Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Hanif Gohar VS Respondent: Anjum Nisar
Court Name: Sindh High Court Judge(s): Muhammad Ali Mazhar, Yousuf Ali Sayeed Title: Hanif Gohar vs Anjum Nisar Case No.: Constitutional Petition No. D-314 of 2020 Date of Judgment:2020-11-23 Reported As: 2020 SHC 1202 Result: Petition dismissed
JUDGMENT
JUDGMENT YOUSUF ALI SAYEED, J. The Petition relates to the election of the Federation of Pakistan Chambers of Commerce & Industry (the "FPCCI" ") for the year 2020 (the "Election" ), as held on 27.12.2019 in terms of the Election Schedule issued in that regard, subject to the relevant provisions of the Trade Organizations Act 2013 (the "2013 Act" ) and Trade Organisations Rules, 2013 (the "2013 Rules" ) made by the Federal Government in exercise of powers conferred under S.31 thereof. 2. Apparently , the Petitioner and Respondent No.6 both contested the Election for the post of Senior Vice President, representing different constitue nt associations of the FPCCI, the former as a nominee of the Association of Builders and Developers of Pakistan and the latter as the nominee of the Pakistan Ethanol Manufacturing Association, with each of them securing 176 votes from the 352 votes counted as per the result ostensibly announced in the 63rd Annual General Body Meeting of the FPCCI held on 28.12.2019, with 4 further votes being withheld. The relevant excerpt from the aforementioned announcement reads as follows: "Mr. Muhammad Hanif Gohar and Mr. Asim Ghani Usman, secured equal votes i.e. 176 each. Four votes of Pakistan Afghan Joint CCI and Travel Agents Association of Pakistan were kept in envelopes on the directives of the Honorable Sindh High Court dated 26th December 2019 (CP D-8424/2019 and the Honorable Islamabad High Court dated 20th December 2019 (WP 4422/2019). The fate of the four concealed votes will be announced on the final outcome of these WP and CP by the Honorable Courts." 3. The grievance espoused by the Petitioner before this Court appears to be predicated on the premise that this deadlock was precipitated by the Respondent No.5 voting in the Election as the nominee of the Pakistan Footwear Manufacturers Association Lahore (the "PFMA" ) as well as the Pakistan Chemical Manufacturers Association (the "PCMA" ). The Respondent No.5 was the successful candidate for the post of President of the FPCCI, and per the Petitioner , as the election was held on a "panel basis", with the Petitioner and Respondent No.6 being candidates
---
## Page 2
of the rival "United Business Group" and "Businessmen Panel" respectively , and as the Respondent No.5 also belonged to the same panel as the Resp ondent No.6, it was contended that he had, as the nominee of both the aforementioned Associations, been able to cast two votes in favour of each of the candidates from that panel, including the Respondent No.6, it being averred that this was unlawful as his nomi nation by both Associations was contrary to the Scheme of S.20 of the 2013 Act and as the Respondent No.5 had even otherwise been ineligible to be appointed as a nominee of those Associations; yet those nomination(s) came to pass as such an outcome was facilitated by certain Orders made prior to the elections by the Regulator of Trade Organizations (i.e. the Respondent No.2, hereinafter referred to as the "Regulator" ) on Appeals preferred by the Respondent No.5, being Order-in-Original No. 99/2019 dated 25.11.2019, Order-in-Original No.101/20l9 dated 27.11.2019, Orders-in- Original Nos.1 18/2019 and No.119/2019 both dated 20.12.2019, as well as an Order dated 27.12.2019 made after the Election (collectively , the "Impugned Orders" ), all of which were bad in law . 4. Vide this Petition under Article 199 of the Constitution, it has accordingly been prayed that "I). The impugned orders/directions vide order-in-original No.118/2019 and order-in-original No.119/2019 both dated 20-12-2019, order dated 27-12-2019, order-in-original No.101/20l9 dated 27-11-2019, order-in-original No 99/2019 dated 25-11-2019 passed by the Respondent No.2 are illegal, without jurisdiction, not sustainable in law, having no legal effect, hence the same may please be set aside; consequently the election process and casting of votes by the voters/members in compliance of impugned orders/directions to such extent may please be set aside; II). That the Respondent. No.5 was not legally entitled to cast two votes in FPCCI Election 2020 as such all votes casted by Respondent No.5 as a candidate of his Businessman Panel (BMP) and more particularly in favour of Respondent No.6 are liable to be excluded from the votes counted for the purpose of result of said Election; III). That in the alternate one out of two votes casted by Respondent No.5 in favour of candidates of his Businessmen Panel Group more particularly his one vote casted in favour of Respondent No.6 may be declared illegal and may be ordered to be excluded from the count of valid votes for the purpose of result of FPCCI Election 2020; IV). That the Petitioner may be declared an elected having been secured 176 votes as against 174 votes secured by Respondent No.6 by excluding two votes casted by one person namely Respondent No.5 and in the alternate only one vote casted by Respondent No.5 in favour of Respondent No.6 may be considered for counting and as such it may be declared that the Respondent No.6 secured 175 votes, hence he lost the Election; V). Pass orders as an interim measures thereby the Petitioner may be allowed to hold post of Senior Vice President FPCCI for the term 2020; VI). Cost of the proceedings and any other relief(s) which this Hon?ble Court may deem fit and proper under the circumstances of the case may also be granted." 