2021 PLP (C (PLC(CS)N)
SHAHZAD AHMED TABASSUM, CHAIRMAN PAKISTAN METEOROLOGICAL EMPLOYEES ASSOCIATION and 20 others Versus FEDERATION OF PAKISTAN through Secretary Establishment Division, Islamabad and 2 others
| Citation | 2021 PLP (C (PLC(CS)N) |
| Forum / Court | Islamabad High Court |
| Bench Members | Mohsin Akhtar Kayani, J |
| Parties | SHAHZAD AHMED TABASSUM, CHAIRMAN PAKISTAN METEOROLOGICAL EMPLOYEES ASSOCIATION and 20 others Versus FEDERATION OF PAKISTAN through Secretary Establishment Division, Islamabad and 2 others |
| Primary Law | (b) Constitution of Pakistan, Pakistan Essential Services (Maintenance) Act (LIII of 1952) |
Q1: What are the key laws and sections cited in 2021 PLP (C (PLC(CS)N)?
This judgment primarily cites: (b) Constitution of Pakistan, Pakistan Essential Services (Maintenance) Act (LIII of 1952) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2021 PLP (C (PLC(CS)N)?
The case was heard and decided by the Islamabad High Court bench comprising: Mohsin Akhtar Kayani, J.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2021 PLP (C (PLC(CS)N) (SHAHZAD AHMED TABASSUM, CHAIRMAN PAKISTAN METEOROLOGICAL EMPLOYEES ASSOCIATION and 20 others Versus FEDERATION OF PAKISTAN through Secretary Establishment Division, Islamabad and 2 others). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Ch. Muhammad Junaid Akhtar for Petitioner.
- Barrister Mumtaz Ali , A.A.G. for Respondent.
Headnotes / Summary
Ss.4, 5 & 7
Establishment Manual, 1992, Chap. XVIII
Employees of Pakistan Meteorological Department
Establishment of Service Association
Petitioners formed an Association and applied to the authority for recognition of the same but their request was declined
Freedom of association was a fundamental right given to the every citizen of Pakistan and they could not be deprived from the same with reasonable restriction imposed by the law
Any person who was guilty of non-service or non-compliance of direction of Federal Government whose service had been notified under Pakistan Essential Services (Maintenance) Act, 1952, would be liable for penalty under the said Act
Authorities had no discretion to regret the application for recognition of Association unless Association or its members were guilty of having associated or connected with any political party or engaged in any subversive activity detrimental to the interest of State
Impugned orders being contrary to the Constitution were set aside, in circumstances
Authorities were directed to recognize the Association in terms of Establishment Mannual, 1992, however, Government could place restrictions upon the association for using any social media and Facebook for any kind of activities considered as subversive or against the sovereignty and integrity of Pakistan
Constitutional petition was allowed, in circumstances. Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416; 1999 SCMR 2918; Abdul Qayyum v. Chairman CDA 2015 PLC (C.S.) 617 and Mrs. Anjum Irfan v. Lahore Development Authority PLD 2002 Lah. 555 ref. Union of Civil Aviation Employees v. Civil Aviation Authority PLD 1993 Lah. 306 and Civil Aviation Authority v. Union of Civil Aviation Employees PLD 1997 SC 781 rel.
Art.4
Every citizen had right to be dealt with in accordance with law
No action detrimental to the life, liberty, body, reputation or property of any person should be taken except in accordance with law
No person shouuld be prevented from or be hindered in doing that which was not prohibited by law and no person should be compelled to do that which the law did not require him to do. Mahmood Khan Lakho, Section Officer (Lit-v), Establishment Division. Tariq Nadeem, Deputy Chief Administrative Officer, Pakistan Meteorological Department, Islamabad.
Judgment & Decree
MOHSIN AKHTAR KAYANI, J.
Through this writ petition, the petitioners have assailed the orders dated 17.05.2018 and 23.05.2018 issued by Cabinet Secretariat Government of Pakistan and Memorandum dated 27.03.2017, issued by Cabinet Secretariat (Aviation Division) Pakistan Meteorological Department Headquarters Office, Islamabad.
