This judgment shall dispose of W.P. No. 4481 of 2007 and W.P. No. 4602 of 2007, which have arisen out of the same order and in both these writ petitions, same question of law and fact is also involved.
2. Succinct facts in both these writ petitions are that Major (Retired) Javed Arshad Khan Manj Petitioner No. 1 was appointed by the respondent Board on regular basis as the Manager Estates and Recoveries with effect from 15.12.1999 vide letter dated 2.12.1999 and subsequently, he was promoted as General Manager Administration, whereas Major (Retired) Ahmad Anwar was initially appointed Manager Cricket Operations (Domestic) on regular basis by the respondent Board vide letter dated 13.6.2000 and thereafter he was appointed PSO to the Chairman Pakistan Cricket Board with additional duties of Protocol and Liason with Legal Advisors vide letter dated 19.10.2004. Col. (Retired) Muhammad Parvaiz petitioner in W.P. No. 4602 of 2007 was appointed as Administrator Pakistan Cricket Board on regular basis with effect from 1.12.1999 vide letter dated 20.11.1999 and subsequently, he was appointed as Administrator of the National Cricket Academy. Thereafter, the petitioner had been performing his duties as General Manager Cricket Special Projects. Vide letter dated 16.4.2007 issued by the Chief Operating Officer, Pakistan Cricket Board services of all the three petitioners in both these writ petitions were terminated. Against the said order, all the three petitioners have filed both these writ petitions.
3. At the very outset, learned counsel for the petitioners has emphasized that according to notification dated 22.2.1995 (SRO.55(KE)/95), which has been published in the Gazette of Pakistan on 16.3.1995, the Board has duly been constituted for the purpose of promotion, development and regulating the game of cricket in Pakistan and powers and functions of the Board have also been determined by the Federal Government, as such, the status of the respondent Board is statutory in nature and the constitutional petitions are maintainable. It is further contended that vide notification dated 20.9.2007 (S.R.O. 64 (KE)/2007), which has been published in the Gazette of Pakistan on 18.10.2007, the constitution of the Board came into force for the creation of certain posts, i.e. Chief Operating Officer and according to the said notification, objects and functions of the Pakistan Cricket Board were to make appointment of managers, coaches and other officials of the national teams. It is further contended that as per Para 36 of the said notification, the Patron was provided with the powers to order supersession of the management of PCB and appoint ad hoc committee consisting of a Chairman and as many members, as he may consider appropriate for performance of the functions of PCB while under Para 37, an ad hoc committee appointed under the rules could perform all the function of an ad hoc committee in accordance with the- provision of the rules and in view of the same, restructuring was not to be carried out by M/s. Ferguson Associates as they had no authority to undertake the restructuring of the PCB, as such, the impugned order dated 16.4.2007, which has been issued on the recommendations of M/s. Ferguson Associates, illegal, ultra vires of the law and of no legal consequence. It is further contended that neither reason has been given for the termination of services of the petitioners nor the post has been abolished. It is further contended that neither show cause notice has been given to the petitioners nor an opportunity of hearing has been afforded to them, therefore, the termination of the petitioners is not only violative of the Service Rules of the respondent-Board but also the well-known established principle of audi alteram partem. It is further contended that if there was any allegation against the petitioners, proper inquiry should have been conducted and the petitioners be afforded a proper opportunity of hearing and thereafter the impugned order should have been passed but neither proper inquiry has been conducted nor proper opportunity of hearing has been given to the petitioners, therefore, mala fides of the respondent Board are apparent while passing the impugned order. It is further contended that the respondent Board had deposited certain amounts in the accounts of the petitioners at the time of the issuance of the impugned order and the said amounts were returned by the petitioners to the respondent Board. It is further contended that 80 employees were terminated and on the very next day, orders of 71 employees were withdrawn, as such, the petitioners are being discriminated and the same has not been controverted by the respondent Board. It is further contended that after the issuance of the impugned order, the respondent Board vide advertisement dated 25.4.2007, advertised for the said post of the petitioners, which completely belies the stance of the respondent Board