PLJ 2013 Lahore 424
Present: Shahid Waheed, J.
Syed MUSHTAQ HUSSAIN
BUKHARI--Petitioner
versus
PEPCO,
etc.--Respondents
W.P. No. 7539 of
2013, heard on 29.5.2013.
Judicial
Review--
----Scope
of--Reappraise and review material touching question of performance--It is true
that judicial review of matters that fall in realm of contracts is also
available before superior Courts but scope of any such review is not all
pervasive--It does not extend to Court substituting its view for that taken by
decision making authority--Judicial review is not so much with correctness of
ultimate decision as it is with decision making process unless of course
decision itself is so perverse or irrational or in such outrageous defiance of
logic that person taking decision can be said to have taken leave senses. [Pp. 427 & 429] A & B
AIR
2010 SC 463 & 2013 SCMR 455, rel.
Constitution of Pakistan,
1973--
----Art.
199--Constitutional Petition--Service contract was terminated--Sought for
issuance of direction for regularizations of service--There is no doubt that if
a person is employed on contract basis and if terms of employment provide
manner of termination of his service, same can be terminated in terms
thereof--Authority in exercise of condition of service was terminated the
services of petitioner without any stigma--Petitioner having entered into
contract of service had not vested right to seek regularization of his
employment, which was discretionary with the master--Master is well with his
right to retain or dispense with service of an employee on basis of
satisfactory or performance--Petitioner after having accepted conditions of
service had no locus standi to file constitutional
petition seeking writs of prohibition and mandamus to authority to refrain from
terminating his service and to retain on his existing post on regular
basis--Petition was dismissed. [P. 427] C
& H
2005
SCMR 642, PLD 2010 SC 841, 2011 PLC (CS) 623 & 2013 SCMR 304, rel.
Master and
Servant--
----Rules of
PEPCO--Non-statutory--Relationship between petitioner and company was of master and servant--If master rightfully ends the
contract, there can be no complaint--If master wrongfully ends contract, then
servant can pursue a claim for damages--So, even if master wrongfully dismisses
servant in breach of contract, employment was effectively terminated. [P. 428] D
Constitution of Pakistan,
1973--
----Art.
199--Constitutional petition--Writ of mandamus--Service contract was
terminated--Prayed for issuance of direction for regularizations of his
service--Question of--Whether termination of contractual appointment stands
vitiated by any legal infirmity to call for interference--Maintainability of
writ of mandamus--Validity--It is also well settled principle of law that
contract employee cannot file a writ petition to seek redress in respect of
grievance relating to terms and conditions of service--Appointment of
petitioner was contractual in nature and there is no statutory obligation as
between company and petitioner--Any duty or obligation falling upon public
servant out of contract entered into by him as such public servant cannot be
enforced by machinery of a writ under Art. 199 of Constitution--Petition was
dismissed. [P. 429] E, F &
G
PLD
1962 SC 108, 1984 CLC 2168 & 1987 MLD 153, rel.
Mr. Khalid Khan,
Advocate for Petitioner.
Mr. Muhammad Ilyas Khan, Advocate for Respondent No. 1.
Mr. Salman Mansoor, Advocate for
Respondent No. 2.
Date of hearing:
29.5.2013.
Judgment
The Petitioner, Syed Mushtaq Hussain
Bukhari, through this petition under Article 199 of
the Constitution of Islamic Republic of Pakistan, 1973 has called in question
the notice dated 28th February, 2013 whereby his service contract has been
terminated; and, prayed for the issuance of direction to the respondents for
regularizations of his service as Director Finance of the Multan Electric Power
Company (MEPCO).
2. Briefly the facts of the case are that the
Chief Executive Officer, Pakistan Electric Power Company (PEPCO), through an
advertisement, which appeared in daily Dawn dated 21st July, 2003, invited
applications for appointment to the post of Finance Director in Hyderabad
Electric Supply Company (HESCO) and the Multan Electric Power Company (MEPCO)
on contract basis. The petitioner being Fellow of Chartered Accountancy (FCA)
ventured his application for the post of Finance Director in MEPCO. The
petitioner was found suitable and, therefore, the Chief Executive Officer PEPCO
vide Letter No. 2684-86/PEPCO/CEO/DDA/PF-138 dated 30th October, 2003
("Offer Letter") offered him the position of Finance Director (MEPCO)
on contract basis for a period of two years. The petitioner after accepting the
terms and conditions of the Offer Letter assumed the charge of the said post.
