JUDGMENT SYED DEEDAR HUSSAIN shah, J.- I intend to dispose of J.M.Nos. 52 and 53 of 1995 by a common judgment as the facts and case law, pertaining to both are common and same.
2. Brief facts of the case are that petitioners Muhammad Unis Ellahi Sethi and Sarhad Chambers of Commerce & Industry have challenged the Award dated 29-11-1991 passed by the Arbitration Tribunal of the Federation of Pakistan Chambers of Commerce & Industries, constituted under Section 12 of Trade Organizations Ordinance, 1961 and under Sections 30, 31 and 33 of the Arbitration Act, 1940. That petition No. 1 is a member of petitioner No. 2, which is a Trade Organisation licenced by Government of Pakistan under Section 3 of the Trade Organisations Ordinance, 1961 and registered under the Companies Ordinance, 1984. The respondent is the apex Trade Organisation of Pakistan duly licenced by the Government of Pakistan under Section 3 of the Trade Organisations Ordinance, 1961 and is registered under the Companies Ordinance, 1984 It functions and is governed by its Memorandum and Articles of Association. That membership of the respondent is in terms of its Articles 4,5 and 6. The general Body of the respondent is composed of the representatives from each of its Member Bodies in terms of Article 13. Its Managing Committee and its composition is provided in Article 14. Article 15 provides the manner of composition of the Managing Committee while Article 16 fixes its terms of office. That the respondent vide its letter No. FPCCI. EL/4/1995/1957 circulated to its Member Bodies, the programme of election, to elect, Managing Committee, Office Bearers and Zonal Committees for the term 1996-1997. That by its circulars circulated^ its Member Bodies, the respondent invited nominations to the general Body and its Managing Committee for the two years term. That the Executive Committee of the petitioner No. 2 by its resolution dated 21.8.1995 authorised its President to nominate its members on the general Body and the Managing Committee of the respondent. The President nominated the petitioner on the general Body and the 968 C.L. Pakistan Company & Tax Law Reports 1996 /.
Reserved seat of the Managing Committee of the respondent for the year's 1996/97. That the respondent by its letter No. FPCCI/EL/4/1995/9750 dated 11.11.1995 informed the petitioner No. 1 that the Scrutiny Committee appointed by its Managing Committee in its meeting Held on 31-10-1995 had decided not to approve his nomination for the reserved seat of the Managing Committee of the respondent for the two years term beginning from 1-1-1996. That petitioner No. 1 objected to the respondent to the non-inclusion of his name in preliminary list of voters prepared by the respondent and the respondent by its letter dated 23.11.1995 informed the petitioner No. 1 that in view of the decision of the Scrutiny Committee already conveyed to him his name was not included in the final list of the candidates for the Managing Committee. That petitioner No. 1 vide his letter dated 28.11.1995 called upon the respondent to place his petition before the Arbitration Tribunal under Section 12 of the Trade Organisation Ordinance. 1961. That the respondent constituted an Arbitration Tribunal under Section 12 of the Trade. Organization 'Ordinance, which met on 29-11-1995 and. Upheld the decision of Scrutiny Committee, In this background this J.M. Is filed.
3. Mr. Khalid Latif, learned counsel for petitioners, has contended that the Rejection of the petitioner No. 1 nomination purports to be grounded on Article 16(1 V) of the Articles of Association of the respondent and this is totally untenable in view of the admitted position that petitioner No. 1 was Member of the Managing Committee of the respondent for the following two year terms as is evident by the letter dated 7.8.1995; that the reasoning of the Arbitration Tribunal is fallacious. If the bar under Article 16(1 V) was really attracted why was it not applied to petitioner No. 1 for the term 1994-95; that initially nomination of the petitioner No. 1 for the term 1994-95; was rejected but subsequently the Scrutiny Committee withdrew the Rejection and accepted the nomination, similar was the stand for the term 1992- 93; that besides, the very concept of. Nomination against a reserved seat would be rendered absard if election and nomination against reserved seat were to be treated at part: that the decision of the Scrutiny Committee and of the Arbitration Tribunal also runs counter to the. Consistent practice of the respondent insofar as. Ever since its inception many members of the Managing Committee have acted as such members continuously for many more than rhe two continuous terms now sought for the first time in the history of the respondent to be applied as a bar to the petitioner No.' 1;- that the Rejection of the nomination of petitioner No. 1 has disenfranchised with the petitioners which is entirely unwarranted by the' Articles of Association of the respondent; that the Award is invalid as it is violative of Article 3 read with rule 4 of the Election Rules of the respondent; that the Award is invalid as it has been improperly procured; and that* the Award is* invalid in terms of Section 26-A of the Arbitration Act, 1940 because no reasons have been given in the Award.
