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Petitioner: Muhammad Usman Dar VS Respondent: (Khawaja) Mohammad Asif, etc.
Court Name: Islamabad High Court Judge(s): Athar Minallah, Aamer Farooq, Mohsin Akhtar Kayani Title: Muhammad Usman Dar vs (Khawaja) Mohammad Asif, etc. Case No.: Writ Petition No, 2907 of 2017 Date of Judgment:2018-04-26 Reported As:2018 [M] C.L.R. 915, 2018 IHC 45, PLD 2018 Islamabad 214, KLR 2018 Civil
Cases 268 Result: Petition allowed Judgment ORDER ATHAR MINALLAH, J. --- The petitioner, namely Muhammad Usman Dar, has invoked the jurisdiction of this Court under Article 199(1)(b)(ii) of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the "Constitution") requiring Khawaja Muhammad Asif (hereinafter referred to as the "Respondent") to show under what authority of law he claims to hold the office as Member of the National Assembly of Pakistan, the lower House of Majlis-e-Shoora (Parliament). 2. The facts, in brief, are that the General Elections were held on 11.05.2013. The Respondent contested elections on the ticket of Pakistan Muslim League (Nawaz) and secured 92803 votes as against 71525 votes polled in favour of Muhammad Usman Dar (hereafter referred to as the "Petitioner".) The latter had contested elections from the platform of Pakistan Tehreek-e-lnsaaf. The nomination paper submitted by the Respondent was challenged by other contesting candidates which culminated in the dismissal of Election Appeal no. 144-A of 2013 by the learned Election Tribunal of the Lahore High Court, Lahore vide order dated 17.04.2013. Pursuant to the said order the Respondent had contested the elections and was declared as returned candidate. He was, thereafter, notified as a Member of the National Assembly, elected from constituency NA-110. After taking oath of office as Member of the National Assembly, the Respondent was inducted in the Federal Cabinet on 08.06.2013 as the Minister for Water and Power. Later the Respondent was given the portfolio of Minister of Defence on 27.11.2013. The Respondent took oath as Foreign Minister of Pakistan on 04.08.2017. The Respondent has had the privilege of being elected to the lower house of the Majlis-e-Shoora (Parliament) in the General Elections held in 1993, 1997, 2002 and 2008.
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Some relevant facts necessary for the adjudication of the instant petition are mentioned as follows;-- (A) NOMINATION PAPER: The nomination paper to contest elections from the constituency NA 110 was filed by the Respondent on 30.03.2013 under section 12 of the Representation of the People Act 1976 (hereinafter referred to as the "Act of 1976"). Declarations made in columns 7 and 8 therein, as required under section 12(2)(e), were as follows;-- "7. My educational qualification isB.A. LLB 8. My present occupation is BUSINESS" 3. It is noted that the Respondent was required to attach attested copies of the relevant documents in support of the declarations, inter alia, made in columns 7 to 10. The nomination paper signed by the Respondent specifically contained the following affirmation; (b) I, Mr/Ms/Mrs KHWAJA MOHAMMAD ASIF s/o KHAWAJA MOHAMMAD SAFDAR state that failure to give detail regarding any item of this Form shall render my nomination to contest election invalid or if any information given here in above are found incorrect at any time my election shall stand void ab initio" (B) OCCUPATION IN UNITED ARAB EMIRATES:- The Respondent has executed, from time to time, three separate employment contracts with International Mechanical and Electrical CO. (W.L.L.) (hereinafter referred to as the "Company"). The latter is a juridical person incorporated and governed under the laws of the United Arab Emirates. (i) FIRST CONTRACT:- The first employment contract was executed by the Respondent on 08.06.2011 which remained valid till 30.06.2013 (hereinafter referred to as the "First Contract"). The relevant clauses of the contract, dated 06.08.2011 are as follows,-- "A. FIRST PARTY Company/Est INT. MECH.&ELEC CO. LLC Nationality EMIRATES Address ABU DHABI TOURIST CLUB Represented by ELIAS IBRAHIM SALLOUM
B. SECOND PARTY Mr./Mrs ASIF MUHAMMAD KHAWAJA SAFDAR MUHAMMAD KHAWAJA Nationality PAKISTAN Passport No. Ac 1886006
Now therefore the parties declare having full capacity to contract and mutually agreed as follows: 1) That the Second party accepts to work for first party as LEGAL ADVISOR PRIVATE LAW in the U.A.E. For a basic salary 9000 Per MONTH nine thousand dirhams 2) The duration of this Agreement shall be ( Unlimited) As from 03-07-2011 to_____________ A- The two parties hereto have agreed that the Second party shall be subject to a probation period of 6 months (provided that the probation shall not exceed six months from the beginning of employment). B- The limited employment agreement expires on the date of expire thereof, but in case the two parties continue to execute the agreement then it shall be considered as renewed for an extra period of one year from the date of expire thereof on the same terms and conditions.