2. Brief facts of the case of the petitioners are that the petitioners are employees of Pakistan Meteorological Department (PMD)/respondent No.3 and are performing their duties at different stations of Pakistan, who have formed "Pakistan Meteorological Employees Association" (PMEA) through their resolution vide notification dated 31.01.2017 and have also made the constitution of said association. The petitioners after creation of their association and notification of their executive body applied to the respondents authority for their recognition whereupon they have passed the impugned memorandum dated 27.03.2017, in which Chief Administrator Officer of PMD has taken serious note against the petitioners while treating their act as misconduct in terms of Pakistan Essential Service (Maintenance) Act, 1952. The petitioners have filed Writ Petition No.3316/2017 before the Lahore High Court, Bahawalpur Bench, wherein High Court vide its order dated 25.10.2017 converted the petition into representation and sent the same to the Secretary Establishment Division for their decision. The Establishment Division after hearing the petitioners on 23.01.2018 has not decided the matter which further forced and compelled the petitioners to file another Writ Petition No.2059/2018 before the Islamabad High Court, which was decided on 24.05.2018 with direction to respondent No.1 to decide the pending representation within a period of three months, as a result whereof the impugned order dated 23.05.2018 was issued and request of the petitioners has been turned down and their association has not been recognized. Hence, this writ petition.
3. Learned counsel for the petitioners contends that Article 4 read with Article 17 of the Constitution of Islamic Republic of Pakistan, 1973 permits the petitioners to be given equal protection of law and freedom of association, which have been violated; that Establishment Division vide their notification dated 30.08.1948 granted permission to recognize different association of employees and as such a list of recognized association of Central Government Employees dated 02.02.1965 was also placed on record comprising of 93 associations of different Civil Servant Departments; that as per Establishment Manual Chapter XVIII of Section A concept of service association has fully been recognized but respondents authorities without adverting to basic fundamental right denied the same and in this regard petitioners have relied upon PLD 1993 Lahore 306 (Union of Civil Aviation Employees v. Civil Aviation Authority), PLD 1997 SC 781 (Civil Aviation Authority v. Union of Civil Aviation Employees), PLD 1988 SC 416 (Miss Benazir Bhutto v. Federation of Pakistan and another), 1999 SCMR 2918, 2015 PLC (C.S.) 617 (Abdul Qayyum v. Chairman CDA), PLD 2002 Lahore 555 (Mrs. Anjum Irfan v. Lahore Development Authority).
4. Conversely, learned AAG contends that PMD is providing meteorological services to Civil/Military aviation, Navy and other important sectors like atomic energy, agriculture and early warning for natural disasters; that the controlling Ministry of Pakistan Meteorological Department has adopted the Pakistan Essential Service (Maintenance) Act, 1952 and as such does not permit to formulate any kind of association; that Federal Government has taken a specific stance and declared the service of PMD as essential service and petitioners are not permitted to hide behind the concept of association in order to achieve any indirect benefit; that if association has been formulated it might affect the working of civil servants.
5. Arguments heard, record perused.
6. From the perusal of record, it has been observed that the petitioners are civil servants, who are working in PMD and performing their duties at different stations in Pakistan, however, the petitioners have created Pakistan Meteorological Employees Association (PMEA) and as such claim that in terms of Article 4 read with Article 17 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioners have every right to formulate the association and even Chapter XVIII of Establishment Manual consists of instructions regulating procedure and conditions for recognition of associations of Federal Government Employees (other than industrial employees) and 93 recognized associations of Central Government employees including the association of employees of GHQ was recognized. In order to reach at just conclusion of the case Article 17 of the Constitution of Islamic Republic Pakistan, 1973 is reproduced as under:- Freedom of association
1. Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality.
2. 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 law in the interest of the sovereignty or integrity of Pakistan and such law shall provide that where the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall, within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final.
3. Every political party shall account for the source of its funds in accordance with law.
7. Similarly, the Establishment Manual Volume-III, Chapter XVIII Service Association Section A provides instructions regulating procedure and conditions for recognition of associations of Federal Government Employees (other than industrial employees), wherein at S.No.1:- Sl. No.