4. At the time of arguments, Mr. Khalid Latif, learned counsel for the petitioners, has Contended that the Award is invalid as the petitioner was not given opportunity of being heard, which is against the principles of natural justice, embodied in the maxim "audi-alteram-partem" i.e. No man shall be condemned unheard.
5. Mr. Aitzaz Ahsan, learned counsel for the respondent, has contended that no allegation of misconduct, bias or malice against the Arbitrators has been made anywhere in the petition, the miscellaneous application or even the, rejoinder; that no allegation of denial of hearing to the petitioner has similarly been made in any-petition, application, affidavit or even the rejoinder; that only one point of law sought to be reviewed namely that clause 16(4) of the Articles of Association of FPCCI did not apply to nominated members and. Therefore, such a member could seek a third consecutive term: that the petition is neither a Civil suit nor an appeal from the award, nor even a writ petition. It is only a petition under the Arbitration Act and. Therefore, confined to the parameters of such a challenge; that the Arbitrators had not committed any misconduct; that due process had been observed and both sides had obtained their right to be heard; that only a point of law had been referred to the Arbitrators; that on 26.12.1995 the learned counsel for the petitioner, for the first time, attempted to raise a third point namely that the petitioner had allegedly not been given a hearing by the learned Arbitration Tribunal; that out of abundant caution and even though the petitioner had not asserted the allegation denying a hearing by means of any affidavit, the respondent Federation filed an affidavit of the Registrar of the Arbitration Tribunal asserting that the petitioner was given a hearing by the Tribunal.
6. Mr. Khalid Latif, learned counsel for petitioners, has pointed out that the affidavit in rejoinder of Faisal Yusuf Zia has been filed on 16-1-1996, in which it is stated that respondent has acted in violation of the principles of natural justice and, therefore, the Award given is a nullity in the eyes of law. Mr. Khalid Latif has cited following case law:-
(1) PLD 1985 S.C. 69- M/s. Aslam Saeed& Co. Ts. M/s. Trading Corporation of Pakistan.
The rule laid down in this authority by the Hon'ble Supreme Court is as follows:- "The words "otherwise invalid" are not ejusdem generis with the other cases mentioned in section
30. The same are meant to include all cases of invalidity on grounds other than those mentioned, according to the learned counsel the appellants were mulcted with damages by the Arbitrator in disregard of the fact that a bulk sale of huge quantity of 1,20,000 tons of rice had been made by the respondents whereas the actual unlifted quantity of rice by the appellants was only 14,853.17 tons.
Needless to say that in the case of bulk sale the price offered by the purchasers may not be the same as in respect of any smaller quantity. Thus, it was asserted by the learned counsel, that the appellants have suffered on account of such method of sale and a definite prejudice was caused to them in awarding the damages on account of difference in the contracted and the resale price".
(2) PLD 1983 Karachi, 621- Province of Sindh Vs. Haji Khan- His Lordship Mr. Naimuddin, C.J. (as then he was), has Held in this authority as under- "Since at the time when the Ordinance was promulgated the proceedings were pending and objections were not disposed of the provisions of Section 26-A of the Ordinance are, therefore, clearly attracted. However, the question is whether there are any valid reasons for not remitting the award for stating the reasons and I find none. On the contrary, I find that in the objections the appellants have stated that the arbitrator has given the award without detailing the basis on which it is made. In view of the objections which have not been dealt with by the learned Senior Civil Judge in the judgment impugned in this appeal, I find it at all more necessary to remit the award to the sole arbitrator to state the reasons. Accordingly, I remit the award to him for stating the reasons for the Award."
(3) PLD 1982 Karachi 260- Messrs Ghandhara Industries Ltd, Karachi Ws. Government of Pakistan:- In this authority the learned Judge has observed as under: - "3. Power of 'Court to remit cases pending at commencement of Ordinance - (1) If in any case in which proceedings in relation to any award which has been filed in Court are pending in any Court immediately before the commencement of this Ordinance, the Court finds that the award does not, or does not in sufficient detail, state the reasons for the award, the Court may remit the award to the arbitrator or umpire with a direction to state the reasons for the award in sufficient detail.
(2) Where an award is remitted under Sub-section (1) the Court shall fix the time within which the arbitrator or unpire shall submit to the Court an award stating the ' reasons thereafter in sufficient detail: Provided that any time so fixed may be extended by subsequent order of the Court.
