The Petitioner, Syed Mushtaq Hussain Bukhari, through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has called in question the notice dated 28th February, 2013 whereby his service contract has been terminated; and, prayed for the issuance of direction to the respondents for regularizations of his service as Director Finance of the Multan Electric Power Company (MEPCO).
2. Briefly the facts of the case are that the Chief Executive Officer, Pakistan Electric Power Company (PEPCO), through an advertisement, which appeared in daily Dawn dated 21st July, 2003, invited applications for appointment to the post of Finance Director in Hyderabad Electric Supply Company (HESCO) and the Multan Electric Power Company (MEPCO) on contract basis. The petitioner being Fellow of Chartered Accountancy (FCA) ventured his application for the post of Finance Director in MEPCO. The petitioner was found suitable and, therefore, the Chief Executive Officer PEPCO vide Letter No, 2684- 86/PEPCO/CEO/DDA/PF-138 dated 30th October, 2003 ("Offer Letter") offered him the position of Finance Director (MEPCO) on contract basis for a period of two years. The petitioner after accepting the terms and conditions of the Offer Letter assumed the charge of the said post. The tenure of petitioner's appointment-contract was extended from time to time; and, finally in pursuance of terms and conditions contained in the Offer Letter, a Notice No, 19158-63 CE/MEPCO/EA-I/PF-53 dated 28th February, 2013 ("Termination Letter") was served upon the petitioner whereby his services stood terminated with effect from 31st March, 2013.
3. Learned counsel for the petitioner through the instant petition has asked for an order in the nature of mandamus under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for quashing the Termination Letter on the plea that the same is unreasonable, violative of rules, policy and law applicable thereto.
4. The question which requires determination by this Court is as to whether the termination of contractual appointment stands vitiated by any legal infirmity to call for interference under Article 199 of the constitution of Islamic Republic of Pakistan, 1973. This question has to be answered in two distinct parts. The first part relates to the aspect whether the Termination Letter issued by the respondent-Company is amenable to judicial review and if so what is the scope of such review.
The second part of the question is whether on the standards of judicial review applicable to it, the Termination Letter is seen to be suffering from any legal infirmity. At the outset it is pertinent to mention that there is no challenge before this Court as to the competence of the authority that issued the Termination Letter. What is contended on behalf of the petitioner is that the respondent- company did not act fairly and objectively in taking the decision to terminate the contract. It is contended that the decision to terminate the contractual employment is not a fair and reasonable decision having regard to the fact that the petitioner had performed well during his tenure; and, the requirement of the Company to have Director Finance continues to subsist his substance, the contention urged on behalf of the petitioner is that this Court should reappraise and review the material touching the question of performance of the petitioner as Director Finance. I am afraid this cannot be done by this Court. It is true that judicial review of matters that fall in the realm of contracts is also available before the superior Courts, but the scope of any such review is not all pervasive. It does not extend to the Court substituting its own view for that taken by the decision- making authority. The legal position is settled that judicial review is not so much concerned with the correctness of the ultimate decision as it is with the decision-making process unless of course the decision itself is so perverse or irrational or in such outrageous defiance of logic that the person taking the decision can be said to have taken leave of his senses. In this regard reference may be made to the cases of "State of Maharashtra vs. Prakas Prahlad Pail" (AIR 2010 SC 463) and "Dr. - Akhtar Hussain Khan and others vs. Federation of Pakistan and, others" (2012 SCMR 455).
5. The services of the petitioner were governed by the terms and conditions of Offer Letter dated 30.10.2003 which, inter alio, contained the following condition: "This contract may be terminated by either party giving the other party one month's notice or one month's salary in lieu thereof Notwithstanding the foregoing your services can be terminated by Chairman PEPCO and / or Chairman/ Chief Executive Officer of MEPCO without any notice if you are found guilty of dishonesty, misconduct negligence, indiscipline or breach of trust."
There is no doubt that if a person is employed on contract basis and if the terms of employment provide the manner of termination of his services, the same can be terminated in terms thereof. In the case in hand the competent authority in exercise of above referred condition of service has terminated the services of the petitioner without any stigma. Thus the termination letter, impugned in this petition, in view of the principle laid down by the Hon'ble Supreme Court in the cases The Secretary, Government of the Punjab, through Secretary Health Department, Lahore and others v.
Riaz ul Haq (1997 SCMR 1552) and Agha Salim Khurshid and another v. Federation of Pakistan and others (1998 SCMR 1930) does not suffer from any infirmity.
