P L D 2003 Karachi 721 (PLP)

Since, both parties are relying upon certain provisions of .the Constitution of P.C.B. it would be advantageous if Articles 37 and 41 be reproduced which reads as follows:‑‑ "

37. Suspension of membership.‑‑If at any time the council is of the opinion that the affairs of a full member or associate member are not being carried out in accordance with this constitution, or its conduct is derogatory of, or repugnant to, the aims and objects of the Board or it no longer fulfils the qualifications for membership, or has failed to abide by the undertaking given by it under Article 13 or has failed to meet its financial obligations to the Board, it may suspend its membership. "

41. Super session of the Board.‑‑(1) The Patron may, if satisfied that the Board is unable to perform its functions for any reason, by order supersede the management of the Board and appoint an ad hoc Committee consisting of a Chairman and as many members as he may consider appropriate for performance of the functions of the Board. (2) Upon an order of supersession being made under clause. (1), the General Body and the Council shall stand dissolved and‑the Chairman, Treasurer and the Chief Executive shall vacate their respective offices. (3) The Ad hoc Committee appointed under clause (1) shall assume all the functions of the Board and reference to the General Body, Council and the various functionaries in the Constitution shall mean reference to the Ad hoc Committee. (4) The Patron may, at any time, revoke the order of supersession made under clause (1) and cause the appointment of new General Body and Council under this Constitution. (5) Upon revocation of order of supersession the Ad hoc Committee shall vacate its office and the new General Body, Council and other functionaries appointed under clause (4) shall assume their functions under this Constitution. (6) All acts done, proceedings taken and contracts entered into by an Ad hoc Committee shall be deemed to have been done, taken and entered into lawfully and validly, and shall be binding upon the Board. " Article 37 of the constitution of P.C.B. empowers the Council of P.C.B. to suspend membership of any association, if in its opinion, member association is found involved in any of the following acts, namely, (i) the affairs of the member association are found not in accordance with the Constitution of the P.C.B., or (ii) its conduct is derogatory or repugnant to the aims and objects of the Board, or (iii) when an association no longer fulfils the qualification of the membership or (iv) when an association has failed to abide by the undertaking given m furtherance of Article 13 of the Constitution of. P.C.B. and lastly (v) when a member association fails to meet its financial obligations. It is these preconditions which entitle the Council of P.C.B. to invoke Article 37 of the Constitution. The argument of Mr. Arshad Tayebally that only the Council is competent to suspend a member is not convincing as Article 41(3) clearly provides that once an Ad Hoc Committee has been appointed by the Patron, it shall assume the functions of the Board, the General Body and the Council. However, there are five pre‑conditions for invoking Article 37 which have been enumerated hereinabove. It is to be exercised when the Council or, in the case of its dissolution and supersession, by the Ad Hoc Committee if in their opinion any of the above pre‑conditions exist. The word "opinion" has been defined in various reported cases. Ordinary dictionary defines the word "opinion" to be a judgment, estimation and a statement which is probably true, (See Chamber's 20th Century Dictionary). The word "opinion" has also been defined by a Full Bench of this Court in reference to section 309 of the Criminal Code, 1898 in the case of Tooh v. The State (PLD 1960 Karachi 1) in the following manner:‑‑ "The word 'opinion' implies that the assessors should apply their minds and then come to the conclusion of guilty or not guilty. For this purpose they must consider the facts, apply the law to them and thereafter draw their conclusions. " In reference to section 13 of the Income Tax Act, 1922 (now repealed), it was defined by a Division Bench of this Court that "opinion on the basis whereof a statutory authority is presiding may be accurate or erroneous, but it must be a common opinion or conviction, passed on tangible material capable to sustain such opinion, and not a mala fide opinion or a colourable exercise of statutory power" see: Star Rolling Mills v. Commissioner of Income‑tax (PLD 1974 Note 129 at p.189). This view was followed by a Full Bench of the Lahore High Court in the case of Khawaja Muhammad Sharif v. Federation of Pakistan and others (PLD 1988 Lahore 725 at page 791) where it was observed that "before taking any step to dissolve the Assembly the Federation was duty bound to form an opinion. In the context of the Constitutional provision, the formation of opinion is different from a mere exercise of will, or doing a thing at one's pleasure and whim. The opinion should be such that it will bear public examination. Though the President can make his assessment but his opinion must be found on some material". For further reference see: Federation of Pakistan and others v. Haji Muhammad Saifullah Khan and others (PLD 1989 SC 166). Thus, in my view, the word "opinion" as used in Article 37 of the P.C.B. Constitution contemplates a situation where there should be a subjective assessment of the entire situation by the authority before taking any action under the said Article. While taking an action, thereby suspending working of an association, it should be kept in mind that to form an association is a fundamental right as guaranteed under Article 17(1) of the Constitution of Pakistan, 1973. It provides that every citizen shall have the right to form associations or unions subject to any reasonable restriction imposed by law in the interest of sovereignty or integrity of public order or morality. Therefore, in my considered view, powers under Article 37 of the Constitution of P.C.B. should be exercised rarely, sparingly and in most exceptional cases when any of the conditions, as enumerated hereinabove, are fulfilled. This provision comes directly in conflict with the fundamental rights, which not only grant right to form an association but at the same time, also grant right to continue running of the same. Such view was held by a Full Bench of the Madras High Court in the case of V.G. Row v. The State of Madras AIR 1951 Madras 147 at page

