' Z. A. CHANNA , J.-This Constitutional petition by a person who was elected to the Executive Committee of the Federation of Pakistan Chamber of Commerce and Industry, respondent No,, 1, from the seats reserved for "A" class Associations in an election held on 22nd December, 1977 impugns an order passed, by respondent No, 2 on 29th January, 1978 under section 9(2) of the Trade Organizations Ordinance (XLV of 1961), hereinafter referred to as the said Ordinance, by which the aforesaid elections held on 22nd July. 1977 were annulled with the approval of the Federal Government, and fresh elections were directed to be held by 28th February, 1978.
2. The rules of respondent No. 1, which is a company registered under the Companies Act, 1913, inter alia provide that 6 members of its Managing Committee are to be elected from amongst "A" Class Association. In pursuance of this rule, an election was held in respect of representatives of the "A"
Class Associations, at which the petitioner alongwith respondents Nos. 3 and 4 other persons were elected. It may be mentioned at this stage that at the said election two proxies in the name of different persons were registered on behalf of two of the voters, namely, Mr. Azim Rahim and Khwaja Mohammad Masood. Complaints having been made to the Federal Government and the respondent No, 2 that the elections were irregular and not fairly held, the latter held an enquiry, as provided in section 9(2) (e) of the said Ordinance. Intimation of that enquiry was sent by respondent No, 2 to the General Secretary of respondent No. 1. It would appear that at that enquiry the two voters who had executed proxies and the persons in whose favour the proxies were executed were examined. In consequence of that enquiry, the impugned order was based and subsequently a fresh election was held on 27th February, 1978 wherein respondent No, 4 and another member were again re-elected, while in the place of 4 members previously elected, 4 new persons were elected. It would appear that the petitioner had filed his nomination papers for the second election but before the Poll was held, he brought the present petition to challenge the impugned order.
3. We have heard Mr. Ali Ahmed Fazeel, the learned counsel for the petitioner ; Mr. Shah Jamil Alam the: learned Deputy Attorney-General, who appeared for respondents Nos. 2 and 3 ; Mr. Arif, who represented respondents 4 to 8 and Mr. Zahiruddin Khan, who appeared for respondent No. 1.
4. In the petition, the legality of the impugned order has been assailed on two grounds. Namely.
That respondent No. 1 is not a registered Trade Organization and consequently the provisions of section 9(2) of the said Ordinance are not applicable to it and its elections could not have been set aside by respondent No, 2, and that further the Petitioner was not given an opportunity of being heard before the impugned order was passed, thereby violating the rule of natural justice.
5. Mr. A. A. Fazeel, frankly conceded that he does not press the first ground mentioned above. This stand of his may have been prompted by the counter-affidavit filed by the Secretary-General of respondent No. 1, alongwith which he has filed a copy of the licence issued to respondent No. 1 by the Government of Pakistan on 27th May, 1960. Subsection (4) of section 3 of the said Ordinance provides that a licence granted under section 26 of the Companies Act, 1913, before the commencement of the said Ordinance, to a Trade Organization referred to in subsection (2), was to be deemed be a valid licence granted under the Ordinance. The licence filed with the counter- affidavit of the Secretary-General of respondent No. 1 has been issued by the Government of Pakistan under section 26 of the Companies Act and it is not disputed that it has been granted to an Organization of the type referred to in subsection (2) of section 3 of the said Ordinance. In any case, since this point had not been pressed by Mr. A. A. Fazeel, we do not consider it necessary to dilute upon the same.
6. Mr. A. A. Fazeel's main argument was that the petitioner, who was duly elected to the Managing Committee of respondent No. 1 in the election held on 22nd December, 1977, was vitally affected by the impugned order, inasmuch as he ceased to be a member of the Managing Committee of respondent No. 1 in consequence of that order, and therefore, he should have been given a proper opportunity of being heard before the order was passed. On the other hand, it was contended by the learned Deputy Attorney General that an opportunity of hearing was in tact provided to the petitioner at least should be deemed to have been provided to him. He further argued that even if the Court comes to the conclusion that no such opportunity was either given to him or deemed to be given to him, the Petition cannot succeed as requirement of hearing is not envisaged by section 9 (2) of the said Ordinance.
7. Mr. Arif, the learned counsel for respondents 4 to 8, submitted that since section 9(2)(e) of the said Ordinance gave wide powers to respondent No 2 to hold such investigations as he considers fit in the circumstances, there is no room for introducing the rule of natural justice that the petitioner should have been given an opportunity of hearing, for in that case the wide powers which the law confers upon respondent No, 2 would be curtailed and eroded.
