1. ' SAIYED SAEED ASHHAD, C.J.---In Constitutional Petition No,D-1574 of 2001, the petitioners have sought the following reliefs:-
(i) . .That this Hon'ble Court may kindly be pleased to declare and hold that the Order No,6 of 2001, dated 5th July, 2001 have been passed without any lawful authority and competence, therefore, nullity in the eyes of law and the Constitution not capable of conferring any authority on any functionary including the President and Chief Executive, therefore, un-Constitutional and quash the same.
(ii) Declare that the respondent No,3 cannot exercise the powers under the impugned Legislation No,6 of 2001, could not be the basis of the impugned Rules and orders at Annexures F, G, H, I, J and K respectively and declare them to be unlawful and quash the same. In particular hold that the agreement could not be suspended nor the unilateral rules could be imposed by the President and Chief Executive and quash rules dated 17-7-2001.
(iii) Suspend the operation of the impugned orders and Rules pending disposal of the main petition as per attached application.
(iv) Award costs.
(v) Any other relief as the circumstances may warrant and this Hon'ble Court may deem fit.'
2. ' In Constitutional Petition No,D-2024 of 2001, the petitioners have sought the following reliefs: "(i) hold and declare that the impugned Order No,6 of 2001, dated 5th July. 2001 has been passed without authority and competence is nullity in law, not enforceable, un-Constitutional, in capable of conferring any authority on the respondent No,3 management or for that matter on any other functionary and, therefore, the same may be quashed.
(ii) hold and declare that the impugned actions taken by the respondent No,4 after the promulgation and pursuant to the impugned Order No,6 of 2001 in the shape of admin, Order, Rules, Circulars, etc. (Annexures A/9 to A/11) and may be pleased to strike down and quash the same.
(iii) hold and declared that the terms and conditions of employment and work settled through Collective Bargaining Agreements could not be altered to the disadvantage of the workers unilaterally and that the 'terms prevailing on 5th July, 2001 continue.
(iv) suspend the operation of the impugned Orders, Circulars and Rules pending disposal of the petitioner application.
(v) award costs.
(vi) any other relief as may be deemed fit for proper in the circumstances of the case."
3. ' Both the aforesaid petitioners are the trade unions of workers employed in the establishment of M/s Pakistan International Airlin Corporation (hereinafter referred to as "PIAC"). Petitioner Airleague of PIA Employees Union is the present Collective Bargaining Agent in the establishment of. PIAC.
4. Petitioner Peoples Unity of PIA Employees was the Collective Bargaining Agent in the establishment of PIAC until 1-10-1997. Both the petitioners in their respective petitions submitted that in view of the concluded agreements relating to the terms and conditions, of service and work the office-bearers of Collective Bargaining Agent union were exempted from duties and were also granted other facilitates like provisions of vehicles, fuel, driver, telephone at the union office and residences and passage for free travel. The petitioners further submitted that on 12-10-1999 the elected Government was ousted and the Chief of the Army Staff after dismissing the Parliament and the Provincial Assemblies assumed the powers by taking over the administration of the country as Chief Executive and in violation of the mandate given by the Supreme Court in the case of Syed Zafar Ali Shah and others v. General Pervaz Musharraf. Chief Executive of Pakistan and others, reported in PLD 2000 SC 869 assumed the office of the President of Pakistan. The petitioner further submitted that on 5-7-2001 the President of Pakistan promulgated Chief Executive Order No,6 of 2001 suspending the activities of the union in PIAC as well as the agreement arrived at between the union and PIAC. It was 'further submitted that the aforesaid order also contained a provisions for removal or retirement of the employees of PIAC in contravention of the Administrative Manual. The petitioners further submitted that as a result of the impugned Order No,6 of 2001 the management of PIAC started capitalizing thereupon and withdrew the facilities which were conferred on the office-bearers of the union and unilaterally changed their terms and conditions of service to their disadvantage, increased the number of working hours, reduced the rest hours, allowances and ordered reassessm ent of suitable cabin crew. It was further submitted that such actions were not being taken in good faith and with honest intention but the object thereof was to ground all those who were not liked by the management. The petitioners further submitted that Chief Executive Order No,6 of 2001 was also discriminatory as it only suspended the activities of the petitioners unions in PIAC in Pakistan whereas the trade unions and the Collective Bargaining Agents formed in the foreign airlines operating in Pakistan as well as the trade unions operating in the establishment of PIAC in foreign countries were not suspended which amounted to victimisation of the office- bearers of the petitioner unions. The petitioners further submitted that as there was no other alternative, adequate and efficacious remedy available to the petitioners for their grievance, they approached this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan.
