Judicial Activism Panel Vs Federation of Pakistan etc

Form No.HC.JD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

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Judicial Activism Panel Versus Government of the Punjab etc.

Sr. No. of Order/ Date of Order/ Order with Signature of Judge, and that of parties or counsel, Proceeding Proceeding where necessary 07.11.2019 M/s. Abdullah Malik and Aqsa Jabeen, Advocates for the Petitioner.

Barrister Umair Khan Niazi, Additional Advocate General on Court’s call.

Ms. Sadia malik, Assistant Attorney General on Court’s call.

M/s. Barrister Ch. Muhammad Umar and Rana Muhammad Umar, Advocate for Pakistan Medical Commission/Respondent No.11 with Ali Raza, Vice President PMC.

M/s. Mian Zahid-ur-Rehman Bata, Senior Law Officer, Muhammad Suleman Akash, and Aslam Junaid, Advocates with Momin Agha, Secretary Health, Dr. Salman Shahid, Additional Secretary Health, Rafaqat Ali, Additional Secretary (Admn), Specialized Healthcare and Medical Education Department, Government of the Punjab, Lahore. M/s. Junaid Riaz Malik and Abid Iqbal Hafiz, Senior Law Officer of the Respondent No.14/ King Edward Medical University, Lahore.

Chaudhry Hafeez-ur-Rehman, Advocate/President, Lahore High Court Bar Association. Professor Dr. Ghulam Mustafa Arain, Dean Academics and Abdul Hameed, SR. Executive

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Secretary, College of Physician Surgeons of Pakistan M/s. Abid Saqi, Tariq Iftikhar, Munir Hussain Bhatti, Mian Mohsin Ali Kanju, Shahzada Salman Chaudhry and Raja Jahanzeb Akhtar, Advocates for the Respondent No.16/YDA/Paramedics. M/s. Ch. Muhammad Attique and Mufti Ahtsham- ud-Din Haidar, Advocate for the Respondent No.15. Tahir Farooq Tarar, Head Legal, PEMRA Punjab and Muhammad Ikram Barkat, RGM, PEMRA.

I. COMMITTEE BY THE GOVERNMENT

Pursuant to the detail orders dated 05.11.2019 and 06.11.2019, Momin Agha, Secretary, Specialized Healthcare and Medical Education Department, Government of the Punjab, Lahore, appeared and stated that they have already constituted a Committee (the “Committee”) on 05th November, 2019 vide Notification No.SO(RMC)2-9/2018 to hear the reservations/objections/proposed amendments of the doctors and other health professionals i.e. nurses and paramedics/stakeholders on the Medical Teaching Institutes Ordinance, 2019 (the “Ordinance”), which was promulgated on 2nd September, 2019. Till date as per Section 1(3) of the Ordinance no teaching institution has yet been notified and neither any Rules & Regulations have been formulated under the said

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Ordinance. He urged that now the Draft of the Punjab Medical Teaching Institutes (Reforms) Act, 2019 (the “Draft Act”) has been submitted before the Provincial Assembly for legislation. Therefore, the strikes of the Respondent No.16/YDA, nurses, paramedics and allied service providers are uncalled for and premature because rather than challenging the Ordinance they went on strike. He also apprised this Court that they had received comments of certain stakeholders on the Draft Act, which were duly considered. However stated that in order to redress the grievance of the Respondent No.16 a Committee has been constituted with the following ToRs:

i. The Committee is fully authorized to hold meaningful dialogue, on behalf of the Government, with the striking

doctors and other health professionals (nurses/paramedics) and take measures to resolve all the issues so that service delivery to the patients is resumed.

ii. The Committee will hear the grievance of the representatives of doctors, nurses and paramedics to identify their

reservations/objections/proposed

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amendments regarding the MTI

Ordinance.

II. STRIKES ARE ILLEGAL

2.As this Court has already highlighted the issue that the Professionals cannot go on strike while on duty when they are being regulated by their own bodies i.e. Authority, Body, Council or Commission and also by the Code of Ethics of the Pakistan Medical & Dental Council (PMDC) and under Article 5(2) of the Constitution of the Islamic Republic of Pakistan, 1973 (the “Constitution”) they must have to obey command of the Constitution and the Law. The Article 5(2) is as follows:

“Obedience to the Constitution and law is the inviolable obligation of every citizen wherever he may be and of every other person for the time being within Pakistan.”

