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Petitioner: M/o IPC through Secretary and otherss VS Respondent: ARBAB ALTAF HUSSAIN and others
Court Name: Supreme Court of Pakistan Judge(s): Anwar Zaheer Jamali, Mian Saqib Nisar Title: M/o IPC through Secretary and otherss vs ARBAB ALTAF HUSSAIN and others Case No.:Civil Petitions Nos.784, 853 to 876 of 2014, Criminal Original Petitions Nos.48
JUDGMENT
Reported As: 2014 PSC 1075, 2014 SCMR 1573 Result: Order accordingly Judgment JUDGMENT ' MIAN SAQIB NISAR, J.---The matter came up for hearing before this Court on 21-7-2014 and vide short orders, these petitions were converted into appeals and allowed in the following terms:-- "After hearing the arguments of learned ASCs for the parties and some of the respondents in person, for reasons to be recorded separately, this petition is converted into appeal and allowed; impugned judgment dated 17-5-2014 is set aside. In the light of the new Constitution of the Board, enforced vide notification dated 10-7-2014, the Patron is required to appoint Acting Chairman for the intervening period and also the Chief Election Commissioner within one week to hold free and fair elections within the period prescribed by the notification(s) dated 10-7-2014. It may be mentioned here that Mr. Najam Aziz Sethi has made a statement before the Court that he shall not be contesting forthcoming elections for the post of Chairman, PCB. Other pending applications, including Criminal Original Petitions Nos.48 and 54 of 2014 are also disposed of accordingly. ' For reasons to, be recorded separately, these petitions are converted into appeals and allowed; the judgment impugned therein is, therefore, set aside as the petitions filed by the respondents before the Islamabad High Court were, inter alia, incompetent; the Board having no statutory rules. Besides, their appointments were on contract basis. Other pending applications are also disposed of accordingly." (This order be read as integral part of this opinion) 2 The backdrop of this case has nexus with the appointment of Mr. Zaka Ashraf as the Chairman of the Pakistan Cricket Board (PCB or the Board), vide notification dated 13-10-2011. This appointment (election) was assailed by one Major (R) Nadeem Ahmed through Writ Petition No,2242 of 2013 in
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the Islamabad High Court on 25-5-2013 and by an order dated 28-5-2013, the learned single Judge-in-Chamber restrained Mr. Zaka Ashraf from performing his duties as the Chairman. Vide another order dated 13-6-2013, the Islamabad High Court directed the Ministry of Inter Provincial Coordination (IPC) to appoint someone as the acting Chairman of the Board. Pursuant to the above, IPC placed three names before the Islamabad High Court for approval of one of them to act as the Chairman, but before an order could be passed by the Court; the Patron nominated Mr. Najam Sethi as the acting Chairman vide notification dated 22-6-2013. However, ultimately vide judgment dated 4-7-2013 the noted writ petition was allowed and the appointment of Mr. Zaka Ashraf as the Chairman of the PCB was set aside/annulled. The salient features of this judgment are reflected in paragraphs Nos.21 to 25 thereof, in that, a direction was issued for the special audit of the PCB during the period when Mr. Zaka Ashraf was the Chairman of the Board; Part IV of the PCB Constitution was declared to be void ab initio and a direction was issued to the Election Commission of Pakistan for holding of the election(s) of the PCB (for the Board as a whole) within 90 days. Furthermore, Mr. Najam Sethi was directed to act as the caretaker Chairman, till the time a new Chairman was elected in terms of the said judgment. This judgment dated 4-7-2013 was assailed by Mr. Zaka Ashraf and the present petitioner vide intra court appeals (I. C.A. No,1033 of 2013 and I. C.A. No,938 of 2013 respectively) which were allowed by the Division Bench of the High Court on 15-1-2014, and the judgment of the single Judge-in-Chamber was set aside. The effect of this judgment is clear from the operative part thereof which is reproduced as under:-- "In view of the aforementioned facts, we have come to the conclusion that the impugned judgment, was outside the ambit of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and is therefore, liable to be set aside. The respondent Chaudhry Muhammad Zaka Ashraf was removed from the post of Chairman, Pakistan Cricket Board in violation of principle of natural justice, as no opportunity of hearing was provided to him at the time of removal, so by setting aside the impugned judgment, we order restoration of Chaudhry Muhammad Zaka Ashraf as Chairman, Pakistan Cricket Board. All the decisions taken by PCB or I.M.C. During interim period, would be considered as legal and would stand validated. Since the appointment of Interim Management Committee was temporary, so with the pronouncement of this judgment, the said Committee would stand dissolved. The situation of Pakistan Cricket Board would come back