2013 LHC 909

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WP.No.7539-13
Judgment Sheet
IN THE LAHORE HIGH COURT AT LAHORE
JUDICIAL DEPARTMENT
WP.No.7539-13
Syed Mushtaq Hussain Bukhari Vs PEPCO, etc
JUDGMENT
Dated of hearing: - 29.5.2013
Petitioner by: - Mr. Khalid Khan, Advocate, Advocate
Respondent No.1 by: - Mr. Muhammad Ilyas Khan, ,Advocate
Respondent No.2 by: Mr. Salman Mansoor, Advocate
Shahid Waheed, J: The Petitioner, Syed Mushtaq Hussain Bukhari,

through this petition under Article 199 of the Constitution of Islamic Republic
of Pakistan, 1973 has called in question the notice dated 28th February, 2013
whereby his service contract has been terminated; and, prayed for the
issuance of direction to the respondents for regularizations of his service as
Director Finance of the Multan Electric Power Company (MEPCO).
2. Briefly the facts of the case are that the Chief Executive Officer,
Pakistan Electric Power Company (PEPCO), through an advertisement, which
appeared in daily Dawn dated 21st July, 2003, invited applications for
appointment to the post of Finance Director in Hyderabad Electric Supply
Company (HESCO) and the Multan Electric Power Company (MEPCO) on
contract basis. The petitioner being Fellow of Chartered Accountancy (FCA)
ventured his application for the post of Finance Director in MEPCO. The
petitioner was found suitable and, therefore, the Chief Executive Officer
PEPCO vide letter No.2684-86/PEPCO/CEO/DDA/PF-138 dated 30th October,
2003 (“Offer Letter”) offered him the position of Finance Director (MEPCO)
on contract basis for a period of two years. The petitioner after accepting the
terms and conditions of the Offer Letter assumed the charge of the said post.
The tenure of petitioner’s appointment-contract was extended from time to
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WP.No.7539-13
time; and, finally in pursuance of terms and conditions contained in the Offer
Letter, a Notice No.19158-63 CE/MEPCO/EA-I/PF-53 dated 28th February,
2013 (“Termination Letter”) was served upon the petitioner whereby his
services stood terminated with effect from 31 st March, 2013.
3. Learned counsel for the petitioner through the instant petition has
asked for an order in the nature of mandamus under Article 199 of the
Constitution of Islamic Republic of Pakistan, 1973 for quashing the
Termination Letter on the plea that the same is unreasonable, violative of
rules, policy and law applicable thereto.
4. The question which requires determination by this Court is as to
whether the termination of contractual appointment stands vitiated by any
legal infirmity to call for interference under Article 199 of the Constitution of
Islamic Republic of Pakistan, 1973. This question has to be answered in two
distinct parts. The first part relates to the aspect whether the Termination
Letter issued by the respondent-Company is amenable to judicial review and
if so what is the scope of such review. The second part of the question is
whether on the standards of judicial review applicable to it, the Termination
Letter is seen to be suffering from any legal infirmity. At the outset it is
pertinent to mention that there is no challenge before this Court as to the
competence of the authority that issued the Termination Letter. What is
contended on behalf of the petitioner is that the respondent-company did
not act fairly and objectively in taking the decision to terminate the contract.
It is contended that the decision to terminate the contractual employment is
not a fair and reasonable decision having regard to the fact that the
petitioner had performed well during his tenure; and, the requirement of the
Company to have Director Finance continues to subsist. In substance, the
contention urged on behalf of the petitioner is that this Court should
reappraise and review the material touching the question of performance of
the petitioner as Director Finance. I am afraid this cannot be done by this
Court. It is true that judicial review of matters that fall in the realm of
contracts is also available before the superior Courts, but the scope of any
such review is not all pervasive. It does not extend to the Court substituting
its own view for that taken by the decision-making authority. The legal
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WP.No.7539-13
position is settled that judicial review is not so much concerned with the
correctness of the ultimate decision as it is with the decision-making process
unless of course the decision itself is so perverse or irrational or in such
outrageous defiance of logic that the person taking the decision can be said
to have taken leave of his senses. In this regard reference may be made to
the cases of “State of Maharashtra vs. Prakas Prahlad Patil”(AIR 2010 SC
463) and “Dr. Akhtar Hussain Khan and others vs. Federation of Pakistan
and others” (2012 SCMR 455).
5. The services of the petitioner were governed by the terms and
conditions of Offer Letter dated 30.10.2003 which, inter alia, contained the
following condition:
“ This contract may be terminated by either party giving the
other party one month’s notice or one month’s salary in lieu
thereof Notwithstanding the foregoing your services can be
terminated by Chairman PEPCO and / or Chairman/ Chief
Executive Officer of MEPCO without any notice if you are found
guilty of dishonesty, misconduct negligence, indiscipline or
breach of trust.”
There is no doubt that if a person is employed on contract basis and if the

