Zaheer Alam & Others (Petitioner) VS Provincial Asstt: Registrar Joint Stock Co. & Ors (Respondent)

IN THE HIGH COURT OF SINDH, KARACHI

C.P.No.D-1545 OF 2024 Date Order with signature of Judge

Present:

Mr. Justice Aqeel Ahmed Abbasi, C.J.

Mr. Justice Abdul Mobeen Lakho.

Zalaeer Alam & others....... .........petitioners

Versus

Provincial Assistant Registrar & others ...Respondents

Mr.Aamir Zaheer Mirza, Advocate for the Petitioner.

Abdul Mobeen Lakho. J. The petitioners have brought this petition u,ith the following prayers:-

"(I). That this Honorable court may be pleased to set aside and declare the election dated2g-02-2024, illegal and unlawful and may this Honorable courr also declare the notification dated: 04-03-2024, issued by the Respondent No.2 / Election commissioner, illegal, unlawful, regarding successfui candidate of NEDEA Election-2}Z4 -26.

(II). To declare the notification dated 04-03-2024, illegal, unlawful in violation of clause 4, sub-clause (a) of the bye-laws/article, dated: 15- 05-l9g1 of NEDEA Non-gazetted Employees Association.

(III). To direct the Respondents No.I to 3 to delete / struck off the names of the grade 16 employees from electoral list frorn the NEDEA elections.

(IV). To direct the Respondents No.1 to 3 to conduct Re-Elections after excludingideleting the names of grade 16 employees from the electoral list.

(V). To Declare appointment ol Election Commissioner / Respondent No.2 as well as Respondent No.3 i Registrar NED University, illegal unlawful without any lawful authority.

(VI). To declare the acts of Respondent No.5 and 6 not submission of audit repoft and intimation of holding of election 2024 of NEDEA illegal and unlau'ful. "

2.That the Petitioners, employees of the NED University of Engineering and technolog;i have challenged the NEDEA Election-2024 held on 29-02-2023 under tl.re 'q*' sltpervision of Election Commissioner / Respondent (Dr. Muhammad Aslam Bhutto), l

who after conducting the election issue the notification ofsuccessful candidate on 04- 03-2024, whereas, the petitioner No. I submitted an applicati on on 06.02.2024 before Respondent No.l with the following submissions:-

"1. That the NEDEA is registered for electorar votes from 1 grade to 15 and the grades 16 employ'ees have been included in the electoral voting list, almost 160 grade l6 employees

II. That it rvas submitted that the grade 16 employees may be excluded from the electoral list.

III. That the establishment of the NEDEA may be restrained from interfering in the elections.

IV. That the audit report of the last 6 years may be submitted before this Honorable forum and finally direct them to conduct the Election in accordance with the bye-laws registered with the Registrar Joint Stock Companies Sindh, Karachi."

on 23-02-2024 the Respondent No.l (provinciar Assistant Registrar Joint Stock Companies, Sindh, Karachi) passed the following order:-

"As per the aforesaid position, it has clearly been proved that the proper and required documents of intimation of holding elections of the managing committee of every tenure / every year as well as the audit of accounts not been submitted in this office and as such all the acts and activates of the above said association cannot set to be proper and legal therefore any so called election commissioner or any such so called office bearer cannot set to be legal position thus it woutd be appropriate that the general body meetings can be called wherein the Election commissioner or election committee should be constituted lvith the two third majority of the total general body meeting and after holding the free and fair and transparent election of the managing committee i.e. by proving the full chance / opportunify to the registered members either to contest the said election or cast the vote from by every registered member, none can be deprived from the legal / legitimate right after the holding of election, the intimation documents may be submitted according to the attached renewal sheet, which is req*ired to be readout and understand very clearly, the above said instruction / advice must be communicated to all concerned for information and further necessary action accordingly,"

The Election commissioner (Respondent No.2) on 13-02-2024 rejected the application of the Petitioner No. 1 for excluding the BPS- 1 6 ernpioyees from the electorai list on the ground of late submission, however. earlier Respondent No.2 vide order dated:

15.05.2018, passed the order for ieletion of the BpS-i6 employees from trre finar electoral list for NEDEA Elections. It has also been stated that the recounting request of the petitioner u'as also dismissed b1 Rcspondent No.2 which submitted within 24 hours on the ground of time baned. According to the petitioner, the Ex-presidenr and Ex- General Secretary with malafide intention did not submit any audit report to sub-

Registrar Joint Stock Companies, Sindh, Karachi as per the laws, neither nay intimation of holding of elections have been given, hence deliberately they committed illegality to favor the Awam Dost panel with the connivance of Election Commissioner, Registrar NED University.

3.Leamed counsel for the petitioners argued that the impugned elections are liable to be set aside by virtue of Clause 4, sub Clause (a) of by-laws of the Association, in which the participation in election can only be taken by the employees of grade I to 15.

He also referred to the Notification of successful candidate dated 04-03-2024 and argued that the same is not accordance with the law, as the said elections are illegal, unlawful by virtue of orders dated 23-02-2024, issued by the Respondent No.l (Provincial Assistant Registrar, Joint Stock Companies, Sindh, Karachi), wherein, it has been declared that without intimation to this office every election and so called Election commissioner (Respondent No.2) having no legal entity and value. According to learned counsel for the petitioners by virtue order dated 15.05.20218 passed by Respondent No.2 the names of grade l6 employees \l,ere struck off from the electoral Iist and the Registrar of NED university has no authority to appoint Election Commissioner for holding of Election-2O24 without intimating the Sub-Registrar Joint Stock Companies, Sindh, Karachi, therefore, prayed that Election dated 29.02.2024 may be declared as illegal and unlawful.

