2017 PLP (C (PLC(CS)N)

MUHAMMAD HUMAYON KHAN, J.

This is a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

2. The relevant facts of the petition are that the petitioner was appointed by respondent company as OMV (Pakistan Exploration GMBH) concerned with natural gas as production on 03.12.2007 on the basis consultancy agreement as per terms and conditions by the rules of respondents. The petitioner is performing duty on the post of HSSC Engineer in the field without any benefit from the year 2007 till today. Therefore, it is stated that the petitioner has right to be regularized on the said post with all benefits which other persons/employees are taking but the petitioner is still waiting on the hopes. Now the respondents have entered in emotional mood and stated the petitioner if he will approach the Court of law for claiming benefits and regularizing his post than the petitioner will be terminated from the job. Accordingly, the petitioner filed the petition and prays for the following reliefs:- a) To declare that the act of respondents are illegal and mala fide as the respondent concerned are not regularizing to the petitioner on his above stated post as Engineer which he is working from year of 2007 till today and the respondents also not providing the benefits to the petitioner whereas others persons have regularized and taking benefits whereas the respondents still kept the petitioner on empty hopes; (b) To direct the all respondents to appear in person before this Honorable Court along with the record to show why they are not regularizing to the petitioner along with benefit like other employees whereas the service period of petitioner has been crossed about 6/7 years: (c) To direct the respondents to regularize the petitioner on his above said post with benefits as per circumstances of the case; (d) To direct the respondents not to try to create situation deliberately for petitioner regarding to remove from the job as the present petition is proceeding according to law; (e) To grant any other alternate relief which deems fit by this Honorable Court and the proper in the circumstances of the case: (e) To award the cost of this petition.

3. The respondents Nos.1 to 4 have filed counter affidavit. wherein, they pleaded various legal objections one of them is that it is settled law that the companies which do not have statutory service rules are not a person within the meaning of Article 199 (5) of the Constitution of Islamic Republic of Pakistan, 1973 and hence this petition is not maintainable as the respondents Nos.1 to 4 do not have statutory rules of service and have no concern with the affairs of the Federation or Province. On merits, it is pleaded that the petitioner was engaged as consultant through consultancy agreement dated 03.12 2007 for provision of consultancy services and extended upto 31.12.2015 through various amendments. As per clause-3 of the agreement it was agreed between the parties that the petitioner shall be an independent contractor performing the contract and shall not be deemed to be employee of respondents Nos.1 to 4.

4. Later on, the respondents Nos.1 to 4 filed copy of letter dated 15.12.2015 and courier receipt dated 15.12.2015 along with statement dated 08.01.2016, wherein, it is stated that the petitioner was released by letter dated 15.12.2015 as his agreement was expiring on 13.12.2015 and therefore this petition has become infructuous.

5. We have heard the learned counsel for the parties and perused the material available on the record.

6. We noticed that this petition is not maintainable in law and directed both learned counsel to address the Court on maintainability of this petition.

7. The learned counsel for the petitioner has contended that since the act of respondents Nos.1 to 4 is illegal as they are neither regularizing the petitioner nor providing him the benefits and in this manner his fundamental rights have been infringed. Therefore, it is contended that only remedy is to file constitution petition. However, the learned counsel for the petitioner has not cited any case-law in support of his arguments.

8. On the other hand, the learned counsel for the respondents Nos.1 to 4 has contended that the companies which do not have statutory service rules are not a person within the meaning of Article 199(5) of the Constitution of Islamic Republic of Pakistan, 1973 and hence this petition is not maintainable as the respondents Nos.1 to 4 do not have statutory rules of service and have no concern with the affairs of the Federation or Province. He further contended that this petition has become infructuous as the respondents Nos.1 to 4 by letter dated 15.12.2015 released the petitioner as his agreement expired on 31.12.2015. In support of his contentions, the learned counsel has relied upon the following case-laws:- i) Pakistan Telecommunication Co. Ltd. Through Chairman v. Iqbal Nasir and others (PLD 2011 Supreme Court 132) (ii) Habib Bank Ltd. v. The State (2013 SCMR 840): iii) Abdul Wahab and others v. HBL and others (2013 SCMR 1383).

