S M ATTIQUE SHAH, J. Shahid Iqbal, the petitioner , has invoked the Constitutional jurisdiction of this Court under Article-199 of the Constitution of Islamic Republic of Pakistan, 1973, seeking the following prayer; "that on acceptance of this writ petition, this Honorable Court may very magnanimously hold, declare and order that: a. The impugned termination/removal letter No. KPEZDMC/CS/BOD/0187-006 dated 10.08.2017 as well as any and all such/subsequent decision(s) of the Board removing/affirming or re-affirming removal of the petitioner from his post of CFO of the respondent No.3 Company including the decision dated 30.04.2019 so purportedly taken in 28th BOD Meeting are illegal, arbitrary , void ab initio, based on mala fide, and liable to be struck down; and, b. The respondents shall at once reinstate the petitioner with all back benefits and reimburse the costs throughout; c. The respondent No.1 to conduct an inquiry into the matter and to recover the costs incurred to exchequer due to this illegal decision. d. The clause 5.1 of the Employment Contract so used by the respondent company and the board of their willful use, is against the spirit of transparency , openness and merit thus liable to be removed and struck down. e. Costs throughout."
2. Brief and essential facts of the case are that, petitioner was appointed as Chief Financial Officer (CFO) in the Khyber Pakhtunkhwa Economic Zones Development & Management Company by respondent No.3 vide appointment order dated 13.08.2015; after joining his office, he was also entrusted additional responsibility of Company's Secretary , which he performed to the best of his abilities; that services of the petitioner were terminated in 13th Board of Directors (BOD) meeting held on 10.08.2017 by invoking clause 5.1 of the employment contract without any charge, show cause or written allegation and without any recommendations by the HR Committee and CEO office; followed by the impugned termination/removal letter No. KPEZDMC/CS/BOD/ 0187-006 dated 10.08.2017 issued by respondent No 4; that even no opportunity of hearing was provided to him; which he assailed by filing writ petition No.3520- P/2017 before this Court, wherein the respondents filed their para-wise comments on 11.04.2018 and vide judgment dated 06.06.2018; the said writ petition was disposed of with certain directions to the respondents; that the respondents did not comply with the directions of this Court; therefore, petitioner filed Contempt of Court petition, which was subsequently withdrawn by the petition er; while reserving his right to challenge the decision of the respondents afresh, hence, instant writ petition.
3. The respondents pursuant to notice issued to them, filed their para-wise comments to the writ petition; wherein, they strongly resisted the issuance of desired writ.
4. Learned counsel representing the petitioner vehemently argued that the impug ned termination / removal order No. KPEZDMC/CS/BOD/ 0187-006 dated 10.08.2017 issued by respondent No. 4 coupled with the entire proceedings conducted by the BOD are illegal, being the result of malice, malafide, ulterior motive; that before passing the impugned termination order , no opportunity of hearing was provided to the petitioner; therefore, the entire proceedings conducted at the back of the petitioner are not tenable in the eye of law. Lastly , prayed for acceptance of instant writ petition by setting aside the impugned termination order .
5. Conversely , learned counsel representing the respondents challenged the very maintainability of the instant writ petition; being the outcome of the contractual obligation, which is squarely covered by the principle of Master and Servant and; thus, not amenable to the jurisdiction of this court under Article 199 of the Constitution of Pakistan, 1973. So far as, merits of the case are concerned; he not only strongly controverted the arguments of the learned counsel of petitioner; but, also defended the impugned termination order; coupled with the proceedings of the BOD, by arguing that impugned termination order was passed in accordance with the terms and conditions of service of the petitioner and; as such, no violation had been committed by the BOD by termin ating the service contract of the petitioner and; prayed for dismissal of instant writ petition; being misconceived.
