P L D 1988 Karachi 120 (PLP)

AJMAL MIAN. J.‑‑By this common order we intend to dispose of the following two Misc. Applications. namely, (I) C.M.A. No.2960 of 198t under Order XXXIX, rules 1 and 2 read with section 151, CPU filed in Constitutional Petition No.D‑1384 of 1987 and (ii) C.M.A. No. 3032 ut 1987 under Order XXXIX, rules 1 and 2 read with Article 199 of the Constitution filed in Constitutional Petition No. D‑142 5 of _t987.

2. The brief facts leading to the filing of the above applications are that respondent No.1 in both the above petitions is the Chamber of Commerce and Industry (hereinafter referred to as the Chamber). It appears that as per Memorandum and Articles of Association the Chamber has 30 members of the Managing Committee. The break up of which is as follows; (a) Elected by members. 24 (b) Elected for town association 3 (c) Elected for trade groups. 3 total; 30

3. It further seems that as per Article 34 of the Memorandum and Articles of Association 1/3rd of the representatives belonging to each class of members who have completed three consecutive terms of office of the Managing Committee are to retire every year. It appears that there was no election of the members of the Managing Committee for about two years, the election was held on 23‑9‑1987 for 21 members of the Managing Committee, the break up of which is as follows: (a) Elected by members. 16 (b) Elected for town association. 3 (c) Elected for trade groups 2 Total: 21