5. ' Comments/objections were filed by the respondents Federation of Pakistan and PIAC. In the comments filed on behalf of respondent Federation of Pakistan objections were raised with regard to the maintainability of the Constitutional petitions on the ground that no process could be issued against the President of Pakistan or the Chief Executive under Article 248 of the Constitution. The maintainability was also objected on the ground that it was barred by the Proclamation of Emergency dated 14-10-1999, the Provisional Constitution Order No,1 of 1999 (thereinafter referred to as "PCO") as amended from time to time and Chief Executive Order No,6 of 2001. The contention that the impugned order was in violation of the mandate given by the Supreme Court in the case of Syed Zafar Ali Shah and others v. General Pervez Musharraf Chief Executive of Pakistan and others, (supra) was vehemently denied and it was submitted that the Supreme Court while validating over throw of the elected Government and taking over the reins of Government by President and Chief Executive, empowered President and Chief Executive to exercise the powers and perform the functions as enumerated in clauses (1) to (18) of at pages 1219 to 1223 of the cited case and the powers specified in clause 6(i)(a), (b), (c), 67(iv) and (v) fully empowered and authorised President and Chief Executive to pass an order in the nature of Order No,6 of 2001.
6. Factually it was submitted that petitioners in their capacity as the sole Collective Bargaining Agent/trade union had caused unwarranted and wasteful expenditure of Rs,9,69,13,105 from 1-10- 1997 to 6-7-2001 which was a staggering loss to the national airline which had virtually crippled the airline as its financial state stood reined, which ultimately effected the working of the airline resulting not only in further financial loss to the airline of the contrary but also depriving the citizens of the country proper travelling facilities and handling cargo. It was further submitted that suspension of trade union of PIAC was in public interest reasonable and for advancing public good of maintaining smooth communication and good order for running the airline within and outside Pakistan and to prevent hardship to the public.
7. ' Respondent PIAC also filed written reply wherein they also raised preliminary objections with regard to the maintainability of the Constitutional petitions. The first such objection was that the petitioners had filed the aforesaid Constitutional petitions for protecting and safeguarding the terms and conditions of the employees in the establishment of PIAC. Who were civil servants in view of section 2-A of the Service Tribunals Act, and Article 212 of the Constitution of the Islamic Republic of Pakistan barred invocation of jurisdiction of this Court under Article 199 of the Constitution as their remedy lay before the Federal Service Tribunal. The petitions were also objected on the ground that they involved resolution of disputed questions of facts which could not be made the subject-matter of a Constitutional petition and further that they were filed with mala fide intention with a view to enforce the rights,' privileges and entitlements which were not sanctioned by law. On facts PIAC admitted that the office-bearers of union had been exempted from duties and were also provided other facilities but submitted that these privileges were extended under great pressure coercion and duress of the, petitioners unions. It was further submitted that even otherwise these facilities which consisted of travel hotel accommodation, vehicles, fuel and telephone at union offices were provided for legitimate use but the same were misused and abused which was a sourse of huge financial loss of PIAC. It was further submitted that in view of derogatory financial position of PIAC the only solution was to cancel the privileges as they were neither the requirement of law nor had any legal sanction but were made available due to political pressure, coercion and duress from 1988 onwards. It was further submitted on behalf of PIAC that the Supreme Court in the case of Syed Zafar Ali Shah and others v. General Pervaz Musharraf Chief Executive of Pakistan and others (supra) held that the fundamental rights contained in Article 17 would continue but their continuance was not to cause hindrance in the working of the Government. It was further submitted that the order was bona fide as PIAC was facing considerable problem due to manufacturing and mismanagemnet requiring serious action to make it fully viable. Further that if the relevant action had not been taken, PIAC would have been in total disarray bring its management to resort to wide scale retrenchment and downsizing to make it operative which would cause injury and harm to a large number of employees. It was also denied that Order No,6 of 2001 was violative of Articles 15, 16, 17, 18, 19 and 24 of the Constitution as the judgment in the case of Syed Zafar Ali Shah and others v. General Pervez Musharraf Chief Executive of Pakistan and others, (supra) authorised President and Chief Executive to make any law notwithstanding the provisions of the aforesaid Articles. It was also denied that the said order was discriminatory and invalid in view of Article 25 of the Constitution as it did not suspend the working of the trade unions either in the establishment of the foreign airlines operating in Pakistan or in the establishment of PIAC in foreign countries inasmuch as the trade unions/Collective Bargaining Agents in the foreign airlines or in the establishment of PIAC in the foreign countries were not causing obstacles, hazards, financial loss, mismanagement, misuse and abuse of the benefits and privileges in the working of PIAC and the other airlines.
8. ' The petitioners had filed rejoinder/further reply to the written reply filed by respondents Federation of Pakistan and PIAC, wherein they had denied the stand taken by the respondents and had reiterated the facts stated by them in their petitions.
9. ' The petitions came up for hearing on 19-9-2001 when it was decided by the learned counsel for the parties that both the petitions would be heard and disposed of on merits at Katcha Peshi stage.
10. We have heard the arguments of Mr. M.L. Shahani the learned counsel for petitioner Airleague of PIA Employees Union in C.P. No,D-1574 of 2001. Mr. Farogh Naseem. The learned counsel for petitioner Peoples Unity of PIA Employees in C.P. No,D-2024 of 2001 Mr. Javed Altaf the learned counsel for PIAC and Mr. Syed Zaki Muhammad, the learned Dy. A.-G., who appeared on behalf of the Federation of Pakistan.
