ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
Suit No.252 of 2013
Dr. Muhammad Iqbal & others
versus
Pakistan Medical Association (Centre)
|
Date |
Order with signature of Judge |
1. CMA NO.2456/13
2. CMA No. 2457/13
3. CMA No. 3765/13
Date of hearing 12.12.2013:
Mr. Akhtar Hussain along with Mr. Muhammad Masaud Ghani, Advocates for the plaintiff.
Mr. Hyder Waheed Advocate along with Mr. Zeeshan Adhi Advocate for defendant.
-.-.-
Muhammad Shafi Siddiqui, J.- Through the applications listed at serial No.1 and 2 the plaintiffs have sought restraining orders against the defendant from holding biennial meeting conference and elections for the year 2013-2014 and orders for preparation of fresh electoral list after including the Council members and delegates of the plaintiffs branches in the electoral list while the defendant through the application listed at serial No.3 sought rejection of plaint.
It is the case of the plaintiffs that plaintiff No.1 is elected member of Executive Committee of PMA Tando Muhammad Khan, Plaintiff No.2 is a member of PMA Hala and is duly elected General Secretary, plaintiff No.3 is a member of PMA Tando Adam/Khipro and its duly elected General Secretary and plaintiff No.4 is member of PMA Hyderabad and also its duly elected General Secretary whereas plaintiffs No. 5 to 8 are the branches of Pakistan Medical Association such as Tando Muhammad Khan, Hala, Tando Adam/Khipro and Hyderabad. It is the case of the plaintiff that under articles, memorandum of association and bye-laws of Pakistan Medical Association (Centre) hereinafter referred to as “PMAC” the Provincial branches so also the district branches allowed to have their own articles, memorandum of association and bye-laws such as Sindh Provincial Branch PMA(Sindh) has its own articles, memorandum of association and bye-laws so also plaintiff No.5,6,7 & 8 are following the articles, bye-laws and rules of PMA Sindh. The elections of Pakistan Medical Association (Centre) are held in biennial conference as prescribed under articles, memorandum of association and bye-laws and the electoral list include Central Council members and delegates elected from various branches on the basis of membership of each branch and the formula given thereunder. It appears that the biennial conference of PMAC for the purposes of election was to be held by the end of November 2012 in Quetta and a circular/Notice was also issued by the PMAC, however the same was postponed and is to be held in the month of January 2014 as stated by defendant’s Counsel during the course of his arguments.
Learned Counsel for the plaintiff submits that in pursuance of such biennial conference the plaintiffs No.5 to 8 got their elections held in general body meeting and the list of duly elected council members/ delegates were accordingly prepared and sent to the defendant. He submits that a Suit bearing No. 1454/2012 was filed against the defendant PMAC wherein interim orders were passed and certain directions with regard to the holding of General Body Meeting of Pakistan Medical Association, Karachi to elect delegates and voting for such delegates by office bearers of PMAC were given. Thus defendant i.e. PMAC was allowed to hold elections in conference subject to the directions given in the order.
It is contended by the learned Counsel for the plaintiffs that they (branches) got their elections held in respective General Body meeting and lists of elected council members and delegates were accordingly sent to defendant with required payment. However, they came to know during the proceeding of Suit No.1454 of 2012 that their names have not been included in the electoral list. Learned Counsel for the plaintiff has taken me to the various documents to establish that plaintiffs No. 5 to 8 sent the names of their councillors and delegates along with a fee as required.
First of such document is available as annexure P/5 in respect of district branches such as Tando Muhammad Khan. The other districts associations such as Hala also allegedly sent the names of their councillors as well as delegates. The courier receipts dated 29.9.2012 and the challan duly paid on 16.10.2012 is also attached as annexures P/2 and P/3. The next document is the letter of district Tando Adam dated 21.9.2012 whereas the list of district branch Khipro is separately attached as annexure P-7/1. The amount of challan of Rs.420/- is also attached and allegedly sent through OCS courier on 30.9.2012. Lastly learned Counsel for the plaintiff has provided the list of PMA Hyderabad which contains 122 delegates and 7 central councillors which was also sent through OCS Courier on 29.9.2012. Learned Counsel for the plaintiff submits that the electoral list of the central councillors and delegates sent by the defendant i.e. PMA Centre does not include the names of three branches i.e. 5, 6, & 7 and that the names of the central councillors/delegates of Hyderabad were fake and prepared on the whims of some office bearers of PMA Sindh. Learned Counsel for the plaintiff submits that the defendant had postponed the elections indefinitely which is against the constitution, bye-laws and rules, hence this suit is filed along with application for interim measures so that the election process may not be derailed and should not be decided on the basis of fake electoral list. Learned Counsel for the plaintiff submits that the list of the central council sent by PMA Sindh including name of Dr. Manzoor who was secretary of PMA (Sindh) was never the secretary of PMA Hyderabad and was not under the obligation or authorized either to send list of central councillors or to be included in the list.