(3) Any award remitted under Sub-section (1) shall become void on the failure of the arbitrator or umpire to submit it in accordance with the direction of the Court.
This amendment in the Arbitration Act was made on* 11th May. 1981. The newly-added section 26-A to the Arbitration Act. 1940 provides that the reasons for. The award should be stated in sufficient detail in the award- to enable the Court to consider any question ot law arising out of the award/ This provision is mandatory and in case of non-compliance the Court shall remit the award.
However,, on this ground the award cannot be straight-away set aside. The arbitrators or umpire are now under a Legal obligation to give reasons for the award in sufficient detail. Merely giving reasons in sketchy, or summary manner will not amount to compliance with his provision of law.
The arbitrators or umpire are bound to give reasons in sufficient detail and such reasons should be made in the award itself. There had been practice that the awards were made in non-speaking terms and sometimes the reasons were stated separately which did not form part of the award itself. Now it is. Compulsory that the reasons should be contained in the award itself. The manner in which the reason has to be given is also specified. It should be in "sufficient detail" so that the Court may be in a position to consider any question of law arising out of the award. The law now contemplates a speaking award".
(4) 1988 SCMR 789- Messrs Asian Associated Agencies I s. Pakistan through Secretary. Ministry of Industries, Government of Pakistan - The Hon'ble Supreme Court, in this authority, was pleased to grant leave to appeal to consider as follows:- "Whether the award suffered from an error on face of record because a buyer, entitled to reject the goods, could not be compelled to return the goods to place of delivery at his own cost; interpretation of provisions of Ss. 42 and 43. Sale of Goods Act, 1930; number of decisions or English Courts on question as to what constitutes an error of law on the face of award".
(5) 1981 C.L.C. 339- Messrs Badruddin H. Mavani 1's. Government of Pakistan, Ministry of Food:- The learned D.B. Of this Court in this authority has Held as under:- "Award cannot be set aside unless. Arbitrator shown to have misconducted himself or award improperly procured or otherwise invalid and FINDINGS; of Arbitrator wrongly accepted by lower Court to be correct".
(6) 1982 SCMR 243- Province of Punjab through Collector. Bahawalpur I "v. Sufi Habib Ullah:-..
The learned D.B. In this authority has observed as follows:- "2. The submission made before us is based upon the Award itself. The High Court, after an elaborate judgment, has Held that "the Award being laconic and totally silent as to the basis or reason thereof, could not have been, in the circumstances, legally given effect to". It has been stated before us that the Arbitrator was under no obligation to have given reasons for the Award that he had made. We find that in paragraph 3 of the petition the operative part of the Award has been reproduced by the petitioner. The mere fact that this is an operative part shows there must be another part of the Award in which reasons must, have been given. If the Arbitrator was not to give reasons the observations of the High Court would probably not have been correct. But since reasons have been given they have to be based upon the evidence produced before him and the law applicable to it and if the Arbitrator has not done so, the Award is certainly Liable to be set aside and that is what the High Court has done."
(7) 1984 CLC 1077- K.M. C. \'s. Associated Constructors: * The learned D.B. In this authority has observed as under:- "Arbitrator neither-stating any reason for awarding two substantial amounts to respondent nor stating how he had arrived at these figures by mentioning separately various amounts awarded by him under various heads claimed by respondent-Award remitted to arbitrator for stating reasons in sufficient details".
(8) 1986 M.L.D. 501- Province of the Punjab Vs. Messrs Industrial Machines Tools Government Contractors:- The dictum of this authority is as follows:- "Award, not stating reasons in sufficient detail, could not be sent back by Court to arbitrator or umpire to submit same with reasons within specified time."
(9) PLD 1960 (W.P) Karachi, 455- Allah Bukhsh Gabole Vs Razia Begum His Lordship Mr. Justice Wahiduddin Ahmed has Held as under:- "Although an arbitrator is allowed considerable latitude in the procedure to be followed by him at the hearing, it is his paramount duty to afford the parties a reasonable opportunity to know the case against them. He cannot condemn a party without letting him know the case. If he makes an award without complying with this elementary principles of natural justice, he does so at the risk and peril of his award being set aside on grounds of misconduct."
(10) PLD 1959 S.C., AS-Chief Commissioner, Karachi Vs. Mrs. Dina Sohrab Katrak In this authority the Hon'ble Supreme Court has referred the case of the Queen Vs. The Archbishop of Canterbury where Lord Campbell, C. J., has observed as under:- "If is one of the first principles of justice, that no man should be condemned without being heard."
