1. ' SALEEM AKHTAR, J.---The Petitioner is a Trade Union of Workers employed with respondent No,2 (Pakistan Petroleum Limited) and is also Collective Bargaining Agent of the workers of respondent No,2 from February, 1988. By a notification issued under the Pakistan Essential Services (Maintenance) Act, 1952 hereinafter referred as the Act the services in respondent No,2 establishment have been subjected to the said Act. It has been alleged that the Notification was issued on 10-8-1988 and stated at the Bar that it is being extended after every six months. A Notification was issued by respondent No,1 on 20-2-1989 as follows:-- NOTIFICATION.
2. S.R.O.---- (1)/89.--In exercise of the powers conferred by subsection (1) of section 3 of the Pakistan Essential Services (Maintenance) Act, 1952 (LIII of 1952), the Federal Government is pleased to declare all classes of employment under the Oil and Gas Organizations, except employment under the Pakistan State Oil Company Limited, be employment to which the said Act applies.
3. ' According to the petitioner this notification is arbitrary, and discriminatory as it is aimed at taking away the vested right of the workers employed with respondent No,2 Establishment from availing of the benefits of the Labour Laws which their counterparts in other organizations in the country are enjoying. It has also been alleged that in the field of Oil and Gas Pakistan State Oil Company Limited is exempted from the application of the Act and this discrimination is without any reason, emergency or exigency. The petitioner had entered into an agreement with respondent No,2 relating to the obligation of the Company (respondent No,2) to give preference in employment to the sons of the company's workers which was duly published in the Official Gazette dated 17-2-1985 as required under Rule 3(3) of the Pakistan Essential Services (Maintenance) Rules 1962 as directions of the National Industrial Relations Commission (NIRC). The petitioner has alleged that respondent No,2 was bound to honour the agreement but recruitments were made in violation of the settlement and on protest being made the petitioner was informed that respondent No,2 had taken such steps under the orders of the Chief Secretary of the Government of Balochistan who has given them directions to take unskilled workers from the local residents. In January, 1989, seventy-nine workers were absorbed who were on the waiting list without taking a single worker from 45% agreed quota for the sons of regular workers. The petitioner has challenged the notifications dated 10-8-1988 and 20-2-1989 as unjust and discriminatory and also sought declaration that violation of the settlement is illegal and that directions be issued to implement the same.
4. ' Respondent No,2 has filed counter-affidavit stating that the petitioner is not an aggrieved party and the petition is not maintainable as alternate remedy under the law has not been resorted to. It has also been alleged that respondent No,2 is not amenable to the Constitutional jurisdiction as it is not performing the functions in connection with the affairs of the Federation or a Province or a local authority. It has been pleaded that regular supply of oil and gas is essential to the life of the community. The provisions of the Act have been made applicable to respondent No,2 for several years which has remained accepted by the petitioner. The Notifications were issued lawfully and are binding. The settlement is enforceable only as provided by the Act. The petitioner has challenged employment of 77 persons and directive of Government of Balochistan but they have not been joined as parties and therefore the petition may be dismissed for non-joinder of necessary parties. Existence of settlement and the notification of NIRC has not been denied but it has been pleaded that no vested right has accrued to the workers or the petitioner or their sons. As regard employment of 79 workers it has been pleaded that they were neither outsiders nor recruited against the existing vacancies. These persons were also performing certain jobs for the company as contract labour. Pursuant to a directive of Government of Balochistan, they were given regular employment and the directive clearly stipulated that they would not be replaced by any contract labour. The terms of the agreement were thus not applicable to these appointments. It has further been pleaded that the settlement is binding only so far it relates to the terms and conditions of the employment of existing workers and any directive in excess of the power conferred by law has no binding or legal effect.
