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Petitioner: NAEEM KHALID LODHI VS Respondent: PRESIDENT OF PAKISTAN through Cabinet Secretary, IslamabadHonorable Justice Muhammad Azim Khan AfridiF.K. Butt and Ms. Shafaq Abid,ariq Mehmood Jahangir
2013 P L C (C.S.) 330
[Islamabad High Court]
Before Muhammad Azim Khan Afridi, J
Lt. General (Retd.) NAEEM KHALID LODHI
Versus
PRESIDENT OF PAKISTAN through Cabinet Secretary, Islamabad and 4 others
Writ Petition No.114 of 2012, decided on 4th June, 2012.
(a) Civil Servants Act (LXXI of 1973)---
----Ss. 15 & 16---Constitution of Pakistan, Art.199---Constitutional petition---Secretary, Defence Division, Government of Pakistan, post of---Appointment of petitioner on such post on contract of two years on standard terms and conditions w.e.f. 28-11-2011 and until further orders---Termination of service of petitioner on 11-1-2012 without issuing him charge-sheet or show cause notice and his termination order reported by national and international media as his dismissal for gross misconduct---Validity---Petitioner while assuming charge of such post had accepted terms of contract employment including termination of his service without assigning any reason---Petitioner had not denied receipt of one month pay in lieu of notice period and his fresh appointment by Government as Managing Director of a Company on contract basis for a period of three years, thus, he was not entitled to restoration of his contract appointment against post of Secretary---Petitioner could not invoke constitutional jurisdiction of High Court to upset terms and conditions of his contract employment---Government had denied such media reports to be true, thus, High Court could not determine such factual controversy---Provisions of Ss.15 & 16 of Civil Servants Act, 1973 would not apply to petitioner, whose service had not been terminated for disciplinary action---Impugned order was in consonance with standard terms and conditions of petitioner's contract appointment---High Court dismissed constitutional petition in circumstances.
PLD 2009 SC 879; Pakistan Lawyers Forum v. The Federation of Pakistan and another PLD 2011 Lah. 382; Pakistan Lawyers Forum v. Federation of Pakistan PLD 2004 Lah. 130; Watan Party and others v. Federation of Pakistan and others PLD 2012 SC 292; Mst. Samina Kanwal v. Director Punjab Forestry Research Institute, Faisalabad PLD 2011 Lah. 563; Faisal Sultan v. EDO Education and others 2011 PLC (C.S.) 419; Shahid Farooq v. Water and Power Development Authority 2011 PLC (C.S.) 1034; Engineer Shaukat Hussain v. Federation of Pakistan 2011 PLC (C.S.) 174; Secretary Government of the Punjab v. Riaz-ul-Haq 1997 SCMR 1552; Dr. Muhammad Amin v. Azad Jammu and Kashmir Government 2012 PLC (C.S.) 462; WAPDA through Chairman v. Zulfiqar Ali 2002 PLC (C.S.) 128; Abdul Hafeez Abbasi v. M.D. PIA and others 2002 SCMR 1034; Dr. Akhtar Hussain Khan and others's case 2012 SCMR 455; PLD 2011 SC 277; 2011 SCMR 582; PLD 2011 SC 205; Government of Balochistan and others v. Dr. Zahida Kakar and others 2005 SCMR 642; Mashal Khan v. Government of N.-W.F.P. and others 1997 PLC (C.S.) 1155; PLD 1962 SC 108; 1984 CLC 2168; 1987 MLD 153; ABN-AMBRO Bank v. Wasim Dar 2004 PLC 69; Zaka Ullah Bajwa's case 2004 PLC (C.S.) 332; Syed Manzoor Hussain v. Tehsil Nazim and others PLD 2010 Lah. 101; Saeed Ahmad Khan and others's case PLD 1974 SC 151; BP Pakistan Exploration and Production Inc. Karachi v. Additional Commissioner and others 2011 PTD 647; Khalid Mehmood v. Collector of Customs 1999 SCMR 1881; Bashir Ahmed v. Messers Roots School Network through Administrator and others 2011 SCMR 290; Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others PLD 2009 SC 644; Muhammad Mahmood Bawani v. Deputy Collector Building Zone-B and others 2007 SCMR 1209; Major (Retd.) Abdul Salam's case 2004 PLC (C.S.) 864; Kh. Manzoor Qadir v. Azad Government the State of Jammu and Kashmir and others 2011 PLC (C.S.) 90; Writ Petition No.2350 of 2011 and I.C.A. No.85 of 2011 ref.