On the other hand learned Counsel for the defendant submitted that the suit is not maintainable as the plaintiffs No.5 to 8 does not enjoy any legal status and it is only the defendant i.e. PMAC who is a creation of constitution and none else. Learned Counsel for the defendant further submitted that plaintiffs No. 5 to 8 have not established their status as they have not provided any board resolution which authorised them to initiate such legal proceedings. Learned Counsel for the defendant further submitted that the documents filed in support of the arguments that the list of such central councillors and delegates were sent to the PMA Centre itself is doubtful and dubious, hence the defendant denied that the plaintiffs No.5 to 7 are the registered branches of PMA Centre and at the most these are the applications for registration of branches and for paying the amount due from such persons. He submitted that even otherwise the persons who have signed documents of plaintiffs No. 5 to 7 are not authorized nor any document is attached therewith. Learned Counsel for the defendant with regard to the plaintiff No.8 submitted that the person purportedly signing on behalf of plaintiff No.8 has no authority and authorized office bearer is Dr. Peer Manzoor. Learned Counsel further submitted that the list of delegates i.e. central councillors only of PMA Hyderabad is included in the electoral list sent by Dr. Peer Manzoor. He further added that no elections for the delegates were held in plaintiffs No. 5 to 8 and therefore, unless elections are held the same could not be said to be delegates and councillors of respective branches for the election. Learned Counsel for the defendant further added that the deadline for sending delegates/central councillors was 30.10.2012 and purported lists were allegedly sent much thereafter. He further added that the plaintiffs failed to comply with provisions of bye-laws of PMAC and failed to submit their delegates within stipulated time. He submitted that the procedure to form a local branch is detailed in bylaw-15 of PMA Centre which prescribes minimum of 10 persons which were eligible members of association. Learned Counsel further submitted that the local branches have to comply with requirements strictly before they induct members. Learned Counsel for the defendant further submitted that the local branches i.e. 5 to 7 have never been formed in accordance with the constitution and bye-laws and as such not entitled to send the names of their councillors and delegates. Learned Counsel further added that the names of councillors of district Hyderabad have already been included and these names cannot be struck off since their names were to be forwarded by them, hence he added that the plaintiff has not shown a prima facie case for any interim orders in the suit.
Heard the learned Counsels and perused the record.
The object is two folded. Point No.1 is, as to how and in what manner a new district branch could be created and secondly as to how said branch could loop itself to participate in the biennial conference to take part in the elections and how and in what manner the names of the central councillors and delegates were to be sent to defendant. Point No.1 has arisen as the status of plaintiff nos. 5 to 7 is seriously challenged. In order to understand the formation of new district branches and preparation of the list of central councillors and delegates, let first see relevant articles, bye-laws and the constitution of PMA Centre. The first and foremost article is article-4 which provides as under:-
“4. For better attainment of the objects of the Association, the local member’s of different cities, towns & districts as the case may be shall form themselves into separate local bodies called as Branches.
(a) The Branches of each Province in Pakistan will be grouped together and be under respective Provincial Branches of the “Pakistan Medical Association with their headquarters in their respective administrative capitals, or decided otherwise by the General Body of respective provincial units.
(b) Any Branch formed outside Pakistan shall be under the Pakistan Medical Association (Centre) but Members of that Branch will have no voting rights.
(c) The Pakistan Medical Association shall recognize properly established Provincial Branches as its Constituent Units.
(i) Provincial Branches shall be independent of each other and shall be governed by the respective Provincial Councils. They will deal with all the matters of the Association at the Provincial level.