The word “inviolable” used in Article 5(2) of the Constitution means that it is never to be broken and infringed. In the case of President Balochistan High Court Bar Association and others versus Federation of Pakistan and others (2012 SCMR 1784), the august Supreme Court of Pakistan has held that “to be loyal to the State is the basic duty of all citizens

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and they have to be obedient to the Constitution and the law, wherever they may be. Similarly, it is also inviolable obligation of every person for the time being within Pakistan. Thus, adherence to the Constitution and the Law by the citizens, who are officials or otherwise, is mandatory. Non-compliance of the Constitution and the Law makes a citizen liable for action, in accordance with law”. It would also include principles of natural justice, procedural fairness and procedural propriety. Moreover, the Hon’ble Supreme Court of Pakistan in the judgment cited as “Government of N.W.F.P. through Chief Secretary and another v. Dr. Hussain Ahmad Haroon and others” (2003 SCMR 104) has held that “Doctors who are having a profession, which deals with human life should always resort to legal means to ventilate their feelings and should avoid jeopardising medical facilities provided to innocent persons by Government. They should have avoided to create such an atmosphere, which leads to endangering the lives of innocent people in medical institution. If they were demanding for betterment of their service structure, there was a method for the same and authorities were enjoined to tackle the

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problem in a peaceful and congenial atmosphere.”

Further reliance is placed on the judgment cited as “Shakeel Akhtar and others v. M.S. Mental Hospital and others” (2000 SCMR 71) wherein it has been observed that:

“The Petitioners were subject to the provisions of the Punjab Essential Services (Maintenance) Act, 1958, which prohibits the employees, subject to the provision of the above Act, from absenting themselves from work. As a matter of fact, Section 7 of the above Act imposes criminal liability by providing that a person guilty of breach of the above provision of the Act is punishable with imprisonment for a term which may extended to one year, and with fine.

In presence of the above said Act, the petitioners have no legal justification to go on strike. ”

Reliance is also placed on “Mujeeb Ullah Gharsheen and another v. Government of Balochistan through Chief Secretary and 3 others” (2016 PLC (C.S.)

1267). Moreover, this Court in the judgment cited “Professor Dr. Zafar Iqbal Chaudhry v. Province of Punjab and others” (2017 PLC (C.S.) 583) has

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upheld the suspension of the doctor/government servant, who failed to provide medical service to Mst.

Zohra Bibi (who was brought to Jinnah Hospital, Lahore where she stayed for 8 hours but no Professor, Associate Professor, Assistant Professor or not even Senior Registrar visited her and she died) by holding that Section 6 of the Punjab Employees Efficiency, Discipline and Accountability Act 2006 (the “PEEDA Act”) empowers the authority to suspend the government servant if it is necessary.

III. ACTION BY THE AUTHORITIES

3.It has been brought on record that during the pendency of this Petition, the concerned authorities took actions against the doctors/nurses/paramedics/ allied service providers, who are observing strikes, under the Punjab Essential Services (Maintenance) Act, 1958 (the “the “PESM Act”) and PEEDA Act, 2006. Moreover, the Respondent No.13/ College of Physician Surgeons of Pakistan (CPSP) also issued the Notice Ref. No.CPSP/Sec/2019/583, on 04th November, 2019 to CPSP Post Graduate Trainees with the following words:

“It has been reported by the Health

Departments of KPK and Punjab that CPSP

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trainees are absent from their training/duty without any leave for more than a month.

College has emphasized time and gain that training is the most important component of National Residency Program (NRP). Any leave without permission of supervisor is considered as break in residency. Break in residency shall be considered as drop out from the program.

You are advised to immediately resume your training and send report signed by your supervisor/head of the department. As a result of drop out of the program you are likely to lose all your previous experience and this will require you to seek re-registration in the next available induction.”

IV. COMMENTS ON THE DRAFT ACT BY

THE RESPONDENTS/STAKEHOLDERS

4.M/s. Abid Saqi, Tariq Iftikhar, Munir Hussain Bhatti, Mian Mohsin Ali Kanju, Shahzada Salman Chaudhry and Raja Jahanzeb Akhtar, Advocates for the Respondent No.16/Young Doctors Association, nurses, paramedics and allied service providers appeared and stated that if the Respondent/ Authorities hear their objections/ reservations on the Draft Act, they will call off the strike at 12:00PM

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(today) and go back to their duties to earn their livelihood and serve the humanity. Learned counsel also argued that the consultation process with the stakeholders is necessary for better enactment of law as it will create sociological and economical impact on the citizens of Pakistan. In this regard they relied on the judgments reported as PMDC versus Fahad Malik (2018 SCMR 1956), Sharaf Faridi and 3 others versus The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another (PLD 1989 Karachi 404), Muhammad Zia- ur-Rehman and others versus University of Engineering and Technology and others (2013 CLC 512), Engineer Iqbal Zafar Jhagra and others versus Federation of Pakistan and others (PLD 2013 SC 224), Dossani Travels Pvt. Ltd and others versus Messrs Travels Shop (Pvt.) Ltd. and others (PLD 2014 SC 1) and Syed Riaz Ali Zaidi versus Government of the Punjab through Chief Secretary, Lahore and 3 others (PLD 2015 Lahore 463).

