'This Constitutional petition calls in question show-cause notice, dated 18-12-1996, and also the decision of. The Federal Cabinet, dated 23-12-1996 on the ground that the same are void, without authority and of no legal effect.
2. The case of the petitioner is that in pursuance of Federal Cabinet decision, dated 9-2-1994, the G.O.P. Issued public advertisements in several national dailies inviting from the public "applications for setting up People's Pharmacies and comprehensive system for supply of high quality medicines at lowest possible prices", proposing a publi-private partnership for provision of the said service at hospital premises. The scheme was to be carried out by successful private bidder in three stages; firstly, setting up of People's Pharmacies in all Government hospitals down to the level of Tehsil Headquarters; secondly, bulk supply of medicines at the People's Pharmacies at low prices; and manufacture of medicines under generic names. It is claimed that offer was made that premises within the hospitals would be provided for construction of pharmacies on reasonable rates of lease and the leased premises were to constitute the Government's share in the partnership. As per petitioner, several parties participated in the selection procedure, the petitioner submitted a comprehensive feasibility report which was negotiated and approved by the G.O.P. And the scheme was finalized after due deliberations. It is claimed that agreement, dated 29-6-1994, was entered into by G.O.P. Which was for public-private partnership with the petitioner for establishing a fair price People's Pharmacies in Government hospitals. It is asserted that in terms of agreement, investment for establishing the pharmacies as well as funds constituting the running capital of the partnership were to be provided by the petitioner and space for pharmacies in hospitals to be provided by the Government which was to constitute the investment of the Government in operating the scheme. It is claimed that the Government of Sindh discarded the formality of entering into a separate agreement but the Government of Punjab entered into a separate agreement with the petitioner on 19-3-1995 while the Government of N.-W.F.P. Executed agreement in October, 1995. It is maintained that G.O.P. Or the Provincial Government did not provide a list of essential drugs which was to be made available at the People's Pharmacies and ever since September, 1994, when the petitioner established its first pharmacy in Islamabad, the W.H.O.
Essential drugs' list was adopted as an indicative list of necessary items for sale which G.O.P. Never objected. It is claimed that the petitioner offered the agreed. 15% discount on these drugs, In addition petitioner's outlets were to open 24 hours a day, thus, providing a valuable service within the hospital. It is the grievance of the petitioner that the Punjab and N.-W.F.P. Governments delayed the handing over of the hospital sites for the petitioner's outlets which blocked bulk purchase of medicines by the petitioner and also hampered the petitioner's ability to claim larger refunds from the manufacturers and suppliers. According to the petitioner, another problem cropped up in the end of 1994 when the prescriptions made by hospitals doctors advised brand drugs which were outside the essential drugs list served by the petitioner. The matter was taken up with the G.O.P., high level meeting was held wherein the decision was allegedly taken that the petitioner must extend the range of its supplies to imported medicines as well. It was claimed that petitioner's annual report, dated 11-1-1996, highlighted the issue and suggested that hospitals should ensure their doctors to prescribe according to the national formulary with a view to give global discount of 15% and till the system was in place, the petitioner be allowed to continue to give variable discount.
It is added that the petitioner had invested Rs,4 million towards the fixed and revolving investment in the venture and was running a loss exceeding Rs,4.0 million. By raising allegations on the alleged lethargic attitude of the respective Governments, the petitioner claims that though it displayed excellent performance yet the respondents decided to destroy the business of the petitioner by issuing show-cause notice, dated 18-12-1996 and proceeded to take penal action without waiting reply of petitioner thereto, dated 26-12-1996. In this backdrop, the petitioner has challenged notice, dated 18-12-1996, decision of the Federal Cabinet, dated 23-12-1996 and has sought enforcement of agreement, dated 26-6-1994.
3. Ch. Aitzaz Ahsan, learned counsel for the petitioner, argued that the show-cause notice was mala fide, respondent No,1 did not wait for the reply nor for the time given for filing reply to the notice, proceeded to take penal action against the petitioner which would display pre-determined notion. It was contended that the petitioner was not allowed opportunity of hearing and that the performance of the petitioner or inability to provide 15% discount should have been adjudged by keeping in view the fact that out of 150 outlets the respondents had only allowed 68% outlets in all and, thus, could not expect the petitioner to give the agreed discount. Learned counsel for the petitioner submitted that proportionate deduction was on account of breach of contract on the part of the respondents. It was added that the notice was issued without authority, and that out of 68 outlets, the complaints were only in respect of one outlet and, therefore the general action was unwarranted.
4. Khawaja Saeed-uz-Zafar, learned Deputy Attorney-General, argued that the petitioner intended to enforce a partnership agreement through writ petition which was not permissible, pure contractual obligation involving factual inquiry could not be enforced through a Constitutional petition, the petitioner had admitted his inability to perform his obligation under the contract, could not claim relief in discretionary jurisdiction, the petitioner expected doctors to prescribe medicines not according to the nature of the disease and the requirements and sufferance of the patients but according to the list which the petitioner intended to impose, contract in its nature was revocable hence its enforcement cannot be claimed, at best, it was a policy decision and the change of policy of the Government, being in the larger interest of the patients, the petitioner cannot insist to the continuation of unworkable conditions, there was a specific Arbitration Clause and petitioner should adhere to the same and the Constitutional petition would not lie.
