' Dr. Yasmin Rashid, former Professor of Obstetrics and Gynae, Fatima Jinnah Medical College, Lahore, has assailed the order of the Governor of the Punjab/competent authority dated 28-11- 2002, whereby she was dismissed from service with immediate effect under the Punjab Removal from Service (Special Powers) Ordinance, 2000, A review petition having not been attended to within the statutory period, recourse was made to the Service Tribunal through the instant appeal.
2. Appellant being a doctor by profession claims to be a Member of Pakistan Medical Association; Lahore, since 1988 and finally elected as President of Pakistan Medical Association, Pakistan (hereinafter called P.M.A.) for a term of 2 years commencing form December, 2000, the Association having been registered in the year 1948 under the Cooperative Societies Act, financially assisted by the Federal Government through grant in aid. The Government of the Punjab promulgated Punjab Medical and Health Institutions Ordinance, 2002 (hereinafter called the Ordinance). The main features of the Ordinance were creation of health university, and other allied and ancillary objects and purposes applicable to the medical profession, by the large. It is stated that appellant in her capacity as President, P.M.A. Pakistan, with the decision of the Central Council of the P.M.A. Pakistan being the only representative body of Doctors was not consulted in the preparation of the health policy; as such the basic purpose of the Ordinance was disputed. It was stated by the appellant that Board of 'Governors of Medical Colleges without having doctors as its members would not be beneficial, as it would loosen the rapport amongst the medical fraternity. The creation of the health university to accommodate the then Chief Minister for Health as its Vice Chancellor was also desired to be reconsidered and the service structure of doctors to be changed by the Ordinance was, submitted, highly detrimental to the interests of the medical profession as a whole and an appointment of the Chief Executive in place of Principals of the Medical College would entail extra financial burden on the already sapping resources of the hospitals/medical colleges. The banning of private practice of doctors was stated, to create multiple problems for the poor patients and the fixation of fee to be taken from the patients for their treatment would neither be humanitarian nor would generate the desired funds, being basically against the concept of free medical treatment to the teeming masses below the poverty line. It was further submitted that representations, interviews sought from the health authorities for improvements in the Ordinance, 2002 fell on deaf ears closing all doors for an amicable settlement of issues. Mala fide was pleaded against the Health Secretary, Government of the Punjab, as doctor community resented help extended by the Secretary Health towards his brother, who was convicted of a criminal offence by the superior Courts of the country. Similarly, the then Minister of Health, Government of the Punjab was criticized for securing a job for himself as the Vice-Chancellor of the Health University. By way of retaliation, it is stated that the appellant and other office bearers of P.M.A. In Government service fell prey to the venom of the higher echelons in the hierarchy of the Health Department. To show resentment, it was submitted, against the high-handedness of the Minister of Health, Government of the Punjab and the Health Secretary, it was decided unilaterally to observe a peaceful hunger strike on 23-9- 2002 for getting the attention of the higher authorities and in search for a meeting to sought out matters on the negotiation table. To being with, it is stated, that the appellant was suspended on 4-10-2002 and thereafter a decision dated 12-10-2002 by the authority to initiate disciplinary proceedings against her was taken under the provisions of Punjab Removal from Service (Special Powers) Ordinance, 2000. In consequence thereof appellant was served with the charge-sheet, by the Inquiry Officer, also appointed vide order dated 12-10-2002 by the authority, containing the following charges:--- "Subject: CHARGE SHEET"
' I, Mian Muhammad Jamil, Additional Chief Secretary (DMG/BS-21), Government of the Punjab, having been appointed as Enquiry Officer in your case by the Governor/Competent Authority to proceed against you under the Punjab Removal from Service (Special Powers) Ordinance, 2000 as amended, upto date hereby charge sheet you as under:--
(i) You claiming to be the President of P.M.A. Participated in a token hunger strike on 23-9-2002 organise jointly by your group and Pakistan Teachers Action Committees at the Faisal Square, The Mall, and Lahore against the Government Policies promulgated through the Punjab Medical and Health Institutions Ordinance, 2002.
(ii) You instigated the participants of the hunger strike for starting countrywide agitation against the Government policies.
(iii) You instigated the doctors and teachers to participate in the agitation processions scheduled on 4-10-2002.
(iv) You made a statement during the hunger strike to observe countrywide boycott of teaching in the Medical and Educational Institutions on 14-10-2002.
