' NOOR-UL-HAQ N. QURESHI, J.---By means of this consolidated judgment, I intend to decide the above mentioned three writ petitions having synonymous facts and law.
2. The factual matrix as uncurtained is that Messrs Aerotron is a Private Limited Company, ("hereinafter referred to as APL") which has been acting as an Independent Representative for Bell Helicopter Textron Inc. Of the United States of America ("hereinafter referred to as Bell") in Pakistan, Azad Jammu and Kashmir and Afghanistan. The petitioners and their predecessor-ininterest have been representing Bell in Pakistan since, 1974 and they have completed the different major programs. During this long period APL has maintained the highest standards of professional conduct and ethics and has enjoyed an unblemished reputation as a professional Organization.
3. On 9-5-2012, the Commandant of the Central Aviation Depot (EME) Dhamial of the Pakistan Army Aviation Command wrote an e-mail/letter directly to Bell informing it that all types of business interaction with APL have been prohibited due to security concerns since 14th October, 2011. In the same letter Bell was also requested to stop communication with APL and its representatives pertaining to all business deals. Thereafter, on 26-5-2012 another e-mail/letter was issued by the Director-General Procurement (Army) informing Bell that its local agent APL and its Directors are security wise permanently barred/not cleared for any business interaction with Army and defence organizations. Moreover, in the same letter Bell was also asked to change its local representative in Pakistan on an immediate basis for uninterrupted and smooth processing of revalidation of Rate Running Contract relating to spare parts with Bell. It is further added that on receipt of impugned letters dated 9-5-2012 and 26-5-2012, Bell replied by e-mail dated 24-5-2012 confirming receipt of the same and requested that in order to have a better insight into the compelling reasons for issuance of the said letters, the nature of the security concerns be elaborated as early as possible, but no response was received by the Bell despite reminders. Thereafter, Bell forwarded copies of the impugned letters to APL on 14-6-2012. The petitioners were shocked and dismayed to receive copies of the impugned letters via e-mail from its principal (Bell) for the first time on 14-6-2012 in terms of which Bell has been unilaterally informed the permanent bar on the petitioner (along with another individual) from any dealing or interaction with Pakistan Army and any other defence Organization and it has been demanded that Bell should change its representatives on immediate basis. Till date, neither APL nor its two Directors shareholders have received any direct formal written communication or notice from the authors of the impugned letters. Therefore, the said letters blacklisting APL and its two Directors have been issued without giving any prior notice to APL or its Directors and without providing them with an opportunity of being heard. The same have been issued without issuing any show-cause notice or giving any other intimation to APL or its Directors.
4. It is further contended that the purported decisions communicated through the impugned letters severely and adversely affect the lawful rights and legitimate interests of the petitioners. As a direct result of the issuance of the impugned letters, Bell has terminated Independent Representative Agreement ("IRA") and the Consultant Agreement ("CA") under notice to the petitioners on 15-8-2012 ("Termination Notice) solely on the basis of the impugned letters, causing direct and irreparable loss and damage (both financial and reputation) to the petitioners and violating their inalienable fundamental and constitutional rights. The impugned letters are patently illegal, without lawful authority and of no legal effect or consequence. The petitioners were constrained to serve a legal notice dated 24-8-2012 on the respondents through their counsel calling upon them to recall and withdraw the impugned letters. The petitioners being directly and adversely affected and aggrieved by the issuance of the impugned letters are left with no other adequate and efficacious remedy except to institute the Writ Petition (No,2858 of 2012).
5. In Writ Petition No,2868 of 2012, the petitioners have alleged that petitioner No,1 Muhammad Ayub Azhar is the Managing Director and sole shareholder of petitioner No,2 i.e, Aerotron AFZE, which is a company incorporated and existing under the laws of the United Arab Emirates (Free Trade Zone).
The registered office of AFZE is located in the United Arab Emirates and has also offices and place of business in Islamabad, Kabul and Afghanistan. AFZE is a party to a Sales Representation Agreement dated October 11, 2012 ("SRA") with United Technologies International Operations ("UTIO") in terms of which it has been appointed as the sales representative in respect of certain specified helicopter models of Sikorsky Aircraft Corporation ("SAC") (a wholly owned subsidiary of UTIO) for the territory of Pakistan and Afghanistan.
6. It is further asserted that in June 13, 2012 SAC received an anonymous letter, which reads as under:-- Blacklisting ' This is to advise you that your representative Ayub Azhar, his father and elder brother have been blacklisted by concerned Military Departments.
' All Aerotron Companies representing Bell Helicopter and Sikorsky are indefinitely barred from entering any Government Military Office for promoting products. They are facing additional investigation for unethical business activities.
' Please verify this information directly from:
(i) Director-General Defence Purchase (DGDP), Ministry of Defence, Rawalpindi.
(ii) GOC Army Aviation Command.
(iii) Deputy Chief of Air Staff, PAF Headquarters.
