MAHER ALAVI vs PAKISTAN AND 5 OTHERS

' FAKHRUDDIN G. EBRAHIM, J.-This petition calls into question the annulment of petitioner's election as President of the Federation of Chamber of Commerce and Industry, the respondent No, 3 herein, for the years 1980, on a complaint lodged by Raja Abdul Rehman, the respondent No, 5, with the Director, Trade Organisation, Ministry of Commerce, Government of Pakistan, respondent No, 2 herein, in exercise of its power under clause (e) of subsection (2) of section 9 of the Trade Organisation Ordinance, 1961, which clause reads as follows:- "9 (2)(e).-Within thirty days of the announcement of the results of any election held by any such trade organisation, or any body exercising any function relating thereto for the purpose of electing any person to the Executive Committee or other body including regional, circle or zonal "body of such trade organisation or for any other purpose and with the approval of the Central Government, annul such election if he is satisfied,- (0 upon his own knowledge; or

(ii) after such investigation as he may think fit to make; or

(iii) upon a report made by a person authorised by him to make investigation for the purpose, that the irregularities in the conduct of such election in writing direct fresh election to be held within such period as may be specified in the order;"

2. The respondent No, 3 Federation is a body corporate registered under section 26 of the Companies Act, 1913. Under its Article 15(b) the electorate for the election of its President is the Managing Committee of the Federation which Managing Committee under clause (a) of this article consists of 30 members, including the immediate past President of the Federation who shall be ex office Member of the Managing Committee.

3. A meeting of the Managing Committee to elect the President of the Federation was held on February 4, 1980. It was presided by Mr. All Amjad, legal counsel of the Federation, who is a senior and respected Member of the Karachi Bar. As would appear from the minutes of this meeting, the correctness of which was not questioned before us, it was announced at the outset that the third contesting candidate for the Presidentship, Mr. G. H. Arshad had withdrawn his nomination and thus the contest remained confined to the two remaining candidates in the field, namely, the petitioner and respondent No,

5. While the ballot papers were being issued to the members who were being called out serially, the respondent No, 5 got up to make the following statement:- "I deposited 14 proxies yesterday on the 3rd February, at 1.58 p. m. I was not issued any list of the voters for whom I had submitted the proxies. I had been only issued the acknowledgement receipt confirming the fact that 14 proxies had been received. I deposited another set of five proxies and a due receipt for the same number was also issued.

' In case of all the nineteen proxies the same was counted in the presence . Of three members of the Managing Committee. The receipt was typed after seeing, checking and counting the proxies.

Obviously they scrutinized the genuineness of all the proxies and then I was issued the receipt.

' In the evening when I had left the office at 7 p. m. I received a letter from my office delivered by the office of the Federation. A photo copy of the same is being produced.

' The Federation informed me that they have received only eleven proxies, Under the circumstances I have reasons to believe that the administration of the Federation is not impartial and have deliberately taken away three of proxies. Under the circumstances I beg to boycott the Elections."

' The chair asked respondent No, 5 about the particulars of the proxies which had been deposited by him particularly the names of the members of the Managing Committee who had given the proxies and the names of the proxy holders in whose favour they had been so issued. The respondent No, 5, however, stated that since the Federation had not given any particulars of the proxies deposited by him he could not then give these particulars. The chair called upon the members to exercise their franchise firstly by members present in person. 16 Members of the Managing Committee present personally received the ballot papers. Four members of the Managing Committee including the respondent No, 5 who were personally present did not come forward to exercise their franchise and did not accept the ballot papers. Eight ballot papers were issued to members holding proxies for absentee members of the Managing Committee. Two members, Shaikh Muhammad Akram and Arif Mahmood Shaikh, who were not present but their proxy holders were present but they did not choose to exercise their proxy. After the ballot papers were issued the respondent No, 5 and some other members of the Managing Committee withdrew from the meeting. In all 24 ballot papers were issued but only 21 had been cast and all the votes cast were in favour of the petitioner.

4. Following the above, the respondent No, 5 by a telegram sought the intervention of Director, Trade Organisation, complaining that the proxy papers deposited by him were deliberately misplaced which prejudiced his election and that the third candidate G. R. Arshad who was convassing for his election retired a few minutes before the start of the meeting but all the same his name was not printed on the ballot paper issued to the voters and that the whole affair appeared to be pre-planned and cooked up. The telegram prayed that the result of the election may be directed to be withheld. This telegram was discussed by the Director, Trade Organisation with the Secretary, Commerce who directed him that an enquiry be conducted by the Director Trade Organisation and in the meanwhile the Federation may be asked to withhold the results of the election. This noting is dated 6th February, 1980, and on the same day the Commerce Ministry addressed a letter to the President of the Federation informing him that it had been decided to withhold the results of the election of the Federation till enquiry is conducted and completed and final orders issued by the Federal Government. The telegram also referred to three earlier letters addressed to the Federation by the Ministry and concluded by saying that the Director Trade Organisation will conduct the enquiry and will reach Karachi on 9th evening. The telegram did not mention that the respondent No, 5 had made a complaint or for that matter any complaint had been received by the Government and the letters referred to therein did not concern the election of the President of the Federation. These letters refer to the election of the Members of the Managing Committee held on 13-1-1980, which is not the subject-matter of controversy in this petition. It would appear from the Government record that the respondent No, 5 had also personally delivered to the Director Trade Organisation on 7-2-1980 his letter dated 6th February, 1980. The letter starts by saying that the respondent No, 5 was grateful to the Director, Trade Organisation for saving the whole nation from the disasterous consequences of the rigging elections of 1977, which had brought this country, to the brink of the blood civil war and in view of this signal contribution, the respondent No, 5 was approaching the Director, Trade Organisation to institute an impartial enquiry into the rigging that recently took place in the Federation's 1980 elections. The letter complains that respondent No, 5 had been grossly wronged by Shaikh Ishrat Ali, the former President of the Federation during the Annual Election of the Federation held recently, which elections he had tried to manipulate in order to ensure that his cronies should be returned as office-bearers of the Federation for Shaikh Ishrat Ali's past conduct was such that he required a shield. Two irregularities were alleged in relation to the election of the President in this letter. Firstly, it was stated that the respondent No, 5 had deposited 19 proxies and though he had obtained duly signed receipts for the same, what was sought to be handed over to him was only 16 proxies. The letter asserted that even then the respondent No, 5 would have won the election for the President of the Federation as the total number of voters was only 30 to be divided among three candidates, yet the respondent No, 5 decided to boycott the election as a mark of protest against the unfair and foul means adopted by Shaikh Ishrat All to achieve the desired results. The second irregularity that was alleged was that although there were three candidates for Presidentship the third candidate G. H. Arshad had been pursuaded to withdraw his candidature on the polling day and the ballot paper contained the names of only two candidates instead of three which amounted to gross violation of the established norms of election. The letter concluded with a request for annulment of the result of the Federation's Election and an order for fresh election, before which, the outgoing President Shaikh Ishrat Ali should be asked to hand over charge immediately and the newly-elected President namely, the petitioner, should not be allowed to hold office pending fresh elections. Neither the petitioner nor the Federation were at any time informed about the contents of this letter.

5. On 9-2-1980 the Federation received from the Commerce Ministry a telex message dated 7-2- 1980 informing the Federation that the members of the Managing Committee or of the General Body connected with the Presidential Election, election of the Federation desirous of recording (?) may be asked to meet the Director, Trade Organisation on 10th or 11th February, 1980, in the office of the Federation. The Director, Trade Organisation duly arrived, and as it would appear from his report dated 17-2-1980 he got reconstituted the file of the Federation relating to the election of the President and took it in his safe custody, obtained photostat copies of the relevant pages of the register containing the details of the proxies received and as recorded by the office of the Federation, recorded the statements of three contesting candidates, the Presiding Officer, the immediate past President Shaikh Ishrat Ali, General Secretary and Administrative Officer of the Federation and some of the Members-elect of the Managing Committee for the year 1980. He also consulted the constitution of the Federation, its election files, the relevant sections of the Companies Act. He held formal and informal discussion with all concerned, kept a close Watch of the general atmosphere prevailing amongst the members-elect of the Federation and also addressed the three candidates in presence of the past President Shaikh Ishrat Ali and the Presidents of the Chamber of Commerce and Industry, Gujranwala and Sukkur with a view to bring about a reconciliation.

6. The Director-Trade Organisation had also issued type questionaire to several members. Syed Inayat Ali, the learned Standing Counsel has been pleased to produce in Court the entire material which was before the Director, Trade Organisation and we have had the benefit of examining the same.

7. On 21-2-1980, an order was communicated to the Secretary-General of the Federation annuling the election of the petitioner as President of the Federation in exercise of the powers conferred by clause (e) of subsection (2) of section 9 of the Trade Organisation Ordinance, 1961. The order recites that irregularities were alleged to have been committed in the election of the President and the Director, Trade Organisation had been satisfied that the investigations made into the allegations have shown that irregularities had in fact taken place in the said election.

8. By another communication the Government gave a new schedule for the election of the President under its supervision to be held on 28-2-1980.

9. The petitioner objected both to the annulment of his election as well as holding of fresh election of the President but has admittedly filed his nomination for the same but under protest and subject to his right to challenge the annulment of his election separately.

10. The present petition was filed on 24-2-1980 and the report submitted by the Director, Trade Organisation to the Government following his enquiry into the petitioner's election as President held on 4-2-1980 was for the first time made available to the parties when the same was filed in the Press proceedings. This report is in three parts ; the preliminary part which speaks of the nature of the enquiry held by the Director, Trade Organisation ; the second part gives the observations of the Director, Trade Organisation which catalog no less than eleven irregularities found by him and this part deals with the conclusions. The concluding part states that a combination of violation of election rules, irregularities on the part of the office-bearers of the Federation, indisciplined conduct of election by the Presiding Officer and undesirable, game of proxy amongst just 30 individuals had resulted in an atmosphere of incordiality, unhealthy politics and no-confidence in the business community. It further states that since no reconciliation amongst the parties concerned had so far been reported the Director, Trade Organisation recommends the annulment of the election of the President of the Federation for the year 1980 held on 4-2-1980 and directed the Federation to hold election afresh under the supervision of the nominee of the Government.

11. Before I come to examine the substance, if any, in the irregularities found by the Director, Trade Organisation it is desirable to ascertain the jurisdiction of the Director, Trade Organization as regards the annulment of an election under the said Ordinance.

12. According to Messrs N. A. Faruqui, Sharaf Faridi and Niaz Ahmed, the learned counsel, for the petitioner, the Federation and respondent No, 6, a member of the Managing Committee, respectively, there is no power in the Director Trade Organisation to annul the election of a President under section 9 of the Ordinance for that power, according to them is limited to annuling the election to the Managing Committee. According to Mr. A. K. Brohi, the learned counsel for the respondent No, 5 not only the Director, Trade Organisation has the power to annul any election held by the Federation including the election of its President but it is within the exclusive domain of the Director, Trade Organisation, for' such reasons as he may deem fit to annul any election so much so that it is not open to this Court to examine its validity or reasonableness.

13. For reasons appearing hereafter it is not possible for me to accept either of the two views propounded by the learned counsel. Firstly, if clause (e) of subsection (2) of section 9 is read in the following manner as was suggested by Mr. A. K. Brohi, it becomes clear that it is open to the Director, Trade Organisation to annul the election of an office-bearer of the. Federation, including its President :- "Within 30 days of the announcement of the result of any election held by any such trade organisation, or any body exercising any functions relating thereto for the purpose of electing any person to the Executive Committee or other body or for any other purpose annul such election."

' The field occupied by the Trade Organisation Ordinance, 1961 is very wid and there is, therefore, no reason why the aforesaid clause (e) should be given a narrow and restricted interpretation so as to limit the jurisdiction of the Director, Trade Organisation to annul the elections of members of the Executive Committee only. The expressions, "any election", "any body", or "other body", occurring in this clause coupled with the words `for any other purpose", makes it clear that the law also contemplates annulment of election of office-bearers of a trade organisation including its President.

14. Coming to the argument of Mr. A. K. Brohi, the learned counsel for respondent No, 5, though there is no doubt that the Director, Trade Organisation has the authority to annul the election of an office-bearer of a trade organisation including its President and the enquiry that is to precede such annulment is left to the discretion of the Director, Trade Organisation for he may act upon his own knowledge or adopt for the purpose such procedure as he may deem fit, the irregularities that must be found in the conduct of the election must be such as to justify its annulment. In other words, it must be for justifiable reasons which means reasons germane and pertinent to the election. There must, therefore, be not only an irregularity in the conduct of the election, not every or any irregularity, but such irregularity affecting the result of the election which empowers the Director, Trade Organisation to annul an election. If this be the correct interpretation of section 9, it must follow that if the Director, Trade Organisation annul an election for reasons not only extraneous to election but for reasons no affecting the result of the election he will be doing so in excess of his authority. Furthermore, even the conclusion that any irregularity had affected the result of an election will be open to judicial review by Superior Courts if the reasons given do not in law or in fact justify such a conclusion or arriving at such a conclusion the Director, Trade Organisation had based on no evidence or such evidence on which the conclusion could no reasonably be founded. Such a finding would be in excess of his authority and the Courts will step in to check such excess of Administrative powers. Even in relation to orders made within jurisdiction our Courts have in exercise of jurisdiction under Article 199 of the Constitution struck down the decision of quasi judicial Tribunals as erroneous in law or one that cannot stand the test of reasonableness or in absence of factual basis of administrative determination. I may with advantge refer to some of these decisions.

(i) In Mohomed Mohsin Siddiqui v. The Chief Judge, Karachi (1), this Court quashed an order of an Election Tribunal setting aside the election of a candidate and invalidating 339 votes on the ground that the election Tribunal failed to consider whether the irregularities in question had affected the election result. It was further observed that the result of an election cannot be said to be materially affected unless the irregularities had actually turned the scale in favour of the winning candidate.

(ii) In the case of Tariq Transport Co: Lahore v. Sargodha Bhirya Bus Service (2), the Supreme Court observed that in each case provisions of the statute under which the action has been taken has to be correctly construed and when on facts found, whether subjectively or objectively, the order in question could not have been made such order would be open to judicial review.

