1999SCMR1338 (PLP)

AJMAL MIAN, C.J.

The above petitions were disposed of by a short order of even date which reads as follows:-- "For reasons to be recorded later on, we are not inclined to entertain the above two Constitutional petitions at present. However, it is open to the petitioners to file a separate petition challenging continuation of emergency and after decision on the above issue, it will be open to them to file a petition for violation of, inter alia, Article 17 of the Constitution. " We intend to record the reasons in support of the above short order. Constitutional Petition No. 10 of 1999 has been filed under Article 184(3) of the Constitution of the Islamic Republic of Pakistan (hereinafter referred to as the Constitution) by nine persons claiming to be the employees of WAPDA, who have formed a committee under the name of WAPDA Employees Action Committee. In the above petition, they have prayed for the following reliefs:-- "It is, therefore, prayed that a declaration may please be made by accepting the Constitution Petition against the respondent Nos. l to 4 declaring the Ordinances XIX, XX and XXI of 1998 as ultra vires the Constitution of Islamic Republic of Pakistan, 1973 and striking the same from the statute book in accordance with law, being mala fide without lawful authority and void. (b) That an order may please be passed in favour of the petitioners and against the respondents declaring the termination of 4000 employees' services from WAPDA as against law being mala fide without lawful authority and of no legal effect. Further that no illegal termination and transfers are made by making use of Ordinances XIX, XX and XXI of 1998 which are ultra vires the Constitution. (c) That respondent No.4 be directed to obey the Constitution and advise respondents Nos.2 and 3 to refrain from making such orders that are against the Constitution of Pakistan and make such arrangements by which the Armed Forces of Pakistan are not attributed political motives and other allegations of sharing illegalities with the present Government and respondents Nos.2 and 3 as its heads. It may be further declared that the respondent No.3's orders in the light of Ordinances XIX, XX and XXI of 1998 are against law and Constitution and fall outside the ambit of Article 245 of the Constitution. Any other relief that may be appropriate be also awarded to the petitioners against the respondents to meet the ends of justice."

2. Whereas Constitutional Petition No. 12 of 1999 has also been filed under Article 184(3) of the Constitution by the Pakistan (Hydro Electric Union, Lahore (C.B.A.) through its General Secretary. The petitioner union claims that it was established in 1948 to cater for the workers of the Electricity Department. In 1958, with the establishment of WAPDA, the Union became a Union of the employees of the Authority. It has been further averred that the Union has been Collective Bargaining Agent of the workers employed in WAPDA and has lastly been so chosen in a referendum held in the year 1997 and that the Union represents more than 1,30,000 workers employed in WAPDA. In the above Constitutional Petition, the petitioner union has prayed for the following reliefs:-- "It is, therefore, respectfully prayed that:-- (a) Ordinances, Nos.XIX and XX of 1998 be declared to be ultra vires the Constitution. (b) The continuation of the state of emergency be declared to be not valid. (c) The retrenchment being carried out amongst the workers of WAPDA without process of law be declared to be unlawful. (d) The right of the petitioner to represent the interest of its workers as a Collective Bargaining Agent be held to be inviolable. "

3. The brief facts leading to the filing of the above Constitutional petitions are that on 22-12-1998 Ordinance No.XIX of 1998 and Ordinance No.XX of 1998 were promulgated, whereas Ordinance No.XXI was issued on 23-12-1998. It may be observed that under Ordinance No.XIX of 1998 offences punishable under sections 39, 39-A and 44 of the Electricity Act, 1910 were made triable under Chapter IX of the Pakistan Army Act, 1952 by the Military Courts. Messrs Abid Hassan Minto and Muhammad lkram Chaudhry have candidly conceded that in view of the judgment of a Full Bench of this Court in the case of Sh. Liaquat Hussain v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs (Constitutional Petitions Nos.37, 38 42 and 43 of 1998 and No.4 of 1999 alongwith Civil Review Petitions Nos.1 to 5 of 1999, reported as 1999 SCMR 569, the relief in respect of above Ordinance XIX of 1998 has become redundant because no Military Court has yet been established regarding offences under the Electricity Act, 1910 and nor such Courts can be established in view of the above judgment of this Court.

4. It may be observed that Ordinance No.XX of 1998 has made some amendments in the Pakistan Water and Power Development Authority Act, 1958 inasmuch as subsection (1-A) of section 17 has been substituted whereby the WAPDA has been authorized to retire from its service any person without assigning any reason or to remove any person from its service after informing him in writing of the grounds on which such action is proposed to be taken and giving him an opportunity of showing cause against the action within fourteen days. Whereas subsection (1-B) of section 17 confers right on a person who is retired from service to have three months' pay in addition to the other retiring benefits admissible to him under the terms and conditions of his service. It may further be observed that a new section 17-A has also been incorporated which provides as under:-- "17-A Certain laws not to apply to employment under the Authority.