4. It also appears that 63 members of the Chamber contested for the above 16 seats for the members, whereas for the other above two categories the five members were declared as elected unopposed. It may also be observed that after the conclusion of the above election, election of the office‑bearers of the Chamber was held on 27‑9‑1987. In the meeting of the Managing Committee held on the above date at 3‑30 p.m. in which 30 members of the committee i.e. 21 newly‑elected and nine continuing members participated. It may further be observed that one Nazim F. Haji by his letter dated 24‑9‑1987 which was delivered by hand to the Secretary of the Chamber on 26‑9‑1987 at 4‑45 p.m. M/s. Muhammad Saleem, Kapadia, Naseer Ahmed Burkhurdar, Haroon Faruqui and Shamon Bakir Ali by joint letter, dated 26‑9‑1987 had made certain allegations as to the irregularities of the election without particularizing the concrete instance‑. The former requested for re‑counting. The above complaints were attended to by the Secretary of the Chamber who acted as the Returning Officer by letter dated 27‑9‑1987. It appears that the above complainants also sent telexes to the Director of Trade Organization (here in after referred to as the D.T.O.) or. 27‑7‑1987 and the ‑after alleging the irregularities. In response to it, the D.T.Q. sent a telex date 29‑9‑1987, to the Chamber stating therein that Mr. Naeem Baig, Director EPB, Government of Pakistan, was deputed to re‑count the votes for member class of election held on 29‑9‑1987 and the Chamber was asked to provide all the necessary assistance The above telex was followed by another telex dated 0‑9‑1987, which‑ reads as follow;: "Mr. Nazir Ali, Secretary KCCI from M. Naseem Qureshi, DTO. Ref. my earlier telex of even number dated 29th September, 1987 regarding annual elections of the Managing Committee of the Chamber. The message was sent in response to a number of complaints received from certain members of the Managing Committee of the Chamber regarding alleged irregularities committed in counting of votes of the election. It is clarified that neither DTO nor the Ministry of Commerce intended to interfere in the process of elections of the Chamber. The intention of recounting of votes was to dispel the impression that any irregularities have been committed in the process of elections. Similarly compliance with the Article 32 (C) of the Memorandum and Articles of Association of the Chamber was desired in deference to the constitutional requirement of the Chamber. It is again requested that Mr. Naeem Baig, Director EPB may be extended all co‑operation and assistance in recounting the votes so that reply could be furnished to the complainants. It has been noted that the results of the elections have been announced by the General Body on 29th September. 1987, Mr. Tariq Sayeed who also sent a message in this behalf to the Commerce Ministry may be intimated accordingly." It appears that Mr. Naeem Baig had not recounted the votes according to the learned counsel for the petitioners he found impossible to recount the votes within a day or two, whereas, according to the learned counsel for the official respondents the Chamber did not extend the co‑operation and did not make the record available. It also seems that the Chamber demanded the dismissal of the D.T.O. on the ground of interference with the affairs of the Chamber as per news item which appeared, inter alia, in English Daily News dated 30‑9‑087, English Muslim dated 1‑10‑1987, Urdu Hurriyat dated 30‑9‑1987, Jang dated 30‑9‑1987, Nawa‑i‑Waqt dated 30‑9‑1987, Dawn dated 30‑9‑1987, which was prima facie unfortunate and apparently resulted in the passing of impugned orders. After that the Section officer, Ministry of Commerce, Government of Pakistan by his letter dated 1‑10‑1987 addressed to the Secretary of the Chamber enclosed copies of 9 telexes/ complaints containing allegation of rigging, manipulation and asked him to submit his comments within 7 days. The above letter was followed by the Department letters dated 5‑10‑1987, 7‑10‑1987, 8‑10‑1987 which were replied to by the Secretary of the Chamber by his letters dated 7‑10‑1987 and 14‑10‑1987 refuting the allegations contained in the complaints and pointing out that factually in the joint meeting of the Managing Committee held on 28‑9‑1987 the manner in which the election was held was commended even by some of the alleged complainants. It further seems that there was also a meeting convened by the official respondent at Islamabad on 19‑10‑1987 which was attended by the complainant party and some office‑bearers of the Chamber. The parties were directed to patch up their differences by 20‑10‑1987. Apparently there was no settlement between the two groups, the D.T.O. by a letter dated 20‑10‑1987 appointed Mr. Tahir Shaikh to make investigation into the alleged irregularities in the conduct of the election and to furnish a report to the Ministry, D,T.O. latest by 22‑10‑1987. The Secretary of the Chamber was directed to make re‑cord a‑valuable and to extend co‑operation to him Mr. Tahir Shaikh issued a letter dated 21‑10‑19811 to the Secretary of the Chamber asking him to make the record ,available. It seems that petitioners Nos.1 and 4 in Constitutional Petition No. D‑149 of 1987 had filed Suit No.1899 of 1981, ir the Court of ,Senior Civil Judge, South, Karachi, inter alia, against the D.T.O. and Mr. Tahir Shaikh and obtained an adinterim order dated 22‑10‑1987 against the D.T.O. and Mr. Tahir Shaikh for restraining them from implementing, . executing or otherwise acting upon the telex dated 20‑10‑1987. It appears that on the same day the D.T.O. passed two impugned orders both dated 22‑10‑1987 one under clause (e) of subsection (Z) of section 9 of the Trade Orgnization Ordinance, 1961 (hereinafter referred to as the Ordinance) annulling the election of the Chamber held on 23‑9‑1987 and also annulling the consequential elections of the office‑bearers held on 27‑9‑1987 with immediate effect and ordering the re‑election within 90 days; and the other under section 10 (2) of the Ordinance appointing Mr. Tahir Shaikh as the Administrator with immediate effect for a period of 90 days for taking over of the function of the Executive Committee of the Chamber. In order to impugn the above two orders Constitutional Petition No. D‑1384 of 1987 was filed on 24‑10‑1987 by three petitioners, namely, by the newly elected President, Vice‑President and a newly‑elected member of the Managing Committee, The above petition was admitted by a Division Bench of this Court on 25‑10‑1987 and adinterim stay order restraining respondent No.4, Mr. Tahir Shaikh from taking over as administrator till further orders was passed upon C.M.A. No.2960 of 1987. It was also mentioned in the admission order that the petitioners undertook to withdraw the aforesaid suit as it was not competent because of section 12 of the Ordinance. Whereas Constitutional Petition No.D‑1425 of 1987 was filed on 1‑11‑1987 by the five newly‑elected members of the Managing Committee in which also the above orders have been impugned. Alongwith the above petition, above C.M.A. No,3032 of 1987 for adinterim injunction against the above orders was sought. It seems that no adinterim order on the latter application has been passed.

5. The latter application had come up for hearing before a Division Bench of this Court on 18‑11‑1987, the Official Assignee of this Court was appointed as the Commissioner with consent of all the learned counsel for the parties including for the Intervenor who was impleaded to represent the point of view of the complainant party upon his application. The object of the above orders seems to be that to verify prima facie, whether there has been any mistake in the counting of the votes affecting the result of the election. It was also ordered that all the parties, who wished to participate in the recounting would be entitled to attend the same. The recounting was done by the Official Assignee in the presence of some of the parties who wanted to be present in six days from 8.30 a.m. to 8.00 p.m. daily with the assistance of a number of staff. He submitted his report on 24‑11‑1987. As per above report it appears that the 16 persons, who were declared as elected by the Returning officer of the Chamber had obtained the highest votes. The above C.M.A. No.3032 of 1987 was in fact heard and reserved for orders but subsequently it transpired that the similar stay application was pending in the other Constitutional Petition, namely, D‑1384 of 1987 it was, therefore, ordered on 3‑12‑1987 that both the applications may be fixed together for hearing.