that the termination has been made on the basis of any restructuring, as such, the prayer does not pertain to the terms and conditions of service rather the same has been challenged on the premises of illegality and against the rules and even the principles enunciated in Section 24-A of the General Clauses Act have not been adhered to while passing the impugned order. It is further contended that in the order dated 24.11.2008, this Court had held that the petitioners were, appointed on their respective posts on regular basis; the petitioners were appointed by the Chairman, Pakistan Cricket Board; the Pakistan Cricket Board is a statutory body . . . . . the petitioners were not provided an opportunity of hearing by issuing any notice, show cause notice neither an inquiry was conducted, therefore, prima-facie the respondent-Board has violated the minimum requirement of well-known settled principle of audi alteram partem" and in view of the same, the constitutional petitions are maintainable. In support of his contentions, reliance has been placed upon Muhammad Dawood and others Vs. Federation of Pakistan and others (2007 PLC (C.S.) 1046), Sultan Ali and 8 others Vs. Akesp North Office, Gilgit and 6 others (2007 PLC (C.S.) 1085), Asadullah Mangt and others Vs. Pakistan International Airlines Corporation and others (2005 SCMR 445), Arshad Jamal Vs. N.W.F.P. Forest Development Corporation and others (2004 SCMR 468), Independent Newspapers Corporation (Put.) Ltd. Vs. Chairman, Fourth Wage Board and Implementation Tribunal for Newspaper Employees, Government of Pakistan, Islamabad and 2 others (1993 SCMR 1533) and Zain Yar Khan Vs. The Chief Engineer, C.R.B.C. WAPDA D.I. Khan and another (PLJ 1999 SC 1105).
4. On the other hand, learned counsel for the respondent Board, while opposing the contentions of learned counsel for the petitioners, raised an objection as to the maintainability of these writ petitions on the ground that Service Rules of the respondent Board are non-statutory and in the absence of the statutory Rules, relationship between the petitioners and the respondent Board is that of master and servant and the remedy for the petitioners, if aggrieved of the termination, can at the most be a suit for damages and not a relief of reinstatement into service, therefore, both these writ petitions are not maintainable. It is further contended that services of the petitioners were terminated on the recommendation of a well-known Chartered Accountant Firm namely M/s. Fergusan Associates and those recommendations were also approved by the Adhoc Committee of the respondent Board and the Chief Operating Officer simply conveyed the decision taken by the respondent Board, therefore, the services of the petitioners were terminated in accordance with the Employees Service Rules, 2007. It is further contended that the contention of learned counsel for the petitioners that 80 employees were terminated and on the very next day, orders of 71 employees were withdrawn, has no force as all the lower cadre employees have been reinstated on humanitarian grounds keeping in view their extremely poor financial condition. It is further contended that substantial amounts were transferred in the accounts of the petitioners which they accepted without objection, therefore, no illegality or violation of the Rules was committed in terminating the services of the petitioners. It is further contended that the tenure of the petitioners was spoiled with inefficiencies and mismanagement and there was complete failure in developing standard operation procedures and it was due to negligence and failure of the petitioners which resulted in breakdown of flood lights at Gaddafi Stadium during one day international match between Pakistan and West Indies on 10 December, 2006 which caused great embarrassment to the country in general and to PCB in particular, therefore, the services of the petitioners were rightly terminated and in view of the same, these writ petitions be dismissed. In support of his contentions, the learned counsel has relied upon Roziuddin Vs. Chairman, Pakistan International Airlines Corporation and 2 others (PLD 1992 SC 531), Messers Malik and Haq and another Vs. Muhammad Shamsul Islam Chowdhury and two others (PLD 1961 SC 531), S. Atiqad Hussain Naqvi and 5 others Vs. Chief Officer, Karachi and another (1979 CLC 391), Mst. Anisa Rehman Vs. and another (1994 SCMR 2232), Muhammad Umar Malik Vs. The Muslim Commercial Bank Ltd. through its President, Karachi and 2 others (1995 SCMR 453), Anwar Hussain Vs. Agricultural Development Bank of Pakistan and others (PLD 1984 SC 194), United Bank Limited and other Vs. Ahsan Akhtar and others (1998 SCMR 68), Pakistan International Airline Corporation and others Vs. Tanweer ur Rehman and others (PLD 2010 SC 676) and Executive Council, Allama Iqbal Open University, Islamabad through Chairman and another Vs. M. Tufail Hashmi (2010 SCMR 1484).
