Muhammad Nadeem VS FOP etc

ORDER SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

I.C.A.No.19 of 2021 Muhammad Nadeem Versus Federation of Pakistan and others S. No. of order Date of order/ Order with signature of Judge and that of parties or counsel / proceedings Proceedings where necessary. 07.12.2021 Mr. Muhammad Shoaib Shaheen, Advocate for the appellant, M/s Muhammad Qasim Qureshi and Sheikh Danish Iftikhar, Advocates for respondent No.3, Mr. Nazar Hussain Shah, learned Assistant Attorney-General.

Through the instant intra Court appeal, the appellant, Muhammad Nadeem, impugns the judgment dated 31.12.2020 passed by the learned Judge-in-Chambers, whereby writ petition No.2369/2020 filed by him against the non-renewal of his contractual services, was dismissed. Vide letter dated 12.08.2020, the appellant was informed by the Pakistan Poverty Alleviation Fund (“PPAF”) that the period of his contractual services would not be renewed.

2.The record shows that on the basis of the employment contract dated 09.12.1999 executed between the appellant and PPAF, the former was appointed as Managing Executive, Community Physical Infrastructure Unit for a period of three years i.e., up to 02.09.2002. It is an admitted position that the period for which the appellant was employed was extended from time to time. The appellant’s employment contract was last extended up to 02.09.2020. Vide letter dated 12.08.2020, PPAF informed the appellant that his employment contract would not be renewed beyond 02.09.2020. The said letter was assailed by the appellant in writ petition No.2369/2020 which was dismissed by the learned Judge-in-

Chambers vide judgment dated 31.12.2020. The said judgment has been assailed by the appellant in the instant intra Court appeal.

3.Learned counsel for the appellant submitted that the appellant had worked with PPAF for two decades during which period he had been promoted; that the appellant had a legitimate expectation for his contract period to be renewed; that the pleadings in the PPAF’s written comments had stigmatized the appellant and jeopardized his future employment prospects; and that the appellant’s representations dated 16.08.2020 and 23.08.2020 have till date not been responded to by PPAF. Learned counsel for the appellant prayed for the appeal to be allowed and for the impugned judgment dated 31.12.2020 to be set-aside.

4.On the other hand, learned counsel for PPAF submitted that at all material times, the appellant’s services with PPAF were contractual in nature; that this Court could not obligate PPAF to renew the appellant’s employment contract, which had already been expired; that the relationship between the appellant and PPAF was governed by the principle of master and servant; that the letter dated 12.08.2020 whereby the appellant was informed that his employment contract would not be renewed does not stigmatize him in any manner; and that the pleadings in PPAF’s written comments which offended the appellant have been withdrawn. Learned counsel for PPAF prayed for the appeal to be dismissed.

5.I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. The facts leading to the filing of the instant appeal

have been set out in sufficient detail in paragraph 2 above and need not be recapitulated.

6.It is an admitted position that at all material times, the appellant’s employment with PPAF was contractual in nature and governed by the terms and conditions of the employment contract dated 09.12.1999. Clause 11 of the said employment contract is reproduced herein below:- “The appointment during contract period shall be liable to termination on one month notice or on payment of one month clean wage salary either by the Company or the employee.”

7.The PPAF’s letter dated 12.08.2020 whereby the appellant was informed that his employment contract would not be renewed beyond its expiry date of 02.09.2020 does not stigmatize him in any manner. Indeed in the written comments of PPAF, there were pleadings which were offensive and damaging to the appellant but such pleadings have been withdrawn and amended written comments were filed. Learned counsel for PPAF also clarified that any PPAF’s pleadings in its amended written comments which the appellant finds as offensive to him may be treated as withdrawn.