(iv) Deputy Chief of Naval Staff, Naval Headquarters.
' Sent to you and Bell to caution future activity with any Aerotron company member.
' From: A well wisher.
' Copy of said letter was forwarded to the petitioners by SAC on June 20, 2012. Previously, the petitioners have not received any written information from any corner. Thereafter, SAC itself wrote to DGDP on July 18, 2012 enquiring about the veracity and authenticity of the allegations in the anonymous letter, who replied in terms of letter dated August 9, 2012, the contents of which are reproduced herein below:-- ' To Messrs Sikorsky Aircraft Corporation 699 Main Street, 5801A P.O. Box 9729 Stratford, Connecticut 06615-9129 Subject: Aerotron FZE Messrs Aerotron (Private) Limited, House No,6-A, Street No,16, F-6/3, Islamabad is not authorized to do the business with Defence Organizations.
' Major [Signed] For Director-General Defence Purchase (Saim Javaid)
' The petitioners, who received the August 9th letter on August 13, 2012 from SAC were shocked and dismayed by what was evidently an intentionally misleading and contorted and convolved reply on behalf of DGDP. The subject line of the letter is "Aerotron FZE" but in the text thereof reference is being made to a totally separate and distinct (Pakistan) entity by the name of "Aerotron (Private)
Limited". The address was also incorrect.
7. It is further averred that in the context of (a) the August 9th letter from DGDP to SAC; and (b) the reference in the anonymous letter to "All Aerotron Companies representing Bell Helicopter and Sikorsky", it was alleged that:---
(i) there is another separate and distinct entity by the name of Aerotron (Private) Limited ("APIA which is incorporated and existing under Pakistan law and the shareholders of which are Mr. Muhammad Ayub Azhar's father and elder brother (i.e, the father and elder brother of petitioner No,1);
(ii) APL has only two shareholders who are also members of its Board of Directors;
(iii) APL is understood to be the independent representative in Pakistan for Bell Helicopters Textron Inc. ("BHT");
(iv) APL is a totally distinct and separate entity from Aerotron FZE whether in terms of ownership, management or otherwise;
(v) AFZE and the petitioner No,1 do not have any nexus or relationship with BHT or APL; and
(vi) The petitioner No,1 (Mr. Muhammad Ayub Azhar) has never been a Director or shareholder of APL nor does he represent or has at any time represented Bell Helicopters Textron Inc. In Pakistan or any where else.
' Both the anonymous letters and. The August 9th letter from DGDP are erroneously treating the two entities (i.e, APL and AFZE) as related or connected when this is factually and legally incorrect and misleading. This erroneous treatment of the two entities being related or connected is directly and adversely affecting the lawful and enforceable rights of the petitioners of this petition causing unwarranted concern to the principal of the petitioners (i.e, SAC). The apparent motive and cause behind bunching AFZE with APL in the said letters appears to be to show the family proximity of its respective shareholders, which is totally unwarranted and irrelevant.
8. It is further alleged that till today, neither petitioner No,1 nor AFZE have received any direct or formal written communication or notice from the authors of the impugned letters or any other MoD official regarding the decisions forming the subject-matter of the impugned letters. Thus the said letters purportedly blacklisting the petitioners have been issued without giving any prior notice to the petitioners and without providing them with an opportunity of being heard, hence this constitutional petition was preferred.
9. In the third writ petition i.e, Writ Petition No,2927 of 2013 after narrating the same facts as mentioned op-cite, it is contended that the petitioners had filed Writ Petition No,2358 of 2012, in which notices were issued to the respondents and in addition to it, it was directed that "meantime, no third party interest should be created by registering any other agent with the respondents till next date of hearing". On 28-6-2013, a letter of the same date addressed to petitioner No,1 and purportedly signed for the Director-General Defence Purchase was by-hand delivered to petitioners. The same has no official reference number and there is no proof or evidence that the same has been lawfully issued under and with the formal knowledge and approval of DGDP after following all applicable requirements of the DGDP Rules. The said letter purports to be a show- cause notice in which a bald, inchoate and totally false and unsubstantiated allegation is made against petitioners Nos.2 and 3 alleging that these two individuals are involved in sharing classified data/information collected which has no relevance to their business with foreigners. The said letter then goes on to seek an explanation by July 12, 2013 for the information of respondent No,8 (DGDP) why strict disciplinary action should not be taken against Mr. Azhar Wall Muhammad and Mr. Fahad All Azhar" without providing any particulars whatsoever of the allegations and specific material against the petitioners. The impugned notice is clearly without lawful authority, of no legal effect and void ab initio being violative of, inter alia, the fundamental rights of the petitioners and also being tainted with mala fide. The impugned notice at the belated stage and ex post fact the blacklisting is clearly an eye wash and a subterfuge to mislead and prejudice this court and motive of adversely affecting the lawful rights and interests of the petitioners and the relief sought by the petitioners in Writ Petition No,2858 of 2012. Besides violating sub-constitutional provisions of law (including, without limitation, section 24-A of the General Clauses Act, 1897 read with Rule 19 of the Public Procurement Rules, 2004) and the DGDP Rules, the impugned notice has the effect of depriving the petitioners of the benefit of their fundamental rights conferred by Chapter I of Part-I, hence this constitutional petition was instituted.