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3) The First Party shall bear the cost of air ticket at the time of commencing work and also the cost of one ticket home at the time of terminating the Employment Agreement. 4) The First Party may terminate the services of Second Party immediately and without notice in case the Second party violates Clause (120) of the Federal Law No(8) of 1980 in respect of the organizing of Labour Relation and as conditions provided therein. And also as provided in Clause (88) there of. 5.) Provisions of Federal Act No,(8) shall be applicable in respect of end of service gratuity and shall also be applicable for other conditions which are not provided for herein. 6) This Agreement is made in 3 copies. First Copy retained with the Ministry (Labour Dept.) at the time of attesting the agreement each party hereto shall have one copy to act according whenever necessary. 7) The first Party is obligated to grant the Second Party an annual leave with pay for 30 days (provided that the annual leave shall not be less than thirty days). 8) Other allowance granted to the Second Party: A-Accommodation All: FAMILY HOME PROVIDED B-Transportation All. PROVIDED C-Other: 1- _________________________ 2- _________________________ 3- _________________________ 4- _________________________ Basic Salary: 9000 Total salary with Allowance: 9000 9) Other Conditions: A. ................................ B. ............................... 10)Daily working hours are ( 8 ) hours only. and shall not exceed forty eight hours weekly. In case of shops, hotels, restaurants and watchmen, the working hours shall be nine hours per day." (ii) SECOND CONTRACT:- The First Contract was followed by the execution of another employment contract in July 2013 which remained valid from 01.07.2013 to 30.05.2017 (hereinafter referred to as the "Second Contract"). The terms and conditions of the Second Contract were the same as that of the First Contract except that basic salary was increased to AED 2000/- while the total i.e salary and allowances amounted to AED 30,000/- (iii)THIRD CONTRACT:- The Third Contract was executed by the Respondent and the Company in May 2017 and it was valid and subsisting till the filing of the instant petition. It is noted that the Third Contract was executed by the Respondent when he was holding the portfolio of Defense Minister in the Federal Cabinet. The said employment contract was valid w.e.f, 31.05.2017 and the terms and conditions thereof are as follows:- "Hereinafter referred to as (The First Party) in this Employment Contract and the Annex thereof To hire: Mr./Mrs : ASIF MUHAMMAD KHAWAJA SAFDAR MUHAMMAD KHAWAJA Nationality: PAKISTAN Passport No. Ac 1886006 Hereinafter referred to as (The Second Party Worker) in this Employment Contract and the Annex thereof Both the First Party and the Second Party are hereafter referred to as (The Parties Both Parties) in
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this Employment Contract and the Annex thereof. Preamble Whereas the Second Party works for the First Party in the Job profession of [MANAGEMENT CONSULTANT] under an Unlimited Term Employment Contract No,(MB174652818AF) commencing as of 02/07/2011. And whereas Both Parties desire to continue this Contract. Both Parties have agreed upon the following. First Article The Second Party shall work for the First Party on the job profession of MANAGEMENT CONSULTANT within the UAE (Emirate Name: Abu Dhabi.). Second Article The Second Party's weekly rest shall be 1 day(s). The First Party shall determine such day(s) and inform the Second Party thereof at the commencement date of the employment relationship. Third Article Should either party desire to terminate this Contract, such party shall notify the other party of such desire within 01 Month(s) as prior notice before the determined date of termination. Such period shall be similar for both parties. Fourth Article Both Parties agree that the Second Party shall work for the First Party in return for [Monthly Wage of 50000 AED (fifty thousand)] Such wage shall include: The Basic Salary at an amount of AED 35000 (Thirty-five thousand) Allowances These allowances should include without limitation: Housing Allowance: FIRST PARTY Transport Allowance: FIRST PARTY Other allowance: 15000 The First Party shall pay the wage and the Second Party shall receive the wage according to the regulations determined by MOL Fifth Article The labour relationship governed by this Contract, shall be a contractual, consensual relationship. Neither Party shall be obliged to continue such contractual labour relationship with the other Party without its consent, provided that the Party terminating the Contract at its sole discretion shall bear all legal consequences resulting therefrom as stipulated in the Annex enclosed herewith and according to any MOL Applicable Laws. The Labour relationship between both Parties shall end if any of the events set forth in Article (2) of the Annex enclosed herewith occurs. Sixth Article The First Party