5. ' Mr. Shamsuddin Khalid the learned counsel for the petitioner has contended that the notification is discriminatory as it excludes Pakistan State Oil from application of the Act. According to the learned counsel from the notification it is clear that the employment with respondent No,2 and Pakistan State Oil Company Limited have been treated as employment under Oil and Gas Organization but without any valid or proper reason Pakistan State Oil Company Limited has been excluded whereas the petitioner's workers have been subjected to the Act. Although in the affidavits filed by the parties no details about the working of respondent No,2 and Pakistan State Oil have been mentioned, it has been admitted at the bar that respondent No,2 is engaged in drilling, exploration, and transmission of oil and gas whereas Pakistan State Oil is engaged only in distribution of oil and is not engaged in drilling and exploration. Both the companies may fall within the category of oil and gas organization but materially the nature and character of the service and business is completely different. This difference in the nature of these organizations may lead to important results particularly for determining the question of applicability of the Act.
6. ' The learned counsel for the petitioner has referred to Article 25 of the Constitution which reads as follows:- "25.(1) All citizens are equal before law and are entitled to equal protection of law.
(2) There shall be no discrimination on the basis of sex alone.
(3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children."
7. This Article guarantees to all citizens of Pakistan equality before law and equal protection of law.
8. These rights guaranteed by the Constitution are now universally applied and practised in all the civilized world. It finds recognition in Universal Declaration of Human Rights and the Covenant on Human Rights, 1950. An examination of Constitutions of various countries will show that the written Constitutions have invariably used the expression "equality before law" but "equal protection of law" has not so commonly been used. According to the jurists term "equal protection of law" finds it origin in the 14th Amendment of the American Constitution. In my humble view the concept of both terms "equality before law" and "equal protection of law" is not of so recent origin in jurisprudence as described by various authors and jurists. From a comparative study of the legal history and jurisprudence we find that the concept of equality before law and principles of "equal protection of the law" were for the first time given and firmly practised by the Holy Prophet (be peace on him).
9. Therefore, it can be traced as far back as 1400 years, i,e. Much before the Magna Carta, 14th Amendment of America! Constitution, Declaration of Human Rights and the theory of Rule of Law as enunciated by the Western Jurists. The Last Sermon of the Holy Prophet (be peace on him) is a landmark in the history of mankind which recognizes the inalienable Rights of a man conferred by Islam which are I now known as Fundamental Rights. The following extracts from the farewell Sermon can be reproduced for reference:-- " O Ye people, Allah says: 0 people We created you from one male and one female and made you into tribes and nations, so as to be known to one another. Verily in the sight of Allah, the most honoured amongst you is the one who is most God-fearing. There is no superiority for an Arab over a non-Arab and for a non-Arab over an Arab, nor for the white over the black nor for the black over the white except in God-consiousness."
10. "All mankind is the progeny of Adam and Adam was fashioned out of clay. Behold! Every claim of privilege whether that of blood or property, is under heels except that of the custody of the Ka'ba and supplying of water to the pilgrims "
11. "Behold! All practices of the days of ignorance are now under my feet.
12. ' The blood revenges of the days of ignorance are remitted All interest and usurious dues accruing from the times of ignorance stand wiped out............................................................... "
13. "0 people, verily your blood, your property and your honour are sacred and inviolable until you appear before your Lord, as the sacred inviolability of this day of yours, this month of yours and this very town (of yours). Verily you will soon meet your Lord and you will be held answerable for your actions,"
14. (Translated by: Hamdard National Foundation).
15. ' In "Law Justice & Islam" Justice Dr. Nasim Hasan Shah while referring to the farewell Sermon at page 7, has observed: "The farewell Sermon of the Holy Prophet (p.b.u.h.) was a comprehensive charter founded on the basic, fundamental, inalienable and residual rights of Man guaranteed in written form, under the Holy Quran which constitute the 'Spoken Word of ' Allah'. These rights, according to the belief of Muslims, cannot be obscured or eradicated by any mortal power."
16. ' The following pages in the book contain illuminating discussion and reference to the Holy Quran and Sunnah.
17. The same concept of equality before law and equal protection of law has been embodied in Article 25 of the Constitution.
18. ' The terms "equality before law" and "equal protection of law" seem to convey the same meaning.