10. The respondents opposed the petitions tooth and nail. In response to Writ Petition No,2858 of 2012, the respondents averred that this court has no jurisdiction to entertain this petition under Article 199(3) of the Constitution of the Islamic Republic of Pakistan; whereby it is laid down that an order shall not be made under clause (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan in respect of any matter arising out of his service or in respect of any action taken in relation to him as member of Armed Forces of Pakistan. The petitioners have no cause of action as the respondents are in contract/agreement with the Messrs Bell Helicopter Supply Centre and the petitioners are just agents/employees of Bell, as such no letter was issued to the petitioners. It was only an instruction given to Bell regarding misconduct of its agent. The petitioners are employees of Bell, therefore, the respondents are not answerable to the petitioners for the communication made between the two contracting parties. If there is any grievance, the same should have been addressed to their principal i.e, Bell. The petitioners have come to the court with soiled hands. The petitioners are involved in passing on the classified information to unauthorized persons to the detriment of National Security and to their duty to remain loyal with the State. It is further maintained that there were three meetings held between the petitioners and the staff of respondent No,6 at Military Intelligence Directorate, General Headquarters, Rawalpindi, wherein the petitioners were informed about the leakage of classified information to unauthorized persons by them, which the petitioners admitted, therefore, the claim of the petitioners that they were never heard is false. It is also averred that the petition is not maintainable as an adequate remedy under para 22 Chapter III of Purchase Procedure and Instructions (Revised 2002) and para 45 Part II of DP-35 (Revised 2002) is available whereby they are entitled to file appeal before the competent authority against any wrongs committed against them or for the redress of their grievances.
11. It is further averred that the petitioners collected and passed on, the classified information pertaining to Pakistan Army, to unauthorized persons. Nature of information is sensitive and its discussion in open court is not in the interest of national security. In the first meeting, the petitioners admitted the passing on the information to unauthorized persons, however, they claimed that it was unclassified military related information which was available on open media and the same was essential for business purposes. They further admitted that they shared the same with foreigners during last five years. In the second meeting held on 27-9-2011, the petitioners were specifically confronted and asked the sources of classified data/information held with them, its relevance with their business and purpose of its sharing with foreigners. On seeing the same they admitted its ownership and sharing with foreigners. Mr. Azhar Wali Muhammad also informed that he has requested Ayub Azhar at Dubai to convey the sources of the comments in the presentation titled "Logistics and Maintenance of the Pak Army Aviation MI-17 Fleet update dated 4 September, 2008", to which Ayub Azhar informed that it was a newspaper article which he will send the same to Military Intelligence Directorate as soon as he received it, but the newspaper article was never received in Military Intelligence Directorate as committed. Third meeting was held on October 12, 2012 in the same sequence whereby the petitioners were called upon to defe_rd their position on the issue of passing on the classified information to the foreigners and persons unauthorized to receive such information. After the meeting a written letter was received by Military Intelligence Directorate through fax from Mr. Ayub Azhar wherein he regretted and apologized for the un- intentional, unconfirmed and unnecessary remarks made in the documents (presentation) discussed which were not intended in any way to create any potential issue with the Pakistan Army and/or Office of the Det Rep to Pakistan (ODRP). He also committed to undertake internal measures to ensure that such an occurrence would not occur again. It is further asserted that the respondents are not liable to answer to the petitioners for any action taken by Messrs Bell against its agent, as a consequence of any communication made between the respondents and Messrs Bell who have the relationship of Buyer and Supplier. The information leaked by the petitioners is classified in nature and can only be shared on "need to Know Basis" and with the prior approval of the competent authority. The petitioners had no reason to pass on that information with United States Office of Defence Representative in Pakistan. United States Office of Defence Representative in Pakistan was in no way a party to the contract and had no relevance whatsoever with the information passed on to him.
12. It is further maintained that Aerotron has no direct link with the Directorate Procurement (Army) or any of the respondents. Aerotron is the agent of Messrs Bell, and Directorate General Procurement (Army) is in business with Messrs Bell. Under the contract Messrs Bell was bound to maintain the secrecy of information pertaining to the contract and to ensure the precaution against its release to unauthorized persons. The local agent of Messrs Bell was found in breach of the contract, therefore, Messrs Bell was asked to sever relations with its local agent.
13. In response to Writ Petition No,2868 of 2012, the respondents submitted approximately analogous. Para-wise comments as submitted in other Writ Petition No,2858 of 2012 with certain additions. It is alleged that the petitioners passed on the following classified information:--
(a) Complete data of Pakistan Army Aviation (MI-17 Helicopter fleet).