4-A. I have heard learned counsel for the parties and have also gone through the impugned order as well as other material available on the file.
5. The appointments of the petitioners in both these writ petitions were made in the years 1999 and 2000 and at that time, their services were regulated under. the Service Rules, 1988 which were later on replaced by the Service Rules 2002 and currently Service Rules 2007 are applicable. It appears from the file that during the tenure of the employment of the petitioners, Services Rules were amended or replaced on numerous occasions and the said amendments and replacements were never challenged by the petitioners. Service Rules, 2002 were replaced by Service Rules 2007 which were duly approved by the Ad-hoc Committee of PCB in its meeting held on April, 10, 2007 which were applicable to all employees with immediate effect. All the employees of the respondent Board including the petitioners were officially informed on the same date about the Services Rules 2007 vide letter dated 13.4.2007 and in view of the same, the services of, the petitioners were terminated under the Employees Service Rules, 2007 and according to rule 9.3 of the Service Rules, 2007, the Board has the power to terminate the services of a regular employee. Both the Service Rules, 2002 and Service Rules, 2007 are non-statutory as the Pakistan Cricket Board has the power to make rules regarding appointments and termination of the employees and in the absence of any statutory service rules, relationship between the employer and the employee is that of master and servant and relief of reinstatement in service is not visualized for such relationship nor the same can be granted. Since services of the petitioners were governed by the Service Rules, 2007, therefore, they would be governed by the principle of Master and Servant and in view of the same, the services of the petitioners were rightly terminated by the respondent Board vide order dated 16.4.2007. It is necessary to mention here that if there is a violation of any statutory rule, constitutional petition is competent but if there is any violation of non-statutory rules, remedy is available to sue for damages. In this case, Service Rules, 2007, which were framed by the Board, are considered to be non-statutory, whereunder the services of the petitioners were terminated, therefore, remedy for the petitioners is to sue for damages, as such, both the constitutional petitions are not maintainable. In this respect, reliance is placed upon Roziuddin Vs. Chairman, Pakistan International Airlines Corporation and 2 others (PLD 1992 SC 531), Messers Malik and Haq and another Vs. Muhammad Shamsul Islam Chowdhury and two others (PLD 1961 SC 531), S.Atiqad Hussain Naqvi and 5 others Vs. Chief Officer, Karachi and another (1979 CLC 391), Mst. Anisa Rehman Vs. P.LAC. and another (1994 SCMR 2232), Muhammad Umar Malik Vs. The Muslim Commercial Bank Ltd. through its President, Karachi and 2 others (1995 SCMR 453), Anwar Hussain Vs. Agricultural Development Bank of Pakistan and others (PLD 1984 SC 194), United Bank Limited and other Vs. Ahsan Akhtar and others (1998 SCMR 68), Pakistan International Airline Corporation and others Vs. Tanweer ur Rehman and others (PLD 2010 SC 676) and Executive Council, Allama Iqbal Open University, Islamabad through Chairman and another Vs. M. Tufail Hashmi (2010 SCMR 1484). Even otherwise, services of the petitioners were terminated and some amounts were paid to them and they accepted the same without any objection at the relevant time. Learned counsel for the respondent Board has in this regard adverted to W.P. No. 7571 of 2008, which had earlier been dismissed as withdrawn vide order dated 3.12.2008 and in the said writ petition, the respondents had taken an objection that the amounts have been received by the petitioners without any objection and in view of the same, the petitioners in the instant writ petitions tried to overcome their lacunas by-submitting the Pay Orders of the said amounts 'already paid to the .petitioners by filing CM No. 3/08 along with Pay Orders-and placing the same on the file of this Court after the filing of these writ petitions as an after-thought, as such, the principle of estoppel is fully attracted to the case of the petitioners.
7. In view of the above perspective, this writ petition and W.P. No. 4602 of 2007 are dismissed.