5.This Court in the case of Subay Khan versus Secretary, Labour, Government of the Punjab (PLD 2019 Lahore 253) directed the Secretary, Labour Department to prepare the policy and draft of the law

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on the issue of domestic workers, which was prepared and shared with the Court and then the Court constituted a Committee which held its meetings with all the Stakeholders to comment on the draft, therefore, when the draft was finalized and enacted, the Court disposed of the said matter by appreciating the efforts of the Government and the Labour Department for the proper legislation on the issue involved by giving certain directions.

6.As noted above, the strike of the Respondent No.16 including doctors, nurses, paramedics and allied service providers is uncalled for because the Ordinance against which they are observing strikes has not been implemented so for and the Draft Act has been submitted for legislation before the Provincial Assembly in which all the Authorities and stakeholders will be heard by the concerned Committee. The Respondent No.16/young doctors, nurses, paramedics and allied service providers are subject to the provisions of the PESM Act, which prohibits the government servant/employees from absenting themselves from work. As a matter of fact, Section 7 of the above PESM Act imposes criminal liability by providing that a person guilty of breach

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of the above provision of the Act is punishable with imprisonment for a term which may extend to one year, and with fine. In presence of the above said Act, the doctors/nurses/paramedics and allied service providers have no legal justification to go on strike.

V. WAY FORWARD

7.However, the stakeholders whose life and profession will be effected through the Draft Act, they need to be consulted and their objections are necessary to be taken by the concerned authorities as held by the Hon’ble Supreme Court of Pakistan in PMDC versus Fahad Malik (2018 SCMR 1956) (mentioned supra in paragraph No.4). Therefore, with the consensus of learned counsel for all the Parties it is agreed that the concerned authorities shall take input from all the stakeholders in consultative meeting(s) and will incorporate the appropriate changes, if any, in the Draft Act. AND the Respondent No.16/young doctors, nurses, paramedics and allied service providers will not observe strikes.

8.In view of above, Momin Agha, Specialized Healthcare and Medical Education Department, Government of the Punjab, Lahore is appointed as Convener of the Committee, who shall include the

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following persons as Members of the Committee, already constituted vide Notification No.SO(RMC)2- 9/2018, dated 05.11.2019:

Sl.#. Name of New Members

1.Mr. Abid Saqi, Advocate with President and Secretary of Young Doctors Association.

2.Mr. Ali Raza, Vice President Pakistan Medical Commission.

3.Professor Dr. Ghulam Mustafa Arain, Dean Academics and Abdul Hameed, SR. Executive Secretary, College of Physician Surgeons of Pakistan

4.Secretary, Law and Parliamentary Affairs Department, Government of the Punjab, Lahore.

9.On the suggestions made above, the Secretary, Specialized Healthcare and Medical Education Department, Government of the Punjab, Lahore, will hold two days’ consultative workshop on 22nd and 23rd November, 2019, on the Draft Act by notifying all the members of the Committee. Copy of the Draft Act has been handed over to learned counsel for the Respondents and the Petitioners. All the stakeholders will be heard in the workshop, thereafter, the Convener of the Committee shall finalize the Draft Act and submit the same with detail report before this Court on the next date.

10.Secretary, Specialized Healthcare and Medical Education Department, Government of the Punjab,

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Lahore stated that they will not take any adverse action/coercive measure against any member of Respondent No.16 i.e. young doctors, nurses, paramedics and allied service providers, on their actions prior to the passing of this order, today. But they should file the replies of the notices/show-cause notice already given to them. However, the concerned authorities will be free to take stern action against any person who continues the strike after 12:00PM, today because it violates the Constitution, Laws and the Judgments of the Hon’ble Supreme Court of Pakistan (mentioned above), which are binding on them under Article 189 of the Constitution.

11.To come up on 02.12.2019 for further proceedings.

(JAWAD HASSAN)

JUDGE

Zi@-Ur-Rehman