(b) Constitution of Pakistan---
----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court could take into account press and media reports.
(c) Constitution of Pakistan---
----Art. 199---Constitutional petition involving determination of factual controversy---Effect---Relief in constitutional petition could be sought and granted only on basis of established and undisputed factual claims and assertion---Determination of factual controversy would go out of ambit of constitutional jurisdiction of High Court---Principles.
F.K. Butt and Ms. Shafaq Abid for Petitioner.
Tariq Mehmood Jahangiri, Dy.A.-G., Commander M. Hussain Shahbaz, Director Legal, Ministry of Defence, Assad Hussain (Section Officer) Cabinet Division, Islamabad and Amjad Saeed Awan on behalf of Establishment Division for Respondents.
Date of hearing: 25th May, 2012.
JUDGMENT
MUHAMMAD AZIM KHAN AFRIDI, J.--- Lt. General (R) Naeem Khalid Lodhi hereinafter referred to as the petitioner was appointed as Secretary, Defence Division, Government of Pakistan on a two years contract, on standard terms and conditions, effective from 28-11-2011 vide Establishment Division Notification No.10/05/2011-E-I, dated 24-11-2011. Pursuant thereto, he took charge of said post on 28-11-2011. The said appointment of the petitioner was terminated by the Government of Pakistan, Cabinet Secretariat Establishment Division vide Notification No.10/05/2011-E-I Islamabad, the 11th January, 2012, and Mrs. Nargis Sethi, a BPS-22 Officer of Secretariat Group, serving as Secretary Cabinet Division, was assigned the work of Secretary Defence Division in addition to her own duties vide Notification No.41/340/2009-E-I, Islamabad, the 11th January, 2012. The termination order of the petitioner flashed in national and international print and electronic media terming the same as dismissal of the petitioner for gross misconduct. Such termination, without issuance of any charge sheet/show cause notice and holding inquiry, was felt by the petitioner as unwarranted stigma and ascribed the same as gross mala fide on the part of respondents.
2. The petitioner, in view of the afore-stated situation, was allegedly left with no option but to invoke the jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, hereinafter referred to as the Constitution, seeking redressal by pleading for restoration of his contract appointment.
3. Learned counsel for the petitioner has argued that the petitioner was appointed on contract basis against the post of Secretary Defence Division vide notification dated 24th November, 2011 referred to above, for a period of two years with effect from 28-11-2011. That the term of contract appointment was to expire on 27-11-2013. That impugned notification dated 11th January, 2012, referred to above, was apparently an order of termination simpliciter but the same was not so as the national and international press and electronic media reported the said termination orders of the petitioner as a result of "gross misconduct". Learned counsel for the petitioner in support of his arguments referred to the news appearing in Dawn Islamabad dated 12-1-2012, Express Tribune Islamabad dated 12-1-2012, CNN (Canada) dated January 11th 2012, AFP (U.S.) dated 11th January, 2012, Aljazeera (Qatar) dated 11th January, 2012, BBC News (U.K.) dated 11th January, 2012, Christian Science Monitor (U.S.) dated January 11th 2012, Financial Times (U.K.) dated January 11th 2012, Gulf News (U.A.E.) dated January 12th, 2012, Hindustan Times (India) dated 11th January, 2012, Indian Express (India) dated January 11th, 2012, NDTV (India) dated January 11th 2012, New York Times (U.S.) dated January 11th 2012, New York Times (U.S.)/Reuters, (France) dated 11th January, 2012, Rediff (India) dated January 11th 2012, Telegraph (U.K.) dated 11th January, 2012, The Australian (Australia) dated 12th January, 2012, Voice of America (U.S.) dated January 11th 2012, Wall Street Journal (U.S.) dated January 11th 2012, Washington Post (U.S.) dated 11th January, 2012 and Zee News (India) dated 11th January, 2012. Learned counsel for the petitioner also referred to press release of ISPR dated January 11th 2012, wherein allegation of the Prime Minister of Pakistan against COAS and DG ISI were rebutted. He further argued that the afore-stated material clearly establishes the fact that termination order of the petitioner was with stigma of gross professional misconduct. That the said press statements and news of Electronic Media were not denied by the respondents and the same are to be taken into account. That according to the standard terms and conditions in respect of employment on contract basis, rules made and instructions issued by the Government or a prescribed authority for civil servant under sections 15 and 16 of the Civil Servants Act, 1973, amended from time to time, would apply to contract employees. That the respondents have offered no comments on the media reports in their replies furnished in Court in response to the assertions levelled by the petitioner in his constitutional petition. That the said comments are neither dated nor verified as required under the law. That the termination order of the petitioner is liable to be set aside as the same was an order of termination of services of the petitioner with stigma and allegations of gross misconduct and was passed without following the prescribed procedure of conducting inquiry.