11. ' Mr. M.L. Shahani appearing on behalf of petitioner Airleague of PIA Employees Union assailed Order No,6 of 2001 on the following grounds:
(1) that it was ultra vires of Article 17 of the Constitution:
(2) that it was against the declared objectives and the authority given by the Supreme Court to President and Chief Executive by its Judgment in the case of Syed Zafar Ali Shah and others v.
12. General Pervez Musharraf, Chief Executive of Pakistan and others. (supra):
(3) that it was discriminatory thereby violating Article 25 of the Constitution of the Islamic Republic of Pakistan:
(4) that it was redundant as it contained provision for situations/actions for which provisions already existed in other laws/regulations.
(5) that it was in derogation of the Constitution of the Islamic Republic of Pakistan as fundamental rights even if suspended could not be violated; and
(6) that it could not suspend agreements/contractual obligations mutually artrived at by the contracting parties in view of Article 2A of the Constitution.
13. ' In support of his above contentions he placed reliance on the cases of (i) Syed Zafar Ali Shah and others v.' General Pervez Musharraf Chief Executive of Pakistan and others (supra): (2) Mohatrama Benazir Bhutto v. President of Pakistan, reported in PLD 1998 SC 388; (3) Civil Aviation Authority, Islamabad and others v. Union of Civil Aviation Employees and another, reported in PLD 1997 SC 781: and (5) Madan Mohan Pathak and another v. Union of India and others, reported in (1978) 2 SCC 50.
14. ' Mr. Farogh Naseem, the learned counsel appearing on behalf of the Peoples Unity of PIA Employees in C.P. No,D-2024 of 2001 adopted the arguments of Mr. M.L. Shahani and submitted following further arguments.
(1) That the decision of the petition required interpretation of Article 17 of the Constitution needing the enquiry as .To whether the impugned order was in accordance with the provisions and requirements of the said Article 17 and the judgment in the case of reported in Benazir Bhutto v.
15. Federation of Pakistan and another reported in PLD 1988 SC 416; and
(2) that suspension of agreement/contractual obligations arrived at between the parties was violative of Article 2A of the Constitution.
16. ' Mr. Javed Altai, the learned counsel for the PIAC vehemently refuted the arguments advanced by the leaned counsel for the petitioners and supported the impugned Order No,6 of 2001 on the following grounds:
(1) that the order was in pursuance of the authority and power given by the Supreme Court to President and Chief Executive in its judgments in the case of Syed Zfar Ali, Shah and others v.
17. General Pervez Musharraf. Chief Executive of Pakistan and others, (supra), detailed in 6(i)(a), (b) and (c):
(2) that the Constitution had empowered the parliament to suspend fundamental rights during emergency period:
(3) , that the order' was not violative of Article 25 of the Constitution as the existence of trade unions and the activities of the trade unions in PIAC office in foreign countries were to a very limited extent and were not detrimental to the welfare smooth working and profit earning by the PIAC:
(4) that the orders of suspension of the trade unions and subsequent order suspending the agreements/contractual obligations arrived at between the petitioners unions and the establishment of PIAC were not violative of Articles 2A and 17 inasmuch as all such agreements/contracts were .Not voluntary or due to freewill by were on account of illegal pressure, coercion, duress and brute force used by the trade unions forcing the establishment of PIAC to surrender. To their illegal and lawful demands.
18. ' Mr. Javed Altaf in support of his first arguments relied Upon the judgment of the Supreme Court in the case of Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others; (supra). With regard to his contention at Serial Nos. 3 and 4 he elaborated that alter 1988 the trade unions/Collective Bargaining Agents in the establishment of PIAC were having the support and backing of the Governments in power as a result of which they had assumed the role of pressure groups who were always at. War with establishment of PIAC and threatened to create hindrance obstacles and hazardous in the smooht Working of PIAC if the demands put, by them for their members rewing to provisions of facilities and benefits over and above the facilities and benefits provided to the members and office-bearers by the labour laws in the nature already mentioned above were not provided to them. He further submitted that inview of such backing and support the establishment., PIAC had no alternate but to concede to the illegal and unlawful demands put forward, the petitioners unions granting the office-bearers and members benefits.
19. Facilities and advantages to which the\ were not legally entitled, which resulted in colossal and enormous 'financial burden and drain on PIAC virtually bringing it to financially ruination. He further submitted that such agreements/contracts could not be said to have been arrived at with free consent and will of the establishment of PIAC and could not by any stretch of imagination be considered to be legal, valid and in accordance with law so as to be protected by Article 2A of the Constitution.
20. ' Mr. Syed Zaki Muhammad, the learned Dy. A-G. While adopting the arguments of Mr. Javed Altaf drew out attention to paras. 7 and 10 of the comments filed by PIAC. He further submitted that the Supreme Coon in the case of Syed Zafar Ali Shah and others v. General Pervez Musharraf. Chief Executive of Pakistan and others, (supra) had given wide powers to the President and Chief Executive to perform all such acts and promulgate all legislative measures in respect of the following matters:
(a) All acts or legislative measures which are in accordance with, or ' could have been made under the 1973 Constitution,. Including the power to amend it:
(b) All acts which tend. To advance or promote the good of the people:
(c) All acts required to be done for the ordinary orderly running of the State; and
(d) All such measures as would establish or lead to the establishment of the declared objectives of the Chief Executive.
