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Petitioner: Munda Eleven Cricket Club VS Respondent: Federation of Pakistan and four others
Court Name: Lahore High Court Judge(s): Jawad Hassan Title: Munda Eleven Cricket Club vs Federation of Pakistan and four others Case No.: Writ Petition No.59837/2017 Date of Judgment:2017-08-23 Reported As: PLD 2017 Lahore 802, 2017 LHC 2989 Result: Petition Dismissed
Judgment JAWAD HASSAN, J:- Through the instant petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution of Pakistan" ), the Petitioner , Munda Eleven Cricket Club (the "Petitioner" ), has assailed (a) the order dated 4.7.2017 passed by the Respondent No. 5 (Independent Adjudicator), (b) order dated 13.4.2017 passed by the Respondent No. 4 (Deputy Election Commissioner , Pakistan Cricket Board ("PCB ")), and (c) order dated 4.11.2016 passed by the Scrutiny Committee, PCB. The Petitioner has made the following prayer: "In view of above it is humbly prayed that instant writ petition may kindly be accepted and orders dated 04.07.2017, 13.04.2017 and 04.11.2016 be set aside and resultantly the Petitioner club be declared as an active? club and allowed to participate in the election process of District Cricket Association, Dir Lower . It is also prayed that the elections of the District Cricket Association, Dir Lower may kindly be stayed till decision of the instant writ petition." A. The Essential Facts: 2. The facts succinctly revealed from the instant petition are that the Petitioner is registered with the concerned District/Zonal Cricket Association. The Petitioner was established in the year 1985 and since then, it has been participating in the Cricket competitions organized by PCB. 3. The Scrutiny Committee of PCB visited the Petitioner on 19.10.2016 and declared the Petitioner as Inactive? after recording information in the Scrutiny Assessment Form on 04.11.2016 for the reasons that the Petitioner did not participate in the District Championsh ip in last three years and also did not adopt the Model Constitution. It is pertinent to mention here that the Governing Board of PCB approved the "Model Constitution of the Club" (the "Model Constitution" ) on 13.06.2015 and directed all the clubs to adopt and implement it within three months from the date of its communication i.e. 29.06.2015.
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4. Feeling aggrieved by the said assessment of the Committee, the Petitioner filed an appeal before the Respondent No.4 which was dismissed vide order dated 25.11.2016. On 25.11.2016, the Respondent No. 4 passed an order after providing the Petitioner with opportunity of hearing that the Petitioner did not satisfy the requisite criteria mentioned in para 2(ii)(a) of PCB Constitution as well as in the "PCB Procedure for security of club." 5. The Petitioner challenged the said order by filing an appeal before the Board of Governors of PCB (the "Board of Governors ") which was entrusted to the Independent Adjudicator who vide order dated 19.01.2017, accepted the appeal of the Petitioner and remanded the case to the Respondent No.4 for passing fresh speaking order after considering the material in totality and strictly in accordance with law . 6. On 13.4.2017, the Respondent No. 4 dismissed the appeal of the Petitioner . The Petitioner , feeling aggrieved, filed appeal before the Board of Governors, which was dismissed vide a detailed and well-reasoned order dated 4.7.2017 passed by the Respondent No. 5. 7. Hence, the Petitioner has approached the High Court against the orders of the Scrutiny Committee, Deputy Election Commissioner and Independen t Adjudicator , in its Constitutional jurisdiction under Article 199 of the Constitution of Pakistan. B. Submissions of the Petitioner: 8. The learned counsel for the Petitioner inter alia submitted that the impugned orders dated 4.7.2017, 13.4.2017 and 4.11.2016 (the "Impugned Orders ") are illegal and have been passed without applying judicial mind; that under the Model Constitution, the President is also the Chief Executive and authorized to file petition before this Court; that the Club has been declared inactive by the Respondents on the sole ground of non-adoption of the Model Constitution and regarding non-participation in the District Championship; the Respondent No. 4 accepted the plea of the Petitioner vide order dated 19.01.2017 that the Petitioner participated in a private tournament, which was duly approved by PCB and that too has not been challenged by the Respondents; that the Petitioner cannot be declared inactive on the ground that it has not participated in the District Champ ionship in last three years as it participated in the private tournaments duly recommended and approved by the PCB; that as the other Cricket Clubs have been declared active on the ground that they participated in the private tournaments duly approved by the PCB, as such there is a clear discrimination with the Petitioner; that the Impugned Orders have been passed arbitrarily in a whimsical manner; that through the Impugned Orders, the Petitioner has been deprived of its fundamental right to cast vote in the District Association Elections to be held on 28.08.2017; that in the