5. For purpose of reference and due appraisal of the controversy for its determination in its proper perspective, a precis of the proceedings culminating in the Impugned Orders along with a brief as to the decision of the Regulator in each instance is as follows: (a) In the wake of one Zubair Tufail being included in the provisional voters list of the FPCCI as the nominee of the PCMA instead of the Respondent No.5, the latter had raised an objection against the nomination before the Secretary General of the FPCCI (the "Secretary General" ) and the three member Election Commission of the FPCCI (the "EC" , i.e. the Respondent No.4), comprised of the Respondents Nos.4(i), (ii) and (iii), which was declined, leading to an Appeal being filed by the Respondent No.5 before the Regulator , which was decided in terms of Order-in-Original No.99/2019 dated 25.11.2019, wherein it was observed that the PCMA had conveyed contradictory nominations, casting doubt on the method/process adopted for nomin ation, hence the decision of the EC was set-aside and the Secretary General of the PCMA was directed to convene an emergent meeting of its Executive Committee members and nominate the nominee for EC member in a fair and transparent manner and forward the nomination for EC to the FPCCI before 28.1 1.2019. (b) The Respondent No.5's nomination on behalf of the PFMA, which had been submitted in his capacity as the proprietor of a concern by the name of "S.A. Trading Corporation", had been rejected by the Secretary General of the FPCCI on objection raised that said proprietorship concern was not a member of the PFMA, and the
---
## Page 3
Respondent No.5's representation to the Respondent No.3 had also proven unsuccessful. An Appeal to the EC proved fruitless and the Respondent No.5 then filed a further Appeal before the Regulator , which was decided in terms of Order-in-Original No.101/20l9 dated 27.11.2019, whereby it was concluded that Rule 15(a) of the 2013 Rules setting out a requirement of two-years valid membership of the trade organization as on the date of announcement of the election schedule by its executive committee in order to be eligible to vote did not apply to nominations for FPCCI elections, which was governed by Rule 20(2)(b), hence the nominee of a trade body for the elections of FPCCI has to merely be a member of a trade body and M/s S.A. Trading Company fulfilled this condition as the relevant membership certificate had been issued by the PFMA on 23.08.2019. As such, the proprietorship concern was held to be a member of the PFMA and to have fulfilled the criteria of nomination for the Elections under Rule 20(2)(b) of 2013 Rules. Accordingly , the Appeal was accepted and the decision of the EC was set-aside, with the Secretary General being directed to include the Respondent No.5's name in the final voters list. (c) The EC had rejected the nomination paper of the Respondent No.5 for the post of President of the FPCCI as the nominee of the PCMA and excluded his name from the final voters list in that capacity on the basis that his name had already been included in the voters list as the nominee of the PFMA. The Appeal filed by the Respondent No.5 in that regard before the Regulator was decided in terms of Order-in-Original No.118/20l9 dated 20.12.2019, where it was concluded that the 2013 Act did not restrict any person to be a member of more than one trade organization, therefore the legitimate rights of a member of the trade body could not be curtailed, hence the Appeal was allowed, with the decision of the EC being set-aside and the Secre tary General being directed to include the name of the Respondent No.5 in the final voters list as the nominee of the PCMA and also in the list of candidates for the post of President. (d) The EC had rejected the nomination paper of the Respondent No.5 for the post of President of the FPCCI as the nominee of the PFMA on the basis of an Order dated 03.12.2019 made by the Islamabad High Court in Writ Petition No. 4172/2019. The Appeal filed by the Respondent No.5 in that regard before the Regulator was decided in terms of Order-in-Original No.119/20l9 dated 20.12.2019, whereby it was observed that the Islamabad High Court had clarified vide Order dated 12.12.2019 that the Order