21. ' He further submitted that in the same judgment the Supreme Court while holding that the fundamental rights provided in Part-11. Chapter I of the Constitution would continue to hold the field empowered the Chief Executive/State to make any law or to take any executive action in deviation of Articles 15, 16, 17, 18, 19 and 24 and further that these acts or legislative measures were to be performed and carried out by means of orders issued by the Chief Executive or through Ordinances on his advice. Mr. Syed Zaki Muhammad further submitted that in view of the above provisions the President and Chief Executive had absolute authority to take any action or promulgate any legislative measures which in his opinion was necessary for achieving the goals enumerated above and the declared objectives.
22. ' Elaborating their arguments the learned counsel appearing on behalf of the petitioners submitted that it was not denied that the President and Chief Executive could exercise legislative power which authority or power was not challenged as they conceded that in the absence of Parliament he was exercising powers of the Parliament and in such capacity was entitled and authorised to promulgate legislative measures. Their contention was that in exercise of his such authority/power he could not promulgate legislative measures which the Parliament itself did not have the power to legislate and all such legislative measures were to be promulgated within the framework of the power available to the Parliament under the Constitution. It was further submitted that what could not be enacted or made by the Parliament. President and Chief Executive could not do the same.
23. According to them Order No,6 of 2001 was derogatory of the provisions of Constitution as it was violative of the fundamental rights which were holding the field and further that even if they had been suspended no legislative measures could be promulgated by violating the fundamental rights. The main thrust of the arguments advanced by the learned counsel for the petitioners was that the order was in derogation of Articles 2A, 17 and 25 of the Constitution. It was described to be ultra vires of Article 2A of the Constitution by which the objectives resolution had been made a substantive provisions of the Constitution thus embodying the provision of the Qur'an and Sunnah in the Constitution. It was submitted that the petitioners had entered into an agreement with PIAC whereby certain rights and privileges were allowed or provided by PIAC to the office- berarers/members of the petitioners and under Islamic law a contract or agreement entered into between the contracting parties was a solemn transaction which bound both the parties to observe and fulfil their respective duties and obligations under such contract or agreement and its cancellation/suspension unilaterally by one party was only an unislamic act but also violative of Article 2A of the Constitution thus rendering Order No,6 of 2001 as ultra vires of the Constitution and a nullity in law. The learned counsel in support of their aforesaid contention had placed reliance on the case of Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others, (supra).
24. ' Another ground raised by the learned counsel for the petitioners was that Articles 3 and 4 Order No,6 of 2001 were redundant as provisions for dealing with the matters and situations to which they related already existed in the Industrial and Commercial Employment (Standing Orders)
25. Ordinance, 1968 (hereinafter referred to as "the Ordinance of 1968) and the Industrial Relations Ordinance, 1969 (hereinafter referred to as "the I.R.O.'') respectively.
26. ' It was further submitted that both the petitioners were trade unions duly registered under the I.R.O.
27. In accordance with the provisions relating to formation of trade union and could only be cancelled suspended or removed in accordance with the provisions contained in the I.R.O. For cancellation of the registration and further that when the law had provided a mode for cancellation of registration of a trade union then neither any legislative measure, therefore, was required fOr authorising the President and Chief Executive to suspend the activities of the trade union nor its activities, could be suspended in a manner other than the manner provided in the I.R.O. In support of the above reliance was placed on the case of Civil Aviation Authority. Islamabad and others v. Union of Civil Aviation Employees and another reported in PLD 1997 SC 781 ' For resolving the issue/question' as to 'whether Order No,6 of 2001 by the President and Chief Executive of. Pakistan could have been validly made by hihi or was ultra wires of the Constitution or contrary to the authority and powers conferred on him by the Supreme Court, it will be necessary to examine the provisions of the P.C.O. And the pronouncements made by the Supreme Court in the case of Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others, (supra). The relevant provision of the P.C.O.: for this purpose is Article 2(3) and it will be necessary to reproduce the same, which is as under:- "(3) The Fundamental Rights conferred by Chapter I of Part II of the Constitution, not -in conflict with the Proclamation of Emergency or any Order made thereunder from time to time shall continue to be in force."
28. ' Article 6 of the P.C.O. Is also material for decision of this issue and it is reproduced as under: -- "The Proclamation of Emergency issued on 28th day of May, 1998, shall continue but subject to the provisions of Proclamation of Emergency. Dated 14th day of October. 1999 and this Provisional Constitution. Order and any other Order made thereunder."