(v) Your instigation was meant to create law and order situation in the, teaching institutions and disrupt the peaceful academic atmosphere.
2, By reasons of the above, you appear to:--
(a) -be guilty of misconduct-within the meaning of sections 2(b) and 3(b) of the Punjab Removal from Service (Special Powers) Ordinance, 2000 as amended, and in violation of rule 5-B of West Pakistan Government Servants (Conduct) Rules, 1966;
(b) be engaged, or is reasonably believed to be engaged, in subversive activities within the meaning of section -3(d) of Punjab Removal from Service (Special. Powers) Ordinance, 2000, as amended."
3. Appellant through a written reply dated 25-10-2002 replied 'that P.M.A. Was a legally formulated body recognized by the Government and the action taken by P.M.A. Fell strictly within the powers conferred upon its members through its constitution. Alluding to the hunger strike on 23-9-2002, it was submitted' that the same was organized by the P.M.A. Because such an activity was allowed within the frame-work of the constitution, being non-violative of any law whatsoever. Reference was also made to Articles 5(a), 5(p) and 15(g) of the Constitution of P.M.A. Appellant also urged that she was ,made a scapegoat by picking her up as one single person, whereas the activity conducted was by the members of the association, which depicted the mala fide of the respondents simply for the reason that she was out spoken in her views. The photographs in the newspapers were referred to make a point that on 23-9-2002 the strike was general in nature and a large number of people belonging to the medical profession as well as P.M.A. Participated according to their own free-will. Peaceful hunger strike, it was submitted, was well within the ambit of law, during a message to the Government that the Ordinance was protested by all and sundry in the medical fraternity. Instigating the participants of the hunger strike for starting countrywide agitation against the Government policy was denied. Use of the word "subversise:, "anti- Government" or "anti-State" was objected to in an articulate manner adding that it was not only scandalous and defamatory but smacked of malice of the author, at whose behest the charge sheet was drafted. Charge No,3 was denied and Stated to be shorn of necessary details hence being vague in nature. Similarly, charge No,4 was denied, that the appellant made a statement during the hunger strike to observe countrywide boycott in the medical and educational institutions on 14-10-2002. It was specifically pleaded that Articles 16, 17 and 19 of the Constitution of Islamic Republic' of Pakistan, 1975 guaranteed the appellant the fundamental rights of assembly, association and speech, as such she has not violated or breached any law or committed an unlawful act in any manner whatsoever. An unreported judgment of the. Hon'ble Supreme Court of Pakistan in C.P.L.A. No,272-P of 2002 belonging to the right of protest against Government policies including the right to issue statement, hold press conferences and call for strike.
4. The Inquiry Officer held the inquiry proceedings from 14-10-2002 upto 13-11-2002 allowing full participation to the appellant in t he said ,proceedings. Prosecution examined only one witness Mr. Zufiqar Ali Butt, S.H.O., P.S. Old Anarkali, Lahore. His statement which runs into one full page is reproduced for the facility of reference as it would come for discussion in the ensuing paragraphs, time and again:-- "Mr. Zulfiqar Ali Butt, stated on Oath that a joint procession' of the students, teachers and doctors was to be taken out on 4-10-2002 in the city. I was deputed by the higher authorities to maintain law and order situation. According to the duty programme, I was deputed by higher police authorities. I was on duty at Istanbul Chowk alongwith my senior and other police officials.
"On 4-10-2002 at about 12.00 O'clock the procession consisting of about 1400 persons emerged at the Chowk Istanbul in front of Punjab University and procession was being led by a few teachers and doctors including Dr. Yasmin Rashid. The processionists blocked the Mall Road by parking a coaster on the top of which the leaders stated making speeches against the Government. The processionists were gathered on the road and the 'leaders were addressing them facing PMG office. Those who made speeches they include Mr. Azam Butt, teacher, Dr. Yasmin Rashid and Mr. Nazim Hussain,' Lecturer and few other leaders made speeches to whom I know them by their faces. All the leaders condemned the Government policies and stated that students and teachers and doctors will not accept the Government policies and they will continue their struggle till the change in the policies of the Government. Till the acceptance of our demands our unity will continue. Neither the President nor the Governor is acceptable to us till the acceptance of demands. Dr. Yasmin Rashid was highly enthusiastic and was participating by raising anti- Government slogans. After the speeches the procession dispersed gradually."