(iii) In Farid Ahmed Y. Ghiasuddin Chauahry (3), the Supreme Court in an election dispute observed that though the High Court's power under Article 98 of the 1962 Constitution to interfere with an order of Election

(1) PLD 1956 Kar. 203 (2) PLD 1958 SC 437

(3) 1968 SCMR 88 Tribunal was extremely of a limited nature and the Court will not in the exercise of this jurisdiction question a finding of fact by the Tribunal merely on the ground that a different view could be taken upon the same evidence but if there is an error patent and so flagrant that no reasonable body of person could arrive at such a conclusion, the High Court can interfere under Article 98.

(iv) In the case of Province of East Pakistan v. Abdul Subhan Saudagar (1). The Supreme Court at page 7 of the Judgment observed that the High Court will be entitled to interfere with those conclusions of a Tribunal if acting reasonably a person could not have reached those conclusions at all or where some relevant circumstance has not been taken into consideration or a circumstance in fact irrelevant has affected the decision.

(v) In Akbar Ali v. Raisur Rehman (2), the Election Tribunal cancelled certain ballot papers which on the record presented were proved to be free from any defect. The Supreme Court held that the Tribunal had acted wantonly in excluding from count those ballot papers as spoilt and the order was held to be without lawful authority. The earlier decision of the Supreme Court in Mian Jamal Shah's case was referred to and it was observed that it was not to the effect that an untenable interpretation of law by the Election Commission which may amount to excess of jurisdiction or failure to exercise jurisdiction is not susceptible of interference by the High Court.

(vi) In the Province of East Pakistan v. Amir Hussain (3), the Supreme Court of Pakistan reversed the finding of guilt of a Government servant because the facts on which he was found by the Screening Committee to be guilty of misconduct were wholly insufficient to sustain it.

(vii) In N. M. Khan and another v. The Settlement and Rehabilitation Commissioner (4), the Supreme Court maintained an order made by the High Court under Article 98 of the Constitution which had reversed a finding of fact by the Settlement authorities that the house in dispute was a single independent entity. The Supreme Court observed that the view that prevailed with the Settlement Authorities having been influenced by an erroneous deduction from facts which manifestly could not support an inference reduced their decision to an arbitrary and illegal exercise of power and threw it open to review in writ petition by the High Court.

(viii) In Noora v. Settlement and Rehabilitation Commissioner and others (5), the Supreme Court maintained an order made by the High Court in a writ, reversing an order made by a Settlement Commissioner on an interpretation of a document holding that he had misread and misconstrued this document.

(ix) In the case of Karachi Electric Supply Corporation v. K E. S. C. Labour Union (6), the question before the Supreme Court was whether the Labour Court had correctly interpreted a settlement between the employer and his employees. The Supreme Court observed that it was the duty of the Court to give true meaning to words appearing in a legal instrument. The Supreme Court held that to place a true construction upon laws and legal instruments of all kinds is the special and peculiar responsibility of

(1) PLD 1964 SC 1 (2) PLD 1966 SC 492

(3) PLD 1963 SC 185 (4) 19-0 SCMR 158

(5) 1969 SCMR 517 (6) PLD 1967 SC 513 the Superior Courts and if a subordinate judicial or quasi-judicial authority should be found to have placed an untenable construction upon a legal instrument, the special responsibility of these Courts is attracted for rectifying the matter and that the exercise of lawful authority is subject to the necessity of interpretation of the law which is being applied and where that law is wrongly interpreted the action cannot be held to be otherwise then devoid of lawful authority.

(x) In Collector of Central Excise and Land Customs v. Imdad Ali (1), the Supreme Court rejected the evidence of value of the goods imported on the basis of which the importer had been convicted under section 167(8) and (9-B) of the Sea Customs Act on the ground that such evidence could not form the criterion for determining the market rate prevailing on the relevant date. The contention on behalf of the Department that High Court should not have interfered merely because it took a different view as to the weight to be attached to evidence relied upon by the Collector, was not accepted.

(xi) In the case reported in Muhammad Khan and another v. Chief Settlement and Rehabilitation Commissioner and others (2), the Rehabilitation Authorities sought to dispossess the mortgagees of their possession of the property in dispute. The Supreme Court of Pakistan held that on the true interpretation of section 4 of the Displaced Persons (Land Settlement) Act, 1958, the right, title and interest of the mortgagees had not been acquired by the relevant notification issued under section 4 of the Act.

(xii) In the case of Singer Sewing Machine Co. v. Commissioner of Income-tax (3), the Supreme Court of Pakistan issued a Writ interfering with an order of the Income-tax Authorities on the true interpretation of sections 15-B and 33-A-2 of the Income-tax Act. In this case, again, therefore, an administrative order was reviewed upon a true construction of a statute.

(xiii) A Division Bench of the Quetta High Court in the case of Nasreen Fatima v. Principal Bolan Medical College (4), graphically detailed in paragraph 27 of its Judgment the circumstances which will justify Courts interference under Article 199 of the Constitution. The paragraph reads as follows :- "27. The next point that deserves consideration is whether the impugned orders are liable to be interfered with by this Court in exercise of powers under Article 199 of the Constitution. We are conscious of the legal position that this Court does not normally undertake appraisal of evidence nor does it readily displace findings of fact. A traditional slowness of the High Court to disturb findings of fact has become a succinct rule governing the exercise of powers in these cases.

However, it would be laying too broad a proposition, if it is stated that this Court cannot at all interfere with the decision on facts recorded by administrative tribunals. A wealth of case law is available on point. There have been instances when the High Courts have travelled into the realm of facts in exercise of its constitutional jurisdiction. The High Courts have interfered when findings based on insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumption of facts patent errors of

(1) 1969 SCMR 708 (2) PLD 1962 SC 284

(3) PLD 1965 SC 333 (4) PLD 1978 Quetta 17 law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of power and unreasonable views on evidence has been taken. It cannot be said that every finding of executive tribunal is beyond the scope of interference of the High Court, because if that were so, the concept of certiorari would virtually become redundant and meaningless. We are sure, such helplessness on the part of the superior Courts was not contemplated by the vast body of case law that has come to occupy the field over the years."

15. Mr. A. K. Brohi strongly relied on Supreme Court case reported in Muhammad Hussain v. Sikandar (1), in support of his contention that once it is conceded that the Director, Trade Organisation had the jurisdiction he had then the jurisdiction to decide rightly or wrongly and the appreciation by the Director, Trade Organisation of a given set of facts cannot be substituted by that of the appreciation of the supervising Court. But as was observed by Dorab Patel, J. (as he then was) in the case of Employees Welfare Union v. R. B. Industries Ltd., Karachi (2), this is not the whole law. The learned Judge after referring to the above 'Supreme Court case and three more decisions, two from English Jurisdiction and the Full Court of our Supreme Court in Rahim Shah's case (3) went on to set aside an order made within jurisdiction by the Labour Appellate Tribunal on the ground that it was erroneous in law.

16. Now, I come to the catalogue of irregularities found by the Director Trade Organisation in the conduct of the election of President of the Federation for the year 1980.

(1) The first observation of the Director, Trade Organisation is that no secrecy was maintained in the conduct of the election, for the reason that both the envelope and the ballot papers were not only numbered but were also bearing the same number. It may first be noticed that there was no grievance made by any member that in fact secrecy was not maintained. The D. T.

0. Has introduced his own notion of how secrecy of the ballot is maintained, ignoring that the secrecy of ballot envisaged by law is not lost by reason of the ballot paper and its counter foil bearing the same number. The prescribed ballot paper under the conduct of Election Rules, 1977 also carries a serial number and same is the case in England where the counter foil of the ballot paper is to have a number to correspond with that on the back of the ballot paper (Parliamentary Elections of Schofield 2nd Edn., at page 764). In an election dispute it may have to be ascertained as to whether or not a particular voter has cast his vote. The record of the election including the ballot papers remains sealed to be opened only if the occasion arises by the Election Tribunal.

Therefore, in the absence of even an allegation that secrecy of the ballot had in fact not been maintained, the election could not have been nullified on this ground, which was also conceded to by Mr. Syed Inayat Ali, the learned Standing Counsel for the Government.

(ii) The second irregularity found by the Director, Trade Organisation was that though 24 ballot- papers have been issued the total votes cast were 21, three members thus took away their ballot papers which according to the Director, Trade Organisation indicated that no discipline was maintained in the election. It is further stated that the office of the Federation could not indicat the names of the three members who took away the ballot papers. Now,

(1) PLD 1974 C 139 (2) PLD 1976 Kar. 297

(3) PLD 1973 SC 24 if the Presiding Officer gives a ballot paper to the voter and he did not choose to cast his vote and takes away the ballot paper issued to him the Presiding Officer could hardly be blamed for the same. As to the allegation that the office could not indicate the names of the three members who took away the ballot papers there is nothing on the record to show that any officer of the Federation had been asked this question. Moreover, the names of such members can at best be known by the Presiding Officer when be opens the ballot box and examines the votes and since after the counting, the ballot papers are kept resealed in an envelope nobody in the office of the Federation was expected to know the names of the persons who had taken away the ballot papers.

Mr. Syed Inayat Ali conceded that this allegation was not only insufficient but irrelevant for it did not affect the result of the election.

(iii) The third irregularity found by the Director, Trade Organisation was that the immediate past President who was ex officio member of the Managing Committee had exercised four votes as proxy holder while under rule 13 of the Election Rules of the Federation only a member-elect can become proxy holder. Rule 13 reads as follows :- "13. Members-elect of the Managing Committee who shall be the voters in the election shall be entitled to attend, and vote at, the meeting U either in person or by proxy."

' In its plain language rule 13 enables a member-elect of the Managing Committee to cast their votes either in person or by proxy. It does not say that proxy holder must be a member elect of the Managing Committee The rule does not provide nor does the Federation's Articles so provide that the proxy holder must be a member-elect. The Director, Trade Organisation completely misread and misinterpreted rule 13. Mr. Syed Inyat Ali, however, contended that the Director, Trade Organisation's interpretation was correct and if that be the case the election was vitiated by this irregularity as it had affected its result.

(iv) The fourth allegation was that the immediate past President being an ex officio member should have indicated neutrality and impartiality which he did not, Mr. Syed Inayat Ali, the learned Standing Counsel conceded that there was no material on the record for this conclusion. I have also examined the record and find that only specific allegation against the past President is that he had requested one member by name Aziz Khan to vote for the petitioner but the voter declined saying he was committed to respondent No,

5. Significantly this allegation was not even put to Syed Ishrat Ali nor his attention invited to any irregularity allegedly committed by him. It may further be noticed that the immediate past President did not preside at the election meeting but nominated Mr. Ali Amjad, to preside at the same.

(v) The fifth allegation of irregularity was that 11 members of the Managing Committee had cast their votes in person though they had given their proxies in writing. Three of them had revoked their proxies in writing, the other eight did not do so which according to the Director, Trade Organisation was an irregularity because if the proxy is given in writing it should have been revoked in writing to avoid duplication and to get an indication to this effect. There was not even an allegation that there was any duplication of votes. Therefore, even if the Director, Trade Organisation is right in his view that proxies ought to have been revoked in writing which is in any event an erroneous view for a proxy is no more than an agent, who may in the absence constraints to the contrary in the Company's Articles, may even be a non-member, and a proxy may be revoked expressly or impliedly. The allegation has no relevancy to the result of the election. It is further alleged under this paragraph that only three members were asked to revoke the proxies in writing while the others were not asked to do so indicating discrimination but there was no allegation much less any evidence in its support. Mr. Inayat Ali, conceded that these allegations could not have resulted in annulment of the President's election for not only there was no material to justify the allegation but even otherwise the allegation had no bearing on the result of the election.

(vi) In the sixth allegation of irregularity the Director, Trade Organisation first refers to the fact that there was no provision in the Election Rules of the Federation providing for the date and time of withdrawal of candidature but in its absence, he goes on to conclude the ballot paper should have included the names of all the three candidates though the third candidate G. R. Arshad had admittedly withdrawn his candidatures as a few minutes before the start of the polling. According to the Director, Trade organisation what ought to have been done was to strike off the name of Mr. G. R. Arshad from the ballot paper. I cannot understand what difference it would have made if either the name of Mr. G. R. Arshad was omitted as a candidate in the freshly cyclostyled ballot paper or if his name had been struck off from the already cyclostyled ballot papers. In either case there would be two candidates in the field. This irregularity even otherwise, as was conceded by Mr. Syed Inayat Ali had no nexus with the result of the poll in favour of the petitioner.

(vii) The seventh irregularity may be reproduced in toto and it reads as follows :- "(7). The statement of Administrative Officer (pages 26 and 126) involved in the alleged replacement of three proxies deposited by Raja Abdul Rahman, the Complainant, has some point of doubt because a man with an experience of more than 20 years to his credit should have exercised extra care in the matter with which he has been dealing for the past many years."

' The respondent No, 5 alleged that he had deposited with the Administrative Officer of the Federation on 3rd February, 1980 at 1-58 p. m. 19 proxy forms in two lots, one bunch containing 14 proxies and the other five proxies and obtained two separate receipts but on the next day at the election he was told that he had in all deposited 16 proxies. The Director, Trade Organisation recorded the statement of the Administrative Officer who had given the two receipts. He has stated that he put the proxies upside down for the sake of secrecy and counted them in the fashion currency notes are counted without first scrutinizing them and in good faith, considering the respondent No, 5 as an honourable member of the Managing Committee, issued to him two receipts, one for 14 proxies and the other for five proxies separately. When after the closing time the officer started scrutiny of the proxies received by the Federation he found to his surprise that what he had counted as 14 proxies actually contained three covering letters of the same size as the size of the proxy paper. He immediately telephoned respondent No, 5 at about 3 p. m. And told him that inadvertently he had issued him a receipt for 14 proxies instead of 11 and requested him to kindly return the receipt and in place get the receipt for 11 proxies. He also told respondent No, 5 that he was sending a letter in that behalf which letter was utimately delivered in the office of the respondent No, 5 at 7 p. m., when according to the respondent No, 5 he bad left his office.

