Learned counsel further pointed out that under rule 21, no Government servant could without the previous sanction of the Government or in the bona fide discharge of his duties participate in a Radio Broadcast, Television programme or contribute any Article to the press. Under rule 25-B, a Government servant could not take part in any public demonstration directed against a Government decision or policy or even permit any member of his family or his dependent to do so.
Under rule 22, a Government servant is prohibited from making any public utterance by way of statement of fact or opinion or act in any manner, which is capable of embarrassing the Federal or the Provincial Government.
8. We found little force in the contention of Mr. Akhtar Hussain premised on Articles 25 and 14 of the Constitution in the context of C.P. 1477 of 2006. It is well-settled that equality under the law guaranteed by Article 25 permits reasonable classification and if certain unions of civil servants in one Province are treated differently on account of special conditions operating it could not be urged that the action is discriminatory because other unions are not treated similarly where those conditions may not apply. With respect to Article 14 we may observe that in Hussain Ahmed Haroon's case 2002 SCMR 104 their Lordships found the arrest and incarceration of doctors to be violative of Article 14, but we do not think that mere ban on a union could be held to be violative of dignity of man.
9. However, there seems to be force in the contention premised on fundamental rights guaranteed by Articles 17 and 19 of the Constitution. We were conscious of the pronouncement of the 11 member Bench of the Honourable Supreme Court in Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 where it was unanimously held, in the context of the right to form a political party, that reasonable restrictions on such right could only be imposed by law strictly within the parameters laid down by the relevant constitutional provisions itself i,e, sovereignty or integrity of Pakistan and on no other ground. Learned counsel argued that Government servants as a species formed an altogether different class who were bound by stricture rules of discipline in the public interest. Therefore, the right to form unions could not be made available to them. He urged that the rules in question could also be treated as restrictions imposed in the interest of public order which is a permissible ground of restriction under Article 17(1) of the Constitution.
10. We regret we are not impressed by the contention of the learned counsel. In the first place whenever the Constitution makers thought that the particular fundamental right should not be made available to Government servant as a class it did so through specific intendment. For instance, the right to form a political party under Article 17(2) is available to every citizen not in the service of Pakistan (underlining is ours). However, no such exclusion is made in respect of the right to form Unions or Associations. Moreover, in Civil Aviation Authority v. Union of Civil Aviation Employees PLD 1997 SC 781, a five member Bench of the Honourable Supreme Court held that a provision requiring membership of an Association subject to the permission of the Director-General of the authority was violative of Article 17(1) of the Constitution as it bore no nexus with sovereignty or integrity of Pakistan, public order or morality. It was also held that though the right to form unions or Associations was guaranteed by the Constitution but such guarantee did not entail the right to strike which could only be conferred by sub-constitutional legislation. It was, accordingly, held that by exclusion of the employees of Civil Aviation Authority and the Pakistan Television Corporation from the purview of the Industrial Relations Ordinance, such employees could not resort to strike for acceptance of their demands but their right to form Unions and undertake collective bargaining remained intact notwithstanding such exclusion.
11. In the above context there seems to be a decision from the Supreme Court of India, which was relied upon in the Civil Aviation case, which appears to be directly on point as it pertains to similar Conduct Rules relating to civil servants. Rule 4-A of the Central Civil Servants (Conduct) Rules prohibits a Government servant from taking part in any demonstration or resort to any form of strike in respect of a matter pertaining to his conditions of service and Rule 4-B enjoins him from joining a Service Association which was not recognized by the Government or whose recognition had been withdrawn. The validity of both these rules was questioned on the ground of being repugnant to the fundamental right of freedom of association. The Court held Rule 4-B to be invalid observing that it appeared to have no nexus with public order and such restriction would make fundamental right ineffective or elusive. As regards Rule 4-A, it was held to be partly invalid in that though a right to strike was not a fundamental right to participate in protest demonstration could not be denied under the Constitution.
12. At the same time we may observe that there is no provision in the Societies Registration Act prohibiting registration of Associations of Civil Servants and in any event in view of the pronouncement of the Honourable Supreme Court in Civil Aviation's case even an unregistered Union/Association can function and engage itself in collective bargaining under the right guaranteed by the Constitution. For the above reasons, the provisions of the Conduct Rules placing fetters upon functioning of Service Associations and the impugned Notification cannot withstand the test of Constitutional validity.
13. Nevertheless Mr. Khalid Anwar raised a more formidable plea relating to enforcement of fundamental rights under. Articles 17 and 19 of the Constitution. Learned counsel argued that a proclamation of Emergency was issued by the President of Pakistan on 28th May, 1998 upon his being "satisfied that a grave emergency exists in which the security of Pakistan is threatened by external aggression and by internal disturbance beyond the power of Provincial Governments". On the same day, a President's order was issued under Article 233(2) initially suspending the enforcement of all the fundamental rights during the continuance of the proclamation, which was subsequently modified to confine to some of the rights. The proclamation was laid before a joint sitting of the two Houses of Parliament under Article 232(7), which approved it through a Resolution dated 10-6-2006. The proclamation as well as the President's orders were called in question before the Honourable Supreme Court through petition under Article 184(3) of the Constitution by Sardar Farooq Ahmed Leghari a former President of Pakistan and some other parties. A nine member Bench of the Court through its elaborate judgment reported as Farooq Ahmed Leghari v.