8.It is a master’s prerogative to terminate a servant’s contractual appointment if the former does not find the latter’s performance to be satisfactory. Such termination can take place in accordance with the terms and conditions of the employment contract. A contractual employee cannot insist for a regular inquiry to be held regarding the employer’s satisfaction with the employees’ performance. In the case at hand, as mentioned above, PPAF’s letter dated 12.08.2020, whereby the appellant was informed that his employment contract would not be renewed

beyond 02.09.2020 does not, in any manner, stigmatize him.

9.This Court, in exercise of its jurisdiction under Article 199 of the Constitution, cannot hold that the appellant’s employment contract continues to subsist. The contractual nature of the appellant’s employment made his relationship with PPAF as that of master and servant. It is well settled that a contractual employee cannot file a writ petition seeking his reinstatement in service. Reference in this regard may be made to the following case law:-

(i)Recently in the case of Chairman NADRA, Islamabad Vs. Muhammad Ali Shah (2017 SCMR 1979), it has been held that a contractual employee of a statutory organization cannot invoke the Constitutional jurisdiction of the High Court under Article 199 of the Constitution.

(ii)The Honourable Supreme Court in the case of Pakistan Telecommunication Company Limited Vs. Iqbal Nasir (PLD 2011 S.C. 132), held as follows:- “All the employees having entered into contracts of service on the same or similar terms and conditions have no vested right to seek regularization of their employment, which is discretionary with the master. The master is well within his rights to retain or dispense with the services of an employee on the basis of satisfactory or otherwise performance. The contract employees have no right to invoke writ jurisdiction, particularly in the instant case where their services have been terminated on completion of period of contract.”

(Emphasis added)

(iii)In the case of the Federation of Pakistan through Secretary Law Justice and Parliamentary Affairs Vs. Muhammad Azam

Chatha (2013 SCMR 120), it has been held as follows:- “In addition to it, it is a cardinal principle of law that a contract employee instead of pressing for his reinstatement to serve for the leftover period can at best claim damages to the extent of unexpired period of his service.”

(iv)In the case of Trustees of the Port of Karachi Vs. Saqib Samdani (2012 SCMR 64), it has been held as follows:- “Evidently the above letter reflects that the respondent was in employment on contract basis, hence no vested right was created in his favour for reinstatement in service. It was not the case where the respondent was appointed as a regular employee against any particular quota to give him a valid cause of action. Equally, the impugned judgment is also silent that termination of service of the respondent violated any of his rights, therefore, in our view his reinstatement under the impugned judgment does not appear to have been validly ordered."

(Emphasis added)

(v)In the case of Syed M. Yahya Vs. First Credit and Investment Bank Limited (2009 UC 656), it has been held inter alia that contractual employment containing specific terms and conditions of service would exclude the application of a general terms and conditions of service applicable to non- contractual employees. Furthermore, it was held that a contractual employee could not invoke writ jurisdiction under Article 199 of the Constitution against his termination from service in accordance with the specific terms and conditions of service contained in the contract.

(vi)In the case of Muhammad Waqas Gul Vs. Water and Power Development Authority

(2015 PLC (C.S.) 144), it has been held as follows:- “Without going into the question whether the aforesaid clauses will automatically dispense with requirement of rule of natural justice, suffice it to say that non issuance of notice of hearing to the petitioners, will not entitle the petitioners, for revival of their contract of service, rather the remedy of the petitioners, if any, for wrongful termination would be for damages to the extent of unexpired period of their services, before the competent court of law.”

10.The appellant, through his writ petition, had raised a grievance regarding the terms and conditions of his employment with PPAF. Since the appellant’s employment with PPAF was contractual in nature, we do not find any legal infirmity in the decision of the learned Judge-in- Chambers to dismiss the appellant’s writ petition. There is, however, nothing preventing PPAF from deciding the appellant’s pending representations dated 16.08.2020 and 23.08.2020. In view of the above, the instant appeal is dismissed with no order as to costs.

(TARIQ MEHMOOD JAHANGIRI) (MIANGUL HASSAN AURANGZEB)

JUDGE JUDGE

Sultan*