6. In support of the above two applications M/s. Khalid M. Ishaque and Nasim Faruqui have urged that the impugned orders are in violation of the provisions of sections 9 and 10 of the Ordinance; and that the impugned orders were not warranted by the facts of the present case.

7. Mr. Khalid Latif appearing for the Chamber has supported the submissions of the learned counsel for the petitioners and has submitted that factually there was no irregularity or malpractice during the election and on the contrary there was praise from the members as ,to the manner of the election.

8. Mr.tadir N. Sayeed, who has appeared for the official respondents and Mr, Mansoor Ahmed Khan who has appealed for the newly‑impleaded respondent for the complainant party have urged that the impugned orders are within the ambit of the above sections 9 and 10 of the Ordinance; and that the petitioners have no case for ad interim order particularly in view of the fact that appeal under section 15 of the Ordinance was competent. Mr. Qadir Sayeed has further submitted that in fact the petitioners in Constitutional Petition No. D‑1 384 of 1987 obtained ad interim order on misconception that one of the impugned orders was passed under subsection (1) of section 10 and not under subsection (2) of the above section 10.

9. In order to appreciate the respective contentions of the learned 'counsel for the parties, it may be advantageous to reproduce here in below sections 9 and 10 of the Ordinance, which read as follows; 9 (1) All acts and proceedings of a registered trade organization shall be subject to the control of the Central Government and, subject to such control, the affairs of such trade organization shall be managed and conducted in such manner as the Director may, from time to time, direct. (2) Notwithstanding anything contained in any law for the time being in force or in the Articles or Memorandum of a registered trade organization and without pre judice to the generality of the foregoing provisions, the Director may:‑ (a) require any such trade organization or any competent person connected therewith to furnish him with any information, documents and returns relating to the affairs of such trade organization or to answer orally or otherwise any query with respect thereto; (b) inspect, with or without prior notice, any office of such trade organization including any of its branch or regional, circle, zonal or liaison office, or any record or document found therein; (c) attend any meeting of the general body or the Executive Committee of such trade organization or of any committee or other body set up or appointed to transact any business, or to conduct any affair, of such trade organization; (d) watch and supervise, or cause to be watched and supervised, any election held by, or for the purpose of electing persons to the Executive Committee or other body including a regional, circle or zonal body of any such trade organization; (e) within thirty days of the announcement of the results of any election held by any such trade organization, or anybody exercising any function relating thereto for the purpose of electing any person to the Executive Committee or other body including regional, circle or zonal body of such trade organization or for, any other purpose and with the approval of the appropriate Government, annul such, election if he is satisfied. (i) upon his own knowledge and after such investigations as he may think fit to make; or (ii) upon a report made . by a person. unauthorized by him to make investigation, for the purpose, that the irregularities in the conduct of such election justify such annulment and, by order in writing, direct fresh election to be held within such period as may be specified in the order; (f) it he considers it necessary for the smooth and efficient functioning of any such trade organization remove, or cause to be removed, any member of the Executive Committee, not exceeding a total of five in any calendar year, of such trade organization and fill up, or cause to be filled up, the resultant vacancy; (g) suspend, or cause to be suspended, for a specified period any member, not exceeding a total of fifteen in one calendar year, of any such trade organization and cancel, or cause to be cancelled, any such suspension or the suspension of any member otherwise than by or at the instance of the Director; (h) remove, or cause to be removed, froth the membership register, the name of any member, not exceeding a total of fifteen in one calendar year, of any such trade organization, and re‑instate, or cause to be re‑instated, in the membership register, any member so ‑removed or removed otherwise than by or at the instance of the Director; (I) cancel, suspend or modify any resolution adopted or any decision taken, by the general body of the Executive Committee of such trade organization if,‑‑ (i) he considers it necessary In the public interest or for order , working of the trade organization; or (ii) in his opinion such resolution or decision is not in conformity with the provisions of the articles or memorandum or any rules or regulations made thereunder.