In view of the above observations, the Hon'ble Supreme Court of Pakistan, has Held as under:- \ "The rule of justice embodied in the maxim audi alteram partem: "No man shall be condemned unheard" is not confined to proceedings before Courts but extends to all proceedings, by whomsoever Held, which may affect the person or property or other right of the parties concerned in the dispute. As a just decision in such controversies is possible only if the parties are given the opportunity of being heard, there can be as regards the right of hearing, no difference between proceedings which are strictly Judicial and those which j are in the nature of a Judicial proceeding though administrative in from."
(11) PLD 1970 Karachi 357- Tayab and 2 others Vs. Eastern Textile Mills:- The learned D.B. Of this Court consisting of Mr. Justice Noorul Arfin and Mr. Justice Muhammad Hayat Junejo, has observed as under:- "Although the arbitrator is allowed considerable latitude in the procedure to be followed by him at the hearing, it is his paramount duty to afford the parties a reasonable opportunity to know the case against them. He cannot condemn a party without letting him know the case. If he makes an award without complying with this elementary principle of natural justice, he does so at the risk and peril of award being set aside on grounds of misconduct. It has been repeatedly Held that unless the terms of reference dispense with holding an enquiry, the right of hearing is to be presumed. In any case, the arbitrator cannot hold secret enquiries behind the back of the parties and if he does so the award will be vitiated."
7 Mr. Aitzaz Ahsan, learned counsel for the respondent has referred the following case law:-
(1) PLD 1965 Karachi 460-Messrs Balagamwalla Cotton Ginners and Pressing Factory Vs. Messrs Akber Oil Mills:- / In this authority it has been Held as under:- "Validity cannot be challenged by relying on facts stated in affidavit neither forming part of award nor accompanying same."
According to Mr. Aitzaz Ahsan it has been consistently Held that when only a point of law is referred to arbitration (and even if the decision of the arbitrator is erroneous, which is not so in this case) the Court will not interfere. Reliance in this behalf is placed upon:-
(2) PLD 1987 S.C. 393- Ghulam Abbas Fs. Trustees of the Port of Karachi:- Learned D.B. Of this Court has observed as follows:- "Now the general rule of law is that an award is final as to both fact and law but there is. a rule that an error of law. If it appears on the face of the award, is a ground for setting it-aside which is an exception to the general rule, as stated. There is a further rider to this rule, namely, that if the parties have specifically referred a question of law to arbitration then the general rule would apply and the award will be beyond reproach evert if such a question is decided erroneously".
(3) PLD 1968 Lahore, 629- Siraj Din 1's. Iqbal Begum:- Learned D.B. In this authority has Held as under:- "The question m he decided is:- Does the error of law appear on the face of the award? In the present case the matter relating to the application of section 19 of the Punjab Colonization of Government Lands Act, the effectiveness of the previous tamlimnama and the subsequent oral gift alleged to have been made after payment of entire malikana and passing of possession to the donees were before the arbitrators, which questions they have proceeded to decide on evidence produced before them. They do not appear to have erred in law in this regard and even if it be assumed that their decision on the aforesaid particular question of law is erroneous, since the question had been specifically referred to them, it is not for this Court to interfere, in view of the well-settled proposition of law stated-above".. (4) AIR 1960 S.C. 588- M/s. Alopi Parshad and Sons Ltd. L.v. Union of india:- In this Authority the Supreme Court has Held as under:- "The award of an arbitrator may be set aside on the ground of an error on the face thereof only when in the award or in any document incorporated with it, as for instance, a note appended by the arbitrators, stating the reasons for his decision, there is found some Legal proposition which is the basis of the award and which is erroneous".
(5) PLD 1974 S.C. 204- Gulzar Khan Vs. Zhahzad Bibi'.- It is Held in this authority as under "While it is undoubtedly correct that an inference drawn from evidence amounts to a finding of fact, yet it is well-settled that the question of the proper construction of a document is a question of law and not of fact".'- /
(6) 1992 SGMR 786- Jam Pari 1's, Muhammad Abdullah;-.
D. B. Of the Hon'ble Supreme Court in this authority has Held as under:- "Waiver is an intentional relinquishment of known right and unless there is cogent evidence reelecting the person's conduct clearly indicative of abandonment of. His right he cannot be said to have deliberately foregone his such right".
(7) PLD 1960 (W.P) Karachi 78- Suteman Haji Muhammad ct-.. /'
Co I'ersus Stare Bank of Pakistan:- The learned Judge has observed as under: - "If the award is otherwise valid, the Court of law cannot interfere and review it on merits and say whether it is good, bad or indifferent".
