Syed AZHAR RAZA HASHMI Versus FEDERATION OF PAKISTAN through Secretary, Ministry of Overseas Pakistanis
ORDER
ANWAR HUSSAIN, J .--- Facts of this Petition are that Respondent established post of Community Welfare Attaches (CWAs) in the different cities of the World and for that 10% of such posts was reserved for qualified professionals from the private sector, the Petitioner was selected for appointment in (BPS-19) on contract basis as Community Welfare Attache and posted in the Office of High Commission for Pakistan at Kuala Lumpur, Malaysia, vide Order dated 1st February 2012, for two years.
2. The Federal Minister of the Caretaker Government vide Impugned Summary dated 10.4.2013, found that the Petitioner has not joined his said duties, rather the Petitioner has misused his Diplomatic Passport, which was issued to him by the Govt. of Pakistan for his posting, therefore, direction was sought against the Petitioner to surrender his Diplomatic Passport. The Petitioner filed this Petition for challenging the above Summary with the prayer that the Petitioner is entitled to continue his tenure of service and the Summary dated 10.4.2013, of the Respondent was mala fide, without lawful jurisdiction and violation of relevant rules and regulations and also sought restraining order against the Respondent in respect of the same.
3. That on 06.5.2013, while ordering notice to the Respondent, the learned Division Bench of this Court passed the following interim order:
"In the meantime, status quo shall be maintained till the next date of hearing. This injunctive order shall stand vacated upon completion of the contract period or the concerned Minister after formation of new Government recalls the Petitioner from his present posting, whichever is earlier."
4. Thereafter, on Petitioner's Application said Order was clarified by observing that the said Order appears to be directory in nature, which was not the intent of the Court, rather it was meant that in case the new Minister after formation of new Government, if thinks fit to recall the Petitioner from his present posting on account of exigencies of work, then he would be free to do so in accordance with law and the Injunctive Order would not come in his way, vide Order dated 7.5.2015.
5. That after formation of the new/present Government, the Prime Minister terminated the Petitioner's contractual appointment and recalled the Petitioner from the said post vide Letter of Ministry of Overseas Pakistanis No.1 (9)/2012-CWA-1, dated 28th August, 2015, which was sought to be suspended by the Petitioner by way of his Application (CMA 22476/2015) along with Application for Contempt of Court (CMA 22477/2015), in respect of Orders dated 06.5.2013 are 07.5.2013, on which the learned Division Bench of this Court vide Order dated 8.9.2015, granted ad-interim order as prayed for.
6. The Respondent's Officials/Contemnors filed their Counter Affidavits; the Petitioner filed Rejoinders to the same and again Petitioner filed another Application for Contempt of Court (CMA 32867/2015) in respect of said Order dated 08.9.2015.
7. The Respondent filed Para-wise Comments contending therein that the Petition is not maintainable in law and facts, as the Petitioner was a contract employee and obtained the service using his political connection in violation of rules; lately reported to the service and misused his Diplomatic Passport and found involved in criminal and anti social activities and as such the Inquiry was held and after its Report the Summary was floated for the immediate termination of Petitioner's service contract, which was done vide Letter dated 28.08.2016, which is available at Page 163 of the file. The Respondent filed all relevant documents, along with Parawise Comments, which are available at Pages 257 to 285 of the file.
8. Learned Counsel for the Petitioner argued that the Petitioner was earlier employed in Private Sector, which he has left in view of the employment of the Petitioner as Attache in the Office of Pakistan High Commission, Kuala Lumpur, Malaysia, and for that shifted his family over there, but without notice for wrongful gain the then Minister of the Interim Government recommended for the termination of the Petitioner's service on false grounds and directed him to surrender his Diplomatic Passport vide Impugned Summary dated 10.4.2013; and the same is without lawful authority and void ab initio He further argued that despite Interim Orders dated 6.5.2013 and 7.5.2015, the Respondent wrongly terminated the contractual appointment of the Petitioner and recalled the Petitioner from the said Post vide Order dated 28th August, 2015, which was suspended vide Order dated 8.9.2015 as prayed for on the Application of the Petitioner, who filed two separate Applications for Contempt. He concluded that this Petition be allowed and action be taken on the contempt applications. Learned counsel for Petitioner relied on 2013 SCMR 1205, PLD 2013 SC 195, (2007) 8 SC Cases 449, (2001) 8 SC Cases 650, 1980 SCMR 89 and 1993 CLC 489.
