P L D 2002 Karachi 359 (PLP)

(b) Prolonged leadership under autocratic system has brought it stagnation and inertia into the governing system. The present Governing Body needs to be reconstituted to ensure more representative discussion before taking important decisions and to check monopolization. The defendants Nos. 4 to 6 were joined on their own request have also opposed the application by taking common grounds and pleas. The defendant No.4, namely, Iqtidar Hamid Bhatti through verbose counter‑affidavit has opposed the application precisely the grounds taken, inter alia, are as follows:

1. There was no compliance of the by‑laws, the running of Post Medical Graduate Centre is without the recognization of Pakistan Medical and Dental Association and the members of the Governing Body are close and family members/associates and employees or of companies controller and managed by the Chairman. I have heard Mr. Zahid F.ibrahim learned counsel for the plaintiffs and Ch. Muhammad Rafiq, Additional Advocate‑General, Sindh for defendants Nos. 1 to 3 and Mr.Naimur Rehman, learned counsel for the defendants Nos.4 to

6. At the very outset, the learned Additional Advocate‑General has stated that' the interim report has been withdrawn by the defendants. His further submission was that such statement was filed on 12‑1‑2001, with letter dated 27‑11‑2000 of the defendant No.3 that no action, whatsoever, was being contemplated on such report. The application was opposed on the plea that the relief claimed through application as well as in suit is barred under the provision of section 56 (d) of Specific Relief Act, which I will discuss later. Mr. Zahid F.Ibrahim, learned counsel for the plaintiffs has vehemently urged that two inquiries, first by Army Monitoring Cell, and second by the then Health Minister Mr. S.M. Rab, have vindicated the stand of the plaintiffs. The plaintiffs asked for the reports through an application for discovery of documents but was not provided on the plea that the same are not available with them but interim report has been prepared on the basis of such report. It may be mentioned that the copy of report of inquiry conducted by the defendant No.2 has been placed on record by Mr. Naimur Rehman, learned counsel for the private defendants. Although the learned Additional Advocate‑General was unable to obtain and produce the same in spite of several opportunities provided to him. It was further contended by him that Association was running the affairs of the hospital without any cause or complaint from any quarters. For the first time, on 21‑4‑2000, the trouble started when the hospital was visited three times by the defendant No.2, though the Association was not informed about the contents of the complaint. The then Health Minister also conducted separate inquiry and submitted his report on 22‑5‑2000. The report of the Minister also vindicates the position of the plaintiffs. After submission of the report in the month of May in very next month the Government of Sindh issued Notification whereby Committee was constituted to probe into the matter pertaining to the malpractice in hospital. The plaintiffs received a letter dated 19‑6‑2000 requiring the plaintiffs to attend the meeting on 24‑6‑2000 with documents/record at the first place specified therein. The plaintiffs responded such notice through their letter dated 21‑6‑2000 intimating the Committee that two inquiries were already conducted, as stated above, but no evidence of malpractice was found. The reply was also submitted. Learned counsel further contended that though the term 'malpractice' was used as allegation but no detail was mentioned, which was only bald allegation with the purpose, to take the control of the hospital and appoint Mr. I.H. Bhatti. The next meeting was scheduled on 11‑7‑2000, before the scheduled meeting the interim report came to the light when it was received by the plaintiffs. The learned counsel for the plaintiffs further contended that the interim report was prepared 4 days in advance with the object to take over the management and to appoint an Administrator. The learned counsel in support ‑of his contention contended that, no doubt, the Provincial Government can supersede a Governing Body of the Association under the provision of section 16‑A but such power and supervision is subject to the grounds enumerated in section 16‑A of the Societies Registration Act, which enjoins the Provincial Government, if it comes to the conclusion that the Governing Body of the Association is (a) unable to discharge or persistently failed to discharge its duties; (b) unable to administer its powers; (c) generally acts in a manner contrary to public interest or interest of the members of the Society. The Provincial Government may by a Notification in the Official Gazette declare the Governing Body to supersede for such a period not exceeding one year as may be specified in the Notification. He further contended that section 16‑A was further amended by Ordinance 41 of 1984, whereby a proviso was brought on the Statute Book under the direction of Federal Shariat Court for amendment in the Societies Registration Act, 1860, which proviso reads as under:‑‑ "No Governing Body shall be superseded unless it is given an opportunity of being heard." On the basis of the above proviso, learned counsel for the plaintiffs argued that the interim report offends the said provisions as the same was prepared without giving opportunity to the plaintiffs of hearing. His further contention was that the Provincial Government can supersede the Governing Body on any of the grounds mentioned in subsection (1) of section 16, clause 3(A) of the Societies Registration Act, when the Society is unable to discharge or persistently fails to discharge its duty, unable to administer its affairs or to meet its obligations and generally acts in a manner contrary to the public interest or interest of the members of the Society. He further contended that the interim report contains four grounds. None of the grounds mentioned in the interim report can be categorized the grounds available in section 16‑A. On the above premises, he contended that the action of the defendants in initiation of third inquiry is unjust, unfair and unreasonable. He contended that the executive discretion over the private right cannot be exercised at the whims of the executive authority. Such discretion must have a basis and such basis must be reasonable, fair and just in the circumstances of the case and to support his case has referred Messrs Abdullah & Co. v. Province of Sindh (1992 MLD 293), wherein the following observation was made:‑‑ "Power of discretion which affected Individual rights was required to be exercised in a fair, reasonable and just manner. An executive discretion which affects private rights cannot be exercised at the whim of the Executive Authority. It must have a basis and such basis must be reasonable, fair and just in the circumstances of the case." To further support his contentions, he referred cases Chairman, Regional Transport Authority, Rawalpindi v. Pak Mutual Insurance .Co. Ltd., Rawalpindi (PLD 1991 SC 14), wherein discretion of the Executive Authority in the line of American Jurisprudence, 2nd Edition, Volume 63‑A was examined. Mr. Zahid Ebrahim also referred Dr. Muhammad Asghar Malik v. Auqaf Department (1998 MLD 76), wherein the mode of exercise of discretionary power vested in the public functionary was elucidated in para.5 of the report as follows:‑‑ "