Nothing contained in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (W.P. Ordinance VI of 1968), or the Industrial Relations Ordinance, 1969 (XXIII of 1969), shall apply to, or in relation to, the Authority or any of the officers or employees appointed by it. "

5. It may also be mentioned here that Ordinance XXI of 1998 further amended the Pakistan Water and Power Development Authority Act, 1958, which, inter alia, amended section 8 and incorporated subsection (3) in section 17 which authorizes the WAPDA to transfer any person to any company or other entity promoted, formed or sponsored pursuant to a scheme framed under clause (vii) of subsection (2) of section 8 notwithstanding anything contained in the Act or any law.

6. In support of the above Constitutional Petition No.10 of 1999, Mr. Muhammad Akram Chaudhry has submitted as under:-- (1) That the calling of the Army in aid of WAPDA is not warranted by Article 245 of the Constitution, and (2) that the services of the employees of WAPDA are being terminated illegally on a large scale. According to him services of about 4000 employee have been terminated.

7. Whereas Mr. Abid Hassan Minto, learned Advocate Supreme Court appearing for the petitioner union in Constitutional Petition No.12 of 1999 has contended as follows:-- (1) That the petitioner union has been prevented from discharging its functions as union inasmuch as the application of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (W.P. Ordinance VI of 1968) (hereinafter referred. to as the Standing Orders Ordinance) and the Industrial Relations Ordinance, 1969 (XIII of 1969) (hereinafter referred to I.R.O.) has been excluded in relation to the WAPDA or any of its officers or employees, which is violative of Article 17 of the Constitution; (2) that notwithstanding the suspension of Article 17 of the Constitution by virtue of clause (1) of Article 232 of the Constitution, the petitioner union is entitled to maintain the above petition for the above quoted relief prayed for as there is no nexus between the continuation of the emergency and the suspension of the petitioner's right to act as a Collective Bargaining Agent and to discharge its functions as such; and (3) that in any case the continuation of the emergency is not warranted on account of the changed circumstances which are reflected, inter alia, by the recent visit of the Indian Prime Minister to Pakistan and the issuance of the Joint Declaration (Lahore Declaration) by the Prime Ministers of India and Pakistan.

8. It may be observed that by virtue of the imposition of the emergency under clause (1) of Article 232 of the Constitution, which has been held to be valid by this Court in the case of Farooq Ahmed Khan Leghari v. Federation of Pakistan and other connected petition reported in PLD 1999 SC 57, the operation of Articles 15, 16, 17, 18, 19 and 24 of the Constitution is suspended by operation of clause (1) of Article 233 of the Constitution and, therefore, till this Court grants declaration that the continuation of the emergency is not justified, the above Articles cannot be invoked through a Constitutional petition or otherwise. To this Mr. Abid Hassan Minto's submission was that since the petitioner union has challenged the continuation of the emergency in the above petition, this Court may examine the justification of the continuation of the emergency in terms of its judgment in the case of Farooq Ahmed Khan Leghari v. Federation of Pakistan (supra) wherein the following observation has been made:-- "Mr. S. Sharifuddin Pirzada, learned Senior Advocate Supreme Court appearing for the Federation, has not only candidly conceded the above point but in fact placed on record latest literature in respect thereof including the above Privy Council case for which we are grateful to him. I am, therefore, of the view that this Court has jurisdiction to review/re-examine the continuation of emergency at any stage if the circumstances so warrant." In Constitutional Petition No.42 of 1998 (MQM through its Deputy Convener Senator Aftab Ahmad Sheikh v. Federation through Secretary Cabinet, Pakistan Secretariat, Islamabad) the petitioner had also assailed the continuation of the emergency in the said Constitutional petition, which this Court had disallowed as stated in the following portion of the body of the judgment:-- "It may be observed that in Constitution Petition No.42 of 1998, besides challenging the impugned Ordinance, a number of other reliefs were claimed, but when on 8-1-1999 it was pointed out to Dr. A. Basit, learned counsel for the petitioner, that the Court was to examine only the vires of the impugned Ordinance in the above Constitutional petitions, he filed an amended petition on or about 11-1-1999 confining the petition to the above question." In our view the question as to whether the continuation of emergency is warranted or not by the changed circumstances cannot be raised as a collateral question in a Constitutional petition which is founded on the violation of Article 17 of the Constitution, the operation of which is suspended by virtue of a Constitutional provision, namely clause (11 of Article 233 of the Constitution. The petitioner will have to file a separate appropriate proceedings containing material facts including the changed circumstances of the nature warranting the review of the judgment of this Court in the case of Farooq Ahmed Khan Leghari v. Federation of Pakistan (supra) supported with the relevant documents.