' Neither at the close of the examination-in-chief indicates that the appellant was allowed a chance to cross-examine this witness, nor on her refusal, a note was giVen at the conclusion that the accused does not wish to cross-examine the witness nor in the order sheet containing the daily proceedings particularly the order dated 11-11-2000 there is any indication that the appellant was given a chance to cross-examine Mr. Zulfiqar Ali Butt, S.H.O., but she declined to do so. The accused was not asked to sign the order sheet. However, the Inquiry Officer in his report dated 16-11-2002 on the first page has stated in so many words that after the statement of the only prosecution witness was recorded appellant was afforded an opportunity to cross-examine him which was not availed of. I have no reason to disbelieve the Inquiry Officer, yet the Tribunal is entitled to scrutinize and make close exegesis of the inherent worth of the statement of Mr. Zulfiqar Butt, the prosecution witness. The Inquiry Officer based his report on the testimony of Mr. Zulfiqar Butt and reports of the Special Branch placed before him as Exh. P-1 and news items appearing in the various "Dailies" and press clippings, by concluding that being a Government servant appellant was governed by the West Pakistan Civil Servants (Conduct) Rules, 1966. Rule 25(b) specifically stops all Government servants to take part in or assist any public demonstration against Government decision. The appellant, in flagrant violation of this rule, participated in the hunger strike claiming to be the President of P.M.A. Charge No,1 was, therefore, held to be proved in view of the admission of the appellant as well as the documentary evidence in the shape of press clippings. Charges Nos.2 and 3 also stated to be proved on the basis of press clippings and reports of the Special Branch in addition to the statement of prosecution witness Mr. Zulfiqar Ali Butt, S.H.O., Old Anarkali, Lahore.
Denial of the appellant was not considered sufficient and reliance was place on the press clippings as well as the report of the Special Branch to reach the conclusion of guilty on the two charges viz. The charge No,II and III. Charge No,IV was also stated to be proved as press clipping of Daily "JANG" of 24th instant 2002 was reproduced to hold appellant guilty of instigating the medical community to observe countrywide boycott of teaching in the medical and educational institutions on 14-10- 2002. Charge No,V regarding instigation to create law and order situation in the teaching institutions and disrupting the peaceful academic atmosphere was held to be not proved. The discussion in the inquiry report with the caption "Basic issue" by the Inquiry Officer was with reference to rule 25(b) of the Government Servants Conduct Rules, 1966. This rule is being reproduced for ready reference:-- "25(b). Government servants not to take part in or assist, any public demonstration against Government decisions, etc.---No Government Servant shall take part in, or in any manner assist, any public demonstration directed against a Government decision or policy or permit any member of his family dependent on him to do so".
' The Inquiry Officer has observed that undoubtedly the Constitution of the country gives the appellant a fundamental right of freedom of expression, right to form an association etc. But such a right could not be made available to a Government servant as the actvity of the appellant was termed to be anti-Government. If the appellant desired to continue her "agitation" she should have first resigned from Government post and then raise voice against Government policy. In nutshell the four of five charges were held to be proved against the appellant and major penalty of dismissal from service was recommended. The authority through the hearing Officer provided opportunity to the appellant to present her case. However, I am convinced after going through the original file that summons were served on the appellant to appear before the hearing Officer on the 25th of November, 2002, which she declined to do so. Resultantly, there was no alternative left for the hearing officer but to transmit his findings to the authority that the charges stood proved.
The authority, thereafter, passed the order of dismissal, which has been impugned in the present appeal.