10. Suppression, of Executive Committee and appointment of Administrator. ‑‑(l) Where the central Government is of opinion that the affairs of a registered trade organization are not being properly managed and that the interests of trade and industry so require, it may, by order in writing, supersede the Executive Committee of such trade organization for such period, not exceeding three years, ,as may be specified in, the order: Provided that no such order shall be made unless the Executive Committee has been given a notice in writing of, and afforded an opportunity to make a representation against, the intended suppression. (2) Where‑ (a) an Executive Committee is superseded under subsection (1), or (a) it is not, in the opinion of the appropriate Government, possible for any reason to reconstitute the Executive Committee at the due time of such reconstitution, or (c) The Executive Committee is debarred by an order of any Court, from discharging its functions, the appropriate Government may appoint, for such period, not exceeding three years, as it may think fit, and Administrator to take over the functions of such Committee and to manage and conduct the affairs of the trade organization: Provided that if the period of suppression is terminated or the Executive Committee is reconstituted or the order of the Court is vacated before the expiry of the period for which the Administrator shall have been appointed, the appropriate Government may direct the Administrator to relinquish the functions taken over by him in favour of the Executive Committee, (3) Upon the appointment of an Administrator under clause (a) or clause (b) of subsection (2), the members of the Executive Committee shall be deemed to have vacated their respective offices. "

10. A perusal of the above quoted section 9 indicates that all acts and proceedings of a registered trade organization are subject to control of the Central Government and subject to such control the affairs of such trade organization shall be managed and conducted in such manner as the Director from time to time direct. ". further indicates that. notwithstanding anything contained in any law for the, time being in force or articles or memorandum of a registered trade organization and without prejudice to the generality of the above provision the Director may require a trade organization to furnish to him with any information, documents and returns relating to the affairs of such trade organization or to answer orally any question to him or to inspect with or without notice any office of such trade organization etc. or to attend any meeting of the general body or the Executive Committee of such trade organization on anyway or other body set up or appointed for transaction business or to conduct any affairs or to watch or supervise or cause to be watched or supervised any election held, by or for the purpose of electing members of the Executive Committee or other body including regional circle or zonal body of any such trade organization or within thirty days of the announcement of the result of the election held by any such trade organization or anybody exercising any function relating thereto for the purpose of electing any person to the Executive Committee Or other body etc to annul such election, if he is satisfied upon his knowledge and after such investigation as he may think fit to me or upon a report made by person authorised by him to ma‑ investigation for 'the purpose, that the irregularities in the conduct of such election justified such annulment and by ordering in writing direct fresh election to be held within such period as may be specified in the order. The other provisions of the above subsection (2) of section 9 of the Ordinance further empower the Director to take various actions spelt out in clauses (f) and (g).

11. It may also be noticed under subsection (1) of section 10 it has been provided that where appropriate Government is of the opinion that the affairs of a registered trade organization are not being properly managed and that the interest of trade or industry so require, it may by order in writing supersede the Executive Committee of such trade organization for such period not exceeding three years as may be specified in the order. It may also be pointed out that proviso to above subsection imposes an embargo that no order under the above subsection (1) shall be made unless the Executive Committee had been given a notice in writing of, and affording an opportunity to make a representation against the intended suppression. Whereas, 1 under subsection (2) the appropriate Government has been empowered either to reconstitute an Executive Committee in place of the superseded Executive Committee or to appoint an Administrator.