4.Heard leamed counsel for the petitioners and perused the record with his assistance. In order to resoh,e the subject controversy, the relevant law to this matter is the NED University of Engineering & Technology Act, 1977 ("the Act") which provides intemal mechanism for the disputes taking place within the University.

Likewise, sub-section 1 of Section 21 says thal'where a member has been electecl, appointed or nominated, to any Authority or bodyfor anyfixed terms under this Act.

such term shall unless the date of its commencemenl has been prescribed, be reckoned from the date of tlrc eleclion, oppointment or nomination, as the case may be'. Whereas, section 22 of tlrc Ac,t deals rvith disputes about membership of Authorities. [\i ,- ss The section states as under;

"Ll/hen a dispule arises d any person is eligible to become or continue as member of any Authority, il shdll be referred to a committee consisting of the Vice-Chancellor, the most Senior Dean and the Chief Justice of the Hislr Court of Sind or a Judse of the High Court nominated by him, and ilte decision of such commifiee shall be final.,'

If any dispute arises regarding the election, appointment or nomination of any member to any Authority or body. the dispute has to be referred to the committee as discussed above. In addition to this, section l0 of the Act discretionary power to the chancellor with regard to an inspection or inquiry in respect ol any affair or matter directly or indirectly concemed with the University. It states as under:- "Tlte Chancellor may cause an inspeciiott or inquiry to be made in respecl of direct, eU, and appoint 1["one or more persons ,,in consultation with Governmeil,j to conduct such inspection or enquirs,-,,,

Sections 10 and 22 of the Act provides for internar mechanism and forums for resolution of disputesiissues arising within the University, which would be necessary and appropriate for the petitioner to reach out to them for resolution of its disputes.

Apart from this, Section 49 of the Act clearly places an embargo upon the jurisdiction of the Courts to entertain legal proceedings; which states as under:- "No court shall have jurisdiction to entertain any proceetlings, grant any injunction or make any order in relation ro anything done or purported to have been done or intended to be clone under this Act."

Furthermore, section 50 of the Act also states under;

"No suit or legal proceedings shall lie against Government, the university or any Authority, oficer or employee of Government or (Jniversirlt or any person, in respect of anylhing which is tlone or purportecl to.have been tlone or intended to be, or has been,,,done,, 11, in goodfaith,,J ,,untler,, this AcL"

4.As the Act provides internal forums are to resolve the internal disputes and places a bar upon the jurisdiction of the cour-tsl similarly, the case laws also do not favour the interference of courts in intemal affairs/matters and policies of Educational Institutes or universities. In the case of Dr. Fateh Muhammad Budat & others....vs....., Province of sindh & others (2021 MLD 933), this court has held as under:-

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"30. It is noted frorn the record that all the aforementioned allegations (embezzlement of University Funds) fall within the ambit of d[puted

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questions of facts and to prove such questions of fact it is necessary to ord the evidence and examination of record of University of Sindh lt is settled law that question of fact which requires recording of evidence and examination of record cannot be gone into by this Court in exercise of its constitutional jurisdiction. We have also observed that ttee h ob et Min indh to el stR nd eh Muhammad BUrfal) hence, instant petition filed by petitioner Dr. Arfana is devoid of merits. However, she is at liberty to approach the competent forum in accordance with law."

5.considering the above. the internal affairs such as elections may also be factual disputes rvhich rvill require recording of evidence and examination of record which cannot be done in constitutional jurisdiction. This principle has also been reiterated by the Honourable Supreme court of pakistan in the case of special secretary-I (Law snd order), Home and rribal Affairs Department, Government of Khyber Pakhtunkhwa, peshawar & Others ...,,vs,..,..Fayyaz Dawar (2023 SCMR 1442).

6.The Constitution Petition against internai affairs of NED University is deemed not maintainable due to the intemal mechanism outlined in the NED University of Engineering & Technology Act, 1977. Section 21 of the Act deals with the commencement of terms of members of Authorities, while Section 22 establishes a committee to resolve disputes regarding membership. This committee consists of the vice-chancellor, the most Senior Dean, and the chief Justice of this court or a nominated Judge. Additionally, Section l0 grants discretionary power to the Chancellor for inspection or inquiry related to university affairs and Sections l0 and 22 provide internal forums for dispute resolution, whereas, the Section 49 of the Act barring court's jurisdiction over rnatters under the Act. Section 50 provides iinmunity from legal proceedings for actions undertaken in good faith under the Act. The case laws also manifest that these intemal affairs and disputes will require recording of evidence and examination of record which cannot be done in constitutional jurisdiction. Therefore. the petitioner should utilize internal mechanism/forum provided in the Act where these disputes can be entertained and decided or resolved.

7.In view of the foregoing reasons, instant petition was dismissed in limine along with listed applications vide short order dated 03.04.2024, which.

reads as under:-

"Dated 3.d April 2024

Mr.Aamir Zaheer Mirza, Advocate for Petitioners.

1.Urgency granted.

2.Exemption granted subject to all just exceptions. 3&4. We have heard the learned counsel for the petitioner and perused the record of this case.

For the reasons to be recorded later on, instant Constitution Petition is dismissed in limine along with listed application. However, petitioners may be at iiberty to approach the relevant forum for redressal of their grievance."

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