5. Learned counsel for the appellant contended that the action taken against the appellant was outcome of mala fides as she voiced the demand of the medical community being the President of P.M.A. After the high ups in the Health Department refused to budge on their stand exhibiting obduracy today conciliatory measures but bent upon to enforce the Ordinance having the effect of cutting the roots of the doctors in general and poor patients in particular. It was further contended that Articles 16, 17 and 19 of the Constitution of Islamic Republic of Pakistan, 1973 gave her mandate to voice her protest in a peaceful manner and any fetters contained in the subordinate legislation like rule 25(b) of the West Pakistan Government Servants Conduct Rules, 1966 had to be subdued as it was subservient in nature and it would be a misnomer, to observe even tacitly that the said rule overrides the provisions of the fundamental rights enshrined in the Constitution. Taking his argument to its logical conclusion, learned counsel contended that statement of the only prosecution witness examined did not at all spell (nit any act on the part of the appellant to disturb public peace and tranquility or to pose threats to life and property of public or an individual or to disturb public order. The report of the special agencies and press clippings was urged to be inadmissible in evidence. The penalty imposed was in any case stated to be extremely harsh requiring reversal as full opportunity to defend was not provided by the Inquiry Officer not allowing a chance to cross-examine the witness or to product defence. On the other hand, learned District Attorney assisted by the Director Law, Health Department present with the original record mainly banked upon the Provisions of rule 25(b) of the. West Pakistan Government Servants (Conduct)
Rules, 1966 to state that the fundamental rights embodied in the Constitution of Islamic. Republic of Pakistan, 1973 could only be exercised within the ambit of law, which meant law through Ordinance or rules and since the rules prohibited a civil servant from participating in public demonstrations against the policies of the Government, the penalty was not only rightly imposed but was the call of the day, because such acts of misfeasance would be a bad example to follow by encouraging others in the medical and teaching profession.
6. I have heard the arguments of the respective counsels at length very attentively and perused the complete record made available through the good offices of the Director Law, Health Department.
7. In a regular inquiry in order to determine whether the charge stands proved, the prime consideration is the evidence, oral and documentary, which prosecution has adduced. As observed, only one witness namely Mr. Zulfiqar Ali Butt, S.H.O. Old Anarkali, Lahore, has been examined. The sum and substance of his statement when analyzed boils down to, that on 4-10- 2002 in his presence appellant alongwith others made speeches addressed to about 1400 persons condemning the Government policies with a resolve that students, teachers and doctors will not accept them and their struggle shall continue till a change is brought in the said policies of the Government. Dr. Yasmin Rashid was stated to be highly enthusiastic and was participating by raising anti-Government slogans. After the speeches the procession dispersed gradually. The statement speaks of the condemnation of the Government policies and the continuation of the struggle till it is resolved. The witness has not stated or clarified as to what were the anti- Government slogans shouted by the appellant in an enthusiastic manner. No detail whatsoever was given about the so-called anti-Government slogans. Any discreet person would have restrained from cross-examining the witness by asking questions regarding the anti-Government slogans as desultory statement, shorn of necessary details, prudence required that the vacuum should not be filled through cross-examination. Probably, it is for this reason that the appellant did not desire the cross-examination of the witness. In the present form the statement at the most amounts to a protest vociferously raised by the speakers including the appellant against the policies of the Government enforced through the Ordinance. What were those anti-Government slogans raised by the appellant remains a mystery. Use of the words "Anti-Government slogans" could at the most be construed in view of lack luster statement; criticism against the Government impinging the provisions of the Ordinance without allowing the participation of the P.M.A. One aspect which becomes evident from the statement of the witness is that the procession was absolutely peaceful, did not pose danger to life and property of any individual or public, the peace and tranquility of the locality was not at all disturbed, no force or any kind of coercive measures was considered necessary, by the witness, to exercise or to stop or to prohibit the assembly from taking the law in their own hands. The concluding sentence of the witness, that after the speeches the procession dispersed gradually, proves it beyond shadow of doubt that the assembly, during which the speeches were made, was a mere protest against the Government and was totally and absolutely peaceful in nature. I am aware that the appellant has admitted her participation in the assembly on 4-10-2002 by making a speech as well as hunger strike observed on 23-9-2002, therefore, no evidence is required to prove these facts. However, instigation of the participants at the time of hunger strike on 23-9-2002 for starting countrywide agitation against the Government policies has not been proved through oral, evidence as the witness .Mr. Zulfiqar Ali But, has not stated a single word about it, rather he was not even present on 23-9-2002. Similarly, instigating doctors and teachers to participate in the agitational procession scheduled on 4-10-2002 also does not stand proved as the witness has simply stated that the appellant and others made speeches condemning the Government policies and resorted to continue their struggle till they succeed in altering the said policies. To instigate is to goad, coax or to stimulate a person into action., The word. "instigate" when used with respect to charge No,III would mean that the appellant actively suggested to the doctors and teachers to participate in the agitational processions scheduled on 4-10-2002. No such word was spoken by the witness in his statement.. The would "agitational" is a derivative of the word "agitate". The dictionary meaning of this word is to move violently, to stir up or ask the people to rise against some-one with show of force or otherwise. The charge does not stand proved through the statement of the said witness. Charge IV relates to a hunger strike during which a statement was made asking the teaching and medical community to observe countrywide boycott in the medical and educational' institutions on 14-10-2002. Appellant has denied this charge and the prosecution has failed