Admittedly, the respondent No, 5 was informed of this letter by his office at his residence. The aforesaid explanation given by the Administrative Officer, as is clear, and the aforesaid paragraph 7, has not been disbelieved by the D. T.

0. For all he says is that the officer should have exercised extra care in the matter. There is in any event no finding by the D. T. O. That 19 proxies had been deposited by respondent No, 5 and not 16 as deposed by the Administrative Officer. That the D. T. O. Was wholly unimpressed by the story of three missing proxies allegedly deposited by respondent No, 5 is clear from the fact that in his conclusions for annulling the election he does not refer to what would have been the irregularity of some importance namely the three missing proxies. This also explains the omission on the part of the D. T. O. To ascertain from respondent No, 5, the names of the three allegedly missing proxy givers and to examine them at his enquiry. It is also significant to note that neither the petitioner nor the Federation had at any time been informed either by the D. T.

0. Or respondent No, 5 the names of the throe members who had given proxies to respondent No, 5 which had been allegedly lost.

' I have examined the proxies and the forwarding letters deposited by respondent No,

5. Three of the proxies are accompanied by forwarding letters, the letters are of the same size as of the ballot paper and two of them even bear like the proxy paper revenue stamps. The D. T.

0. Was, therefore, right in not arriving at a finding that it had been proved to his satisfaction, that respondent No, 5 had deposited 19 proxies as alleged by him. The Administrative Officer of the Federation had no reason to make a false statement before the D. T.

0. It is also significant to note that in the present proceedings in spite of pertinent allegation that the respondent No, 5 has failed to disclose the names of the three proxy givers whose proxies were missing, the respondent No, 5 has not chosen to disclose the same. I would have thought that respondent No, 5 should have been anxious to record the statements of these three gentlemen to the effect that they had given proxies to him which would have been best evidence in support of his allegation. On our enquiry Mr. A. K. Brohi, the learned counsel for respondent No, 5 informed us that the names of the three proxy givers were as Aslam Shah, Dost Muhammad and Umer Haji Karim but we find that Aslam Shah given his proxy to Syed Ishrat Ali, Dost Muhammad had given his proxy to respondent No, 5, who supports the petitioner and the third gentleman Umar Haji Karim had voted in person and all these votes were cast in favour of the petitioner. Mr. Syed Inayat Ali conceded that not only this allegation remains unproved but even if respondent No, 5 was armed with three additional proxies the result of the poll would not have been different. Coming to the boycott of the election by the respondent No, 5 the question does arise as to why the respondent No, 5 boycotted the election for apart from the three disputed proxies, this respondent had deposited 16 proxies, which would have apparently given him a clear majority. The boycott, however, became necessary for the record shows that the respondent No, 5 at best could have obtained 9 votes in his favour. At the meeting in dispute 20 members were present in person, 13 of whom voted for the petitioner. From the members present, therefore, the petitioner could secured only 7 votes, including his own. Two members, Shaikh Muhammad Akram and Arif Mahmood Shaikh were absent but their proxies were present. The proxies on their behalf was not exercised and since respondent No, 5 was the proxy for these two persons it may be assumed that these votes were also in his pocket. The remaining 8 votes were by absent members-elect of the Managing Committee and they had voted through their proxies, in favour of the petitioner. It would, therefore, appear that the alternative to boycott was a defeat in the election, there was, therefore, no genuine reason to upset the election at the instance of a member who knew that he could not have succeeded under any circumstance.

(viii) The eighth irregularity found by the Director, Trade Organisation is that the Presiding Officer had not exercised due care and diligence in the conduct of the election inasmuch as he should have adjourned the meeting for a few hours to enable the respondent No, 5 to see the relevant record which would have avoided the boycott. It is further stated that after the boycott by respondent No, 5 the question of polling should not have arisen for the remaining candidate the petitioner ought to have declared successful without a poll. Even on the assumption that the Presiding Officer ought to have acceded to the request of respondent No, 5 to show him the relevant record, the Presiding Officer was not obliged to adjourn the meeting for a few hours for this purpose. In any event such an omission on the part of the Presiding Officer, assuming there being one, had no relevancy to the result of the poll. The second irregularity pointed out in this paragraph does not even need an answer for its rejection. Mr. Syed lnayat Ali again conceded that this irregularity had neither been substantiated nor can be said to be relevant as affecting the result of the poll.

(ix) The ninth irregularity found by the Director, Trade Organisation relates to a member Aziz Khan who, it is said tried to give back the ballot paper but the Presiding Officer unjustifiably refused to accept the same. There is in fact no evidence in support of this allegation for even Aziz Khan does not so allege in his statement before the Director, Trade Organisation.

(x) The tenth irregularity is said to be reliance by some members in their statements to some precedents as a basis which the Director, Trade Organisation considers unjustified for no precedents existed. The record shows that the past President Shaikh Ishrat All was the only person who had made reference to precedent and that was to the effect that a voter can vote in person without revoking proxy given by him, which in the absence of a contrary provision in the Articles was the correct position in law for a proxy may be revoked either expressly or impliedly.

(xi) The last irregularity pointed out by the Director, Trade Organisation was that some members regarded the proxy system as nuisance and cause of all ills. To that the short answer is that the proxy system is provided in the Constitution of the Federation which has been approved by the Government. There was in any event no material to show that in the election in question the proxy system had been abused nor is there a finding by the Director, Trade Organisation to that effect.

Mr. Syed Inayat Ali, conceded that this too was an unproved allegation and it had not even been alleged much less shown that it had affected the result of the poll. It may also be noticed that the fresh election ordered by the Director, Trade Organisation will be on the proxy basis.

17. During the course of his arguments Mr. Hassan A. Shaikh, while making a reply, in the absence of Mr. A. K. Brohi, the senior counsel appearing for respondent No, 5, vaguely argued that Shaikh Ishrat Ali being not a member-elect of the Managing Committee did not have a right to vote at the election of the President. Firstly, it may be noticed that it was this respondent's own case before the Director, Trade Organisation that there were 30 voters, which would include Shaikh Ishrat Ali.

Secondly, even in the present petition the limited allegation in relation to Shaikh Ishrat Ali is that he not being a member-elect of the Manangin Committee could neither be a proxy nor hold the election. Thirdly, the Director, Trade Organisation has given no such finding. On merits alse the allegation has no force for there is an apparent conflict in the Federation's Articles and rule 12 of its Election Rules which reads as follows:- "Rule No, 12..-If the Secretary-General finds that the number of candidates is more than one, he shall immediately issue a notice by telegram or by hand delivery convening a meeting of the members-elect of the Managing Committee to be held on or before the 31st of December to elect the President for the next year." against this, clause (b) of Article 15 of the Federation's Articles provide ,hat the Managing Committee shall elect from amongst it members a President and the Managing Committee under its clause (a) includes a past President, which was, in the present case, Shaikh Ishrat Ali. The said rule, it is obvious, cannot override the Articles. In any event the exercise of one vote by Shaikh Ishrat Ali in favour of the petitioner will not affect the result of the election as will be shown hereinafter.

18. On facts ascertained from the record 13 members had voted for the petitioner in person. Four members had voted in his favour through the proxy of Shaikh Ishrat Ali. Three members had voted in favour of the petitioner, through their proxy Mr. Muslim and one member had voted for the petitioner through the proxy of Kushtiwala. As aforesaid Shaikh Ishrat Ali was entitled to act as a proxy even as an outsider for the Articles or the Election Rules do not say that the proxy holder should be a member. It may be noticed that the learned counsel for respondent No, '5 understandably did not rely on Article 65 of Table 'A' of the Companies Act, 1913 for even otherwise it has no application because there are no individual members in the Federation, a company registered under the Companies Act, 1913, and if that article was pressed into service even the members-elect could not be proxy holder for they are not members of the Federation. Mr. Muslim, who admittedly voted for the petitioner not only for himself in person but also as proxy for three members, strangely enough stated before the Director, Trade Organisation, that he would not have voted for the petitioner if there was a choice of candidate. He also appears to say that he might have voted for respondent No,

5. The name of the respondent No, 5 was appearing on the ballot paper and no body had prevented Mr. Muslim for voting for him if he had so desired, or to refrain from voting for the petitioner. To ignore a vote is one thing but to permit what amounts to recasting of votes by giving credence to a might have been statement by a doubting Thomas, with which even the Director, Trade Organisation has remained uninfluenced, would be a height of folly.

Therefore, the votes cast by Mr Muslim could not be denied to the petitioner. Even if I were to discard the votes of two members, namely, S.M. Alam Shah and Dost Mohammad, who had, according to respondent No, 5, given him their proxy which he had allegedly delivered to the Federation and the vote personally cast by Shaikh Ishrat Ali, the petitioner, had secured as many as 18 votes out of a total electorate of 29 members. Thus the decision of the Director, Trade Organization cannot be sustained either in law or facts on record,

19. My conclusion, therefore, is that no doubt that the Directo, Trade Organisation had the jurisdiction to initiate an enquiry and to annul an election with the approval of the Federal Government but be in the course of exercise of that jurisdiction over-stepped its limits has much as what he was required to ascertain not all or any irregularity but , such irregularity as would justify the annulment of the election. In with words, the Director, Trade Organisation by his failure to give a finding that', an illegality affected the result of the poll did not possess the jurisdiction to annul the election.

20. Before parting I may refer to the grievance of the petitioner that he had been denied of proper opportunity of defending himself in as much as statements were recorded behind his back and he was not even informed of the allegations which ultimately resulted in annulment of the poll in his favour. To this the short answer is that the law empowered the Director, Trade Organisation to hold such enquiry as he may deem fit and the record shows that the Director, Trade Organisation, in spite of inadequacies of his report in some respects, has made no observation adverse to the petitioner's person, for it was not even alleged that election was being annulled for any act of commission or omission on his part, did take pains in holding a detailed enquiry.

21. What remains now is Mr. A. K. Brohi's argument that this petition is not maintainable for the petitioner did not exhaust the alternative remedy available to him by way of appeal which is provided in section 15 of the Trade Orgainsation Ordinance, 1961. The appeal under this section lie to the Federal Government. The Federal Government was already party to the impugned decision and had given its approval for the annulment of the election and the alternate remedy was, therefore, almost illusory.

22. For reasons aforesaid I declare the impugned order dated 21-2-1980 made by the Director, Trade Organisation as without lawful authority and of no legal effect. The petitioner will also be entitled to costs to be borne by respondents Nos, 1, 2 and 5.

' TANZIL-UR-AEHMAN, J.-I have had the advantage of going through the " judgment proposed by my learned brother but, with profound respect, I am unable to agree with him as to the result of the petition proposed by him. I would, therefore, venture to record my reasoning for a different conclusion, . I need not state the facts for these appear from the judgment proposed by my learned brother and will come directly to the questions involved in this case.

2. The learned counsel for the petitioner, Mr. Nasim Farooqui has challenged the impugned order mainly on three grounds, namely (1) that the interference of respondent Nos, 1 and 2 in the election to President of the Federation has been vitiated by jurisdictional error ; (2) it is mala fide both of fact and law, and (3) the impugned order is in the breach of the principle of natural justice and as such without lawful authority.

3. Substantiating his first two contentions the learned counsel invited our attention to the provisions of Article 9(2)(e) of the Trade Organisations Ordinance, 1961 with a background that, initially, there were certain complaints from unknown quarters as to some alleged irregularities allegedly having been committed at the elections of the Managing Committee of "A" class and "By class members of the Federation, held on 13-1-1980, which, subsequently, turned into a full-fledged inquiry about the alleged irregularities committed at the presidential election of the Federation. He, further, submitted that the Director, Trade Organizations had the jurisdiction to go into the question of elections of the Managing Committee but had no jurisdiction concerning the election of the President of the Federation, as the provisions of clauses (d) and (e) of section 9(2) do not confer any such power on him. In order to appreciate his contention it seems proper that the whole section of the Ordinance be reproduced below :- "9. Registered trade organisation to be subject to the control of Director.-(1) All acts and proceedings of a registered trade organisation shall be subject to the control of the Director and the affairs of such trade organization shall be managed and conducted in such manner as the Director may, from time to time, direct..

(2) Notwithstanding any thing contained in any law for the time being in force or in the articles or memorandum of a registered trade organization and without prejudice to the generality of the foregoing provisions, the Director may-

(a) requires any such trade organization or any competent person connected therewith to furnish him with any information, documents and returns relating to the affairs of such trade organization or to answer orally or otherwise any query with respect thereto ;

(b) inspect, with or without prior notice, any office of such trade organization including any of its branch or regional circle, zonal or liaison office, or any record of document found therein ;

(c) attend any meeting of the general body or the Executive Committee of such trade organisation or of any committee or other body set up or appointed to transact any business, or to conduct any affairs, of such trade organization ;

(d) watch and supervise, or cause to be watched and supervised, any election held by, or for the purpose of electing persons to the Executive Committee or other body including a regional, circle or zonal body of any such trade organization ;

(e) within thirty days of the announcement of the results of any election held by any such trade organization, or any body exercising any function relating thereto for the purpose of electing any person to the Executive Committee or other body including regional, circle or zonal body of such trade organization or for any other purpose and with the approval of the Central Government, annul such election if he is satisfied .

(i) upon his own knowledge ; or (ii)after such investigation as he may think fit to make ; or

(iii) upon a report made by a person authorised by him to make investigation for the purpose. That the irregularities in the conduct of such election justify such annulment and by order in writing, direct fresh election to be held within such period as may be specified in the order ;

(f) if he considers it necessary for smooth and efficient functioning of any such trade organization remove, or cause to be removed any member of the Executive Committee, not exceeding a total of five in any calendar year, of such trade organization and fill up, or cause to be filled up, the resultant vacancy ;

(g) suspend, or cause to be suspended, for a specified period any member, not exceeding a total of fifteen in one calendar year, of any such trade, organization and cancel, or cause to be cancelled, any such suspension or the suspension of any member otherwise than by or at the instance of the Director ;

(h) remove, or cause to be removed, from the membership register, the name of any member, not exceeding a total of fifteen in one calendar year, of any such trade organization, and re-instate, or cause to be re-instated, in the membership register, any member so removed or removed otherwise than by or at the instance of the Director ;

(i) cancel, suspend or modify any resolution adopted or any decision taken, by the general body or the Executive Committee of such trade organization he considers it necessary in the public interest or for orderly working of the trade organization ; or

(iii) in his opinion such resolution or decision is not in conformity with the provisions of the articles or memorandum or any rules or regulations made thereunder."