29. ' The Supreme Court in its judgment .In the case of Syed Zafar Ali Shah and others v. General Pervez Musharraf Chief Executive of Pakistan and others, (supra) while validating the intervention by the Armed -Forces on 12th day of October. 1999 through an extra-Constitutional measures held that General Pervez Musharraf, Chairman, Joint Chiefs of Staff Committee and Chief Army Staff had validly assumed the powers by means of an extra-Constitutional step by the aforementioned Proclamation of Emergency dated 14-10-1999 followed by the P.C.O. No,1 of 1999. Lie was authorised to perform acts.And promulgate legislative measures as under:-
(a) All acts or legislative measures which are in accordance with, or could: have been made under the 1973 Constitution. Including the power to amend it
(b) All acts which end to advance or promote the good of the people: (c)- All acts required to be done for the ordinary orderly running of the State: and
(d) Ad such measures as would establish or lead to the establishment or the declared objectives or the Chiet Executive.
30. ' The Supreme Court further pronounced that the fundamental rights provided in Part II Chapter I or the Constitution would continue to hold the field but nevertheless authorised the State/Chief Executive to make any. Law or take any executive action in deviation of Articles 15, 16.
17. 18. 19 and 24 of the Constitution as contemplated by Article 233(1) of the Constitution keeping in view the language of Articles 10, 23 and 25 thereof.
31. The petitioners have not challenged the authority of President and Chief Executive to promulgate legislative measures in view of suspension of the National Assembly and the Senate and the subsequent dissolution thereof. The powers of Parliament were exercisable by the President and Chief Executive. It is the case of the petitioners that Order. No,6 of 2001 was in excess of the authority that vested in President and Chief Executive to take any action or enact legislative measures, Notwithstanding the abeyance of the provisions of the Constitution the country was subject to the P.C.O. And any other orders made by Chief Executive to be governed as nearly as may be, in accordance with the Constitution. The Supreme Court in the case of Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others, (supra) had authorised the Chief Executive to take all acts and promulgate all legislative measures which were in accordance with or could have been made under the 1973 Constitution, including power to amend it. Besides, the Supreme Court also authorised/empowered the Chief Executive to perform all acts and promulgate all legislative measures which had the effect of advancing or promoting the good of the people;. For the ordinary orderly running of the State and for establishing or leading to the establishment of the declared objectives of the Chief Executive. The Supreme Court also observed that fundamental rights provided in Part II. Chapter I of the Constitution would continue to hold the field but the State/Chief Executive would be authorised to make any law or take any executive action in deviation of Articles 15, 16, 17, 18, 19 and 24 of the Constitution. Article 21 of the P.C.O. Read with clauses 6(i)(a), (b), (c) and 6(iv) to have given authority or power to President and Chief Executive to take all actions and promulgate all legislative measures which in his opinion were necessary for advancement or promotion of the good of the people, for the ordinary orderly running of the State and for establishment or leading to the establishment of the declared objectives. PIAC is an establishment which was established by the Government and is being controlled, managed and run by the Federal Government. It is one of the most important organizations/establishment in the country as it is the national flag carrier and is operating flights throughout the country. The performance and working of PIAC is also linked with the advancement or promotion of the good of the people as it provides travel facilities to a very large number of people of the country who have to undertake travel within the outside the country on official tours, business and trade purposes education and transportation of huge volume of cargo in and out of the country and if the performance and the working of P1AC is not efficient, satisfactory and up to the mark then the people of the country would suffer adversely. There cannot be any dispute with the contention that PIAC is not part of the Government in the sense as a ministry division or department of the Government but nevertheless it is an establishment controlled, managed and run by the Federal Government and its ordinary orderly running would reflect on the overall orderly running/performance of the Government. Poor performance or working of PIAC would not only result in depriving the people of the country to avail facilities of travelling and transportation of cargo but would also place the entire establishment in the peril of disintegration resulting in loss of employment to thousands of its employees, putting great financial burden on Government, sending massages to the entire world of malfunctioning and inefficiency within Pakistan. Such events would have very adverse and undesirable affects on the financial and economy advancement of the country which is the cherished goal of the Government. Such would also have very undesirable and adverse affects on the working of other Government controlled establishments would bring pessimism and frustration in a large number of people.
32. ' The reasons for inefficient, unsatisfactory and poor performance of PIAC were said. To be the obstacles, hurdles and problems created by the petitioners unions as well as malfunctioning mismanagement, inefficiency and corruption by officers/employees inducted on political basis without having the requisite qualifications. These factors joined together entailed financial drains on account of the expenditure on uncalled for an illegal facilities obtained by the petitioners unions for their office-bearers by way of harassment, coercion and influence exerted by it on the PIAC management on account of their links with the political Governments of the past. It was submitted that both the petitioners unions were linked to one or the other Governments of the past and in that capacity they brought enormous pressure and influence on the management in the appointments, transfers and posting and also got for themselves benefits, facilities and privileges which the office-bearers or the members of the trade unions would not be entitled to under the law resulting in heavy drain on the finances of the PIAC and it was virtually on the brink of disaster. Extreme remedial measures were required to make PIAC to continue its operations which besides providing financial assistance required appropriate action for controlling and ultimately bringing and end to the wasteful expenditure being incurred on the benefits, facilities and provisions obtained by the office-hearers of the aforesaid two unions by way of coercion, influence and pressure tactics and removal of the inefficient, incompetent and corrupt officers/employees. This was the situation which forced the President and Chief Executive to make Order No,6 of 2001. The said order cannot be said to be in excess of his powers of in view of the provisions of the Proclamation of Emergency, the P.C.O. And the authority/powers exercisable by him in pursuance of the judgment of the Supreme Court in the case of Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others, (supra). The contention that the same was illegal and void as had the Parliament being in existence such orders/legislative measures could not have been promulgated by the Parliament does not hold good as the Parliament being the supreme law making authority had vast powers to enact any law and to amend, modify, annul or repeal any law.