terms of employment provide the manner of termination of his services, the
same can be terminated in terms thereof. In the case in hand the competent
authority in exercise of above referred condition of service has terminated
the services of the petitioner without any stigma. Thus the termination
letter, impugned in this petition, in view of the principle laid down by the
Hon’ble Supreme Court in the cases The Secretary, Government of the
Punjab, through Secretary Health Department, Lahore and others v Riaz ul
Haq (1997 SCMR 1552) and Agha Salim Khurshid and another v Federation
of Pakistan and others (1998 SCMR 1930) does not suffer from any infirmity.
6. The PEPCO is a Government owned Management Company which has

been established to manage re-structuring of WAPDA and corporatization,
and, commercialization of its Generation, Transmission and Distribution
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WP.No.7539-13
Companies. The Hon’ble Supreme Court of Pakistan in the case of Brig ( R)

Sakhi Marjan, CEO, PESCO, Peshawar v Managing Director PEPCO, Lahore
and others ( 2009 SCMR 708) has held that rules of PEPCO are non-statutory.
Thus, the relationship between the petitioner and respondent-company is of
master and servant. If the master rightfully ends the contract, there can be
no complaint. If the master wrongfully ends the contract, then the servant
can pursue a claim for damages. So, even if the master wrongfully dismisses
the servant in braech of the contract, the employment is effectively
terminated. Jenkins, L.J., in his dissenting judgment, in Vine vs. National
Dock Labour Board[(1956)1 AER 1], which was approved in appeal by the
House of Lords in 1956(3) AER 939 stated:
“In the ordinary course of master and servant, however, the

repudiation or the wrongful dismissal puts an end to the
contract, and a claim for damages arise. It is necessarily a claim
for damages and nothing more. The nature of the bargain is
such that it can be nothing more”.
Similarly, in Ridge v Balowin (1963)2 WLR 935, Lord Reid said in his
speech:
“ The law regarding master and servant is not in doubt. There

cannot be specific performance of a contract of service, and the
master can terminate the contract with his servant at any time
and for any reason or for none. But if he does so in a manner
not warranted by the contract he must pay damages for breach
of contract. So the question in a pure case of master and
servant does not at all depend on whether the master has heard
the servant in his own defence; it depends on whether the facts
empowering at the trial prove breach of contract. But this kind
of case can resemble dismissal from an office where the body
employing the man is under same statutory or other restrictions
as to the kind of contract which it can make with its servants, or
the grounds on which it can dismiss them?
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WP.No.7539-13
As a consequence, if an employee is dismissed in breach of a contractual

requirement, he may recover damages and cannot claim re-instatement,
whatever hardship he suffers as a result of his dismissal. In this regard
reliance may be placed on Addis v Gramophone Co. Ltd (1909) AC 488, Vide
Collier v Sunday Referee Publishing Co. Ltd.,[1940(4) All.E.R. 234] Rogan-
Gardiner V Woolworths Ltd (2010) WASC 290), Federation of Pakistan
through Secretary Law, Justice and Parliamentary Affairs v Muhammad
Azam Chattha (2013 SCMR 120)
7. It is also well settled principle of law that a contract employee cannot