Federation of Pakistan PLD 1999 SC 57 upheld the validity of the proclamation on the ground that material for satisfaction to imminent danger of external aggression was available though the President's Orders were struck down. Learned counsel urged that under Article 233(1), the power of the State to make laws or take executive action in derogation of fundamental rights guaranteed under Articles 15, 16, 17, 18, 19 and 24 becomes available upon the issuance of the Proclamation itself, whereas the rights under other Articles of the Constitution could become unenforceable only upon issuance of the President's orders under Article 233(2). Learned counsel pointed out that the aforesaid proclamation can be revoked only through a subsequent proclamation under Article 236(1) of the Constitution. Learned counsel appearing for the petitioners were unable to show that the proclamation dated 28-5-1998 had ever been revoked.
14. It seems a little unfortunate that despite radical changes in the international situation over the last 8 years, the holding of National Elections in 2002 and the induction of a democratically elected Government the proclamation issued in 1998 has not been revoked. Nevertheless in the aforesaid case of Farooq Ahmed Khan Leghari their Lordships extensively dealt with the possibility of a situation of unnecessary continuance of a proclamation of emergency and held that the superior Courts could always review its continuance beyond the time that it was necessary. In the above context it was observed that it was a duty of the President to ensure that fundamental rights were available to citizens and could only be suspended for limited durations of grave emergency. A judgment of Privy Council in Cheng Poh alias Cher Meh v. Public Prosecution Malaysia 1980 AC 458 was cited with approval where their Lordships held that failure to revoke a proclamation of an emergency when its continuance was no longer necessary amounted abuse of discretion and a mandamus could lie against the members of the King's cabinet (the King himself enjoying sovereign immunity) to advise him to revoke the proclamation. We are, therefore of the view that this Court is not denuded of the jurisdiction to examine the validity of the continuance of the 1998 proclamation today.
15. Nevertheless since in our view these petitions could be decided on narrower grounds we did not feel it necessary to issue notice to the learned Attorney-General for examining the justification of continuance of the Proclamation of dated 28-5-1998. The seven member Bench of the Honourable Supreme Court deciding Farooq Ahmed Leghari's case consciously departed from the conventional rule that the Courts had no jurisdiction to examine whether there was any justification for issuance of a proclamation of emergency and suspension of fundamental rights and that it was for the Government to decide how long the emergency could last. On the contrary a distinction was made between an emergency imposed when a country was engaged in actual war or when it has been imposed on account of imminent danger thereof. In the latter case the rule of proportionality was held to apply, i,e, the measures should be to the extent that may be required by the exigencies. The observations of Latham, C.J. In Australian Communist Party v. The Common Wealth 1950-51 83 CLR 1 that, "the Court in its decision apply the rule that there must be a real and substantial connection between the legislation and the defence situation so created in order that the legislation could be valid" by the High Court of Australia were cited with approval.
16. From the above observations, we are inclined to take the view that assuming the valid continuance of the Proclamation dated 28-5-1998 the State may no longer be bound to make laws or take executive action in strict conformity with Articles 15, 16, 17, 18, 19 and 24 of the Constitution.
Nevertheless these fetters are removed only for the purpose of dealing with the State of emergency declared through the proclamation and not otherwise. In other words there must be some reasonable nexus between the law or the executive action taken in derogation of fundamental rights and the objects of the proclamation of emergency. Ex facie denial of a right to form Associations and Unions to a particular class of persons in one Province has nothing to do with dealing with the situation of a country being threatened by external aggression. Even otherwise, it appears wholly incongruous that all the citizens should stand denuded of their basic rights of movement, association, business, expression and property in their ordinary evocation of life having nothing to do with a national emergency or the Parliament and the Federal Government should assume complete control over all affairs of Provinces on the pretext of a proclamation of emergency issued eight years ago.
17. Notwithstanding the above, it may now be appropriate to examine the contents of the impugned notification. In the first instance, the impugned notification does not describe any particular Union or Association and Mr. Khalid Anwar contended that if the petitioner SPLA was not engaged in any unlawful activity referred to in the impugned notification as alleged, it had no cause to complain. Nevertheless when asked to respond to the specific question whether the notification applied or did not apply to the SPLA, learned counsel was unable to give a definite answer perhaps, in view of categorical allegations made in the counter-affidavit to C.P.D.1477 of 2006. A careful reading of the aforesaid counter-affidavit un-mistakenly shows that according to the respondents a ban on the activities of SPLA has been obtained which is justified. It is nevertheless surprising that the Association was neither furnished allegations on which a tentative opinion could be formed nor given an opportunity to explain its position. Such requirements of natural justice were a mandatory pre-condition for action as explicitly conceded by the learned counsel. The application of the notification to the petitioners in C.P.D.1477 of 2006 must, therefore, be declared to be without lawful authority.