1. The following instructions for the recognition of Associations of employees of the Central government other than Associations of industrial employees are published for general information:
1. Government is prepared to accord official recognition to Associations of its employees which comply with the conditions set out below.
2. Each such Association must consist of distinct class of Government employees. Explanation.
Class means either one of the classes into which the Government servants were broadly classified. i.e. Class I, Class II, Class III and Class IV or any Association of Government servants within one class whose special position may warrant the formation of a separate Association and which Government is prepared to recognise.
3. Every Government employee of the same class actually in service shall be eligible for membership of the Association representing that class and only members of that class actually in service shall be so eligible. 4. 5.
6. Recognition is granted for the purpose of enabling the employees of Government to communicate their representations through the officer designated by Government as the channel of communication and it may be withdrawn if any Association adopts other methods of putting forward representations, particularly by means of press publicity since rule 18 of the Government Servants (Conduct) Rules prohibits Government servants having relations with the Press except in certain cases.
7. Recognition will not be granted to an Association, and if already granted will be withdrawn, if the Association is connected with any political party or organization, or engages in any subversive activity, or indulges in criticism considered detrimental to the interests of the State.
8. Government may require the regular submission for its information of copies of the Rules of the Association and annual statement of its accounts and list of members. Sl. No. 2 Reference,
Establishment Division O.M. No.6/1/48-Ests(SE), dated the 18th September, 1948 (Annexure). It has now been decided that Ministries may themselves grant recognition to the Association of employees of Subordinate Offices in the light of the instructions contained in Establishment Division Notification No.6/1/48-Ests. (SE), dated the 30th August, 1948, without consulting the Establishment Division.
8. While considering the above referred manual of Establishment, I have also gone through the list of recognized association of Central Government Employees notified on 02.02.1965, which comprising of 93 associations, few are as under:- i. The ICS. (Pakistan) Association, Karachi. ii. The Civil Service of Pakistan Association, Karachi. iii. The Pakistan Foreign Service Association, Karachi. iv. The Pakistan Railway Accounts Officers' Association, Karachi. v. Pakistan Audit and Accounts Service Association, Karachi. vi. Class IV Servants' Association, Income Tax Department, Lahore. vii. Ministry of Defence and G.H.Q. Ministerial (Class III Clerks Association, Rawalpindi. viii. 502 Central Workshop Labour Union, Rawalpindi. ix. Pakistan Ordinance Factory Class II Gazetted Officers' Association, Wah Cantt. x. Central Government Stenotypists' Association, Karachi. xi. The Private Secretaries to Secretaries to the Government of Pakistan Association, Rawalpindi.
9. While considering the above background, I am of the view that freedom of association provided by the Article 17 of the Constitution of Islamic Republic of Pakistan, 1973 is a right given to the every citizen of Pakistan, who could not be deprived from this fundamental right, however, the language used by the legislature in Article 17 gives "a reasonable restriction imposed by law" in the interest of sovereignty or integrity of Pakistan, such language refers the regulated activity and as such the basic case law in this regard is PLD 1993 Lahore 306 (Union of Civil Aviation Employees, Lahore and another v. Civil Aviation Authority, Islamabad), the relevant portion is as under:-
13. Article 17 of the Constitution enshrines in itself one of the most important fundamental rights guaranteed by the Constitution. Although freedom of association has always been given due weight and importance but it has assumed greater significance and proportion in modern times of political awareness and industrialization. Lord Denning in his book "Road to Justice"
14. The impact of this right on society can well be assessed by taking 'into account the role which voluntary associations are playing today. Robson in "Justice and Administration Law", 3rd Edition at page 317 states that:- "The association and co-operation of human beings in voluntary groups is one of the most important facts of social development. As life becomes more highly organized and complex, the groups formed by men and women associating freely for particular purposes increase in number, size, power and diversity. In England today, for example, if is impossible even to enumerate the countless thousands of voluntary associations which exist for one purpose or another... Taken in the aggregate, the voluntary associations, with membership rolls running into many millions and a huge accumulation of property, present a formidable array of power; and their activities extend into almost human activity-economic, professional religious, every field of, educational, political, scientific, athletic, artistic, social and one knows not what else."