Impugned Orders, the plea of the Petitioner regarding discrimination has not been dealt with properly; that the Respondents No.4 & 5 have not duly taken into consideration the documents produced by the Petitioner; that the subsequent orders have not been passed in line with the remand order , therefore, liable to be set aside; that the documents produced by the Petitioner to prove that the Petitioner has duly adopted the Model Constitution, have not been negated on solid grounds; that substantial compliance has been made to provision of law and in support of his contentions the learned counsel for the Petitioner has placed reliance upon the cases titled Dr. Zafar Ullah and 5 others (2016 CLD 1283 [Lahore]) Air Marshal (R) Syed Qaiser Hussain v. Sajid Hussain Toori and 4 others (2017 CLC 617 [Peshawar]) , Dr. Akhtar Hassan Khan and others v. Federation of Paksitan and others (2012 SCMR 455), Syed Ghazi Gulab Jamal v. Presiding Officer, Election Tribunal, Peshawar and 2 others (2015 CLC Peshawar 953) and Syed Mashooq Mohiuddin Shah v. Syed Fazul Ali Shah and 37 others (2014 CLC Election T ribunal Sindh 1 181). C. Submissions of the Respondent: 9. On the contrary , in reply to the instant petition, the Respondents filed report and parawise comments raising certain preliminary objections regarding the maintainability of the Petitioner as well as on merits. The learned counsel for the Respondents vehemently controverted the arguments advanced by the learned counsel for the Petitioner and prayed for dismissal of the petition on the grounds that no resolution has been appended with the petition which is incurable defect; that the Petitioner has been declared inactive on two grounds i.e. failing to adopt the Model Constitution devised by PCB and failing to take part in requisite number of cricket tournaments which are the mandatory requirements; that the documents produced by the Petitioner are manufactured/forged and are result of afterthought; that the Petitioner has admitted during assessment that it has not participated in
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the required tournaments and that too the Petitioner is signatory of the Security Assessment Form; that the matter involves factual controversy which cannot be resolved in the instant petition under Article 199 of the Constitution; that the instant petition is also not maintainable on the ground that the Rules and Regulations of the PCB are non-statutory in nature; that the Petitioner has developed his case as the points taken by the Petitioner before this Court have not been agitated before the lower forums; that the Petitioner has failed to fulfill the mandatory requirements of the Model Constitution, therefore, deserve no flexibility as the same is not provided in the Rules. The learned counsel for the Respondents has placed reliance on the case titled Pakistan WAPDA Employees Pegham Union v Member , National Industrial Relations Commission, Islamabad and others (2014 SCMR 1676 ), Amir Jamal and others v Malik Zahoor and others (2011 SCMR 1023 ), Muhammad Zaman and others v. Government of Pakistan etc. (2017 SCMR 571), Syed Imran Shah and others v. Government of NWFP etc. (PLD 2004 SC 285), MOM and others v. Province of Sindh and others (2014 CLC 335). D. Nub of the Matter/Moot Points: 10. In order to pass judgment upon the above mentioned facts, circumstances and arguments urged by the counsels for the parties at length, following moot points are essential for consideration and determination of this Court, arising out of instant petition: a. Whether the PCB Constitution is a statutory instrument or not, and whether the instant writ petition is maintainable under Article 199 of the Constitution of Pakistan? b. Whether the instant writ petition is maintainable in absence of any resolution authorizing the President of the Petitioner to file instant proceedings? c. Whether the Petitioner has adopted the Model Constitution prescribed by PCB, and whether the Club has manufactured the documents to fill the gap/lacunae? d. Whether the Petitioner has participated in the District Championship in last three years? e. Whether the Petitioner has fulfilled the requirement of governing law under the doctrine of substantial compliance?, and whether the Scrutiny Committee has rightly assessed the Petitioner as inactive or not? E. Pakistan Cricket Board: 11. In order to resolve the controversy and to deal with the issues raised, I am of the view that before dilating upon any determination on all the above issues, it is essential to discuss the relevant law in respect of PCB. 12. Importantly , the Sports (Development and Control) Ordinance, 1962 (the "Ordinance ") has been promulgated to regulate the development and control of sports in Pakistan. Section 3 of the Ordinance establishes and constitutes one or more boards for the sports in Pakistan, and reads as: "3. Establishment of the Board.-- (1) As soon as may be after the commencement of this Ordinance, the Central Government may, for the purpose of promoting and developing uniform standards of competition in sports in Pakistan comparable to the standards prevailing internationally and regulating and controlling sports in Pakistan on a national basis, by notification in the official Gazette, constitute, one or more boards for the control of Sports in Pakistan." 