6. The PEPCO is a Government owned Management Company which has been established to manage re-structuring of WAPDA and corporatization, and, commercialization of its Generation, Transmission and Distribution Companies. The Hon'ble Supreme Court of Pakistan in the case of Brig (R) Sakhi Marian, CEO, PESCO, Peshawar v. Managing Director PEPCO, Lahore and others (2009 SCMR 708) has held that rules of PEPCO are non-statutory. Thus, the relationship between the petitioner and respondent-company is of master and servant. If the master rightfully ends the contract, there can be no complaint. If the master wrongfully ends the contract, then the servant can pursue a claim for damages. So, even if the master wrongfully dismisses the servant in breach of the contract, the employment is effectively terminated. Jenkins, L.J., in his dissenting judgment, in Vine vs. National Dock Labour Board [(1956)1 AER 1], which was approved in appeal by the House of Lords in 1956(3) AER 939 stated: "In the ordinary course of master and servant, however, the repudiation or the wrongful dismissal puts an end to the contract, and a claim for damages arise. It is necessarily a claim for damages and nothing more. The nature of the bargain is such that it can be nothing more".
Similarly, in Ridge v. Balowin (1963) 2 WLR 935, Lord Reid said in his speech: "The law regarding master and servant is not in doubt. There cannot be specific performance of a contract of service, and the master can terminate the contract with his servant at any time and for any reason or for none. But if he does so in a manner not warranted by the contract he must pay damages for breach of contract. So the question in a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defence; it depends on whether the facts empowering at the trial prove breach of contract. But this kind of case can resemble dismissal from an office where the body employing the man is under same statutory or other restrictions as to the kind of contract which it can make with its servants, or the grounds on which it can dismiss them?
As a consequence, if an employee is dismissed in breach of a contractual requirement, he may recover damages and cannot claim re-instatement, whatever hardship he suffers as a result of his dismissal. In this regard reliance may be placed on Addis v. Gramophone Co. Ltd (1909) AC 488, Vide Collier v. Sunday Referee Publishing Co. Ltd., [1940(4) AII.E.R. 234] Rogan-Gardiner v.
Woolworths Ltd. (2010) WASC 290), Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs v. Muhammad Azam Chattha (2013 SCMR 120)
7. It is also well settled principle of law that a contract employee cannot file a writ petition to seek redress in respect of grievance relating to terms and conditions of service. The reason is that a writ of mandamus may be granted only in a case where there is statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge that statutory obligation. The chief function of the writ is to compel the performance of public duties prescribed by statute and to keep the subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. In the present case; the appointment of the petitioner as Director Finance is contractual in F nature and there is no statutory obligation as between the respondent- company and the petitioner. In my view, any duty or obligation falling upon a public servant out of a contract entered into by him as such public servant cannot be enforced by the machinery of a writ under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. This view finds support from the case of M/s. Momin Motor Company vs Regional Transportation Authority Dacca and others" (PLD 1962 S.0 108) wherein Hon'ble Supreme Court has held contractual rights are not enforceable by recourse to writ jurisdiction; Major (R) Khalil ur Rehman v. Overseas Pakistan Foundation and others (1984 CLC 2168) wherein it was observed that contractual obligation and liabilities relating to a service matter cannot be enforced by resort to writ jurisdiction; and M. A Rashid v. Province of Punjab and 2 others (1987 MLD 153) wherein it was held that the constitutional jurisdiction cannot be exercised in respect of petitioner whose services have been terminated in accordance: with terms of his contract.
8. As regards prayer for issuance of direction to the respondents for regularization of service of the petitioner as Director Finance, it is suffice to say that the petitioner having entered into contract of service has no vested right, to seek regularization of his employment, which is discretionary with the Master. The Master is well within his right to retain or dispense with services of an employee on the basis of satisfactory or otherwise performance. As per settled principle of law, the petitioner after having accepted the conditions of service has no locus standi to file constitutional petition seeking writs of prohibition and mandamus to authority to refrain from terminating his services and to retain him on his existing post on regular basis. In this regard reliance may be placed on the cases of "Government of Balochistan, Department of Health through Secretary, Civil Secretariat Quetta v. Dr. Zahida Kakar and 43 others (2005 SCMR 642), Abid Iqbal Hafiz and others v. Secretary, Public Prosecution Department, Government of the Punjab, Lahore and others" (PLD 2010 S.0 841), "Pakistan Telecommunication Co. Ltd through Chairman vs. Iqbal Nasir and others" (2011 PLC (CS)
623) and HRC No, 44517-K/2010 regarding Regularization of the contract Employees of Zakat Department (2013 SCMR 304).
9. This petition sans merit and is accordingly dismissed.