15. The importance of this right can also be visualised from the fact that - has been given due recognition by the comity of nations in its different charters and declarations. Two important documents in this behalf are the Universal Declaration of Human Rights of 1948, Article 20 of which states that every one has the right to freedom of peacefull assembly and association; the other document being the, International Covenant on Civil and Political Rights, 1966, Article 22 of which is to the similar effect. It, has been said that right to form association is greatest bulwark against power in any form.
16. Article 17 of the Constitution assures and guarantees to all citizens a right to form not only an 'association' but also a 'union'. The two expressions, namely, 'association' and 'union' have by now acquired definite meanings. An association is generally understood to be a combination of persons for a common purpose for which it is established. It may be a combination of persons to further the cause of art, literature, religion, sports, politics, or academic interest. It may also be for caste and community interest. In Wills' Constitutional Law, it is stated that an association, according to Cole is "any group of persons pursuing a common purpose or system or the aggregation of purposes, or aggregation of purposes by a course of co-operatioe action, extending beyond a single act and for this purpose agreeing together upon certain methods of procedure and laying down in however rudimentary form, rules of common action. In Ballentine's Law Dictionary (Third Edition) at page 102 an Association is defined as a collection of Persons, who have joined together for a certain object which may be for the benefit of the members or F the improvement, welfare or advantage of public or some Scientific, charitable or similar purposes.
10. The above referred case law was also considered by the Apex Court in the Appellate jurisdiction in reported judgment PLD 1997 SC 781 (Civil Aviation Authority v. Union of Civil Aviation Employees), the relevant portion is as under:-
25. A perusal of the above-quoted extracts form the above treatises indicate that an unincorporated union can function and for certain purposes, it can be treated as a legal entity. Howeoer, it may be stated that since strictly speaking an unincorporated body is not a legal entity for all intents and purposes, it is doubtfid, whether it can enter into a binding contract on behalf of its members with its employer. On the other hand, a corporated registered union is a legal entity, and thus it can enter into a binding contract with an employer. Any change in the membership will not affect its legal status. Since there is no requirement under Article 17(1) of the Constitution that an association or a union is to be registered, strictly speaking, there can be a union without any registration but it cannot effectively function unless it is registered and a legal framework is provided within which it can operate as a collective bargaining agent for its members. The operation of a union is sine qua non for exercising the fundamental rights guaranteed under Article 17(1) of the Constitution.
26. Adverting to the facts of the cases in hand, it may be observed that it is an admitted position that the union was functioning in the establishment of the Authority prior to the enforcement of the Ordinance. The effect of the enactment of section 23 in the Ordinance as pointed out hereinabove is that the provisions of the I.R.O. are no longer applicable to the Authority and to its employees. The above exclusion of application of the provisions of I.R.O. is not violative of Article 17(1) of the Constitution as pointed out hereinabove. However, it does not follow from it that the registration of the Anion stood cancelled upon the enforcement of the Ordinance in the absence of any express provision. Whereas in the case of the Corporation, a number of unions were functioning and so also the Federations but section 3 of Ordinance (XV of 1978) provided that "Notwithstanding anything contained in the Industrial Relations Ordinance, 1969 (XXIII of 1969), the registration of, and the certificates of registration issued to) all registered Trade Unions in all establishments of the Pakistan Television Corporation and the Pakistan. Broadcasting Corporation shall stand cancelled." The purported effect of the above section is that the certificates of registration issued to all registered trade unions in the establishments inter alia of the Corporation stood cancelled. In our view, the aforesaid provision is violative of Article 17(1) of the Constitution as a right of a citizen to form a union and to operate it in accordance with law subject to reasonable restrictions is rendered nugatory and meaningless as without having a corporate status of a union, its members cannot effectively exercise the above fundamental right conferred on them under Article 17(1) of the Constitution.
