AJK Employees Service Associations (Registration and Regulation) Act, 2016

  1. —S. 2(x)”Misconduct”—The AJ&K Civil Servants (Efficiency & Discipline)Rules, 1977—S. 2(1)(d) —“Misconduct”—definition of—the definition of “misconduct” in S. 2(1) (d) of the AJ&K Civil Servants (Efficiency & Discipline) Rules, and S. 2(x) of the impugned Act is verbatim, with the only exception that the words “and also include strike, lock out or go slow” are added at the end of the definition given in the impugned Act. Held:Going on strike, locking out or going slow by the government employees is not their constitutionally guaranteed fundamental right. Imran Khurshid vs Azad Govt. & others 2018 SCR 282 (G)
  2. —Ss. 13, 16—Constitution of Appellate Tribunal and appeal to Appellate Tribunal—S. 16 provide that if the association is not satisfied with the recommendation of the department concerned it may prefer an appeal to the Appellate Tribunal. S. 13 reveals that the Appellate Tribunal shall be headed by the Additional Chief Secretary (General) and Secretary Services and General Administration Department and Secretary Law shall be its members. Imran Khurshid vs Azad Govt. & others 2018 SCR 282 (O)
  3. —Ss. 13, 16—Right of appeal—-Constitution of Appellate Tribunal—Members of the Tribunal are Government Functionaries—Influence over the Members by the Govt. cannot be ruled out—Judicial orquasi-judicialcannot be aJudge in his own cause.grievance of the appellants is that the right of appeal is provided before the Tribunal which is working directly under the supervision of the Government which may have an impact to curtail the statutory rights of appeal of the appellants. Held: It is correct that the right of appeal is very important right and in the present case the Members of the Tribunal are Government Functionaries and they are under the direct control of the Government in one way or the other. Further held: The chance of exercising influence over the Members of the Tribunal by the Government cannot be ruled out. It is also a well settledlaw that judicial or quasi-judicial authority cannot be aJudge in his own cause. Imran Khurshid vs Azad Govt. & others 2018 SCR 282  (P) PLD 2005 FSC 3, PLD 1955 FSC 185, PLD 1963 Lah.8, PLD 1964 & PLD 1973 SC 327 rel
  4. —S.17 (1) and 17 (2) —go on strike— shall be deemed to be Misconduct and shallbe liable to disciplinary action under the prevailing law—no fundamental right to get salary orremuneration for the days of his unlawful absence fromduty. Imran Khurshid vs Azad Govt. & others 2018 SCR 282 (I)
  5. —S.22—Registration of Service associations under new law—AJ&K Government Servants (conduct) Rules, 1981, R.32—Contention of the appellants that unreasonable restrictions have been placed on the existing associations—Held:that the above rule did not provide any mechanism for registration and there was no independent legislation for registration and regulation of service association. Therefore, asking for or directions to such associations/unions to get themselves registered under the new law within the stipulated period does not offend against any constitutional right of the appellants. Imran Khurshid vs Azad Govt. & others 2018 SCR 282 (K)
  6. —Contention of the appellants that the impugned Act in general is violative of the Interim Constitution. Held: Under the provisions of Section 31(3) of the AJ&K Interim Constitution Act, 1974, the only limitation on the Legislative competence of the Assembly and the Council is that they cannot make any law with regard to the following matters: the responsibilities of the Government of Pakistan under the UNCIP Resolutions; the defence and security of Azad Jammu and Kashmir; the current coin or the issue of the bills, notes or other paper currency, or the external affairs of Azad Jammu and Kashmir including foreign trade and foreign aid. u/s 31(5) of the AJ&K Interim Constitution Act, 1974, there is also an embargo on any enactment which is repugnant to the teachings and requirements of lslam as set out in the Holy Quran andSunnah.Further held: The impugned Act does not fall under any of thelimitations placed on the legislative powers of the AJ&K Legislative Assembly. Imran Khurshid vs Azad Govt. & others 2018 SCR 282 (C)
  7. —Contention ofthe appellants is that Sections 2(x), 7(2), 17, 19(f) and 22 ofthe impugned Act are violative of the Fundamental Rights enshrined inthe AJ&KInterimConstitution Act, 1974, u/Ss. 4(4)(5), 4(4)(6),4(4)(7) and 4(4)(9). Held:that all the aforesaid FundamentalRights are subject to reasonable restrictions imposed by lawin the public interest or in the interest of morality or publicorder. Imran Khurshid vs Azad Govt. & others 2018 SCR 282 (D)
  8. —The restrictions imposed—on Government employees to instigate to go on strike, lock down and go slow Held: cannot betermed as unreasonable or against the interest of public orderor morality.Further held: Even otherwise to declare or instigate to go onstrike etc. is not a fundamental right of a Governmentemployee rather it is an offence? Imran Khurshid vs Azad Govt. & others 2018 SCR 282 (F)
  9. —Chapter III, Ss. 14 & 15—Mechanism provided for resolution of demands—S.14 provides that where any service association passes a resolution with two-third majority of its members regarding any demand from the Government, it shall be submitted to the department concerned for due consideration. S. 15,provides that on receipt of resolution, the department concerned examine the demands made through the resolution for seeking redressal, remedy etc., with due diligence and in consultation with other relevant department, shall form its recommendations to be presented to the Government or any authority concerned for consideration and appropriate decisions. The decision made with respect to the demand shall be notified or communicated to the service association. Imran Khurshid vs Azad Govt. & others 2018 SCR 282  (N)
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