33. The Supreme Court in the case of Haider Automobile Ltd. v. Pakistan reported in PLD 1969 SC 623 pronounced that Legislature was competent to legislate retrospectively and retroactively and take away a vested right by express words or necessary intendment. It was further observed that the Courts would not hold such a legislation as ineffective and strike down the same. The Supreme Court further declared that to strike down a law as being opposed to a Constitutional provisions one would have to establish specifically the violation of the Constitutional provision in absence whereof it could not be said that the law was bad merely because it violated some principle of justice and fair play. In the case of The Punjab Province v. Malik Khizar Hayat Khan (PLD 1956 FC 200) the Federal Court pronounced that it was not for the Courts to question the motives or policy of the Legislature or to refuse to give effect to legislation merely because it appeared to be harsh or unreasonable or vindictive. Order. No,6 of 2001 did not amend/modify, supersede or repeal any law nor the provisions thereof are contradictory or violative of the provisions of Constitution, the I.R.O. Service Tribunals Act and the Ordinance of 1968, as was submitted by the learned counsel for the petitioners. This observation is based on the authority/power which has been conferred/vested in him by the Supreme Court in the judgment of Syed Zafar Ali Shah and others v. General Pervez Musharraf. Chief Executive of Pakistan and others, (supra) to take all actions and promulgate legislative measures in deviation of Articles 15, 16, 17, 18, 19 and 24 of the Constitution as contemplated by Article 233(1) of the Constitution and Articles 2(3) and 6 of the P.C.O. Which have been reproduced herein above.
34. ' The contention that the order was discriminatory and was violative of Article 25 of the Constitution of the Islamic Republic of Pakistan on the ground that the trade unions established in the foreign airlines having their offices in Pakistan as well as the trade unions established in the offices of PIAC abroad were not suspended and were carrying on their functions and business in accordance with the provisions of the I.R.O. Is also without any force as Article 25 permits the reasonable discrimination. It guarantees equal protection of the laws which means that all persons shall be treated alike under like circumstances and conditions, both in 'the privileges conferred and the liabilities imposed. It does not means that all citizens shall be treated alike under all set of circumstances and conditions, both in respect of privileges conferred and liabilities imposed. By the expression "equal protection of law" it is envisaged' that no person or class of persons would be denied the same protection of law which is enjoyed by person or class of persons placed in like circumstances in respect of their life. Liberty, property or pursuit of happiness. This expression does not provide that every citizen is to be treated alike in all circumstances and permits of reasonable classification founded on reasonable distinction or basis. If any authority is required in support of the above proposition, the same is available in the Full Bench judgment in the case of Pakistan Burmah Shell Limited and another v. Federation of Pakistan and 3 others, reported in 1998 PTD 1804.
35. It now requires examination whether the petitioners unions and the unions operating in PIAC offices abroad and the foreign airlines in Pakistan were placed in similar alike circumstances and conditions. The office-bearers of the trade unions operating in foreign airlines having their offices in Pakistan and the trade unions operating in the offices of PIAC as well as the offices and employees abroad did not indulge in the acts of omissions and commission learning to malfunctioning, mismanagement and hindrance in the smooth running and functioning causing colossal financial losses in the PIAC offices abroad as well as in the offices of foreign airlines operating in Pakistan as was being done by the office-bearers of the petitioners unions, officers and employees in the PIAC establishment in Pakistan nor were they creating obstacles. Hurdles and problems in the smooth and ordinary orderly running and functioning of PIAC as a result of which it was not found - necessary to include the trade unions operating in the establishment of foreign airlines and in the establishment of PIAC abroad in Order No,6 of 2001.
36. Relative to suspension of petitioners unions activities guaranteed by Article 17 it was submitted that for an action for suspending any of the fundamental rights guaranteed by the aforesaid Article it was necessary that there was state of emergency in the country which was a condition precedent for the impugned action/order which required a Proclamation of Emergency by the President and Chief Executive but the same was admittedly not in existence, thereby 'rendering Order No,6 of 2001 void to the extent of suspension of unions operation. Such contention is devoid of any force in view of Article 6 of the P.C.O. Whereby Proclamation of Emergency issued on 28-5-1998 was continued and was to remain in force. Provision of Article 6 of the P.C.O. Is sufficient to hold that the country was in a state of emergency at the time when Order No,6 of 2001 was made by the President and Chief Executive.
