P L D 1978 Peshawar 128 (PLP)

(9) . . . . . . . . . (10) Major-General (Retd) Jehanzeb Khan. These Directors shall hold office until 31st January 1978, unless they or any of them is sooner removed or ceases to hold office in accordance with law." (3) The respondents undertake to withdraw the orders dated 5-5-1976 and 16-8-1976 by which the appellan was suspended and later removed from the office of the Chief Executive of the respondent-Company. A resolution to this effect will be passed within a week. (4) The appellant shall continue to hold office of the Chief Executive of the respondent-Company till 31st January 1978, unless sooner removed or he ceases to hold office in accordance with law. He will perform his duties and functions as Chief Executive of the company in accordance with law and the decisions taken by the Board of Directors, in accordance law with. (5) he books of the company shall be returned to the registered office of the Company by the appellant and they shall not be removed from there except in accordance with law." In consequence of tie above agreement reached between the parties, their Lordships of the Supreme Court in the concluding paragraph of the judgment observed that "as the compromise is in the interest of smooth functioning of the Company, we accept the same and dispose of the appeal in terms thereof leaving the parties to bear their own costs". It is this order of the Supreme Court of Pakistan the execution and implementation of which was sought by the present appellants before the learned Company Judge through execution application which his Lordship disposed of by his judgment dated 28th July 1977, impugned in the present appeal. The prayers made in the execution application bled before the learned Company Judge were "(a) That this learned Court may execute the judgment of the Supreme Court of Pakistan dated 24th November 1976, in letter and spirit and ensure that the affairs of the Company are managed in accordance with law declared by the Supreme Court of Pakistan. It is further prayed that all actions taken by the respondents in violation of the aforesaid judgment of the Supreme Court and of law be treated as nullity and being of no legal effect whatever. (b) It is further prayed that in accordance with the law laid down by the Supreme Court of Pakistan, the tenure of the petitioners be directed to be Increased by the period/periods during which they have been denied the right to perform their functions by the respondents. (c) It is also prayed that costs of this petition be allowed to the peti tioners as also special costs for deliberately violating the directions of the Supreme Court of Pakistan and of law." It will be necessary to mention here that before filing the above execution application before the learned Company Judge, appellant Salahuddin Khan had filed Civil Misc. Petition No. 5 of 1977 before the Supreme Court that respondent Taj Muhammad Khanzada be committed to contempt of that Hon'ble Court, for he failed to obey its order dated 24th September 1976, according to which he had undertaken to comply with the agreement Incorporated in that order. According to their Lordships of the Supreme Court, however, contempt proceedings against respondent Taj Muhammad Khanzada were not called for and while disposing of the aforesaid petition by order dated 11th April 1977, this is what their Lordships of the Supreme Court observed :- "However, we consider that action by way of contempt is not the proper remedy in this case, as we cannot convert ourselves into an executing agency in respect of the matters comprised in the under takings embodied in our order of the 24th of November 1976. For a proper resolution of the controversy now brought to our notice by the petitioner it would be necessary to examine the facts and documents supporting the allegations made by the petitioner, We consider that it would be more appropriate if these matters are agitated before the learned Company judge in the Peshawar High Court, who may Issue necessary directions for the implementation of the mutual settlement between the parties as embodied in the aforesaid order Of this Court" In consequence of the above order, the present appellants accordingly filed the execution application before the learned Company Judge and his Lordship, by the aforesaid order of 28th July 1977, disposed it of in the following manner :- "in that view of the matter this Court as Executing Court cannot determine at this stage whether the said judgment/order of the Supreme Court is declaratory or executable and no argument contrary to what has been held by the Supreme Court, In that regard, can be entertained." In paragraph 20 of his judgment his Lordship further held : ..Therefore, calling of the meeting of the Board of Directors or for that matter of the shareholders on 31-3-_1977 and