P L D 1976 Lahore 769 (PLP)

This is a writ petition by the Pakistan Barbers' Association, challenging . a notification issued by the Government of the Punjab applying the provisions of sections 6 and 7 of the West Pakistan Shops and Establishments Ordinance, 1969 to barbers' and hairdressers' shops situated in the municipal limits of certain named districts of the Punjab.

2. Under the Shops and Establishments Ordinance, 1969, every shop must remain entirely closed for at least one day in each week (vide section 6) and the opening and closing hours of the establishments can be fixed under section

7. However, under the provisions of section 5 (2) (vii), the provisions of the Shops and Establishments Ordinance, 1969 are not applicable to barbers' and hairdressers' shops, so far as service to customers is concerned. However, by virtue of subsection (4) of section 5 of the Ordinance, the Government may, by notification in the official Gazette, direct that any of the establishments shall not be exempted from the operation of such provisions of the Ordinance as are specified in such notification, and, thereupon, the provisions of this Ordinance, specified in such notification, :shall apply to such an establishment. In exercise of the powers conferred by subsection (4) of section 5 and section 4 Notification No. 19‑22 (LIV)/70 ..dated 15‑9‑1973, as substituted by the notification bearing the same number ,sand date. published in the Punjab Gazette, Extraordinary issue, dated ,15‑1‑1974, it was directed that :‑ "(a) Barbers' and Hairdressers' Establishments except those where no workman is employed and the business is carried on either by the owner or his real son or daughter. located within the municipal limits of Lahore, Multan, Rawalpindi. Islamabad, Lyallpur, Sargodha, Bahawalpur, Gujranwala and Sialkot shall not be exempted from the provisions of clause (a) of subsection (1) of section 6 and section 7 of the W. P. Shops and Establishments Ordinance, 1969; and (b) barbers' and hairdressers' shops referred to above shall be exempted from the operation of subsection (4) of section 6 of the said Ordinance but in lieu thereof the shops shall be kept closed either .on Monday or on Thursday in every week." The result of the above notification was that the shops of barbers and hairdressers located within the municipal limits of Lahore, Multan, Rawalpindi, Islamabad, Lyallpur, Sargodha, Bahawalpur, Gujranwala .and Sialkot had to remain entirely closed for at least one day in each week either on Monday or on Thursday and the restriction that they must open and close at particular hours was imposed. By this writ petition, the validity of the aforementioned notification is challenged mainly on the ground that the notification is arbitrary and not based on any reasonable classifica tion inasmuch as barbers' and hairdressers' shops in certain important district like Sahiwal and Gujrat have been exempted from the provisions of the Ordinance whereas comparatively smaller towns such as Sialkot are not exempted from its provisions.

3. In support of his arguments learned counsel for the petitioner has relied upon the provisions of Article 25 of the Constitution which lays down ‑that "all citizens are equal before law and are entitled to equal protection of law" and it is suggested that by selecting certain localities for the enforce ment of the provisions of sections 6 and 7 of the Shops and Establishments Ordinance and omitting other localities from its operation the Government :has practised discrimination which offends against the equality clause of the Constitution.

4. Dealing with the nature and scope of prohibition laid down by Article 25 of the Constitution of 1973, the following discussion of the Subject is made in the commentary of the Constitution of the Islamic Republic of Pakistan (1973) by Muhammad Munir, at page 190, and is reproduced thereunder "The constitutional prohibition of denial of equal protection of the laws applies to legislative, judicial or administrative action by the State. While legislation may be adjusted to differences in things or situations, it may not make any arbitrary or unreasonable distinction or discrimi nation; but must accord substantially equal and uniform treatment to all persons similarly situated." Under the heading "Discrimination as to localities", the following observa tions are made :‑ "Legislation limited in its operation to a portion of the State or, pres cribing different rules for distinct areas is not invalid as denying the equal protection of the laws to individuals, where there is a reasonable basis for the limitation or differentiation and all persons similarly situated in the same place are treated alike." Thus, the provisions of subsection (4) of section 5 authorising the Govern ment by notification in the official Gazette to direct that any of the establish ments or persons specified in subsections (1) and (2) of section 5 shall not be exempted from the operation of such provisions of the Ordinance, as are specified in such notification, cannot be held to be per se discriminatory and to fall within the mischief of Article 25 of the Constitution. It is only if it ,can be shown that the classification or discrimination of the locality selected for application of the provisions of the Ordinance has been done arbit rarily and not reasonably that the impugned notification dated 15‑9‑1973 may be struck down as invalid.

5. The law is well established and if the provisions of an Ordinance &re administered in an arbitrary, oppressive, partial or unjust manner, the action taken under the said provisions can be declared as unlawful (See East' and West Sreamship Co. v. Pakistan) (PD 1958 S C (Pak.) 41). The question, therefore, is whether the impugned notification dated 15‑9‑1973 is arbitrary, unjust and unreasonable ?

6. A close perusal of the impugned notification shows that the: provisions of sections Ex and 7 of the Ordinance have been enforced, by means of the said notification to shops of barbers and hairdressers; (i) situate in big and populous towns, and (ii) only to those shops where no workman is employed and the business. is carried on either by the owner or his real son or daughter. Thus, if the criterion for applying sections 6 and 7 of the Ordinance was to do so to shops situate in big and populous towns, it will be seen that whereas big and populous towns such as Sahiwal and Gujrat have been exempted from the provisions of the Ordinance, lesser populous towns such as Sialkot and Islamabad have not been exempted. If the intention was to allow rest and recreation to persons working in barbers' and hairdressers' shops in the Province, the action taken reveals that the workmen. employed in such shops in only a few towns have been allowed this facility,. while workmen in other towns as well as barber shop‑owners and their children throughout the Province have been denied rest and recreation. No reasonable basis appears for classifying workmen working in hairdressers' and barbers' shops to bigger towns as meriting rest and recreation and not the workmen In such shops in other parts of the Province, who have for reasons not disclosed been considered fit to be denied this facility.

7. The learned counsel appearing for the respondents attempted to argue that the decision was not arbitrary but has been taken on the basis of representations received from barbers and hairdressers from various towns. On perusal of the original record it appears that forty‑two representations/` telegrams were received from persons in favour of fixing a closed day for barbers' shops. Most of these telegrams/representations are from Rawal pindi and Lahore, one or two from Sialkot, one from Lyallpur, one from Jhelum (which has not been included), one from Okara. District Sahiwal (also not included), and one from Muzaffargarh (also not included). Inciden tally, no representation has been received from Multan, Gujranwala and Baha walpur. In this state of the record it is not known on what basis these last mentioned towns have been included for the application of the provisions of the Shops and Establishments Ordinance.

8. The foregoing discussion shows that no reasonable basis has been shown to exist for including the areas actually chosen for the enforcement of the provisions of sections 6 and 7 of the Shops and Establishment Ordinance and for excluding other areas from its application. As the restrictive provisions of the law have been applied in an arbitrary, unreason able and discriminatory manner, the impugned notification dated 15‑9‑197 cannot be sustained. It is hereby declared to be unlawful and to have been issued without lawful authority.

9. The result is that this writ petition succeeds, but since an intricate. point of law was involved there shall be no order as to costs. s. Q. Petition accepted‑