37. ' It was submitted that the Order was violative of the Article 2A of the Constitution as. Well as the Sharia law as an agreement/contract mutually arrived at between the two parties was a sacred transaction requiring the contracting parties to perform their respective duties and obligations thereunder as well as creating rights and privileges and such duties and obligations as well as rights and privileges could not be brought to an end or suspended by the Parliament. This contention would hive merited consideration if it had been established that the contracts/agreements arrived at between PIAC and the petitioners 'unions were executed mutually as a result of the freewill and consent of both the parties and that none of the parties had exerted under pressure influence or coercion for forcing the other party into submission to accept the demands, benefits and facilities which in the normal course were not available to it. It was emphatically asserted that the petitioners union during their tenure as the Collective Bargaining Agents had managed and succeeded in obtaining for their office-bearers and the members ,benefits, facilities and privileges on account of the abnormal pressure, influence and coercion applied by them on account of the backing and support by the political Governments in Pakistan at the relevant times and the management of PIAC had no other alternative but to submit to the illegal demands, facilities and benefits made by the petitioners union. There can be no dispute with regard to the principle that under the Sharia law agreements entered into between the parties are to be honoured by the executing parties who would be under an obligation to perform all acts to give effect to the contract/agreement but such would the case when it could be established that the agreemnet/contract was arrived at with freewill of the contracting, parties without application of pressure, undue influence or coercion by anyone of the contracting parties co as to force into submission the other party for agreeing to demands, privileges and benefits which otherwise it would not agree to. In the circumstances the contention has no force and is rejected.
38. ' The contention that Articles 2 and 4 of Order No,6 of 2001 were redundant, as appropriate provisions were available in other Statutes for dealing with the situations enumerated in the aforesaid two Articles is equally without any force. It is within the authority of the Legislature to amend an earlier Act or to declare its meaning by eancting a new Act and in doing so it is even competent to so declare a meaning which is not consistent or is in deviation, of the plain language of the earlier Act. According to the "Principles of Interpretation of Statute" a later statute declaring a meaning, of an earlier Act operates directly by its own 'force and not merely as an aid to construction of the earlier statute. Similarly the Legislature has the authority to incorporate an earlier Act or certain provisions thereof in a later Act. When such is done then the provisions so incorporated become part and parcel of the later Act. It will be appropriate to reproduce a passage from the book of Justice (Retd.) G.P. Singh titled "Principles of Statutory Interpretation"
39. Fourth Edition 1988, appearing on page 174 as under:-- "Incorporation of an earlier Act into a later Act is a legislative device adopted for the sake of convenience in order to avoid verbatim reproduction of the provisions of the earlier Act into the later. When an earlier Act or certain of its provisions are incorporated by reference into a later Act, the provisions so incorporated become part and parcel of the later Act as if they had been 'bodily transposed into it'. The effect of incorporation is admirably stated by LORD ESHER, M.R.: If a subsequent Act brings into itself by reference some of the clauses of former Act, the legal effect of that, as has often been held, is to write those sections into the new Act as if they had been actually written in it with the pen, or printed in it. 'The result is to constitute the later Act alongwith the incorporated provisions of the earlier Act, an independent legislation which is not modified or repealed by a modification or repeal of the earlier Act."
40. The validity of a statute, which incorporates the provisions of an earlier Act is to be judged with reference to the powers of the Legislature enacting the fresh statute and not with reference to the powers of the Legislature enacting the original legislation. While dealing with the powers of the Presiding and Chief Executive to make Order No,6 of 2001 it has already been held that he exercised authority and power to take all actions and promulgate all legislative measures which were necessary for achieving the declared objectives as well as the goals embodied in clause 6(a), (b) and (c) of the judgment of Syed Zafar Ali. Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others, (supra) on pages 1221 and 1222 and authority/power enumerated in Articles 2 and 4 of Order No,6 of 2001 related to giving effect-to the aforesaid objectives.
41. According to the "Principles of interpretation of Statute" it is the duty of the Court to so construe a statute that no pai-t of its is to be rendered void and nugatory and effect must be given, if possible.
42. To all the words used in the statutory provision for the Legislature is deemed not to waste its words and the same should not he regarded as surplusage. Every Act or part of an Act is not to be ignored or treated as being meaningless and it must be construed as having some operating results..N.S. Bindra in his book "Interpretation of Statutes" Eight Edition 1997, on page 276 while dealing with such a situation wrote that where a single section of an Act was reproduced into another statute then it was to be read in the sense which it bore in the original Act and from which was taken. On the same page there was further discussion that where a subsequent Act incorporated provision of a previous Act, then the borrowed provisions would become an integral and independent part of the subsequent Act and would be totally unaffected by any repeal or amendment in the previous Act. This is based on the pronouncements made by the Supreme Court of India in the case of State of Kerala v. M/s. Attesee (Agra Industrial Trading Corproation), reported in AIR 1989 SC 222. In this case the Supreme Court has also enumerated cases where the aforesaid principle would not be applicable, but the present case does not fall within the cases enumerated by the Supreme Court of India. In law there is a general presumption in favour of Constitutionality of the an enactment and the burden is upon him who attacks to show that there has been a transgression of Constitutional principles. Reliance for the above is placed on the judgment of a Full Bench of this Court in the case of Pakistan Burmah Shell Limited and another v.