9. On the contrary, the learned Counsel for the Respondent argued that the instant Petition is not maintainable. The Petitioner was a contract employee appointed during the Interim Government set up and misused his Diplomatic Passport and even he was found indulged in the activities detrimental to the image and reputation of Pakistan; the present elected Government on the basis of Impugned Summary, after inquiry and hearing the Petitioner, terminated his contractual appointment and ordered for Petitioner's recalling vide Order dated 28.8.2015; so this Petition is not maintainable, as under the Principle of Master and Servant relationship, the only remedy available to the Petitioner is to file Suit for Damages, if he is aggrieved by any action. Moreover, the termination of Petitioner's employment contract is legal as the Petitioner was found to be appointed in violation of rules and was not qualified for the same, rather the Petitioner had misused his Diplomatic Passport and tried to diminish the image of Pakistan, as such after inquiry and hearing the termination was ordered and still the Petitioner is not coming forward, rather hiding himself to avoid penal actions. Learned counsel for Respondent relied upon 2013 SCMR 120 and 1707, PLD 2007 SC 298, PLD 1996 SC 246, and PLD 2002 SC 1068.
10. As to the contempt, the learned Counsel for the Respondent submitted that the present Government was formed on 5th June, 2013, whereas this Petition was filed on 6.5.2013, and earlier to that, the interim Government initiated the termination process, vide impugned Summary dated 10.4.2013, and in view of the first Interim Order dated 6.5.2013 and its clarification vide Order dated 7.5.2013, the new Government (the present one) was not restrained rather set free to act according to law and further ordered that the injunction order would not come in their way; even otherwise the said order was not directly served upon the Respondents and as such they were not in the knowledge and the termination order dated 28.8.2015, was passed genuinely and bona fide, so the question of contempt of Court does not arise, as alleged and there was no intention to commit contempt of Court and the Order dated 8.9.2015, was passed in the absence of the Respondent and the same was not communicated to the Respondent as the said order had been passed on urgent motion. Even the Petitioner deliberately concealed that on 5.12.2013, he appeared before the Inquiry Officer, who on the basis of valid reason found the Petitioner's appointment wrongful and recommended for the termination of Contract Service vide Inquiry Report dated 13.12.2013, which has been suppressed by the Petitioner malafidely for the wrongful gain and as such the Respondent has acted in law and has not committed any contempt of Court. He lastly prayed that this petition along with the Contempt Applications be dismissed.
11. The learned Standing Counsel adopted the arguments advanced by the learned Counsel for the Respondent.
12. Heard the arguments of learned Counsel for the parties and gone through the available record.
13. The factual aspects as per admissions and documents in the pleadings on record are that the Petitioner was initially appointed as Attache in the Office of Pakistan High Commission at Kuala-Lumpur, Malaysia, temporary on contract basis by the Interim Government and the then Minister of the interim Government vide impugned Summary dated 10.4.2013, sought directions against the Petitioner to surrender his Diplomatic Passport, which was misused on account of involvement in the activities detrimental to the image of Pakistan, so the present elected Government on the basis of the same and Inquiry Report dated 13.12.2013, terminated the temporary contractual appointment and recalled the Petitioner vide Order dated 28.8.2015. It has also been observed that as per Summary to the Prime Minister dated 16th July 2014 moved by Secretary Ministry of Overseas Pakistanis, it was reported that the performance of the Petitioner was unsatisfactory as he failed to report illegal immigration of large number of Pakistanis to Malaysia and their incarceration in Malaysian Jails, which Summary is available at Pages 281 to 283 of the file.