(b) State of MI-17 Helicopters held with Pakistan Army.
(c) Operational capabilities of MI-17 Helicopters held with Pakistan Army.
(d) Maintenance standards of MI-17 Helicopters and technical expertise available.
(e) Short falls in Army Aviation.
(f) Logistics and procurement system of Aviation being followed in Pakistan Army.
(g) Location of various maintenance facilities available with Pakistan Army including helipads etc were shown on maps as part of presentation.
' On 11-10-2010, Mr. Azhar Wali Muhammad (petitioner's father) shared certain documents with the title of "Agenda Points of CGS" with Mr. Dane Pranke, Sales Manager Bell Helicopters Textron, UAE. It was further amended and again shared by Mr. Dane Pranke with Mr. Fahad Ali Azhar (petitioner's brother). These documents contained following information:-
(a) Attached classified information, covering a comprehensive 10 years plan of Pakistan Army Aviation.
(b) Replacement plan of 50 attack helicopters and 108 UH Helicopters.
(c) Procurement of 20 x Bell 412 EP Helicopters through US Government funded programme known as Foreign Military Finance (FMF) which was later cancelled by Government of Pakistan.
(d) Official correspondence between Government of Pakistan and United States Government on assistance strategy.
14. In the reply submitted in response to Writ Petition No,2927 of 2013, it is alleged that writing of letter to Bell Helicopters will just have the effect that future business prospects will be closed of Messrs Aerotron (Pvt.) Ltd. But firm is not at all blacklisted. Two letters of 9th May 2012 and 26th 40 May, 2012 were written to Messrs Bell and not to Messrs Aerotron (Pvt.) Ltd., therefore, Messrs Aerotron is aggrieved by Messrs Bell and not by any of the respondents. The respondents do not have any personal enmity with management of Messrs Aerotron and if that be the case it should have been mentioned in the writ petition and the action initiated was to safeguard leakage of classified information to foreigners. It is further maintained that Directorate-General Defence Purchase asked Military Intelligence Directorate to share the classified information. In reply, Military Intelligence Directorate shared the classified information with Directorate-General Defence Purchase. On production of classified information/data, a legal notice was issued to Messrs Aerotron.
15. Learned counsel for the petitioners has urged variety of arguments. It is contended that before issuance of impugned letters dated 9th May, 2012 and 26th May, 2012, they were never heard. In the letter dated 26th May, 2012, Principal of the petitioners was asked to change local representative in Pakistan on immediate basis for uninterrupted and smooth processing of revalidation/ recoupment in subj RRC. The petitioners received the said letters through e-mail first time on 29th August, 2012. The petitioners issued legal notice to the respondents but no reply was given. It is pointed out that based on impugned letters after trying to verify the same and without any reason Bell Helicopter terminated relationship with the petitioners, which can be termed as stigma, therefore, the impugned letters are liable to be declared as illegal. It is highlighted that the impugned letters were not issued by the competent authority, which was in fact DGDP. Before issuance of the impugned letters due process has not been adopted. Learned counsel for the petitioners, then referred Rules 16 and 17 of Purchase Procedure and Instructions ("Revised 2002), which provide that:--- 'Punishment
(16) To ensure that firms do not resort to undermine the contracting procedure and supply of stores is as per rules/regulations various forms of disciplinary action are taken. These are:--
(a) Blacklisting.
(b) Removal/Cancellation of registration.
(c) Embargo
(d) Temporary Stoppage of ITs.
(17) Blacklisting When a firm is blacklisted it is debarred from taking part in the supply activity. In addition all other Government departments are requested to take similar action Blacklisting is done in case of:
(a) Act of fraud/cheating
(b) Action prejudice to the national security and safety.
(c) Providing information of vital interest to the enemy.
(d) Making deliberate false statement and supply material which is designed to cause damage to the interest of state.
16. Learned counsel for the petitioners laid much emphasis that the respondents have not apprised that to whom the classified information was passed on and the government had to prove that the same was passed on to enemy and the US in no way can be considered as enemy of Pakistan. It is further argued that under Rule 19 ibid DGDP was empowered to award punishment but the said procedure was not adopted and before adopting the procedure the petitioners were brought to book and now the respondents are saying that the petitioners shall be tried. In respect of due process, the learned counsel has relied upon "New Jubilee Insurance Companu Ltd., Karachi v.
National Bank of Pakistan, Karachi (PLD 1999 Supreme Court 1126)"; wherein it has been held that:-- 'The fall-out of the blacklisting of the Company was to prevent it from the privilege and advantage of entering into lawful relationship with the Bank for the purpose of gain which was violative of Article 18 of the Constitution, which provided that subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business. The blacklisting of a company/firm/person, also tarnished the reputation of it/his as to its/his credibility to honour its/his commitments which may dissuade other parties from entering into contracts with the former. Thus the consequences of blacklisting a company/firm/person are of great magnitude, which warrant that before taking such an action, there should be material on record prima facie to indicate that the delinquent Insurance Company's refusal to pay claim was not warranted in the circumstances of the case."