43. Federation of Pakistan and 3 others (1998 PTD 1804). According to this rule, the Courts of law have to presume that a particular law is intra vires and not ultra vires with further presumption that the power conferred shall be exercised for the purpose for which it has been conferred and shall be exercised reasonably. It is also a presumption in law that each and every clause of the statute has been inserted for some useful purpose, and, therefore, the instruments must be read as a whole to ascertain both its intent and general purpose and also the meaning of each part and no word or clause should ordinarily be rejected as superfluous. The rule of interpretation does not permit to treat words or clause as redundant unless reading them in the statute would lead to asburdity and the general rule is that no provision of the Act should be rendered totally ineffective as a result of interpretation. It sometime happens that the Legislature may insert provision in statute merely by way of abundant caution and an Act of Parliament may be found to contain exceptions, which were already covered by a general exceptional in another statute as was observed in the case of Income Tax Commissioner v. Pemsel, reported in 1891 AC 532. Such, a situation was amply discussed by Lord Brougham in the case of Auchterader of Presbytery v. Lord Kinnoull (6 CI & F 646.
44. 686) as under: "A statute is always allowed the privilege of using words not absolutely necessary."
45. ' By way of analogy it could be said that inserting a provision relating to declaration of employees or respondent PIAC as civil servants, empowering the officers of PIAC to dismiss, remove, retire, and to suspend the trade union activities were inserted in Order No,6 of 2001 as an precautionary measure: Articles 2 and 4 of Order No,6 of 2001 cannot be said to be redundant or surplusage which should be considered as integral part of the Order and are to be given the meanings which appear from plain reading thereof.
46. The learned counsel for the petitioners had placed reliance on the cases of; (i) Syed Zafar Ali Shah and others v. Generalf Pervez Musharraf Chief Executive of Pakistan and others (supra) and (ii)
47. Benazir Bhutto v. Federation of Pakistan and another reported in PLD 1988 SC 416 in support of their contention that President and Chief Executive had exceeded the authority allowed to him by the Supreme Court in taking any action or promulgate legislative measures. However, they were not able to refer to any part of the judgments on the basis of which it could be held that Order No,6 of 2001 was in excess of the authority exercisable by President and Chief Executive. As a matter of fact Order No,6 of 2001 was in exercise of the power/authority conferred by the Supreme Court in the clauses paragraphs referred to above in the case of Syed Zafar Ali Shah and others v. General Pervez Musharraf Chief Executive of Pakistan and others (supra) as well as such authority would also be derivable from the P.C.O.
48. ' Reliance was also placed on the cases of Civil Aviation Authority Islamabad and others v. Union of Civil Aviation Employees and others reported in PLD 1997 SC 781 in support of the contention that the right of formation of a trade union was a statutory right provided to the workers in accordance with the provisions of the I.R.O., which also provided for cancellation/suspension of a registered trade union and could not be resorted to by a mode other than the one provided in the I.R.O. And further that the same was also violative of Article 17 of the Constitution. From a perusal of the aforecited case we are not able to find any observation to the above effect and the Supreme Court held that the effect of exclusion of application of the provisions of I.R.O. To the Civil Aviation Authority and Pakistan Television Corporation was that there was no other statute available under which the employees of either of above two establishments could get their unions registered or could agitate their grievance through an orderly mechanism. It was further pronounced that Article 17(1) of the Constitution could not be effectively invoked for the purpose of formation and operation of a union. Reliance was also placed on this case as well as on the case of Benazir Bhutto v.
49. Federation of Pakistan and another, reported in PLD 1988 SC 416 by Mr. Farogh Nasim in support of his contention that reasonable restrictions on his contention that reasonable restrictions on the formation/working of a trade union could be imposed only if it was established that non- imposition thereof would be harmful to the soverignty or integrity of Pakistan, public order or morality. The pronouncements made in the aforecited case are not applicable to the facts of this case as in the present case as the President and Cheif Executive had full authority/power to pass an order in deviation of Article 17 of the Constitution as has been held hereinabove. Therefore, the observations and pronouncements made in the aforecited two cases, would have no application to the facts of this case.
50. For the foregoing reasons and discussion there is no doubt that these Constitutional petitions are without any force and do not merit consideration.
51. ' On behalf of respondents objections were raised with regard to the maintainability of the aforesaid Constitutional petitions on the ground that the petitioners in effect have approached this Court for revival of the benefits/facilities and demands embodied in the contracts/agreements entered into between the unions and the managements of PIAC which related basically to the terms and conditions of service of the office-bearers of the two unions thus attracting the bar contained in Article 212 in the Constitution and the petitioners were prudence from invoking the jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan. The respondents also objected to the maintainability of the petitions on the found that the petitioners unions could not spouse the cause of the office-bearers by way of a Constitutional petition in view of the settled principle of law that a party cannot file a Constitutional petition for spousing the acts of another persons and it would be necessary that the aggrieved person or persons should themselves resort to the tiling of a Constitutional petition. However, in view of the conclusion arrived at that these Constitutional petitions are found to be without any substance and force, we do not propose to deal with the aforesaid objections.
52. Upon the above discussion both the Constitutional petitions stand dismissed alongwith the C.M.As.
53. With no orders as to costs.