5. The theory of discretion as relied by the learned counsel for the respondent cannot be countenanced in the present day society where the functionaries of the State are expected to conduct themselves fairly, justly and equitably meaning thereby that even in the case of exercise of discretion it must be shown that the discretion so exercised is not only fair but also just and equitable in the circumstances of the particular case because after all the functionaries of State, vested with powers to carry out certain functions of the sovereign, are not expected to assume the role of absolute rules. The purpose aforenoted can only be achieved if the proposed action is shown to be bona fide, supported by reasons, therefor, and is taken with due diligence and required element of prudence and caution. The theory of exercise' of discretion and the structuring thereof has been amply dealt with in the case of Chairman, R.T.A. v. Pak Mutual Insurance Company Ltd., Rawalpindi (PLD 1991 SC 14) wherein a profuse reference has been made to American Jurisprudence, 2nd edition, Volume 63‑A (Public Officers and Employees) sections 7, 308, 315 and

317. The wisdom contained in these sections is to the following effect:‑‑ "A public office is a public agency or trust created in the interest and for the benefit of the people, and since an incumbent of a public office is invested with certain powers and charged with certain duties pertinent to sovereignty, the powers so delegated ‑to the officer are held in trust for the people and are to be exercised on behalf of the Government or of all citizens who may need the intervention of the officer. Such trust extends to all‑ matters within the range of the duties pertaining to the office. 1n other words, public officers are but the servants of the people and not their rulers. A public officer is amenable to the rule which forbids an agent or trustee to place himself in such an attitude towards the principal or cestui que trust as to have his interest conflict with his duty... Where a statute is silent with respect to the time within which an official act must be performed, the law contemplates that the duty must be performed within a reasonable time. A public official who undertakes to perform an act, even an act which is completely discretionary, must do so reasonably and in complete good faith without such delay as would frustrate its ultimate objective .... One who accepts a public office does so cum onere, or with the burden, and is .considered as accepting its burdens and obligations with its benefits. He thereby subjects himself to all Constitutional and legislative provisions relating thereto and undertakes to perform all the duties of the office, and while he remains in such office the public has the right to demand that he performs such duties. The acceptance of every public office implies an agreement on the part of the officer that he will execute its duties with diligence and fidelity. The duty of a public officer to fulfil the obligations of his office should take precedence over all other matters... Every public officer is bound to use reasonable skill and diligence in the performance of his official duties, particularly where rights of individuals may be jeopardized by his neglect. In other words, he is bound, ‑virtue officii, to bring to the discharge of his duties that prudence, caution, and attention which careful men usually exercise in the management of their own' affairs." Mr. Zahid has further contended with vehemence that the interim report whereby the supervision of the Governing Body and appointment of Administrator has been proposed is without show‑cause notice to the plaintiffs and the ground taken for exercise of such powers is beyond the provisions. The initiation of further inquiry is nothing but to satisfy the former Director, the defendant No.4, who himself has resigned from the directorship and praised the services of Chairman in his letter dated 11‑8‑1999. The defendant No.4 now wants himself to be appointed as Administrator by removing the present Governing Body. It has been also pointed out by Mr. Zahid F. Ibrahim, learned counsel for the plaintiffs that on 19‑8‑2000, new Governing Body was formed and communicated to the Registrar, Joint Stock Companies, Government of Sindh on 6‑9‑1992, and the composition of the Governing Body are as under:‑‑ Co‑opted by the Governing Body: (1) Sardar Sherbaz Mazari, (2) Mr. Illahi Bux Soomro. (3) Sardar Akhtar Mengal.. (4) Mr. Zulfiqar Ali Shah Jamot. (5) Dr. Faridoon Sethna. (6) Dr. Yaseen,Ali., (7) Chairman, Faculty L.N.H. Nominated by the President: (1) Mr. Justice (Retd.) Mahboob Ahmed. (2) Dr. War