12. In the instant case as pointed out hereinabove DTO by his telex dated 29‑9‑1987 appointed Mr. Naeem Baig for recounting the votes as the manipulation in the counting of votes was the main allegation of the complainant party. After that he appointed Mr. Tahir Shaikh for investigating the alleged irregularities through a telex dated 20‑10‑1987. On the same day when petitioners Nos.1 and 4 in Constitutional Petition No.D‑1425 of 1987 obtained an adinterim order in the aforesaid Suit No.1899 of 1987 he passed the two impugned orders of annulling the election superseding the Managing Committee and appointing an Administrator . In our view, prime‑ facie, the above I action was not warranted by law. Barring a few telexes sent by the defeated candidates or their supporters after three days from the date of the election, nothing has been brought on the record of the above petitions by the official respondents from which it can be inferred that factually there were such irregularities in the election which warranted the taking of 'the impugned actions on 22‑10‑1987. This Court in order to verify prima facie, whether there has been any manipulation in the counting of the votes with the consent of all the learned counsel for the parties including the learned Standing Counsel appointed the Official Assignee for recounting in presence of every one who wished to attend. As pointed out hereinabove according to his report though there are minor variations as to the number of' votes obtained by the candidates and as to the invalid votes but the result is not affected. M/s. Qadir Sayeed and Mansoor Ahmad Khan have vehemently urged that the above discrepancies indicates that there were some irregularities in the election. It cannot be overlooked that there were 63 candidates and each voter was to cast 16 votes and, therefore, total number of votes cast were over, 48,000 and there may appear some discrepancies in the recounting. In any case prima facie there were no irregularities of the nature as to warrant the taking of action under clause (e) of subsection (2) of section 1,1 of the ordinance for annulling the election, without getting the matter B investigated into and without hearing the newly‑elected members who were to lose their seats. We are not unmindful of the fact that initially the D.T.O. only wanted to get the votes recounted and, thereafter, he wanted to get the complaints investigated, which attempts proved futile because of the filing of the aforesaid suit by the petitioners Nos.1 and 4 in C.P. D‑1425 of 1987. But even if we were to hold that the above two petitioners were responsible for obstructing the execution of the above orders, paralysing the democratic process and depriving the other members of the Managing Committee, (which included 9 continuing members) without hearing them was not justified. However, it was submitted by M/s. Qadir Sayeed and Mansoor Ahmed Khan that the D.T.O. has complied with the requirement of the principle of natural justice inasmuch as he heard the Chamber by obtaining its replies dated 7‑10‑1987, 14‑10‑1987, to his letters dated 1‑10‑1987, 5‑10‑1987, 7‑10‑1987 and 8‑10‑1987 and by hearing the parties in the meeting held at Islamabad on, 19‑10‑1987 referred to hereinabove. In this behalf, it may be observed that addressing a letter to the Secretary of the Chamber, who is a paid Secretary and seeking certain clarifications from him in our C view, prima facie does not constitute the hearing of the affected members. It is the case of the petitioners in Constitutional Petition No.D‑1425 of 1987 that they had not attended any meeting in Islamabad. It is true that the appropriate Government and the D.T.0 have very wide power under sections 9 and 10 of the Ordinance but those powers are to be exercised in the manner provided therein reasonably, fairly and justly and not arbitrarily or capriciously or in violation of the principles of natural justice.

13. Similarly it is an admitted position that before superseding the Managing Committee and appointing an Administrator under section 10 of the Ordinance no requisite notice as to the suppression as provided in proviso to subsection (1) of section 10 was given to the Executive Committee. It was urged by Mr.Qadir H. Sayeed that factually the action was taken under subsection (2) of section 10 of the Ordinance, in our view, this contention is contrary to the factual position. An Administrator cannot be appointed under subsection (2) of section 10 till the time an Executive Committee is superseded under subsection (1) of section

10. In the present case the impugned orders were passed for superseding the Executive Committee as well as for appointing an Administrator, which could have been done under subsections (1) and (2) of section 10 respectively. ‑,

14. We are inclined to hold that under sections 9 and 10 of t ordinance the appropriate Government and the D.T.O. have inter alia the power to get the investigation carried out as to the allege irregularities committed in the election in question and even as the working of the Chamber, the Court generally will be reluctant interfere with such an order by an adinterim injunction for preventing the exercise of the above statutory power in the absence of an manifest mala fide. In the instant case the petitioners have not brought any reliable material or, record to show prima facie that the D.T.O.1 aforesaid orders for recounting of votes and for carrying o investigation as to the alleged irregularities were mala fide or suffer from any legal infirmity. On the contrary the demand of the Chamber for removal of D.T.O. was prima facie unwarranted and unjustified which apparently accelerated the passing of the impugned two orders dated 22‑10‑1987. We are, therefore, not inclined to grant any adinterim order in respect thereof. But we are inclined to grant adinterim order in respect of the aforesaid two impugned orders dated 22‑10‑1987. We hereby suspend the operation of the same till further order or till the disposal of the above petitions subject to the conditions that the petitioners Nos.1 and 4 of the aforesaid Constitutional Petition No. D‑1425 of 1987 will withdraw aforesaid Suit No.1899 of 1987 within three days if not already withdrawn and the official respondent shall be entitled to get the votes recounted and to get the complaints investigated into and to pass appropriate order in accordance with law after hearing the affected parties/persons in case they still wish to do so. The Official Assignee shall make the record of the election available in his office after notice to the parties to the person or persons to be named by the D.T.O. for recounting or investigations. But the record will be kept by the Official Assignee till further order of this Court. The Chamber shall also make its record available to the aforesaid person or persons and will extend all co‑operation We may observe that prima facie in the instant case appeal under section 15 of the Ordinance is not adequate/ alternate remedy. We may also observe that the observation contained hereinabove are of tentative nature and are to be ignored at the regular hearing of t above petitions.

16. The above two Civil Misc. Applications stand disposed of in the above terms. M. B. A./Q-9/K Order accordingly.