27. We may at this stage point out that clause (1) of Article 17 of the Constitution makes the right of every citizen to form an association or a union subject to any reasonable restrictions imposed by law as pointed out hereinabove in the interest of-- (i) sovereignty; or (ii) integrity of Pakistan; or (iii) public order; or (iv) morality The question arises, as to whether the words "reasonable restrictions" imply total prohibition of the formation of an association or a union and their operation or do they mean the exercise of the above right subject to the conditions which may constitute reasonable restrictions for the aforesaid four purposes specification therein, namely, sovereignty, integrity of Pakistan, public order and morality. The words "restrict" and "restriction" have been defined in the following dictionaries as under:- (i) Black's Law Dictionary, Fifth Edition, page 1182: "Restrict". To restrain within bounds; to limit; to confine. See also Restraint." "Restriction". A limitation, often imposed in a deed or lease respecting the use to which the property may be put. See e.g. Restrictive convenant." (ii) Law Lexicon Cum Digest, Vol.II na eg 1313: 'Restrict': A person, though not prohibited, is restricted from using something, if he is permitted to use it to a certain extent or subject to certain conditions, but otherwise obliged not to use it:" 'Restriction': Partial prohibition. section 307(2-) Ind. Sue Act. Includes total prohibition: Gotiram v. Sonabai 1970 Bom..
73. Restrictions in public interest: See Public Interest." (iii). Legal Thesaurus by William C. Burton page 152: , "Restrict", verb astrict, bar, bind, bound bridle, cage, censor, chain, check, circumscribe, circumscriber, cloister, coerce, confine, constrain, control, coop, cramp, curb, debar, define, delimit, delimitate, demarcate, diminish, disallow, enchain, encumber, entrammel, exclude, fetter, forbid, frustrate, hamper, handcuff, handicap, hedge in, hem in, hobble, hold back, immure, inhibit, interdict, keep within limits, limit, localise, manacle, modify, muzzle, narrow, obstruct, pen, pin down, pinion, preclude, prevent, prohibit, prescribe, put under restraint, qualify, reduce, repress, restrain, restringe, secure, shackle, shut out, specialise, stifle, stop, suppress, taboo, tether, tie up, trammel, veto, wall in Associated Concepts: restricted allotment, restricted assets." "Restriction", noun angustiae, bonds, boundary, bounds, check, circumsription, condition, confinement, constraint, constriction, containment, curb, demarcation, distinction, finis, impediment, interdiction, limitation, modus, obligation, prohibition, qualification, regulation, reservation, restraint." Whereas "Words and Phrase", Vol. 37-A defines the above words inter alia as under:- "The primary meaning of the ward 'restria' is to limit. Cobt v. Burress, 209 S.W. 24 694, 697,213 Ark.
298. To 'restrict' is to restrain within bounds; to limit; to confine, and does not mean to destroy or prohibit Dart v. City of Gulport, 113 So. 441, 444, 147 Miss.
534. A perusal of the above quoted definitions of the words "restrict" and "restriction" indicates that the predominant meanings of the said words do not admit total prohibition. They connote the imposition of limitations or the bounds within which one can act. It is, therefore, evident that under clapse (1) of Article 17 of the Constitution, there cannot be total prohibition but the right can be regulated/restricted by law if any of the above four ingredients is present. In this behalf reference may be made to the judgment of this Court in the case of Jibendra Kishore Achharyya Chowdhury and 58 others v. The Province of East Pakistan and Secretary, Finance and Revenue (Revenue) Department, Government of East Pakistan (PLD 1957 SC (Pak.) 9), wherein this Court while considering the question of vires of certain provisions of the East Bengal State Acquisition and Tenancy Act, 1950, made the following observations with reference to Article 18 of the late Constitution of 1956 which are in line with the view we are inclined to take:-- Muhammad Munir, C.J. "There can be no doubt that these drastic provisions of the Act strike religious institutions at their very root, and the question is whether, that being the effect of the provisions, they constitute an infringement of the fundamental right guaranteed by Article 18 of the Constitution? In the High Court, Mr. Brohi's bold and categorical assertion that the rights referred to in Article 18 are 'Subject to law' and may, therefore, by taken away by the law, succeeded. That assertion has been repeated before us, but I have not the slightest hesitation in rejecting it. The very anception of a fundamental right is that it being a right guaranteed by the Constitution cannot be taken away by the law, and it is not only technically inartistic but a fraud on the citizens for the makers of a Constitution to say that a right is fundamental but that it may be taken away by the law."