4. Learned counsel for the petitioner, during the course of arguments, has placed reliance on Article 10-A of Constitution according to which a person is entitled to a fair trial and due process with reference to determination of his civil rights and obligations or any criminal charge against him. He has also placed reliance on sections 15 and 16 of Civil Servants Act, 1973 and clauses 12 and 14 at Serial No.26 of ESTACODE according to which if a contract employee is found liable to any disciplinary action and penalties then he is to be dealt with in accordance with the procedure prescribed for a civil servant, thus, if services of a contract employee are terminated with stigma then provisions of sections 15 and 16 of the said act would be applicable.
5. In case of admissibility and judicial notice of print and media reports, reliance was also placed on case-law reported in PLD 2009 Supreme Court 879, wherein the August Supreme Court of Pakistan in case of Sindh High Court Bar Association v. Federation of Pakistan observed that judicial notice of press reports could be taken by the Court:---
(i) where direct evidence was not available;
(ii) where it was sought to be proved that a person had notice of the contents of the newspaper reports;
(iii) where it was sought to be shown that a person is an author or otherwise responsible for the statement or article published in a newspaper, which is to be used against him;
(iv) in cases of defamation and;
(v) if the issue/occurrence is rather old and eye-witnesses are either wanting or less reliable.
6. Learned counsel for the petitioner has also placed reliance on case of Pakistan Lawyers Forum v. The Federation of Pakistan and another (PLD 2011 Lahore 382), wherein it was observed that newspaper reports about events which are not rebutted are treated as reliable evidence.
7. View taken by the Lahore High Court in case of Pakistan Lawyers Forum v. Federation of Pakistan reported in PLD 2004 Lahore 130, was endorsed by the august Supreme Court of Pakistan in its worthy judgment referred to above (PLD 2009 Supreme Court 879).
8. In case of Watan Party and others v. Federation of Pakistan and others reported as PLD 2012 Supreme Court 292, the petition containing question of public importance with regard to enforcement of fundamental rights was maintained by the August Supreme Court of Pakistan.
9. While questioning the validity of the no reason clause embodied in the standard terms and conditions of contract employment, learned counsel for the petitioner has placed reliance on case of Mst. Samina Kanwal v. Director Punjab Forestry Research Institute, Faisalabad reported as PLD 2011 Lahore 563, wherein it was observed that no reason clause was facially discriminatory and liable to be used as such and was therefore violative of Article 25 of the Constitution. It was further observed that the clause inserted in the terms and conditions of contract appointment "without assigning any reason" was also offensive to human dignity and reason beside unconstitutional. Termination of the petitioner in the said case on the basis of the afore-stated no reason clause was set aside.
10. Learned counsel for the petitioner has also placed reliance on case of Faisal Sultan v. EDO Education and others reported as 2011 PLC (C.S.) 419, wherein it was observed that removal of an employee from a public sector employment without due process would offend Article 9 of the Constitution as right to life would include right to a lawful and a meaningful livelihood. It was further observed that issuance of notice with reasons to petitioners was a minimum requirement of due process of law under Articles 4, 9, 14 and 18 of the Constitution.
11. Reliance was also placed on case of Shahid Farooq v. Water and Power Development Authority reported as 2011 PLC (C.S.) 1034 (Peshawar High Court) wherein it was observed that a temporary employee or a person employed on contract basis, was entitled to a fair opportunity of hearing under the terms of Efficiency and Discipline Rules before condemning him on the allegations of misconduct.
12. Learned counsel for the petitioner also pressed into service case of Engineer Shaukat Hussain v. Federation of Pakistan reported as 2011 PLC (C.S.) 174 (Lahore High Court) wherein it was observed that termination of service of a contract employee on the allegation of misconduct, without regular inquiry, was unlawful and of no legal effect.
13. In case of the Secretary Government of the Punjab v. Riaz-ul-Haq reported as 1997 SCMR 1552, relied on by the learned counsel for the petitioner, it was observed that where a person is to be condemned for misconduct then he is entitled to a fair opportunity to clear his position which means that there should be a regular inquiry in terms of Efficiency and Discipline Rules before condemning him for the alleged misconduct even if he is a temporary employee or a person employed on contract basis.