taking a decision to terminate the service of petitioner could hardly be justified. In fact such action betrays Jack of good faith. In paragraphs 22 and 23 of the judgment, his Lordship came to the conclusion:- "22 . . . . . . The relevant executable part, so far as petitioner No. 1 is concerned, of the judgment/order dated 24-11-1976, referred to above, is that Mr. Salahuddin Khan shall be allowed to perform his duties and functions as Chief Executive of the respondent-Company in accordance with law and the decisions taken by the Board of Directors in accordance with law. He has to continue his functions as such till 31-1-1978, unless sooner removed or he ceases to hold office in accordance with law. To that extent a direction can be issued and is thus befog issued to respondents 2 to 6 to allow Mr. Salahuddin Khan petitioner to perform his duties and functions as Chief Executive of the respondent-Company in terms of the agreement dated 4-1-1916 adopted and confirmed in the meeting of the Board of Directors held on 7th January 1976, and as embodied in the judgment/order dated 24-11-1976 of the Supreme Court of Pakistan in Civil Appeal No. 81 of 1976 till 31-1-1978 unless be is sooner removed or be ceases to hold office, in accordance with law. He shall exercise the powers and perform the duties and functions as Chief Executive of the respondent-Company in accordance with law and according to the decisions taken by the Board of Directors in accordance with law. In quantum and nature, these powers, duties and functions shall be the same as are exercised and performed by his counterpart Major General (retired) Sherin Khan in Charsadda Sugar Mills. Removal of Mr. Salahuddin Khan from the office of the Chief Executive of the respondent-Company on 31-3-1977 during the pendency in Civil Misc. 5 of 1977 and in particular after the passing of the Interim order dated 8-3-1977 in those proceedings could not be considered as valid or to be having legal backing. (23) It is hoped that these directions shall be complied with, by both the parties in letter and spirit and in a spirit of accommodation and in the interest of the smooth running of the Mill. So far as petitioners Nos. 2 and 3 are concerned, I have already held that they have no locus standi to seek their relief through the present execution petition." It is contended by the learned counsel for the appellants that the learned Company Judge has erred in not allowing the prayer of appellant No. 1 that the period during which he had been unlawfully deprived of his office as Chief Executive of the Company be added to the period ending on 31-1-1978, and in so far as his finding that appellants Nos. 2 and 3 have no locus standi to claim relief before him is concerned, it is not supported by rte material on record as also that it is clearly contrary to law. He urged that Sairab Hayat Khan could not be removed from the office of General Manager except in accordance which law and since he has not been so removed, his re-instatement should have been ordered. He further urged that the learned Company Judge has failed to execute and implement the judgment of the Supreme Court dated 24-11-1976, in so for as the emoluments claimed by appellant No. 1, Salahuddin Khan for the period from January to April 1976 are concerned, for according to him, his removal during that period was unlawful. The first objection raised before us by Mr. S. M. Zafar, the learned counsel for respondents is that the relief granted to the appellants by the Supreme Court was in the nature of declaratory relief which does not admit of execution and therefore the learned Company Judge has erred in having passed the order under appeal. In reply to this objection we are constrained to advert to the judgment of the Supreme Court of Pakistan dated 11th April, 1977. Their Lordships of the Supreme Court observed that "We cannot convert ourselves into an executing agency in respect of the matters comprised in the undertakings embodied in our order of the 24th of November 1976". In view of these observations, it would be obvious that their Lordships were fully aware that the nature of relief sought by present appellants before them was the execution of the order dated 24th November 1974. Their Lordships did not even remotely suggest that the order Wan not capable of execution because of any bar, legal or otherwise. On the other hand, their Lordships expressed themselves in very clear terms that the order in question would be executed in the High Court, for the Supreme Court cannot be supposed to execute its own order. It would, therefore, be manifestly clear that the reference was for no other purpose than that of executing the order of 24th November 1976. In this respect, we are yet fortified by another observation of their Lordships that "the learned Company Judge in the Peshawar