of 03.12.2019 was not an injunction against the Respondent No.5' s participation in the Election, hence the decision of the EC was set-aside and the Secretary General was directed to include the name of the Respondent No.5 in the list of candidates for the position of President. (e) On the day of the Election, Objections were raised, including by the Petitioner , as to the casting of two votes by the Respondent No.5 (i.e. as the nominee of the PFMA and the PCMA on the ground that same was against the statutory framework and Article 42 of the Articles of Association of the FPCCI (the "Articles" ) and it was requested that those votes be kept in a sealed envelope in terms of Rule 19(8) of the 2013 Rules. Such request was declined by the EC on the basis of the Order dated 27.12.2019 made by the Regulator . 6. Although the Respondent No.6 appea red in person on one date, he failed to appear thereafter or engage a pleader . The remaining Respondents entered appearance and filed their respective comments/counter affidavits, after which the matter progressed to arguments. As it transpires, the case then came to be heard in two phases, with counsel for the parties firstly being heard at length over the course of several dates and the matter then being reserved for judgment on 09.09.2020, but again being heard thereafter on certain further dates in view of a Statement that came to be filed on behalf of the Petitioner on 26.10.2020, whereby the Judgment made on 19.10.2020 by a learned single Judge of the Islamabad High Court in Writ Petition Nos. 4172/2019 and 4321/2019 (the "IHC Decision" ) was placed on record, with clarification then being sought in the second phase as to its implications, as will be discussed in due course. 7. Proceeding with his submissions in the first phase, learned counsel for the Petitioner had invited attention to the Impugned Orders and submitted that the Respondent No.5's nomination on behalf of the PFMA, submitted in his capacity as the proprietor of "S.A. Trading Corporation", had been rightly rejected by the Secretary General of the FPCCI on objection raised that said concern was not a member of the PFMA, and, on appeal, the Regulator had wrongly held the proprietorship to be a member thereof and to have fulfilled the criteria of nomination for the Elections under Rule 20(2)(b) of 2013 Rules. It was submitted that as the membership of the concern had
---
## Page 4
remained suspended due to non-payment of the renewal fee, hence it was not a member of the PFMA as on 31.03.2019, which was a requirement for inclusion in the voters list, and was ineligible as per Rule 15(1) of the 2013 Rules. For purpose of reference, the Rules 15(1) and 20(1), (2)(a) and (b) are reproduced hereunder: "15. Eligibility to vote. - (1) Subject to provisions of section 10 of the Act, the eligibility of a member of trade organization to vote at the elections of the trade organization shall be subject to following conditions, namely:- (a) the member has completed two years of valid membership of the trade organization as on the date of announcement of election schedule by the executive committee of the trade organization: Provided that old members shall be eligible to vote on completion of one year of their enrollment and payment of all dues; and (b) the member has fulfilled the conditions of membership and renewal thereof of the respective trade organization under Rule 1 1." "20. Organizational structure of the Federation.- (1) The Federation shall comprise a president, a senior vice president, twelve vice-presidents, an executive committee and a general body . (2) The general body of the Federation shall comprise the representatives, nominated by each license chamber , association, Association of small traders, women's chamber and chamber of small traders subject to the following:- (a) Two representatives shall be nominated from each licensed chamber , association, women's chamber and chamber of small traders and association of small traders; (b) The representatives shall be members of the nominating trade organization; (c) ..." 8. Furthermore, it was contended at that stage that the Regulator had wrongly accepted the nominations of the Respondent No.5 from the PCMA as well as the PFMA, as, per learned counsel, this offended the intent and purpose of Section 20 of the 2013 Act and Article-42 of the Articles, which read as follows: 20. Restriction on membership. (1) No person shall be a member of more than such number of trade organisations as the Federal Government may , by notification in the of ficial Gazette, specify in this behalf. (2) A person convicted for any offence under this Act shall not hold, or be eligible for holding, any office in a registered trade organisation unless a period of five years has elapsed. Article-42 (i) Every representative of the Member Body present, in person, at a meeting of the FPCCI or any of its committees and qualified to vote shall have one vote. The president, in case of quality of votes, shall have one casting vote. [sic] (ii) No representative shall be entitled to vote at any election meetings of the FPCCI unless all dues, membership subscriptions payable by the Member Body of the FPCCI of which he is nominee have been paid and credited to the accounts of the FPCCI prior to the date and time of nomination(s) to the General Body specified by the Secretary General. 