acknowledges that it has informed the Second Party of all the articles stipulated in the Annex enclosed herewith (6 articles in total). Seventh Article The Second Party acknowledges that it has thoroughly reviewed all the articles stipulated in the Annex enclosed herewith (6 articles in total). Eighth Article Both Parties acknowledge that the articles stipulated in the Annex enclosed herewith constitute an integral and complementary part hereof and shall be binding on both Parties. Ninth Article Both Parties have agreed to add the following conditions: 1-family accommodation provided In such case, the additional conditions shall not breach Applicable Laws, or the articles stipulated in this Contract or the Annex hereof. In case of adding such conditions, this Contract and the Annex hereof must be referred to the relevant labour relation authority within MOL for review and
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prior to approval thereof. Tenth Article This Contract has been made in three counterparts duly signed by Both Parties. Each Party shall receive a copy and the third one shall be kept by MOL." 4. Pursuant to the above three employment contracts, the Respondent was granted an "Iqama" i,e, residence visa. Moreover, the Respondent was also registered as a skilled labourer and a card was duly issued by the Ministry of Labour, United Arab Emirates wherein, inter alia, Work Permit No, 70798428 was mentioned. The list issued by the Company shows it has a total strength of 1250 employees. The name of the Respondent appears at serial no. 303 and his job description is "Management Consultant". The occupation of employees mentioned in the list above and below the name of the Respondent i,e, at serial nos. 302 and 304 respectively is described as Concrete Mason and Shovel Operator Driver. The Managing Director of the Company, namely Mr. Elias Salloum, has issued a certificate, dated 12.04.2018, titled "To Whom It May Concern" which was submitted by the learned counsel for the Respondent along with his written arguments. The contents of the certificate are reproduced as follows;- "TO WHOM IT MAY CONCERN We hereby confirm that Kh. Muhammad Asif has been the "Legal Advisor Private Law" for the company. The agreement executed with him was a standard document approved by the UAE Government. The agreement was executed to fulfill UAE Law, however, the terms stated in the agreement were not the understanding between the parties. The relationship has cordial, with mutual consent and there was no requirement for him to be present in UAE for any period of time and we have been seeking his advice as and when required telephonically and during his planned visit to UAE. Similarly, the agreement was renewed as per UAE law, he became the Management Consultant of the Company. The agreement was executed to fulfill UAE Law, however. the terms stated in the agreement were not the understanding between the parties. The relationship has been cordial, with mutual consent and there was no requirement for him to be present in UAE for any period of time and we have been seeking his advice as and when required telephonically and during his planned visit to UAE. Mr. Asif was paid a fee for his services as- per the understanding of the company and himself. Mr. Asif was never a full time employee of the company and was not required to stay in UAE as mentioned in the agreement. There is total flexibility in the UAE after execution of the standard document to agree to any terms with the employees and Consultants of the company and the UAE Government does not interfere in this respect. A representative of the company is willing to come and appear before any Court in Pakistan to confirm the above facts. Yours faithfully, For INTERNATIONAL MECHANICAL & ELECTRICAL CO. WLL. ELIAS SALLOUM MANAGING DIRECTOR" (C) ASSETS AND LIABILITIES:- The Respondent had not declared Bank Account no, 6201853775, maintained with the National Bank of Abu Dhabi in the statement of assets and liabilities attached with the nomination paper. According to the documents placed on record it shows a balance amount on the date of filing the nomination paper. The said account was declared by the Respondent for the first time in 2015 before the Election Commission of Pakistan in the annual statement of assets and liabilities filed under section 42-A of the Act of 1976. 5. It is noted that the above facts have been unambiguously admitted. There is no dispute