to prove it through oral evidence. Charge No,V relates to the instigation by the appellant to create law and order situation in the teaching institutions and to disrupt the peaceful academic atmosphere, could lend the appellant on a very strictly wicket but according to the inquiry report, dated 16-11-2002 of the Inquiry Officer this charge does not stand proved. Now coming to the documentary evidence, the perusal of the original file shows that appellant was examined on 11-11-2000 and she stated that her reply to the charge sheet submitted on 25-10-2002 may be treated as her statement. In the statement, she claimed that the office bearers of the Pakistan Medical Association reiterated her stance that the President of the Association is its spokesman and whatever is said by her, it had the blessings oh the decision made by the counsel and should not be construed the statement of an individual voice. Neither the clandestine report of the secret agency nor the press clipping of the daily newspapers were put to the appellant in cross-examination by the departmental representative. The appellant was not confronted with the special report of the Police or agency or with any damaging statement against her interests appearing in the press clippings, by the departmental representative. It is a cardinal principle of evidence that any statement or document intended to be used against the accused he/she must be confronted with the same so as to get an answer whether the content: are admitted or denied. Neither the author of the report of the special agency was brought in the witness-box as a witness to ptove the said report nor was the reporter or the publisher of any one of the press clipping produced as a prosecution witness to prove its contents. In the absence of evidence regarding any portion of the contents of these documents, Which go against the appellant, cannot be used as the same has not been proved in the manner indicated. At the risk of repetition except for making the speech of the appellant on 4-10-2002 and her observing the hunger strike on 23-9-2002 nothing else stands proved.
8. Embarking upon crucial question determining the fate of this appeal is the reliance placed by the appellant on fundamental rights embodied in Article 16, relating to freedom of assembly, 17 relating to freedom of association and 19 relating to freedom of speech etc. The Articles are reproduced for examination, of the question mooted.
' Article 16 Freedom of Assembly.
"Every citizen shall have the right to assemble peacefully and without arms, subject to any reasonable restrictions imposed by law in the interest of public order".
(1) "Every citizen shall have the right to form an association or unions, subject to any reasonable restriction imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality".
Article 17 Freedom of Association.
(2)................................................................
(3) Article 19 Freedom of'speech, etc. "Every citizen shall have the right to freedom of speech and expression, subject to any reasonable restriction imposed by the law in the interest of the glory of Islam or integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality or any relation to contempt of Court, examination or incitement to an offence"./ ' Contention of the appellant was that these rights guaranteed to her, bestowed upon her inalienable right to form an association and assembly to protest against the policy of the Government detrimental to the interests of the medical community through a speech, It was emphasized that such right cannot be curtailed abridged or in any manner stifled by any subordinate legislation. On the other hand, learned District Attorney referred to the provision of rule 25(b) of the West. Pakistan Government Servants (Conduct) Rules, 1966, already reproduced in the preceding paragraph of this judgment, to urge that Government servant shall, not take part in or in any manner assist any public demonstration directed against The GovernMent decision or policy.
9. Appellant in her memorandum of appeal has stated categorically that Pakistan Medical Association came into existence in the year 1948 when it was registered by the Registrar of Societies and front then onwards it -has been working according to the Constitution of ,the association, inscribed it' its Articles and Memoi andum of Association. She maintained that she was elected President of the Pakistan Medical Association in the year 2000 for a pet iod of 2 years It was further pleaded with emphasis that the Government has not only recognized the Association by inviting the office bearers at different forums but also has granted aid for its uplift and to meet the purposes and objects envisaged by its constitution.. In the reply/comments/objections submitted by the respondents, these facts have not been denied. Rather, it has only been stated that there are 5,6 associations claiming to control the medical community and it is not known which association is genuine. However, the particular stance adopted by the appellant has not been disputed. Government admittedly has not taken any step to disband the Association for any alleged activity contrary to law or has taken any step to get its registration cancelled. In other words, it has allowed the Tribunal to assume\safely, that the Pakistan Medical Association came into existence as a body responsible to look after the interests of the medical community and the same is alive up to date. The Memorandum and Articles of Association of the P.M.A. Is to promote the medical and allied sciences. Article 4-B provides to maintain the honour and dignity of the medical profession and privileges of all the members of the Association to develop the spirit amongst the members for doing their duty, medical, ethical, social and civil in all aspects of the national and individual life. In order to achieve these aims the methodology is provided in Article 5(h) which provides to consider and express its views on all the laws promulgated in Pakistan in connection with medical profession, medical practice or medical education and to keep a keen eye over the proposed legislation in Pakistan which concerns public health, medical profession of medical education and take such steps and adopt such measures from time to time as may be deemed expedient. Upon the promulgation of the Ordinance unrest developed in the medical community particularly those doctors who were serving in the Government controlled, hospitals as civil servants regarding their future but also about the medical facilities to be made available to the patients especially those who belong to the lower income group or totally destitute. A campaign for the amellioration of the lot of the doctors and patients, was put in operation soon after the promulgation of the Ordinance. The record is absolutely silent whether Government took any steps to bring the doctors to the negotiation table for adopting conciliatory measures in chalking out an acceptable solution to both the Government as well as to the medical' community.