13. Admittedly , PCB has been established vide SRO No.43(K.E)/2014 dated 10.07.2014 (the "PCB Constitution "), amended vide SRO 20(KE)/2016 on 5.11.2015 issued by the Ministry of Inter Provincial Coordination. Article 3(1) of the PCB Constitution constitutes PCB, affairs of which are managed and regulated by the Chairman, the Board of Governors and the General Body in accordance with the PCB Constitution. Under Article 3(3) of the PCB Constitution, PCB is the governing body of Pakistan cricket and its primary aim is to promote the game of cricket in Pakistan, and it has to operate in transparent manner and ensure that all decision s are made on merit and in the best interest of Pakistan cricket. 14. Further, Article 4 of the PCB Constitution provides objects, powers and functions of PCB, and reads as follows: "4. Objects, powers and func tions of the Board. - The objects, powers and functions of the Board shall be to,- (i) promote, develop, supervise, and maintain general control on all forms of domestic and international cricket; (ii) promote and regulate all formats of cricket, including but not limited to cricket played by men, women, veterans and those who are physically challenged or otherwise handicapped like blind, deaf and dumb;
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(iii) regulate formation and affiliation of Constituent Members and to fix fees and other conditions for the grant of such affiliation and to monitor the functioning of the same; (vii) co-ordinate and promote activities in respect of the game of cricket in all manner and ways, the holding and organizing of tournaments and national and international matches within Pakistan or abroad; (xi) regulate selection and composition of National Cricket Teams and their officials for participation in cricket matches and other events both within and outside Pakistan; (xii) constitute tribunals or bodies to inquire into, investigate or adjudicate upon matters relating to the functions of the Board; (xxi) organize and hold matches and other events, inter alia, for the benefit of current or former cricketers, umpires, support personnel or for any charitable purpose; (xxii) develop the cricket infrastructure in Pakistan and in this regard undertake any act deemed appropriate for the same ...; (xxxi) constitute such committees as may be deemed appropriate to assist the Board in exercise of any of its functions or powers including but not limited to inquiry committees; (xxxii) to organize and hold any tournament or league within or outside Pakistan or to participate in the same on such terms as deemed appropriate for the purpose of promotion of Pakistan cricket; and (xxxiii) generally do all such acts and things and take measures as deemed necessary or appropriate to advance the interests of Pakistan cricket or for carrying out its objects and functions." 15. Under Article 6, the Chairman of PCB is elected by the Board of Governors for a period of three (3) years, and is the chief executive officer of PCB, having power to undertake day-to-day management of PCB. Further , the Chairman is accountable to the Board of Governors. Article 7 prescribes the procedure for elections of the Chairman from amongst the members of the Board of Governors, by a majority of its total voting membership. 16. Article 8 provides the terms and conditions, and powers of the Chief Operat ing Officer of PCB to assist the Chairman for effective performance of his functions, who is appointed by the Board of Governors on recommendation of the Chair . Article 9 provides the terms and conditions, and powers of the Chief Financial Officer of PCB. Article 10 provides composition of the Board of Governors, consisting of the Chairman, four (4) members being duly elected representative of the mentioned regions on the basis of rotation as per applicable Regulations, and other members. 17. Moreover , Article 11 of PCB Constitution prescribes the procedure for meeting of the Board of Governors. Under Article 12 of the PCB Constitution, the powers, duties and functions of the Board of Governors have been defined, which inter alia, include: "(a) formulate regulations, codes, operation manuals and to devise policies relating to efficiency , discipline and recruitment or anyother matters for the players, player support personnel, Board?s employees or those affiliated with or controlled by the Board; (b) take effective measures for carrying out the objects, powers and functions of the Board; (c) elect the Chairman of the Board in accordance with Paragraph 7 of this Constitution; (d) appoint the Deputy Election Commissioners and determine their terms and conditions of appointment on the recommendation of the Chairman; (e) appoint or remove adjudicators on the panel of adjudicators on the recommendations of the Chairman; (f) manage the affairs of the Board and ensure that the provisions of this Cons titution, Rules, Regulations and Bye-laws of the Board are duly adhered to; (u) exercise such power and functions contemplated for the Board of Governors by this Constitution, Rules or Regulations; and (v) take such other steps as may be necessary and expedient to carry out the objects and functions of the Board in matters not covered by this Constitution, Rules, Regulations and bye laws." 18. Article 16 of the PCB Constitution constitutes the General Body of PCB consisting of Chairman, Chief Operating Officer, Chief Financial Officer, President or Head from each Full Member; President or Head from each Associate Member; one respective from the Board?s Women Cricket Department.