8. Mr. Zahiruddin Khan, the learned counsel for respondent No. 1, submitted that he was unable to make a positive statement, in the absence of specific instructions in this behalf, whether the telegram from respondent No, 2 to the Secretary-General of respondent No, I was circulated to the petitioner and the other members of the Managing Committee.
9. In order to appreciate the arguments of the learned counsel, it would be appropriate to reproduce the relevant provisions of sections 9(2) and 10(1) of the said Ordinance "(2) Notwithstanding anything 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 generally of the foregoing provision, the Director may-
(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 (appropriate Government) annul such election if he is satisfied,-
(i) upon his own knowledge and after such investigations as he may think fit to make ; or (ii)upon a report made by a person authorized 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 10.-(1) Where the (Appropriate Government) is of opinion that the affairs of a registered trade organization are not being properly managed and that the interests of trade and industry so require, it may, by order in writing, supersede the Executive Committee of such trade organization for such period, not exceeding three years, as may be specified in the order : ' Provided that no such order shall be made unless the Executive Committee has been given a notice in writing of, and afforded an opportunity to make a representation against, the intended supersession,"
10. Before considering the legal question regarding the application of the rule of natural justice- audi alteram partem-we will examine the contention whether notice of the investigation and enquiry held by respondent No, 2 was given or deemed to have been given to the petitioner.
Respondent No, 2 in his counter-affidavit has stated that he bad sent a telegram to the Secretary- General of respondent No. 1 informing him that he (respondent No, 2) would be making investigations into the conduct of the elections in the office of the Federation at Karachi on the 17th and 18th February, 1978. He however, has not stated in his counter-affidavit that he had instructed or directed the Secretary-General to circulate the telegram or communicate its contents amongst the Members of the Managing Committee of respondent No. 1 or to inform them about the holding of the investigations. From his claim in the counter-affidavit that notice to the Secretary-General is deemed to be notice to the Members of respondent No. 1, it would appear that neither any notice was issued to the Petitioner nor was any direction given to the Secretary-General that such notice should be given to him or to the other Members of the Managing Committee. The Secretary- General also has not stated in his counter-affidavit that he had circulated the telegram among the members or brought the matter of the holding of investigation to the notice of the Petitioner and the other members. He has only stated that he had informed the members about the holding of the re-election. A copy of that circular has been filed alongwith the counter-affidavit and we find that it is dated 21st February 1978. This means that this circular or intimation was issued much after the investigations were held by respondent No, 2 and the impugned order was passed If the Secretary-General had circulated the earlier telegram from respondent No. 1 or even had brought its contents to the notice of the members and the Petitioner, we have no doubt, that this fact would have been mentioned by him in his counter-affidavit. The fact that he has not claimed that he had circulated the telegram shows that neither the telegram was circulated nor its contents were brought to the notice of the members of the Managing Committee of respondent No. 1.
11. Respondent No, 4, in his counter-affidavit, had stated that in the investigations held by respondent No, 2, 7 persons, including the two voters whose proxies were registered in the election held on 22nd December, 1977 and the persons in whose favour they were issued, had been examined. However, even he has not claimed that the petitioner was examined in that investigation or given an opportunity of hearing. We are accordingly satisfied that no opportunity of hearing was given to the Petitioner before the impugned order was passed nor he was informed about the holding of the investigation by respondent No, 2.
12. The rule. Audi alteram pertem, is a cardinal principle of justice, which has repeatedly, received judicial notice in this country.
13. In the University of Dacca v. Zakir Ahmad (I), it was held that the principle of natural justice that a person shall not be condemned unheard is applicable to all proceedings, whether judicial or administrative. In that case Hamoodur Rahman J. (as he then was) stated as follows :- "From a careful review of the decisions cited before us it appears that whether any person or body of persons is empowered to take decisions after ex post facto investigation into facts which would result in consequence affecting the person, property or other right of another person, then in the absence of any express words in the enactment giving such power excluding the application of the principles of natural justice, the Courts of law are inclined generally to imply that the power so given is coupled with the duty to act in accordance with such principles of natural justice as may be applicable in the facts and circumstances of a given case."
14. In Abdus Saboor Khan v. Karachi University (2), and Murlidhar v. University of Karachi (3), their Lordships of the Supreme Court reaffirmed the applicability of the above principle of natural justice to proceedings taken before administrative and other Tribunals which were required to take decisions after an ex post facto enquiry or determination of facts. In the latter case, Fazal Akbar, J.
(as he then was) observed that in a case like the one before their Lordships. "It is not sufficient that the University should act honestly and in good faith but when it is exercising the serious power of disaualifying a student on the ground of misconduct, it must be satisfied that he was given an opportunity to defend himself."
