2001 PLP (C (PLC(CS))

This Intra-Court Appeal seeks to assail an order of learned Judge in Chamber, dated 25-4-2000 whereby he dismissed in limine Writ Petition No.3777 of 2000.

2. The appellant was employed as Chief Corporation Officer, Municipal Corporation, Multan on contract basis vide order, dated 10-8-1998 for a period of three years. However, his services were terminated by respondent No. l on 22-4-2000. The legality and varies of the termination order were challenged by way of the said Constitutional petition inter alia on the ground that the termination order had not been issued by the competent authority, that no show-cause notice was served nor the petitioner-employee was allowed an opportunity to be heard, that the action on the part of the respondent was clearly against the ratio settled in the leave granting order of the Supreme Court of Pakistan in Re: Muhammad Tariq and another v. PIA and others reported as 1998 SCMR 429 and that the contract being silent as to termination of employment before expiry of the period of contract no such order could have possibly been passed by the respondents.

3. Learned Judge in Chamber, however, did not agree. He found that the termination of employment order has been made/passed by the same person and authority who had passed the employment order i.e. Chairman, Punjab Local Board, Lahore. Also in view of the learned Single Judge mere absence of, a clause providing for premature termination of the employment did not by itself derogate from the exact nature and tenor of the service and the status of the appellant as a contract employee. It was further noted that premature termination order without any stigma was otherwise not assailable in Constitutional jurisdiction inasmuch as a similar relief would not have been available to the employer, had the employee opted to put an end to the relationship. Lastly the leave granting order recorded in the aforesaid judgments Re: Muhammad Tariq and another (supra) was distinguished. In the opinion of the learned Single Judge that case was not relevant as leave was granted to examine if the principle of consistency was applicable to the facts of the case where the services of a number of employees were terminated but some of them were later re-instated by the order of High Court which allowed their Constitutional petitions.

4. Learned counsel for the appellant has been heard.

5. He has repeated his arguments which were earlier placed before the learned Single Judge, It is submitted that the principle settled in the leave granting order of the Hon'ble Supreme Court in Re: Muhammad Tariq and others (supra) was not appreciated by the learned Single Judge in its true perspective. Again submits that the impugned order was against the principle of Natural justice and equity and that the termination of employment in the middle of the period earlier settled for its currency was against all the norms of justice and fairplay. It is further submitted that the learned Single Judge was not right in holding that the relief sought for in fact amounted to a direction for specific performance of the contract which was not possible to be made in exercise of Constitutional jurisdiction. It is submitted that legally and factually a writ of mandamus was sought to be issued to the respondents public functionaries to act in accordance with law and the conditions settled between the parties with their free will. Also relies upon PLD 1987 SC 304 Re: Pakistan and others v. Public at Large and others and PLD 1975 Lahore 244 Re: Mst. Kalsoom Akhtar v. Abdur Rashid and 2 others stress the impugned order was otherwise bad on the principles of locus ponetentiae inasmuch as the agreement having fully been acted upon no power to recede was left with the respondents to withdraw the same. Lastly it is claimed that in view of Article 189 of the Constitution of Pakistan even leave granting order whereby a principle has been settled is binding on all other Courts in Pakistan.

6. Having considered the submissions, we are not inclined to entertain this I.C.A. Learned counsel for the petitioner has not been able to persuade us that the respondent which earlier weighed with the learned Single Judge in any manner are against the law or offend any principle of equity and justice. The petitioner is admittedly a contract employee for a fixed period of three years. His claim that in order to take up this employment he had foregone another equal or better employment is hardly of any relevance as far this Constitutional petition is concerned. Also the fact that premature termination of contract was not contemplated in the terms and conditions settled by way of the abovementioned appointment letter is hardly of any significance. A contractual appointment does not confer any right either in the employee to seek the completion or in the employer to force the employee to complete the contractual period. In case any one of the parties to the contract feels aggrieved of the premature termination, the only remedy available is an action in tort for damages both in terms of monetary and physical or mental loss. Such loss has to be quantified in terms of money to succeed. An unwilling employee to complete the period of contract is legally as vulnerable in tort as the employer in the opposite situation could be. We are also in agreement with the findings of the learned Single Judge that a direction of the kind prayed for in the Constitutional petition will amount to make an order for specific performance of the contract which was not possible in exercise of Constitutional petition.

7. Learned Single Judge was also perfectly justified in recording a finding of fact that the authority making the order of employment and the termination of employment being one and the same person, no valid ground to assail the order on that account existed. The doctrine of locus poenitentiae as expounded in the reported judgments relied upon by the-learned counsel for the appellant is also of no application in cases of contract employment. Though the doctrine belongs to the gens of estoppel by record but is hardly attracted where both parties are equally placed to frustrate the terms of an agreement. Also the doctrine will be of limited application where a suit for damages is an appropriate remedy.

8. The view of the learned Single Judge that Article 189 of the Constitution is not applicable in leave granting order is apt and real. The very wording of the article makes it clear that the decision of the Hon'ble Supreme Court is binding on other Courts where it decides a question of law or enunciates a principle of law. It goes without saying that an order of the Supreme Court while granting leave to appeal does not by itself generally decide a question of law nor enunciates a principle of law.

9. The other cases relied upon by the learned counsel for the petitioner at the bar i.e. Re: Pakistan and others (supra) and Mst. Kalsoom Akhtar (supra) again do not lend any support to the case of the petitioner.

10. Therefore, this I.C.A. shall be dismissed in limine. Q.M.H./M:A.K./S-90/L Appeal dismissed.