4. Mr. A. K. Brohi, the learned counsel for the respondent No, 5 in reply to the above contention submitted that section 9 (2) of the Trade Organizations Ordinance, 1961 is the sole law on the subject that it deals with. It is neither subject to other provisions of the Ordinance, nor there is any competition between, Government and the Arbitrational Tribunal so far as the power to annul the elections is concerned. The powers of the Government, he submitted, are of fairly sweeping nature of far-reaching effect. As to the power of respondents Nos, 1 and 2 to annul the presidential elections, he contended that for purposes of section 9 (2) (d) & (e) Articles 5 and 7 of the Definition Clause include the President also, as president is also a "body". It was further argued by him that the expression "or for any other purpose" used in section 9 (2)(e) cannot be for any other purpose except elections. It, therefore, necessarily includes election of the President.

5. By reading together the provisions of clauses (d) and (e) of section 9(2) of the Ordinance, it becomes clear that the Director, Trade Organisations is empowered to watch and supervise the elections held, by, or for the purpose of electing person to the Executive Committee or other body including regional Circle or Zonal Body of any such organisation and is further empowered, within 30 days of the announcement of the results of "any" election held by any such Trade Organisation or any body exercising any functions relating thereto for the purpose of electing any person to the Executive Committee of other "body" or "for any other purpose", to annul such elections, in clause "e" of section 9(2) the scope is very wide by the use of the words "any election held by any such organisation "and" for the purpose of electing any person to the Executive Committee or other body" . Or "for any other purpose". As such the Director, Trade Organisations to my mind, had jurisdiction to inquire into the Presidential election of the Federation, which is subject matter of dispute in this petition.

6. The next submission in support of the contention of the learned counsel for the petitioner as well as for respondents Nos, 3 and 6 as to the jurisdictional error on the part of respondents Nos, 1 and 2 is that the annulment of elections must follow the "announcement of the results" of such elections.

The election result having not been announced as provided in the Articles of Association of the Federation, the election could not be annulled inasmuch as that the respondents Nos, 1 and 2 had no jurisdiction to embark upon an inquiry resulting into annulment of election. In support of this contention they mainly relied upon Article 28 of the Articles of Association of the Federation, whereunder the results of elections of the Managing Committee as well as its office-bearers, including President of the Federation, were to be announced in the Annual General Meeting scheduled to be held on 7th February, 1980 which, as a result of earlier order dated 6th February, 1980 passed by the Director, Trade Organisation, could not be announced.

7. Mr. Nasim Farooqi, the learned counsel for the petitioner as well as Mr. Niaz Ahmed, for respondent No,.6, a member-elect, have placed their reliance on a decision of the Lahore High Court in the case of Faisalabad Chamber of Commerce v. Director, Trade Organisation (1). But this judgment is of little help to the learned counsel inasmuch as the observation regarding the D. T. O.'s power of annulling the election within the time limit of 30 days after the elections and not before are obiter dicta, because in that case no elections were held.

8. Mr. A. K. Brohi, the learned counsel for respondent No, 5 in reply to the said contention submitted that the word "announcement" having been used in the Statute cannot be read as with or under a subservient legislation i,e, Articles of Association of the Federation. In any case, the period provided in section (2)(e) cannot be read as a condition for exercise of power. It only provides a period of termination for the exercise of power.

9. I find no force in this contention of the learned counsel for the petitioner as well as respondents Nos, 3 and 6 for the simple reason that, firstly the power exercisable under section 9(2)(e) is "nothwithstanding to anything contained in the articles or memorandum of a registered trade organisation. . .", and secondly, the word "annoucement" as used in section 9(2)(e) is to be given its ordinary dictionary meaning which, in this case, the petitioner having received all the 21 votes cast at the election, was inherent in the situation for which he was declared as successful candidate for the office of Presidentship of the Federation at the elections (see page 122 of inquiry file). The announcement as provided under Article 28 of the Articles of Association is now only a formality and of no real significance.

10. Regarding the second contention of Mr. Nasim Farooqi, I am of the view that the earlier telegrams sent by D. T. O. As to the elections of the members of the Managing Committee but subsequently his holding inquiry into the presidential election of the Federation will not by itself be deemed as sufficient ground to accuse him of mala fide of fact or of law. It appears that on receipt by him the reply dated 5-2-1980 of Sh. Ishrat Ali, President of the Federation (Respondent No, 3), he felt satisfied that "no serious irregularity" had been committed at the elections of the Managing Committee. Soon after that he received another complaint regarding the alleged irregularities at the presidential election and so he proceeded to inquire into the same. In this circumstance, there is nothing which can be ascribed or objected to as mala fide of fact or law, on the part of respondents Nos, 1 and 2.

(1) 1979 CLC 267

11. Mr. Nasim Farooqi and Mr. Sharaf Faridi in support of their contention of ma/a fide of law next contented that the action taken under Article. 9(2)(e) is bad in law inasmuch as the dispute, if any, ought to have been referred to the Arbitrational Tribunal set up under section 12 of Trade Organisations Ordinance, 1961, but the contention appears to be entirely misconceived. The jurisdiction of. Respondent No, 2 to take action under Art. 9(2) of the Ordinance of 1961 can be independently exercised and the provisions of section 12 will not apply to the action taken by the respondent No, 2 with the approval of respondent No, 1 under section 9(2) of the said Ordinance, inasmuch as the power given under section 9(2) of the Ordi- nance is "notwithstanding anything contained in any law for the time being in force", and further the Director, Trade Organisations was not adjudicating a dispute, broadly speaking, between the petitioner and respondent No, 5; he was, in fact, inquiring into the irregularities alleged to have been committed, so as to vitiate the entire election.

12. It has been vigorously contended by Mr. Nasim Farocqi, that the petitioner had no notice of the report submitted by the Director, Trade Organisations to respondent No, 1, on which the ultimate decision of respondent No, 1 was based in annulling the election and thus the principle of natural justice has been violated in this case as no opportunity was afforded to him by the respondent No, 1 before taking action in the matter. The' principle of natural Justice has two aspects; If there is a statutory provision in certain enactment that before passing any order the aggrieved party is to be heard, the action taken without hearing the said party will be void ab initio and without jurisdiction.

But if there is no such provision in the enactment but the order has otherwise been passed without hearing him, a distinction has been recognized as observed, in the S. C. Judgment in Collector Sahiwal and 2 others v. Mohd. Akhtar (1), by Hamoodui Rehman, C. J. At p. 684 which is reproduced hereunder :- "The Courts in Pakistan have, however, taken the view that where the giving of a notice is provided for by the statute itself, the failure to give such a notice is fatal and cannot be cured. But where there is no specific statutory provision and reliance is only placed on the principles of natural justice and audi alteram partem, there if at some stage or other the person aggrieved has been given a fair opportunity of presenting his point of view, then the defect, if any, in the initial order may be deemed to have been cured if the statutory pro-vision for notice be of a mandatory nature, then an order without any notice would be wholly void; but if there be no such provision or if the provision be merely of a director nature, then, wherever a violation of this principle of natural justice is alleged, the Court may call upon the party alleging the same to prove prejudice before it set aside the order. Such prejudice would obviously not be there if it is found that the party had been actually given a full hearing by the appellate or revisional authority and afforded every opportunity of showing cause against the allegations made. To the same effect is the view of the Peshawar High Court in the case of Charsaddah Sugar Mills Ltd. v. Government of Pakistan PLD 1971 Pesh.

210."

13. This view has been re-affirmed by the full Court in Sind Employees' Social Security Institution and another v. Dawood Cotton Mills Ltd. (2).

14. It is all borne out from the record placed before this Court that

(1) 1971 SCMR 681 (2) PLD 1977 SC 177 the Director, Trade Organisation who conducted the inquiry in the case sent a telegram dated 7th February 1980 to respondent No, 3 which was in the form of a General Notice given to all concerned with the Presidential elections of the Federation, which, in fact, was circulated by the Federation among all its members concerned and a fair opportunity of personal hearing was also given by the D. T.

0. To all concerned. It was not, this, necessary to give any other show-cause notice at a subsequent stage of submitting the report by the Director, Trade Organisations or at the time of its consideration by the Federal Government for approving the same inasmuch as every one concerned with the Presidential election of the Federation was on notice that an inquiry was going on into the irregularities alleged to have been committed at the said election held on 4-2-1980 and the inquiry may result in the annulment of the said election, which is the only thing provided as an outcome of enquiry under Article 9(2)(e) of the Trade Organisations Ordinance, 1961. The manner in which the entire inquiry has been conducted, in my humble opinion, seems to be fair and honest and the procedure adopted by him gives an impression that the principles of natural justice have been fairly observed in the case.

15. Mr. A. K. Brohi, the learned counsel for respondent No, 5 has advanced three contentions in this case: firstly, that it was within the competence of the jurisdiction of respondents Nos, 1 and 2 to annul the election and all the conditions for the exercise of that power have been fully fulfilled in the case; secondly, this Court, in relation to the facts and circumstances of the case, has no scope as to its power to intervene and interfere with the decision taken in the case, and thirdly, that the petitioner ought to have first exhausted the remedy provided in section 15 of the Ordinance, before coming to this Court.

16. I will first deal with the last contention. In general, the existence; of alternate remedy does not furnish as an inflexible rule to refusing the' exercise of the Constitutional jurisdiction of this Court. I will not hesitate, in granting the relief, in spite of the availability of an alternate remedy, if it is shown to me that the alternate remedy is not so speedy and efficacious or B is otherwise not proper. The contention of Mr. Nasim Farooqi, the learned counsel for the petitioner is that in view of the fact that the Federal Government has already approved the action of the Director, Trade Organisations in annulling the Presidential election of the Federation, it will be mere illusory to have resort to the alternate remedy, as provided in Art. 15 of the Ordinance of 1961. The contention of Mr. Brohi is that if this argument simpliciter is accepted, section 15 of the Ordinance in the circumstance, will itself bed:me nugatory. The Legislature was conscious of the fact that action under section 9(2)(e) was being subjected to the approval of the Central Government, still the appeal was provided in the Statute. The purpose of section 15 seems to be understandable inasmuch as the incidents of action contemplated under section 9 (e) are quite different in as much as the Government acts on the basis of the report submitted by the Director, Trade Organisations in approving or disapproving the same in the absence of the parties affected thereby, if any, whereas, in appeal the aggrieved parties are heard ex post facto. Mr. Brohi, therefore, contends that it was open to the Petitioner to immediately file an appeal as provided in section 15 of the Ordinance and even apply for stay of election ordered to be held on 28th February 1980. Failing to achieve the desired result, it was' open for the petitioner to invoke the High Court's Constitutional jurisdiction. But, if the provisions of section 15 are studied carefully, it is manifest that it is against the decision or order of the Director, that the appeal has been provided to the Central Government. In the facts and circum stances of the case it cannot be said that the order of annulling the election under section 9(2) (e) of the Ordinance has emanated from the sole jurisdiction and exercise of power of that of the Director and thus appealable to the Central Government, when it could only be and has, in fact, been passed with the approval of the Central Government itself, as a condition precedent. I am, therefore, of the view that no appeal against such an order is contemplated by the statute. Hence the question of exhausting the alternate remedy does not arise in this case. In any case, the Central Government having already applied its mind it will b mere illusory for the petitioner to appeal to the Central Government. The Petition, therefore, cannot be struck down on this ground even if it is held that the right of the appeal is available in this case.

17. Mr. A. K. Brohi, the learned counsel for respondent No, 5, probably being conscious of this position, in his mind, next contended that section 15 of the Ordinance, besides that it effords an alternate remedy, may be looked at from another angle. That is, action taken under section 9(2)

(e) could be rendered inchoate or semi-final in the entire scheme of things, as provided in the Ordinance, if resort is had to section 15 of the Ordinance by filing an appeal against the order of annulling election of President of the Federation. This argument, with all respect to the learned counsel's learning and juristic accumen, appears to be falacious and no( tenable for the action taken under section 9(2) (e) is complete and effective by itself.

18. How, coming back to the first two contentions of Mr. A. K. Brohi, it was submitted by him that the scope of investigation, as contemplated in section 9(2) of the Ordinance, is very wide inasmuch as the legislatun has given the D. T.

0. Sole discretion as to the manner or procedure of inquiry as he may think fit, and this scope does not stand for judicial investigation. He further submitted that it is an election dispute and not an inter parties contest. The matter has a public aspect, apart from personal grievance.. This Court, therefore, he submitted should not exercise its judicial discretion in Constitutional jurisdiction interfering with the decision of a Special, Tribunal if the order has been passed within the jurisdiction of that Tribunal, because jurisdiction gives competence to do a thing which has been., done. For this submission, he placed reliance on the following observations of the Supreme Court in the case of Muhammad Hussain Munir and others v. Sikandar and others (1), which is as follows :- "It is wholly wrong to consider that the above constitutional provision was designed to empower the High Court to interfere with the decision of a Court or Tribunal of inferior jurisdiction, merely because in its opinion the decision is wrong. In that case, it would make the High Court's jurisdiction indistinguishable from that exercisable in a full-fledged appeal, which plainly is not the intention of the constitutional makers". (P. 142) Their Lordships of the Supreme Court also relied' on in this case the observation of B. Z. Kaikaus, J. Made in Badrul Haque Khan v. Election Tribunal, Dacca PLD 1963 SC 704 wherein it was observed :- "The proposition is indisputable that when there is jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect does not (1)P D 1974 SC 139 render the decision without jurisdiction. I do not see any difference in a case where the question of law decided is a matter on which two opinions can easily be held and a case where decision on a question of law appears to be clearly erroneous. It would not make difference that on logical reasoning the interpretation of law by the Tribunal could not be supported. Unless a case of mala fides or a mere colourable exercise of jurisdiction could be made out the decision would not be without lawful authority. If an order can be without legal authority because of a clearly wrong determination of a question of law, it should be without legal authority even in case of a clearly wrong determination of a question of fact. There is no reason for any distinction in this connection between a decision on a question of law and a decision on a question of fact. So if we were to accept the proposition that clearly erroneous decisions are without lawful authority the Court acting under Article 98 would constitute itself a Court of appeal for matters of fact as well as matters of law."