15. The learned Deputy Attorney-General, however, submitted that the principle of natural justice could be excluded either by express provisions in the statute in this behalf or by necessary intendment. The learned counsel referred us to section 10 (1) of the said Ordinance which expressly provides for an opportunity of hearing before an order is passed superseding the Managing Committee of a Trade Organization and invited us to infer that the intention of the Legislature was not to give such an opportunity in the case of an order passed under section 9, otherwise there was no reason for making a provision of hearing in respect of an order passed under section IOW and not in respect of an order under section 9(2). The argument superficially appears to be attractive but on a closer examination we are unable to accept the same. The argument of the Learned Deputy Attorney-General basically proceeds on the principle of expressio unius exclusio alterius. However, as pointed out by Kaikaus, J. In K. A. Jaisinghani v. Custodian of Evacuee Property (4), the principle of expressiu urius exclusio alterius is not a rule of universal application for the Legislature may mention a matter on account of excessive caution. A similar view was taken by their Lordships of the Supreme Court in the Sind Employees Social Security Institution v. Adamjee Cotton Mills Limited (5). In that case, Muhammad Gul, J., observed as follows :- "The argument proceeds on the maxim expressio unius exclusio. Airerius, which enshrines the well- established principle of {{FOOT NOTE}}
(1) PLD 1965 SC 90 (2) PLD 1966 SC 536
(3) PLD 1966 SC 841 (4) PLD 1965 S 453. (5) PLD 1975 SC 32 {{FOOT NOTE}} interpretation that when a statute mentions one or more things of a particular class, it may be regarded as silently excluding other things of the same class or similar classes not expressly mentioned. But the rule is not absolute in its application. It is equally well-established principle that in construing a statute the construction which is most agreeable to justice and reason is to be preferred. See Maxwell on the Interpretation of Statutes, 1969 Edn., Chapter 10, which sets out an impressive array of ancient and modern precedents in which Courts, by adhering to the above principle and without, any violence to the language of the statute, have by liberal interpretation averted what would have been otherwise inconvenient or unreasonable results. Therefore, if the choice is between the two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, one should lean against a construction which would reduce the legislation to a futility and rather accept the bolder construction based on the view that the Legislature would legislate only for the purpose of bringing about effective result."
16. If a choice has to be made between two interpretations, then, as observed in the aforesaid reported case, the real intention of the Legislature has to be considered, We find it difficult to accept the view that the Legislature would give such vast powers to the Director of the Trade Organisations to annul elections and order fresh elections without giving an opportunity of hearing to the persons concerned. The doctrine that no person shall be condemned unheard is now so much a part of or judicial and administrative system that whenever a person is likely to be adversely affected by an order passed by a judicial or quasi-judicial Tribunal, we automatically assume that an opportunity of hearing will be provided to the persot affected. It appears that in the instant case, even respondent No, 2 was conscious of this requirement, for he did send a telegram to the Secretary-Generel of respondent No. 1 informing him that he was proposing to hold an investigation into the matter. Where respondent No, 2 and the SecretaryGeneral went wrong was failing to give intimation of the investigation to the Petitioner and thus afford him an opportunity of showing cause against the proposed action.
17. The learned Deputy Attorney-General relied upon a passage in paragraph 74 of Volume I of Halsbury's Laws of England, Fourth Edition, to the effect that the principle of audi alteram par teen would not by applicable "where Parliament has evinced an intention to exclude the operation of the rule either by conferring on the competent authority unfettered discretionary, power, or by expressly providing for notice and opportunity to be heard for one purpose but omitting to make any such provision for another kindred purpose." The learned author, however, goes on to state that "where, however, a general duty to act judicially is cast on the competent authority, only clear language will be interpreted as conferring a power to exclude the operation of the rule." No doubt, the respondent No, 2 was not required to act judicially but only to hold such enquiry as he considered appropriate to the matter before him, but since he was acting in a quasi-judicial capacity we do think that in the circumstances of the case an opportunity, of hearing to the affected person was mandatory.
18. In Rex. v. Housing Appeal Tribunal (1) the Court had to deal with a case under the Housing (Additional Powers) Act. 1919, which empowered the local authority to prohibit building operations which interfere with the provision of dwelling houses, the party prohibited being given a right of appeal to an Appeal Tribunal, subject to rules of procedure. By rules, the aggrieved party was only given the right to send a notice of appeal but not a right of hearing and the local authorities were authorised to send a statement in reply setting out the grounds of the order and stating whether they admit the facts stated in the appellant's notice of appeal. It was held that the Tribunal of Appeal. Not having given the appellants any opportunity of correcting or explaining the statements in the local authority's reply which were prejudicial to their case, had not given them a hearing at all, and that the ing the appeal must be set aside.