(ii) Branches will deal with local matters and refer all other matters to the Provincial Branch to which it belongs and be guided in all matters by the Provincial Branches.
(iii) Subject to the Rules, Regulations and Bye-laws of the Association, the Branches shall be autonomous as far as their management is concerned. They can frame their own Bye-laws and after the Rules and Regulations, if necessary, to suit the local conditions subject to the approval of the Provincial Councils. They shall not come into operation unless approved by the Provincial Councils. Provincial Branch will be responsible to the Central Council.
(iv) The Pakistan Medical Association shall not liable for any of the debts or liabilities of any of its Branches.”
This article in addition has also provided legal status of branches which has been challenged by defendant.
This article substantially provides that PMAC shall recognize properly established provincial branches as its constituent units. Thus the registered association i.e. PMA Centre which has forwarded its roots to the provincial and district branches carrying the legal status and hence it cannot be thrown out on the reasoning that the said provincial branch or district branches are not an independent body and/or not registered independently. In terms of this article the branches shall be autonomous as far as their management is concerned. Under the constitution of Pakistan Medical Association all such branches including plaintiff have been recognized as the constituent units of Pakistan Medical Association and hence forms a formidable unit and active limb of PMA Centre. In addition to above, four individuals i.e. plaintiffs No.1 to 4 claiming themselves to be office bearers of plaintiffs No. 5 to 8 have initiated proceedings who have an independent legal character associated with their district branches and hence the plaint cannot be rejected U/O 7 Rule 11 CPC. Even if plaintiffs No.5 to 7 are not registered branches though explained above, the plaint cannot be rejected in piecemeal as defendant No.8 admittedly a registered and affiliated branch. The answer to the preliminary objection that plaintiffs cannot maintain this suit is available in this Article hence I proceed further in order to determine formation of branches and rights and obligations of the plaintiffs and the defendant viz-a-viz their role in the electoral list and taking part in the biennial conference and to cast vote in the upcoming elections.
Article 5 of PMAC provides qualification for the members. This article has a significant role in the formation of district branch and scrutiny of its members.
Article 14-A provides the composition of central councillors which are as under:-
“14-A. The Central Council
(a) The Central Council which shall be composed of the following:-
(i) Office-bearers (elected by the General Assembly or otherwise as per Article 16 Mentioned hereinafter).
(ii) Elected Branch Representatives, with the approval of Provincial Branches.
(iii) The Presidents & Secretaries of all the Provincial branches shall be the members of the Central Council by dint of holding their respective offices.
(b) Representatives from Provincial Branches and from
Direct Members shall be on the following basis:-
(i) 10-50 members …………….. One representative.
(ii) 51-100 members …………….. One additional representative
(iii) Over 100 one additional representative for every 100 members or part thereof.
In determining the representation of the Branches to the Central Council the strength of the Provincial Branches shall be calculated Branch-wise on the number of members on the Register of the Provincial Branches. Complete list of Councillors as defined above shall reach the Central Office in time.
In case of casual vacancies in the representation of the Branches, the Branches will send new names as replacement.”
Article 15 provides the functions and powers of PMA Centre. Article 15(e) provides as under:-
“15. Functions and Powers
The control and management of the affairs of the Association shall be vested in the central Council. The Central Council shall direct, regulate and administer the general affairs of the Association in accordance with the Memorandum, Articles of Association and Bye-laws. It shall be the duty of the Central Council to execute any resolutions passed by the General Assembly. It shall ordinary meet at least once in every four months. The Central Council shall have powers.
(a) ------------------------------------------------
(b) ------------------------------------------------
(c) ------------------------------------------------
(d) ------------------------------------------------
(e) To consider and decide application for affiliation of Branches as recommended by the Provincial Branches and the question of taking disciplinary action against any member or Branch in consultation with the respective Branch and Provincial Branches.”
Byelaw 15 pertains to formation of branches, the same is reproduced as under:-
“15. Formation of Branches
Local Branches:
(a) A minimum of 10 (ten) persons, who are eligible to be members of the Association as per Article 5 (Part II) and who reside, practice or are employed in a place or the neighbourhood may form themselves into a local Branch of the Association by a resolution passed at a General Meeting of such persons, convened for the purpose. The resolution with the names of the Office-bearers of the new Branch and the duly filled and signed Membership Application Forms and Provincial and Central Fund Contribution as per Bye-laws shall be sent directly to the Provincial Office with a copy to the Central Office.
