1999 PLP 1837 (CLC)

‑‑‑‑Ss. 9 & 15‑‑‑Annulment of elections of trade organization‑‑‑Petitioner for annulment of elections had been adjudicated upon and no serious irregularities were found‑‑‑Annulment of election on sheer technicalities, which had not even been complained of, was held not proper. (d) Trade Organizations Ordinance (XLV of 1961)‑‑‑ ‑‑‑‑S. 9‑‑‑Show‑cause notice by the Director‑‑‑Validity‑‑‑Contempt of Court‑‑ Persons obtained stay order from the Court‑‑‑Director Trade Organization directed issuance of show‑cause notice to all such persons‑‑‑Act of Director was, held, reprehensible and contemptuous to Court of Law. (e) Trade Organizations Ordinance (XLV of 1961)‑‑‑ ‑‑‑‑S. 15‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑ Maintainability‑‑‑Appeal‑‑‑Remedy of appeal was not considered to be adequate or efficacious in the peculiar facts and circumstances of the present case. particularly when no action was taken on it‑‑‑Constitutional petition was maintainable. Sardar Ahmad Jamal Sukhera for Petitioner. M. N. Baig for Respondents. Date of hearing: 16th October, 1997. The petitioner was elected on 5‑4‑1997 as Chairman, North Zone of Pakistan Hosiery Manufacturers Association (P.H.M.A.). Respondent No.3 moved a petition under section 9 of the Trade Organization Ordinance, 1961, before the Director of Trade Organization, respondent No.2 for annulment of the said election of the petitioner. The Director, Trade Organization vide impugned order, dated 30‑5‑1997 annulled the election of the petitioner held on 5‑4‑1997. The petitioner filed an appeal under section 15 of the said Ordinance to the Federal Government, on which no action has so far been taken.

2. Learned counsel for the petitioner has stated that the impugned order, elated 30‑5‑1997, passed by the Director, Trade Organization with the approval of the Federal Government, was void, without jurisdiction and nullity in the eye of the law. It was submitted that the impugned order itself clearly showed that the respondents had not mentioned the exact nature or specific malpractices in the conduct of the elections and respondent No.2 had decided to reject the petition as no irregularity in the conduct of the affairs and elections of the associations has been pointed out. It was argued that after recording the findings against any irregularity in the elections, it was gross abuse of powers by the Director, Trade Organization to pass an order of annulment of elections, on the so‑called ground of the same being void and without legal covers in terms of 1)(2) and 2(1) of the said Ordinance. It was further argued that the remedy of appeal had become illusory as the impugned order itself had been passed with the approval of the Federal Government.

3. On the other hand the learned counsel for the respondents has contended that the petitioner had already invoked the remedy of appeal as provided for in section .15 of the Ordinance, therefore, the present writ petition was not maintainable. Learned counsel further submitted that the Director, Trade Organization had the authority to declare the elections as null and void by the exercise of suo Motu jurisdiction as these elections were not covered by the legal frame work. The learned counsel drew my attention to paragraph 11 of the impugned order, passed by the Director, Trade Organizations, in support of his contentions that the petitioner could not specify the memorandum and article of association, which were in force on the election day.

4. I have heard the learned counsel for the patties at some length. I find that the provisions of section 9 of the Ordinance being a restriction on the fundamental right of freedom of associations have to be strictly construed. The Honourable Supreme Court in the recent case Civil Aviation Authority, Islamabad and others v. Union of Civil Aviation Employees and another PLD 1997 SC 781 has held the formation of associations by the Civil Aviation Employees without the legal cover of Industrial Relations Ordinance, 1969 and tile Pakistan Civil Aviation Authority Ordinance, 1982, is valid on the strength of Article 17 of the Constitution of Islamic Republic of Pakistan. In the case of Sultan Mawiee and 3 others v. Federation of Pakistan Chamber of Commerce and Industry, Karachi and 3 others PLD 1982 SC 174 the provision of section 9 of the Trade Organizations Ordinance, 1961 was examined and interpreted. Having regard to the nature of the provision in question and the general object and purpose of the statute, it was held that the Ordinance was intended as pronounced by its preamble to provide for regulation and control of Trade, Organization Section 9 confers supervisory power upon the Government told the Director, `trade Organization over the functioning of the 'trade Organizations registered tinder the Ordinance. It was held that the statute pertaining to exercise of Trade Organizations, to eminent domain, to restraint of personal liberty of freedom of contract and the like are statutes in derogation of common right and subject to strict construction. It was further, held that in general a corporation was subject to reasonable and proper regulation by the State, Since it was respondent No.3, who had moved the Director, Trade Organization for the annulment of the elections, it was not open to the said Director to reject the complaint/petition of respondent No,3 and yet to proceed to annul the elections 8 as if, he was acting on his own motion. Once a complainant had set a machinery of law in motion, it was not opened to the Director, Trade Organizations to switch over the same and to annul the elections on a ground, which was not available and in any case, which was rectifiable, The impugned order itself shows that the same was passed in exercise of suo mote powers. The petition of the respondents had been adjudicated upon and no serious irregularities were r found in the conduct of elections. It was not proper on the part of Director, Trade Organizations to annul the election on sheer technicalities, which had not even been complained by the respondents, The conduct of the Director, Trade organization in directing issuance of show‑cause notice to all those persons, who had approached the learned Civil Judge, Faisalabad and Karachi and obtaining stay orders is most reprehensible and the contemptuous to a Court of law .The grounds on which the elections was annulled were totally non‑existent and even otherwise extraneous to the abject of the law and the Constitution,

5. Now the question of the availability of the right of the appeal needs to be dealt with. Suffice to say that the Federal Government had also indicated its r mind by approving passage of the impugned order. Therefore, in the peculiar t facts and circumstances of the present case the remedy of appeal cannot be considered to be adequate or efficacious particularly when no action has been taken on it.

6. For the foregoing reasons the impugned order, dated 30‑5‑1997 is declared to be without lawful authority and of no legal effect. The Pakistan Hosiery Manufacturers Association shall, however, incorporate necessary amendments in its memorandum and Articles of Organizations for the future conduct of elections and other matters as directed by the Director of Trade Organizations. This writ petition is accepted. There shall be no order as to costs. Q.M.H./M.A.K./M‑625/L Petition accepted.