6. Arguments heard. Record gone through.
7. This Court shall first address, the question of maintainability of the instant writ petition qua jurisdiction of this Court under Article 199 of the Constitution. Record depicts that respondent No. 3 is a Public Sector Company established under the provisions of erstwhile Companies Act, 1984 and is governed by the Public Sector Companies (Corporate Governance) Rules, 2013; which is wholly owned by the Government of Khyber Pakhtunkhwa and controlled through Department of Industries, Commerce and Technical Education (ITCE) as a Public Sector Company , management whereof was assigned to the Governmen t appointed Board of Directors, which was empowered to frame policies/rules & regulations governed under the ibid rules 2013. It is settled that once a Company is registered under the Companies laws and; being so governed under the provisions of Public Sector Companies (Corporate Governance) Rules, 2013; funded by the Federal government or Provincial government and/or fully controlled or owned by them; then, the same is amenable to the Jurisdiction of High Court under Article 199 of the Constitution and; indeed, respondent No 3 is a Company , performing its functions in connection with the affairs of Government of Khyber Pakhtunkhwa and; therefore, amenable to the Constitutional Jurisdiction of this Court. 2019 SCMR 1 "Human Rights case in the matter of appointment of MD PTV", 2013 SCMR 1707 "Pakistan Defence Officers' Housing Authority and Others Vs Lt Col Syed Jawad Ahmad", 2004 SCMR 1274 "Ramna Pipe and General Mills (Pvt) Ltd V. Sui Northern Gas Pipe Lines (Pvt), 2019 CLC 1444 Karachi "CDR (Rtd) Mansoob Ali Khan & Others Vs Federation of Pakistan."
8. So far as, contention of the learned counsel qua falling the case of petitioner under the principle of Master and Servant is concerned; it is settled that contract employment in Public Sector Companies and Corporations falls within the scope of the Public Employment; unlike, pure Master and Servant relationship in the institutions having no element of Public Involvement and; therefore, any breach thereof could be agitated in writ jurisdiction of a High Court under Article 199 of the Constitution, 1973. 2013 SCMR 1707 "Pakistan Defense Officers' Housing Authority and Others Vs Lt Col Syed Jawad Ahmad."
9. On merits, record depicts that petitioner was appointed as Chief Financial Officer (CFO) on 24.8.2015 by the respondents. However , his service was terminated by the Board of Directors (BOD) in its 13th meeting held on 10.8.2017. The petitioner impugned his termination before this Court in Writ Petition No.3520-P/2017, which was disposed of on 06.06.2018 with direction that; "Such being the case, this petition stands disposed of in terms of directions to respondent No.5 i.e. Board of Directors of the Respondent Company , to decide the appeal/representation of the petitioner in accordance with law within 02 months. In case the grievance of the petitioner is not redressed by respon dent No.5, then the petitioner is at liberty to approach this Court afresh."
Whereafter , again case of the petitione r was placed before the BOD for its consideration in light of the ibid directions and; the BOD after deliberation constituted a sub-committee on 10.07.2018 to look into the matter in light of the audit committee report and to present its findings and recommendations within fifteen days. The said sub- committee in its meeting so held, resolved that "the decision of the previous BOD to terminate the two professionals (CFO and CHRO) was within their legal powers under clause 5.1 of the employment contract" which was subsequently , placed before the BOD; wherein the BOD maintained its earlier decision without, even applying its independent mind to the facts and circumstances of the case and; in utter violation of the directions of this Court.
10. Furthermore, this court with the able assistance of the learned counsel representing the parties, perused entire record of the case; albeit, could not lay its hands upon any material, which could show that the case of the petitioner was placed through an agenda item before the 13th Board of Directors (BOD) meeting held on 10.8.2017; rather , the very fact of its so placing, shrouded into mystery . It is also worth noting that a draft inquiry report was filed on 16.8.2017 in connection with the matter in question; which fully supported the stance of the petitioner . Besides, the worthy Chief Minister , Khyber Pakhtunkhwa, vide notificat ion No. AEA (IND) 13-28 dated 23.11.2017 also referred the matter in hand to the worthy Secretary Law to conduct an inquiry , which was accordingly conducted by him and; report to that extent was forwarded on 15.02.2018 to the concerned authority; wherein, it was held in explicit terms that removal of the petitioner was illegal; "the services of Chief Financial Officer / Company Secretary and Chief HR Officer were terminated without completing the required formalities and mentioning any allegation through BOD in its 13th meeting held on 10.08.2017." Followed by HR committee recommendations/report dated 10.10.2018; reproduced below; being self-explanatory: -
11. Final Conclusion: In light of the facts, ground reality and presented evidence, the HR Committee strongly feels that the process followed in the case of termination of the sacked officers was not in accordance with the established norms and procedure and also lacked the requisite transparenc y. The record does not reveal any reasons or grounds on account of which their removal can be justified even a bit. The decision was therefore whimsical and unsubstantiated. We feel that this episode on one hand did not inspire confidence and on the other sent a wave on insecurity among employees of the company .