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19. Under Article 29(6) of the PCB Constitution, states that the Board of Governors may appoint one or more Deputy Election Commissioners as and when deemed necessary and may assign such other powers and duties as may be prescribed to them. However , such appointment has to be on the recommendation of the Chairman and in consultation with the Election Commissioner 20. Under Article 37(2) of the PCB Constitution, anyone aggrieved by a decision or order of a scrutiny committee of PCB or of the Election Commissioner or a Deputy Election Commissioner or by any other decision or order of PCB may prefer an appeal against such decision with the Board of Governors within fourteen days of the decision or order , which shall be referred to an adjudicator . Article 37(2) states that: "(2) Any association or active club or member or department or any other person, aggrieved by a decision or order of a scrutiny committee of the Board or of the Election Commissioner or a Deputy Election Commissioner or by any other decision or order of the Board may prefer an appeal against such decision with the Board of Governors within fourteen days of the decision or order , which shall be referred to an adjudicator selected from amongst the panel maintained by the Board" . (emphasis added) 21. Under Article 41 of the PCB Constitution, PCB has powers to make regulations, without prejudice to general power of PCB to make Regulations under Section 5 of the Ordinance. PCB has prescribed, among others, the Conduct of Proceedings before Independent Adjudicator , the Pakistan Cricket Board Election Regulations 2015, and Pakistan Cricket Board (Rules for Private Cricket Events), 2012. F. Determination: 22. Now I would like to thrash out the moot points mentioned above as under: (a) Whether the PCB Constitution is a statutory instrument or not, and whether the instant writ petition is maintainable under Article 199 of the Constitution of Pakistan? 23. While raising preliminary objections regarding the maintainability of the petition, the learned counsel for the Respondents has raised specific objection that the Respondents have non-statutory Rules, as such the instant petition is not maintainable before this Court. The learned counsel has placed reliance on the Muhammad Zaman and others v. Government of Pakistan etc. (2017 SCMR 571). It is noticeable here that the learned counsel for the Petitioner has not uttered even a single word to counter the contention of the learned counsel for the Respondents regarding non-statutory Rules of the Respondents. 24. Importantly , under Section 3 of the Ordinance, the Government has powers to make boards for the control of sports in Pakistan for the purpose of promoting and developing uniform standards of competition in sports in Pakistan comparable to the standards prevailing internationally and regulating and controlling sports in Pakistan on a national basis. The sports? has been defined in Section 2(i) of the Ordinance, and recognizes cricket as a sport. Therefore, the issuance of the PCB Constitution, under which PCB has been established, has the backing of law . 25. The case law submitted by the learned counsel of the Respondent, Muhammad Zaman supra, also ruled that the test of whether rules/regulations were statutory or otherwise was not solely whether their framing required the approval of the Government or not, rather it was the nature and efficacy of such rules/regulations. The Court had to see whether the rules/regulations dealt with instructions for internal control or management, in which case they would be non-statutory, or they were broader than and were complementary to the parent statute in matters of crucial importance, in which event they would be statutory. 26. Similarly , the case titled Shafique Ahmad Khan and others v. NESCOM and others (PLD 2016 SC 377), established the principle that "certain Rules or Regulations were framed without the approval of the Federal Government was not the sole criteria to term them as non-statutory in nature. It was indeed their nature and area of efficacy which were determinative of their status. Rules dealing with instructions for internal control or management were treated as non-statutory while those whose area of efficacy was broader and were complementary to the parent statute in the matters of crucial importance were statutory." (emphasis added) 27. Therefore, in view of the above case law referred, since the PCB Constitution has wider and broader area of efficacy , hence has backing of law, made under Section 3 of the Ordinance. Further , all the principles and directions etc. enlisted in such instrument shall have to be complied with being the command of the statute by the Members.