19. In practice and while pressing them in service there may hardly be much difference because they aim at providing full protection of B law to each and every citizen irrespective to his caste, creed, class, status or sex. In order to create a just society, justice has to be done at all level and this objective can be achieved only if all citizens are treated equally before law and are entitled to equal protection of law. The effect of this phraseology is felt more when the law is administered. It is possible that certain law may not be ex facie discriminatory but once it is put in practice by virtue of discretion given to the functionaries it becomes discriminatory and violative of Article 25.
20. ' The expression "equality before law" and "equal protection of law" were embodied in the Constitutions of 1956 and 1962 as well and in this regard we would refer to some of the judgments of Supreme Court where their meaning and effect has been explained. In Jibendra Kishore Achharyya Chowdhury v. Province of East Pakistan PLD 1957 SC 9 the following observation was made: "But notwithstanding the disinclination of the Court to give an all-inclusive definition of the expression, some broad propositions as to its meaning have been enunciated. One of these propositions is that equal protection of the laws means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances, in their lives, liberty and property and in pursuit of happiness. Another generalization more frequently stated is that the guarantee of equal protection of the laws requires that all persons shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed. In the application of these principles, however, it has always been recognized that classification of persons or things is in no way repugnant to the equality doctrine provided the classification is not arbitrary or capricious, is natural and reasonable and bears a fair and substantial relation to the object of the legislation. It is not for the Courts in such cases, it is said, to demand from the legislature a scientific accuracy in the classification adopted. If the classification is relevant to the object of the Act it must be upheld unless the relevancy is too remote or fanciful. A classification that proceeds on irrelevant consideration, such as differences in race, colour or religion will certainly be rejected by the Courts."
21. ' In Waris Meah v. The State and another PLD 1957 SC 157 the amendment made in Foreign Exchange Regulation Act creating two more forums for trying offences under it was struck down with the following observation: "It confers discretion of a very wide character upon stated authorities, to act in relation to subjects falling within the same class in three different modes varying greatly in severity. By furnishing no guidance whatsoever in regard to the exercise of this discretion, the Act, on the one hand, leaves the subject, falling within its provisions, at the mercy of the arbitrary will of such authority, and, on the other, prevents him from invoking his fundamental right to equality of treatment under the Constitution."
22. ' In Brig. (Retd.) F.B. Ali and another v. The State PLD 1975 SC 506 an illuminating discussion on the subject by Hamoodur Rahman, C.J. Is found at pages 528, 529 and 530. It was observed:- "Equal protection of the laws does not mean that every citizen, no matter what his condition, must be treated in the same manner. The phrase `equal protection' of the laws means that no person or class of persons shall be denied the same protection of laws which is enjoyed by other persons or other class of persons in like circumstances in respect of their life, liberty, property or pursuits of happiness. This only means that persons, similarly situated or in similar circumstances, will be treated in the same manner. Besides this, all law implies classification, for, when it applies to a set of circumstances, it creates thereby a class and equal protection means that this classification should be reasonable. To justify the validity of a classification, it must be shown that it is based on reasonable distinctions or that it is on reasonable basis and rests on a real or substantial difference of distinction. Thus different laws can validly be made for different sexes, for persons in different age groups, e.g., minors or very old people; different taxes may be levied from different classes of persons on the basis of their ability to pay. Similarly, compensation for properties acquired may be paid at different rates to different categories of owners. Such differentiation may also be made on the basis of occupations or privileges or the special needs of a particular locality or a particular community. Indeed, the bulk of the special laws made to meet special situations come within this category. Thus, in the field of criminal justice, a classification may well be made on the basis of the heinousness of the crime committed or the necessity of preventing certain anti- social effects of a particular crime. Changes in procedure may equally well be effected on the ground of the security of the State, maintenance of public order, removal of corruption from amongst public servants or for meeting an emergency."
23. Again: "The principle is well recognized that a State may classify persons and objects for the purpose of legislation and make laws applicable only to persons or objects within a class. In fact almost all legislation involves some kind of classification whereby some people acquire rights or suffer disabilities which others do not. What, however, is prohibited under this principle is legislation favouring some within a class and unduly burdening others. Legislation affecting alike all persons similarly situated is not prohibited. The mere fact that legislation is made to apply only to a certain group of persons and not to others does not invalidate the legislation if it is so made that all persons subject to its terms are treated alike under similar circumstances. This is considered to be permissible classification."