(8) AIR 1970 Madras 163- A. Mohambaram 1's. Jdyavelu:- D.B. In this authority has decided as under:- "Government had appointed'' a person as public prosecutor not nominated by the Collector-Order; of appointment quashed."
(9) PLD 1979 S.C. 32- Shahna'z Maijhaol f.v. Province of Sindh:- In this authority it is Held as under:- '
"A mere gratuitous indulgence cannot operate to establish a rule or estoppel/waiver."
(10) P.L.J. 1987 Quetta 1- Province of Baluchistan through secretary, Irrigation & Power Department,.
Government of Baluchistan. Quetta Vs. Messrs. Tribal friends Company. Loralai through its General Manager - In this authority the Hon'ble Judge has Held as under:- "Proceedings to settle differences by way or arbitration -v to be outcome of arrangement mutually arrived at by parties- Parties voluntary agreeing to accept decision of arbitrator to be binding on them".
(11) PLD 1994 Karachi 480- Messrs Nizamuddiu Faridul Huq I's. The Collection of custums:- Learned D.B. Of this Court in this authority has observed as under:- \.
"It is not unreasonable to assume that "past practice", unless having the sanction of letter of law, is no substitute for law. Still, when practice is based on conscious implementions, enunciations, precedents or rulings of an administrative or quasi-Judicial authority, such as the Collectorate of Customs or the Board of Revenue, fixed with duties to administer and implement the law covering a specialised field and at that a taxing statute, a deviation from such practice should not be arbitrary, capricious or fanciful. Above all, if there be change in practice that has always to be v consistent with law".
8. Advisely I refrain myself to dilate upon the authorities referred to hereinabove by the learned counsel for the. Parties, particularly seeking interpretation or judgment on the bar under Article 16(4) of the Memorandum and Articles of Association of the Federation of Pakistan Chambers of Commerce & Industry and whether nomination of a member for more than two consecutive terms was allowed by the respondent or whether the past practice for allowing its member for nomination/election beyond more than after availing two consecutive terms.
9. I would also refrain myself to dilate upon the arguments of the learned counsel for the parties that whether the Award is invalid on account of insufficiency of reasons or whether the reasons so mentioned are sufficient or not. For the sake of convenience I would like to reproduce clause 12 of the Rules and Regulation of the Arbitration Tribunal (set up under Section 12 of Trade Organisations Ordinance, 1961). As under:- "Clause xii The party or parties shall be entitled to appear by counsel, attorney, advocate or an authorised adviser or personally"
10. No doubt in the petition itself the ground of not affording an opportunity of personal hearing is not agitated but while placing arguments Mr. Khalid Latif has raised this point. As it is purely a Legal point, therefore, he was allowed by the Court to raise this point. He placed Submissions and cited relevant case law. Counter affidavit of Abdul Suhhan son of Abdul Alim. Registrar. Arbitration Tribunal of Federation of Pakistan Chamber of Commerce & Industry, Karachi, has been filed, para. 3 of the same is reproduced as under: - "That the petitioner did appear before the Tribunal and was fully heard".
Affidavit in rejoinder of Faisal Yusuf Zia son of Muhammad Yusuf Zia, who is petitioner in J.M. No. 53/95, has been filed by Mr. Khalid Latif, learned counsel for the petitioner, relevant paragraphs of the same are reproduced as follows "1. That I am the petitioner in the concerned J.M.No. 53 of 1995 and as such am fully conversant with the facts of the case. I have been orally asked and authorised by the petitioner No. 1 herein abovementioned to file this affidavit in rejoinder on his behalf.
5. That I say that the petitioner No. 1 denies the contents of paras 2 and 3 of the counter affidavit and puts the respondent to strict proof thereof. It is denied that the petitioner No. 1 received the annexure to the counter affidavit.
6. That I say that the Arbitration Tribunal of the respondent has acted in violation of the principles of natural justice and, therefore, the award given is a nullity in the eyes of law'.