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28. It is also important to observe case law titled Muhammad Tariq Badr and another v. National Bank of Pakistan and others (2013 SCMR 314), in which it was held at Para 8 that "... it is not only the legal position, but has also been conceded by the counsel for both the sides that, if the rules of a statutory establishment/b ody are statutory in nature, the employees (who are covered by the rules) of such organization may invoke the constitutional jurisdiction of the High Court for the redressal of their service grievance." (emphasis added) 29. However , an exception can be drawn to the case titled IPC through Secretary vs. Arbab Altaf Hussain and others (2014 SCMR 1573 ), in which it was held that services of contractual employees of PCB were not governed by any statutory rules and thus their constitutional petitions filed before the High Court were not competent; secondly , the employment of the said employees was contractual in nature and their services were terminated after due notice as per their contractual terms and conditions of service. On such account the constitutional petitions before the High Court were incompetent and had to fail. 30. Hence, it follows that the PCB Constitution is non-statutory in nature and actions under the same cannot be challenged under the Constitutional jurisdiction of this Court because the PCB Constitution is for the internal control and management amongst the Members of the PCB only. As the Members have been defined under Article 2(c), (p) & (s) as "Associate Member", "Full Member" and "Honorary Member" respectively and Articles 12, 13 & 14 of the PCB Constitution. The Respondent No.1 made the PCB Constitution specifically to promote and regulate the conduct of the Members, to set up a Code of Conduct for discipline in all the Members and to regulate affiliation of constituent Members which is purely the internal management of the PCB. Hence, while relying upon the Muhammad Zaman Supra case in which it has been held that the Court had to see whether the rules/regulations dealt with instructions for internal control or management, in which case they would be non- statutory, or they were broader than and were complementary to the parent statute in matters of crucial importance, in which event they would be statutory, I have left with no option but to hold that this Court lacks jurisdiction to entertain this petition being the PCB Constitution non-statutory in nature. (b) Whether the instant writ petition is maintainable in absence of any resolution authorizing the President of the Petitioner to file instant proceedings? 31. This Court on the very first date pointed out that no resolution has been attached with the petition and till to date has not been associated with the petition. In this regard, the contention of the learned counsel for the Petitioner is that under Article 10 of the Model Constitution the President is also the Chief Executive of the Club and has the power to file petition before this Court and the petition has been duly filed through President; that the President signed all the pleadings, as such the petition is competent; that the resolution is prepared but could not be filed through proper application before the Court. 32. But on the other hand learned counsel for the Respondents contended that the Petitioner has not annexed any authorization whereby it has been author ized by the Club to file the said petition by the President, therefore, the instant petition is legally defective and deserve summarily dismissed on this score alone and that too the said defect is incurable. 33. Admittedly , the petition has been filed without associating the resolution, and there is no provision under the PCB Constitution, specifically authorizing the President of the Petitioner to initiate proceedings against PCB or any other respondent. 34. It was held in the case of TNB Liberty Power Ltd. vs. Director Of Labour, Government Of Sindh, (2014 PLC 382 Karachi), that constitutional petition had been filed without proper authorization to the person, as for such an authorization a resolution of the Petitioner (employer) company was necessary to authorize such person to file the petition and in absence…
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