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whatsoever regarding the execution of the three employment contracts and non disclosure of the aforementioned Bank Account in the nomination paper. The Petitioner had challenged the election of the Respondent by filing an election petition under section 52 of the Act of 1976 which ultimately led to the rendering of the judgment by the august Supreme Court in the case titled "Usman Dar versus Khawaja Muhammad Asir [2017 SCM R 292]. The above facts were not part of the Election Petition because the Petitioner asserts that they came to his knowledge much later. 6. Mr Sikandar Bashir Mohmand, ASC has contended that; the Respondent is not entitled to hold the office of Member of the National Assembly nor as member of the Federal Cabinet; the Respondent had deliberately concealed material facts in his statement of assets and liabilities ; he had not declared his income which was derived as 'salary' from full time employment with the Company since 2011; source of business capital applied for to set up a restaurant in Abu Dhabi was also not fully declared; material discrepancies in the account of salary and foreign remittances disclosed in the nomination form are obvious; the three employment contracts were not declared; the Respondent had unambiguously taken the plea before the Iearned Election Tribunal of the Lahore High Court, Lahore that the remittances exclusively related to the sale of the restaurant; the unequivocal statement recorded in the order dated 17.04.2013, passed by the learned Tribunal in Election Appeal no. 144-A of 2013, had attained finality since no attempt was made to correct it; the Respondent had declared his occupation as 'Business': for the first time in the present proceedings he has taken the plea that foreign remittances declared in the nomination form included income from salary as well as from the business of a restaurant; nondisclosure of the Bank Account maintained with the Bank of Abu Dhabi is sufficient for a declaration in the context of Article 62(1)(f) of the Constitution, read with the relevant provisions of the Act of 1976; the test laid down by the august Supreme Court in the recent precedent law relating to non-disclosure for the purposes of Article 62(1)(e) is that of strict liability; the Respondent was a full time employee in a foreign based Company while he was holding the portfolios of Defence and Finance Minister; the conflict of interest is obvious and, therefore. this alone is sufficient to declare the Respondent as disqualified; the Respondent, through his acts and omissions, has violated his oath which he had taken before entering upon the office as Member of the National Assembly and then as Federal Minister. The learned counsel has placed reliance on the case law which has been attached with his written 'arguments. 7. Mr Rasheen Nawaz Kusuri, ASC has appeared and has argued on behalf of the Respondent; the admission relating .to execution of the three employment contracts with the Company is not simplicitor; the intent of the parties was different from the expressions used in the three employment contracts; the. Company has confirmed that the language and expressions used in the three employment contracts was for the purposes of fulfilling the requirements of law and did not reflect the intent of the parties; this raises questions of fact which cannot be resolved while exercising jurisdiction under Article 199 of the Constitution; the Company, vide certificate dated 12.04.2018, has explicitly acknowledged that the employment contracts were executed merely to fulfill the requirements of the Labour Laws in United Arab Emirates; the letter dated 12.04.2018 of the Company ought to be read with the employment contracts; the employment contracts are infact an lqama Agreement between the Respondent and the Company; the employment contracts reflect the standard document and, therefore, does not manifest the actual relationship; the terms and conditions relating to the services rendered by the Respondent are settled orally; the parties are free to enter into any terms and conditions re-writing of a contract falls within the exclusive domain of the parties; the onus is on the petitioner to establish that the Respondent was performing his duties in the United Arab Emirates and only then would he have been able to make out a case; the presence of the Respondent and performing functions as member of the Majlis-e- Shoora (Parliament) and the Federal Cabinet stand admitted by the petitioner; the relationship
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between the Respondent and the Company was flexible; no reliable evidence has been produced by the petitioner to show that the Respondent was engaged in working on full time basis in the United. Arab Emirates; the declaration regarding occupation does not attract section 12(2)(f) of the Act of 1976; omission to mention a dormant account maintained with the National Bank of Abu Dhabi is inconsequential; the nondisclosure of the Bank Account would not attract the test of strict liability; reliance has been placed on the case titled "Rai Hassan Nawaz versus Haji Muhammad Ayub and others" [PLD 2017 S.C. 70j; the petitioner has not been able to bring on record any error or defect which may be false in material particular; the petitioner had declared the account maintained with the Bank of Abu Dhabi and an amount of AED 4700 deposited therein before the Election Commission of Pakistan in the annual statement of assets and liabilities submitted on 30.06.2015; the said declaration was made much before filing of the instant