11. It would be more advantageous to reproduce the Award, which is as follows:- "AWARD OF ARBITRATION Tribunal OF FPCCI CONSTITUTED UNDER SECTION 12 OF TRADE ORGANIZATIONS ORDINANCE, 1961 The present term of Managing Committee of the FPCCI is due to expire on 31st December, 1995. For the Election of the next term for 1996 and 1997 nominations were invited and received in *the Federation Head Office which were scrutinised and some nominations were rejected. Objections were invited and Scrutiny Committee again considered the objections received and finalised the voters lists. Some parties filed petitions under Section 12 of Trade Organisations Ordinance 1961 and requested FPCCI to constitute Arbitration Tribunal under Section 12 of Trade Organisations Ordinance, 1961. The FPCCI through notice dated 23rd November, 1995 called emergent meeting of the Managing Committee on 27th November, 1995. In this emergent meeting the petitions under Section 12 of Trade Organisations Ordinance, 1961 were considered and 3-member Arbitration Tribunal was constituted comprising:-
(1) Mr. Munitioneer -President, FPCCI
(2) Mr. Raja Abdul Rehman -Former President, FPCCI
(3) Mr. Muhammad Muzaffar-Former President, FPCCI The Arbitration Tribunal met on Wednesday, 29th November. 1995 and disposed- of the following petitions:
(1) Petitions of Mr. Muhammad Unis Elahi Sethi of Sarhad Chamber of Commerce & Industry and Mr. Fais;H Yusal /ia of all Pakistan Cables & Conductors Manufacturers Association.
The Security Committee of the Federation disqualified Mr. Unis Elahi Sethi and Mr. Faisal Yusaf Zia on the plea that since they were members of the Managing Committee tor two consecutive terms and their nominations were made without gap of one term, their nominations were invalid.
The dispute before this Tribunal is that of the eligibility of nominated member's continuance in the Managing Committee beyond completion of two consecutive terms and that whether or not such member falls within the purview of Article 16(iv) of the Articles of Association of the FPCCI.
Article 16(iv) of the Articles of Association reads as under: - "A member of the Managing Committee shall not be eligible for re-election as its member on the expiry of his two consecutive terms. He shall not be eligible to stand for re-election to the Managing Committee for one term from the date of expiry of his two consecutive terms".
Apparently this Article disqualifies only those members of the Managing Committee who seek re- election for the third term in sequence. However, this Article cannot be interpreted in isolation. The intention of the law must be traced from other Articles to arrive at a just decision otherwise the spirit of interpretation shall be defeated.
The parties to the dispute have obtained Legal opinions from the renowned jurists of the country which are placed on record. We have gone through these Legal opinions which are conflicting but majority of them endorse that bar on becoming member of the Managing Committee after completing two consecutive terms equally applies to nominated as well as elected member.
Article 14 provides that- "The management of the business of the Federation shall be vested in the Managing Committee including one President, three Vice Presidents and members elected in the manner hereinafter provided., Provided that IF for any reason the total number of persons elected on the Managing Committee falls short of the total number of seats that shall not invalidate the election of the Managing Committee".
This indicates that Managing Committee consists of President. Vice Presidents and elected members only as there is no mention about members nominated by the various Chambers.
It is worthwhile to read Article 16(i) which is:- "The President, Vice Presidents and members of the Managing Committee shall hold office for a term of two years beginning from lst January of the year during the term in which they have been elected and shall continue to hold office till the Second Annual general Meeting".
In this Article the word "elected" has been used and the word "nominated" is nowhere seen whereas the Managing Committee consists of elected as well as nominated members. It is thus abundantly clear that the word "elected" used in the Article denotes the word "nominated" also.
The elected as well as nominated members of the Managing Committee enjoy equal rights. With their collective votes the President and Vice Presidents are elected and any nominated or elected member is eligible to contest election and hold the top position in the Federation. Both elected and nominated members equally share the management of the business of Federation under Article 14.
When their rights are equal there is no distinction in the obligations also. Break of one term after completion of two consecutive terms for elected member is essential. This break equally applies to nominated member otherwise he will always enjoy rights only and not the obligations which is contrary to the spirit of Articles.
The spirit of law is absolute Ly clear in this case and after giving due consideration the members of the Tribunal are unanimously of the opinion that disqualification made of the members by the Scrutiny Committee to continue their membership without gap of one term is justified. We, therefore, uphold the decision of the Scrutiny Committee.
(2) Petition of Mr. Iftikhar Ahmed of M/s. Car House. Peshawar.
The petition of Mr. Iftikhar Ahmed on the Rejection of his appeal against nomination of Engr.
Wazirzada Muhammad Idrees Khan on reserved seat from D.I. Khan Chamber of Commerce & Industry was considered Engr. Maqsood Anwar of M/s. Rehmat Aluminium Industries (Pvt.) Ltd.
Peshawar the authorised representative of petitioner and Engr. Wazirzada Muhammad Idrees Khan were given proper hearing and after checking the records referred to, it is decided that the decision of the Scrutiny Committee that the objection of Mr. Iftikhar Ahmed is not tenable as D.I.Khan Chamber of Commerce and Industry is duly registered and licensed by the Ministry of Commerce and incorporated under the Companies Ordinance, 1984 is found valid and is upheld.
