IN THE HIGH COURT OF SINDH, KARACHI

IN THE HIGH COURT OF SINDH, KARACHI

Const. Petition No.D-1428 of 2011

Date Order with signature of the Judge

1. For order on office objection.

2. For Katcha Peshi.

3. For hearing of Misc. No.6528/2011.

4. For hearing of Misc. No.9612/2011.

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Dated: June 17, 2011

Mr. Abid S. Zuberi, Advocate for Petitioners.

Mr. Muhammad Sarwar Khan, Addl. A.G. and Mr.Adnan Ahmed, AAG along with PSI Muhammad Shahid on behalf of DIG South, SIP Anjum Javed for CCPO and SPO Rao Javed Iqbal of PS Farer.

M/s. Salahuddin Ahmed and Farhatullah, Advocates for Respondent No.6.

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The petitioners through instant petition have made following prayers: -

A. declare that the threatened action of causing damage and loss to the properties and persons of the Petitioners is illegal, without jurisdiction, contrary to law and in violation of Article 9 and 14 of the Constitution of Pakistan.

B. declare that the hunger strike which has commenced from 29-4-2010 is illegal, unconstitutional, in violation of the principles of Islam and further in derogation of the Petitioners constitutional rights under Articles 4, 9, 14, 15 and 23 of the Constitution as well as in violation of the settlement arrived at between the Petitioner No.1 and Respondent No.6.

C. direct the Respondent No.1 to 5 to immediately provide the Petitioners security and safety to their persons, properties and ensure that the Petitioners are not threatened in any manner whatsoever or any loss is caused to their property and/or person by the Respondent No.6 or its member or office bearers.

D. restrain the Respondent No.6, its members and office bearers from causing any damage, loss and/or any other threat to the persons and property of the Petitioners and or resorting to any strike, go slow, demonstration, slogans raising, hi jacking of Petitioners vehicles, preventing employees of Petitioner No.1 from performing their duties or generally carrying out any unfair labour practice.

E. consequently direct the Respondent Nos.1 to 5 to take immediate action against the Respondent No.6 and restrain them from conducting any hunger strike.

F. Cost of the petition.

Mr. Abid S. Zuberi, learned counsel for the petitioners, contends that the petitioner No.1 is a public utility company mainly engaged in the business of generation, transmission and distribution of electric supply to the citizen of Karachi, whereas remaining petitioners are its directors, shareholders, employees, members of management, etc. Per learned counsel, due to a dispute between the petitioner No.1 and its employees represented by respondent No.6 regarding their terms and conditions of service with petitioners the relationship between the petitioner and its employees represented by respondent No.6 have become strained and consequently they are creating hindrance in the smooth operation of petitioners’ business which is not only causing losses to the petitioners but inconvenience to the public at large. Learned counsel while arguing quoted instances where strained employees represented by respondent No.6 have caused heavy losses to the petitioner by damaging its properties as well as the properties of its employees loyal to the petitioner. Per learned counsel the scenes of such destruction have been captured through photographs and an FIR No.30/2011 was also registered. It was next contended by the learned counsel that the petitioner has also approached NIRC as the respondent No.6 contrary to settlement has raised certain demands with the view to create an industrial dispute, however, NIRC has restrained the CBA and all workers from resorting to strike, go slow, demonstration etc., despite respondents are not only resorting to illegal demonstrations but have also blocked complaint centers by posting hundreds of strained employees in front of petitioner offices and complaint centre who have not only blocked the road for days altogether but they neither allow the consumers to record their complaints nor the employees to redress any telephonic complaint. On the contrary, to blackmail the petitioner and to coerce them to succumb to their illegal demands, faults are being created in the supply lines so that the petitioner under the pressure of their consumers may accept their illegal demands.

Mr. Muhammad Sarwar Khan, Addl. A.G. has not only filed comments but has also filed report on behalf of official respondents No.1 to 5, wherein, they have reiterated their bounded duty to provide safety and security to every citizen. It has been further asserted that necessary directions have been given to all SP Towns, SPOs and SHOs to provide necessary protection to the installation of the petitioner as well as its offices and employees and to enable them to perform their functions in a smooth manner. It has further been stated that 160 police officials and 7 police mobiles have been provided to protect the head office of the petitioner. In comments, it has been denied that despite presence of police at the installations and offices of the petitioner, they closed their eyes when the strained employees represented by the respondent No.6 damaged the properties of the petitioner.

