The petitioner is a Civil Accounts Association of the Auditor General's Office. It is aggrieved by actions taken against some of the members by getting cases registered under the provisions of Essential Services (Maintenance) Act, 1952; by initiating proceedings against a few others under the Government Servants (Efficiency and Discipline) Rules, 1973, followed by punishments including dismissal thereunder.
2. The Association challenges the actions taken against its members on the ground that an individual has a right in law to claim civil posts if otherwise found fit for it and to continue on that post as long as not found unfit or otherwise undesirable in public interest to hold it. On the basis of various Fundamental Rights of which a mention will follow it is claimed that the petitioner has a right to associate and that right also includes a right to strike work and the freedom of speech and assembly entities it to seek avenues other than official or prescribed for getting acceptance of the service demands and the discrimination that has taken place in winning over some of its members, in warning few others, in suspending and dismissing others and in launching criminal prosecution against the remaining for the same actions and conduct is clearly violative of the right to equality. Reliance is placed on Fundamental Right No. 11 prohibiting slavery and forced labour, Fundamental Right No. 16 freedom of assembly. Fundamental Right No. 17 freedom of speech, Funda--mental Right No. 25 equality of citizens.
3. The right of the petitioner to form service association is the subject-matter of another petition and it will not be considered in this petition. There is an association and the members of the association have been dealt with in the matter of their official conduct by the departmental authorities and the grievance in this petition is confined to the treatment meted out to the members by the departmental authorities.
4. The learned counsel for the petitioner in the very first instance contended that right of association necessarily includes the right to strike work. It was with a view to enable him to justify this view of the law that a number of adjournments were given. The learned counsel for the petitioner had now come forward with an authority from the United States jurisdiction (1965) 323 U S 516 and has referred to para. 437, item 4, Vol. VI, Halsbury, 2nd Edition. According to the learned counsel for the petitioner the right conferred under our Constitution in this matter is far greater than allowed by the first amendment of the American Constitution.
5. Assuming at this stage that a right of association includes the right to strike work, the limitation contained in the Constitution of Fundamental Right No. 17 are fully attracted to the case. The Article is as follows :- "17.--(1) Every citizen shall have the right to form associations or unions subject to any reasonable restrictions imposed by law in the interest of morality or public order.
(2) Every citizen, not being in the service of Pakistan, shall have the right of 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 formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government, shall, within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final.
(3) Every political party shall account for the source of its funds in accordance with law."
The Government servants of the category could form the association and the petitioner has been placed in public interest in the category governed by the Pakistan Essential Services (Maintenance) Act, 1959 which by its section 5 makes offence the abandonment of the work or absence from work. Therefore, it is clear that the law of this country does not within the framework of the Constitution permit the right to strikes work in case of Essential Service.
6. There is no element of forced labour or freedom of the speech involved in striking work or physically stopping others froth working.
7. The case of each individual is different in .So far as the level and the degree of participation or dereliction or duty is concerned and it cannot by its very nature be identical in all respects to attract the equality clause.
8. As regards the law cited, I have examined it to find it inapplicable to the case. Halsbury mentions in para. 437, sub-para. (7) of 'the right to strike, or the right of the subject to withhold his labour, so long as he commits no breach of contract, or tort, or crime'. If the right to strike is sought to be exercised violating the rules of service and even by com--mitting a crime, justification for it cannot be found in Halsbury.
9. In the case of R. J. Thamas v. H. W. Collins (89 L. Ed. US---SCR 430) freedom of speech and freedom of assembly were enforced against a state law requiring a licence or organizer's card before soliciting membership for labour union. The case may be relevant to the petition where right of association is involved but it has no bearing on this petition.
10. There is no merit and the petition is dismissed in limine.