19. By reading sub-clause (i) of clause (e) of section 9(2) of the Ordinance there cannot possibly be any objection as to the methodology of investigation adopted in this case by respondent No, 2, but it has also been provided in the- said section 9(2) (e) that "the irregularities in the conduct of such election must justify such annulment." Now the provision of `justifiability for annulment, taken out the case from subjective captivity, and brings it into the realm of objectivity, calling for judicial review, as holding a number of cases already referred to by my learned brother in his proposed judgment and I entire agree with him on this point.

20. After -the legal position is made clear that the interference in the election by its annulment can be made by the Director, Trade Organisation, if irregularities justifying annulment have been committed in the conduct of election, I now proceed with the examination of the alleged irregularities. The D. T.

0. Has listed as many as 11 irregularities under the heading "Observation" in his report. The last two can hardly be said to be irregularities at all, except that it was Sh. Ishrat Ali alone who wanted to his view on the point of voting by member in presence 4' proxy on the basis of some unspecified precedents, or that he and some other members, recommended for abolition of the proxy system, as it proved to be a source of evil. Further, the alleged irregularities at Serial Nos, 1 and 6 have either not been complained of by any one or could not, at any rate, form a legal basis for annulment of the election in dispute, in the circumstances of the case. However, the remaining irregularities in the conduct of election mentioned at Serial Nos, 2, 3 4, 5 and 7 to 9, if taken together, can be said to be of some consequence in justifying the annulment of election. These irregularities are discussed hereinbelow in some detail.

21. Irregularity listed at No, 2, at first impression, does not appear to be on irregularity but, in fact, it is one of the fountain sources of corrupt practices in the conduct of election that a voter is allowed to manage the taking away of the ballot paper outside the polling booth and that is why an eye is kept on the voter inasmuch as arrangements are made for dropping of ballot papers by the voters in the audience of the presiding officers, to avoid the possibility of misuse of ballot paper, by managing it o be taken out and given to the rival candidate for ulterior motives.

22. To deal with irregularity No, 3, it is necessary to state that the Managing Committee consists in all of 30 members viz. 23 members-elect and one ex officio member who is the immediate past president of the Federation. It is, firstly, contended by Mr. Hassan A. Shaikh appearing with Mr. A. K.

Brohi, for respondent No, 5 that Shaikh Ishrat Ali, the ex officio member of the Managing Committee for 1980 had no right of vote and, secondly, that Sh. Ishrat Ali, using an member-elect could not be a proxy-holder in this election. In support of his first contention, he preferred to para. 15 of the counter-affidavit of respondent No, 5, relevant portion whereof is reproduced below :- "In this connection it is respectfully submitted that only members elect of the Managing Committee are entitled to vote. Outgoing President who is ex officio member of the Managing Committee is not entitled to vote as he is not a member-elect who alone are eligible to caste vote in the elections."

' Mr. Hassan A. Shaikh also drew our attention to para. 10(4) of 'further affidavit' of respondent No, 5 which reads as under :- "That Mr. Sh. Ishrat Ali, the President for 1979 was not a member elect of the Managing Committee and was he neither entitled to hold the proxy or to hold the election, yet he did so."

23. To meet these allegations no counter-affidavit was filed by Sh. Isharat Ali. I have, however, come across his statement in writing which has been filed by him before D. 1'.

0., wherein he claimed that he could vote as well as act as proxy-holder for members-elect. The learned D. T.

0. Has not said anything about his right of vote but he has objected to his being a proxy holder. This objection reads as under :- "The immediate past President, an ex officio member of the Managing Committee cast 4 votes as being proxy holder (page 2) but under the rules, only members-elect could become proxy holder, (Rule 13 page 207)."

24. The Objection has been raised by D. T.

0. Is based on his interpretation of rule 13 of the Election rules of the Federation, as approved by the Central Government. The Rule reads as under :- "Members-elect of the Managing Committee who shall be the voters in the election shall be entitled to attend, and vote at, the meeting either in person or by proxy."

' Besides, reference may be- made to Articles 15(iv) and 16 (ii) of the Articles of Association of the Federation and also to rule 12 of the Election rules which are reproduced below :- "Article 15 (iv).-The immediate Past-President of the Federation shall be ex officto member of the Managing Committee.

Article 16 (ii).-The immediate Past-President on the expiry of his one year term under Article 15 (a)

(iv) shall not be eligible to stand for election to the Managing Committee for one year from the date of expiry of such term.

' Rule 12.-If the Secretary-General finds that the number of candidate is more than one, he shall immediately issue a notice by telegram or by hand delivery, convening .a meeting of the, members-elect of the Managing Committee to be held on or before the 31st of December to elect the President for the next year."

25. It is laid down under Article 15 (ix) and 16 (ii) of the Articles of Association quoted above that the immediate past president of the Federation is only an ex officio member of the Managing Committee who is not eligible for re-election. Rule 12 of the Election rules speaks about convening of `members-elect' of the Managing Committee to elect the President for the next year, if there is more than one candidate. These provisions go to show that the immediate past president not being a member-elect for the next year can neither stand as a candidate for presidentship not he can be a voter. E I am, therefore, of the firm view that Sh. Ishrat Ali was not a member so as to entitle him to be a voter and, thus, casting a vote by him at the election was illegal.

26. As far as his not being entitled to be a proxy holder, yet exercising proxies, is concerned, Mr. Syed Inayat Ali, standing Counsel for Respondents Nos, 1 and 2 submitted that it was a case of material irregularity. By virtue of rule 5 of the Election rules, it is only the members of the General Body concerned who shall be entitled to attend the meeting for the election of the President, from amongst the members-elect of the Federation as envisaged in rules 12 and 13 of the Election rules.

27. To postulate the presence of an outsider as a proxy holder may be correct on the basis of the general rule of principal and agent, who may be a complete stranger, but,' if this rule is stretched to Associations or Companies, it will rob the sanctity of the institution. Article 65 of Table "A" of the Companies Act, 1913, may be referred to in this respect and may be of some benefit to resolve the issue. It reads :- "Section 65.-The instrument appointing a proxy shall be in writing under the hand of the appointer or of his attorney duly authorised in writing, or, if the appointer is a corporation either under the common seal or under the hand of an officer or attorney so authorised. No person shall act as a proxy unless he is a member of the company."

28. Under the Company Law, an instrument of proxy is a writing dul stamped authorising a member of a company to vote for another share holder at a certain meeting or meetings of the company, registered under Companies Act, 1913. The Federation being a company registered under section 26 of the Companies Act, 1913 will be governed by the Company Law on this aspect of the matter, subject to any adaptations made in the Articles of Association of the Federation, read with sections 17 (2), 26 and 79 of the Companies Act, 1913. Rule 13 of the Election rules of the Federation make it specifically clear that it is only the members-elect who are entitled to attend the meeting, with the result that a person who is not a member-elect cannot even attend the election meeting, what to say of voting for himself or for any other member-elect by proxy. I, would therefore, hold that not only a material irregularity but a grave illegality has been committed in the conduct of election by exercising of 4 proxies on behalf of 4 members-elect by Sh. Ishatat Ali.

29. Apart from this, if it assumed, for the take of argument, that another view in respect of the alleged irregularity No, 3 is also possible which is contrary to what the D. T. O. Has formed with which I have presently agreed, the Court in exercise of its. Constitutional Jurisdiction will not be justified in imposing its own view. It has been held by the Supreme. Court in the case of Abdul Maududi v. Government of West Pakistan (1) that the

(l) PLD 1964 SC function of judicial review is to check and not to supplant. If two views are possible, the Court will support the action. In this view, of the matter, this finding of the D. T.

0. Cannot, otherwise, be assailed. The relevant observation by Cornelius, C. J. Appears at p. 709 of the Report as under :- "Judicial review, it has been said, has developed even as the Common law itself, gradually, from case to case, in response to the pressures of particular situations, the teachings of experience, the guidance of ideal and general principles, and the influence of legislation. It has developed in the hands of the Courts, which have the power of final interpretation of statutory laws, and a concomitant power to provide judge made remedies where the statues are silent. The function of judicial review is to act as a "a check against excess of power in derogation of private right", yet judicial review cannot supervise all administrative adjudications, for it exists to check, not to supplant them. Accordingly, if on a point of law, the administration has adopted a construction, which is a possible one, the Court will support the action. On a point of procedure, not the only fair procedure, but minimum standards are necessary. On a point of evidence, it is only when the case proves to be one of 'no evidence' that the Courts will be entitled to intervene, and as to the conclusions reached by the administration, the Court will respect them if all other conditions are satisfied, just as they respect the judgment of the Courts subordinate to themselves. The conditions of the exercise of judicial review ordinarily are that the petitioner should have locus standi to pursue the matter, that an adversary position should have developed, i. e. That conflicting legal standpoints have been taken so that justiciable issues are raised, that the action within the administration should be final, and that the law itself must not indicate that the public interest requires that it should be operate exclusively within the administrative sphere."

30. As regards the irregularity listed as No,. 4, it is too vague and general. No specific instance of partiality on the part of Sh. Isharat Ali have been cited by the D. T.

0. Except that we find in the statement of Mr. Aziz Khan (at page 137 of the inquiry file), a member- elect, complaining that Sh. Isharat Ali told me 'you take ballot paper and cast your vote in favour of Alvi. Since I had already given proxy form to Raja Sahib, it was dishonest on my part to vote for another. I therefore, left the office of the Chamber taking away the ballot paper with me". This instance goes to support the irregularity which finds further support the irregularity which finds further support to the allegation of respondents No, 5 that convassing was going on at the time of election.

31. As regards the irregularity listed at Serial No, 6 it it on record that three members gave in writing that the proxy earlier given by them stood revoked and that they would like to vote personally.

There seems to be nothing wrong in this. The Director, Trade Organisations, however, found that the other eight members were given ballot papers without obtaining any such writing from them. This would imply that no uniform action as to such proxy givers, who in the presence of their proxies, wished to vote personally, was adapted, which makes the matter, susceptible to suspicion as unfair in the conduct of election.

32. As regards the alleged irregularities listed at Nos, 1 and 8 it appears that the whole trouble started with the number of proxies lodged by Respondent No, 5 in the Federation Office. It is an admitted position that Respondent No,1 5 was issued by the Administrative Officer two receipts of 14 and 5 proxies deposited by him. On the scrutiny he came to know that the number of proxies in the first bunch was 11 instead of 14, in fact, containing three covering letters with three proxy forms duly stamped which, in hurry, he counted them as proxies. He lost no time in rectifying the said mistake by giving a telephonic call to respondent No, 5 and then immediately writing a letter to him. It appears from the statement made by respondent No, 5 that he did neither attend to the said call nor receive personally, the said letter which was delivered in the afternoon at his office by the time he had already left the office. He, however, came to know at about 7 p. m. At his residence that some letter had been delivered at his office. This letter, he says, was given to him by his office man at the Chamber Office, in the meeting. When he was offered ballot papers for lesser number of proxies than what he claimed to have deposited, he complained about it to the Presiding Officer, who asked him to reveal the names of the said proxy givers in his favour. He said that he did not, then, have the record with him which was at his office. He, however asked the Presiding Officer to show him the record of the admitted proxies, so that he could give the names of the three proxy givers, whose proxies were missing. This was not done. With the result, that he boycotted the election and left the meeting. It appears that, the D. T.

0. Did not give any finding as to these 3 proxies, but he has definitely cast aspersion on the officer concerned of the organisation and reprimanded him for it. It also appears that, without properly resolving the controversy, the polls were started or were allowed to continue. I agree with the observation made at No, 8 by the D. T. O. That the polling ought to have been postponed for a while, so that the controversy could be resolved properly, which resulted in unhappy situation. In fact, 4 members, though present, did not come forward to take their ballot papers and three left the office taking away the ballot paper with them, presumably that they were unhappy with what had happened at the meeting which is sufficient to indicate the atmosphere prevailing at the meeting.

The observation of D. T.

0. At No, 8 that by the withdrawal of Mr. Arshad and the boycott of respondent No, 5 there remained the petitioner alone in the field, without any contest, is a fact which cannot be denied and its effect, under the compelling circumstances, was that the members were left with no alternative but to either abstain from voting as was done by 7 members aforesaid or vote for the petitioner. This position has been clearly explained by Mr. Muslim, a member-elect in his statement before D. T. O.

(at page 130 of the inquiry file). I quote the relevant paragraphs 5 to 9 from his statement which is as follows :- "(5) After his walkout, this Presiding Officer had asked me to exercise my right and I could collect the ballot papers in lieu of the proxies submitted by Raja Abdul Rehman as I was the second person authorised to negotiate in these proxies, I, however, refused to do so as the first holder was present and refused to exercise his right. In my opinion I was not competent to do so under the circumstances.

(6)The Presiding Officer then issued a ballot-paper in lieu of 3 proxies plus one of mine and I casted votes.

(7)I do admit that I had given my votes to Mr. Mehar Alvi, the only candidate remained in picture at the moment.

(8)I would like to add in this connection that had there been other candidate or candidates in the run I would have not given my votes to him. I might have to Mr. Abdul Rehman. As a matter of fact I had no choice at the time.

(9) Besides, in my opinion this proxy system is a nuisance and is the cause of all the ills and 1 regret that sooner we get rid of this system the better us all."

33. As regards the irregularity listed at No, 9 there is no mention in the statement of Aziz Khan (p. 137 of Inquiry file) that he wanted to give back the ballot paper to the Presiding Officer, respondent No, 4 who did not accept it, but the statement of Sarwar Shaikh, another member-elect mentions so about Mr. Aziz (p. 134 of inquiry file).