' It is alleged that the respondents are pre-determined to punish the petitioners. Learned counsel for the petitioners has also placed reliance upon the case Messrs Nizami Construction Company through sole Proprietor v. Chief Executive Officer, Gujranwala Electrical.] Companu (GEPCO) and 2 others (2005 CLC 366, Lahore), wherein it was laid down that:-- "Petitioner firm was blacklisted and debarred from future tendering without giving show-cause notice---Blacklisting of a company, firm, or person tarnishes its reputation, credibility honour---No proper show cause notice having been given qua the contemplated action against it, such order was not consistent with law---Petition was accepted and order was declared as of no legal effect- --Option was left with the respondents to proceed in accordance with law if so desired."
' It was further held in the said case as follows:--- "In Zulfiaar Ali v. Divisional Superintendent (Workshops), Pakistan Raitwat's, Mughalpura, Lahore and another PLD 2001 Lahore 13, I had the occasion to consider the import and effect of blacklisting of a company, firm or person. It was found and held that the blacklisting of a company/firm/person tarnishes its reputation, credibility, honour and even dissuades other parties from entering into contracts with the blacklisted company or firm. It was observed that an action of blacklisting had to be through a speaking order, which should be based on sound and justifiable ground and that an adequate show-cause notice and hearing to the petitioner should precede the action. In the present case as mentioned above, since no due and proper show-cause notice was given to the petitioner qua the contemplated action against him the order of blacklisting is not consistent with law which is, therefore, not sustainable. The. Order impugned is thus, liable to be struck down."
' Learned counsel for the petitioners went on to argue that in the case of the petitioners there is no speaking order, which is clear violation of Articles 4, 5, 9, 13, 23, 24 and 25 of the Constitution and 25-A of the General Clauses Act. In this regard he has relied upon Messrs United Woollen Mills Ltd.
Workers' Union v. Messrs United Woollen Mills Ltd. (2010 SCMR 1475), Ashfag Hussain v. Government of the Punjab and others (2011 PLC (C.S.) 799), Shahzada Zahir Shah and 6 others v. Muhammad Usman Ghani and 3 others (2005 YLR 1394, Lahore), Messrs M.A. Aleem Khan through Chairman v.
Province of the Punjab (PLD 2006 Lahore 84), Atlas Cables (Pvt.) Ltd. v. Quetta Electric Supplu Companu Ltd. (PLD 2011 Quetta 67) and Shabbir Ahmed v. Kiran Khursheed and 8 others (2012 CLC 1236, Lahore). In the case of Ashfag Hussain v. Government of the Punjab and others, it has been ruled out that:-- "The requirement of furnishing reasons ensures transparency and accountability of public institutions and makes them stronger. Unreasoned orders generate corruption and weaken institutions and slowly, eat into the foundations of a healthy democracy. Government cannot make policy and issue notifications which flout the fundamental rights of citizens. Every policy, every action, every step taken by the government must be well thought out and within the constitutional framework. The best way to achieve good government by the Provincial Government and public institutions is to furnish reasons and pass speaking orders. This requirement how has a legislative cover under section 24-A of the General Clauses Act, 1897. Reliance is placed on Messrs Airport Support Service v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1993 SCMR 2263, Liagat Ali Memon and others v. Federation of Pakistan and others PLD 1994 SC 556, Secretanj to Government of N.-W.F.P and another v. Muhammad Nawaz and another PLD 1995 SC 837, Rukhsar Ali and 11 others v. Government of N.-W.F.P., through Secretanj Education, Peshawar and 3 others 2003 PLC (C.S.) 1453, Pakistan International Airlines Corporation through Chairman and others v. Shahzad Faroog 2004 SCMR 158, and Chairman/Managing Director, Pakistan International Airlines Corporation and another v. Nisar Ahmed Bhutto 2005 SCMR 57.
17. In respect of Writ Petition No,2927 of 2013 learned counsel attacked upon the impugned show- cause notice dated 28th June, 2013 by contending that it was issued after 21 months, which is general and vague character. In the said letter the names of Azhar Wali Muhammad and Fahad Ali Azhar are mentioned. The same was issued to two individuals, and not to the company. It is added that the registration of the company is still in field. That the language of show-cause notice does not constitute as show-cause notice. After issuance of show-cause notice no reasonable opportunity of hearing was given and no valid reason was assigned in it and the detail of classified information was also not elaborated. According to learned counsel it is the constitutional petition for enforcement fundamental rights.
18. In respect of Writ Petition No,2868 of 2012 it is alleged that before issuance of impugned letter, no notice was issued. It is added that in the subject of said letter Aerotron FZE is mentioned; whereas in the contents of letter Messrs Aerotron (Pvt.) Ltd. Is mentioned.