file a writ petition to seek redress in respect of grievance relating to terms
and conditions of service. The reason is that a writ of mandamus may be
granted only in a case where there is statutory duty imposed upon the officer
concerned and there is a failure on the part of that officer to discharge that
statutory obligation. The chief function of the writ is to compel the
performance of public duties prescribed by statute and to keep the
subordinate tribunals and officers exercising public functions within the limit
of their jurisdiction. In the present case, the appointment of the petitioner as
Director Finance is contractual in nature and there is no statutory obligation
as between the respondent-company and the petitioner. In my view, any
duty or obligation falling upon a public servant out of a contract entered into
by him as such public servant cannot be enforced by the machinery of a writ
under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
This view finds support from the case of M/s. Momin Motor Company vs
Regional Transportation Authority Dacca and others” (PLD 1962 S.C 108)
wherein Hon’ble Supreme Court has held contractual rights are not
enforceable by recourse to writ jurisdiction; Major ( R) Khalil ur Rehman v
Overseas Pakistan Foundation and others (1984 CLC 2168) wherein it was
observed that contractual obligation and liabilities relating to a service
matter cannot be enforced by resort to writ jurisdiction; and M. A Rashid v
Province of Punjab and 2 others (1987 MLD 153) wherein it was held that
the constitutional jurisdiction cannot be exercised in respect of petitioner
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WP.No.7539-13
whose services have been terminated in accordance with terms of his

contract.
8. As regards prayer for issuance of direction to the respondents for

regularization of service of the petitioner as Director Finance, it is suffice to
say that the petitioner having entered into contract of service has no vested
right to seek regularization of his employment, which is discretionary with
the Master. The Master is well within his right to retain or dispense with
services of an employee on the basis of satisfactory or otherwise
performance. As per settled principle of law, the petitioner after having
accepted the conditions of service has no locus standi to file constitutional
petition seeking writs of prohibition and mandamus to authority to refrain
from terminating his services and to retain him on his existing post on regular
basis. In this regard reliance may be placed on the cases of “Government of
Balochistan, Department of Health through Secretary, Civil Secretariat,
Quetta v Dr. Zahida Kakar and 43 others (2005 SCMR 642), Abid Iqbal Hafiz
and others v Secretary, Public Prosecution Department, Government of the
Punjab, Lahore and others” (PLD 2010 S.C 841), “Pakistan
Telecommunication Co.Ltd through Chairman vs. Iqbal Nasir and others”
(2011 PLC C.S 623) and HRC No.44517-K/2010 regarding Regularization of
the contract Employees of Zakat Department (2013 SCMR 304).
9. This petition sans merit and is accordingly dismissed.
(SHAHID WAHEED)
JUDGE
Approved for reporting
Judge
Arshad*

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1

Syed Mushtaq Hussain Bukhari Vs PEPCO, etc

Respondent No.1 by: - Mr. Muhammad Ilyas Khan, ,Advocate

Respondent No.2 by: Mr. Salman Mansoor, Advocate

Shahid Waheed, J: The Petitioner, Syed Mushtaq Hussain Bukhari,

There is no doubt that if a person is employed on contract basis and if the

6. The PEPCO is a Government owned Management Company which has

Companies. The Hon’ble Supreme Court of Pakistan in the case of Brig ( R)

“In the ordinary course of master and servant, however, the

“ The law regarding master and servant is not in doubt. There

As a consequence, if an employee is dismissed in breach of a contractual

7. It is also well settled principle of law that a contract employee cannot

whose services have been terminated in accordance with terms of his

8. As regards prayer for issuance of direction to the respondents for

9. This petition sans merit and is accordingly dismissed.

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