Hamid Mukhtar Vs Federal ministry of Energy etc

Form No.HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE.

JUDICIAL DEPARTMENT

ICA No. 71303 of 2022

Hamid Mukhtar.

Versus.

Federal Ministry of Energy, etc.

S.No. of Date of Order with signature of Judge and that of parties or Order/ order/ counsel where necessary Proceeding proceeding 14.11.2022 M/s. Safdar Shaheen Pirzada, M.M.Qasim Gabhar, Mehar Ali Shahzad, Nasir Mahmood Ch., and Nabila Tariq, Advocates for appellant.

MUZAMIL AKHTAR SHABIR:- Through this Intra Court Appeal, filed under Section 3 (2) of the Law Reforms Ordinance, 1972, the appellant has challenged the order of dismissal of his constitutional petition dated 05.10.2022 passed by learned Single Judge in Chambers. Through the constitutional petition, the appellant had prayed that he be allowed to join service as he had been restrained illegally and unlawfully by the respondents to mark his attendance and continue his service; further direction was sought to regularize his services in the interest of justice, which relief has been declined by dismissal of the constitutional petition.

2.It is contended by learned counsel for the appellant that the learned Single Judge has passed the impugned order without providing opportunity of hearing to the appellant as the counsel for the appellant was not available in the court for the reason that no information relating to fixation of the Writ Petition was received by him, hence, it is prayed that by setting-aside the

ICA No. 71303 of 2022 Dated: 14.11.2022

impugned order, the matter be remanded to learned Single Judge for re-hearing and decision on merit.

3.We have gone through the record of the case and the impugned order passed by learned Single Judge in Chamber. The appellant in the garb of afore-referred prayer made in the constitutional petition in fact seeks setting-aside of order of termination of his contractual service. Although learned counsel for the appellant had not entered appearance before the learned Single Judge and the matter was decided in his absence, yet the fact of the matter is that the said Court properly appreciated the real controversy in issue and decided the same by observing that the appellant being a contract employee, whose services had been terminated, could not seek reinstatement and regularization in service in view of principles laid down in judgment reported as 2022 SCMR 1680 (FARAZ AHMED Versus FEDERATION OF PAKISTAN through Secretary Ministry of Communication, Government of Pakistan, Islamabad and others). The afore-referred reason given in the decision of the learned Single Judge is also supported by the principles laid down by the Hon’ble Supreme Court of Pakistan in 2013 SCMR 120 (Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs versus Muhammad Azam Chattha), wherein it is laid down that where services of contract employee were terminated before expiry of contract period, at best such employee could claim damages for his wrongful dismissal/termination and could not claim reinstatement in service. Same principle has been laid down in judgments reported as 2019 SCMR 648 (Qazi Munir Ahmed Versus Rawalpindi Medical College and Allied Hospital through Principal and others) and 2015 PLC

ICA No. 71303 of 2022 Dated: 14.11.2022

(CS)1385 (Peshawar) (Lt. Col. (Retd.) Sultan Zeb Khan versus Board of Governors, Fazle Haq College, Mardan through Chairman and 5 others), hence, in view of the afore-referred principles, the Writ Petition filed by the appellant seeking reinstatement and regularization in service was not maintainable.

4.The ground raised by the appellant that second portion of the impugned order which mentions that Writ Petition is not competent against NESPAK in view of principles laid down in W.P.No. 110187 of 2017 is not sustainable for the reason that Intra Court Appeal has been filed against the said judgment where the matter is sub judice and the said principle has not attained finality. The said ground is of no avail to the appellant for setting- aside the impugned order for the reason that even if petition is held to be maintainable against NESPAK, this Court has already concluded that Writ Petition by the appellant, who was a contract employee seeking reinstatement in service is not maintainable, which observation shall hold the field regardless of who the respondents in the Writ Petition are. It is pertinent to mention here that where the main ground on which the petition has been dismissed is upheld by the appellate court, then the impugned order cannot be reversed merely for the reason that any additional ground provided to dismiss Writ Petition, which even otherwise was subsidiary in nature, was not sustainable rather the appellant has to show that the impugned decision would not be sustainable due to reversal of the finding on said additional ground provided in the impugned order. In the present case, the reversal of the second ground relating to petition not being maintainable against NESPAK given in the impugned order would not be sufficient to set-aside

ICA No. 71303 of 2022 Dated: 14.11.2022

order of dismissal of petition on the ground that a contract employee cannot seek reinstatement. Moreover, it is settled law that where a decision is passed on a certain ground, the same can be sustained/upheld on the basis of another ground even if the ground on which the decision had been made does not find favour with the appellate court. Reliance in this regard may be placed on PLD 2007 Supreme Court 133 (FEDERATION OF PAKISTAN through Secretary, Ministry of Finance and others versus HAJI MUHAMMAD SADIQ and others).

5.Another ground raised by the appellant that he was not provided an opportunity of hearing as his counsel had not received the cause list is also of no help to the appellant for the reasons that the impugned order is based on correct application of law and the defect, if any, in the order for not providing opportunity of hearing to the appellant before the learned Single Judge stands cured by hearing provided by Division Bench of this Court while passing the instant order. Reliance in this regard may be placed on PLD 1983 Supreme Court 358 (ZAIBTUN TEXTILE MILLS LTD versus CENTRAL BOARD OF REVENUE AND OTHERS), the relevant portion of which is reproduced below:

“The question whether the lack of hearing at the initial stage would vitiate the order even if there is subsequent hearing afforded to the affected party at the appellate or review stage, depends upon the question whether the rule of natural justice is incorporated in the governing statute or is being merely imported on the basis of the common law rule. It is well established that if the law under which action is taken by an authority expressly provides for the notice then non-compliance with such provision would render the action taken or order passed in pursuance of the powers conferred by such law as void, but if there is no express provision to that effect, then the requirement of the rule of natural justice would be sufficiently fulfilled and the defect resulting from not hearing the affected party would stand cured by the subsequent hearing.”

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The same principle has been followed by the Learned Sindh High Court in the judgment reported as 1984 CLC 2002 (RASHIDULLAH KHAN versus GOVERNMENT OF SIND AND 3 others).

6.In view of what has been discussed above, the appellant has failed to point out any illegality, jurisdictional defect, misreading and non-reading of record by the learned Single Judge while passing the impugned order for this Court to warrant interference in the well-reasoned impugned order passed by the learned Single Judge.

7.For what has been discussed above, this Intra Court Appeal being devoid of any merit is dismissed.

(CH. MUHAMMAD IQBAL) (MUZAMIL AKHTAR SHABIR)

JUDGE JUDGE

*Zeeshan Khan