IFTIKHAR MUHAMMAD CHAUDHRY, J.- Instant Constitutional Petitions No. 288 to 301 of 1995, being in the nature of mandamus have been filed, seeking following relief:- "It is, therefore, most respectfully prayed that the action of respondents in closing the EDPCO of the petitioner be declared to be illegal and without lawful authority and the same (EDPCO) may be restored in the interest of justice and equity.
(ii) Any other relief which may be deemed just and appropriate in the circumstances of the case may also be granted with costs of the petition."
As question of law and facts are common in all the matters, therefore, we have proposed to record jointly the reasons of our short order dated 16th March, 1995.
2. All the petitioners were appointed as Agents by Pakistan Telecommunication Corporation to set- up/instal Public Call Offices at their Premises separate Agreements, containing identical terms and conditions.Probably owing to policy decision of Corporation, the connections of telephones installed in the premises of petitioners were dis-connected as Corporation wanted to introduce/install Card Pay Phones. As such, the petitioners approached the respondents complaining against dis-connection of telephones, but as their grievances was not redressed, therefore, they have filed instant Constitutional petitions.
3. Mr. S.A.M. Quadri, learned counsel on behalf of petitioners at the very outset, urged that action of dis-connecting the telephones of petitioners, has been taken in violation to the principles of natural justice i.e. No one should be condemned unheard. According to him, before banning the petitioners from running Extra Departmental, Public Call Offices, they were entitled to show cause notices.
4. The contentions so raised was strongly opposed by learned Deputy Attorney General Raja Rab Nawaz, who placed on record of clipping to show that the decision so taken by the Corporation to replace the manual telephone instrument with Card Pay Phones was announced in the'
Newspapers. He further stated that there were number of complaints of corruption in the service of Public Call Offices, throughout the country, due to which, not only the Corporation was being deprived of the revenue, but its staff members were also deeply involved in this menace. Even otherwise, the Card Pay phones is a telephone Apparatus which works mechanically and doss not involve the recovery of cash mffncy from customers, because the instrument can be operated by punching cards. The petitioners were Agents of the Corporation, therefore, they had no- vested right to hold the Agency for an indefinate period. Learned counsel also drew our attention towards the different clauses, of the Agreement particularly 3.1 and argued that in pursuance thereof, the principal i.e. The Corporation had acquired a right to withdraw the Agency at any time, without assigning any reasons thereof.
5. .Mr. Shakeel Ahmad, learned counsel for the Corporation stated that in view of the clause of agreement referred to by the learned Deputy Attorney General, the petitioners had relinquish themselves from the right of being heard taking any action. Even otherwise, the dispute relates to enforcement of agreement/contract, for which, no constitutional petition can be maintained, on behalf of petitioners. Learned counsel offered that the Corporation even now is ' ready to accommodate the petitioners, if they agree to instal Card Pay Phones in their premises, instead of ordinary Apparatus of Telephone, however subject to the condition of furnishing security, it is required by the Corporation supplying such instruments. He emphasised that in' the counter affidavit, such offer has been made categorically but the petitioner failed to give any response, as such, they are not entitled for any discretionary relief.
5. Mr. Ejaz Yousaf Chaudhry, learned Additional Advocate General was asked to assist the court. He argued that since there is relationship of a Principal and Agent between the petitioner and the Corporation, therefore, on the eve of withdrawing the Agency, petitioners were not entitled for the right of hearing, more particularly when they themselves, according to the terms of the agreement, have delegated such right to their PrindpaL Learned Additional Advocate-General, also affirmed that the matter requires enforcement of an agreement which has been denied by the Principal therefore, this court in exercise of constitutional jurisdiction, perhaps would-be reluctant to grant the relief, unless the impugned action has not boon found in violation to any statutory provisions of law or amounts to taking away the vested right of petitioners.