(b) Local Branches shall submit to the Central and Journal Offices through the Provincial Branch a Six Monthly Return of the members on their rolls by the 31st January of each year together with a list of defaulters, a list of new members and a list of members who have left the Branches with their new addresses, along with a report of the activities of the Branches.
(c) Local Branches subsequently recognized by the Central Council in the Jurisdiction of a Provincial Branch shall become constituent members of such a Provincial Branch.”
Byelaw 16 of PMAC provides terms of office, which is reproduced as under:-
“16. Terms of Office:
(a) The Central Council is a continuing body.
(b) The Biennial Meeting of the Central Council shall finish its transaction before the inauguration of Pakistan Medical Conference.
(c) The President-elect shall assume the office of the President for the First Day of the Pakistan Medical Conference.
(d) Only those representatives of the Branches whose names are on the list of the Concillors maintained at the Central Office at least six weeks before the date of the ensuing Meeting of the Central Council shall be entitled to attend it and only those who attended the Biennial Meeting of the Central Council held during the Session of the Pakistan Medical Conference.
(e) Special Representative, may be elected or selected, whenever deemed necessary by the Central Council.
(f) Except in the case of President and President-elect, all other casual vacancies of the office-bearers will be filled in by the Central Council.”
Byelaw 23 pertains to powers and functions of the Central Council, which is reproduced as under:-
“23. Powers and Functions of the Central Council
The Central Council shall be the Executive Authority and as such shall have the powers to carry into effect the policy and programmes of the Association as laid down by the General Assembly and shall remain responsible thereto. The Central Council shall have the right:
(a) To fill the casual vacancies of the Office bearers (except the President and President-elect) from the members.
(b) To make regulations and issue instructions for the proper working of the Association and for the maintenance and administration of the Association Rooms, Library and Properties and for the organization and maintenance of its publications.
(c) To appoint Committees, Sub-committees, Ad-hoc sub-committees and Standing Committees, as and when necessary.
(d) To represent any matter in which they consider the interests of the Association or the medical profession are affected, before Government or other public bodies or any properly constituted authority.
(e) To consider and decide applications for membership, resignation of members, suspension of members or Branches and the question of taking such disciplinary action as it may deem fit against any member or Branch for misconduct, wilful neglect or default.
(f) To write off the whole or part of the unrealizable arrears of subscription of members, or Central Fund “Contribution from Provincial Branch/Branches or other outstanding dues of the Association or its Journal, if considered desirable.
(g) To appoint or remove salaries officers and servants of the Association.
(h) To fix up the rates of Travelling Allowance to be paid to the Office-bearers of the Association and its Journal and the Members of the Central Council, and other committees, Ad-hoc Subcommittees and Sub-committees.
(i) To consider all matters and make necessary recommendations as far as possible, before these are discussed by the General Body.
(j) Subject to the provisions of Rules, to exercise in addition to the powers expressly given by the Rules and Bye-laws all such powers and do all such acts and things as may be done by the Association.”
Bylaw 48 of the association provides that all members of central council and delegates of various branches of the association shall pool themselves to become delegates to the conference. The formula to elect the delegates of branches is also provided in bylaw-48 which reads as under:-
“48. Delegates to the Biennial Conference, will be
(a) All members of the Central Council and
(b) The various Branches of the Association shall send their delegates to the Conference elected by them according to the numerical strength of the Branches in the following manner:
(i) From 5 to 15 Ordinary Members-One Delegate.
(ii) Above that for every 15 or part thereof-one Additional Delegate.
(c) Only the delegates shall have right to vote at the Conference after due identification by PMA Centre through national Identity Card or Identity Card issued by PMA (Centre).
(d) All delegates will be elected by the respective branches and the branch secretaries have to get their names registered with PMA (Centre) one month before the Conference in order to prepare an electoral list.”
