' Office order dated 12-12-1990, issued by Pakistan Central Cotton Committee which purported to impose ban on formation of service association, has been challenged through this petition under Article 199 of the Constitution, inter d, on the ground that the ban runs-counter to the fundamental right as enshrined in Article 17(1) of the Constitution of Islamic Republic of Pakistan, 1973.
2. It is the case of the petitioner that the petitioner's association consists of non-gazetted employees of Pakistan Central Cotton Committee which has been formed for the welfare and betterment of its members. They had earlier formed a trade union, the registration of which, however, was declined whereafter a welfare association known as Cotton Employees Welfare Association was formed by the employees for the objects and purposes such as welfare and betterment of its members. It is their grievance that by the impugned office order they have been denied the right to form an association and function as such.
3. In W.P. No,301 of 1991 same office order has been challenged by the Officer's Association, Cotton Research Institute, Multan on somewhat identical grounds. Since the question of law being common in both these petitions, same shall stand disposed of by this judgment.
4. It 'is contended by the learned counsel for the petitioner that by Rule 80 of Pakistan Central Cotton Committee (Staff Service) Rules, 1972 formation of Service Association is permissible bitt by invoking an amendment made in section 4 of Cotton Cess Act, 1923 (by Ordinance No,13 of 1980) the petitioners are being denied their right to form a welfare association which infringes and militates against their right guaranteed under Article 17(1) of the Constitution. It is contended by the learned counsel that Rule 80 of the Rules (ibid) is still existing and is in force despite the abovementioned amending Ordinance. It is further contended that a right which is guaranteed by the Constitution cannot be taken away or abridged by an executive order. Reference has been made to Union of Civil Aviation Employees, Lahore and another v. Civil Aviation Authority, Islamabad through its Director-General and 3 others PLD 1993 Lahore 306, Civil Aviation Authority, Islamabad and others v. Union of Civil Aviation Employees and another PLD 1997 SC 781, Intisar Shamim Ahmed and another v. Secretary, Labour and Manpower, Government of Punjab Lahore and 2 others 1997 PLC (C.S.) 860 and Suo Motu Case No,1 of 2000 (2000 SCMR 770).
5. Learned counsel for the respondents contends that neither any trade union nor any association can be formed or function after the amendment in section 4 of the Cotton Cess Act, 1923 and that the office order dated 12-12-1990 has validly been issued by the respondents.
6. The petitioners are employees/officers of Pakistan Central Cotton Committee and governed by the Pakistan Central Cotton Committee (Staff Service) Rules, 1972 framed in pursuance of section 15 of the Cotton Cess Act, 1923. Rule 80 of these rules permitted the formation of service association which is as follows:-- "Formation of Service Association.---(1) The Committee shall accord recognition to those Associations of its employees which comply with the actions set out below:--
(a) There will be two types of Associations only, namely, (i) Officers Association and (ii) Non- Gazetted Employees Association.
(b) Every employee serving in the above two categories shall be eligible for membership of their respective Associations.
(c) Office holders shall be elected from the members of the respective Associations only. No outsider will be eligible to either become member or hold office or to address any meeting of the Association.
(d) Representations from such Associations, whether made orally by deputation or presented in writing will be received by the Secretary or other officers appointed by the Committee for this purpose, provided that:--
(i) no representation or deputation will be received except in connection with a matter which is, or raises questions which are of common interest to the category of the employees represented by the Association:
(ii) nothing in these rules affects the discretion of the Committee to receive or not to receive a deputation from any Association.
(e) Recognition will be granted for the purpose of enabling the employees to communicate their representations through the Secretary, or officer appointed by the Committee for this purpose and it may be withdrawn if an Association adopts other methods of putting forward representations, particularly by means of Press publicity.
(f) Recognition will not be granted to an Association, if the Association concerned is concerned with any political party or organisation or engages in any subversive activity or indulges in criticism considered detrimental to the interests of the State.
(g) The Committee may require the regular submission, for its information, of copies of the Rules of the Association and annual statement of its accounts and list of members. h) The Associations shall be required to submit statement of alteration in the list of members on the 1st of January each year in the following proforma:-- ' In this context the question is as to whether such an association as is envisaged by rule 80 (ibid) can be formed and function in the presence of subsection (4) which was added by Ordinance No,XIII of 1980 w,e,f, 22-4-1980, which reads as follows:-- "4. Nothing contained in the Industrial Relations Ordinance, 1969 (XXIII of 1969) shall apply to or in relation to the Committee or any of the officers, advisors and employees appointed by it."