179. In the case of Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473 at 559, it was, inter alia, held that the fundamental rights not only guarantee the right to form a political party but it also includes participation in the elections of the Assembly under its banner and in case a majority is gained then the right to form a Government. To form an association, thus is most purposeful and an effective right. A former Chief Justice of Pakistan, Muhammad Munir, J. (as he then was), defined the concept of fundamental it rights by saying that "The very concept of a fundamental right is that it being a right guaranteed by the Constitution cannot be taken away by the law, and it is not only technically inartistic but a fraud on the citizens for the makers of Constitution to say that a right is fundamental but that it may be taken away by the law". (See Jibendra Kishore Acharya Chowdhury and others v. The Province of East Pakistan PLD 1957 SC 9 (Pak.) at 41). It was argued by Mr. Usman Ghani Rashid, learned counsel for the defendants that the plaintiffs have failed to show prima facie existence of mala fide in the acts of dissolution of The K.C.C.A. He has rightly contended that where mala fides are alleged, it is to be pleaded with material particulars. According to the learned counsel, no instances of mala fides have been cited either in the pleadings of the plaintiff or in the affidavit filed in support of application for interim injunction. In reply, Mr. Arshad Tayebally has referred to paragraphs 7, 9 and 11 of the plaint to show the mala fides of the defendants in dissolution of The K. C. C. A. It is to be noted that there is a distinction between malice in law and malice in facts for the first time, such distinction was drawn in the case of Malik Ghulam Mustafa Khar PLD 1989 SC