The tenure of petitioner's appointment-contract was extended from time to time;
and, finally in pursuance of terms and conditions contained in the Offer
Letter, a Notice No. 19158-63 CE/MEPCO/EA-I/PF-53 dated 28th February, 2013 ("Termination
Letter") was served upon the petitioner whereby his services stood
terminated with effect from 31st March, 2013.
3. Learned counsel for the petitioner through
the instant petition has asked for an order in the nature of mandamus under
Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for
quashing the Termination Letter on the plea that the same is unreasonable, violative of rules, policy and law applicable thereto.
4. The question which requires determination by
this Court is as to whether the termination of contractual appointment stands
vitiated by any legal infirmity to call for interference under Article 199 of
the Constitution of Islamic Republic of Pakistan, 1973. This question has to be
answered in two distinct parts. The first part relates to the aspect whether the Termination
Letter issued by the
respondent-Company is amenable to judicial review and if so what is the scope
of such review. The second part of the question is whether on the standards of
judicial review applicable to it, the Termination Letter is seen to be
suffering from any legal infirmity. At the outset it is pertinent to mention
that there is no challenge before this Court as to the competence of the
authority that issued the Termination Letter. What is contended on behalf of
the petitioner is that the respondent-company did not act fairly and
objectively in taking the decision to terminate the contract. It is contended
that the decision to terminate the contractual employment is not a fair and
reasonable decision having regard to the fact that the petitioner had performed
well during his tenure; and, the requirement of the Company to have Director
Finance continues to subsist. In substance, the contention urged on behalf of
the petitioner is that this Court should reappraise and review the material
touching the question of performance of the petitioner as Director Finance. I
am afraid this cannot be done by this Court. It is true that judicial review of
matters that fall in the realm of contracts is also available before the
superior Courts, but the scope of any such review is not all pervasive. It does
not extend to the Court substituting its own view for that taken by the
decision-making authority. The legal position is settled that judicial review
is not so much concerned with the correctness of the ultimate decision as it is
with the decision-making process unless of course the decision itself is so
perverse or irrational or in such outrageous defiance of logic that the person
taking the decision can be said to have taken leave of his senses. In this
regard reference may be made to the cases of "State of Maharashtra vs. Prakas Prahlad Patil" (AIR 2010 SC 463) and "Dr. Akhtar Hussain Khan and others
vs. Federation of Pakistan and others" (2012 SCMR 455).
5. The services of the petitioner were governed
by the terms and conditions of Offer Letter dated 30.10.2003 which, inter alia,
contained the following condition:
"This
contract may be terminated by either party giving the other party one month's
notice or one month's salary in lieu thereof Notwithstanding the foregoing your
services can be terminated by Chairman PEPCO and / or Chairman/ Chief Executive
Officer of MEPCO without any notice if you are found guilty of dishonesty,
misconduct negligence, indiscipline or breach of trust."
There is no
doubt that if a person is employed on contract basis and if the terms of
employment provide the manner of termination of his services, the same can be
terminated in terms thereof. In the case in hand the competent authority in
exercise of above referred condition of service has terminated the services of
the petitioner without any stigma. Thus the
termination letter, impugned
in this petition, in view of the principle laid down
by the Hon'ble Supreme Court in the cases The
Secretary, Government of the Punjab, through Secretary Health Department,
Lahore and others v. Riaz ul
Haq (1997 SCMR 1552) and Agha
Salim Khurshid and another
v. Federation of Pakistan and others (1998 SCMR 1930) does not suffer from any
infirmity.
6. The PEPCO is a Government owned Management
Company which has been established to manage re-structuring of WAPDA and
corporatization, and, commercialization of its Generation, Transmission and
Distribution Companies. The Hon'ble Supreme Court of Pakistan
in the case of Brig (R) Sakhi Marian, CEO, PESCO,
Peshawar v. Managing Director PEPCO, Lahore and others (2009 SCMR 708) has held
that rules of PEPCO are non-statutory. Thus, the relationship between the
petitioner and respondent-company is of master and servant. If the master
rightfully ends the contract, there can be no complaint. If the master
wrongfully ends the contract, then the servant can pursue a claim for damages.
So, even if the master wrongfully dismisses the servant in breach of the contract,
the employment is effectively terminated. Jenkins, L.J., in his dissenting
judgment, in Vine vs. National Dock Labour Board
[(1956)1 AER 1], which was approved in appeal by the House of Lords in 1956(3)
AER 939 stated:
"In the
ordinary course of master and servant, however, the repudiation or the wrongful
dismissal puts an end to the contract, and a claim for
damages arise. It is necessarily a claim for damages and nothing more.
Th