34. Messrs Nasim Farooqui and Sharaf Faridi also drew our attention to the fact that Raja Abdul Rehman, in fact, was the first proxy holder, in addition to his own vote, in respect of seven members-elect out of sixteen proxies deposited by him. Besides he was second alternate in three proxies. Even of the three disputed proxies are taken into account he would at best have secured 11 votes in all. Finding himself in this situation he better decided to boycott the election. In reply, Mr. Brohi submitted that if the petitioner, in fact, had the majority why did he pot accept re-polling on 28th February 1980 under Government supervision. Probably the learned counsel for the 'petitioner as well as respondent No, 3 wanted to convey an impression that these observations of the D. T.

0. Apart, the scales would not have turned in favour of respondent No, 5 and there would have been no change in the election result. Be that it may, I think that this is no necessarily requirement of law that only such irregularities must exist which may go into the root of the matter so as to affect the election result or, to put it in other words, the successful candidate may be turned to as unsuccessful candidate or vice versa. This is neither the sole intendment o the law laid down in section 9(2) nor such an interpretation can be sought from the expression "that the irregularities in the conduct of such election justify such annulment". In my humble view, the Court is to see whether such irregularities exist or not in the conduct of election which may justify its annulment, irrespective of the fact that these irregularities may affect the election result or not, in favour of one candidate or the other. On examining the various irregularities outlined by respondent No, 2 in his report, I am of the firm opinion that some of the irregularities in the conduct of election of the Federation justify the annulment of the election in dispute.

35. Before parting with the case, I think it necessary to mention one more argument of Mr. A. K. Brohi who contended on the last day of his making submissions that in view of the fact that the petitioner has not challenged in his petition, neither originally nor by way of an amendment, the irregularities detailed in the report of D. T. O., the same cannot be gone into by us, so as to assess the reasonableness of those findings arrived at by the D. T. 0, justifying or not justifying annulment.

But, as Mr. Brohi himself described the matter to be of general interest to the entire business community and not an inter parses contest, this Court cannot be shut out to go through the report placed before it by the concerned respondents, in Order to assess whether the alleged irregularities do satisfy the reasonable standard of the requirement of justifying the annulment of election. The contention has, therefore, no force.

36. The upshot of the above discussion is that the order of respondent No, 2 with the approval of respondent No, 1 is within their jurisdiction and is based on such material irregularities in the conduct of elections which may reasonably justify the annulment of the elections for President of the Federation held on 4th February, 1980.

37. For the foregoing reasons, I will dismiss the petition with costs against the petitioner in favour of respondents Nos, 1, 2 and 5.

' ZAFFAR HUSSAIN MIRZA, J.-In this petition the petitioner seeks to challenge the order of the Director, Trade Organizations (respondent No, 2) under section 9(2) (e) of the Trade Organizations Ordinance, 1961 (hereinafter referred to as the Ordinance) annuling the petitioner's election as President of the Federation of Chambers of Commerce & Industry in an election held on 4-2-80.

This petition was heard by a Division Bench of this Court composed of my learned brothers Fakhruddin G. Ebrahim, J. And Tanzil-ur-Rehman, J., who vide their judgments being divided in opinion as to the decision of the petition, the case was referred by my brother Fakhruddin G.

Ebrahim, J. To my Lord the Chief Justice, who in turn has ordered that the matter be heard by me.

2. At the outset of the hearing before Mr. A. K. Brohi learned counsel appearing for respondent No, 5 raised a preliminary point submitting that the present is not a case of difference of opinion contemplated under clause 26 of the Letters Patent constituting the High Court of Judicature at Lahore as applicable to this Court and, therefore, the whole case has to be re-heard and decided afresh by me. Clause 26 of the Letters Patent reads as under :- '`And we do hereby declare that any function which is hereby directed to be performed by the High Court of Judicature at Lahore in the exercise of its original or appellate jurisdiction, may be performed by any Judge, or by any Division Court, thereof, appointed or constituted for such purpose in pursuance of section one hundred and eight of the Government of India Act, 1915 and if such Division Court is composed of two or more Judges and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there by a majority, but, if the Judges be equally divided, they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case, including those who first heard it."

3. The argument of Mr. A. K. Brohi was that the learned Judges of the Division Bench have written separate judgments and have not set out any point upon which they were at variance so that such point may be heard by the third Judge and be decided according to the opinion of the majority of Judges who have heard the case, as required by clause 25. According to the learned counsel, the only point which survives and on which the learned Judges of the Division Bench are at issue is ; should this petition be allowed with costs or disallowed with costs : No further argued that the response of the two Judges is neither a question of law nor a question of fact. It is indeed, as he put it, an instated concept of judicial review qua interference in a case of this type which was conditioned their response. On these premises the contention of the counsel was that Mr. Justice Fakhruddin treated the hearing on an appeal whereas Mr. Justice Tanzil-ur-Rehman has been far more liberal.

4. I have, however, been referred by Mr. M. A. Farooqui, learned counsel for the petitioner first to the case of Mir Muhammad v. D. M., Ndwabshah (1), in which a some what similar question had arisen for decision. Inamullah, J. (as he then was) to whom the case was referred after the

(1) PLD 1965 Kar. 494 disagreement between the two learned Judges of the Division Bench observed :- "The learned Judges have not acted strictly in compliance with the provisions of Clause 26 of the Letters Patent inasmuch as they have not stated expressly the point or points on which the difference of opinion arose between them. It is, however, unnecessary to remit the case back to the Division Bench for the formal formulation of the points in difference. The two judgments clearly indicate the points of difference."

' In Zaibtan Textile Mills Ltd. v. Central Board of Revenue (1) also similarly the questions on which the learned Judges of the Division Bench had disagreed were not framed, but the third learned Judge before whom the case was placed proceeded to decide the points of difference on reading the judgments of the two learned Judges of the Division Bench and by himself framing the questions on which there appeared to -be difference of opinion between the first two Judges.

5. The correct procedure to be followed in cases falling under clause 26 of the Letters Patent was elucidated after extensive review of case law in the sub-continent in a recent promouncement by their Lordships of the Supreme Court reported as Muhammad Sayyar v. Vice-Chancellor, University of Peshawar (2). It was observed by Hamoodur Rahman, C. J. :- "The High Court in this sub-continent have predominantly held that only the point of difference is to be referred and not the whole case, and that in such a difference the referee Judge should return the case to be disposed of to the Division Bench with his opinion on the point of difference."

' Now, coming to the question on which leave was granted in this case, it seems to us that, so far as clause 26 of the Letters Patent of the High Court is concerned, the practice of the Lahore High Court is clearly to the effect that, in a case in which the members of a Division Bench are equally divided, they must either deliver dissenting judgments bringing out the points of difference or formulate the points of difference for reference to a third Judge, and the third Judge must then define the point or points of difference and return his opinion to the Division Bench to enable it to announce its judgment, as held in the Full Bench case of the Royal Calcutta Trust Club v. Lala Kishan Chand Manchanda. This is also the procedure prescribed by the Lahore High Court Rules : Vide rule 5, Chapter IV-N, Volume V."

' The final conclusion was stated as follows :- "From the above review of the decision, it would appear that there is a consensus of opinion in all, the High Courts. In a case of this nature, it is the only of difference that is referred to the third Judge, and the third Judge merely resolves the difference between the Judges of the Division Bench, who continue to retain jurisdiction over the matter. The final decision in the case was to be on the basis of the majority opinion including the Judges, who constituted the Division Bench. Therefore, it is manifest that a reference Judgeh as no jurisdiction to

(1) P D 1971 Kar. 333 (2) PLD 1974 SC 257 decide anything else besides the points on which there is a difference of opinion, as the whole case or appeal is not before him."

6. In view of the authoritative pronouncement of the Supreme Court cited above, I am clearly of the opinion that as a referee Judge my jurisdiction is limited to the decision of the point or points of difference between the two Judges of the Division Bench and not the whole case. Even otherwise it looks highly inappropriate for a single Judge to cover the ground already occupied by concurrent opinion of the Division Bench. The manifest intendment underlying Clause 26 of the Letters Patent is to provide intra-Court machinery for resolution of the difference of opinion between the Judges of the Court who are equally divided and the jurisdiction of the Third Judge, therfore, flows from the factum of such difference and should, therefore, be confined to the area of difference. I am accordingly unable to accept the contention of Mr. A. K. Brohi.

7. Since, however, the learned Judges of the Division Bench have not expressly formulated the points of difference between them, it becomes) necessary to determine them before proceeding further. The facts of the case.B have been narrated in great detail in the judgment of Fakhruddin G.

Ebrahim, J. And need not, therefore, be stated. However, the broad outline of the case is that Raja Abdur Rehman (Respondent No, 5), one of the candidates for election of the President of the Federation for the year 1980 complained to respondent No, 2 and the Secretary, Commerce, Government of Pakistan that some irregularities had been committed in the election of the President held on 4-2-80 and prayed for detailed investigation. Consequently, the Government decided to direct the Federation to withhold the formal announcement of the result of the election of the President until a detailed enquiry was held and final orders issued. Respondent No, 2 then held an enquiry and submitted a report dated 17-2-80 wherein he enumerated the following alleged irregularities having been committed in the conduct of the election.

(0 No secrecy was maintained in the conduct of the election of President F. P. C. C. & I. For the year 1980 because both the envelope and the ballot paper were not only numbered but were also bearing same number (pages 32-43).

(ii) As per record 24 ballot papers were issued but the total votes cast were just 21. 3 members took away the ballot papers indicating thereby that no discipline was maintained in the election (page 3). Office could not indicate the names of 3 members who took away the ballot papers.

(iii) The Immediate/Past President, an ex officio member of the Managing Committee cast 4 votes as being proxy holder (page 2) but under the rules, only member-elect could become proxy holder.

(Rule 12-page 207).

(iv) The Immediate/Past President being ex officio member should have indicated neutrality and impartiality which he did not.

(v) Eleven members, though had given their proxies in writing, cast their vote in person (page 109) only three out of these eleven members cast their votes in person by revoking their proxies in writing (pages 47-49) while the other eight did not do so which is irregular because if the proxy has been given in writing it should have been revoked in writing to avoid duplication and to get an indication to this effect. Moreover only three members were asked to revoke the proxy in writing while others were not asked to so indicating discrimination.

(vi) No specific provision exists in the election rules for date and time for withdrawal of candidature and as such when one of the contestants. Mr. G. It Arshad, withdrew his candidature few minutes before the start polling, issuing, a Ballot Paper indicating the names of just remaining two candidates does not seem in order. The name of Mr. G. R. Arshad should have been just struck off the Ballot Paper. A Ballot Paper containing names of all the three candidates does appear on the record of F. P. C. C. & I. (page 45).

(vii) The statement of the Admn. Officer (pages 26 & 126) involved in the alleged replacement of 3 proxies deposited by Raja Abdul Rehman, the complainant, has some point of doubt because a man with an experience of more than 20 years to his credit should have exercised extra care in the matter with which he has been dealing for the past many years.

(viii) The Presiding Officer did not exercise due care and diligence in the conduct of election. The meeting could have been adjourned for a few hours and the relevant record could heve easily been shown to the candidate, Mr. Raja Abdur Rahman to avoid boycott of the election by him.

Moreover, after the boycott of the election by one of the two candidates, the question of polling should not have arisen and the only one candidate Mr. Mehr M. Alvi could have been declared successful without polling which continued.

(ix) One member, Mr. Aziz Khan, tried to give back the Ballot Paper which was not accepted (page 137). The action of the Presiding Officer is unjustified.

(x) In the past there has been no election of the President since the introduction of new Constitution of F. P. C. C. & I. Of 1973 and as such no precedents exist. Statements of some of the concerned making precedents as the basis is not justified.

(xi) Some members have opposed the Proxy system being a nuisance and cause of all ills.

' In the conclusion part of his report, respondent No 2 observed as under :- "Being the first election since the introduction of the new Constitution of F. P. C C. & I. Of 1973, it has been a combination of violation of Election Rules, irregularities on the part of the office of the F. P. C C. & I., indisciplined conduct of election by Presiding Officer and undesirable game of proxies amongst just 30 individual with the result that an atmosphere of incordiality, unhealthy politics and no-confidenee is now prevailing amongst the business community after the elections. Since no reconciliation amongst the parties concerned has so far been reported, I, therefore, recommend that we may annul the election of the President F. P. C C. & I. For the year 1980 held on 4th February 1980 and direct the F. P. C. C..& I. To arrange election of the President F. P. C. C. & I. For the year 1980 afresh under the supervision of a nominee of the Ministry of Commerce by adhering to the provisions of their Constitution and Election Rules so. That cordiality, cooperation, confidence, brotherhood- and healthy politics is regenerated among them."

' As a result the Government of Pakistan decided to annul the election of the President and ordered that fresh election be held by 28-8-80 under the pervision of respondent No,

8. The impugned order was assailed by the petitioner firstly on the ground of lack of jurisdiction.

Both learned Judges, however, repelled the contention o the petitioner and held that the respondent No, 2 had authority to annul the election of an office-bearer of a trade organization including its President. After having concurred on the question that the said respondent had power pass an order of the nature impugned in this petition each learned Judge proceeded to examine the sufficiency or the validity of, the grounds in law o which the impugned order was founded, for, both learned Judges were of the view that the action taken by respondent No, 2 was subject to judicial review in the extraordinary jurisdiction of this Court. Mr. Justice Fakhruddin after examining each alleged irregularity, came to the conclusion that none of the irregular itiescited by the said respondent furnished justification for the annulment of the election. However, Mr. Juistice Tanzil-ur- Rahman in his judgment has taken the view that some of the irregularities in the conduct of the election justified the impugned order of annulment. I must with utmost respect for the learned Judge point out that the treatment of some of the irregularities in his judgment appears to me, to leave the matter to doubt whether the learned Judge accepted or rejected the particular irregularity as tenable or otherwise, However, at the outset of discussion pertaining to each individual irregularity the learned Judge has in express terms rejected the irregularities at serial Nos, 1 and 6 as not capable of forming legal basis for annulment of the election in dispute and referred to the rest of the irregularities in the conduct of the election, "if taken together to be of some consequence in justifying the annulment of election". Both the learned Judges also concurred in repelling the objection, raised on behalf of respondent No, 5 as to the maintainability of the petition on the ground that the alternate remedy provided by the statute itself not having been exhausted the Constitutional Jurisdiction of this Court could not be invoked. Also the learned Judges agreed that the impugned order was not immune from scrutiny in the Constitutional Jurisdiction.