19. In Regina v. Deputy Industrial Injuries Commissioner (2) the Court considered the question of the application of rules of natural justice to proceedings before the Commissioner appointed under section 47 of the National Insurance (Industrial Injuries) Act, 1946, while deciding an appeal relating to a claim for industrial injury benefit. Willmer, L. J. On an examination of the provisions of the aforesaid Act and the regulations framed thereunder, took the view that they confer an almost unfettered discretion on the Commissioner as to how he shall proceed. He held that the Commissioner was not bound to hold a hearing at all, even if the claimant had asked for one and that where no such hearing was asked for, the Commissioner was free to obtain information from any source which is available to him. It will thus be seen that the Commissioner under the aforesaid Act had in fact wider powers than the Director under the said Ordinance. Despite the very wide powers conferred upon the Commissioner under the aforesaid Act, Willmer, L. J. Stated as follows :- Where so much is left to the discretion of the Commissioner, the only real limitation, as I see it, is that the procedure must be in accordance with natural justice. This involves that any information on which the Commissioner Acts, whatever its source, must be at least of some probative value. It also involves that the Commissioner must be prepared to hear both sides, assuming that he has been requested to grant a hearing, and that on such hearing he must allow both sides to comment on or contradict any information that he has obtained. This would doubtless apply equally where a hearing had been requested but refused, for in such a case it would not be in accordance with natural justice act on information obtained behind the backs of the parties without affording them an opportunity of commenting on it."
20.. Diplock, L. J. While dealing with the question of applicability of rules of natural justice to proceedings before the Commissioner, agreed with Willmer, L. J. And expressed himself thus :- "Where, as in the present case, a personal bias or mala fides on the part of the Deputy Commissioner is not in question, the rules of natural justice which he must observe can, in my view, be reduced to two, First, he must base his decision on evidence, whether a hearing is requested or not. Secondly, if a hearing is requested, he must {{FOOT NOTE}}
(1) (1920) 3 K B D 334 (2) (1965) 1 Q B D 456 {{FOOT NOTE}} fairly listen to the contentions of all persons who are entitled to be represented at the hearing.
21. It was also urged by the learned Deputy Attorney-General that inasmuch as the petitioner had a right to prefer an appeal under section 15 of the said Ordinance to the Federal Government, where a proper opportunity of hearing would have been given to him, it was not necessary to also give him an opportunity of hearing before the impugned order was passed. An examination of the impugned order shows that it has been passed with the approval of the. Federal Government. As such, in or view, the right of appeal would at best not be very effective. In any case, the provision as to appeal, in or opinion, does not validate the proceedings or do away with the right of opportunity of hearing before an important order, affecting the representative character of persons of a National Organization, could have been passed.
22. It was next submitted by the learned Deputy Attorney-General and by Mr. Arif for respondents Nos. 4 to 8 that as the petitioner had taken part in the second election, he is estopped from challenging the same. We find that all that the petitioner did was to file nominations for the second election. There is nothing on record to show that he took any other part in the second election. The filing of the nomination paper was admittedly done prior to the filing of the present petition and was perhaps on account of the fact that the impugned order directed that the reelection would be held by the 28th February, 1978. We are unable to accept the view that in filing the nomination paper, the petitioner had acquiesced in the impugned order. The very fact that he did not take part in the poll but took the earliest opportunity of challenging the impugned order is clearly contra- indicative of his having acquiesced in the impugned order. In any case, we do not think that the mere filing by the petitioner of his nomination paper for the second election can be considered or deemed to be, as stated in Halsbury's Laws of England, 2nd Edition, Vol. 13, "a disability whereby a party is precluded from alleging or proving in legal proceedings that a fact is otherwise than it has been made to appear by the matter giving rise to that disability" since in or respectful view there was no such representation by the petitioner. Either by words or by conduct, whereby the other parties were induced to change their position or to take a particular line of action. We have not been shown that as a result of the nomination papers being filed by the petitioner for the second election, the respondents or any one of them were induced to change their position or take a particular course o " conduct. Before concluding this judgment, we would like to make mention of the statement made by Mr. A. A. Fazeel that he does not seek any relief from respondent No 4, specially as the said respondent was no only elected in the first election but also in the subsequent election.
23. For the reasons stated by us above, we are of opinion that the impugned order, having been passed in violation of the rule of natural justice, is without lawful authority and therefore must be set aside. We accordingly quash the said order and direct that the matter be reconsidered by respondent No, 2 under section 9 (2) (e) of the said Ordinance, and to pass such orders as are appropriate in the circumstances .Of the case, after giving all affected parties, including the petitioner, an opportunity of being heard and showing cause against the annulment of the firs election. In consequence the second election held on 27th February, 1978 is also set aside since it is founded on the impugned order which we have quashed. In the circumstances of the case, there will be no order as to costs.