Sunday, 21 February 2016

No Action Detrimental to Interest of any Person can be taken

PLJ 2000 Lahore 1106
Present: MALIK MUHAMMAD QAYYUM, J. HUMAYUN ELAHI SHEIKH and 10 others-Petitioners
versus
FEDERATION OF PAKISTAN through MINISTRY OF COMMERCE AND TRADE, ISLAMABAD etc.-Respondents
W.P. No! 560 of 2000, heard on 9.3.2000. (i) Constitution of Pakistan (1973)--
—Art. 199-Order contrary to principles of natural justice-Effect-Decisions taken by Managing Committee of petitioner Association were annulled by Director Trade Organisation being not in accordance with Memorandumand Articles of Association of petitioner organisation-Validity--No action detrimental to interest of any person can be taken by statutory functionary except after allowing him opportunity of being heard which isminimum requirement of natural justice-Decision of Director Trade Organisation was liable to be struck down on that ground alone.
[P. 1108] A
(ii) Trade Organizations Ordinance, 1961 (XLV of 1961)--
—-S. 15-Constitution of Pakistan (1973), Art. 199-Tenure of Chairman of Trade Organization expiring—Now new Chairman elected—Effect— Managing Committee of such Trade Organization as per terms ofMemorandum and Articles of Association would be competent to take over affairs of Trade Organization and not the Vice-Chairman as directed by Director Trade Organization—Where impugned order was contrary to provisions of law as also natural justice it was not necessary for petitioner to invoke alternative remedy provided by law-Order of Director Trade Organization to the extent of denuding Managing Committee of its powerwas declared to be without lawful authority and of no legal effect-  Managing Committee however, was directed to hold election of Chairmanwithin two weeks from Court's direction.        [Pp. 1108 & 1109] B & C Mr. All Sibtain Fazli, Advocate for Petitioners.
Kh.   Saeez-ud-Zafar,   Deputy  Attorney  General  for  Pakistan  for Respondents Nos. 1 and 2.
Mr. Tariq Shamim, Advocate for Respondent No. 3. Date of hearing: 9.3.2000.
JUDGMENT
This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 arises under the following circumstances:
2.     Petitioner  No.   11,   All  Pakistan  Textile  Mills  Association  commonly known as APTMA is a registered trade organization within the meaning of Trade Organization  Ordinance,   1961,  Its  affairs are  being managed by a managing committee which comprises of 27 members and has two years tenure. However, the Managing Committee is required to elect a Chairman of the association for a period of one year. Admittedly Petitioner No. 1 was elected as Chairman for the year 1998/99. His tenure having expired the matter was taken up by the Managing Committee which by its resolution dated 18.10.1999 decided that pending election of the Chairman the affairs will be managed by the Managing Committee of APTMA and Petitioner No. 1, Humayun Elahi Sheikh would be its convener. This decision taken by the committee was annulled by the Director Trade Organization on 13.1.2000 wherein he after referring to an order of Sindh High Court in Suit No. 1346 of 1999 observed that the resolution passed in the meeting held on 18.10.1999 regarding selection of Humayun Elahi Sheikh as convener of APTMA  was  not in  accordance with  Memorandum  and  Articles   of Association of APTMA and therefore, the same stood cancelled. This order of Director Trade Organization has been challenged through this petition having been filed by 10 Members of the Managing Committee.
3.   Mr. Ali Sibtain Fazli, Advocate, learned counsel for the petitioner has argued that the impugned order of the Director Trade Organization cancelling the resolution passed by the Managing Committee is wholly void inasmuch as the petitioners were not afforded any opportunity of being heard. The second contention raised by the learned counsel for the petitioner is that the Director Trade Organization has misdirected himself in observing that the  resolution  dated  18.10.1999 was  not in  accordance with  the Memorandum and Articles of Association of APTMA inasmuch as according to Article 54 of the Articles of Association of Petitioner No. 11 after the expiry of the tenure, the Chairman shall automatically cease to hold the office and has to hand over the charge of the office to the Managing Committee if the election is not held. In the submission of the learned counsel there was no justification for the Director Trade Organization to direct that the affairs of the Association be taken over by the Vice-Chairman.
4.         Kh. Saeed-uz-Zafar, learned Deputy Attorney General has raised a preliminary objection as to the maintainability of this petition on theground that the petitioners have an equally   fficacious relief available 10 them in the form of appeal to the Federal Government under Section 15 of the Trade Organization Ordinance, 1961 and as such this Constitutional petition is not  aintainable. It was further argued by the Seamed Deputy Attorney General and Mr. Tariq Shamim, Advocate, learned counsel for Respondent No.  3 that there was no power vesting in  the Managing Committee to have appointed a convener to take over the affairs of the Association   and   the   resolution   was   violative   of   the   provisions   of memorandum  and  articles  of association  and  was,   therefore,  rightly cancelled by the Director Trade Organization.
5.         It is by now well settled that no action detrimental to the interest of any person can be taken by a statutory functionary except after allowing him an opportunity of being heard which is  he minimum requirement, of natural  justice.   On   this   ground   alone   decision   of   Director   Trade Organization is liable to be struck down,
6.     There is also force in the contention of the learned counsel for the petitioners that in case where the tenure of the Chairman has expired and a new Chairman is not elected under Article 54 of Memorandum and Articles of Association, it is the Managing Committee which has to take over the affairs of the Trade Organization and not the Vice-Chairman as directed by  the Director Trade Organization. Article 54 reads as under - "54. (i) On the expiry of fixed tenure period the Chairman will automatically cease to be the Chairman and will hand over the charge of his office to the newly elected Chairman or to the Managing Committee if the elections have not been held."
7.  Faced with this situation learned Deputy Attorney General and learned counsel for Respondent No. 3 have argued that at least to the extent of appointing a convener the resolution was ultra vires the memorandum and Articles of Association. This position is not contested by the learned counsel for the petitioners who says that Humayun Elahi Sheikh Petitioner No. 1 has since resigned as a convener.
8.    It follows that in absence of fresh election to the office of Chairman the  control   of Trade  Organization  vests  in  the  Managing Committee which is obliged to hold elections immediately. The observation of the Director Trade Organization that the resolution dated 18.10.1999 is in conflict with the Memorandum and Articles of Association is not correct except to the extent of the appointment of convener which is no more a live issue in view of resignation of Hamayun Elahi Sheikh.
9.   So far as the preliminary objection raised by the learned Deputy Attorney General and learned counsel for the respondent is concerned the same does not deserve any serious consideration inasmuch as it standsdemonstrated on the record that the impugned order is contrary to the

2000         An TEXTILE (JHANG) LIMITED v. Govr. OF PAKISTAN   Lah. 1109 (Malik Muhammad Qayyum, J.)
provisions of law as also natural justice. In such circumstances, it is not necessary for the petitioner to invoke the alternative remedy provided by law. Furthermore, the remedy of appeal in the present case appears to beillusory.
As a result of what has been stated above, this petition is allowed to the extent that order dated 13.1.2000 cancelling the resolution dated 18.10.1999 to the extent of denuding the Managing Committee of its power under Article 54 of the Memorandum and Articles of Association is declared to be without lawful authority and of no legal effect. The Managing Committee shall proceed to hold the elections to the office of Chairman within two weeks from today.
(A.A.T.'                                                                          Petition accepted.

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