to the day when the writ petition was filed." ' This judgment was challenged by the present petitioner (IPC) vide Civil Petition No,61 of 2014 which was dismissed as withdrawn by this Court on 31-1-2014. The following part of the order is relevant:-- "(8) The record reveals that the learned Single Judge in chambers at Islamabad High Court passed the order restraining respondent No,1 to function as Chairman, Cricket Board at the initial stage of the proceedings. This order created a vacuum which necessitated measures for a stop gap arrangement. At the end of the day, when the lntra Court Appeal was allowed and respondent No,1 was restored, the vacuum thus created has filled. Once the vacuum was filled, we do not understand how the interim or stop gap arrangement or set up created during the interregnum can endure. The interim set up created pursuant to inter locutory or final orders passed by the learned Single Judge of the High Court in its Chambers in Writ Petition No,2242 of 2013 will evaporate with their reversal on acceptance of appeal. Therefore, we do not agree with the learned Advocate Supreme Court for the petitioner that the set up created during the interregnum can have any existence after the parties were brought to the position as was existing at the time of commencement of action. (9) The argument addressed in the alternative that even if the set up thus created during the interregnum cannot endure, the power of the Government to hire and fire cannot be restricted by any observation made in the impugned judgment, seems to have flowed from on apprehension which is more Impginary than real. There is absolutely nothing in the impugned judgment, nor
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there can be, as could restrict the power of the Government to do what it is required by law to do. When faced with this situation, the learned Advocate Supreme Court for the petitioner straightaway asked for withdrawal of her petition in the terms mentioned above. (emphasis supplied by us)." 3. Vide notification dated 30-1-2014 issued by the Federal Government an amendment was introduced in the Constitution of the PCB and instead of the President of Pakistan, the Prime Minister of Pakistan was made the Patron (of the PCB). Furthermore vide notification dated 10-2- 2014 another amendment was made therein (in the Constitution) to the effect that Section 41 was substituted, to read as follows:-- "41. Supersession of the Board.---(1) When the Patron is of the opinion that the Board is unable to perform its functions properly in accordance with this Constitution he may, by order in writing, supersede the Board and constitute a Management Committee comprising upto eleven members, for the performance of the functions of the Board: ' Provided that upon an order of supersession the Board of Governors shall stand dissolved and the Chairman shall stand removed. ' Provided further that such supersession shall not remain in force for a period of more than one hundred and twenty days unless extended by the Patron for reasons to be recorded in writing. (2) The Management Committee shall elect one of its members to be its Chairman who shall also be the Chairman of the Board. (3) The Management Committee shall assume and discharge all or any functions of the Board and reference in this Constitution to the Board of Governors and the Chairman shall deemed to be a reference to the Management Committee. (4) The Patron may also assign additional functions to the Management Committee for the promotion and development of Cricket. (5) All acts done, proceedings taken and contract entered into by the Management Committee shall be deemed to have been done, taken and entered into lawfully and validly and shall be binding on the Board." ' The same day (i,e, 10-2-2014) vide another Notification No,4-14/2008- IPC-S-II, the Board, which was restored by the learned Division Bench of the High Court through its verdict dated 15-1-2014, was superseded by the Patron in exercise of his power under Section 41 thereof (the amended Constitution) and an Interim Management Committee (IMC) was formed to run the affairs of the PCB in place of the superseded Board. This supersession as mandated by law was for a period of one hundred and twenty days. The contents of the notification are:-- "No,4-14/2008-IPC-S-H.---Whereas there is an emergent need to streamline the affairs of Pakistan Cricket Board (PCB) and to align its constitution towards representative governance, to contain principles of financial discipline, to provide guiding principles for promotion of the game of cricket as per the international best practices, and to eliminate the chances of corrupt and arbitrary practices, and to organize cricketing bodies in a fair and transparent manner; ' And whereas there are serious issues in the management of PCB, repugnant to the aims and objects of PCB and that there is an immediate and emergent need to take necessary measures to improve the management of PCB as well as to streamline the game of cricket at all levels in Pakistan; ' Now, therefore, under the powers conferred upon the Patron under paragraph 41 of the PCB constitution as amended vide SRO dated 10th February 2014, the Prime Minister of Pakistan being Patron PCB has been pleased to constitute the following Management Committee for performance of the functions of the Board with immediate effect: (i) Mian Sheharyar Khan, Ex-Chairman PCB. (ii) Mr. Najam Aziz Sethi, Ex-Acting Chairman PCB