19. While repelling the arguments advanced from petitioners' side, Mr. Tariq Mehmood Jehangiri Advocate on his turn contended that in the petitions, the petitioners have alleged that they have no idea of writing of any letter as no hearing was given; whereas before issuance of impugned letters/show-cause notice three meetings were convened, but the petitioners have not mentioned the same in their petitions, thus they have concealed the material fact from this court and have not come to the court with clean hands. The petitioners have not challenged the letter dated 15-8-2012 issued by Bell Helicopter, wherein the petitioners agentship was terminated; that the petitioners have alternate remedy of filing of appeal before the competent authority under Rule 22 of the Purchase Procedure and Instructions (Revised 2002), therefore, the petitions are not maintainable; that the petitioners have alleged the mala fide but have not proved the same. He strenuously urged that why the respondents will ruin the career of the petitioners without any reason? He has relied upon PLD 1974 Supreme Court 151, 2004 PLC (C.S.) 332, Rules 19 and 49 of the Public Procurement Rules. According to learned counsel, the petitioners admit the passing on the classified information of sensitive nature of Pak Army to unauthorized person but they say that it was available in newspaper, which means that they have accepted the allegations. As per dictums laid down by the Superior Courts, show cause notice is not adverse action, if the petitioners would have kibmitted reply, the same could be withdrawn, the petitioners can only challenge the adverse action. That matter cannot be decided without recording of evidence, therefore, the petitioners could not file the constitutional petitions and they can institute a suit for damages; that previously show cause notice had also been issued to the petitioners. To shore up his contentions, learned counsel has relied upon the following rulings:--
(1) The Federation of Pakistan, through the Secretary Establishment Division, Government of Pakistan v. Saeed Ahmed Khan and others (PLD 1974 Supreme Court 151)
(2) Zaka Ullah Bajwa v. District Coordination Officer, Gujranwala and others (2004 PLC (C.S.) 332)
(3) Muhammad Mahmood Bawani v. Deputy Controller, Building Zone-B and others (2007 SCMR 1209)
(4) Secretary Revenue Division, CBR/Federal Board of Revenue Islamabad v. Gul Muhammad and others (2011 SCMR 295)
(5) Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others (PLD 2009 Supreme Court 644)
(6) Unreported judgment dated 2-5-2011 passed by this Court in I.C.A No,85 of 2011 titled Mst.
Mehboob Mehrbani and others v. Secretary, Ministry of Education Islamabad etc.
(7) Khalid Mehmood v. Collector of Customs, Customs House, Lahore (1999 SCMR 1831)
(8) Muhammad Abbasi v. S.H.O. Bharakahu and 7 others (PLD 2010 SC 969)
(9) Lahore Conversation Society through President and 3 others v. Chief Minister of Punjab and another (PLD 2011 Lahore 344)
(10) Syed Manzoor Hussain v. Tehsil Nazim, Tehsil Municipal Administration, Tehsil Sarai Alamgir, District Gujrat and 3 others (PLD 2010 Lahore 101)
(11) BP Pakistan Exploration and Production INC, Karachi v. Additional Commissioner, Inland Revenue-B Enforcement and Collection Division-1, Karachi and another (2011 PTD 647)
(12) Unreported judgment dated 26-9-2012 passed by this Court in Writ Petition No,3022 of 2012 titled Iftikhar Ahmed Abbasi v. Senior Superintendent of Police, Islamabad etc.
(13) Nagina Bibi and others v. Federal Directorate of Education etc. (PLJ 2013 Islamabad 33)
(14) Amjad Pervaiz v. Inspector-General Railway Police, Lahore (PLJ 2012 Lahore 259)
(15) Abdul Rahim Khan v. Managing Director PEPCO, WAPDA House Lahore and 2 others 2011 PLC (C.S.) 1551
(16) Dr. Molazim Hussain Sumro, Medical Superintendent Tehsil Headquarter Hospital, District Bahawalpur v. Special Secretary Health (2011 PLC (C.S.) 1209)
(17) Shagufta Begurn v. The Income Tax Officer, Circle XI, Zone B, Lahore (PLD 1989 Supreme Court 360)
(18) Niaz Ali and others v. Federation of Pakistan and others (2004 MLD 460 Lahore); and
(19) Dr. Raja Muhammad Kamran v. Shaheer Constructions through Rao Naveed Aftab (Partner) and 3 others (2013 MLD 118 (Islamabad)
20. Learned Deputy Attorney-General adopted the arguments advanced by the learned counsel for the other respondents.
21. I have heard the learned counsel for the parties at length and surveyed the voluminous record as well as case laws relied upon by both the parties.
22. Before proceeding further, it would be apt to have a glance over the impugned letters as well as show-cause notice, which are re-produced herein below:- 'Letter dated 9th May, 2012 To Messrs Bell Helicopter Supply Centre B.V. Schipholoweg 303 117 IPL Badhoevedrop The Netherlands.
' Subject: Interaction with Messrs Aerotron Pakistan Private Limited.