14. We have found that the Petitioner having impugned the Summary dated 10.4.2013, of the interim Government in this Petition and during its pendency the present elected Government/Respondent has on the basis of same after inquiry, terminated the Petitioner's contractual appointment and recalled the Petitioner from the post vide Order dated 28.8.2015, so the same is legal and proper as there were serious allegations against the Petitioner and the inquiry Officer in the Inquiry called the Petitioner, who appeared before the Inquiry Officer and subsequently disappeared. The Inquiry Officer found that Petitioner committed gross misconduct; made un-authorized monetory gains, and has got no qualification and experience vide Inquiry Report dated 13.12.2013, which has been suppressed by the Petitioner before obtaining ad-interim Order on 8.9.2015, for the suspension of Government's Order dated 28.8.2015, and even otherwise there was no restraining order in view of the earlier orders dated 6.5.2013 and 7.5.2013.
15. So the contention of the Petitioner that the impugned Summary dated 10.4.2013, is without lawful jurisdiction and void ab initio, has no substance as the present Government, established on 5th June 2013, and passed the Termination Order dated 28.8.2015, which has not been challenged by the Petitioner.
16. Even otherwise the Petitioner was a contract employee and after his termination, the Petitioner has got no vested right and as such the cannot invoke the Constitutional Jurisdiction of this Court, for which reference is made to case Trustees of the Port of Karachi v. Saqib Samdani, reported in 2012 SCMR 64, and case of Chairman, WAPDA, v. Nisar Ahmed, reported in 1996 SCMR 617.
17. The case-law cited by the learned Counsel for the Petitioner are distinguishable. The case of Anita Turab is not helpful to the case of Petitioner as it only relates to the Civil Servants in the tenure Service. Admittedly, the Petitioner's appointment was contractual, liable to be terminated in terms of Appointment Letter, which also provides that the Government reserves his right to withdraw/cancel the offer of appointment or posting letter, if circumstances so warranted. If Petitioner feels that he was Civil Servant under the terms of employment as in one place Section 16 of Civil Servant Act, 1973 and filing of Appeal under Civil Servant (Appointment) Rules, 1977, is mentioned, then this Court has otherwise no jurisdiction under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. So far as the contractual arrangement is concerned, this cannot be impugned through Constitutional Jurisdiction, but recourse should have been made through Civil Suit for Damages, if the Petitioner considers his termination wrongful.
18. As to the contention of the learned Counsel for the Petitioner that there was no notice prior to the impugned summary/action, it is observed that there were serious allegations, effecting the image of Country, against the Petitioner, on the contrary the record reflects that the Petitioner was provided ample opportunity of hearing before the Inquiry Officer, but he himself opted not to attend subsequent proceedings.
19. So far as the contempt applications are concerned the Petitioner has sought action against the Officials of the Respondent/Government of Pakistan, who have filed their Counter Affidavits and submitted the real facts and denied to have committed any contempt of Court and the action of the Government was in accordance with the law and facts, rather the Interim Orders are being misinterpreted by the Petitioner, who has obtained the interim Orders dated 6.5.2013 and 7.5.2015, thereby the present Government was not restrained, rather was set free to act according to law and with the clarification that the injunction order would not come in their way and the Interim Order dated 8.9.2015, was also passed, but the fact remains that the Petitioner on 5.12.2013, appeared before the Inquiry Officer, whose Report is dated 13.12.2013, which was not disclosed by the Petitioner at the time of passing of the Order dated 8.9.2015, by this Court.
Moreover, it is settled law that matter of contempt is always between the Court and the alleged contemnor for which reference is made to the case of Muhammad Shehzad Malik v. Muhammad Suhail (2010 SCMR 1825) and Masood Alam Rizvi v. Dr. Muhammad Saeed (2009 SCMR 477). Keeping in view the peculiar circumstances of the case, we are of the view that no contempt is made out.
As a result of above discussion, this Petition, along with the listed applications, is dismissed.
ZC/A-95/Sindh Petition dismissed.