2013 M L D 569
[Balochistan]
Before Mrs. Syeda Tahira Safdar, J
IRFAN BASHIR ---Petitioner
Versus
SINGER PAKISTAN LTD. and 3 others ---Respondents2012 C L D 802
[Balochistan]
Before Mrs. Syeda Tahira Safdar, J
SHAH WALI and 6 others ---Appellants
versus
QUETTA CHAMBER OF COMMERCE
AND INDUSTRY and 17 others ---Respondents
Civil Appeal No.3 of 2010, decided on 16th January, 2012.
(a) Trade Organizations Ordinance (XLIX of 2009) ---
----S. 21(4) ---Limitation Act (IX of 1908), S. 5 ---High Court appeal ---Delay ---Condonation
of---Appellants challenged order of Authority dated 29 -12-2009 through appeal to the
High Court filed on 25 -2-2010 with a delay of 28 days ---Contention of appellants was that
copy of order dated 29 -12-2009 was supplied to them two days prior to the filing of present
appeal, and that the officials of the Authority with mala fide intention adopted an adverse
attitude towards them and the delay in filing of present appeal was neither intentional nor
deliberate ---Validity ---Order was made by the Authority on 29 -12-2009 marked in the name
of one of the appellants, but there was no endorsement a s to when said order was served on
him---Time of service was most important because period of limitation had to be counted
from the date of service; which was missing ---High Court, while keeping in view such
circumstances, condoned the delay in filing of t he appeal.
(b) Trade Organizations Ordinance (XLIX of 2009) ---
----Ss. 14(3), 21(2) & 21(4) ---Appeals in matters relating to the electoral process before the
conduct of an election ---Powers of the Director -General Trade Organizations ---Scope ---
Appellan ts had preferred an appeal before the Authority challenging order of Director -
General Trade Organizations that was dismissed as being not maintainable on technical
grounds ---Said order of Authority was assailed in the present appeal ---Validity ---Director -
General of Trade Organizations was the final forum of appeals in matters relating to the
electoral process before conduct of the election ---Perusal of application filed by appellants
before Director -General Trade Organizations reveals that it was filed with the subject
"Cancellation of illegal schedule of forthcoming election of Chamber of Commerce Quetta" --
-Said application was proceeded with and decided by the Director -General Trade
Organizations ---Grievance of appellants was in respect of matter pertainin g to the electoral
process, and that too, before the conduct of the election, which was decided by the Director -
General of the Trade Organizations being the competent Authority ---According to S.14(3) of
the Trade Organizations Ordinance, 2009, no further a ppeal lay to the Federal Government
under S.21 of the said Ordinance ---Authority rightly refused the appeal as being not
maintainable and there was no illegality in the impugned order ---Appeal was dismissed by
High Court, in circumstances.
Kamran Murtaz a for Appellant.
Malik Sikandar, Deputy Attorney -General for Respondents Nos.1 and 3.
Baz Muhammad Kakar for Respondents Nos.4 to 18.
Date of hearing: 28th June, 2011.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---This appeal has been filed under provi sions of
section 21(4) of the Trade Organizations Ordinance, 2009, (hereinafter referred to as
Ordinance 2009), whereby the appellants have challenged orders dated 14th September,
2009, and 29th December, 2009 being made by the Authorities contrary to law. It was
contention of the appellants that it was an admitted position that there was violation of law on
the part of respondent No.1, but the required action was not taken by the Authority, while the
decision of the Director General was also not honored. F urther, none of the respondents filed
any appeal against the order dated 14th September, 2009, which amounts to acceptance of the
decision, whereby the respondent No.1 was found guilty of the violation of law. Furthermore,
in compliance of the order member ship was not granted to the appellants Nos.3 to 7,
therefore, in the circumstances the election cannot be held, nor names of the office bearers
can be announced. It was further contended that forgery was committed by the respondents in
preparation of the v oters' list, whereby false names, false Identity Cards Numbers, and
National Tax Numbers were mentioned, which even do not pertain to this Province.
Therefore, in view of improper voters' list coupled with the fact that respondents Nos.4 to 18
have not yet completed their tenure of two years, therefore, the elections are illegal, and not
maintainable. It was also contended that the applications submitted by the appellants were
required to be disposed of either way by respondents Nos.1, 2 and 3, but they fai led to do so.
It has been prayed that order dated 14th September, 2009, and 29th December, 2009 be
modified, and election of respondents Nos.4 to 18 as office bearers of respondent No.1 be
declared illegal, unlawful without any authority, therefore, be set aside with further prayer
that respondent No.1 be directed, and bound down to run its affairs in accordance with law,
and rules.
2. The learned counsel for the appellants while arguing the matter was of the view that the
orders of the Authorities were m ade in violation of relevant provisions of law. He referred to
section 7(f) of the Trade Organizations Ordinance, 2009, with further reference to section
10(4) and (5) of the Ordinance. He also referred to section 21 of the Ordinance 2009. It was
his conte ntion that due to span of time if the whole relief claimed cannot be granted, even
then the appellants are entitled for a lesser relief. In reply to his arguments the learned Deputy
Attorney -General contended that appeal filed before the court is time barr ed, as the provided
period for filing an appeal is only thirty (30) days, but present appeal has been filed after
provided period. It was further his argument that the persons, who were holding office at the
time of filing of the appeal are no more on thei r seats, as their tenure had already been
expired. Therefore, in the circumstances no cause of action subsists, therefore, the appeal at
present is not entertainable as become infructuous. The learned counsel for respondent No.1
while arguing his case was of the view that in departmental appeal filed by the appellants the
relief was only sought to the extent of forth coming election, which was granted by the
Departmental Authority, and thereafter, two elections were held, therefore, in present appeal
no far ther relief can be claimed. He also referred to section 21(1) of the Ordinance and Rules
23(12) and (13) of the Trade Organization Rules 2007. It was his further argument that in
basic appeal the respondents Nos.4 to 18 were not party. The learned counsel for respondent
No.1 was also of the view that at present the appeal has become infructuous. While replying
to the arguments of the learned counsel for the respondents it was contention of the
learned counsel for the appellants that they hav e already filed an application for
condonation of delay, which has not been controverted by the respondents. It was
further his argument that the tenure of Executive Committee is two years, which was not
lapsed at time of filing of the appeal.
