JUDGMENT CH. EJAZ YOUSAF, J. - This petition for leave to appeal is directed against the judgment dated 11.3.2008 passed by a learned Division Bench of the Peshawar High Court, Peshawar, whereby, Writ Petition No. 238 of 2008 filed by the petitioner was dismissed.
2. Briefly stated, facts of the case, are that the petitioner, while holding rank of Brigadier in Pakistan Army, was posted as Chief Executive Officer, Peshawar Electric Supply Company (PESCO), Peshawar, under the Ministry of Water & Power on secondment basis for a period of three years, vide Notification dated 20th September, 2005. The appointment was made on the basis of letter dated 1.9.2005 issued by G.H.Q., Military Secretary Branch, Rawalpindi, on standard terms and conditions contained in Joint Services Instruction No. 4/85. On 30.11.2002, the G.H.Q., Military Secretary Branch issued, order for reversion of various Army Officers and the petitioner's name was mentioned at SI. No. B. The G.H.Q., Military Secretary Branch, vide letter dated 17 1.2008 informed PESCO that the Chief of Army Staff was \ pleased to order the posting and appointment of the petitioner from C.E.O., PESCO to Brigadier Trial, 11 Corps for pre-retirement formalities w.e.f. 1.2.2008.
The petitioner relinquished the charge from C.E.O., PESCO on ,1.2.2008, assumed the charge as Brigadier Trial, 11 Corps on 2.2.2008 and was retired/struck of from Army w. Ej. 4.2.2008. Meanwhile, the Prime Minister was pleased to approve the re-employment of the petitioner as C.E.O., PESCO, Peshawar, for a period of one year, after his superannuation, on contract basis on standard terms and conditions, which was communicated to Secretary Water and Power by the P.M. Secretariat vide letter dated 31.1.2008. The Ministry of Water and Power was also required to take further necessary action in coordination with the Ministry of Defence in this regard. The Ministry of Water and Power vide letter dated 7.2.2008 informed Ministry of Defence regarding the re-employment of the petitioner and also requested to convey the N.O.C, for re-employment, which was issued on 29.3.2008. The petitioner was re- employed as C.E.O. PESCO for a period of one year vide Notification dated 9.2.2008 and assumed the charge w.e.f. 4.2.2008 vide charge assumption report dated 11.2,2008: Later on, on 21.2.2008 the petitioner was transferred from C. E.O., PESCO Peshawar.
To C.E.O., TESCO, and the respondent No. 6 Muhammad Qasim Khan was transferred from Principal, WAPDA Staff College, Islamabad, and posted as C.E.O., PESCO, Peshawar on current charge basis who, vide Notification No. 262-99/11/47, dated 22.2.2008, assumed the charge as C.E.O., PESCO, Peshawar. The petitioner did not assume the charge as C.E.O., TESCO and himself cancelled the above-said Notification dated 22.2.2008 vide Notification No. 42- 53/Ch. Ex./PESCO, dated 22.2.2008.
The controversy was brought to the notice of M.D., PEPCO who vide letter No. 1086-11 MD(PEPCO)/DDA, dated 23.2.2008 directed the petitioner to withdraw the said notification dated 22.2.2008 issued by him, hand over the charge of C.E.O., PESCO to the respondent No. 6 and assume charge of the post of C.E.O., TESCO. On petitioner's refusal the M.D. PEPCO made office order No. 1620-35 MD (PEPCO)/DDA, dated 23.2.2008 cancelled the Notification No. 42- 53/Ch. Ex./PESCO, dated 22.2.2008 being issued without lawful authority in contravention of the service discipline and also relieved the petitioner from the post of C.E.O., PESCO w.e.f. 21,2.2008, with the direction to assume the charge of C.E.O., TESCO, immediately. The petitioner was again directed on telephone to hand over the charge to the respondent No. 6 but he refused to do the same, resultantly, vide letter No. 1640-42 MD (PEPCO)/DDA, dated 23.2.2008 the M.D., PEPCO once again directed the petitioner to hand over the charge to the respondent No. 6, failing which his contract for conditional re-employment was to be terminated. The petitioner challenged the order dated 21.2.2008 and 23.2.2008 through a civil suit before Civil Judge, Peshawar, which was later on withdrawn by the petitioner on 27.2.2008 and instead Writ Petition No. 238 of 20Q8 was filed before the Peshawar High Court, Peshawar challenging the same orders, which was dismissed vide the impugned judgment, hence this petition.
3. Mr. Muhammad Ibrahim Satti, learned Sr. ASC for the petitioner has submitted that the petitioner was posted and performing his duties as C.E.O., PESCO, Peshawar, in pursuance of his appointment letter dated 31.1.2008 issued by the P.M. Secretariat, Islamabad and the notification dated 9.2.2008 issued by Ministry of Water and Power, therefore, the contract of his re-employment could not have been terminated without issuing him show-cause notice, opportunity of being heard and detailed inquiry in view of the dictum laid down by this Court in various judgments. Reliance was placed on the cases (i) The Secretary, Government of Punjab v. Riaz-ul-Haq (1997 SCMR 1552), and an unreported case titled Asim Rizwan v. Secretary Information & Broadcasting, P.Tv.C. & others (C.P.