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(iii) Mr. Zaheer Abbas, Ex-Captain Pakistan Cricket Team. (iv) Mr. Naveed Akram Cheema, Chief Secretary Punjab. (v) Secretary, Ministry of IPC. (vi) Mr. Shakil Sheikh, Ex-Member BOG, Islamabad/Rawalpindi. (vii) Mr. Yousaf Naseem Khokhar, Ex-Member, BOG from Wapda. (viii) Mr. Lqbal Qasim, ex-test Cricketer/Ex-member of BOG from National Bank of Pakistan. (2) It shall elect one' of its members as Chairman, who shall be the Chairman PCB. ' Pursuant to the above notification and in terms of sub-para 2 thereof Mr. Najam Sethi was elected as the Chairman PCB. It may be mentioned here that these two notifications; the one amending the Constitution of PCB) and the second superseding the Board of which Mr. Zaka Ashraf was the Chairman were never ever challenged by him (Mr. Zaka Ashraf) or any other Board Member(s) (who were thirteen in number); except Commodore (R) M. Arshad Hussain, and this remains to be the position till 10-7-2014, when the Federal Government has enforced a new Constitution of the Board. Be that as it may, during this period the services of certain employees of the Board were terminated, including one Arbab Altaf Hussain (respondent No,I of C.P.L.A.No,784/2014) whose service was terminated on 28-3-2014 by the Director Human Resource and Administration (Director HR & A) of PCB. He was the first to file a Writ Petition No,1789 of 2014, primarily challenging his termination order, and it is only in the above context that the supersession notification was also assailed. Some other employees of PCB who were similarly placed (their services also terminated) filed the akin petitions (in some cases however the notification was not challenged). 4. For the first time Commodore (R) M. Arshad Hussain (a member of the superseded Board) filed a Writ Petition No,2277 of 2014 before the Islamabad High Court on 10-5-2010 in which Mr. Zaka Ashraf was arrayed as one of the respondents. It may be relevant to mention here that the term of office of Mr. M. Arshad as a Board member admittedly was for a period of one year. His appointment is dated 13-5-2013, which term was to expire on 12-5-2014 and the petition was filed by him just two days (on 10-5-2014) before the expiry of his term. In this petition, Mr. Zaka Ashraf at some point of time (note: must be between 12th to 14th of May ---without yet being served in the matter) moved an application for his transposition as a petitioner, but there is no order of the Court in respect of his transposition request. Anyhow, all these petitions which were twenty-five in number were clubbed and heard together and have been decided by the single Judge-in-Chamber of the Islamabad High Court vide impugned judgment dated 17-5-2014; whereby the notification dated 10-2-2014 (by virtue whereof the Board of Governors was superseded) has been declared illegal and unlawful. The main reasons in this regard are:- that the supersession is not inconsonance with the power available to the Patron in terms of section 41 of the PCB Constitution; the object of supersession and the reasons for the interim set up were missing; that the Interim Managing Committee (IMC) has exercised certain power beyond its mandate; there was no material justifying the supersession and thus such action is arbitrary and mala fide. Thus on the basis of these broad reasons, the court came to the conclusion "Therefore, the impugned Notification dated 10-2-2014 superseding duly elected Body of Pakistan Cricket Board without assigning any reason nor any instance shown is required to be struck down. The same is, therefore, hereby annulled. The acts down orders based on long term nature by employing remaining or any other order of like nature passed by the interim Management Committee during such period are also struck down being excessive of their powers". As a consequence of the impugned judgment, besides the revival of superseded Board, the termination of the employees has been annulled. The above judgment has been challenged before this Court .In Civil Petition No,784 of 2014 (and other connected matters) and on 21-5-2014 this Court was pleased to suspend the impugned judgment in the following terms:--