26. Subsequently, it was followed by a Full Bench of Lahore High Court in the case of Mian Manzoor Ahmad Wattoo v. Federation of Pakistan PLD 1997 Lah. 38 at page 82, where the following observations were made: "We are unable to agree as the distinction between malice in law and malice on facts is well‑known. An action is said to be suffering from malice in law if the authority taking the action is not competent to do so or has acted beyond its powers or in violation of the law applicable even though it may have acted bona fide and without ill will." In the circumstances of this case, the plaintiff has prima facie established that action of the defendant in suspending The K.C.C.A. does not fall within the scope of Article 37 of the Constitution of P.C.B. and secondly it is violative not only of principles of natural justice but also of the fundamental rights. All these circumstances are sufficient material to initially establish malice in law. Burden was on the defendants to prove bona fide and h lawfulness of their action under challenge in this suit for which no material, none at all, was placed by them before this Court for reasons best known to them, except for bare allegations of irregularities and misuse of K.C.C.A. funds, in their written statement, for which no action has been initiated by the defendants against The K.C.C.A. till this date. This suit was filed on 7th August, 1999 where after notices were Issued to the defendants which were duly served and in reply to the same Messrs Ali Sibtain Fazli & Company, Advocates and Mr. Usman Ghani Rashid, Advocate were engaged and who appeared in this Court on their behalf on 16th August, 1999. On 16th September, 1999 a joint written statement was also filed by the defendants. However, neither any copy of the Notification nor any order purported to have been passed under Article 37 of the constitution of the P.C.B. suspending and superseding the K.C.C.A. was filed or placed before this Court. I am at a loss to understand the wisdom behind such move on the part of the defendants i.e. why they have preferred not to place any material before this Court which may support their case for suspension or supersession of K.C.C.A. Even the Notification/Order suspending K.C.C.A. was not placed before this Court. My anxiety was to ascertain the exact date of the order of suspension and its precise terms. The press clippings filed with the plaint by the plaintiff, which are not denied by the defendants, suggest that the order suspending the K.C.C.A. was passed on 16th July, 1999 and was widely reported in the national newspapers of 17th July, 1999. Strangely, it is the same date which is reflected in Annexure 'B' to the plaint through which the management of P.C.B. was superseded and the Ad Hoc Committee comprising of the defendants was formed. Although supersession of P.C.B. is not under challenge in the instant suit but if these dates are correct, then the question that arises is how could the K.C.C.A. be suspended on 16th July, 1999 by the Ad hoc Committee which came into existence on 17th July, 1999? These ambiguities were not clarified by the defendants whose case is based simply on the provisions of Article 37 of the P.C.B. Constitution. The P.C.B. Constitution was framed in the year 1995 by the Ministry of Culture, Sports and Tourism, Government of Pakistan, pursuant to sections 3(1) and 4 of the Ordinance XVI of 1962, namely, Sports (Development and Control) Ordinance, 1962 (PLD 1962 Central Statutes 225). The plaintiff has filed copy of the Gazette of Pakistan dated 16‑3‑1995 as Annexure "C" to the plaint. Perusal of the same reveals that P.C.B. Constitution was made by the Ministry of Culture, Sports and Tourism, Government of Pakistan. Through one Notification S.R.O. 55(KE)/95 dated 22‑2‑1995 while constituting the Board for promotion, development and regulating the game of Cricket in Pakistan, the P.C.B. Constitution was also framed. None of the parties have argued on the point that under section 5 of the Ordinance XVI of 1962, it was P.C.B. which was authorised to make rules and regulations for carrying its objects into effect and not the Ministry of Sports. Since none of the counsel has made submission on this vital point. I would not like to make any further comments. Now, reverting to the reported cases cited at the Bar, it was held by this Court in the case of Usman panjwani 1996 CLC 311 at page 315 that any order passed in violation of the principles of natural justice is not sustainable in law. The Case of Mian Muhammad Hayat PLD 1964 SC 321 is a service matter where reference was made to the provisions of West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, where after the suspension of a Government servant was upheld. The case of M. Noman PLD 1964 Dacca 671 also pertains to service of an employee of the Dacca Improvement Trust, where it was held that the appointing authority has the power to order suspension of any employee even in absence of common laws or rule. Likewise, the case of M.S. Khawaja PLD 1966 Lahore 1006 is also a service matter where suspension of an employee of Municipal Corporation, Lahore was challenged. The rule laid down in these cases does not lend any help to the defendants. In a Service or Labour dispute, an employee who has remained under suspension is entitled for reinstatement in the service with full back benefits upon his success Through a Court of law. Here, suspension of the K.C.C.A. means and includes suspension of nearly 318 Clubs and deprivation of thousands of cricket players who are all looking forward to playing on provincial and national levels. In the case of Messrs Pak Furnishing Stores PLD 1985 Karachi 201 a learned Single Judge of this Court, Saleem Akhtar, J. (as he then was) has defined the term "suspend" in reference to the Sindh Building Control Regulation, 1984, and Sindh Building Control Ordinance, 1979 in the following manner: "The word 'suspend' has been defined in Black's Law Dictionary as follows: 'Suspend: to interrupt, to cause or cease for a time, to postpone, to stay, delay or hinder to discontinue temporarily, but with an expectation or purpose of resumption, to cause a temporary cessation as of work by an employee. In Ballentine's Law Dictionary the word 'suspend' has been defined as follows: 'Temporarily inactive or inoperative, held in abeyance'. The word 'suspend' does not connote the meaning of cancellation or revocation of any permission or licence. It only temporarily deprives of the permission or privileges under the permission." With respect to the second contention of the plaintiffs that they were condemned unheard, Mr. Usman Ghani Rashid has referred to a Division Bench decision of the erstwhile Dacca High Court in the case of Tafazzal Hossain v. Government of East Pakistan and another PLD 1965 Dacca 68 wherein it was, inter alia, held that the maxim "audi alterem partem" is not inflexible rule and where opportunity of hearing has been given after passing of an order, it justified requirement of the principle of natural justice. Again I may say that no material was placed by the defendants to show that even after dissolution of the K.C.C.A. any show‑cause notice was served or any hearing was conducted. It is now more than two months when the order of suspending activities of K.C.C.A. was passed by the Ad hoc Committee. It is well‑settled law that the principle of natural justice is to be read as part of every statute unless the same is specifically excluded. This principle is h applicable to judicial as well as to all quasi judicial proceedings. If any reference is needed see: Mrs. Aneesa Rehman v. PIAC and another 1994 SCMR 2232; Nasir Khan v. Aziz Ahmed and others PLD 1980 Kar. 122 and the famous case of the University of Dacca and another v. Zakir Ahmed PLD 1965 SC

90. In my tentative view, the defendants have failed to meet the requirements of the rule laid down in these judgments. In the aforesaid circumstances, I am of the tentative view that there was a gross violation of principles of natural justice in suspending the K.C.C.A. The principles of natural justice will attract more in the circumstances as of the present case as it amounts to suspension of a fundamental right guaranteed by the Constitution of Pakistan, 1973 and thus the plaintiffs have established the existence of a prima facie case. Likewise, the questions of irreparable loss and injury as well as of the balance of convenience are also inclined in favour of the plaintiff. Pursuant to the above discussion, Civil Miscellaneous Application No.6669 of 1999 filed by the plaintiff is granted in the following terms and subject to the observations made hereinafter while Civil Miscellaneous Application No.7417 of 1999 filed by the defendants is dismissed as a consequence of the above discussion: (i) The defendants are restrained from interfering in the lawful and bona fide working of the plaintiff/K.C.C.A. till disposal of the suit. (ii) The above suit is to be fixed for regular hearing within six months for which office is directed to fix this suit for framing of issues and for hearing of other applications on 7th October, 1999. (iii) The plaintiff is directed to ensure holding of free and fair elections of the K.C.C.A. as per its Bye‑Laws/Regulations in most transparent manner and on the due date, It is being clarified to avoid any misconception in future about the injunction granted today. (iv) In view of the allegations of the defendants, it will be open to them to take action afresh as provided in Article 37 but strictly in terms thereof and after fulfillment of the requirements of the principles of natural justice. M.B.A./K‑91/K Order accordingly.