2003 PLP (C (PLC(CS))

5. I have given some thought to the respective contentions of the learned counsel and the learned Law Officer. The admitted factual background is that on 5‑6‑1999 the Governor of Punjab promulgated "The Punjab Technical Education and Vocational Training Authority Ordinance, 1999 (XXIV of 1999)". This Ordinance was laid before .the Provincial Assembly but apparently could not be processed. Thereafter, on 4‑9‑1999 the Governor promulgated the Punjab Technical Education and Vocational Training Authority Ordinance, 1999 (XLV of 1999). Article 128 of the Constitution reads as follows:‑ "128. "Power of Governor to promulgate Ordinance. ‑‑‑(1) The Governor tray, except when the Provincial Assembly is in sessions, if satisfied that circumstances exist which render it necessary to take immediate action, make and promulgate an Ordinance as the circumstances may require. (2) An Ordinance promulgated under this Article shall have the same force and effect as an Act of the Provincial Assembly and shall be subject to like restrictions as the power of the Provincial Assembly to make laws, but every such Ordinance:‑‑ (a) shall be laid before the Provincial Assembly and shall stand repealed at the expiration "of three months from its promulgation or, if before the expiration of that period a resolution disapproving it is passed by the Assembly, upon the passing of that resolution; and (b) may be withdrawn at any time by the Governor. (3) Without prejudice to the provisions of clause (2) an Ordinance laid before the Provincial Assembly shall be deemed to be a Bill introduced in the Provincial Assembly. It will be seen upon a plain reading of the said Article 128 that the Governor has power to promulgate Ordinance, upon his satisfaction that circumstances exists which render it necessary to take immediate action, only when the Provincial Assembly is not in session. It is an admitted position on record that on both the occasions i.e. on 5‑6‑1999 and 4‑9‑1999 the Provincial Assembly was not in session. Further requirement is that every such Ordinance shall be laid before the Provincial Assembly. Another aspect of the matter is that such an Ordinance shall stand repealed on the expiration of 3 months of its promulgation or if before the expiration of that period a resolution disapproving it has been passed by the Assembly, upon the passing of that resolution. The Governor has further been empowered to withdraw such an Ordinance at any time.

6. Now the admitted position is that the said first Ordinance i.e. XXIV of 1999 was laid before the Provincial Assembly and no resolution disapproving it was passed by the Assembly. Now coming to the said case of Collector of Customs, Karachi v. M/s New Electronics, the minority opinion delivered by Mr. Justice Saleem Akhtar (as his Lordship then was), does support the contention of the learned counsel for the petitioner as would be evident from the reading of para. 11 of opinion of his Lordship appearing at page 411 of the report. However the 3rd Hon'ble Judge agreed with the opinion of Mr. Justice Ajmal Mian (as his Lordship then was). I may here reproduce the following extracts from the said opinion:‑‑ "However, it will suffice to observe that the underlined ideas/philosophy seems to be that the legislative power vests in an Assembly, which power cannot be usurped by the head of the State or a Province while the Assembly exists. The above reason will not hold good if an Assembly stands dissolved and for a justifiable reason, it has not been re‑constituted within the period specified in the relevant Article of the Constitution. I am inclined to hold that if the National Assembly does not stand dissolved, the President cannot usurp the legislative powers of the National Assembly by repeating the same Ordinance without submitting it in terms of Article 89 of the Constitution to the National Assembly, Kaikaus, J. though has given weighty reasons in the case of Tirathmal (supra) for taking a contrary view, but in my humble view, it runs counter to the spirit/scheme of the Constitution as pointed out by me in the case of Government of Punjab through Secretary Home Department v. Zia Ullah Khan and 2 others (supra). But if the National Assembly : stands dissolved, and its elections could not take place within the stipulated period of 90 days as provided in clause (5) of Article 48 of the Constitution for a reason not attributed to the President and such delay is found by the competent Court justifiable the President will be competent to re‑enact an Ordinance. Shafiur Rehman, J., in his above quoted opinion has rightly pointed out that there cannot be a legislative vacuum in the interregnum between the date of dissolution and the re‑constitution of the Assembly. A State cannot be run if for certain period there is no legislative power vested in any authority to legislate on a particular subject. The observations of Shafiur Rahman, J. in the above quoted portion of his opinion, the present impasse the power under Article 82(2) and Article 128 (is capable of being invoked once so as not to exceed in .all the period of four months Article 89(2)(a) and three months under Article 128(2)(a) are to be viewed in the context of the facts of the above case i.e. the elections were to be held on 16‑11‑1988 and 19‑11‑1988 and the above opinion was rendered on 24‑10‑1988 and, therefore, by the time new Assemblies would have been re‑constituted, the Ordinance could have been placed before the National and the Provincial Assemblies within a period of four months and three months as provided for under Articles 89 and 128(2)(a) of the Constitution respectively. The above observations do not lay down that in no case, there can be a second Ordinance."