11. While considering the above law and the constitutional provision, this Court is of the view that Government of Pakistan has issued the Establishment Manual Volume III, which is specifically meant to deal with such kind of issues, the relevant extract of service concept association has already been reproduced and at this stage Federal Government has not denied the concept of establishment of service association and Article 17 of the Constitution of Islamic Republic of Pakistan, 1973 provides the restrictions in order to restrict and regulate the service activity and as such 93 different associations have been notified by the Government of Pakistan in the official Gazette, therefore, only reasons left to deal with by this Court is the ground of application of Essential Service Act, 1952, whereby the controlling Ministry has regretted the establishment of service association only on the ground that as Pakistan Meteorological Department service fall under the essential service and in case of any emergency the employees could take measure of strike, which lead create hurdles in the smooth functioning of Government of Pakistan, although in my humble view such kind of reason is not justified especially when all the petitioners are civil servants and as such in case of any strike or placing any restriction in the smooth functioning of Pakistan or Federation of Pakistan, the petitioners will be held guilty of misconduct, which could be dealt with under Government Servant (Conduct) Rules, 1954 and Government Servant (E&D) Rules, 1973, therefore, while considering this aspect, I have also gone through the reasoning rendered by the Establishment Division in their final order dated 23.05.2018, which are based upon the following grounds taken by Deputy Chief Administrator Officer, Aviation in the impugned order:- iv. That, formation of Service Association in PMD, the comments of Law and Justice Division were sought and according to Law and Justice Division "it is pointed out that the employment in the Pakistan Metrological Department is the employment under the Federal Government and Pakistan Essential Service (Maintenance) Act, 1952 applies to every employment under the Federal Government". v. That they used to display offensive pictures/posts on Social Media and Facebook and found subversive activities, to defame the department. vi. That they not only use freedom of expression but also abuse it.
12. The above referred argument of the Establishment Division is not justified in the impugned order especially the concluded portion of the impugned order, which is as under:-
5. The Establishment Division being the custodian of Government Servant (Conduct) Rules, 1964, have to rely on its own rules/regulations/instructions framed for the purpose of controlling Ministries/Divisions. In the subject case the decision power to grant recognition to the association of employees of sub-ordinate offices had already been granted to concerned Ministries/ Divisions. The Controlling Ministry of the petitioner has already recommended this Division to reject the plea of the petitioner based on the justification provided by Aviation Division that PMD is providing Metrological Services to Civil/Military Aviation's and other important sectors like Atomic Energy, Agriculture and Early Warning for Natural Disaster. The contention of the controlling Ministry cannot be over-ruled as that Division had adopted Pakistan Essential Services (Maintenance) Act, 1952, to the extent of its employees for the said purpose which is duly endorsed by Ministry Law and Justice (Annex-V). Moreover, that Division is also in the process of including PMD into the ambit of Pakistan Essential Services (Maintenance) Act, 1952 and accordingly notification will be issued in consultation with Law and Justice Division.
13. While considering the entire background, Pakistan Essential Service (Maintenance) Act, 1952 although applies to every employment under the Federal Government to any class of employees, the said Act is meant for securing the defense or security of Pakistan or any part thereof and in this regard the Federal Government is empowered to notify any class of employment in terms of Section 4 of the Act but surprisingly Section 5 of the Act deals with the offence under the said law, which is as under:- 3 [
5. Offences._____(1)] Any person engaged in any employment or class of employment to which this Act applies who___ (a) disobeys any lawful order given in the course of such employment, or attempts to persuade any person to disobey any such order to, or (b) without reasonable excuse abandons such employment or absents himself from work 4 [or refuses to work or to continue to work, whether or not acting in combination with, or under a common understanding or, any other person engaged in such employment]; or (c) departs from any area specified in an order under subsection (1) of section 4 without the consent of the authority making that order, and any employer of a person engaged in an employment or class of employment declared under section 3 to be an employment or class of employment to which this Act applies, who without reasonable excuse_____ (i) discontinues the employment of such person, or (ii) by closing an establishment in which such person is engaged, causes the discontinuance of his employment, is guilty of an offence under this Act. Explanation 1._____The fact that a person apprehends that by continuing in his employment he will be exposed to increased physical danger is not a reasonable excuse within the meaning of clause (b). Explanation 2._______A person abandons his employment with in the meaning of clause (b) who, notwithstanding that it is an express or implied term of his contract of employment that he may terminate his employment on giving notice to his employer of his intention to do so, so terminates his employment without the previous consent of his employer. 1[(2) Whoever instigates or incites any person engaged in any employment or class of employment to which this Act applies to commit an offence under this Act, or knowingly expends or supplies any money or otherwise acts in furtherance of the commission of such an offence, shall be deemed to have committed that offence.]