' Thus, application of the provisions of Ordinance XXIII of 1969 was done away with as a result of this amendment.
7. Article 17 of the Constitution confers upon every citizen a right to form an association or union subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality. This Article falls in Chapter I of Part II which deals with the fundamental rights enlisted therein. This Chapter begins with Article 8. The following clauses of which have relevancy and are reproduced as under:-- "8(1) Any law or any custom or usage having the force of law in so far as it is inconsistent with the rights conferred by this chapter, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this law shall to the extent of such contravention be void.
(3) The provision of this Article shall not apply to---
(a) any law relating to members of Armed Forces or of the Police or of such other forces as are charged with maintenance of public order, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them; or"
8. In Kameshwar Prasad and others v. State of Bihar and another AIR 1962 SC 1166 Articles 19 and 33 of the Indian Constitution were considered and it was observed as follows:-- "The Article having thus, selected the Services members of which might be deprived of the benefit of the Fundamental Rights guaranteed to other persons and citizens and also having prescribed the limits within which such restrictions or abrogation might take place, we consider that other classes of servants of Government in common with other persons and other citizens of the country cannot be excluded from the protection of the rights guaranteed by Part III by reason merely of their being Government servants and the nature and incidents of the duties which they have to discharge in that capacity might necessarily involve restrictions of certain freedoms as we have pointed out in relation to Article 19(1)(e) and (g)."
' It is not the case of the respondents that these employees belong to a Disciplined Force or clause
(3) of Article 8 above is attracted in this case.
9. It is quite apparent from the above provisions that a law which is inconsistent and in contravention of fundamental rights or which takes away or abridges such rights is void in terms of clauses (1) and (2) to the extent of such contravention. The paramountcy of fundamental rights is recognised by this Article limiting the powers of state organs that what has been conferred by the Constitution as fundamental rights cannot be taken away or abridged by the State. Quite recently the provisions of clause (1) of Article 17 of the Constitution came to be considered in the case of Union of Civil Aviation Employees, Lahore (supra) which judgment was upheld by the Hon'ble Supreme Court of Pakistan in Civil Aviation Authority. In that case Civil Aviation Authority by invoking the provisions of Ordinance and Regulations baned the union activities. Such a ban was challenged before the Court that the same was violative of Article 17 of the Constitution for Islamic Republic of Pakistan, 1973. The writ petition was accepted by the High Court declaring that the Employees of Civil Aviation Authority had a right to form a trade union and the restrictions placed were ultra vires of Article 17 of the Constitution. This judgment was challenged by the Civil Aviation Authority before the Hon'ble Supreme Court and after an exhaustive study of the relevant aspects of the matter, the law and the provisions of the Constitution it was observed that a union can function and operate independent of provisions of the I.R.O. It was held that "the effect of non- application of provision of I.R.O. To the Authority, the Corporation and their employees would be that the latter would have no statutory right to go on a strike or to go slow". Considering the ambit and scope of "reasonable restrictions" that can be imposed by law, it was observed that it does not admit of total prohibition.
10. It is quite understandable that what has been guaranteed by the Constitution as a fundamental right cannot be annihilated or taken away in the garb of "reasonable restrictions". To form an association and its functioning is clearly envisaged by Article 17(1) of the Constitution. Rule 80 continues to be in force and its legal efficacy is not impaired by the amendment in section 4 of the Act. The said Ordinance, as observed above, D merely excluded the applicability of the provisions of Industrial Relations Ordinance, 1969, the result of which may be that a trade union activity cannot be carried out. Rule 80 permits the formation of service association which itself is restrictive of certain activities. For instance no outsider is eligible to become its member or hold an Office and recognition to an association can be denied "if the association concerned is connected with any political party or organisation or engages in any subversive activity or indulges in criticism considered detrimental to the interests of the State." A Service Association which fulfils and complies with the conditions set out in the said rule can qualify for its recognition, operate and function accordingly.
' As a result of the above, a Service Association formed for the welfare and betterment of the employees/members can function and operate notwithstanding the addition of subsection (4) in section 4 of the Cotton Cess Act, 1923, the office order dated 12-12-1990 cannot operate as a ban on formation of such an association, the said Office order is declared as ultra vires of Article 17 of the Constitution of Islamic Republic of Pakistan, 1973 and is of no legal effect. The petition is accepted in these terms. No order as to costs.