Even if the respondents did approach the doctors resulting in the holding of the parieys, the subsequent events prove no fruitful results acceptable to both sides. A deadlock, it can be assumed safely, came into existence, which brought the doctors' ultimately on the roads on 4-10- 2002. In this scenario. What we have to this whether the assembly, the speeches made or the hunger strike observed on 23-9-2002 posed any danger to public peace and tranquility, life and property whether of an individual or belonging to public was endangered or public order was threatened if none of these dangerous eventuality which, could create law and order situation was in existence, could not the assembly and the making of speeches or observance of hunger strike be termed as peaceful merely to protest against the polices of the Government and to give the message to the higher authorities about the discontent prevalent in the doctors community. The answer, to the last question is in the affirmative on the basis of the evidence which has come on record and which has been discussed in detail. The next question to resolve is whether the Pakistan Medical Association, having come into existence legally and continuing" its manifesto with full zeal could or could not be protected and guaranteed the. Rights of assembly ' and speech on 23-9- 2002 and 4-10-2002. Articles 16 and 19 fully guarantee these rights. The reasonable restriction to the extent of availing these fundamental rights is available within the parameters set by the two articles itself. Article 16 dealing with the freedom of assembly gives right to every citizen to assemble peacefully, without arms in the interest of public order. Mr. Zulfiqar Ali Butt, S.H.O. Old Anarkali, Lahore, has not said a single word that any single individual in the assembly was armed with any weapon which could endanger human life. The word public order although not defined in any statute, but as a result of profuse growth of case-law refers to the maintenance of conditions which are necessary for the orderly functioning of Government ensuring peace and order to be maintained and lives and properties of the people are protected. Similarly, Article 19 guarantees freedom of speech to every citizen subject to any reasonable restriction imposed by law in the interest of the glory of the Islam or the integrity, security or defence of Pakistan, relations with foreign states, public order, decency or morality or incitement to an offence. The parameters relevant, to the said Article under discussion would be public order, decency or morality or incitement to an offence. Nothing has come in evidence that the appellant or any one member of the assembly present at the time of the delivery of speeches endangered public order or created conditions contrary to decency or morality or any one particular individual including the appellant caused incitement to anyone to commit an offence. In other words the assembly at the time of speeches delivered was absolutely peaceful. Similarly, on 23-9-2002, although there is no evidence on record to say that the hunger strike observed, created any law and order situation, it can be safely assumed that the parties to the hunger strike were to convey the message to the persons in authority, that the community of doctors employed as civil servant in Government controlled hospitals were uneasy about the promulgation of the Ordinance, injuriously affecting their rights.
The right of free assembly is a sacred, human liberty which is the corner stone and essence of democracy. These rights have to be liberally construed unless and until restrictions are placed on rational grounds relating to the public welfare. These safeguards, as observed, are provided within the parameters of the fundamental rights embodied in Articles 16 and 19 itself. The right of speech embraces every forum and manner of dissemination of ideas that appear best fitted to bring such ideas and views to the attention of the populace and to the attention of those most concerned with them. The only legal embargo placed upon the assembly. Is to reverse whether by word spoken or written or by signs or by visible representation, any attempt to bring into hatred or contempt or to excite disaffection towards the Government. But certainly speech or comments expressing disapprobation of the measures and administrative or any other action of the Government, with a view to obtain its attention by lawful means without exciting hatred contempt or disaffection does not constitute, by any standard an offence or against the Government rather can be construed as bona fide criticism which is the hall mark of a democratic set up.