High Court will issue necessary directions for the implementation of the mutual settlement between the parties". This would clearly indicate that the learned Company Judge before whom the matter was to be placed by the appellants was to issue direction for the implementation of the agreement and it can hardly be denied that this means the execution of a decree. A fortiori therefore, we cannot go into the question whether the order of the Supreme Court is executable or not in view of the clear direction made for execution and implementation of the agreement reached between the parties. Mr. S. M. Zafar, the learned counsel next argued that once the Board of Directors withdrew the offensive resolution which the Supreme Court directed it to withdraw, the order of that Hon'ble Court stood executed. He submitted that Salahuddin Khan was thereafter again removed by the Board of Directors and there was no bar against hiss removal. According to the learned counsel there was, therefore, no order in the field which was to be executed. It has already been indicated above that the learned Company Judge did not approve of this submission and we agree with Lim, for the agreement was not acted upon sincerely and in good faith. Mr. S. M. Zafar further contended that Salahuddin Khan was the only person who had gone to the Supreme Court and therefore the order of that Hon'ble Court could be executed only, so far as his rights are concerned. He submitted that Sairab Hayat Khan and Major-General (Retd.) Jehanzeb Khan were not parties to the proceedings before the Supreme Court. Therefore, they could neither be proper parties before the Court in execution proceedings nor was there any order in their favour which could be executed by this Court in the present proceedings. This argument completely ignores the order of the Supreme Court. The order of the Supreme Court is for the implementation of the agreement. The agreement was between Salahuddin Khan on the one hand and Taj Muhammad Khanzada with the support of Directors on the other. In any way, the agreement, as reproduced in the judgment of the Supreme Court, very clearly incorporates the stipulation that Major-General (Retd.) Jehanzeb Khan and Sairab Hayat Khan would be the Directors of the Company and that they shall hold offices until 31st January, 1978. The submission of Mr. S. M. Zafar to the contrary thus holds no water. The agreement which has to be executed in letter and spirit by this Court as directed by the Supreme Court also contains that these two gentlemen would continue as Directors and therefore it is incumbent upon this Court to enforce this agreement which has been incorporated in the order of that Hon'ble Court. It is well settled that a decree-holder need not be party to the decree. It is enough if the decree confers some rights enforceable under the decree upon some persona mentioned in it Mr. S. M. Zafar next contended that the Supreme Court has itself held in its original judgment (P L D 1975 S C 244) that the High Court does not have the power to direct the Company to restore a Director to the office and thus the appellants cannot approach this Court for the restoration of their offices. In this respect, he referred to the following observations of their Lordships at page 262 of the judgment: -- It is also clear that, while acting under clause (2) (b) (ii), the High Court would only grant a declaration as to the authority of the respondent to hold the office In question, but It could not grant a mandamus to restore or re=instate the applicant to that office in case it comes to the conclusion that the incumbent bad no authority to hold the same. The High Court would in such a case only declare the office to be vacant, leaving the rightful claimant, if any to take whatever steps may be open to him to occupy the same. Even if the point of view expressed by Mr. S. M. Zafar were to be accepted as a correct Interpretation of these observations, there is no bar to the present proceedings. As has been seen, the Supreme Court has wound up the observations by saying: - . . . . leaving the rightful claimant if any, to take whatever steps may be open to him to occupy the same. One of the steps which the present appellants took in pursuance of these observations was to file an application for the contempt of Supreme Court by persistent refusal of respondents to act in accordance with tae declaration granted by the Supreme Court in its judgment. When the matter came up before the Supreme Court, it directed the appellants to have recourse to execution proceedings before this Court. Article 10, Clause (2) of the Constitution lays down that "Any such direction, order or decree shall be enforceable throughout Pakistan and shall where it is to be executed in a Province or a territory or an area not forming of a Province but within the