Per Muhammad Aqil Mirza, J.
(a) Constitution of Pakistan (1973)–Arts. 9,11,14 & 29–
It is not denied on behalf of the Metropolitan Corporation, Lahore that the respondents are performing their duties as school teachers for the last several years in pursuance of letters of appointment duly issued by the competent Authority. So long as an employee remains in service and performs his duty, it is not open to any employer to withhold his salary. This subject has been beautifully discussed by our learned brother Sharif Hussain Bokhari, J. in Mst. Zaibun Nisa v. Government of Punjab 1995 C L C 1288 as under :-
“As observed, the petitioner has been performing duties as teacher in the schools maintained and controlled by the respondents, she is, therefore, entitled to full emoluments in her grade and pay scale with all the admissible allowances, as there is no provisions, neither the concept for service without salary under the relevant law. Under section 43 of the Punjab Local Government Ordinance, 1979 (hereinafter referred to as the Ordinance) Local Council may, on prescribed terms and conditions employ such servant as are necessary for the efficient performance of its functions and under section 46 (ibid), Government may be Rules prescribe scale or grade of pay for the servants of local councils. The prescribed rules are the Punjab Municipal Committees Service Rules, 1969 as adopted under the said Ordinance.[p. 503, 504]B.
We are further of the view that provisions of Articles 9 and 14 of the Constitution were also incovable in the special circumstances of these cases. Article 9 of the Constitutions guarantees protection to life as a Fundamental Right. This article reads as follows :-
“Non person shall be deprived of life or liberty save in accordance with law.” In the instant case it can be legitimately said that the right to life of the respondents employees of the Metropolitan Corporation stands seriously jeopardized. If an employee/servant is not paid his salary/wages for the work done by him for his employer, he is not expected to live a proper life. If he does not get his salary the how can he sustain himself and his family members. Even if he does not starve and mangers to keep his soul and body intact, his own life and those of his dependant members of the family are bound to heavily suffer in quality. The life as contemplated by Article 9 does not merely mean a vegetative life but it also includes a qualitative life which should ensure enjoyment of such other amenities and facilities as are enjoyed by a person born in a civilised society. The term ‘life’ used in Article 9 of the Constitution has been used in a wider sense, which means that a man should not be able only to sustain life but to enjoy it as well.
Similarly Article 14 of the Constitution which guarantees dignity of man is contravened when an employee/servant is denied his right tot receive his salary/wages by him. Article 14, inter alia, commands “the dignity of man and, subject to law, the privacy of home, shall be inviolable”. A man who is denied the fruit of the labour and work done by him is bound to live in a manner which will deprived him of his dignity. In order to save himself from starvation and keep himself alive, such a person will have to steal, beg or borrow. A person who is forced to do any such things must suffer in dignity. Similarly, to keep his dignity intact he must enjoy facilities and amenities of life of modest keep his dignity intact the he must enjoy facilities and amenities of the life of modest level according to his station in life. The respondents in these cases are the school teachers. By virtue of their status in society and requirement of their office they need clean clothings. They also require health, care, shelter and food for themselves and their families. For all these things they ought to get their monthly salary in lieu of the duties they have been performing by teaching children in the school. The total effect of non-payment of salaries to the respondents is that they are suffering in honour and dignity and their quality of life is also adversely affected, and hence fundamental rights guaranteed under Articles 9 and 14 of the Constitution stand denied to them. The Hon’ble Supreme Court in Shahla Zia v. WAPDA PLD 1994 SC 693 made the following observations with regard to Article 9 of the Constitution:-
“The word ‘life’ is very significant as it covers all facts of human existence. The word ‘life’ has not been defined in the Constitution but it does not mean nor can be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person born in free country is entitled to enjoy with dignity, legally and constitutionally.”[p. 504, 505]C
We have considered the circumstances involved in the instant cases, viz that the respondents have been for years together denied their lawful right to receive salaries, although they are being made to perform their duties as school teachers without hindrance; and find that these cases do provide apt example of contravention of the fundamental rights provided by Articles 9 and 14 of our Constitution.[p. 506]D
The submission made on behalf of the appellant Metropolitan Corporation, that the salaries have not been paid to the respondent school teachers because of the ban on recruitments and failure of the Punjab Government to regularize the appointments despite several requests in that behalf, may now be attended to. Even if sanction of the Provincial Government was required for the purpose of regularization of the appointment of the respondents who were continuously performing their duties for the past several years, the same the presumed to have been accorded in the absence of specific refusal by the Punjab Government to regularize the appointment in question. When the respondents are in service without hindrance and the concerned functionaries of the Government being cognizant of this fact had not specifically decided to refuse regularisation of the appointments, it could legitimately be presumed that they had no objection to the regularisation of these appointments. If they had intended to refuse the regularization they could have taken a positive decision in that behalf within a reasonable period of time. That being not done, it will have to be presumed that the Government had no objection to the appointments of the respondents as school teachers in the Metropolitan Corporation. On this ground the Metropolitan Corporation has neither legal nor moral basis for withholding the salaries of law-paid school teachers for several years. To say the least, it was callous on the part of the functionaries of the Metropolitan Corporation to have adopted an unreasonable technical excuse for withholding the salaries of the respondents. It may be clarified here that the presumption we have raised is peculiar to the circumstances of the cases in hand and it is not of general application nor should it be a precedent for other cases.[p. 506]E
Before parting with this case it may be observed that salary is no longer a bounty of the State. The English theory of the bounty of the State was exploded long ago by our Supreme Court in Pakistan through General Manager, P.W.R., Lahore v. Mrs. A.V. lasses PLD 1970 SC 415. Salaries/wages are the rightful dues which the employees/servants must get from the employers without delay.[p. 507]F
(b) Punjab Local Government Ordinance (VI of 1979)—-
R/w Punjab Local Government Ordinance (VI of 1979)—-Ss. 43 & 46—-
The salaries of the respondent school teachers have not been paid on account of suspension of the impugned orders of the learned Single Judge, on the motion of the Metropolitan Corporation in the above appeals. Therefore, it is directed that the Administrator of the Metropolitan Corporation, Lahore shall pay the salaries and other admissible allowances to the respondents in all the five appeals with all dispatch. To be more precise, the salaries for the months of January to April, 1996 shall be paid before 10th of May, 1996 while the remaining arrears shall be paid by 30th of June, 1996. [p. 507]G