SAMAN RAFAT IMTIAZ, J. The Petitioner has invoked the Constitutional Jurisdiction of this Court to assail the Termination Notice dated 02-12-2021("Impugned Order"), whereby her emplo yment was terminated by the Respondent No. 1 without issuing notice or af fording an opportunity of hearing.
2. Brief facts as per Memo of the Petition are that the Petitioner was appointed as Legal Advisor by the Respondent No.1, National Electrical Power Regulatory Authority (NEPRA). The period of contract was two years, which was further extendable with mutual consent of the parties. During her employment with Respondent No. 1, the Petitioner duly performed her tasks to the best of her ability and no disciplinary proceedings were ever initiated against her. According to the Petitioner , due to her competence and integrity the Respondent No. 1 kept increasing Petitioner 's duties and work and just after 9 months of her joining, her responsibilities were almost doubled vide Notification No. MPH-131/41 dated on 08.01.2020 when she took charge from ex-Legal Advisor . Later in the same month she was also assigned charge of Senior Legal Advisor vide Notification No. MPO-69/2021/095.
3. Further that due to Petitioner 's professionalism, independence of mind and intellectual integrity , she developed differences with the Chairman of the Respondent Authority , who being highly authoritarian and vindictive started creating problems for the Petitioner through a series of acts which amounted to maladministration and created a toxic work environment. Therefore, the Petitioner wrote a grievance letter to the Federal Ombudsman/W afaqi Mohtasib which was duly registered as Complaint No. WMS-HQR/-0008000/21 dated 01.11.2021, in which notices were issued to the Chairman but the matter is still pending.
4. According to the Petition, the Chairman, instead of mending his authoritarian ways developed a grudge and vendetta against the Petitioner and Petitioner was shocked to know that the Chairman had set in motion a process to secretly and unilaterally terminate the Petitioner, upon which Petitioner wrote an urgent email to the Chairman and the Members of Respondent No.1 on 29 November, 2021 praying for an opportunity of hearing before taking any adverse action against her, which remained unanswered. The Petitioner on the very next day filed a suit for Declaration and Injunction along with application for interim relief, with the prayer to declare that Plaintiff should be provided an opportunity of hearing and apprised about the charges before taking any adverse action against her by Respondent No. 1. Petitioner's application for interim relief was dismissed by the learned Trial Court vide order dated 30.11.2021. The Petitioner filed an appeal along with application for interim relief and the learned Appellate Court granted a stay order on 02.12.2021. Even though copy of the said order was allegedly received by the Respondents but they proceeded to send Petitioner a Termination Notice dated 02.12.2021 via email.
5. Learned counsel for the Petitioner contended that despite being a contractual employee of the Respondent Authority, the Petitioner has certain fundamental rights including the right to due process, fair trial/right of hearing and equality, which are being violated by the Respondents thus writ jurisdiction is maintainable; that the impugned act of Respondent No.1 is in violation of Article 10A of the Constitution of Pakistan, Section 24-A of the General Clauses Act read with Section 10 of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 ("Regulation Act"), Section 37 of the Contract Act, 1872 and rulings of the superior courts of the Country; that the rule of Master and Servant cannot be allowed to trump the constitutional and statutory laws of Pakistan; that the Impugned Order is also violative of the principles of natural justice and the maxim, audi alteram partem; that the Petitioner being an employee had a legitimate expectation for completion of her tenure; that the Respondent No.1 is bound to act in a transparent manner and to avoid decision in a secretive clandestine manner; that the Impugned Order is also illegal being violative of the stay granted by the learned Appellate Court when appeal of the Petitioner was pending. Learned counsel lastly contended that jurisdiction of the Hon'ble High Court clearly extends to the matters which relate to enforcement of fundamental rights and prayed for setting aside of the Impugned Order and for a direction to the Respondent No. 1 to provide grounds for adverse action and an opportunity of hearing prior to termination.