9. In the case of Pakistan Telecommunication Co. Ltd. Through Chairman v. Iqbal Nasir and others reported in PLD 2011 Supreme Court 132, the Apex Court has held that:-- "All the employees having entered into contracts of service on the same or of 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. Since they fall within the definition of workman, they would be entitled to one month's notice or salary in lieu thereof, as permissible to them under the rule of master and servant."

10. In the case of Habib Bank Ltd. v. The State reported in 2013 SCMR 840, the Apex Court has held that:-- "The terms and conditions of service of employees of HBL were governed by HBL (Staff) Service Rules, 1981, which were statutory rules of service and thus in terms of the case of International Airline Corporation and others v. Tanveer-ur-Rehman and others (PLD 2010 SC 76), the respondent No.1 could not have filed and maintained a Constitution Petition in the High Court for enforcement of terms and conditions of his service for that his relationship with employer was strictly governed by the rules of Master and Servant and the only remedy provided by law in this regard is only by way of a civil suit and not otherwise. Thus even if it is assumed that HBL was a government owned and controlled Bank on a date of suspension of service of the respondent No.1, his service beings not governed by statutory rules of service, he will not be entitled to maintain a constitution petition in the High Court for payment of his salary, dues for the period of his suspension as allowed by the impugned Judgment."

11. In the case of Abdul Wahab and others v. HBL and others reported in 2013 SCMR 1383, the Apex Court has held that: "It is settled law that where a service grievance is agitated by a person/employee who is not governed by the statutory rules of service, before the High Court(s), in terms of Article 199 of the Constitution such petition shall not be maintainable; reference in this behalf can be made to PLD 2010 SC 676 (Pakistan International Airline Corporation v. Tanweer-ur-Rehman) and PLD 2011 SC 132 (Pakistan Telecommunication Co. Limited v. Iqbal Nasir). (note: question however if that is possible in terms of Article 199(1)(c), we have deferred). But the plea that such law shall not prevent this Court while exercising its jurisdiction under Article 184(3); suffice it to say that while exercising the jurisdiction this Court is bound by the conditions of Article 184(3); and moreover by such rules which are laid by this Court for regulating its jurisdiction, keeping in view the principles of restraints. We find that in the cases of contractual service, where the grievance agitated is against a private person, there is no reason that such restraint should not be resorted to by this Court and any exception should be taken to the law laid down in Tanweer ur Rehman case supra (note: even if it pertains to the writ jurisdiction of High Courts)."

12. In view of above settled position of law, we came to the conclusion that the petitioner has no fundamental or legal right to claim employment in the service of respondents Nos.1 to 4 as his employment was to be governed by the principle of master and servant and not in accordance with any statute or rules made thereunder and hence, constitution petition on the basis of an agreement/contract arrived between the petitioner and the respondents Nos.1 to 4 is absolutely misconceived and not maintainable.

13. There is another important aspect of the matter that the petitioner is seeking all the reliefs against the respondents Nos.1 to 4 and not against the Federation of Pakistan which has been impleaded as respondent No. 5 only to confer jurisdiction on this Court. No doubt the respondents Nos.1 to 4 do not enjoy the status of a statutory corporation established and controlled by the Federation nor performing any of sovereign functions of the State so as to be declared as a body corporate performing functions in connection with the affairs of the Federation and in these circumstances also, this petition is not maintainable under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. We are fortified in this view by the following case-laws:- (i) Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Tokht Bhai and 10 others (PLD 1975 Supreme Court 244): (ii) Noor Jehan Shah v. Pakistan Defence Officers Housing Authority through its Administrator (1997 MLD (Karachi) 2261); (iii) Maqsood Ahmed Toor and 4 others v. Federation of Pakistan through the Secretary to the Government of Pakistan, Ministry of Housing and Works, Islamabad and others (2000 SCMR 928); (iv) Muhammad Masood Butt and 3 others v. S.M. Corporation (Pvt.) Ltd. and 5 others (PLD 2011 Karachi 177).

14. For the aforesaid reasons, this petition is not maintainable in law and consequently the same along with all the listed applications is dismissed with no order as to costs. MH/M-150/Sindh Petition dismissed.