14. In case of Dr. Muhammad Amin v. Azad Jammu and Kashmir Government reported as 2012 PLC (C.S.) 462 High Court (AJ&K), relied upon by the learned counsel for the petitioner, it was held that the constitutional petition in respect of contractual appointment was maintainable as it was more efficacious and speedy remedy as compared to a civil suit. It was further observed that the petitioner was to be heard before removal before expiry of contractual period.
15. Learned counsel for the petitioner has also placed reliance on case-law reported in case of WAPDA through Chairman v. Zulfiqar Ali reported as 2002 PLC (C.S.) 128 Supreme Court of Pakistan, wherein it was observed that pre-mature retirement in exercise of jurisdiction in a colourful manner and with mala fide intention would necessitate to extend right of hearing to the affected employee.
16. Reliance was also placed on case-law reported in 2002 SCMR 1034 in case of Abdul Hafeez Abbasi v. M.D. PIA and others, wherein it was ruled that maxim of "Audi Alteram Partem" would apply in all judicial and non-judicial proceedings notwithstanding the fact that right of hearing had not been expressly provided by the statute governing the proceedings.
17. Learned counsel for the petitioner in support of maintaining the constitutional petition has relied on the case of Dr. Akhtar Hussain Khan and others reported as 2012 SCMR 455 Supreme Court of Pakistan, wherein it was observed that even the existence of an alternate remedy can not prevent the Court from exercising its power of judicial review if the said alternate remedy is neither efficacious nor expeditious. That if a statutory functionary acts mala fide or in a partial, unjust and oppressive manner the High Court in exercise of its writ jurisdiction has power to grant relief to the aggrieved party.
18. Learned Deputy Attorney-General (D.A.-G.) representing the respondents has argued that the constitutional petition of the petitioner has become infructuous as Mrs. Nargis Sethi, as Acting Secretary Defence/Chairperson Committee of Administration of Fauji Foundation, vide Notification No.16253/Secy/2011, dated 29th March, 2012 has issued appointment orders of the petitioner as Managing Director Fauji Fertilizer Company Limited with effect from 26th March, 2012 on contract basis for a period of three years which appointment has been accepted by the petitioner. That the petitioner was a retired employee and was appointed on contract basis for a period of two years which appointment was, until further orders, with effect from 28-11-2011. That though services of the petitioner were terminated without mandatory notice of one month, however, in lieu whereof, one month salary was offered to the petitioner which he had accepted and received. That the termination notification of the petitioner was a termination order without any stigma and that the respondents denied the press and electronic media reports. That acceptance of one month salary in lieu of notice, subsequent appointment of the petitioner and denial of respondents in respect of charges of any gross misconduct attributed to the respondents, the constitutional petition would not be maintainable. That a person terminated from service with stigma cannot be considered for re-appointment while the petitioner was considered and appointed as MD of FFC. That denial of press and electronic reports on the part of respondents would bring the case of the petitioner within the ambit of factual controversy and in such eventuality, constitutional petition would not be competent. That the petitioner, alleging his termination from service with stigma and seeking protection of sections 15 and 16 of the Civil Servants Act, 1973, was then obliged to resort to the provisions of appeal under section 22 of the said Act read with Rules 4 and 5 of Civil Servant Appeal Rules, 1977. That the news items were speculative in nature, as according to the said news items, the termination order of the petitioner was aimed at removal of D.G. ISI and Chief of Army Staff. That the D.G. ISI has completed his tenure of service and COAS is holding the office and performing his functions and rendering services to the country. That the case-law cited by the learned counsel for the petitioner at bar was irrelevant to the case of petitioner. That the contract appointment is not questionable in constitutional jurisdiction of this Court.
19. Learned D.A.-G., during the course of arguments, has placed reliance on the case-law reported as PLD 2011 Supreme Court 277, in Suo Motu Case No.24 of 2010 and Human Rights Cases, the august Supreme Court of Pakistan has observed that for establishing rule of law and constitutionalism it was necessary that the relevant provisions relating to service should be followed strictly in letter and spirit. It was further observed that to avoid violation of relevant provisions of law, tantamounting to blocking the promotion of serving officers and waiting for promotion, re-employment/contract appointment of retired officers was to be discontinued for the purpose of achieving good governance. The August Supreme Court of Pakistan, in the said case, issued directions to the Secretary, Establishment Division and Chief Secretaries of the Provinces to examine the cases of re-employment in terms of the provisions of law and to take necessary steps to ensure that re-employments or employments on contract basis were not made in violation of the relevant law.
