SHAFIUR RAHMAN, J.--Pakistan Engineering Council and two 14 of its functionaries, the Chairman and the Registrar, seek leave to appeal against an interim order dated 5-11-1990 passed by the Lahore High Court, Rawalpindi Bench permitting the participation of the respondents who were the writ petitioners in the ensuing elections of the Executive Committees etc., as candidates for various offices as also as ordinary voters notwithstanding the order of their deregistration for infamous professional conduct remaining intact.
2. On numerous complaints, an enquiry was held into the professional conduct of the respondents and as a result thereof, the Enrolment Committee in proceedings under sections 17(2) and 17(4) of the Pakistan Engineering Council Act, 1976 (hereinafter referred to as the Act) came to the following conclusion and passed order accordingly:- , "We are, therefore, unanimously of the view that the names of respondents at para. 1(i) and (ii) be removed from the Register of the P.E.C. For a period of three years and that of respondents at para 1(iii) and (iv) for a period of one year from the date of pronouncement of this order."
It was appealed against under section 18 of the Act and also a number of Constitution Petitions were tiled challenging the action taken. During the pendency of those earlier Constitution Petitions a reconciliation committee was formed which examined the dispute and purported to resolve it.
The writ petitioners withdrew their writ petitions challenging the action. On 10th of March, 1990, consequential steps of ending the deregistration were taken and an order was passed by the Chairman, Pakistan Engineering Council to that effect. The Enrolment Committee on 12th of March, 1990, refused to accept as legal this order of the Chairman because within the framework of the Act such an order could not be passed by the Chairman. The matter then was taken up at the 51st meeting of the Executive Committee held on 28th of September, 1990 and the following decision was taken:- "It was a general concensus of the House that in view of the new facts/documents which have come to the light, the case should be referred back to the Enrolment Committee for consideration."
3. On 13-10-1990, the Constitution petition from which this petition for leave to appeal has arisen was filed wherein the writ petitioners had challenged the orders dated 23-9-1959 and 18-10-1989 both passed by the Enrolment Committee. It was subsequently that they included within its purview the decision of the Enrolment Committee dated 20-10-1990. As Elections were due to take place, they asked for interim relief of avoiding the disqualification and participation in the elections. The first prayer was disallowed but not the second which was allowed. Hence, this Petition.
4. By an order in Chambers on 20-11-1990, the operation of the impugned order was suspended. In the meantime, the matter has come up for hearing in the midst of the election schedule wherein some steps have already been taken.
5. After hearing the learned counsel for the petitioners as well as the respondents we convert this Petition into appeal and allow it for the following three reasons:--
(i) In the Constitution petition in which interim relief has been granted, the Orders brought directly under challenge are those of the Enrolment Committee. There is a statutory remedy provided under section 18 of the Act of Appeal to the Executive Committee. No apparent reason is forthcoming why without exhausting the remedy under the statute recourse was taken to the constitutional jurisdiction. In respect of professionals whose discipline and conduct is under control of professional bodies, it is additionally important that their conduct should come under review before their own peers before judicial review is undertaken. The respondents have yet to make out a good case for making an exception of their case.
5-- (ii) If the order of their disqualification remains intact, as it has been allowed to remain, by an interim order granted by the High Court, the result would be that a person found guilty of infamous professional conduct by his own peers would be allowed to take part in the elections of the professional body and this would be unfair, inequitable and improper. In order to be consistent that order had to be suspended first and then such a relief would follow as a matter of course.
7(iii)In the matter of entertainment of Petitions and grant of relief in equitable and discretionary jurisdiction, it is necessary not to be guided wholly by the technicalities of the law but also by the substance of the controversy. We do not rind any language either in the recitals or in the judgments to find prima facie that the proceedings against the respondents as finalized in the first round suffered from mala fide of fact.
6. We allow this appeal, set aside the impugned interim order and allow the proceedings in the High Court to continue on their own merits unaffected by the tentative observations made by us in this order. No order is made as to costs.