jurisdic tion of the High Court of the Province be executed as if it had been issued by the High Court of the Province." The High Court is, therefore, duty bound to execute the order of the Supreme Court and the words "direction, order had decree" are in no manner inhibited or circumscribed by any consideration whatever. So long as it is an order or a decree given by the Supreme Court, Article 187 of the C Constitution makes the same executable and also makes it the duty of the High Court concerned to execute it. Article 190 of the Constitution may also be quoted in this respect. It provides :- "Ali executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court." Lastly, Mr. S. M. War contended that the number of Directors could not be raised from 9 to 10, for in the Articles of Association of the Company, the number has been fixed as 9, and thus the appointment of Major General (Retd.) jehanzeb Khan as 10th Director was illegal. We do not see any force in this contention. In this respect, it would suffice to quote with advantage the following observations of their Lordships of the Supreme Court in the aforesaid case of Salahuddin Khan v. Frontier Sugar Mills & Distillery Ltd. (page 259) ". . . . . The composition of the Board of Directors of a Company incorporated as a public Company in whose operation the public at large has an interest, and whose constitution is required to be determined by the wishes of the shareholders is a matter of the greatest interest to the public . . . . . Therefore, it is conceivable as a public duty bearing upon the conduct of the members of a Board of Directors that they shall admit to their number every person who is qualified to be a director of a Company." Even otherwise, the contention of the learned counsel loses its importance in view of the agreement reached between the parties in the Supreme Court recognizing Major-General (Reed.) jehanzeb Khan as Director of the Company and on the basis of this agreement the Supreme Court accordingly passed the order dated 24th September, 1976. In view of this position, therefore, the finding of the learned Company Judge that the removal of Major General (Retd.) Jehanzeb Khan was lawful cannot be sustained, for this Court is required to execute and implement the order of the Supreme Court in its entirety. Our conclusion, therefore, Ss that in view of the various observations of the Supreme Court quoted in this judgment and the provisions of Articles 187 and 190 of the Constitution, far from there being any bar to the execution of the order of the Supreme Court in the present case, there is a duty cast upon this Court to execute and implement the same in its entirety. Having reached the conclusion that the order of the Supreme Court is executable and having held that the removal of Major-General (Retd.) Jebanzeb Khan as Director was unlawful, we now proceed to propose that order has to be passed in this case. We are in no doubt that the mere expression of a wish or a declaration is not what is required to be done in this case. The requirement of the order of the Supreme Court is that the agreement referred to in the order dated 24th November, 1976 must be implemented is letter and spirit. We would, therefore, direct that the parties shall enforce the agreement dated 4-1-1976 which was confirmed by the Board of Directors of the Company on 7-1-1976 and for this purpose the Company shall proceed to recognize Salahuddin Khan as Chief Executive of the Company while Sairab Hayat Khan as Director/General Manager and Major-General (Reed.) Jehanzeb Khan as Director. They shall be installed in their respective offices immediately. Salahuddin Khan shall continue to hold the office of Chief Executive of the Company as directed by the Supreme Court and he shall perform his duties and functions as such in accordance with law and the judgment of the Supreme Court. The salaries of Salahuddin Khan as Chief Executive of the Company from 1-5-1976 to 31-1-1978 and also up to the date when he would relinquish the charge according to law shall be deposited in this Court at the rata at which it was fixed when he was elected as Chief Executive of the Company. No hindrance shall be placed in the implementation of this order either by the respondents or any body else. The officials of the Company shall pay due respect to and obey the orders of the Supreme Court as regards the recognition of Salahuddin Khan as Chief Executive of the Company. In so far as the tenure of the offices of the Director and Chief Executive is concerned, this Court can offer no opinion in this respect and considers itself bound by the determination of the Supreme Court that "the period for which the tenure of office has been interrupted shall not be counted". This appeal, in the terms indicated above, is accepted with costs. S.A.H Appeal accepted accordingly.