10. Drifting to the argument of the learned District Attorney that the assembly of the doctors who were civil servants including the appellant and the making of the speeches was in direct conflict with the rule 25-B of the conduct rules and the refuge and protection taken behind the fundamental rights would be of no use as it crossed reasonable restriction, is an arguments attractive on first sight but on careful exegesis its hollowness is firmly exposed. Fundamental rights are so fundamental that it cannot be abridged, smothered or restricted in its operation by any subordinate legislation. Rule 25-B which was incorporated in Conduct Rules of 1966 on 31-8-1985 has its own history. Those were the days where political agitation was going on for the restoration of democracy and it was felt essential to exclude the civil servants from any political activity. In any case. Dwelling on this issue any further shall be insignificant, suffice it to say that rule quoted cannot create any dent in the .Fundamental rights which has been raised by the appellant in her defence. First Articles 16, 17 and 19 begin with the word "every citizen" which does not exclude from its purview civil servants. Secondly, the embargo of reasonable restriction placed upon the right's of every citizen itself is mentioned in the Articles. The dynamics and the parameters of reasonable restriction in these 'Articles itself builds the boundary walls, outside which the protection to the citizen ceases.
11. Having made the playing ground level, it has to be seen, as to what would be the legal outcome of the case-law, particularly on the subject that when fundamental rights, guaranteed under the Constitution are in conflict with the subordinate legislature.
12. The Hon'blc Supreme Court of Pakistan, in its recent judgment in the case of Government of N.- W.F.P. Through the Chief Secretary and another v. Dr. Hussain Ahmad Haroon and others, reported in 2003 SCMR 104 held as under. "Article 17 of the Constitution of Islamic Republic of Pakistan, 1973 gives the respondents a right to form association in accordance with law. They have got an inalienable right to be treated in accordance with law. The dignity of the persons and profession is protected by law. They were having certain demands as already stated because they were apprehending their career to be at stake. The Authority as reflected from the documents instead of adopting amicable/cordial methods put majority of the doctors behind the bars and got them in incarceration for about three weeks. This attitude of the. Authority is certainly violative of Article 14 of the Constitution which upholds the dignity of man as his inviolable right". The facts of the case were in brief that doctors who were serving in the Government controlled hospitals made representations against the appointment of a non-doctor as Health Secretary. The representation having failed de doctors took to streets by raising protest for the non-acceptance of Cieir demands. They were dismissed from service by the Secretary Health, Government of the N.-W.F.P.
However; the Service Tribunal through a consolidated judgment reinstated the respondents in service with back-benefits. Government filed the appeal in the Supreme Court which led to the dictum under the discussion, laying down the law.
13. The second case which takes into consideration in similar situation is that of Intisar Shamim Ahmad and another v. Secretary; Labour and Manpower, Government of Punjab. Lahore and two others, reported in 1997 PLC (C.S.) 860. This judgment pronounced by the, learned Single Judge of the Lahore High Court deals with the rights of the civil servant to form an association under Article 17 of the Constitution of Islamic Republic of Pakistan, 1973. The facts, briefly stated, were that the instructional staff of the Directorate of Manpower and Training, Punjab, formed an association known as "Punjab Association of Instructors" on 4-1-1991. However, their request for getting the association registered was turned down by. The Secretary,, Labour and Manpower on 16-2-1992, triggering filing of Writ Petition by the petitioner Intisar Shamim Ahmad and another bringing into challenge the order dated 16-2-1992 and 17-3-1992 of the Director Manpower and Training, Punjab for a prayer that it should be declared void, without lawful authority and a direction be issued to the respondents to grant recognition of Punjab Association of Instructors, Lahore. The stand of the department was that the departmental instructions contained in Government circular dated 24- 10-1974 forbidding the form of 'association of employees of more than one functionary unit was violative of the fundamental rights to form Association under Article 17 of the Constitution. The Hon'ble Judge in para 9 declared the departmental instructions contained in Government circular dated 24-10-1974 to be ultra vires of Article 17 of the Constitution. It would be worth-while to reproduce the three paragraphs for the correct understanding of the issue in question:
(9) The right to form Association given by the Constitution is supreme and any inconsistency existing in any subordinate legislation including any .Act/Rules/Government Circulars will be void.
