The petitioner was elected on 5-4-1997, as Chairman. North Zone of Pakistan Hosiery Manufacturers Association (P.H.M.A.). Respondent No.3 moved a petition under section 9 of the Trade Organization Ordinance, 1961, before the Director of Trade Organization, respondent . No.2 for annulment of the said election of the petitioner. The Director, Trade Organization vide impugned order, dated 30-5- 1997 annulled the election of the petitioner held on 5-4-1997. The petitioner filed an appeal under section 15 of the said Ordinance to the Federal Government, on which no action has so far been taken.
2. Learned counsel for the petitioner has stated that the impugned order, dated 30-5-1997, passed by the Director, Trade Organization with the approval of the Federal Government, was void, without jurisdiction and nullity in the eye of the law. It was submitted that the impugned order itself clearly showed that the respondents had not mentioned the exact nature or specific malpractices in the conduct of the elections and respondent No.2 had decided to reject the petition as no irregularity in the conduct of the affairs and elections of the associations has been pointed out. It was argued that after recording the findings against any irregularity in the elections, it was gross abuse of powers by the Director. Trade Organizations to pass an order of annulment of elections, on the so- called ground of the same being void and without legal covers in terms of 9(2) and 2(I) of the said Ordinance. It was further argued that the remedy of appeal had become illusory as the impugned order itself had been passed with the approval of the Federal Government.
3. On the other hand the learned counsel for the respondents has contended that the petitioner had already invoked the remedy of appeal as provided for in section 15 of the Ordinance, therefore, the present writ petition was not maintainable. Learned counsel further submitted that the Director, Trade Organization had the authority to declare the elections as null and void by the exercise of suo motu jurisdiction as these elections were not covered by the legal frame-work. The learned counsel drew my attention to paragraph 11 of the impugned order, passed by the Director, Trade Organizations, in support of his contentions that the petitioner could not specify the memorandum and articles of association, which were in force on the election day.
4. I have heard the learned counsel for the parties at some length. I find that the provisions of section 9 of the Ordinance being a restriction on the A fundamental right of freedom of associations have to be strictly construed. The Honourable Supreme Court in the recent case of Civil Aviation Authority, Islamabad and others v. Union of Civil Aviation Employees and another PLD 1997 SC 781 has held the formation of associations by the Civil Aviation Employees without the legal cover of Industrial Relations Ordinance, 1969 and the Pakistan Civil Authority Ordinance, 1982, be valid on the strength of Article 17 of the Constitution of Islamic Republic of Pakistan. In the case of Sultan Mawjee and 3 others v. Federation of Pakistan Chamber of Commerce and Industry. Karachi and 3 others PLD 1982 SC 174 the provision of section 9 of the Trade Organizations Ordinance, 1961 was examined and interpreted, having regard to the nature of the provision in question and the general object and purpose of the statute. It was held that the Ordinance was intended as pronounced by its preamble to provide for regulation and control of Trade Organization.. Section 9 confers supervisory power upon the Government and the Director; Trade Organization over the functioning of the Trade Organizations registered under the Ordinance. It was held that the statute pertaining to exercise of Trade Organizations, to eminent domain, to restraint of personal liberty or freedom of contract and the like are statutes in derogation of common right and subject to strict construction. It was further held that in general a corporation was not subject to reasonable and proper regulation by the State. Since it was respondent No.3, who had moved the Director, Trade Organization for the annulment of the elections, it was not open for the said Director to reject the complaint/petition of respondent No.3 and yet to proceed to annul of the elections as if, he was acting on his own motion. Once a complainant had set a machinery of law in motion, it was not opened to the Director, Trade Organizations to switch over the same and to annul the elections on a ground, which was not available and in any case, which was rectifiable.
The impugned order itself shows that the same was passed in exercise of suo motu powers. The petition of the respondents had been adjudicated upon and no serious irregularities were found in the conduct of elections. It was not proper on the 19 part of Director, Trade Organizations to annul the decision on sheer technicalities, which had not even been complained by the respondents. The conduct of the Director, Trade Organizations in directing issuance of show-cause notice to all those persons, who had approached the learned Civil Judge, Faisalabad and Karachi and containing stay orders is most reprehensible and the contemptuous to a Court of law. The grounds on which the elections was annulled were totally non-existent and even otherwise extraneous to the object of the law and the Constitution.
5. Now the question of the availability of the right of the appeal needs to be dealt with. Suffice to say that the Federal Government had also indicated its mind by approving passage of the impugned order. Therefore, in the peculiar facts and circumstances of the present case the remedy of appeal cannot be considered to be adequate or efficacious particularly when no action has been taken on it.
6.For the foregoing reasons the impugned order, dated 30-5-1997 is declared to be without lawful authority and of no legal effect. The Pakistan Hosiery Manufacturers Associations shall, however, incorporate necessary amendments in its memorandum and Articles of Organization for the future C conduct of elections and other matters as directed by the Director of Trade Organizations. This writ petition is accepted. There shall be no order as to costs.