20. Reliance was also placed in Suo Motu Case No.24 of 2010 reported as 2011 SCMR 582, wherein the August Supreme Court of Pakistan has ruled that appointments on contract basis are not allowed to be continued in terms of Section 14 of the Civil Servants, Act, 1973 and the policy unless the conditions specified therein are satisfied.
21. Reliance was also placed on Human Right Cases No.50071-P etc. reported as PLD 2011 Supreme Court 205, wherein the August Supreme Court of Pakistan deprecated appointment on contract and it was observed that it was in interest of Government to promote junior officers waiting for promotions and that they should be encouraged instead of employing persons on contract basis unless their services were indispensable.
22. Reliance was also placed on case of Government of Balochistan and others v. Dr. Zahida Kakar and others reported as 2005 SCMR 642, wherein it was observed that contract appointment prima facie does not create any vested right.
23. Learned D.A.-G. has also placed reliance on case of Mashal Khan v. Government of N.-W.F.P. and others reported as 1997 PLC (C.S.) 1155, wherein it was observed that a contract employee cannot file a writ petition to seek redress in respect of a grievance relating to the terms and conditions of his service. Reference in the said case also made to case-law reported in PLD 1962 Supreme Court 108, 1984 CLC 2168 and 1987 MLD 153, wherein it was ruled that contractual rights are not enforceable by recourse to writ jurisdiction and when such services are terminated in accordance with the terms of contract.
24. Learned D.A.-G. while resisting the reinstatement of contract service of the petitioner placed reliance on case of ABN-AMBRO Bank v. Wasim Dar reported as 2004 PLC 69 (Lahore High Court), wherein it was observed that neither unwilling master can be forced to keep servant into his service nor unwilling servant can be forced to serve his master. It was further observed that Court cannot annul termination of service, even if the same be in violation of contract and that remedy of servant in case of wrongful termination of his service would be to claim damages from master. It was also observed that where contract contains provisions for termination of service of servant then employer is not required to assign any reason therefor and that pre- mature termination without mentioning reason or in absence of reason would not give cause of action to the servant to claim damages from employers except to claim salary in lieu of notice period.
25. Reliance was also placed on the case of Zaka Ullah Bajwa reported as 2004 PLC (C.S.) 332 (Lahore), wherein it was observed that contractual appointment, in terms of the contract, could be dispensed with on one month's notice or payment of one month's salary in lieu thereof.
26. In case of Syed Manzoor Hussain v. Tehsil Nazim and others reported as PLD 2010 Lahore 101, relied on by learned D.A.-G., it was observed that direct recourse to constitutional jurisdiction of High Court could not be encouraged in presence of alternate remedy.
27. In cases of Saeed Ahmad Khan and others reported as PLD 1974 Supreme Court 151, relied on by the learned D.A.-G. for the respondents, it was observed by the August Supreme Court of Pakistan that burden to prove mala fides lies on person alleging it.
28. In case of BP Pakistan Exploration and Production Inc. Karachi v. Additional Commissioner and others reported as 2011 PTD 647 and Khalid Mehmood v. Collector of Customs reported as 1999 SCMR 1881, relied on by the learned D.A.-G., it was observed that where alternate remedy is available, constitutional jurisdiction could not be invoked as the same was not meant to render alternate remedy redundant.
29. Learned D.A.-G. has also relied on case of Bashir Ahmed v. Messrs Roots School Network through Administrator and others reported as 2011 SCMR 290, wherein it was observed that High Court will not make factual determination or interfere in orders passed by competent Courts vested with statutory powers in the exercise of their functions, unless jurisdictional error or other legal infirmity such as arbitrariness etc. in the order assailed before the High Court was forthcoming.
30. In case of Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others reported as PLD 2009 Supreme Court 644, relied upon by the learned D.A.-G., wherein it was observed that the Supreme Court could not enter into any factual controversy in proceedings arising out of a petition under Article 199 of the Constitution.
31. In case of Muhammad Mahmood Bawani v. Deputy Collector Building Zone-B and others reported as 2007 SCMR 1209, relied upon by the learned D.A.-G., it was observed by the August Supreme Court of Pakistan that constitutional petition involving factual controversies would not be maintainable and that such petition is only meant for resolving and interpreting pure questions of law.
32. Learned D.A.-G. has also pressed into service case-law formulated in Major (Retd.) Abdul Salam's case reported as 2004 PLC (C.S.) 864 wherein contractual appointment of the petitioner was held not enforceable through constitutional petition.
33. Reliance…
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