11. Zaidi (3) Dr. Qasim Mehdi. (4) Lt.‑Gen (Retd.) Arshad Hussain. (5) Mr. Riyaz H. Bokhari. (6) Mt. Mohammad Hanif. (7) Mr. Tariq Hamid. (8) Syed Shahid Ali. (9) Mr. Muhammad Shafique. (10) Mr. Aftab Shafique. (11) Mr. Humayun Hanif. (12) Mr. Basit H. Syed. (13) Dr. Moizuddin, Medical Director (14) Mr. Adi Cawasji (Honorary Treasurer). (1.5) Mr. M.S. Baig, Secretary. Nominated by the Red Crescent SocietyIslamabad: (1) Air Marshal (Retd.) Sheikh Muhamntad Saeed. (2) Brig. (Retd.) Dr. A.R.K. Burki. Mr. Ch. Muhammad Rafiq, A.A.‑G. submission was that prayer for injunction in the suit is barred by clause (d) of section 56 of the Specific Relief Act, which lays down that an injunction could not be granted to interfere ,with the public duties of any department of the Central Government, or any Provincial Government, or with the sovereign act of a Foreign Government. It is true that under this clause no injunction be granted against the Department of Government including individual officers of the Department so as to interfere in their public duties authorized by law but where the department or its officers exceed or abuse the powers conferred upon them by the Legislature, this clause cannot apply. The State functionaries are expected to act fairly and justly in a manner not to give to any one a cause of complaint or of being accused of biased treatment; but the experience is otherwise. Due to discriminate and partititoned behaviour of the officials, the sanctity attached to the official act has been eroded, gradually, such erosion was noticed by Legislatures in India, while enacting Specific Relief Act of 1963, such immunity was withdrawn. Section 41 is analogous to the existing section 56 of the Specific Relief Act, the provision contained in clause (d) of section 56, was not retained in section

