Ms. Huma Babar VS FOP etc

ORDER SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

W.P.No.3018 of 2019 Huma Babar 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. 01.12.2021 M/s Abdul Rahim Bhatti, Yaser Rahim Bhatti and Qaiser Rahim Bhatti, Advocates for the petitioner, M/s Muhammad Shoaib Shaheen, Muhammad Umair Baloch and Nasir Saleem, Advocate for respondent No.3 Mr. Atiq-ur-Rehman, learned Assistant Attorney- General, Mr. Safdar Sial, Law Officer of respondent No.3.

Through the instant writ petition, the petitioner, Huma Babar, impugns the letter dated 11.06.2019 from the Utility Stores Corporation of Pakistan (Pvt.) Ltd. / respondent No.3, whereby her services were terminated pursuant to paragraph-O of her employment contract. The petitioner also assails the order dated 05.08.2019, whereby her departmental appeal against the termination of her services, was turned down.

2.Vide respondent No.3”s letter dated 31.08.2002, the petitioner was appointed as Assistant Stores Operation Officer (BPS-16) on contract basis for a period of one year. The terms and conditions of her employment contract were annexed to the said letter. The petitioner joined her duties after she accepted the terms and conditions of her employment contract. Clause O of the said contract is reproduced herein below:- “Termination The appointment on contract shall be liable to termination on one month”s notice or payment of one month”s pay in lieu thereof on either side without assigning any reason. However, in case no orders are received by him/her by the date on which contractual period is due to expire, the contract shall be deemed to have been extended until further orders, subject to termination with immediate

effect in case the authority competent to make appointment to the post to which he/she was appointed does not approve extension.”

3.On 20.02.2007, the petitioner was offered employment on contract basis as Officer (BS-17) in respondent No.3 / Corporation. The terms and conditions of her employment contract were annexed to the said letter. It is an admitted position that she accepted the terms and conditions of her employment contract. Clause O of her employment contract is identical to clause O of her earlier employment contract when she was appointed as Assistant Stores Operation Officer

(BPS-16).

4.The duration of the petitioner”s employment contract was extended from time to time. On 11.06.2019, the petitioner”s employment contract was terminated pursuant to paragraph O thereof. The petitioner”s departmental appeal against the termination of her services was turned down by respondent No.3 vide letter dated 05.08.2019. The said letters dated 11.06.2019 and 05.08.2019 have been assailed by the petitioner in the instant writ petition.

5.Learned counsel for the petitioner, after narrating the facts leading to the filing of the instant petition, submitted that during the course of her employment, the petitioner had been issued explanation letters and warnings; that a show cause notice had also been issued to the petitioner; that at no material stage has any regular inquiry in accordance with the service rules of respondent No.3 been conducted against the petitioner; that after having served for several years in respondent No.3 / Corporation, the petitioner had attained the status of a permanent employee; that in respondent No.3”s letter dated 05.08.2019, whereby her departmental appeal was

turned down, serious aspersions have been cast on the petitioner which would have a detrimental effect on the petitioner”s future employment prospects; and that this Court ought to set-aside respondent No.3”s letters dated 11.06.2019 and 05.08.2019 and direct respondent No.3 to reinstate the petitioner in service with all back benefits. Learned counsel for the petitioner prayed for the writ petition to be allowed in terms of the relief sought therein. In making his submissions, learned counsel for the petitioner placed reliance on the judgments reported as

2017 PLC (C.S.) 973, 2013 SCMR 1159, 2010 PLC

(C.S.) 266 and 2007 PLC (C.S.) 1046.

6.On the other hand, learned counsel for respondent No.3 raised an objection to the maintainability of the instant petition on the ground that since the petitioner was at all material times a contractual employee, she cannot file a writ petition seeking a direction for her to be reinstated in service. Furthermore, it was submitted that this petition was not maintainable since the petitioner”s terms and conditions of service were governed by an employment contract which contain a termination clause, and not by any statutory rules. He further submitted although during the course of her employment, the petitioner had been issued warnings on 15.02.2013, 31.03.2014, 20.06.2017 and explanation letters on 14.02.2013, 21.09.2016 and 09.06.2017, and a show cause notice dated 29.01.2014 but the termination of her services was pursuant to the termination clause in her employment contract. It was also submitted that during the pendency of this petition, respondent No.3 had withdrawn all aspersions, if any, cast on the petitioner in the letter dated 05.08.2019.

Learned counsel for respondent No.3 prayed for the writ petition to be dismissed.

7.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 petition have been set out in sufficient detail in paragraphs 2 to 4 above and need not be recapitulated.

8.As mentioned above, at all material times the petitioner”s employment with respondent No.3 / Corporation was governed by the terms and conditions of her employment contract. The petitioner was appointed as Assistant Stores Operation Officer (BPS-16) after she had accepted the terms and conditions of her employment contract. The said contract contains a clause under which the petitioner”s services could be terminated on one month”s notice or the payment of one month”s salary in lieu thereof without assigning any reason. Even beyond the expiry date of the contract, the said contract could be terminated with immediate effect.

9.Respondent No.3”s letter dated 11.06.2019 whereby the petitioner”s services were terminated does not in any manner stigmatize her. The termination of her contract is strictly in accordance with clause O thereof. As regards the adverse observations against the petitioner in respondent No.3”s letter dated 05.08.2019, whereby her departmental appeal was dismissed, the same have already been withdrawn by respondent No.3 vide letter dated 11.08.2021. Consequently, the termination of the petitioner”s employment contract is to be treated as a simple termination and not on the ground of any misconduct or dereliction of duty.

10.Respondent No.3 had published an advertisement on 03.02.2020 inviting applications for appointment to different posts in respondent No.3 / Corporation including the post of Human Resource Officer (BS-17) on contract basis. There was nothing preventing the petitioner to have applied for appointment in response to the said advertisement.

11.As mentioned above, at all material times, the petitioner”s employment with respondent No.3 / Corporation was contractual in nature. 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, the impugned letters dated 11.06.2019 and 05.08.2019, when read with respondent No.3”s corrigendum dated 11.08.2021, do not, in any manner, stigmatize the petitioner.

12.This Court, in exercise of its jurisdiction under Article 199 of the Constitution, can neither declare the termination of the petitioner”s contractual employment to be unlawful nor hold that her employment contract continues to subsist. The contractual nature of the petitioner”s employment made her relationship with respondent No.3 as that of “master and servant.” The terms of the petitioner”s employment contract empowered respondent No.3 to terminate her employment by giving one month”s notice. This being so, if the petitioner feels that the termination of her employment contract was premature or

unlawful or based on malafides, at best, she could file a suit for damages, subject to law. It is well settled that a contractual employee cannot file a writ petition seeking his / her 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 AzamChatha (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.”

13.Furthermore, the petitioner is not a regular employee of respondent No.3. It must be appreciated that contractual employment does not transform into a regular employment by simple efflux of time, without a regularization order or a provision in the contract providing for a contractual employment to become regular after the lapse of a specified period.

14.The petitioner through the instant writ petition has raised a grievance regarding the terms and conditions of her employment with respondent No.3. Since respondent No.3 does not have statutory service rules, and since the petitioner”s employment with respondent No.3 was contractual in nature, I hold that the instant writ petition is not maintainable and the same is, therefore, dismissed with no order as to costs. I refrain from touching the merits of the case, lest it may prejudice to the petitioner”s case before the competent forum.

(MIANGUL HASSAN AURANGZEB)

JUDGE

Sultan*