(3) Petition by Sufi Bashir Ahmed Durrani. Lite Member FPCCI and Chairman M/s. Sufi Foods (Pvt.)
Ltd. Peshawar.
Petitioner Sufi Bashir Ahmed Durrani and the respondent Mr. Jahan Zeb Khan of Hazara Chamber of Commerce & Industry were heard and the papers referred to were examined and the documents pertaining to the liquidation of the company were found irrelevant and not in order as the nomination of Mr. Jahan Zeb Khan in Hazara Chamber of Commerce & Industry is on behalf of Pak Mineral & Mines Ltd. Abbottabad and the decision of the Scrutiny Committee is found In order and is up-Held.
(4) Petition of Haji Muhammad Yaqub Khan Durrani of M/s. Peshaiwar Pipe Mills Ltd., Peshawar.
The petition of Haji Muhammad Yaqub Khan Durrani on Rejection of his appeal against acceptance of nomination of Mr, Ilysa Ahmed Bilour of M/s. Bilour Industries (Pvt.) Ltd. Was considered and both Haji Muhammad Yaqub Khan Durrani and Mr. Ilysa Ahmed Bilour were heard and the papers referred to were examined. The allegation that Mr. Ilysa Ahmed Bilour does not qualify to become the member of Haripur Chamber is found baseless and the decision of the Scrutiny Committee is found in order and is upheld.
(5) Petition of Engr. Maqsood Anwar of M/s. Aluminium Industries (Pvt) Ltd. Peshawar.
The petition of Engr. Maqsood Anwar on Rejection of his appeal against acceptance of nomination of Mr. Mohsin Aziz of M/s. A.J. Textile Mills Ltd. Made by Sargodha Chamber of Commerce & Industry was considered. Engr. Maqsood Anwar and Mr. Ilysa Ahmed Bilour, the authorised representative of Mr. Mohsin Aziz were heard and the papers referred to were examined. If is found that the nomination of Mr. Mohsin Aziz by Sargodha Chamber of Commerce & Industry is in order and the decision of the Scrutiny Committee is up-Held.
(6) Petition of Mr. Faiz Rasool Khan of M/s. Prime Star Industries (Pvt) Ltd. Peshawar.
Petition of Mr. Faiz Rasool Khan on Rejection of his appeal against acceptance of nomination of Mr. Ghularp Sarwar Khan Mohmand of M/s. Sunney Enterprises (Pvt) Ltd. Was considered. Both Mr. Faiz Rasool Khan and Mr. Ghulam Sarwar Muhammad were heard. It is found that the nomination of Mr. Ghulam Sarwar Khan made by Haripur Chamber is in order and the decision of the Scrutiny Committee is upheld.
(7) Petitions of Mr. S.M.A. Rizvi and Mr. Pervez Ahmed of Towel Manufactureres Association of Pakistan.
The petitions of Mr. S.M.A. Rizvi and Mr. Pervez Ahmed against the Rejection of their nominations were considered. Both the petitioners were heard and the papers referred to and the order of the Lahore High Court dated 22nd October, 1995 which is quoted as under "In the meanwhile it is clarified and declared that the nominations to the elections of the Federation of Pakistan Chambers of Commerce & Industry shall be subject to the result of this writ petition", were examined. The decision of the Scrutiny Committee is found valid and is upheld.
(8) Petition of Hyderabad Chamber of Commerce & Industry.
The petition of Hyderabad Chamber of Commerce & Industry on Rejection of its nomination on general Body and Managing Committee due to delayed payment of annual membership subscription was t considered. Mr. Aminkhatri, authorised representative of Hyderabad Chamber was heard and all papers referred to were examined. Keeping in view Article 40(ii) of Articles of Association of FPCCI the delay cannot be condoned and, therefore, the decision of Scrutiny Committee is upheld.
(9) Petition of all. Pakistan Solvent Extractors Association.
The petition of all Pakistan Solven Extractors Association on Rejection of its nomination due to c delayed payment of annual membership subscription was considered and its authorised representative was heard. Keeping in view Article 40(ii) of the Articles of Association of FPCCI the delay cannot be condoned and therefore the decision of Scrutiny Committee is upheld.
(10) Petition of Mirpurkhas Chamber of Commerce & Industry.