41. It was also found to be inconsistent with the Article 361 (1) of the Indian Constitution. however, it has to be examined if the action initiated by the defendant No.3 is within their competence or is a colourable exercise of the power. Mr. Naimur Rehman, learned counsel for the defendants Nos.4 to 6 have with vehemence contended that defendants have every right to oppose the application under the public interest litigation. The concept, scope and nature of public interest litigation has been highlighted in People's Union for Democratic Rights and others v. Union of IndM d others (1984 PSC 314) by Supreme Court of India, P.N. Bhagwati, J. speaking for the Court said as under:‑‑ "Public interest litigation which is a strategic arm of the legal aid movement intended to bring justice within the reach of the poor masses, who constitute the low visibility area of humanity, is a totally different kind of litigation from the, ordinary traditional litigation which is essentially of an adversary character where there is a dispute between two litigating parties, one making claim, or seeking relief against the other and that other opposing such claim or resisting such relief. Public interest litigation is brought before the Court not for the purpose of enforcing the right of one individual against another as happens in the case of ordinan litigation, but it is intended to promote and vindicate public interest which demands that violations of Constitutional or legal rights of large numbers of people, who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed and unredressed. That would be destructive of the rule of low which forms one of the essential elements of public interest in any democratic form of Government." The public interest litigation is brought before the Court not for the ; purpose of enforcing the right of one individual against another as happens in the case of ordinary litigation, but it is intended to promote and vindicate B public interest which demands that violations of Constitutional or legal rights of large numbers of people, who are poor, ignorant or in a socially or economically disadvantaged position. Mr. Naimur Rehman, learned counsel for the defendants Nos.4 to 6 has canvassed that there is no compliance of by‑laws and the Post‑Graduate being run by the plaintiff without the reorganization of Medical and Dental Association and the members of the Governing Body are close ad family member/association and employee or of companies controller and managed by Charima. Dr. I.H. Bhatti was the Medical Director, Who resigned on 18-8-1999. In his resignation letter though he admired the integrity, judgment and wisdom of the President/Chairman of the Governing Body . Due to differences between him and Chairman as reflected in the resignation letter Annexure D/1 on the issue of appointment or retired Government employees. The defendant No. 4 himself in retired Government servant, perhaps on that account he was embarrassed by the proposed amendment in the by-laws. Whereby the bar for employment of retired Government servant was proposed. The main grievance is that the nomination of the members of the Governing body are near and dear of the Chairman. Under clause 3 Of the by-laws, 15 members were to be nominated by the President, with at least one to be a prominent Medical Practitioner. Two members to be nominees to the Central Managing Body of the Pakistan Red Crescent Society, and seven members to be co-opted by the Governing Body at the first meeting after its formation six members including the Secretary to form the corium for the meeting. Two-fold objections are raised on the formation of the Governinig Body that it never attains full strength viz.24 and most of the members were/are close of the Chairman. number of members Governing Body pendency of the proceedings, new Governing Body came into existence with full strength. The objection about the formation of Governing Body is due to ignorance of the clause 3 of the by‑laws, which give power to Chairman to nominate 15 members, As long as, the provision is in the by‑laws, the objection would be groundless. It has also been urged during the arguments that due to proposed enhancement in fee of different categories of the members of Association, the purpose is to restrict the membership to certain classes, to make the Association an exclusive club. The amended has not been adopted. Mr. Naimur Rehman also tried to point out the violation of Rules and Regulations and by‑laws by referring the letter dated 9‑12‑1996 addressed to Mr. Muhammad Anwar Tariq, Advocate by Assistant Registrar, Joint Stock Companies. A single letter of 1996 could not be a ground for suppression of management or for inquiry. The case of the plaintiffs is that twice the inquiry was conducted, one by Army Monitoring Team, second by the then Health Minister. The report of the Army Monitoring Team has been brought on record. The recommendation of the team were that the by‑laws of the Association is to be examined, certain portions of income to be diverted towards the well‑being The doctors who are without post‑graduate may not be as consultant. The doctors on the faculty of the hospital be allowed to practise ,putside the hospital and the proposed amendment for enhancement of amount of donation is an attempt to make the General Body an exclusive club and it will be against the public interest and an independent audit team should conduct the audit and contracts should be publicized for healthy competition. The above recommendations cannot be said. to be a ground for further investigation. The complaint under probe by the defendant No.3 was already probed by defendant No.2. The successive inquiry into the affairs of the hospital, which is being run by the Association would effect its reputation and working in the eye of public in general. The interim report, being violative of the Law, has been recalled. The action of the defendant No.3 in issuance of interim report with recommendation to review the terminations of the petitioners (defendants Nos.4 to 6) reflect not only on the conduct of Government functionaries of their biased attitude but excess of jurisdiction and further probing into the matter at the behest of the motivated former employees, who have either resigned or their services have been terminated, is‑ also a partitioned attitude only to effect the reputation of hospital which is providing better medical facilities to the people of Karachi than the Government hospitals. In my view; the plaintiffs have demonstrated a prima facie case, if C injunction is not granted it would affect their reputation, which cannot be compensated in terms of money and balance lies in favour of the grant of injunction merely on the plea that suit and injunction is barred under the provision of section 56, it cannot be refused in the background of biased, partitioned and unjust conduct of public functionaries noticed above, the immunity cannot be extended under clause (d) of section 56 of the Specific Relief Act. Consequently, the application in terms of prayer made therein is allowed, however, with no order as to costs. S.A.K./M.A.K./L-21/K Application allowed.