18. As regards C.P.D. 1611 of 2006 the impugned show-cause notice dated 26-8-2006, records that the petitioner has participating/is participating actively in protest against Government order banning certain Associations and consequently a criminal case under sections 147/148, P.P.C. Was registered against him. It further states that sufficient documentary evidence being available the competent authority is satisfied that there is no need for holding an inquiry. In reply to the notice the petitioner, inter alia, stated that while he was only on his way to the place where peaceful protest was being recorded, the police inquired about his identity and on finding that he was a Professor he was taken to the police station and a false F.I.R. Was recorded against him.
19. In the first place, we are surprised over the factum of registering a criminal case under sections 147/148, P.P.C. The offence of rioting under section 147, P.P.C. Is committed by a member of an unlawful assembly wh.Re force is used by the assembly and section 148, P.P.C. Applies to a person guilty of rioting being armed with a deadly weapon. There seems nothing to suggest that the petitioner was ever armed with a weapon and without inquiring into the matter and taking appropriate action against the police for registering a false case, the respondent No,2 being a person holding the responsible position of the Chief Secretary took it upon himself to mention the registration of the case as a ground for actions In any event, it has not been explained what documentary material was available to proceed against the petitioner when particularly his contention that he was yet to reach the occasion of protest was itself one which requires appropriate enquiry. To keep a respectable member of the teaching profession in custody on the basis of a false report is itself violative of the dignity of man guaranteed by Article 14 of the Constitution. In the circumstances, we have no option but,to hold that the impugned show-cause notice was mala fide and of no legal effect whatsoever.
20. With respect to C.P. 1622 of 2006 the petitioner Association has emphatically urged that it is not involved in any illegal or anti-social activity and several documents have been filed to indicate that the representatives of the petitioner were consulted by the Minister and senior officers of the Education Department relating to schools teachers and management of schools. No counter- affidavit to this petition has been filed on behalf of the respondents and as candidly conceded by Mr. Khalid Anwar action against a particular association could only be taken after giving it an opportunity of being heard.
21. With respect to C.P. 1629 of 2006 the allegation against petitioner No,1 appears to be that he committed misconduct being a Government servant having used unparliamentary language against the Chief Minister, Minister, Secretary and others appearing in newspaper. It contains no particular of the alleged unparliamentary language or even reference to the newspaper, wherein it was published. In fact, the petitioner by his reply to the notice dated 24-3-2006 categorically denied the allegation and requested to be communicated the newspaper quoting him. However, though such a reply was sent on 4-4-2006 no response appears to have been made till the filing of the petition. In any event, the question whether the petitioner actually made a statement was one of fact and require a proper inquiry identical cyclostyled notices upon petitioners Nos.2 to 32 in the following terms:-- "You have participated/are participating actively in protest against the Government order/policy banning professors/ lecturers/teachers/clerks Association."
22. In the above context one may also refer to certain other observations made by the Supreme Court of India in the above quoted case of O.K. Gosh AIR 1963 SC 812 where participation in demonstration short of strike was held to be not actionable. It was observed at page 816 as under:- - "The charge against the respondent is not that he participated in any strike; the charge is that he participated in the various demonstrations and that is a charge based upon that part of the rule which prohibits demonstrations altogether. It is true that the demonstrations in which he is alleged to have participated actively were organized in connection with the strike; but that does not mean either in fact or in law that he participated in the strike itself. Similarly, the charge that he took active part in the preparations made for the said strike, also does not mean in fact or in law that he participated in the strike. If he joined demonstrations organized in connection with the strikes, or if he took part in the preparations for the strike, it cannot be said that he took part in the strike as such, and so, the charge cannot be reasonably construed to mean that his conduct amounted to a contravention of the rule which prohibits strikes. Therefore, though R.4-A is partly, and not wholly invalid as held by this Court in the case of Kameshwar Prasad, the particular charge against the respondent being on the basis of that part of the rule which is invalid, it must follow that the departmental proceedings based on that charge are also invalid. That is why Appeal No,379 of 1962 must be allowed and the departmental proceedings instituted against the respondent for the alleged contravention by him of Rr.4-A and 4-B must be quashed. There would be no order as to costs."
23. Obviously the question whether a person has participated or is participating in an activity is one of fact requiring detailed investigation. Nevertheless, surprisingly the Secretary Education as well as several EDOs came to an identical view that there was sufficient documentary evidence available and no need to hold an inquiry. We may observe here that though the power to dispense with an inquiry is available to an authorized officer under the rules, it has to be exercised on sound judicial principles indeed, if the alleged misconduct or ground for penalty can be inferred from undisputed documentary material holding of an inquiry could be dispensed with. Nevertheless whenever fact finding is involved an independent inquiry must be held.
24. Regrettably the withholding of salaries of the petitioners despite the undisputed legal position that a civil servant is entitled to full salary even during the period of his suspension only augments the allegation of mala fides.
25. For the foregoing reasons, we would allow all these petitions holding the ban on petitioners in C.Ps. 1477 and 1622 of 2006 to be unlawful and the proceedings against the remaining petitioners to be mala fide and of no legal effect.