petition; the occupation mentioned at serial no.3 of the nomination form cannot be treated as false in order to attract the penal consequences since the petitioner had enclosed a copy of his passport, which contained the 'lqama' issued by the United Arab Emirates; entries disputed in the statement of account required recoding of evidence; the Respondent has made correct and true disclosures; any dispute regarding qualification of the Respondent as Member of the Majlis-e-Shoora (Parliament) after issuance of notification as a returned candidate is required to be dealt with under Article 63(2) of the Constitution; at the best this Court may refer the matter to the Speaker of the National Assembly of Pakistan under sub-article (2) of Article 63 of the Constitution; a bonafide omission, particularly relating to declaration regarding occupation, is not fatal nor attracts. the consequences of being disqualified; the question of whether the strict liability test would be attracted in the case of non-disclosure was recently argued before the august Supreme Court in Sheikh Rasheed's case wherein the judgment has been reserved; it would be appropriate to keep the matter at hand pending till august when the Supreme Court announces judgment in the said case; quo-warranto petition is not maintainable and in case this Court concludes that inquisitorial proceedings are required then the matter may be referred to a competent forum; the relief sought in the instant petition is discretionary in nature and, therefore, utmost restraint must be exercised; the Respondent has been elected by a large number of constituents and, therefore, it would be unjust and unfair if they are disenfranchised; malafide of the petitioner is obvious from the filing of the instant petition eight months before the holding of General Elections; the august Supreme Court in the case titled "Imran Ahmad Khan Niazi versus Mian Muhammad Nawaz Sharif and others" [PLD 2017 S.C. 265] has not disqualified the former Prime Minister merely for holding an qqama' but rather his disqualification was due to non-disclosure of assets; holding an *lama' cannot be made the basis for attracting Article 62(1)(f) of the Constitution. The learned counsel has placed reliance on the case law which has been mentioned in the written arguments and, therefore, we need not reproduce the same. 8. The learned counsels for the parties have been heard and the record perused with their able assistance. 9. The petitioner has invoked the constitutional jurisdiction of this Court under Article 199(1)(b)(ii) of the Constitution. The learned counsel for the petitioner has raised several grounds. However, we feel that it would be appropriate to avoid discussing those grounds which involve disputed questions of facts. We shall, therefore, focus only on such grounds which are based on facts that have been unambiguously admitted by and on behalf of the Respondent. What has been explicitly admitted before us are; (i) declarations in the nomination paper; (ii) the three employment contracts; (iii) the said employment contracts having been executed only to fulfill the requirements of the laws of the United Arab Emirates and that the parties had never intended to give effect to the express terms and conditions thereof; (iv) the order dated 17-04-2013, passed by the learned Election Tribunal of the Lahore High Court, wherein specific plea was taken by and on behalf of the
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Respondent regarding the source of foreign remittances, attained finality and (v) non-disclosure of an account maintained with the National Bank of Abu Dhabi. These facts have been expressly admitted in the pars wise comments, written arguments and during the course of arguments addressed at the Bar by the learned counsel for the Respondent. It is the case of the Petitioner that the Respondent had deliberately not disclosed in his nomination paper his occupation in column 8 as a permanent full time employee of the foreign based Company, concealed the salary received from the Company and the bank account maintained with the Bank of Abu Dhabi and was thus disqualified to contest the election, since Article 62(1)(f) of the Constitution read with the relevant provisions of the Act of 1976 were attracted. It would, therefore, be beneficial to examine the relevant provisions of the Constitution and the Act of 1976. It is also inevitable to examine the precedent law regarding the test laid down and applied for giving effect to Article 62(1)(f) read with the corresponding provisions of the Act of 1976. The learned counsel for the Petitioner has also raised the question of conflict of interest. 10. Chapter-2 of the Constitution deals with the Majlis-e-Shoora (Parliament). Article 50 provides that the Majlis-e-Shoora of Pakistan (Parliament) shall consist of two Houses to be known respectively as the National Assembly and the Senate. Article 51 provides that there shall be 342 seats for Members in the National…
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