24. ' In a recent judgment of Supreme Court in Shirin Munir v. Government of Punjab and another PLD 1990 SC 295 it was observed as follows: "The harmony and the consistency between Article 25 and Article 22 of the Constitution is obvious notwithstanding the generality of the one or the particularity of the other, only if we keep this important fact in view that classification based on intelligible and reasonable standards is permissible within the framework of Article 25 on the ground of sex alone."
25. ' Reference can also be made to the judgment of Chief Court of Sindh in Zain Noorani v. Secretary of National Assembly of Pakistan PLD 1957 Kar.
1. In Ziaullah v. The Government of Punjab PLD 1989 Lah. 554 a recent judgment of the Lahore High Court the authorities on the subject have been summarized. Some of the judgments of the Supreme Court of India relevant to the controversy are enumerated as under:
(1) Express Newspapers Limited v. Union of India AIR 1958 SC 578.
26. (2). Vajravelu Mudaliar v. Dy Collector AIR 1965 SC 1017.
27. (3). Satwant Singh v. A.P.O. New Delhi AIR 1967 SC 1836.
28. (4). Harak Chand v. Union of India AIR 1970 SC 1453.
29. (5). Ramesh Parsad Singh v. State of Bihar and others AIR 1978 SC 327.
30. (6). Sm. Maneka Gandhi v. Union of India and another AIR 1978 SC 597.
31. (7). Ramana Daya Ram Shetty v. The International Air Port Authority of India and others AIR 1979 SC 1628.
8. Ajay Hasia v. Khalid Mujib Sheraverdi and others AIR 1981 SC 487.
32. The Constitution guarantees equality before law and equal protection of law to every citizen. Any arbitrary discrimination or unreasonable classification of classes are completely alien to the notions of equality before law and equal C protection of law. The Constitution is not meant to serve any individual, it serves the nation and the country. Constitution envisages development of institutions and not individuals or class of individuals. It gives Government of Law and not individual. It is in this perspective that the provisions of the Constitution have to be interpreted to make it a living document which may accommodate the past, satisfy the present and serve the future.
33. ' The equality should not be in terms of mathematical calculation and exaction. The equality must be amongst the equals. The equality has to be between persons who are placed in the same set of circumstances. Article 25 does not envisage absolute equality of treatment to all persons in disregard of the attending circumstances. Article 25 forbids class legislation but not reasonable classification. However such classification should have some just and reasonable nexus with the object of the Act and cannot be made without any basis. Where any enactment provides different treatment, based reasonable classification having proper relation with the object of the Act and unfettered discretion has not been conferred on the administering agency it is not hit by Article 25.
34. Article 25 incorporates the concept the rule of law. It prohibits, curtails and restricts enforcement of law or exercise of power under law which confers arbitrary powers with unfettered discretion. The law or the discretion conferred by it should be such that a citizen should know in the normal course and circumstances what the decision possibly could be. Every citizen has a right to know where he stands. This is another way to afford equal protection of law to every citizen.
35. Now in the light of the aforesaid discussion we have to examine whether the impugned notification is hit by Article 25. As observed earlier the notification relates to all classes of employment under the Oil and Gas Organizations except employment under Pakistan State Oil Company Limited. The distinction between the nature of service rendered by Pakistan State Oil and the petitioner has been described earlier. There is vast difference in the nature of service and work performed by them. The classification between petitioner and Pakistan State Oil can not be arbitrary. It is based on proper appreciation of facts and amounts to reasonable classification. Petitioner has not been able to point out a single Oil and Gas Company which is engaged in similar business and work as the petitioner which has been left out.
