This writ petition has been filed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
2. It was stated in the writ petition that the petitioner was appointed as Chairman Mirpur Development Authority (MDA) on 24.11.2007 through a Govt. notification, through which It was mentioned that terms of appointment will be settled later on. The petitioner took charge of the said post on 28.11.2007. Later on, the terms and conditions of appointment were fixed through another notification dated 08.05.2008, issued in continuation of first notification. The period of contract for the said post was fixed as three years, which was extendable. But on 06.01.2009, a notification was issued by the non-petitioners, through which the petitioner was removed from his office as Chairman Mirpur Development Authority. This notification was issued without lawful authority and it was void ab-initio.
3. It was further stated by the petitioner that his removal notification was issued without hearing him. No notice was issued by the non-petitioners to him. No allegation or reason for removal was made against the petitioner. The service of the petitioner cannot be terminated before three years.
No benefits, privileges and allowances were provided to the petitioner. The petitioner prayed to issue a writ setting-aside the impugned notification dated 06.01.2009 being issued without lawful authority and declaring that the petitioner still holds the office of Chairman Mirpur Development Authority in accordance with the notification dated 08.05.2008 with all benefits, privileges and allowances. It was further prayed to issue a direction to the non-petitioners not to remove the petitioner till the lapse of the period of three years as mentioned in the notification dated 08.05.2008 and to declare the petitioner entitled to get all the benefits and privileges of the said period.
4. Non-petitioners submitted parawise comments, which were later on treated as written statement on behalf of the respondents. It was stated in the written statement that the matter pertains to the terms and conditions of service, which is exclusive jurisdiction of Service Tribunal, so the writ petition is not maintainable and liable to be dismissed. The contract of appointment may come to an end either by the employer or the employee at any stage of the contract period.
Government has got powers to make such appointments and to remove such employees irrespective of the agreement. The impugned notification has been issued in the larger interest of public as well as of the Government. The prerogative of Government cannot be limited for continuation of pecuniary benefits of some individual and against the larger interest of public. The impugned notification has been acted upon, therefore, the writ petition is not entertainable. The petitioner has admitted the situation by his conduct and a long period of almost one year has been elapsed, therefore, the petitioner is forbidden by law of estoppel and the writ petition is hit by the doctrine of laches.
5. It was further stated by the respondents that principle of audi-alteram partem is not applicable in the present case and to issue a notice was not a pre-requisite under law. The petitioner is not an aggrieved person and deserves no remedy. Respondents prayed to dismiss the instant writ petition.
6. Arguments were advanced by the learned counsel for the parties, Mr. Khalid Rasheed Chaudhary Advocate, the learned counsel for the petitioner contended that the non-petitioners have removed the petitioner without issuing any notice to him. The petitioner has not been heard. It is an admitted principle of law that no one should be condemned unheard. The non-petitioners were bound to follow the terms and conditions of agreement between the parties. No allegation was leveled against the petitioner. The petitioner along with other Chairmen Development Authorities was removed through a telegraphic order. The petitioner has explained the delay in filing the present writ petition. If reliable explanation is made then no delay can be attributed to the petitioner and the writ petition is not hit by the doctrine of laches. The petitioner has appended an affidavit with the writ petition in support of his version, but no such like affidavit has been submitted by the non- petitioners with their written statement. In such like situation, no rebuttal has been made by the non-petitioners. So, the version of the petitioner shall be deemed confirmed and proved. The learned counsel for the petitioner requested to accept the writ petition and referred the following precedents in support of his arguments:--
1. PLD 1988 SC (AJ&K) 24
2. PLJ 1988 Lah. 665
4. 1993 SCR 88
5. 1998 SCM R 2268
6. 2006 SCR 328
7. 2010 SCR 131
7. While controverting the learned counsel for the petitioner, Mr. Muzzafar Ali Zafar Additional Advocate General, contended on behalf of the non-petitioners that the instant writ petition is hit by the doctrine of laches. The order of removal of the petitioner was issued on 06.01.2009 and the petitioner has filed this writ petition after eleven (11) months. The appointment of the petitioner was made on contractual basis. So, the authority has got a power to remove the petitioner at any time before expiry of the contractual period. The learned Additional Advocate General requested to dismiss the present writ petition.
8. After hearing the learned counsel for the parties, I have gone through the record and precedents referred by the learned counsel for the petitioner with utmost care. It is an admitted position that the petitioner was appointed as Chairman MDA through a notification dated 24.11.2007. The said notification is hereby reproduced as under:-- {{URDU TEXT}} In pursuance of the above-mentioned notification, the petitioner took charge of the said post on 27.11.2007. This charge report was forwarded to the concerned authorities on 28.11.2007. Thereafter, a further notification was issued on 08.05.2008, through which terms and conditions of service in favour of the petitioner were issued. The said notification is also reproduced as under:-- "Notification; No, S&GAD/A-1 (40)/2008 the President, of Azad Jammu and Kashmir, in continuation of Notification No, Admin/A-1 (40) (ii)/ Gazetted-I 2007 dated 24.11.2007, has accorded sanction to the following terms and conditions in favour of Dr. Muhammad Ameen Chairman Mirpur Development Authority.
Salary; Equal to Grade BPS-20 + 30% of basic pay of BPS-20 as social security benefit in lieu of pension.
House Rent; 45% of BPS-20. Other Allowances; As admissible to other officers in BPS-20. Leave; As per leave Rules in vogue.
Medical Facilities; As per Medical Rules in vogue.