3. As far as filing of present appeal beyond provided period is concerned. According to
section 21 of the Ordinance 2009 the appeal is to be preferred within thirty days from the
order or decision. The appellants have challenged order dated 29th Decembe r, 2009, but filed
instant appeal on 25 -2-2010 with a delay of 28 days. The application submitted under section
5 of the Limitation Act 1908 was with the contention that on 19th November, 2009 they were
verbally told that their appeal is not maintainable, but no copy was supplied to them despite
efforts, rather two days before filing of this appeal copy of the order dated 29th December,
2009 was supplied to them. It was contention of the appellants that the official respondents,
with mala fide intention, ad opted an attitude adverse to them, and delay in filing of instant
appeal is neither intentional, nor deliberate. Though there is nothing on record to establish the
contention of the appellant, but it is to be observed that the order was nade by the Authori ty
on 29th December, 2009 marked in the name of the Shah Wali, appellant No.1, but there is
no endorsement to the effect that when the order was served on him. The time of service is
most important, because period of limitation is to be counted from the da te of service, which
is missing. Therefore, keeping in view the circumstances the delay in filing of the instant
appeal is hereby condoned.
4. Before going into merits of the case, the maintainability of the appeal is to be considered at
first instance. Through instant appeal the appellants have challenged order dated 14th
September, 2009 made by Director -General, i.e. order in original. Being unsatisfied with the
order appeal was preferred, which was decided by the Authority through order dated 29th
Dece mber, 2009, whereby it was held that "as per section 14(3)(e) of Trade Organizations
Ordinance 2007, the decision of Director -General Trade Organization vide Order No.21 of
2009 dated 14 -9-2009 is final, and hence the appeal referred to above filed before Federal
Government i.e. Secretary Commerce is not entertainable/maintainable on technical
grounds." The Appellate Authority decided the appeal under the provisions of Trade
Organizations Ordinance 2007, but instant appeal has been filed under the provision s of
Trade Organizations Ordinance 2009. It is to be noted that according to subsection (4) of
section 1 of the Ordinance 2009, "it shall come into force at once and shall be deemed to have
been taken effect on and from the 14th December, 2007." In view of the same at the time
when appellate authority i.e. Federal Government passed the order the Ordinance of
2009 was in field. But the order was made under provisions of Ordinance 2007. The
Authority has made an error. But it is observ ed that section 14(3)(e) of both the Ordinances
are of similar effect, with no major difference. Therefore, due to this mistake no right of the
appellants was in fact affected.
5. Instant appeal has been filed under provisions of section 21 of the Trade Organizations
Ordinance 2009, which reads as under: --
"21. Appeal. ---(1) Any person or trade organization aggrieved by any decision or order of
the administrator may, within fourteen days of communication of such decision or order,
prefer an appeal to th e Director -General.
(2) Any person or trade organization aggrieved by any decision or order of the Director -
General may within fourteen days of communication of such decision or order, prefer
an appeal to the Federal Government whose decis ion, subject to subsection (4) shall be
final.
(3) On appeal under subsection (1) the Director -General or, as the case may be, the Federal
Government may suspend the operation or execution of the decision or order appealed
against until the disposal of s uch appeal.
(4) Any person aggrieved by the final order or decision of the Federal Government involving
a question of law may, within thirty days of such order or decision, prefer appeal to the High
Court."
Subsection (4) specified that only quest ion of law can be challenged in the appeal
before this Court, while section 14(3) (e) of the Ordinance, 2009 speaks as under: --
"14(3) 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
generality of the foregoing provisions, the Director -General shall exercise the powers to --
14(3)(e) act as a final forum of appeals against the decisions of any person, committee or
office -hearers of a trade organization in matters relating to electoral process before the
conduct of election; and"
While section 14(3)(e) of the Ordinance 2007 reads as under: --
"14(3)(e) act as a final forum of appeals against the decisions of any person, com mittee or
office -bearers of a trade organization in matters relating to electoral process before the
conduct of election; and"
According to this provision the Director -General is the final forum of appeals in matters
relating to the electoral process bef ore conduct of the election. The perusal of the appeal filed
before Director General Trade Organization, Islamabad reveals that it was filed with the
subject "Cancellation of illegal schedule of forthcoming election of Chamber of Commerce
Quetta" with the prayer: --
"It is, therefore, requested a strict action may kindly be taken against the responsible for
conducting illegal proceedings regarding forthcoming election and the proceedings so far
conducted regarding forthcoming election be declared null & vo id and directions be issued
for announcing the election schedule in accordance with law whereby all the members who
are eligible be allowed to contest the election."
6. This application was proceeded with, and thereby decided by Director -General through
order dated 14th September, 2009. The grievance of the appellants was in respect of the
matter pertaining to the electoral process, and that too, before conduct of the election, which
was decided by the Director -General being the competent Authority. Accor ding to the
relevant provision no further appeal lies to the Federal Government under section 21 of the
Ordinance 2009. The authority rightly refused the appeal being not maintainable. There is no
illegality in the order.
In view of above discussion, the appellants have failed to make out a case in their favour;
therefore, the appeal is hereby dismissed being without merits.
No orders as to costs.
K.M.Z./8 -Q Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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