9. As regards Mr. Minto's submission that the impugned Ordinance denies the benefit of Standing Orders Ordinance and I.R.O. to the employees of the WAPDA, it may be observed that even otherwise the above Ordinances are not applicable to all the workers/employees inasmuch as the first proviso to clause (c) of subsection (4) of section 1 of the Standing Orders Ordinance excludes the application of the provisions of the same to the industrial and commercial establishments carried on by or under the authority of the Federal or any Provincial Government where statutory rules of service, conduct or discipline are applicable to the workmen employed therein. Similarly, subsection (3) of section I of the I.R.O. excludes the following categories of the workers/employees-- (a) in the Police or any of the Defence Services of Pakistan of any services or installations connected with or incidental to the Armed Forces of Pakistan including an Ordinance Factory maintained, by the Federal Government; or (b) in the administration of the State other than those employed as workmen by the Railway, Posts, Telegraph and Telephone Department; or (c) as a member of the Security Staff of the Pakistan International Airlines Corporation, or drawing wages in such pay group, not lower than Group V, in the establishment of that Corporation as the Federal Government may, in the public interest or in the interest of security of the Airlines, by notification in the official Gazette, specify in this behalf; or (d) by the Pakistan Television Corporation or the Pakistan Broadcasting Corporation; or (e) by the Pakistan Security Printing Corporation or the Security Papers Limited; or (f) by an establishment maintained for the treatment or care of sick, infirm, destitute as mentally unfit persons. In this view of the matter it cannot be urged that the exclusion of the application of the above two Ordinances to the employees of WAPDA has I ~% violated any fundamental right which is in force.

10. As regards the amendments in the provisions of the WAPDA Act, whereby, inter alia, subsection (1-A) of section 17 has been incorporated and substituted, it may be observed that more or less identical provision has been on the statute for quite considerable period, action whereunder has been consistently upheld by this Court, inter alia, in the following cases:-- (i) Pakistan WAPDA v. Ahmed Nawaz 1986 SCMR 571, (ii) Waseem Ahmad Khan v. WAPDA 1997 SCMR 2000, and (iii) WAPDA v. Sikandar Ali Abro 1998 SCMR

137. Furthermore, prima facie, we have not been able to find any violation of any Constitutional provision by the amendment - introduced by Ordinance XX of 1998. If any of the employees is going to be transferred under the above amended provision and if he is aggrieved, he will have the right to initiate appropriate proceedings in case he feels that there has been violation of any Constitutional provision or law which may be in operation at the relevant time.

11. As regards Mr. Muhammad Ikram Chaudhry's submission that the Army could not have been called in aid of the WAPDA under clause (1) of Article 245 of the Constitution, we may observe that the above contention is not tenable. According to the petitioner there are more than two lac employees in the WAPDA. It is also an admitted position that the WAPDA on account of malpractices in its working was at the verge of financial collapse. The above fact has been admitted even by the petitioner union in para. 4 of Constitution Petition E No. 12 of 1999 which reads as follows:-- "(iv) That it has now become public knowledge that WAPDA has, during the last few years, incurred heavy losses and is under a considerably large debt. One of the principal reasons for these losses is said to be the pilferage or theft of electricity. It is also in the public knowledge that large industrial houses and agricultural farms, leading commercial establishments, public departments and very important persons ("VIP") are involved in these acts of pilferage or theft of electricity. Such a state of affairs is the result of an active collaboration of several officials and high ups in the Water and Power Development Authority. The petitioner has been raising its voice against these pilferages through the , collaboration of the officials in which some times the ordinary workers I also play a role." In the above factual background, it cannot. be urged that the action of calling the Armed Forces in aid of civil power, i.e. WAPDA, which is a state functionary entrusted with the functions on behalf of the State to supply electricity without which the State cannot be run, is unwarranted. It is a matter of common knowledge that the working of the WAPDA has considerably improved after the invocation of clause (1) of Article. 245 of the Constitution inasmuch as substantial amounts of arrears of electricity charges running into billion of rupees have been recovered, and tampering with the meters and the unauthorized use through Kunda system have been successfully checked and detected.

12. We are, therefore. not inclined to entertain the above two Constitutional petitions at this stage. However, as observed in the short order, it-will be open to the petitioners to file a petition challenging the continuation of the emergency in the light of the discussion hereinabove and in case the petition is allowed or the Federal Government lifts emergency earlier, it will be open to them to approach, this Court through a fresh Constitutional petition. The above petitions are, therefore, dismissed with the above observations. M.B.A./N-50/S Petitions dismissed.