The perusal of the above articles and bye-laws provide answer to both the questions, referred to above. The formation of new branch and its affiliation is governed by bye-law 15 and Article 15. Minimum of 10 persons “eligible” (emphasis added) could form an association who resides and practice or employed in a place or neighbourhood may form themselves into a local branch after passing resolution. The emphasise was made that the resolution with the names of the office bearers of the new branch and the duly filled and signed membership application forms and provincial and central funds contribution as per bye-laws shall be sent directly to the provincial office i.e. provincial branch with a copy to the Central office. Now one thing is clear that the immediate office to scrutinise the eligibility is the provincial office and it is to be routed from the provincial branch. The reason being that the members of such branch and their interest to get the branch registered has to pass the criteria and test prescribed in Article 5 of Part II of Pakistan Medial Association (Central) as I stated above. The case of the plaintiff is that plaintiffs No.5, 6 and 7 sent the names of their central councils and delegates on or about 29.09.2012 i.e. one month and two days before deadline. The important fact herein that plaintiffs No. 5 to 7 have not established themselves to be a branch affiliated/registered with PMAC and/or PMA Sindh and plaintiff No.5 in fact prayed in his application for registration of their branch. (It may however be clarified that registration and/or affiliation with PMAC or PMA Sindh is different from independent registration as claimed by defendants). Neither any previous electoral list which could establish that their branches were in affiliation and existence have been filed nor these applications were sent to the provincial office i.e. PMA Sindh so that the members eligibility could be scrutinized by the provincial office on the touchstone of Article 5 Part II.
Article 15(e) of the PMA (Central) also provides that on the recommendation of the provincial branch, the central council shall have the powers to consider and decide the application for affiliation of branches as recommended by the provincial branches etc. More importantly the PMA Hala has sent the minutes of their meeting on 06.09.2012 wherein 24 names of the members were finalized for delegates in the biennial conference Quetta and it was sent through OCS, Courier service on 29.09.2012 whereas the challan of the requisite fee for their members was deposited in the National Bank of Pakistan on 16.10.2012, therefore, it is not conceivable as to how the letter was sent on 29.09.2012 despite the fact that the amount of the fee for the delegates of PMA Hala was deposited on 16.10.2012. Similarly in terms of Article 6 of the constitution of PMA Sindh the formation of new branches shall be forwarded to Provincial Council along with names of office bearers of new branch who shall after consideration of the application informed “of such formation”, to the central and the local branch. This article 6 of the constitution of PMA Sindh also provides that the local branch granted recommendation of the provincial council shall be the constituent of the provincial branch and shall have a right to send provincial councillors to participate in the provincial council according to the ratio. Thus as far as their (district branch) right to the provincial branch in sending the provincial councillors are concerned, the prerogative is with provincial branch for its recommendation whereas in terms of Article 15(e) their affiliation with PMAC is to be considered by PMAC on the recommendation of provincial branches. In the instant case neither provincial branch nor the PMAC has shown any affiliation with the province or with the centre respectively. In fact the plaintiffs have not even sent such application to provincial branch which is basic requirement for scrutiny before PMA Sindh could recommend for its affiliation with PMAC.
Thus, it appears that at least for the purpose of the upcoming elections of PMA (Central) the plaintiffs No.5, 6 and 7 have not qualified themselves to participate in the election.
Now as far as PMA Hyderabad is concerned the defendants, do not dispute that it is not a registered/affiliated branch of PMA as has been objected to by the defendants as far as other plaintiffs i.e. plaintiff No.5 to 7 are concerned, therefore, the question of its registration and affiliation with the provincial office and PMA Centre does not arise. The question remains as to whether PMA Hyderabad has sent the names of their central councillors and delegates in accordance with law.
As far as Central Councillor and delegates of PMA Hyderabad are concerned, the plaintiffs have filed copy of general body meeting of PMA Hyderabad which provides that the said Branch in pursuance of general body meeting have sent names of their Central Councillors and delegates. The objection taken by learned counsel for the defendant in this regard in terms of para-15 of counter affidavit was that the list of delegates does not subscribe to the procedure laid down in Bye-law No.48 as it suggests that the delegates are to be elected and hence on this objection the defendant has not considered the list and in fact considered the list of central councillors sent by Dr. Peer Manzoor. It is also very important fact that the plaintiffs’ counsel has seriously objected that Dr. Peer Manzoor has no role to play as far as PMA Hyderabad is concerned as he was only alleged General Secretary of PMA Sindh. Apparently Dr. Peer Manzoor only appears to be the General Secretary of PMA Sindh as reflected in his own documents at Page 351, Annexure B to counter-affidavit and hence does not qualify to send the list of delegates of PMA Hyderabad which is the sole prerogative of Secretary in terms of bylaw 48(d).