Provisions of such an inconsistent law will have to yield to the freedom of Association guaranteed under the Constitution. The freedom of association under Article 17 is absolute, subject to the condition that restrictions can be imposed by law only in the interest of sovereignty or integrity of Pakistan, Public order or morality. These are the only four considerations on which right of citizen to form association can be abridged but where formation of an association has no nexus with any of these grounds, then right to form an association has to be recognized.
(10) The question whether persons in the service of Pakistan, like the petitioners in the present case, have the right to form an association can be resolved by having guidance from the language of clause (2) of Article 17. It says that "every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party subject to any reasonable restrictions imposed by the law": It may be seen that the right to form or be a member of a political party has been granted to every citizen except those who are in the service of Pakistan. But clause (1) dealing with the right to form associations or unions has been allowed to every citizen irrespective of the fact whether he is in the service of Pakistan or not. If the right to form associations was intended to be denied to the persons in the Service of Pakistan, then exception could be provided in clause (1) of Article 17 as well. The very fact that exception such as for persons in the service of Pakistan has not been provided in clause (1) of Article 17 goes to show' that every citizen including civil servants have the right to form associations or unions. The right of forming an association or union as guaranteed by clause (1) ibid can be restricted only on four grounds, namely, that its formation will not be in the interest of sovereignty or integrity of Pakistan, Public order or morality. Except for these specified considerations, right to form associations by persons in the Service of Pakistan cannot be restricted in any way whatsoever.
(11) Rule 28 of the Government. Servants (Conduct) Rules, 1964 reproduced above shall have to be read subject to the provisiont of Article 17 of the Constitution. The provisions of this rule cannot be invoked to restrain civil servants from forming associations for more than one functional unit".
14. The case-law of the Indian Supreme Court reported in the case of Kameshwar Prasad and another v. The State of Bihar and another, reported in A.I.R. 1962 Supreme Court 1166 is also pertinent to the issue under discussion. The High Court of Patna circumscribed the right of the appellant in the exercise of his fundamental right of speech guaranteed under Article 19(1)(a) and (b) of the Constitution of India, to be subject to rule 4-A of the Government Servants Conduct Rules.
1966. Rule 4-A of the Conduct Rules, 1966 read as under:-- "No Government servant shall participate in any demonstration or resort to any form of strike in connection with any matter pertaining to his conditions of service". Article 19(1)(a) and (b) of the Constitution of India is more or less analogous to Article 19 of the Constitution of Islamic Republic of Pakistan, 1973. The Judges of the Indian Supreme Court allowed the appeal in part and granted the appellant a declaration that rule 4-A in the form in which it now stands prohibiting "any form of demonstration" is violative of the appellant's rights under Article 19(1)(a) and (b) and should therefore be struck down. It further held that the rule, insofar as it prohibits a strike, cannot be struck down since there is no fundamental right to resort to a strike. It may be mentioned at this juncture that the word strike used in the quoted judgment referred to a physical strike bringing the activity of the Patna Secretariat Ministerial Officers to a complete stand still. Strike referred to in the present judgment observed by the appellant and others was a hunger, strike, therefore, it has no nexus with the physical strike referred to in the judgment of the Indian Supreme Court. Similarly, another judgment of the. Indian Supreme Court in the case of O.K. Ghosh and another v. E. X. Joseph, reported in A.I.R. 1963 Supreme Court 812 also struck down rule 4-A of the Central Civil Services (Conduct) Rules, 1955 prohibiting of demonstrations to be violative of the Government servants rights given to them under Article 19 (1)(a) and (b) of the Indian Constitution and as such were struck down".
14. The discussion of the case-law cited would go a long way to show that the impugned order prohibiting the appellants from public demonstration against the policy of the Government in assembling and making speeches are' not in accord with the fundamental rights enshrined in Articles 16, 17 and 19 of the Constitution of Islamic Republic of Pakistan, 1973.
15. The upshot of the discussion, therefore, leads me to the conclusion that the appeal has to be accepted. I, therefore, accept the appeal, set, aside the order dated 28-11-2002, whereby penalty of dismissal from service with immediate effect as imposed upon the 0 appellant under the Punjab Removal from Service (Special Powers) Ordinance, 2000. The appellant shall be reinstated in service. However, the intervening period between her dismissal and reinstatement shall be treated as leave of the kind due.