On the other hand, Mr. Salahuddin Ahmed, learned counsel representing respondent No.6, has raised a preliminary objection regarding the maintainability of the instant petition as according to learned counsel the controversy beside being based on disputed question of facts can only be decided by NIRC which has the exclusive jurisdiction for adjudication between the employer i.e. petitioner and respondent No.6. On factual plain it is contended that neither the employees represented by the respondent No.6 have ever damaged or caused loss to the properties of the petitioner or of its employees nor have ever even threatened to cause such damage or resorted to hunger strikes. Per learned counsel, it is the fundamental right of the employees represented by respondent No.6 to carry peaceful demonstration with a view to achieve their rights and legitimate demands. Per learned counsel, every such demonstration has public inconvenience to some extent and the best place to carry such demonstration and to invite the attention of their employer is in front of their working places, however, blockage or ingress egress from the petitioner offices has never been hindered. Per learned counsel, the dispute of like nature can only be decided in appropriate proceedings of-course before the appropriate forum.

We have heard the learned counsel for the respective parties and have perused the record.

No doubt, the controversy projected before us contains disputed question of facts as petitioner is alleging that their strained employees have damaged the installations and offices of the petitioner, caused losses to the cars of its employees, hindered ingress and egress which allegations have been vehemently denied by the respondent No.6 and further that it is not the forum nor proceedings where the dispute of the nature as appears between the parties can be resolved. However, the only admitted position which can be gathered from the record and from the contentions of the respective counsel is that the strained employees represented by the respondent No.6 are staging demonstrations / protest in front of the offices / installations of the petitioner, again disputed part is that per petitioner such demonstration contains violence whereas, per respondents the demonstrations are peaceful.

We are mindful of the fact that the rights of the employees represented by respondent No.6 to peaceful assembly and to express themselves in a peaceful manner is guaranteed by the constitution, likewise the petitioner’s right to conduct lawful business without any fear in a conducive atmosphere and therefore, a balance is to be struck between the rights of the petitioner as well as of the said respondents so that the rights of one may not intrude the rights of other. There is no embargo or at least brought to our knowledge restricting the respondents from choosing a place for a lawful assembly but such restriction of course can be imposed to maintain public order or to prevent infringement of one another rights. It is also important to observe that at the same time rights of said respondent even to peaceful demonstration in front of the offices and installations of the petitioner cannot be extended to blocking the roads for days altogether which not only would cause hardship and inconvenience to public at large but would put the petitioner under constant fear that an incident of the nature as complained by the petitioner on 20.01.2011 may not re-occur.

Beside, in view of the current law and order situation prevailing in the city such assembly of the respondent for days altogether in front of the offices of the petitioner may provide an opportunity to the miscreants to create law and order situation not only to the detriment of petitioner or even the said respondent but would cause inconvenience to public at large as the petitioner is in a business of providing one of the most important amenities which has now become a necessity to the public at large. Therefore, in order to avoid any untoward incident and to strike a balance between the rights of the respective parties we while disposing of this petition along with listed applications direct the respondents No.1 to 5 as under:

(a) Ensure free ingress and egress of the employees and management of the petitioner KESC to their offices and installations.

(b) Ensure due protection of the employees and management of the petitioner KESC and its offices and installations.

(d) In case of any threat to the employees, management or consumers who’s access to Customer Care Centre is restricted or threatened to register the case and to proceed strictly in accordance with law.

(e) In order to maintain public order and to avoid possible confrontation or an incident of the nature as complained by the petitioner on 20.01.2011 and to ensure that miscreants may not by explaining the situation cause losses to the installations or create law and order situation permanent blockage, if any, of the roads / footpath in front of the offices / installations of the petitioner by the employees represented by respondent No.6, be removed.

JUDGE