7. In the said case of Riaz Ahmad, being relied upon by the learned counsel for the respondents Nos.6 and 7, said judgment in the case of M/s New Electronics (Pvt.) Ltd. came up for consideration before a Bench of the Hon'ble Supreme Court of Pakistan comprising 5 Hon'ble Judges. The said view expressed by Mr. Justice Ajmal Mian was affirmed. I may note here that in the said case of Riaz Ahmad the impugned Ordinances were laid before the Assembly but could not be approved while at the same time the Legislature did not disapproved the legislation. It was thus observed in para. 15 of the leading opinion by Mr. Justice Khalilur Rehman Khan appearing at page 1742 of the report:‑‑ "

15. The instant case stands on much strong footing as every Ordinance promulgated from time to time was laid before the Houses, thus, the mandate and scheme of the Article of not allowing the Executive to usurp the power and function of the Legislature was duly complied with but both the Houses took time rather years to make up its mind to approve the law. Either of the House did not disapprove the legislation. In this situation, the vacuum had to be filled and provided for to prevent chaos and disruption of administration of criminal justice. There was no other mechanism to till the vacuum provided for by the Constitution. The President had to act and as matter of State necessity to provide for the legal cover and bringing to book the villators of rights of citizens in person, body and property. The criteria laid down and condition necessary for re enactment of the Ordinance as noted in the abovenoted precedent existed, as such in our view the Ordinance XXX of 1991 promulgated on 28‑8‑1991 validly held the field and was operative in law and the appellant was rightly tried for the offence of murder as defined and made punishable under the said Ordinance."

8. Having thus examined the said judgments in the admitted factual background, I do hold that the said second Ordinance (XLV of 1999) was promulgated lawfully by the Governor of the Province as the said first Ordinance had in fact been placed before Provincial Assembly in the manner prescribed in Article

128. The Assembly could not or did not consider the matter and the said time expired. In view of the said dictum of the Hon'ble Supreme Court the Governor could have acted to fill up the vacuum by promulgating the said 2nd Ordinance which is now holding field because of the Article 5A of the Provisional Constitution Order No. 1 of 1999.

9. Now coming to the said grievance being made by the petitioners. I find that the apprehensions being expressed by the learned counsel on behalf of his clients are rather misplaced. Under section 10(2) of the said Ordinance the services of the existing employees of the or Offices taken over by the Authority shall be transferred to the Authority (The Technical Education and Vocational Training Authority of the Punjab established under section 2 of the said Ordinance) on terms and conditions which shall not be less favourable than those admissible to them immediate before their transfer to the Authority. Subsection (3) of the said section 10 provides that such employees shall continue to be the employees of the Government liable to be transferred back to the Government by the Authority unless absorbed in the service of the Authority in such manner as may be prescribed.

10. In exercise of powers under section 13 of the said Ordinance, Rules have been promulgated. Rule 7 which deals with the funds of the Authority lays down that the salary of the civil servants shall‑be disbursed through the Accountant‑General, Punjab/District Accounts Officers. The deductions on account of G.P. Fund etc. and service records of the civil servants shall be continued to be managed by the said officers as before. Rule 9 provides that except for the deputation allowance/pay the Government employees transferred to the said Authority as are considered on deputation will be governed by all the relevant rules of the Punjab Government in the matter of their service.

11. To my mind the said provisions in the Ordinance and the Rules framed thereunder sufficiently protect the services of the petitioners and the other employees so transferred to the said Authority. Needless to state that absorption is inter alia, subject to the consent of the employees.

12. Learned counsel for the petitioners then contended that the Authority has started transferring .the said employees from one place to another with the conditions that the salaries will be collected from the original place of posting. The respondents shall of course consider the said grievance of the petitioners and take remedial measures immediately. With H the above observations the writ petition is dismissed leaving the parties to bear their own costs. H.B.T./M‑1365/L Petition dismissed.