No. 549 of 2008). He has further submitted that while working as C.E.O., PESCO, Peshawar, the petitioner was transferred to C.E.O., TESCO, vide office order dated 21.2.2008, which clearly indicates that the re-employment of the petitioner was lawful and was admitted by PESCO, It is further his case that termination of petitioner was made in the context of transfer from C.E.O., PESCO to C.E.O., TESCO, which was an illegal order on the ground that the petitioner, was actually working under WAPDA and not in PEPCO; that the petitioner being an Army Officer could not have been transferred to a city other than the city of his posting; the respondent No. 6 could not have been appointed as C.E.O., PESCO dn current charge basis as under the relevant instructions only the senior most person at the station can be appointed on current charge basis, for which only the petitioner was entitled. He has further contended that though the services of the petitioner was on contract basis even then the judicial review was possible in view of the law laid down by this Court in cases reported as 1998 SCMR 2268, 1999 SCMR 467,. Messrs Ramna Pipe & General Mills (Pvt.) Ltd. v.
Messrs Sui Northern Gas Pipe Lines (Pvt.) Ltd. (2004 SCMR 1274), Allied Bank Ltd. v. Syed Nasir Abbas Naqvi & others (2007 SGMR 1143), Collector of Customs (Valuation) & another v. Karachi Bulk Storage & Terminal Ltd. (2007 SCMR 1357).
4. Sh. Riazul Haq, ASC appeared on behalf of official respondents/PEPCO stated that the instant petition is liable to be dismissed on the ground that the petitioner was withdrawn from the post of C.E.O. PESCO vide letter dated 17.1.2008 and was directed by G.H.Q., Military Secretary Branch to report 11 Corps on 1.2.2008. The petitioner relinquished the charge of- the C.E.O., PESCO, through illegal MOV order dated 1.2.2008 issued under his own signature and also got issued last pay certificate from PESCO, on the contrary he continued working as C.E.O., PESCO in papers. The petitioner managed his joining report at 11 Corps on 2,2.2008 in a mysterious manner and remained on duty till 4.2.2008 on the same day when he was present in 11 Corps, in uniform, he also worked as C.E.O., PESCO, and signed various files; that the petitioner under his own signature issued notification dated 11.2.2008; that he has assumed the charge as C.E.O., PESCO, Peshawar, w.e.f.
4.2.2008 which is not possible because he was retired from Army on the forenoon of 4.2.2008; that the Ministry of Water and Power, vide letter dated 7.2.2008, requested the Ministry of Defence for providing N.O.C, for re-employment which was issued by the Ministry of Defence vide O.M. Dated 29.3.2008 but the petitioner was re-employed prior to the issuance of N.O.C .Vide Notification dated 9.2.2008. The petitioner without lawful authority and in contravention to service discipline cancelled the notification dated 22.2.2008 whereby the respondent No. 6 took over the charge of C.E.O., PESCO in pursuance to transfer order dated 21.2.2008; that the petitioner did not abide by the order of the competent authority and refused to hand over the charge of C.E.O., PESCO to the respondent No. 6 and assumed the charge of C.E.O., PESCO which tantamount to insubordination and non- observance of official procedure; that the matter involved the controversial fact which could not be adjudicated upon by the learned High Court in extraordinary Constitutional jurisdiction.
5. Hafiz S.A. Rehman, learned Sr. ASC appeared on behalf of official respondents of PESCO, Peshawar and Sh. Zamir-Hussain, ASC appeared on behalf of respondent No. 6 while adopting the arguments of Sh, Riaz-ul-Haq, ASC further contended that petitioner relinquished the charge as C.E.O., PESCO vide movement order dated 1.2.2008 issued under his own signature which had to be issued by General Manager, Human Resource, PESCO and the petitioner was not competent to issue his own movement order; that after resuming the charge as C.E.O., PESCO, he assumed the charge vide Notification dated 11.2.2008 under his own signatures, without the consent and approval of the competent authorities; that neither any Notification was issued nor. Any formal agreement was executed by the PESCO or PEPCO authorities; that the petitioner was a contract employee and his services . Could have been terminated on one month's notice or payment of one month's pay in lieu thereof, under the agreement; that no charge has been levelled against the petitioner and no stigma is attached to his person except the word "tantamount to insubordination" used in the letter dated 23.2.2008, but by no stretch of imagination it could be said that the petitioner was charged for insubordination.