36. ' The learned counsel for the petitioner contended that by virtue of this notification the petitioner cannot invoke provisions of I R 0 for redress of grievances. According to Mr. Sabihuddin Ahmed the learned counsel for respondent No,2 firstly the agreement notified is not the terms and conditions of the service of petitioner's members and secondly even if it is so the petitioner is not prohibited in spite of the notification from seeking remedy under the I R 0. According to Mr. Shamsuddin Khalid Ahmed if such right is conferred or is available to the petitioner it would have no grievance. The question of applicability of I R 0 to the employments notified under the Act came up for consideration in Karachi Electricity Supply Corporation Limited v. National Industrial Relations Commission PLD 1982 SC 113 where following observation was made: "Section 5 dealt with the cessation of employment either at the behest of the employer or the employee. It would thus include termination of service according to the terms and conditions, discharge, dismissal, absence or abandonment and retrenchment. The direction issued in terms of rule 3 (2) (d) concerning the termination of employment will also be covered in view of the wide and all embracing language of this section. Any discontinuance of employment has necessarily to be judged from the test laid down in the section, namely, that it was "without reasonable excuse."
37. ' Therefore, if the respondents felt aggrieved either by their termination of service or dismissal, they should have taken steps to institute the proceedings as provided by section 7 and in that event it would have been open to the Court to determine as to whether the termination, according to the terms and conditions of service or by way of dismissal or discharge, was without lawful excuse or not as the expression "without reasonable excuse" signifies an excuse which is not lawful."
38. ' Subsequently in Pakistan Television Corporation v. M. Babar Zaman and others 1989 SCMR 1549 the observation made in the judgment in K.E.S.C's case was explained and the following observation was made: "The provisions of the Act and their examination in K.E.S.C.'s case establish a distinction between the regulatory powers (exercisable by the Federal Government or an authority specified by it under section 6 of the Act) punitive powers (exercisable by a servant of the Government empowered to file a criminal complaint in writing under section 7 of the Act) and the adjudicatory powers in other respects left untouched by the Act. The regulatory power was held in that decision not to extend, encroach upon or affect in any manner the adjudicatory set up. When it is provided in section 7-A of the Act that "the provisions of this Act shall have effect, notwithstanding anything to the contrary contained in the Industrial Relations Ordinance, 1969 (XXIII of 1969) or any other law" the impact is created only to the extent of contrariety and not in the domain where there is no contrariety.
39. Section 3 applies the Act to every employment under the Federal Government and in spite of the Act there is an established adjudicatory system of Service Tribunals for Civil Servants. Similarly, those who fall in the category of workmen and are not exempted from application of Industrial Relations Ordinance can have recourse to the Labour Courts. Those who are excluded from the Labour Courts also can resort to Constitutional jurisdiction if the rules governing them happen to be statutory as recognized in the case of the Principal, Cadet College Kohat and another v.
40. Muhammad Shoaib Qureshi PLD 1984 SC 170.
41. ' Further it was observed: "It is clear to us that the provisions of the Act supersede every other provision only to the extent of contrariety and not beyond. For matters not covered by the provisions of the Act, the ordinary law will have application particularly in the matter of adjudication."
42. In the present case although the Government has notified the settlement between the parties which N.I.R.C. Has treated as terms and conditions of service of the members of the petitioner, in view of the judgment of the Supreme Court in Pakistan Television Corporation case unless it is shown that invoking the provisions of I R 0 will be contrary to the provisions of the Act the jurisdiction of the Labour Court will not be barred. Nothing has been shown except that the impugned notification has been issued under the Act and it is claimed that jurisdiction and venues provided under I R 0 have been completely closed down.
43. ' This is not the legal position as enunciated by the Supreme Court in Pakistan Television's case. The bar is to the extent of contrariety. The Act does not confer any power of adjudication, therefore in our view the petitioner would be entitled to invoke the provisions of I R 0 provided the case falls within the four corner of the relevant provision of law.
44. ' Mr. Sabihuddin Ahmed the learned counsel for the respondents has contended that the petitioner is not an aggreived party, 79 workers who have been inducted in service have not been joined as party, and that the petitioner has no locus standi to file this petition. In view of the aforesaid observations, in our view, it is not necessary to deal with all these contentions as petition can be disposed of only on the points discussed above. As the petitioner is entitled to invoke I R 0 which provides for an efficacious remedy we dismiss the petition with no order as to costs.