9. The question for consideration, therefore, before me is whether the irregularities listed at Serial Nos, 2, 3, 4, 5, 7 and 9 of the report of respondent No, 2 can furnish valid basis for sustaining the impugned order. Now subsection (1) of section 9 of the Ordinance provides that all acts and proceedings of a registered Trade Organization shall be subject to the control of the Director and the affairs of such Trade Organization shall be managed and conducted in such manner as the Director may from time to time, direct. In addition to the general power of supervision and control conferred upon the Director. Trade Organizations under subsection (1), subsection (2) has armed the Director with specific power, inter alia, to annul any election held by the Trade Organization with the approval of the Central Government if "he is satisfied that the irregularities in the conduct of such election justify such annulment. "There appears to be difference of opinion between the learned Judges as to the construction of the aforesaid provision of law relating to the nature and extent of irregularities that would justify annulment of the election. This question goes to the very root of the exercise of power by the Director and clearly lays down the limits within which he can resort to his powers of annulment. The question of interference by this Court with the exercise of this power would also inevitably depend upon the correct construction of this part of the enactment, for, it is only when the functionary in whom the power vests under the statute over- steps the limits of his jurisdiction that this Court will step-in to check such excess of authority. Mr. Justice Fakhruddin, G. Ebrahim dealt with this aspect of the matter in para. 14 of his judgment and has taken the view that the irregularities must be found in the conduct of the election and must be such as justify its annulment. In other words, it must be for justifiable reasons which means the reason germane and pertinent to the election. Elucidating further he, has stated that not every or any irregularity, but only such irregularity which affects the result of the election can empower the Director to annul an election. On the other hand, Mr. Justice Tanzil-ur-Rehman in para. 34 of his judgment seems to have disagreed with the interpretation placed by Mr. Justice Fakhruddin on the provisions of section 9(2)(e) of the Ordinance. According to him, the expression "that the irregularities in the conduct of such election justify such annulment" does not lend itself to such interpretation that only such irregularities are relevant for the exercise of power which necessarily affect the result of the election. To put it in his own words, he observed : "In my humble view, the Court is to see whether such irregularities exist or not in the conduct of the election which may justify its annulment, irrespective of the fact that these irregularities may affect the election result or not, in, favour of one candidate or the other."

10. On a plain reading of the enactment in question it is manifest that the exercise of the power of annulment by the Director is predicated upon the existence of such irregularities that "justify" annulment of the election. Clearly, therefore, the expression "justify such annulment" qualifies the word irregularities" and lays down the nature of irregularities in the conduct o an election the existence of which can be the foundation for the exercise o power. It can safely be inferred, therefore, that not every and any kind of irregularity can furnish the basis for an order of the nature in question, but it must be shown that the irregularities were of such character that justify the annulment of election. The word "justify" is, inter alia, defined by the Oxford English Dictionary, Volume V (27) to mean "to afford a justification ; to show or maintain the Justice or reasonableness of (an action, claim, etc.); to adduce adequate grounds for ; to defend as right or proper." To m mind, therefore, the nature of irregularities must be relevent and germane to the annulment of the election. In other words, they should be of such a nature that they afford reasonable justification to annul the election. The word "annulment" is every significantly used. According to Ballentine's Law e Dictionary III Edition) (28) the word "annulment means to nullify ; to set at naught ; to make void ; to reduce to nothing. Apparently, therefore, when an election is annuled it is wholly wiped off and becomes non-existent as though it had never taken place with the result that no legal consequences can flow therefrom that normally result from an election. The scheme of the Trade Organizations Ordinance shows that under section 12 a domestic tribunal of exclusive jurisdiction has been provided, inter alia, for resolving dispute inter partes relating to an election before the Arbitration Tribunal. But the power under section 9(2), has been preserved in the Director to undo an election which has been vitiated by such irregularities that the election itself has been rendered a nullity in law. In an ordinary election dispute the tribunal having jurisdiction can in appropriate cases exclude or add votes from the counts of the contesting candidates and adjust the result of the election so that it is possible for such tribunal to declare the unsuccessful candidate to have been duly elected. Such power is not contemplated under section 9(2)(e) which postulates the annulment of election as a whole and that is why a new election is necessarily to be held. To my mind the conditions for the exercise of powers under section 9(2)(e) are to be construed within the limitations in the light of what has been stated above.

11. To sum up if the irregularity committed in the conduct of the election is the result of violation of some mandatory provision of the relevant rules of election or the Articles of Association or some other law which affect the legality or validity of the election as such, the Director will b justified in annuling the election. But if the election of the successful candidate has been obtained by him or at his connivance by the commission of irregularities; or irregularities have been committed by any one concerned with the election which have a material effect on the result of the election, then the election of the successful candidate can be set aside by taking the dispute to the Arbitration Tribunal. It is therefore, possible to set aside the election of the successful candidate by the Tribunal if he is found guilty o irregularities likely to affect the result of the election. The peculiar feature of this case is that none of the irregularities listed in the report of respondent No, 2 implicates the petitioner in the commission of the irregularities. To hold that mere commission of irregularities which have no bearing on the result of the election would be sufficient to upset the election of a successful candidate would amount to putting premium upon the efforts of a loosing candidate to avoid an election which he is foredoomed to lose. It is conceivable that a loosing candidate may manoeuvre the commission of the irregularities at an election and prevent a candidate having the support of majority from winning the election. Such could not be the intendment of any law pertaining to election. In Abdul Sattar Rana v. S. M. Zaidi (1), it was a case of an election held under the Electrole College Rules, 1964, in which excess votes were secured from the ballot-box. The contention before the Court was that if the excess votes are excluded from the count even then the successful candidate would secure more votes than the rival candidate.

Accepting this contention, the following remarks were made: "The responsibility for the excess votes being found in the ballot-boxes, in the absence of any evidence to that effect, cannot be laid at the door of the appellant. It is an open possibility that the respondent or his agent may have manoeuvred to get these excess votes introduced into the ballot-boxes just to spoil the election He himself not being the guilty party, there is no question of his being disqualified on the ground of commission of a corrupt practice by him. If some person or persons unknown, are responsible for these excess votes being introduced into the ballot-boxes, that should not prejudice the appellant's case who had a clear majority over the respondent after exclusion of the excess votes, from the count. If the election is set aside without a clear finding based on evidence that the result of the election had been materially affected, it would amount to disenfranchising the genuine voters who had apparently favoured the appellant as compared with the respondent."

' In the light of the above subject to the restricted construction placed by me on the relevant provisions, I regret to disagree with the opinion of my brother Tanzil-ur-Rehman, J. That in the circumstances of this case the mere existence of irregularities irrespective of whether they materially affected the result of the election or not would be sufficient to justify the order of annulment.

12. As observed earlier the approach of both the learned Judges of the Division Bench was to undertake the review of the action taken by the first two respondents by examining the material consisting of the alleged irregularities to determine whether these irregularities could possibly

(1) P D 1968 SC 331 substantiate and support the impugned action in law. Mr. A. K. Brohi, learned counsel for respondent No, 5 at the very outset of his argument took me through the grounds urged in the Memo. Of the Petition and pointed out that the grounds either related to the alleged mala fides of the first two respondents in law or to their initial lack of jurisdiction to pass the impugned order, but no ground was specifically taken as to the irregularities on which the order was founded. Learned counsel was quite conscious of the fact that the petitioner or for that matter the respondent No, 5 were both unaware of the grounds on which the action, was taken until the report of the second respondent was placed on record by him. He, however, submitted that even after that the petitioner did not seek to amend the petition to include in the grounds of attack the question of untenability of the irregularities. The counsel is right that no specific ground has been mentioned in the petition on the aforesaid question. The significance of this submission, according to the learned counsel, was that the tenability of the irregularities was either a pure question of fact or a mixed question Of fact and law; and, therefore, the scrutiny undertaken by both the learned Judges was an exercise in the nature of an appellate jurisdiction rather than the narrow scrutiny permissible by way of judicial review in the exercise of Constitutional jurisdiction.

13. In my opinion, however, the question whether this particular ground was urged in the petition has no material bearing so far as proceedings before me are concerned for the simple reason that both Judges have considered the question in their respective judgments. In fact the difference of opinion between the two Judges is the result of this exercise. In terms of Clause 26 of the Letters Patent my jurisdiction as the third Judge flows from the points at which they are at variance and indeed is confined to such points alone. Refusing to examine the question pertaining to the validity of the grounds for the annulment of the election contained in the alleged irregularities would amount to refusal to exercise the jurisdiction and failure to perform the duty cast upon me.

Additionally it seems to me that in examining these questions the learned Judges of the Division Bench clearly permitted the parties to agitate the same and then to give a decision thereon. Even otherwise exhaustive affidavits have been filed in support of the irregularities and in contradiction thereof. No prejudice would, therefore, seem to be caused to either party.

14. I, therefore, now proceed to examine the question upon which the two learned Judges differed as formulated by me in paragraph 9 supra. At this stage I may first deal with the submission of Mr. A. K. Brohi as to what should be then proper approach of the Court while undertaking judicial review in a case of the kind in hand. He contended that the power of judicial review comes to be exercised in the environment it is sought and should be subservient to the advancement of the object of the law that creates the power in the statutory functionary under examination. In other words, it was his submission that the principles laid down by the Judges in applying the process of judicial review in particular cases cannot be supplied as general rules governing the scrutiny of the Court in all cases of judicial review, irrespective of the content of rower and the manner of its exercise laid down by the statute in the case in hand. Learned counsel frankly conceded the jurisdiction of this Court to review the action of the first two respondents, but submitted that the scope of the jurisdiction lies within a very narrow campus having regard to the provisions of section 9 of the Trade Organizations Ordinance which clearly indicates the confidence reposed by the Legislature in the Director in conferring upon him sweeping powers of control and regulation over the functioning of the Trade Organizations. He particularly referred to the wide powers vesting in the Director as stipulated in clauses (a) to (g) of subsection (2) of section 9 of the Ordinance, i. e. The power to call for any information etc. Relating to the affairs of the Trade Organizations, inspect their offices without notice, attend any of their meetings, to watch and supervise any election held by them, to annul any election and to cancel, suspend or modify any resolution adopted or decision taken by such bodies. In this context learned counsel analysed the scheme of the statute and submitted that section 9(2) confers the far-reaching powers upon the Director as a matter of public policy and the exercise of these powers has, therefore, a public aspect. Learned counsel contended that these powers were not, therefore, intended for adjudication of private disputes of the parties or for the protection of individual rights. The remedy for such individual grievance has been provided in section 12 of the Ordinance which has made provisions for the decision of such disputes by an Arbitration Tribunal including an election dispute by any member of a Trade Organization. I entirely agree with the analysis and the scheme of the Ordinance propounded by the learned counsel. However, on these premises the submission of the learned counsel was that this Court cannot in view of the aforesaid context of the statute undertake a probing enquiry into the validity or factual correctness of the grounds upon which the order of annulment is passed. To use the phrase of the learned counsel himself the Court has only to look at the order and take into consideration what floats on the surface. Reference was also made to passages from the two English decisions. The first case referred to was Local Government Board v. Arlidge (1), in which dealing with the principles of natural justice it was observed: "When a Central Administrative Board deals with an appeal from a local authority it must do its best to act justly and to reach just end by just means. If a statute prescribes a means it must employ them. If it is left without express guidance it must still act honestly and by honest means."

' Since the remarks relate to the principles of natural justice, without disputing the correctness of the principles enunciated, I may venture to say that they provide no assistance on the point in hand. The second case referred to was more relevant in this context which is Padfield v. Minister of Agriculture (2). This case related to the discretionary powers of the Minister of Agriculture, Fisheries and Food under the Agricultural Marketing Act, 1958, which inter alia empowers the Minister to refer a complaint to the Statutory Committee of Investigation. The Minister declined to refer the complaint of the milk producers to the Committee of Investigation, whereupon the aggrieved producers brought action for mandamus. Mr. Brohi referred to the following passage front' the opinion of Lord Reid on page 699 which reads as under:- "It is implicit in the argument for the Minister that there are only two possible interpretations of this provision-either he must refer every complaint or he has an unfettered discretion to refuse to refer in any case. I do not think that that is right. Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole, and construction is always a matter of law for the Court. In a matter of this kind

(1) (1915) A C 120 (2) (1968) All E R 694 it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act then our law is very defective if persons aggrieved were not entitled to the protection of the Court."

' These are very enlightening observations and in my view aptly elucidate the law as to interpretation of the provisions of enactments conferring discretionary powers on Administrative Authorities. But significantly, having laid down the principles their Lordships of the House of Lords disposed of the case before them by proceeding to examine the Minister's reasons for refusing to refer the producer's complaint to the Committee and on such scrutiny eventually came to the conclusion that the Minister had clearly misdirected himself having regard to the true scope and interpretation of the statutory provision under which he purported to act. A somewhat similar argument was made in the cited cases that the reasons given by the Minisrer need not and should not he examined closely, for he need give no reason all in the exercise of his discretion. The contentior was repelled and Lord Hodson observed in his opinion "True it is that the Minister is not bound to give his reasons for refusing to exercise his discretion in a particular manner, but when, as here, the circumstances indicate genuine complaint for which the appropriate remedy is provided, if the Minister in the case in question so directs, he would not escape from the possibility of control by mandamus through adopting a negative attitude without explanation. As the guardian of the public interest he has a duty to protect the interest of those who claim to have been treated contrary to the public interest."