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"We have heard the learned Advocate Supreme Court for the petitioner. Issue notice to the respondents for 27-5-2014. Till then, operation of the impugned judgment shall remain suspended." ' On 27-5-2014 however another order was passed, in that, "At the joint request of learned ASCs for the parties, the hearing of main petition and the stay application is adjourned for two weeks. It is expected that in the meantime, parties will maintain status-quo vis-a-vis the contesting respondents". 5. The matter came up for hearing before this Court on 26-6-2014 and the case was partly heard. When it came up for hearing on 10-7-2014, Mr. Salman Aslam Butt, the learned Attorney-General for Pakistan appearing for the Federal Government informed the Court that a new Constitution of the Board is being enforced; the Managing Committee headed by Mr. Najam Sethi is being dispensed with, and a new Board of Governors is being constituted. During the course of hearing it was further divulged that pursuant to the new Constitution and the steps to follow, Mr. Najam Sethi shall be one of the nominees of the Patron on the Board of Governors. About this new development, Mr. Imtiaz Rasheed Siddiqui, learned Advocate Supreme Court appearing for Mr. Zaka Ashraf when queried, has categorically, unequivocally and unambiguously stated, that he has discussed the above expected development with Mr. Zaka Ashraf, who is abroad. He and his client has no objection qua the enforcement of the new Constitution; the holding of the elections thereunder. His client however for the vindication of his position shall request the Court for his reinstatement as per the impugned judgment, and simultaneously shall resign, without taking over as the Chairman PCB even for a single moment. But Mr. Siddiqui expressed serious reservation about the inclusion, of Mr. Najam Sethi as one of the nominees of the Patron, on the proposed PCB Board, on the ground that this is an ulteriorly motivated move and the object and intention behind is to bring back Mr. Sethi as the Chairman, in an oblique and indirect way. This according to him shall be a colourable exercise of jurisdiction and a mala fide act. It is meant to ultimately bring him back as the Chairman, through a dubious mean. Anyhow the case was adjourned to 11-7-2014 to have the view point of Mr. Sethi in the context of above objection and the plea. On the said date (11-7-2014) three notifications were also produced on the record by the learned Attorney General vide C.M.A. No,3933 of 2014. The first notification is about the promulgation of the new Constitution of the PCB. By virtue of second notification S.R.O. No,1/2014 (in supersession of office letter No,F.No,4-14/2008-IPC(S-II) dated 6th June, 2014 and SRO dated 10-2-2014), the Patron appointed Mr. Justice (R) Syed Jamshed Ali Shah, the former Judge of the Supreme Court of Pakistan as the Election Commissioner of PCB with immediate effect as per the requirement of Part-IV of the new Constitution of PCB; the Managing Committee headed by Mr. Najam Sethi ceased to exist and the newly appointed Election Commissioner (named above) was to take over the charge of Chairman PCB who was to ensure the conduct of elections within thirty days from the date of assumption of the office as the Chairman PCB. This all was required to be done in terms of the new Constitution. Vide same notification as per Article 10 of the new PCB Constitution, the composition of the Board of Governors was postulated and Mr. Najam Sethi and Mr. Iqbal Umer, the two Members of the Board of Governors were nominated by the Patron in his discretion (as envisaged by Article 10(d) of the new Constitution). According to third notification No,F.No,4-14/2008-IPC(S-II), it was mandated that Mr. Justice (R) Syed Jamshed Ali Shah shall take over as the Chairman of PCB with immediate effect from today. 6. On 11-7-2014 Mr. Najam Sethi was also present in the Court who came forward to express his view point and stated that he in the first place was never keen to be appointed as Chairman PCB, but the Patron reposed confidence in him and he has worked hard for the revamping of the Board and promotion of Cricket in Pakistan. It is on account of his honest endeavors that the Board's function, prestige etc. Has been improved and restored. Once again, if the Patron (the Prime Minister) wants
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him to continue serving the Board in any capacity, he cannot disappoint the Patron and say no to him. Be that as it may, on the said date the operation of two out of three notifications dated 10-7- 2014 (except through which the Constitution was enforced --- brought on the record vide C.M.A. No,3933 of 2014) was suspended and the matter was listed for hearing on 21-7-2014. 