6. Learned Counsel in support of his contentions placed reliance on the case laws reported as Anisa Rehman versus P.I.A.C., 1994 SCMR 2232 , Sadiq Amin Rahman versus PIAC, 2016 PLC 335, Ghulam Rabbani versus State Bank of Pakistan, 2020 PLC(CS) 483, Ashraf Tiwana versus Federation of Pakistan, 2013 SCMR 1159, Rahim Shah versus The Chief Election Commissioner of Pakistan, PLD 1973 SC 24, University of Dacca versus Zakir Ahmed, PLD 1965 SC 90, Zahid Sattar versus Federation of Pakistan, PLD 2002 SC 408, Samina Kanwal versus Director Punja b Forestry Research Institute, PLD 2011 Lahore 563, 2013 SCMR 1707 , PLD 2014 SC 232, and two unreported judgments of this Hon'ble Court passed in the cases Waseem Ahmad versus Federation of Pakistan , W.P. No. 3757/2020) and Oil & Gas Development Company Ltd. (OGDCL), etc. versus Major (R) Matloob Ahmed Baig, I.C.A. No.144/2016, and Hon'ble Supreme Court' s Judgment passed in case Muhammad T aufique Waseem Ahmad versus Federation of Pakistan, C.P. No. 1905/2015.
7. On the other hand, learned counsel for Respondent No.1 contended that the rules of the Respondent No.1 are non-statutory in nature, therefore, writ against it is not maintainable; that an employee of an authority or corporation in absence of violation of law or any statutory rule cannot invoke the constitutional jurisdiction or civil jurisdiction for seeking relief of reinstatement in service rather remedy for alleged wrongful dismissal is to claim damages.
8. According to the learned counsel for Respondent No. 1, services of the Petitio ner were hired by Respondent No.1 under Section 10 of the Regulation Act vide agreement, clearly providing the terms and conditions as agreed between the Petitioner and the Respondent No.1 and its Clauses 3, 4, 7, 10 & 15 expressly depict that the nature of relations between the Petitioner and Respondent No.1 was contractual; that Clause 15 of the said agreement provides for termination of the agreement on three months' notice from either side or an equivalent payment in lieu thereof; that neither of the parties can resile from its terms after signing the Agreement; that services of the Petitioner and the settlement of account has already been finalized by adding payment of three months' salary in lieu of notice in light of Clause 15(ii) of the said agreement; that even otherwise services of any employee cannot be imposed on the employer when the employer is of the view that same are not in benefit or simply not required by the employer; that prior to filing instan t petition, Petitioner filed a civil suit befor e the Honourable Civil Court onth the same cause, when no temporary relief was granted an appeal was filed, however , subsequently when the proper assistance was provided by the Respondent before the relevant Courts, both the said cases were withdrawn by the Petitioner and on the same caus e instant writ petition has been filed; that after termination of services, Petitioner has no locus standi to file instant petition.
9. Learned counsel in support of his submissions placed reliance on the cases Aziz ur Rahman versus The Burmah Oil Co. (Pakistan Trading), Ltd., PLD 1960 Dacca 759, M/s Malik and Haq and another versus Muhammad Shamsul Islam Chaowdhury and others, PLD 1961 SC 531, Gohar Ali and another versus M/s Hoechst Pakistan Ltd., 2009 PLC (C.S.) 464, Imtiaz Ahmed Barakzai versus Federal Tax Ombudsman and others, 2019 PLC (C.S.) 1145, Abdul Wajid versus National Database and Registration Authority and others, 2021 PLC (C.S.) 596, Vice Chancellor , Bacha Khan Univers ity Charsadda, Khyber Pakhtunkhwa and others versus Tanveer Ahmkad and others, 2022 PLC (C.S.) 85, James L. Kisor versus Robert Wilkie, Secretary of Veterans Affairs, 2019 SCMR 1229 , Province of Punjab through Secretary , Livestock and Dairy Development Department, Government of the Punjab, Lahore and others versus Dr. Javed Iqbal and others, 2021 SCMR 767, M/s Sui Southern Gas Company Ltd. versus Zeeshan Usmani and others, 2021 SCMR 609, Mutiline Associates versus Ardeshir Cowasjee and others, PLD 1995 SC 423, Qazi Munir Ahmed versus Rawalpindi Medical College and Allied Hospital through Principal and others, 2019 SCMR 648, Maj (R) Syed Muhammad Tanveer Abbas and another versus Federation of Pakistan through Secretary , Ministry of Interior and another , 2019 SCMR 984, Chairman NADRA, Islamabad and another versus Muhammad Ali Shah and others, 2017 SCMR 1979 , and two unreported orders of this Court passed in cases Khalid Masood and others versus Bahria University through its Registrar and others , W.P. No.1614/2018 and Mir Nawaz and others versus Federal Government Employees Housing Authority , through Director General, Islamabad and another , I.C.A. No.312/2021.
