' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 arises under the following circumstances.
2. Petitioner No,11 All Pakistan Textile Mills Association commonly known as A.P.T.M.A. Is a registered trade organization within the meaning of Trade Organizations. Ordinance, 1961. Its affairs are being managed by a managing committee which comprises of 27 members and has two years' tenure.
However, the Managing Committee is required to elect a Chairman of the association for a period of one year. Admittedly, petitioner No,1 was elected as Chairman for the year 1998/99. His tenure having expired the matter was taken up by the Managing Committee which by its Resolution, dated 18-10-1999 decided that pending election of the Chairman the affairs will be managed by the Managing Committee of A.P.T.M.A. And petitioner No,1 Hamayun Elahi Sheikh would be its convener. This decision taken by the committee was annulled by the Director, Trade Organization, on 13-1-2000 wherein he after referring to an order of Sindh High Court in Suit No,1346 of 1999 observed that the Resolution passed in the meeting held on 18-10-1999 regarding selection of Hamayun Elahi Sheikh as convener of A.P.T.M.A. Was not in accordance with Memorandum and Articles of Association of A.P.T.M.A. And, therefore, the same stood cancelled. This order of Director, Trade Organization has been challenged through this petition having been filed by 10 Members of the Managing Committee.
3. Mr. Ali Sibtain Fazli, Advocate, learned counsel for the petitioner has argued that the impugned order of the Director, Trade Organization cancelling the Resolution passed by the Managing Committee is wholly void inasmuch as the petitioners were not afforded any opportunity of being heard. The second contention raised by the learned counsel for the petitioner is that the Director, Trade Organization has misdirected himself in observing that the Resolution, dated 18-10-1999 was not in accordance with the Memorandum and Articles of Association of A.P.T.M.A. Inasmuch as according to Article 54 of the Articles of Association of petitioner No,11 after the expiry of the tenure, the Chairman, shall automatically cease to hold the office and has to hand over the charge of the office to the Managing Committee if the election is not held. In the submission of the learned counsel there was no justification for the Director, Trade Organization to direct that the affairs of the Association be taken over by the Vice-Chairman.
4. Kh. Saeed-uz-Zafar, learned Deputy Attorney-General has raised a preliminary objection as to the maintainability of this petition on the ground that the petitioners have an equally efficacious relief available to them in the form of appeal to the Federal Government under section 15 of the Trade Organizations Ordinance, 1961 and as such this Constitutional petition is not maintainable. It was further, argued by the learned Deputy Attorney-General and Mr. Tariq Shamim, Advocate, learned counsel for respondent No,3 that there was no power vesting in the Managing Committee to have appointed a Convener to take over the affairs of the Association and the Resolution was violative of the provisions of Memorandum and Articles of association and was, therefore, rightly cancelled by the Director, Trade Organization.
5. It is by now well-settled that no action detrimental to the interest of any person can be taken by a statutory functionary except after allowing him an opportunity of being heard which is the minimum requirement of natural justice. On this ground alone decision of Director, Trade Organization is liable to be struck down.
6. There is also force in the contention of the learned counsel for the petitioners that in case where the tenure of the Chairman has expired and a new Chairman is not elected under Article 54 of Memorandum and Articles of Association, it is the Managing Committee which has to take over the affairs of the Trade Organization and not the. Vice-Chairman as directed by the Director, Trade Organization. Article 54 reads as under:-- "54(i). On the expiry of fixed tenure period the Chairman will automatically cease to be the Chairman" and will hand over the charge of his office to the newly elected Chairman or to the Managing Committee if the elections have not been held."
7. Faced with this situation learned Deputy Attroney-General and learned counsel for respondent No,3 have argued that at least to the extent of appointing a convener the Resolution was ultra vires the Memorandum and Articles of Association. This position is not contested by the learned counsel for the petitioners who says that Hamayun Elahi Sheikh petitioner No,[ has since resigned as a convener.
8. It follows that in absence of fresh election to the office of Chairman the control of Trade Organization vests in the Managing Committee which is obliged to hold elections immediately. The observation of the Director, Trade Organization that the Resolution, dated 18-10-1999 is in conflict with the Memorandum and Articles of Association is not correct except to the extent of the appointment of convener which is no more a live issue in view of resignation of Hamayun Elahi Sheikh.
9. So far as the preliminary objection raised by the learned Deputy Attroney-General and learned counsel for the respondent is concerned the same does not deserve any serious consideration inasmuch as it stands demonstrated on the record that the impugned order is contrary to the provisions of law as also natural justice. In such circumstances, it is not necessary for the petitioner to invoke the alternative remedy provided by law. Furthermore, the remedy of appeal in the present case appears to be illusory.
' As a result of what has been stated above, this petition is allowed to the extent that order, dated 13-1-2000 cancelling the Resolution, dated 18-10-1999 to the extent of denuding the Managing Committee of its power under Article 54 of the Memorandum and Articles of Association is declared to be without lawful authority and of no legal effect. The Managing Committee shall proceed to hold the elections to the office of Chairman within two weeks from today.