6. We have carefully examined the contentions agitated on behalf of the petitioner in the light of relevant provisions of law and record of the case, besides perusing the judgment impugned. We are not persuaded to agree with the prime contention of the learned counsel for the petitioner that regular inquiry in the case was inevitable for the reason that instant was simply a case of insubordination and hardly any controversial fact, justifying a thorough probe, was involved. The petitioner could not substantiate his refusal to comply with the transfer order and to hand over charge of the post, amounting to misconduct, In this view, we are fortified by the observations made in the case reported as Muhammad Aslam v. Inspector General of Police Punjab (2004 PLC
(CS) 675). It is not necessary that inquiry must" be held in each and every case as it depends upon the circumstances of the case, It is well-settled that services of an employee can be terminated without holding regular inquiry for the reason that t|pe Competent Authority can dispense with holding of such inquiry especially when the allegation levelled against the employee had been proved on the basis of documentary evidence. Reference in this regard may usefully be made to the case of Mst. Samina Nazeer v. District Education Officer (W), Khanewal and others (2004 SCMR 290).
7. As regards the plea raised by the learned counsel for the respondents that the petitioner could not have invoked the Constitutional jurisdiction for the redressal of his grievances, it may be pointed out here that by now it is also well-settled that an employee of a corporation, in the absence of violation- of law or any statutory rule, cannot press into service the Constitutional or civil jurisdiction for seeking relief of reinstatement in service. He can only claim damages against his wrongful dismissal or termination. This Court in the case of Pakistan Red Crescent Society and anothers/. Syed Nazir Gillani (PLD 2005 SC 806), has held as under:- "11. We have also adverted to the question as to whether the respondent could have invoked the Constitutional jurisdiction for the redressal of his grievances or otherwise? It is well-settled law that an employee of a Corporation in the absence of violation of law or any statutory rule could not press into service the Constitutional jurisdiction or civil jurisdiction for seeking relief of reinstatement in service. His remedy against wrongful dismissal or termination is to claim damages, In this regard we are fortified by the dictum laid down in the following authorities:- Mrs. M.N. Arshad v. Mrs. Naima Khan (PLD 1990 SC 612), Messrs Malik and Haq and another v.
Muhammad Shamsul Islam Chowdhuary and 2 others (PLD 1961 SC 531) Zainul Abidin V. Multan Central Cooperative Bank Limited, Multan (PLD 1966 SC 445); The Chairman, ' East Pakistan Industrial Development Corporation, Dacca and another v. Rustom AH and another (PLD 1966 SC 848), Abdul Salam Mehta v. Chairman, Water and Power Development Authority and another (1970 SCMR 40), It Col. Shujauddin Ahmad v. Oil & Gas Development Corporation (1971 SCMR 566), R.T.A.
Janjua v. National Shipping Corporation (PLD 1974 SC 146), The Principal, Cadet College, Kohat and another v. Muhammad Shoaib Qureshi (PLD 1984 SC 170), Anwar Hussain v. Agricultural Development Bank of Pakistan and another (PLD 1984 SC 194), Syed Akbar Ali Bokhari v. State Bank of Pakistan and others (PLD 1977 Lah. 234), Muhammad Yousuf Shah v. Pakistan International Airlines Corporation (PLD 1981 SC 224), the Evacuee Trust Property Board and another v.
Muhammad Nawaz (1983 SCMR 1275)."
12. It may also be not out of "place to mention here that this Court has consistently held that in the case of an employee of a Corporation where protection cannot be sought under any statutory instrument or enactment, the relationship' between the employer and employee is that of a Master and Servant as enunciated in various judicial pronouncements which still hold the field are as- under:-
(i) Chairman of East Pakistan Development Corporation v. Rustam Ali (PLD 1966 SC 848); Lahore Central Cooperative Bank Limited v. Pir Saifullah Shah (PLD 1959 SC (Pak) 210);
(ii) Shahid Khalil v. P.I.A.C. Karachi (1971 SCMR 568); f
(iii) A. George v. Pakistan International Airfines Corporation (PLD 1971 Lah. 748);
(iv) Muhammad Umar Malik v. The Muslim Commercial Bank Ltd. Through its President, Karachi and 2 others (1995 SCMR 453);
(v) Habib Bank Limited v. Ziaul Hassan Kazmi (1998 SCMR 60);
(vi) Raziuddin v. Chairman, P.I.A.C. (PLD 1992 SC 531);
(vii) Nisar Ahmed v. The Director, Chiltan Ghee Mill (1987 SCMR 1836);
(viii) Sindh Road Transport Corporation v. Muhammad Ali G. Khokhar (1990 SCMR 1404);
(ix) Agricultural Development Bank v. Muhammad Sharif (1988 SCMR 597);
(x) Zeba Mumtaz v. First Women Bank Ltd. (PLD 1999 SC 1106)."
9. In the circumstances, we are of the view that learned Division Bench of the Peshawar High Court has rightly held that the Constitutional jurisdiction as conferred upon the High Court under Article 199 of the Constitution of the Islamic Republic of Pakistan could not have been invoked by the petitioner for the enforcement of contractual obligation.
10. Upshot of the above discussion is that this petition has no merit, which is hereby dismissed and .
The respondent may approach the forum concerned for redressal of his grievance, if desired.