5. In reply to the submissions of the learned Deputy Attorney-General, learned counsel for the petitioner submitted that his main reliance was on the point of promissory estoppel. Notice being arbitrary and unauthorised and that relief to this extent be allowed while for the remainder, the petitioner, if required, can resort to the Arbitration Clause. It was further submitted that the petitioner may not be able to get adequate relief from the Arbitrator as under the agreement, the Secretary Health, Government of Pakistan who is an employee of respondents, is to act as a sole arbitrator.
6. The facts and events which led to the filing of this Constitutional petition noted supra, reveal that the dispute relates to the issuance of show-cause notice and termination of agreement of partnership. Undeniably as also highlighted in the body of the petition, the petitioner's claim is that there was a partnership agreement between the petitioner and Government in which the Government was to invest in the form of providing space in the hospitals for pharmacies while certain investments were to be made by the petitioner and the relationship was to be regulated by the terms and conditions of the agreement. The petitioner raises allegations of breach of contract and nonperformance of certain acts under the contract by the respondents and in this backdrop, an effort is made to justify its own actions and also seeks revival and enforcement of partnership agreement. From whatever angle, the matter is examined, the dispute raised in the petition primarily relates to the terms and conditions of the contract and the relief claimed is in the form of enforcement thereof. The perusal of the contract will show that the parties had agreed to seek decision of all disputes arising under the contract through arbitration. The Arbitration* Clause incorporated in the agreement is to the following effect:-- "Any dispute touching any matter concerning this Agreement including interpretation of any term of this Agreement shall be referred for decision to the Secretary Health, Government of Pakistan who shall be the sole arbitrator."
' It is not denied by either of the parties that the Arbitration Clause does cover the matter in issue.
Even otherwise for the facts noted hereinabove, it is discernible that the dispute is in regard to the terms and conditions of the Contract of partnership, which can be competently taken cognizance of by the Arbitrator. In the cases where there is Arbitration Clause, the party is deemed to have adequate efficacious remedy which is expected to be followed up instead of directly invoking extraordinary Constitutional jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. Reference can be made to AIR 1996 SC 3515, a judgment from Indian jurisdiction wherein it was observed that where a contract contains a clause providing for settlement of dispute by reference to arbitration, the Arbitrator can decide both the questions of fact as well as question of law and there shall be no reason why the party should not follow and adopt its remedy and invoke extraordinary Constitutional jurisdiction of the High Court.
7. The argument that the Secretary Health, Government of Pakistan, is to act as a Sole Arbitrator and, therefore, the petitioner cannot have possibly any independent and fair decision is devoid of merit. The parties including the petitioner voluntarily agreed to choose the Secretary Health as sole Arbitrator, cannot, at this stage, be allowed to express lack of confidence particularly when the authority of arbitrator was not challenged in the hierarchy of jurisdiction. There is definite procedure in the Arbitration Act for the removal of arbitrator in case of misconduct. At present, no such application has been filed nor the petitioner ever expressed lack of confidence in writing in the impartiality or the independence of the sole arbitrator, and, therefore, the objection raised is devoid of any substance. Even otherwise, if at any stage, the petitioner finds reasons to object to the conduct of the arbitrator, it shall be open to the petitioner to avail the remedy provided in law.
In the presence of Arbitration Clause, the petitioner cannot possibly raise the dispute through Constitutional petition, particularly, when the dispute is in regard to the terms and conditions of the contract and requires factual investigation to determine the same. Without investigation and evidence, the dispute between the parties cannot be decided which, exercise A cannot be made in the summary jurisdiction. The contract, according to the petitioner, being a private contract and not a statutory agreement, as understood in law, its enforcement ordinarily cannot be secured by filing a Constitutional petition. Reference can be made to Muhammad Azam Sohail and others v.
Government of Pakistan and others 1998 SCM R 1549, operative part of the judgment is to the following effect:-- "Lastly, we may observe that to enforce a contract, the remedy does not lie .Under the Constitutional provisions because it is settled law that no contract can be enforced through a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 "
8. The argument that the validity of the notice be examined and for this limited purpose, the petition be entertained is not much of substance, for the reason that the decision of the dispute cannot be made in bits and pieces; the Arbitrator will be competent to decide all the questions arising from the contract including the objection in regard to the validity of the show-cause notice and there should be no reason to usurp any part of his jurisdiction; Once a party has agreed to resolve the controversy through arbitration, the Arbitrator shall be fully competent to render decision relating to the rights flowing form the contract by attending to all the claims-objections of the respective parties. The dispute, being of factual nature, can better be resolved through the agreed forum.
9. For the reasons above, this writ petition is dismissed being not maintainable in law.