9. It was contended by learned counsel that as the provision pertained to the subject of restriction on membership of trade organisations; the same was to be interpreted as restricting a person's membership to one trade organisation in the absence of a permissive notification issued by the Federal Government. It was submitted that the dual membership of the Respondent No.5 with the PCMA as well as the PFMA and the decision of allowing him to vote as the nominee of both those Associations therefore contravened S.20 of the 2013 Act, as well as Article- 42. 10. It was also submitted that on the polling day a further challenge had been raised against the casting of two votes by Respondent No.5's, and it was sought that those challenged votes be kept in a separate sealed envelope, as per Rule 19(8) of the 2013 Rules, however , the Regulator wrongly interpreted and relied upon an Order that had been on 26.12.2019 made by the Baluchistan High Court on Contempt Application No. 77/2019 in C.P. No. 388/2018 to preclude such treatment, and the votes cast by the Respondent No.5 were therefore counted in reckoning the result. 11. It was contended that the Impugned Orders were bad in law and the events transpiring as a consequence had thus had a materially adverse effect on the result Election to the detriment of the Petitioner . On that premise, it was
---
## Page 5
prayed that the Petition be allowed with the Petitioner being declared as having been elected to the post of Senior Vice President FPCCI for the term 2020. 12. Conversely , at that juncture, learned counsel for the Respondent No.5 submitted that the Impugned Orders were passed in accordance with the applicable statutory framework - viz the 2013 Act and 2013 Rules, in as much as there was no provision creating a bar or restriction on the Respondent No.5's nomination as the representative of more than one association. He submitted that the Petitioner had failed to produc e any material to show that any objection had been raised by him against the Respondent No.5' s nomination as the representative of PCMA and PFMA before or during the electoral process, including on the day of the election, and had also abjectly failed to show that there had been any irregularity during the polls. Furthermore, it was pointed out that the Petitioner had failed to exhaust the remedies provided under the 2013 Act, as the Impugned Orders had not been challenged before the Federal Government, as envisaged under Section 21(2) thereof, and had therefore attained finality . Section 21 of the 2013 Act reads as follows: 21. Appeal. (1) Any person or trade organisation aggrieved by any decision or order of the Administrator may, within fourteen days of communication of such decision or order , prefer appeal to the Regulator . (2) Any person or trade organisation aggrieved by any decision or order of the Regulator may, within fourteen days of communication of such decision or order , prefer appeal to the Federal Government whose decision, subject to sub-section (4), shall be final. (3) On appeal under sub-section (1) the Regulator or, as the case may be, under sub-section (2) the Federal Government may suspend the operation or execution of the decision or order appealed against until the disposal of such appeal. (4) Any person aggrieved by the final order or decision of the Federal Government, involving a question of law, may, within thirty days of such order or decision, prefer ppeal to the High Court. 13. On the subject of S.21 of the 2013 Act and the maintainability of the Petition, learned counsel placed reliance on the judgments in the cases reported as Messrs. Mumtaz Steel Corporation (Pvt.) Ltd. through Managing Director and 4 others vs. Pakistan Steel Rerolling Mills Association (Karachi Circle) through Secretary and 5 others, Messrs. Recorder Television Network (Pvt.) Ltd. through Chief Executive Officer vs. Federation Of Pakistan through Secretary , Ministry of Information and Broadcasting, Islamabad and another 2013 MLD 99, The Tariq Transport Company , Lahore vs. (1) The Sargodha-Bhera Bus Service, Sargodha, (2) the regional transport Authority , Lahore, and (3) the Provincial Transport Authority , Lahore PLD 1958 Supreme Court (Pak.) 437, Messrs. A.G. Pesticides (Pvt.) Ltd. and another vs. Federation of Pakistan and others PLD 2004 Karachi 620 and Messrs. Union Cosmic Communic ations (Pvt.), Limited, Karachi through Authorized Director and 5 others vs. Central Board Of Revenue through Member Income Tax, Islamabad and another 2006 PTD 1678 . 