' All typos of business interaction with Messrs Aerotron Pakistan Limited has been prohibited by Pakistan Army due to security concerns since 14 October, 2011, therefore this office is directly communicating with your esteemed Firm via E-mail.
2. It is requested that please stop your communication with Messrs Aerotron and its representatives as well pertaining to our all business deals.
3. Your favourable cooperation in this regard will be highly appreciated please. Sd/- Maj. For Comdt. (Adnan Pervez)
' Letter dated 26th May, 2012 To Messrs Bell Helicopter Supply Centre N.V Schipholoweg 303, 171 PL Badhoevedrop, Netherlands.
Email:mgriese@bellhelicopter-ams.Textron.Corn ' Info: EME Dte (ME-6) wrt to their note No,298/1062/ME-6-GB03M dt. 14 May 2012 ' HQ Army Avn. Comd CASD (EME) Dhamial ' Subject Interaction with Messrs Aerotron (Pvt.) Ltd. against contract No,RRC/17964/P-3 dated 29 Jun 1993 (Messrs Bell Hels)
' Further to our letter of even No, dated 20 Apr 2012 reference.
(1) It is intimated that your local agent Messrs Aerotron (Pvt.) Ltd. And its under mentioned CEO/Directors are Security wise PERMANENTLY BARRED/NOT CLEARED for any business interaction with Army and defence organizations:-
(a) Mr. Azhar Wali Muhammad son of Coudhary Wali 43301-2788584-9 MD/CEO Muhammad
(b) Mr. F4had All Azhar son of 42301-5780642-9 Director Azhar Wali Muhammad
(c) Mr. Muhammad Ayub Azhar 42301-988913-6 Director son of Azhar Wali Muhammad
(2) Apropos, please change your local representative in Pakistan on immediate basis for uninterrupted and smooth processing of revalidation/recoupment in subj R.R.C.
(3) Forwarded for your immediate action/response, please. Sd/- Maj. For Director-General Procurement(Army)
Muhammad Usman Malik 'Show-cause notice dated 28th June, 2013 To ' Messrs Aerotron (Pvt.) Ltd.
' House # 6-A, Street # 16 Islamabad.
' Subject: Show-Cause Notice Messrs Aerotran (Pvt.) Ltd. Islamabad.
(1) It is reported by reliable sources that Mr. Azhar Wali Muhammad and Mr. Fahad Ali Azhar are involved in sharing classified data/information collected which has no relevance to their business with foreigners.
(2) Explain for info of Directorate-General Defence Purchase why strict disciplinary action should not be taken against Mr. Azhar Wali Muhammad and Mr. Fahad Ali Azhar.
(3) Your explanation should reach undersigned by 12 July, 2013. sd/- ' Lt. Col. For Director General Defence Purchase (Syed Kamran Mahmood)
23. Before proceeding further with the matter, it will be necessary to mention the in-camera proceedings initiated on the request of the then learned DAG. The reason as disclosed by levelling allegations against the petitioners for collecting and passing on classified information pertaining to Pakistan Army to unauthorized persons. Keeping in view the sensitivity as disclosed, this Court passed an order dated 29-4-2013 for in-camera proceedings; whereby respondents; learned DAG as well as learned counsel for the petitioners were required to appear in chambers of the Court on 15-5-201,3. On 15-5-2013, on account of non-availability of petitioners' counsel Mr. Abdul Hafeez Pirzada, Advocate the matter was further adjourned to 22-5-2013. On the said date, in-camera proceedings were conducted in the Chambers. The concerned representative of the respondents objected the participation of .Even learned DAG and others, therefore, this Court decided to inspect the record going to be produced in the briefings and thereafter to decide the participation of other concerned. Since it is not a core issue involved in the matter to decide the controversy, therefore, the same is not taken into consideration.
24. Another aspect while referring the record which the petitioners have themselves admitted the same as a fault on their part is reflected in their two letters dated 28-9-2011 and 14-10-2011 but despite such fact on record, again it is not taken into consideration adversely against the petitioners for the following reasons:-- I. The very issue raises in the mind is with regard to the actual allegations raised in the petition's, which has been controverted by the respondents specifically taking a stance that the same are cross in nature which are factual controversy. II. The very controversial issue involved in this case is with regard to the relationship in between the petitioners and the respondents on the basis whereof, the locus standi of the petitioners is to be seen. From the perusal of entire record, it reveals that nowhere the petitioners have ever alleged the relationship in any way with the respondents by executing any document. They acted merely as an agent for their principals Bell/UTIO as such, they have no direct concern to- agitate the claim against the respondents. The respondents are also not required to explain them their position, if same is raised by issuance of a legal notice as contended. The reason whereof legally on the surface of litigation is very much material in favour of respondents that there is no direct relationship in any way in between them.