Conduct Rules; Their conduct shall be governed by the Azad Jammu and Kashmir Civil Servants Conduct Rules, 1981.
Traveling Allowances; As admissible to other officers in BPS-20. Period of Contract; The period of contract shall be three years which may be extended. (Mazhar Farooq Janjua) Section Officer Services and General Administration Department Gazetted Section I."
Later on, the impugned notification regarding removal of the petitioner along with others was issued on 06.01.2009, the said notification is reproduced as under-- {{URDU TEXT}} It is clear from the perusal of the above-mentioned notification that appointments made on contractual basis of six (06) Chairmen of Development Authorities including the petitioner were terminated before expiry of the contractual period.
9. It is an admitted fact that the appointment of the petitioner was made on contractual basis. It is pertinent to resolve this point at this stage that whether the petitioner can invoke the constitutional. jurisdiction of this Court regarding a service based on a contract or an 'agreement? It has been asserted by the learned Additional Advocate General that the present writ petition was not maintainable as it sought enforcement of a contract. Now, the trend of precedents has been changed and remedy of writ petition is permitted in cases involving contract between the person and state because it is more efficacious and speedy remedy as compared to a civil suit. This principle has been laid down in the precedent PLD 1998 Lah. 665. It has been further laid down in this precedent that the petitioner does not seek enforcement of terms and conditions of contract but asserts his rights against action of state, which is termed to be unlawful and breach of contract complained on part of state can be said to be breach of statutory obligation. The same principle has been laid down in the precedent PLD 1992 Kar. 283 in a case titled M/s. Pacific Multi-National Pvt. Ltd. Vs. Inspector General of Police Sindh.
It is clear from the above-mentioned principles laid down by the Superior Courts, that the present petitioner can claim remedy by invoking constitutional writ jurisdiction of this Court. The second point to be resolved is whether this writ, petition has been filed after eleven (11) months and hit by the doctrine of laches or not? It has been mentioned in para 09 of the writ petition, which is reproduced as under: "9. That after the termination of services of petitioner by non-petitioners, the petitioner approached the non-petitioners who promised the petitioner to cancel the impugned Notification but finally refused a week before hence this petition does not hit by the doctrine of laches".
The petitioner has submitted an affidavit in support of contents of the writ petition. The petitioner has explained the cause of delay in his writ petition. It has been laid down by the Apex Court of AJ&K in a case titled Tahir Mehmood Khan Vs. Azad Govt. and others (2006 SCR 382) that it is not the time only which has to be considered to attract the principle of laches. It is only the absence of reasonable explanation, Which attracts application of laches. In the present case; the petitioner has made an explanation regarding delay of filing the present writ petition. The petitioner has submitted an affidavit in support. On the other side, the non-petitioners did not submit any affidavit in support of their version. So, there is no rebuttal or denial on the point of delay on record.
So, the affidavit submitted by the petitioner has become conclusive proof. This principle has been laid down by the Apex Court of AJ&K in a case titled Muhammad Sharif Khan Vs. Mirza Fazal Hussain and others (1993 SCR 88). In this situation, the present writ petition is not hit by the doctrine of laches.
10. It is an admitted principle laid down in plethora of judgments by the Superior Courts that no one should be condemned unheard. The plain reading of the impugned notification, through which the petitioner was removed before the expiry of contractual period reflects that the petitioner was not heard. No allegation was leveled against the petitioner and no notice was issued regarding the action, the authority has taken. The impugned order of removal was passed without affording an opportunity of hearing to the petitioner and such like order cannot be considered a valid order in the eyes of law. This principle has been laid down in a case decided by the Apex Court of AJ&K titled Mirza Aslam Baig Vs. Sageer Iqbal (PLD 1988 SC (AJ&K) 24). It was further held in the said case that maxim audi-alteram partem is to be read into the relevant law unless its application is excluded by express words. It is duty of the Courts to act fairly and with due regard to the principles of natural justice unless specifically exempted from such like situation. In fact, the maxim audi- alteram partem extends to all proceedings, which may affect the persons or property or other rights of the parties concerned in dispute. An order passed without affording an opportunity of hearing to an affected party cannot be considered a valid order in the eyes of law. In the present case, the petitioner has clearly mentioned in his writ petition that he was not heard at all. This version has been admitted by the non-petitioners through their written statement. The non- petitioners stated in the written statement that authority has a power to remove any employee irrespective of any agreement at any stage of the contract period. It means that the petitioner was removed from his service without hearing him and before expiry of the period of contract. Period of contract for the service of the petitioner has been mentioned in the notification regarding terms and conditions as three years. The word "shall" has been written in the notification, which means that non-petitioners were bound not to remove the petitioner before three years. But the non- petitioners removed the petitioner ignoring and violating the admitted provisions of law.
Having in view the circumstances discussed above, the impugned order of removal of the petitioner is not sustainable, which is liable to be set-aside. It is pertinent to mention here that after removal of the petitioner, many officials were appointed as Chairman MDA and the period of contract regarding service of the petitioner has also been expired, so it will not serve any purpose to reinstate the petitioner as Chairman MDA. The petitioner is, however declared entitled to receive salary, privileges and all other benefits of Chairman MDA for the remaining period of contract of his service. The impugned notification dated 06.01.2009 is hereby set-aside to the extent indicated. The non-petitioners are directed to pay salary, privileges and all other benefits to the petitioner for remaining period of his contract, therefore, this writ petition is accepted in the terms indicated above.