The petition of Mirpurkhas Chamber of Commerce & Industry was considered. The authorised representative^ was heard. It was noted that the nomination dated 12th October, 1995 sent by post was not received while nomination was again sent vide TCS receipt No. 1788496 dated 29th October, 1995. It was further noted that the dues were paid in time Keeping in view the above, the Tribunal decides to condone the delay in submission of their nomination.
(11) Petition of all Pakistan Oil Tankers Owners Association.
The petition of all Pakistan Oil Tankers Owners Association was considered. Mr. S. Attaullah Hashmi, Secretary of the Association was heard. It was noted that the Association had sent its nomination by post vide letter dated 16th October, 1995 which was not received. It was also noted that the payment of dues was made in time. Further the Secretary was ail for more than one month.
Keeping in view the above, the Tribunal decides to condone the delay in submission of nomination.
(12) Petition of Pakistan Pharmaceutical Manufacturers Association.
The petition of Pakistan Pharmaceutical Manufacturers'* Association against Rejection of nomination due to delay in payment of subscription was considered. Mr. Mubasher N. Khan of the Association was heard. Keeping in view Article 40(ii) of Articles of Association of FPCCI the condonation of delay is not consideredx possible and the decision of Scrutiny Committee is upheld.
(13) Petition of Carpet Manufacturers and Exporters Association. \ The petition of Carpet Manufacturers & Exporters Association on Rejection of their nomination due to delay in submission of nomination was considered. The Association's representative Mr. A.S.Hashmi was heard. It was noted that dues were paid in time. Keeping in view the above, the Tribunal decides to condone the delay in submission of their nomination.
(14) Petition of Overseas Investors Chamber of Commerce & Industry.
The petition of Overseas Investors Chamber of Commerce'& Industry was considered. It was noted that the dues were paid in time and the nominations were also received in time but were found defective. When the defect was pointed out the corrected nominations were sent but were received after expiry of the due date. In view of the above their appeal was considered and accepted".
12. Petitioners Muhammad Unis Elahi Sethi and Faisal Yusuf Zia are mentioned at S. No. (1) and no doubt the learned Arbitrators have discussed and dilated upon Article 16(IV) of the Articles of Association of the respondent and the learned Arbitrators have also reproduced Article 14 and after going through the petitions, papers,;.Relevant Article 16(iv) and Article 14, the learned Arbitrators finally Held as under:- ' "After giving due consideration the Members of the Tribunal, unanimously are of the opinion that the declaration made by the Members, of the Scrutiny Committee to continue their membership without gap of one term, is justified, we, therefore, uphold the decision of the Scrutiny Committee".
13. It would be pertinent to note that in the Petitions mentioned at S. Nos. 2,3,4,5,6,7,8,9,10,11,12 and 13 of the Award, either the petitioners were heard or their representatives were given an opportunity of hearing by the learned Arbitrators. In Petition at S. No. 14 also there is no any mention whether anybody was heard or not. The bare perusal of the Award, without taking into consideration the counter affidavit of Abdul Suhhan, Registrar, Arbitration Tribunal of FPCCI or affidavit in rejoinder of Faisal Yusuf Zia, petitioner in J.M. No. 53/95, whose Petition is at S. No. 1 of the Award, shows that the petitioners were denied the right of personal hearing. It is a settled law that the contents of the documents itself speak about any Legal lecuna. It is not understandable as to how it was possible for the learned Arbitrators not to mention the fact whether the petitioners or any of their authorised representative was heard. Whereas the Award itself speaks that either the petitioners or their authorised representatives were heard. But it is very unfortunate to observe that so far petitions of these two petitioners are Concerned nothing is mentioned about affording an opportunity of hearing and the Award itself is silent. Advisely I do not consider counter affidavit of Abdul Subhan,.
Registrar, Arbitration Tribunal of FPCCI and affidavit in rejoinder of Faisal Yusuf Zia, petitioner in J.M.
No. 53/95 but I have perused and referred the Award. By now it is a settled law that "no man shall be condemned unheard", this principle has been glaringly contravened in this case. This principle of law is also followed in the following authorities
(1) PLD 1959 S.C. 45, (2) PLD 1960 Karachi 455 and (3) PLD 1970 Karachi 357.
14. Therefore, in view of the facts, circumstances mentioned hereinabove and the 'case law, I accept Petitions No. 52/95 and 53/95, set aside the Award and remit the same to the learned Arbitrators for affording an opportunity of personal hearing to the petitioners and then to decide the matter afresh, within a period of three months. There will be no order as to cost.
15. In view of above order CMAs 6638, 6546/6640 & 6550 of 1995 have become infructuous, and stand dismissed.