7. Ms. Asma Jehangir, learned counsel for the petitioner in continuation of the earlier submissions made on 26-6-2014 argued that the supersession notification dated 10-7-2014 is well within the purview of the provisions of section 41 of the PCB Constitution and the authority available to the Patron thereunder; the opinion has been formed by the Patron on the basis of adequate material justifying that the Board is unable to perform its functions properly in accordance with the PCB Constitution, thus it is in valid exercise of his jurisdiction and the Board headed by Mr. Zaka Ashraf was lawfully superseded. Moreover she contended that none of the writ petitioners/respondents had any locus standi to challenge the notification of supersession dated 10-2-2014; Mr. Zaka Ashraf or any other Board member who were superseded never ever challenged the supersession order, except Commodore (R) M. Arshad Hussain, who in the facts and circumstances of the case had no locus standi to do so, because his term as a Member of the Board was to expire on 12-5-2014, whereas the Writ Petition bearing No,2277/2014 was filed by him on 10-5-2014, which was a Saturday and when it came up for final hearing on 15-5-2014, he virtually was not a Member of the Board; that Commodore (R) M. Arshad Hussain was estopped by his own conduct to file such belated petition which was hit by the rule of laches, and the principles of acquiescence, waiver are also duly attracted to his case. Furthermore, she submitted that from the contents of his petition, it is quite clear that Commodore (R) M. Arshad Hussain was/is neither pursuing his own cause in a bona fide manner, nor does he come to the Court with clean hands, rather this is a proxy petition, as he is primarily seeking the reinstatement of Mr. Zaka Ashraf. As regards the other writ petitioners/respondents, it is submitted that they were all contractual employees of the Board and their services were terminated by the competent authority in the Board (e.g. In the case of Arbab Altaf Hussain by Director HR & A) after giving one month's notice as per the terms and conditions of their service. The issue of supersession of the Board in the context of the termination of the employees was not relevant and, therefore, while examining the validity of their termination, the learned High Court in exercise of its jurisdiction under Article 199 of the Constitution of. Pakistan 1973, in the garb of such petitions could not determine the wires of the supersession action. Without prejudice to the above, it is also submitted that the very writ petitions filed by the employees were incompetent and not maintainable in law, because not only that they were in the contractual employment of the Board, rather their rules of service were non-statutory in nature and resultantly, the writ petitions should have been dismissed on this score alone; in any case the employees in the facts and circumstances of the present case had no locus standi to challenge the supersession order of the Board dated 10-2-2014; it was/is also not permissible for the employees to make a collateral attack on the supersession action of the Board, in the garb of challenging their termination of contractual employment. 8. During the course of her submissions Ms. Asma Jehangir, learned counsel in view of certain observation of the Court sought some time to ponder qua the response thereto; one hour was granted for the above. On resumption of hearing, Mr. Najam Sethi who was present in the Court throughout the proceedings (since morning) came to the rostrum and stated that the only objection of the respondent Mr. Zaka Ashraf is that by virtue of his nomination as a member of the new Board he shall be elected as the Chairman of the Board. But while hearing the proceeding of the case, he has decided not to contest the forthcoming elections for the office of Chairmanship under the new Constitution (such statement is also reflected in the short order reproduced above). Mr. Imtiaz Rasheed Siddiqui, learned Advocate Supreme Court when asked to comment upon the above, states that though his client (he himself) has no intention to resile from earlier commitment
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made before the Court in respect of accepting the new Constitution and the steps to be taken thereunder, but as the petitioners have argued the case in the first part of the day on merits therefore, he would also make his legal submissions. Be that as it may, in order to avoid any confusion, we have again asked Mr. Siddiqui if he accepts the new Constitution and the holding of elections according to it, he very candidly and unequivocally affirms the same. Be that as it may, we have still allowed him to make his submissions. It is argued that this entire exercise of supersession is mala fide; meant to circumvent, nullify and frustrate the judgment of the High Court passed in I.C.A. Dated 15-1-2014; there was no material available with the Patron to form an honest opinion, that the Board is unable to perform its functions properly in accordance with the Constitution. He has also made reference to the summary submitted by the concerned ministry to the Patron for the purposes of supersession, to argue that from the contents thereof it is clear that the entire exercise of supersession is manipulation and a preplanned action; the Patron has not formed any independent opinion as is required by Section 41 ibid; that there was no waiver on part of Mr. Zaka Ashraf at any point of time for the reason that Commodore (R) M. Arshad Hussain, one of the Board Members, had filed the writ petition in which Mr. Zaka Ashraf was arrayed as…
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