10. I have heard the learned counsel for the parties and have also perused the Impugned Order as well as available record.
11. The learned counsel for the Petitioner was directed to first satisfy this Court as to how the instant Writ Petition is maintainable given that the Petitioner was admittedly a contractual employee, which relationship is governed by the principles of master and servant and that it is also not denied that the Responden t No. 1 does not have statutory rules, in which case according to settled law writ is not maintainable.
12. The learned counsel for the Petitioner defended the writ as maintainable on the following grounds: (a) violation of natural justice; (b) Impugned Order of termination motivated by mala fide; and (c) that the Petitioner was exercising delegated functions of the Respondent Authority and as such was entitled to protection of due process.
Violation of Natural Justice
13. With regard to the first argument, the learned counsel for the Petitioner relied heavily upon the case of Mrs. Anisa Rehman vs. P.I.A.C. & Another , 1994 SCMR 2232 to argue that even in the case of Master & Servant, the violation of the maxim audi alteram partem by a corporation was held to be a violation of the principles of natural justice, which has been equated with the violation of a provision of law warranting pressing into service Constitutional jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. However, as pointed out by the learned counsel of the Respondent No. 1, the issue in the case of Mrs. Anisa Rehman (Supra) was not termination of employment without notice. Indeed, despite the aforesaid holding, the Honorable Supreme Court clarified in such case as follows: "The effect of the application of the master and servant rule is that an employee of a Corporation in the absence of violation of law or any statutory rule cannot press into service Constitutional jurisdiction or civil jurisdiction for seeking relief of reinstatement to service, his remedy for wrongful dismissal is to claim damages. " [Emphasis added]
14. The logic is fairly simple. In the case of Mrs. Anisa Rehman (Supra), the petitioner was reverted from a higher pay group to a lower pay group without notice. As such, there was an adverse action taken without notice to the petitioner , thereby condemning her unheard. In such circumstances, the apex Court very rightly held that the relationship of master and servant would be no bar in case of violation by a corporation of the maxim audi alteram partem , which is a principle of natural justice.
15. On the other hand, termination of an employment contract where the contract, as in the instant case, specifically provides for termination on payment of salary in lieu of notice cannot be described as a violation of natural justice as the employee agreed to such terms. Where termination has not been carried out in terms of the contract, the employee has a remedy in the form of a claim of damages. Similarly in the case of an employment contract for a fixed term, in case of wrongful dismissal, the employee can claim salary as damages for the unexpired term of contract. I am fortified in this view by the judgments rendered by the apex Court in the cases of Federation of Pakistan through Secretary Law Justice and Parliamentary Affairs Vs. Muhammad Azam Chatha, 2013 SCMR 120 and Qazi Munir Ahmed (Supra). The learned counsel for the Petitioner has failed to point out any reason for departure from the settled law in this regard. None of the other judgments cited by the learned counsel for the Petitioner involved writ petitions filed by contractual employees.
Mala Fide termination
16. Coming to the second ground, the learned counsel for the Petitioner argued that termination of the employment of the Petitioner was motivated by mala fide intent, which according to him is evident from the minutes of the administrative meeting of the Respondent No. 1 held on November 30, 2021 that specifically record that the file for termination of the Petitioner 's service contract was moved by the Deputy Director , Admin & HR and submitted directly to the Chairman without observing the hierarchy of the HR department. Per the learned counsel the malice against the Petitioner by the Chairman is due to her independent mind and the complaint she had filed before the Wafaqi Mohtasib. Be that as it may, as held in the case of Tabassum Shahzad Vs. I.S.I. and other s, 2011 SCMR 1886 , which was recently followed in Gul Roz Vs. The Government of Pakistan, 2022 PLC (C.S.) 1, mala fide is a question of fact, which has to be proved by recording evidence. Hence, that is yet another reason why the present writ petition is not maintainable.