6. We have heard the learned counsel at length and also perused the record carefully.
7. It is a no-denial fact that principle of natural justice, enshrined in the maximum 'Audi Alteram partem" is attracted/applicable in all the proceedings intended to, pass an adverse order against a party, unless its application has not been expressly excluded. In forming this view, we are fortified with the cases of Chief Commissioner Karachi Vs. Mrs. Dina Sohrab Katrak (P.LJD. 1959 SC (Pak) 45), Fareed Sons Limited Vs. Govemment of Pakistan (P1.D. 1961 SC 537), Province of East Pakistan Vs. Noor Ahmad and another (PLD 1964 SC 451), University of Dacca through its Vice Chancellor and the Registrar, University of Dacca Vs. Zakir Ahmad (P.L.D. 165 SC 90) and Makarwal Colleries Limited and 2 others Vs. Govemment of NWFP and 11 others (1993 SCMR1140).
8. Now in view of the given facts of the case, it would be examined 'whether the principle of Audi Alteram partem' shall also be read into a civil contract/agreement which has been concluded by the parties with their free will and consent, allowing thereby to incorporate a particular clause which had deprived one of the party to claim the right of hearing. Obviously answer to this proposition could not be any other, except that in Civil contract/agreement, the principle of 'Audi Alteram Partem' shall not be read unless it has not been -incorporated , particularly. Moreover in'the instant case, the petitioner being Agents of the Corporation consented for the inclusion of the following dause:- "3.4 The Agent would have no objection to the shifting or dosing of the PCO, induding removal of the apparatus and the fixtures connected therewith by the Prindpal at any time, without assigning any reason thereof."
10. Undoubtedly the petitioners are daiming in the relief dause, the enforcement of the agreement, therefore, their rights shall be governed according to the terms laid down in the agreement and not beyond its scope at all. At this juncture, the Doctrine of "Expressum facit cassare taciturn' would be attracted, according to which, when a deed or statute contains express covenants or specific mention of things and contingendes, no implication of any covenant or contingency on the same subject matter can be raised. Reference in this behalf can be made to Messrs Nasir Traders through its Proprietor and 3 others Vs. Habib Bank Limited, Quetta (PLD 1993 Quetta 94). The rights of the parties definately shall be governed according to the agreement containing the aforesaid dause, according to which, the petitioners were not entitled for a right of hearing before disconnection of telephone, thus the contention put forth by the learned Counsel for petitioners, is accordingly repelled.
11. It would not be out of context to note that the press clipping filed by Raja Rab Nawaz, learned D A.G. As well as the decisions made from time to time by the Federal Ombudsman, a copy whereof has also been placed on record by respondeat No. 3 alongwith the counter affidavit, manifestly emits of corruption in involving the system of Extra Departmental Telephone connections being operated manually by the Agents, therefore, the Corporation in the largest interest of the public and also to provide safeguard to the public Exchequer had decided to evolve a modem and mechanical system by replacing the telephones of petitioners with Pay Card Phones which will be operated without involving the cash money by the customers and in this behalf in an unequivocal terms, offer has been made by the Corporation to the petitioners for replacing their instruments, as it is indicative from the contents of the counter affidavit. Relevant portion therefrom, is reproduced herein-below:- "THE CORPORATION HAS A LIBERAL POLICY FOR GRANT OF PAY CARD PHONES AND EVEN THE SAME CAN BE PROVIDED TO THE PETITIONERS IF THE FULFILS NECESSARY REQUIREMENTS SUCH AS DEPOSIT OR SECURITY ETC."
Thus petitioner should have accepted the offer, instead of insisting for the restoration of telephone connections which involves corruption, leakage and pilferage in the public Exchequer.
11. In addition to-above discussion, in the all matters, where enforcementof a civil contract or agreement is involved, a writ in exercise of Constitutional jurisdiction cannot be issued. Reliance in this regard is placed on PLD 1958 SC 267, PLD 1962 SC 108,1968 SGMR 1136, and PLD 1986 Quetta 181.
12. The upshot of the above discussion leads to hold that the instant constitutional petitioners have no merits, which are accordingly dismissed, leaving the parties to bear their own costs.
13. This constitutes the reasonings of our short order dated 16.03.1995.