' Under these circumstances, when the principals have followed the letters indicated to have even adversely affects the petitioners, they cannot agitate any right of any nature directly against these respondents. The relevant portions of these letters are reproduced herein below:-- 'Letter dated 28-9-2011 "By way of information Aerotron (Private) limited is a ' Pakistan Registered company located at Islamabad and having 4 shareholders who are also directors namely:
(1) Azhar Wali Muhammad, Chief Executive
(2) Mrs. Noreen Azhar (wife non-executive share-holder).
(3) Mrs. Farnaz Raheel (daughter non-executive shareholder)
(4) Fand Ali Azhar (son working Director)
' Aerotron-FZE is a UAE registered company located at Dubai having a single share-holder and Chief Executive namely Muhammad Ayub Azhar (son) residing at Dubai, UAE.
' I agree with your observations and comments regarding the issues and matters discussed that representatives of foreign manufactures should confine there written observations and comments to the subject of there activities and in this regard attach some suggestions in this regard in order to regularize and eventually institutionalize such a process.
' I had requested Ayub today at Dubai to convey the source of the comments on Page No,10 of the document titled. "Logistics and Maintenance of the Pakistan Aviation MI-17 Fleet Up-date No,4 September 2008 and he informed me that it was a newspaper article which he will try and locate and send it to me which I shall send to you as soon as I received it.
Letter dated 14-10-2011 ' Subject: Security clearances for Foreign Nationals Dear Sir, ' Thank you for the time given by you and patience shown by you during the discussion on the subject discussed.
' We convey our regrets and apologize for the unintentional, unconfirm and un-necessary remarks made by us in the document discussed which were not intended in any way to create any potential issue within the Pakistan Army and/or the Office of the Defense Representative to Pakistan (ODRP).
' We have in the meanwhile undertaken effective internal measures to ensure that such an occurrence does not occur again."
' Hardly, the petitioners can claim their right against their principals at any appropriate forum by relying upon any material in their favour. This being the factual controversy could be resolved by a Court of competent jurisdiction. Very unfortunately, the principals have not been made parties to the proceedings nor controversy could have been considered in view of above findings, if principles would have been the parties.
' Under the circumstances, the petitioners may have a very good prima fade case in their favour, but same cannot be resolved by this Court in constitutional jurisdiction to protect the rights of the petitioners as contended. III. Both the sides have placed their factual and legal viewpoint before the Court relying upon various judgments of the superior courts, yet it is ignored by them, the real controversy as observed above, which is of not like nature to be entertained by this Court.
' So far the concern of issuance of show notice, which in view of my above discussion, is again a futility and yet not with clear view, as to for what purpose, this notice was issued. In fact, the, show cause notice was issued when this Court made queries to the respondents, yet nothing has been done in pursuance of the said show-cause notice. The petitioners on participation may approach the Court if aggrieved by the action initiated against them found to be illegal.
25. Very material and crucial paint involved in this matter as to whether the respondents have either directly or indirectly violated any condition of their agreement with the principal Bell/UTIO, or through these petitions any right of the petitioners has been violated. In this regard it is observed that the petitioners company though performing as agent of their principals Bell/UTIO but having no written or oral contract with the respondents, by no stretch of imagination can claim any violation on the part of the respondents. On the contrary they should have agitated against their principals Bell/UTIO, who on the basis of correspondence of the respondents discontinued the agreement executed between them. Admittedly, principals Bell/UTIO have not been made party to these proceedings nor any allegation has been levelled against them. Otherwise, in the entire scenario, the petitioners have to seek relief against Bell/UTIO in accordance with law in view of certain terms and conditions of the agreement executed in between them. When the petitioners companies have no direct concern with the respondents, therefore, they cannot agitate their grievances against them. As such, in my humble view, the entire proceedings initiated is a futility.
Otherwise, when there is no agreement executed between the petitioners company and respondents, the provisions of law as envisaged by Purchase Procedure and Instructions or the Public Procurement Rules cannot be enforced for agitating their rights as they claim.
26. As regards the issuance of show-cause notice without any reason or provision of law is concerned, that is offshoot of these proceedings issued during the pendency of Writ Petitions Nos.2858 and 2868 of 2012. Again in my humble view, it may either be issued or may not have been issued having no legal sanctity nor it is binding upon the petitioners. It may also be considered as an effort initiated by the respondents to fill the gap in their proceedings, which may have issued when this Court inquired from them about initiation of such proceedings. For the sake of arguments, if it would have been issued or it has been issued to initiate some other proceedings besides these, which have been called in question that will be divergent further. Otherwise, from issuance of show-cause notice under this form, it cannot be called in question unless yield some results when a real cause of action accrued to the petitioner.
27. The cumulative effect of the above discussion is that all the three writ petitions being devoid of merits are dismissed.
'C.M No,4466 of 2013 (for vacation of stay).
'C.M. No,3260 of 2013 (for furnishing detail of in-camera proceedings).
28. The matter is being decided on merits, so the instant petitions have become infructuous, hence the same are dismissed accordingly.