Exercise of Delegated Functions of Authority
17. Lastly , it was submitted that the Petiti oner had been exercising delegated powers on behalf of the Respondent pursuant to Notification HR GEN/07/2021 /2066 under Section 12 read with Section 38 of the Regulation Act by virtue of which the Petitioner is entitled to the protection of due process as per the holding of the Honorable Supreme Court in Muhammad Ashraf Tiwana Vs. Pakistan, 2013 SCMR 1159. I have examined the said case, and find that the reliance on it by the learned counsel for the Petitioner is misconceived.
18. First and foremost, it may be seen that the petitioner in the said case at the very outset categorically stated that he would not press his prayer for striking down the order by way of which his employment was terminated and opted to pursue his remedies in an appropriate forum available under law. In view thereof, while the Honorable Supreme Court considered the hiring and firing of employees particularly those who assist the SECP in the performance of its decision making functio n, a highly significant matter , it nevertheless refrained from recording any conclusions about the Impugned Order . Insofar as the discussion regarding termination simpliciter contained in such judgment is concerned, it may be noted that the discussion pertains to regular employees of SECP under Section 8 of the Securities & Exchange Commission Act, 1997 and as such has no bearing on contractual employees of the Respondent who does not have statutory rules. The learned counsel for the Petitioner has utterly failed to point out anything in the judgme nt of Muhammad Ashraf Tiwana (Supra), which could be relied upon to hold the instant writ maintainable.
19. The learned counsel for the Petitioner also relied upon an unreported judgment of a learned Division Bench of this Court passed in the case of Oil & Gas Development Company Limited (Supra), wherein writ petition was held maintainable even in the case of non-statutory rules of service following the principles laid down by the Honorable Supreme Court in Pakistan Defence Officers' Housing Authority and others Vs. Lt. Col. Syed Jawaid Ahmed, 2013 SCMR 1707 , which are reproduced herein below: "50. The principles of law which can be deduced from the foregoing survey of the precedent case-law can be summarized as under:--
(i) Violation of Service Rules or Regulations framed by the Statutory bodies under the powers derived from Statutes in absence of any adequate or efficacious remedy can be enforced through writ jurisdiction.
(ii) Where conditions of service of employees of a statutory body are not regulated by Rules/Regulations framed under the Statute but only Rules or Instructions issued for its internal use, any violation thereof cannot normally be enforced through writ jurisdiction and they would be governed by the principle of 'Master and Servant'.
(iii) In all the public employments created by the Statutory bodies and governed by the Statutory Rules/Regulations and unless those appointments are purely contractual, the principles of natural justice cannot be dispensed with in disciplinary proceedings.
(iv) Where the action of a statutory authority in a service matter is in disregard of the procedural requirements and is violative of the principles of natural justice, it can be interfered with in writ jurisdiction.
(v) That the Removal from Service (Special Powers) Ordinance, 2000 has an overriding effect and after its promulgation (27th of May, 2000), all the disciplinary proceedings which had been initiated under the said Ordinance and any order passed or action taken in disregard to the said law would be amenable to writ jurisdiction of the High Court under Article 199 of the Constitution." [Emphasis added]
20. In the said suit, the Division Bench of this Court found that the facts of such case fell within Serial No. (iv) and as such writ was held maintainable. However , as far as the instant case is concerned, it may be seen that contractual employees are clearly excluded under Serial No. (iii) therefore, the case of the Petitioner does not fall within any category as listed in Pakistan Defence Officer 's Housing Society Authority (Supra), whereby writ would be maintainable.
21. The appeal is being decided on the question of maintainability as such no finding is being rendered on merits.
22. In view of the foregoing, the instant Writ Petition is held not maintainab le hence the same is, hereby , dismissed .