' In substance two of the Judges, Lord Hodson and Lord Upjohn held that although the Minister had full and unfettered discretion under the statute, he was bound to exercise it lawfully, viz., not to misdirect himself in law, nor to take into account irrelevant matters, not to omit relevant matters from consideration. This precisely is the test to be applied in the present case.

15. Amnon Rubinstein in his book "Jurisdiction and Illegality" (1965) while dealing on the subject has observed : "Mandamus constitutes the primary method of challenging the exercise of discretionary powers. In reviewing such powers, the Courts have formed certain rules, the observance of which is enforceable by mandamus. Some of these rules merely apply the general duty to exercise the discretionary power. Thus, if a body unlawfully delegates its discretionary authority, either by adopting what in effect is the decision of another body or by unlawfully acting under the dictation of another body, its behaviour is tantamount to 'declining jurisdiction'. But the Courts have also evolved other rules, enforceable by mandamus, which do not merely ensure that the body will exercise its discretionary power, but regulate the mode in which this power is to be exercised. The order will issue not only where the body concerned has in fact decided the issue but also where the exercise of its discretion has been improper or defective, as where it has been exercised unreasonably, maliciously, capriciously, or for an improper purpose, or where the authority has failed to consider all relevant factors or has considered irrelevant factors, or has failed to decide the precise issue submitted to it."

16. It cannot be denied that the Trade Organisations placed under the control of the Director under the Ordinance of 1961 are self-governing Organizations and the intention underlying the conferment of supervisory and regulatory powers is that these powers are to be exercised inexceptional cases in the public interest which means for the interest of the Trade Organizations recognized and registered. As rightly pointed out, therefore, these powers are not invokable for the redress of individual disputes which can more appropriately be adjudicated by the Arbitration Tribunal constituted under section 12 unless the Director is reasonably satisfied that the matter was unsuitable to be left for such adjudication by the domestic Tribunal because it involved wider issues. It is clear to me that this Court can examine the reasons and grounds on which the impugned order is based in the light of the aforesaid principles. I am, therefore, unable to agree with the contention of Mr. A. K. Brohi.

17. I will now consider each of the alleged irregularity mentioned above regarding which the two learned Judges have differed, to determine whether in the light of what I have said above the particular irregularity is of the nature justifying the impugned order of annulment. I may mention here that a general submission was made on behalf of the petitioner that since at least some of the irregularities listed in the report of the D. T.

0. Were found by both the learned Judges to be irrelevant for the purposes of section 9(2)(e) as irregularities justifying the order of annulment, the whole order was vitiated as it is not possible to determine at, this stage which of the irregularities influenced the Officer to reach the state of satisfaction required by law for passing the impugned order. Reliance in this behalf was placed on Chander Bhan v. Government of Sind (I) which was a case of detention under the Defence of Pakistan Rules, 1971. It was held in this case that if there are more than one ground on which the order of detention is based then each ground has contributed to the satisfaction of the detaining authority and no ground can be excluded from consideration in judging the legality of order of detention, so that if a wholly irrelevant ground has been taken into consideration while passing the order of detention, the detention must be declared to be not in accordance with the law. In my opinion, the argument is misconceived as the principles governing the cases of detention cannot be imported to judge the legality of orders passed by the Administrative Authorities in exercise of statutory powers. The dictum seems to be based upon the statutory provision requiring the detaining authority to furnish reasons for ordering the detention of a person. In the present statute under consideration I find no such provision so that the Officer exercising the power could be pinned down to the grounds mentioned in the order of annulment. I am, K therefore, inclined to hold the view that if the record reveals any irregularity of the nature relevant to section 9 (2)(e) of the Ordinance of 1961 then the order would be liable to be sustained. Be that as it may, the argument urged before me was not considered by the learned Judges of the Division Bench and, therefore, there is no question of any difference of opinion between, them to enable me to decide the question.

18. Under the second irregularity the D. T.

0. Has expressed the opinion that since three members had taken away the ballot papers with themselves,'

(1) PLD 1973 Kar. 241 the inference was that no disci pline was maintained at the election.' Mr. Justice Fakhruddin was of the opinion that the Presiding Officer cannot be blamed for the act of any member in taking away the ballot papers, whereas Mr. Justice Tanzilur Rahman is of the opinion that if voters are allowed to take away ballot papers outside the polling booths there is possibility of misuse of such ballot papers by handing over to the rival candidate for ulterior motive. I have already expressed my opinion that even in an ordinary election their Lordships of the Supreme Court in the case of Abdul Sattar Rana did not find such a ground to be sufficient to set aside the election of a successful candidate in the absence of any evidence that such candidate was responsible for the removal or excess of ballot papers. In such cases if the declared candidate has clear majority on the basis of the valid votes cast at the election, the election will not be sit aside. On a parity of reasoning the same principle was rightly applied in the present case. If, therefore, the Election Tribunal cannot set aside the election on such ground. I fail to see how the election can be annuled on such ground under the Extraordinary power under section 9 by the D. T.

0. There is nothing in the report of the D. T.

0. That the petitioner was in any way found' responsible for the alleged act of the three members or that these acts were committed with an ulterior motive. Therefore, no reasonable person would on these facts draw the inference that no discipline was maintained at the election. In my reckoning the allegations contained in irregularity No, 2 are not of the nature contemplated by law to justify annulment of election.

19. The alleged irregularity listed at No, 3 holds that under the rules the Immediate-past President who is an ex officio member of the Managing Committee for the year in question was not entitled to vote as a proxy holder under the rules as only members-elect could become proxy holders. In the first place this irregularity in my opinion is not an irregularity of such vital importance in the context of public interest to be sufficient to annul the election. Section 9(2)(c) contemplates irregularities of such vital nature to nullify the whole election involving wider issues than merely the success or failure of a contesting candidate. In my view plainly the intention of the Ordinance of 1961 was to leave such matters for being resolved by means of Arbitration Tribunal between the parties where they could appropriately be dealt with. However, since the two learned Judges have considered the legal position as to the right of the Immediate-past President to be the donee of a proxy, I will give my opinion on that point. Fakhruddin, J. Referred to rule 13 of the Election Rules and held on its plain language that the members-elect of the Managing Committee who constitute the electorate for the election of the President have been permitted to vote in person or by proxy and in the absence of any express provision that proxy holder must be a member elect, he is of the view that the D.T.O. Misconceived the legal position. On the other hand, Tanzilur-Rahman, J. Gave elaborate reasons for holding that only the members-elect are entitled to attend the election meeting and consequently a person who is not a member-elect cannot attend the election meeting or be a proxy holder. He is of the view that the Immediate-past President not being a member-elect within the meaning of rule 12 of the Election Rules cannot attend the election meeting nor vote and, therefore, cannot be a proxy holder. This conclusion was arrived at by the learned Judge on the basis of Article 65 of the Table "A" of the Companies Act, 1913 which inter aiia provides that no person shall act as a proxy unless he is a member of the company. The final conclusion of the learned Judge may profitably be reproduced as follows:- "The Federation being a company registered under section 26 of the Companies Act, 1913 will be governed by the Company Law on this aspect of the matter subject to any adoption made in the Articles of Association of the Federation, read with sections 17(2), 26 and 79 of the Companies Act, 1913, Rule 13 of the Election Rules of the Federation makes it specifically clear that the members- elect who are entitled to attend the meeting, with the result that a person who is not a member elect cannot even attend the election meeting, what to say of voting for himself or for any other member-elect by proxy."

' With utmost respect for the learned Judge I am unable to agree with him. Now the Articles of Association of the Federation do not provide that proxy can be issued only to a member. On the contrary Article 40 authorises every repesentative of a member body to vote either in person or by proxy, M without providing that the proxy shall be a member of the Federation. At any rate, since the proxy in the present case was the President of the Federation it cannot be held that he was not a member of the Federation. In my view, therefore, Shaikh Inayat Ali, the President of the Federation was competent to be proxy for the other member-elect. There is no warrant in rule 13 for holding that only the members-elect could become proxy holders. The D.T.O., therefore, clearly misconstrued rule 13 of the Election Rules in holding that only members-elect of the Managing Committee could be proxy holders. Consequently, this cannot even constitute an irregularity.

20. It seems to me that the rule embodied in the Regulation 65, Table "A" of the First Schedule to the Companies Act which found favour with Tanzilur-Rahman, J. Cannot be construed in a restricted sense to be confined to the members-elect of the Managing Committee. The expression "a member of the company" occurring in the said Regulation, to my mind, would plainly refer to the members of the General Body of the Federation as constituted by Article 4 of the Articles of Association. It cannot be argued that the Immediate-past President was not a member of the General Body of the Federation. I may further point out that Article 15 of the Articles of Association provides for the constitution of the Managing Committee, which consist four categories of members. The first category consists of there representatives of the member bodies known as Chambers of Commence & Industry and in addition one representative nominated to the Managing Committee jointly by the Chambers of Commerce & Industry from each Province. The second category consists of six members to be elected by the members of the General Body representing "A" Class Associations and in addition one elected member belonging to the North- West Frontier Province/Baluchistan. The third category consists of six members elected from amongst the members of the General Body representing "B" Class Associations and in addition one member elected belonging to the North-West Frontier Province/Baluchistan. The last category consist of the Immediate-past President of Federation who shall be ex officio member of the Managing Committee. It will, therefore, be seen that out of the entire body of the Managing Committee only 14 members are elected members and the rest are either nominated or ex officio members. Article 15(b) provides that the Managing Committee shall elect from amongst its members a President who shall be called the President of the Federation. In the context of the aforesaid Constitution of the Managing Committee although rule 13 of Election Rules refers to the members elect who shall hold a meeting for the election of the President, reference obviously is to all the members of the Managing Committee whether elected or otherwise. It could not be the intention of the rule-making authority that the President shall be elected from amongst only the elected members. It is a well, established principle of interpretation of statutes that the Courts should not too readily lean towards admitting repeal by implication and rather endeavour to reconcile and harmonize the two provisions which are allegedly inconsistent or repugnant to each other. These principles would also seem to apply to article the interpretation of documents and rules as require interpretation in this case. Applying these principles, I have no hesitation in holding that the provisions of rule 13 can be reconcilted with the basic instrument, namely, the Articles of Association by holding that the expression "members-elect" refers to all the members of the Managing Committee which is to take office from the next Federation Year. This expression appears to have been used in order to distinguish the newly-constituued Managing Committee from the current Managing Committee during whose tenure of office all the elections for the office bearers of the Federation including the President for the next year are to be held. In view of the aforesaid for all intents and purposes even the past President being the ex officio member of the Managing Committee would be a member of Managing Committee entitled to participate in the election of the President.

21. The fourth alleged irregularity has no basis on any article or rule of the Federation but only constitute the personal opinion of the D.T.O. That the Immediate-past President should have indicated neutrality and impartiality at the election. It is common ground that he did not preside at the meeting which is indicative of the fact that he did not wish to influence the members during the conduct of the election. Both the learned Judges have observed that Mr. Syed Inayat Ali, the learned Standing Counsel appearing for the first two respondents conceded that there was no material on the record to support the conclusion of the D.T.O. Tanzil-ur-Rahman, J. On specifically dealing with this alleged irregularity has also expressed, in effect, that there is no substance in this allegation.

22. Alleged irregularity No, 5 has also not found favour with Tanzilur-Rahman, J. Who has held that a proxy may be revoked expressly or impliedly and that the allegation has no relevance to the result of the election. He has also referred to the concession made by Mr. Inayat Ali that these allegations could not have resulted in the annulment of the President's election, for, there is no material to justify the same.

23. The seventh alleged irregularity relates to the acts done by the office of the Federation and no allegation has been made against the petitioner. The facts alleged do not in my view constitue an irregularity relevant for purposes of annulment of election. After examining the enquiry record of the D.T.O. Tanzil-ur-Rahman, J. Has observed that the explanation given by the Administrative Officer to whom the proxies were tendered was clearly not disbelieved by the D. T.

0. And there is in any event no finding by the D. T.

0. That 19 proxies had been deposited by respondent No,

5. The learned Judge on examining the relevant documents has affirmed the finding that the allegation was not proved to his satisfaction.

The learned Judge finally on examining the votes cast in favour of the two candidates observed:- ' In the election, there was, therefore, no genuine reason to upset the election at the instance of the member who knew that he could not have succeeded under any circumstances."

' Both the learned Judges, therefore, rejected this allegation.

24. As to the eighth alleged irregularity also Tanzil-ur-Rahman, J. Did not agree with the conclusion of the D.T.O. On the ground that the Presiding Officer was not obliged to adjourn the meeting for the purpose of showing the record to respondent No, 5 and that in any event such an omission on the part of the Presiding Officer had no relevance to the result of the poll. In effect, therefore the learned Judge did not consider the allegations made under this irregularity as an irregularity justifying annulment.

25. The ninth alleged irregularity was also repelled by Tanzil-ur-Rehman, J. On the ground that there was no evidence in support of this allegation and in my opinion under any circumstances non-acceptance of a ballot paper which has no bearing on the result of the election could not conceiveably be an irregularity of the kind to justify annulment.

26. The alleged irregularities Nos, 10 and 11 were not considered as irregularity relevant for annulment by Tanzil-ur-Rahman, J.

27. For the foregoing reasons, therefore, none of the irregularities contained in the report of the D.T.O. Were sufficient or relevant for annulment of the election of President. The conclusion arrived at by the D.T.O. That the election was a combination of violation of Election Rules, irregularities on the part of the office of the Federation, indisciplined conduct of election by the Presiding Officer and the so-called undesirable game of Proxies was not justified and cannot be sustained as a basis for the annulment of the election. I have, therefore, come to the conclusion that the first two respondents misdirected themselves in passing the impugned order. The order is, therefore, without lawful authority and is of no legal effect.

28. In the result, I would allow this petition and declare the impugned order as without lawful authority and of no legal effect. I would also allow the costs to the petitioner to be borne by respondents Nos, 1, 2 and 5.

' The case may now be placed before the D.B. Today for further orders. The parties are directed to appear before the D.B.

' In view of this majority judgment this petition is allowed and the impugned order is declared to be without lawful authority and of no legal effect with cost to be borne by respondents 1, 2 and 5.