14. Furthermore, the assertion of voting on a panel basis was dispelled as being bereft of substance and it was also pointed out that Rule 19(6) of the 2013 Rules specifically provide for secrecy of the ballot. With reference to the Counter-Af fidavit submitted by the FPCCI through the Acting Secretary General, it was pointed out that the same accordingly reflected that the Respondent No.5 had exercised his right of franchise as a nominee of PCMA and PFMA secretively . It was submitted that the Petition was misconceived and was even otherwise liable to be dismissed as not-maintainable in view of S.21 of the 2013 Act. 15. Learned counsel appearing on behalf of the three-member EC had referred to the Counter-Af fidavit filed on their behalf and supported the case of the Petitioner on merit. Furthermore, he opened a new dimension altogether in submitting that the result of the Election had not been formally announced by the EC as required under Rules 17(e) & Rule 18(19) of 2013 Rules in as much as the official announcement was to have been made at the Annual General Meeting of the FPCCI, which, in accordance with the Election Sche dule, had been convened on 28.12.2019 at the FPCCI' s head office at Karachi, but was adjourned to 04.01.2020 by the Respondent No.7 (i.e. the outgoing President of the FPCCI, presiding over the meeting) as the quorum was not complete. It was alleged that the announcement of the result filed along with the Petition did not bear the signatures of any of the members of the EC and was invalid.
---
## Page 6
16. Exercising the right of reply , learned counsel for the Petitioner sought to distinguish the judgments cited on behalf of the Respondent No.5 on the point of maintainability by contending that the appellate remedies under the 2013 Act were illusory and inefficacious, with reliance being placed on the judgments in the cases reported as Collector of Customs, Customs House, Lahore vs. Messrs. S. M. Ahmad & Company (Pvt.) Limited Islamabad 1999 SCMR 138, Town Committee, Gakhar Mandi vs. Authority Under The Payment Of Wages Act Gujranwala and 57 others PLD 2002 Supreme Court 452 and Gatron (Industries) Limited vs. Government of Pakistan and Others 1999 SCMR 1072 . Furthermore, albeit that the argument of invalidity of the result had not been previously advance d, the submission made in that regard on behalf of the EC was also embraced and adopted. With reference to the pleadings, it was contended that the Regulator had acted mala fide, in a partial, unjust and oppressive manner , without jurisdiction, hence the Impugned Orders were not sustainable in law, due to which the Petition was maintainable. Additionally , it was contended that as the proper determination of the dispute required an interpretation of S.20 of the 2013 Act, the Constitutional jurisdiction could be invoked on that score without exhausting the remedies provided under the statute. 17. In view of the endeavour of counsel for the EC to re-orientate the parameters of the dispute, counsel for the Respondent No.5 had also been extended an opportunity to again address the Court to the extent of the plea raised regarding the announcement of the result, and contended that the members of the EC were biased in as much as the Regulator had set aside certain decisions of theirs vide the Impugned Orders in favour of the Respondent No. 5. Furthermore, he contended that the counting sheets bore the signatures of the EC members and reflected a tally consistent with the announced result. 18. Having heard the arguments advance d at that stage in light of the pleadings and material placed on record, we had reserved the matter for judgment on 09.09.2020, but then relisted the same on further dates for clarification as to the implication of the developments that subsequently came to the fore, as will be discussed herein below . 19. However , as is appropriate, we would firstly address the question of maintainability arising in view of the Impugned Orders being appealable under S. 21 of the 2013 Act, which, suffice it to say, remains unaffected by the intervening circumstances. 20. As can readily be discerned from a plain reading of S.21, in terms of sub-section (2) thereof, any decision or order of the Regulator may be appealed before the Federal Government by any person or trade organisation within the specified timeframe, whereas any final order or decision made at that level, involving a question of law, is in turn subject to an appeal to the High Court under sub-section (4). As such, the grounds raised by the Petitioner in challenging the Impugned Orders with reference to the particular provisions of the 2013 Act and 2013 Rules could well have been taken within that appellate framework, which was not done. Needless to say, it is well settled that the jurisdiction under Article 199 of the Constitution is not to normally be exercised where an alternate remedy is provided in law, unless such remedy is illusory/inef ficacious or the case is one where an actor otherwise amenable to issuance of a writ…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.