14. Hence, considering the Essential Service Act, 1952 any person which is guilty of non-service or non-compliance of direction of the Federal Government whose service has been notified under the Act is considered to be guilty of offence provided in Section 5 and is liable for penalty and procedure provided in Section 7, which is as under:-
7. Penalties and procedure._____(1) Any person found guilty of an offence under this Act shall be punishable with imprisonment for a term which may extend to one year and shall also be liable to a fine. (2) Where the person accused of an offence under this Act is a Company or other body corporate, every director, manager, secretary or other officer thereof shall, unless he proves that the offence was committed without his knowledge or that he exercised due diligence to prevent the commission of the offence, be liable to the punishment provided for the offence. (3) No court shall take cognizance of any offence under this Act except upon complaint in writing made by a servant of any Government in Pakistan authorised in this behalf by the 2 [Federal] 3 [Government]]. (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (V of 1898), an offence under this Act shall be cognizable. (5) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (V of 1898),______ (a) no Magistrate other than a Magistrate of the first class the first class shall try an offence under this Act; and (b) a Magistrate trying an offence under this Act shall have power to try such offence summarily in accordance with the procedure laid down for summary trial in the said Code]
15. The above referred complete mechanism of violation of service further strengthen the Federal Government to take action against the offender of the Essential Service (Maintenance) Act, 1952 and they shall be punished with imprisonment, which may extend to one year or fine in addition to departmental action, even a summary trial has been provided for such kind of offences, all these aspects persuaded this Court to apply the Article 17, Freedom of Association guaranteed under the Constitution of Islamic Republic of Pakistan, 1973 in letter and spirit, especially when manual provides complete mechanism and there is no discretion provided under the manual to regret any application of recognition of association unless the association or its members are guilty of having associated or connected with any political party, organization or engages in any subversive activity or any other activity considered detrimental to the interest of the State, therefore, the impugned order issued by the Aviation Division dated 20.04.2018, final order dated 23.05.2018 Establishment Division Cabinet Secretariat Government of Pakistan as well as Memorandum dated 27.03.2017 are contrary to the Constitution of Islamic Republic of Pakistan, 1973 as Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 provides a right of individual to be dealt with in accordance with law and every citizen is given protection of law to be treated in accordance with law is inalienable right of every citizen.
16. It has also been guaranteed by the Constitution that no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law and lastly it has been confirmed by the Constitution that no person shall be prevented from or be hindered in doing that which is not prohibited by law and no person shall be compelled to do that which the law does not require him to do. Hence, the right established under Article 17 of the Constitution of Islamic Republic of Pakistan, 1973 read with Chapter XVIII of the Establishment Manual, 1992 consist of instructions regulating procedure and conditions for recognition of associations of Federal Government Employees (other than industrial employees), this Court is of the clear view that the respondents authority have passed the impugned order without considering the law on the subject and passed the impugned orders on whimsical and illegal ground having no basis, therefore, instant writ petition is allowed and the impugned orders are hereby set aside. The Establishment Division, Government of Pakistan is directed to recognize the association in terms of Establishment Manual; however, Government of Pakistan can place restrictions upon the association for using any social media, face-book for any kind of activities considered as subversive or against the sovereignty and integrity of Pakistan. ZC/149/Isl. Petition allowed.