Bye-law 48(d) provides that all delegates will be elected by the respective branches and the Branch Secretaries have to get their names registered with PMAC one month before the conference in order to prepare an electoral list. It appears that such exercise has been carried out by PMA Hyderabad and Dr. Muhammad Waseem Shaikh, the Honorary General Secretary, has provided the list. The only controversy that needs to be resolved is that of Annexure P/8, which is the letter of PMA Hyderabad concerning their general body meeting wherein they have decided the names of the delegates. In order to resolve such controversy I have gone through the relevant articles and bye-laws of the Association. Sending names of delegates of a branch in pursuance of relevant bye-laws are only the prerogative of concerned branch and as far as any decision taken in the general body meeting of PMA Sindh is concerned, it carries no role in the branch decision concerning delegates. PMA Sindh could only forward list of the delegates provided by the concerned branch. It is important to note that as far as General Body Meeting of PMA Hyderabad is concerned, it has not been objected by any member of PMA Hyderabad that the delegates of PMA Hyderabad were not elected. It was only PMAC which claims that the list of Hyderabad delegates was not sent. Now if anybody who could have a valid objection as far as “election of delegates” are concerned that could be a member or members of PMA Hyderabad, certainly not PMAC or PMA Sindh. None of the members of PMA Hyderabad has objected to the process of sending names of delegates of PMA Hyderabad so it does not lie in the mouth of defendants to object to such list of delegates (as far as election is concerned) when they themselves have no role in the process of sending list of delegates. Importantly in electoral list the names of delegates from Hyderabad Branch have not been included and it was only central councillors who have been inducted. Byelaw 48 speaks for election of delegates and for sending its name by General Secretary of that particular branch.
The decision was taken in the general body meeting of PMA Hyderabad. As stated above, it has not been objected by any member of PMA Hyderabad that the delegates of PMA Hyderabad were not elected.
The process of election would come into play only when the number of candidates’ desirous of being elected exceeds the maximum number of delegates to be appointed in terms of the formula. It is no body’s case that despite other candidates’ desirous of being elected have not been allowed to contest. Since none of the member of PMA Hyderabad has come forward therefore, it appears that it was a unanimous decision of PMA Hyderabad to send the names of such candidates as mentioned in their list and hence unanimous decision is in fact substantial compliance of byelaw 48(d) in view of the facts and circumstances of the case.
In view of the above, I decide the applications at Sr. No.1 and 2 as under:-
1. The PMAC may continue with their elections as they intend to held it within a short period of time as agreed.
2. The list of the delegates provided by the Honorary General Secretary of PMA Hyderabad pursuant to General Body Meeting dated 22.9.2012 shall be included in the electoral list of PMAC.
3. As far as the list of central councillors (which are 13 in number) available in the electoral list at page 315 and also available in the list of central councillors at page 351, sent by Dr. Peer Manzoor is concerned, since they are not before me therefore, and also for the reason that counsel have not addressed on point as to who are the lawful “central councillors” pursuant to their office holding to be considered as delegates in terms of Article 14-A and 16 of PMAC, as an interim measure, I allow them to take part in the upcoming elections, however they shall cast their vote separately and be kept separately and their eligibility to cast vote as being central councillors shall be determined subsequently soon after elections so that the election process may not be derailed. Similarly the votes of the “central councillors” from the list sent by General Secretary PMA Hyderabad which are seven in number be also kept separately and will be decided subsequently.
4. The plaintiffs No. 5 to 7 have not established to be affiliated with PMAS and/ or PMAC, therefore, for the upcoming election they do not qualify to participate in the election for 2013-14.
Applications at Sr. No.1 and 2 (CMA Nos.2456 and 2457 of 2013) are disposed of as above while application at Sr. No.3 (CMA No.3765 of 2013) is dismissed.
Judge