11. Howbeit, BOD in its subsequent meeting held on 17.11.2018; neither could discuss the ibid material; nor, could refer to the same, rather , totally ignored the same at the time of maintaining its earlier decision qua termination of the petitioner; which clearly shows its bias towards the petitioner . Indeed, there are no two opinions that petitioner could not be removed from service; he could be, but of course strictly in accordance with the law and; by providing him an opportunity of hearing, which is his fundamental right in order to ensure fairness, justness and transparency; which could not be denied to him under any circumstances.
12. As far as, contention of the responden ts qua the alleged misconduct committed by the petitioner is concerned; as of now, it is well settled that when dismissal or removal of a contract employee is result of the allegations of misconduct, even then, he is to get a fair chance of hearing in order to vindicate his position and; to achieve such goal, he is to be issued a show-cause notice with charge sheet in order to provide him a reasonable opportunity of defence; followed by an inquiry in order to keep him abreast of the allegations 1997 SCMR 1552 "Secretary Government of Punjab V. Riaz-ul-Huq." Even on that premise, this Court has jurisdiction to adjudicate upon the case in hand.
13. Learned counsel for respondents, while arguing the case referred to the terms and conditions of appointment of the petitioner and; forcefully contended that under the provision of clause 5.1 of the appointment contract of petitioner; it has explicitly been mentioned that; "The company reserves the right to end the employment at any time with one month's prior notice or one month's gross salary in lieu thereof" and; therefore, the employment contract of the petitioner was rightly so terminated by the respondents.
14. The ibid contention is of no help to the respondents; because, discretion cannot be exercised in an arbitrary , whimsical or in an unstructured manner . 1990 PLD SC 1092 Aman Ullah and others V. The Federal Government and others . Likewise, the doctrine of pleasure has almost become redundant; being rejected by the august apex Court in Khawaja Muhammad Asif's case reported in 2013 SCMR 1205 while treating the concept of absolute, unchecked, unfettered or unguided exercise of discretion by public authorities as alien to the essence of the rule of law, good governance and transparency . Moreover , ibid provision is against the core principle of public policy , which demands fairness, justness and transparency in the conduct of public functionaries in exercise of their powers and authority; which must be exercised in good faith in the larger public interest, free from personal bias, whims, desires, likes, dislikes and based upon the rule of law, reason, logic, ethics and sound rational reasons; which must serve the purpose of law in an intelligible and reasonable manner , which is the hallmark of good governance and transparency and; decisions, which do not fulfill these standards, would be termed arbitrary and capricious. It is the bounden duty of judicial, quasi-judicial and all administrative authorities to exercise power in a transparent, just, fair and reasonable manner to safeguard the rule of law and to avert failure of justice 2011 PLC (C.S) 1 130 TARIQ AZIZ-UD-DIN and others.
15. As we have earlier discussed that even the respondents could not refer to any material, which could show that the matter of termination / removal of the petitioner was on the agenda of the BOD meeting; which clearly shows that the petitioner has been removed clandestinely by the BOD, even without having the same on its formal agenda of the meeting; which vitiates even the most Solomon proceedings; therefore, we have no hesitation in holding that the petitioner has not been dealt with in accordance with law; rather , he has been treated in a manner prejudicial to his cause and interest; which has certainly tarnished his reputation and has adversely affected his entire professional career; which could not be countenanced under any canon of law. The entire proceedings of the BOD qua termination of the petitioner are illegal; being based upon the personal whims, likes and dislikes of the BOD. Of course, respondents could not place on record any material, which could show that petitioner ever remained involved in misconduct or in any other activity which was detrimental to the cause and interest of the respondent No.3 at the time of his termination; rather , the learned counsel placed much emphasis on the provision of clause 5.1, wherein the services of the petitioner could be terminated at any time on one-month prior notice. However , as earlier discussed, termination under the ibid clause cannot be held valid; being based upon unbridled discretion and power , which has seriously compromised petitioner's position.
16. In view of the above discussion, instant writ petition is allowed. However , petitioner would not be entitled to receive his remunerations under the principle of No W ork No gain .