' M. SOHAIL IQBAL BHATTI, J.--- Through this appeal, the appellant has challenged order dated 14-3- 2011 passed by learned Single Judge in Chambers in Writ Petition No.631 of 2005.
2. The brief facts of the case are that certain works had been undertaken by the appellant; the appellant/petitioner had not been paid the total amount of the works/projects completed by him.
Aggrieved by this inaction on the part of the respondents the appellant filed a Complaint No.8461 of 2003 before the Ombudsman for the. Province of Punjab. The said complaint was dismissed on 19-8-2004. While dismissing the complaint it was observed in the Para No.6 of the said order as under:- "It is clear from the reply of the Agency/Deputy District Officer Roads Highway Sub-Division Murree and rejoinder of the complainant that two works were allocated to the complainant out of which there is no dispute about estimate No.1. It is note worthy that according to complainant's version that lie executed additional work in respect of estimate No.2 on oral direction of Tehsil Nazim, Murree. However, Tehsil Nazim Murree has denied complainant's version vide letter to his Office No. TMN/03/04/40 dated 10-3-2004. Complainant has admitted that only estimate was prepared for additional-work of Rs.24 lac but failed to prove that the said estimate was sanctioned and any agreement was executed between him and the Agency."
3. After making the above observations it was observed by the Ombudsman that due to lack of evidence/Proof, complainant had failed to make out a case for interference by his. Office.
Aggrieved by this decision, the petitioner filed a representation under section 32 of the Punjab Office of the Ombudsman Act, 1997 before the Governor of the Punjab and during the pendency of this representation the appellant filed Writ Petition No.631 of 2005 before this Court with a prayer that a direction be issued to respondents Nos.2 and 3 to make payment of the requisite bills to the appellant.
4. During the course of arguments the learned counsel for the appellant contended that he would not press the petition, provided a direction be issued to the Governor, Punjab to decide representation of the appellant expeditiously. It was observed by the learned Single Judge in Chambers that since the Governor, Punjab has not been impleaded as a party no direction could be given to him. The learned Single Judge in Chambers went on to observe that since a number of factual controversies are involved in the matter the same could not have been decided in, writ jurisdiction. The writ petition was dismissed, hence, this appeal.
5. This Court on 27-4-2011 directed the learned counsel for the appellant to advance arguments on the point of maintainability of this appeal. On the last date of hearing, the learned counsel for the appellant was also directed to advance arguments on this point as to how a direction could have been given to the Governor, Punjab who had not been impleaded as a party in the writ petition.
6. The learned counsel for the appellant submitted that this IntraCourt Appeal is maintainable as in terms of proviso to section 3 of the Law Reforms Ordinance, 1972, the Intra-Court Appeal would not have been maintainable if it arose out of proceedings which provided at least one remedy of appeal, revision or review. Since section 32 of the Punjab Office of the Ombudsman Act, 1997 provides for filing of Representation to the Governor, Punjab it cannot be equated with the remedy of appeal, review or revision and the bar contained under section 3 of Law Reforms Ordinance, 1972 does not come in his way for filing of this Intra-Court Appeal. It has been further contended that in view of the immunity under Article 248 of the Constitutional of Islamic Republic of Pakistan, 1973 the Governor, Punjab could not have been impleaded as a party in the writ petition.
7. On the other hand, learned Assistant Advocate-General vehemently opposed the arguments advanced by the learned counsel for the appellant on the point of maintainability of this appeal. It was also added that no illegality was committed by the learned Single Judge in Chambers while passing the impugned order as dispute raised by the appellant in the writ petition involved factual controversies.
8. We have considered the arguments advanced by the learned counsel for the parties and have gone through the record.
9. We would first discuss the question of maintainability of this appeal. Section 32 of the Punjab Office of the Ombudsman. Act, 1997 reads as under:- "32. Representation to Governor. Any person aggrieved by a decision or order of the Ombudsman may, within thirty days of the decision or order, make a representation to the Governor, who may pass such order thereon as he may deem fit."
10. The wording of section 32 of the Act ibid makes it explicit that any person aggrieved by a decision of the Ombudsman can file Representation to the Governor and the Governor would pass such order as he may deem fit. The word appeal has been defined in Oxford Advanced Learner's Dictionary as under:- "appeal. a formal request to a Court or to some body in authority for a judgment or a decision to be changed."
' In Chambers English Dictionary the word appeal has been defined as under:--- "Appeal. To demand another judgment by a superior Court.... An impeachment... (steak) a challenge... (obs) recourse."
' In Black's Law. Dictionary Ninth Edition the word appeal has been defined as under:- "a proceeding undertaken to have a decision reconsidered by a higher authority; especially, the submission of a lower court's or agency's decision to a higher court for review and possible reversal."
11. The dictionary meaning of the appeal clarifies this position that although the word appeal has not been used in section 32 of the Punjab Office of the Ombudsman Act, 1997 but it provides for a representation before the Governor who is the next higher authority against the decision of the Provincial Ombudsman. It takes us to an irresistible conclusion that although the word representation has been used in section 32 but it partakes the nature of an appeal to the next forum/authority against the order passed by the Provincial Ombudsman.
12. The Hon'ble Supreme Court of Pakistan while discussing the effect of Article 32 of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 observed that nature of jurisdiction vested in the President under Article 32 partakes of the appellate jurisdiction. Reliince is placed on 1999 SCM R 2189 Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad v. Muhammad Tariy Pirzada and others). The concept of a representation envisaged by Article 32 of the Punjab Office of the Ombudsman Act, 1997 is that where the Provincial Ombudsman has failed to record just and proper findings/recommendations the Governor should undo the wrong done to the complainant in advancement of the purposes of the Act. Meaning thereby that although the word used in section 32 is representation but for all intents and purposes the Governor is acting as an appellate authority.
13. Now we are inclined to discuss as to whether the Governor can be impleaded as a party in the writ petition or not while he is exercising powers as persona designata and makes some decision upon the Representation made under section 32 of the Punjab Office of the Ombudsman Act, 1997.
Article 248 of the Constitution of Islamic Republic of Pakistan, 1973 is re-produced below:--- "248. Protection to President, Governor, Minister, etc.---
(1) The President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a Provincial Minister shall not be answerable to any court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions: ' Provided that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Federation or a Province.
(2) No criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any court during his term of office.
(3) No process for the arrest or imprisonment of the President or a Governor shall issue from any court during his term of office.
(4) No civil proceedings in which relief is claimed against the President or a Governor shall be instituted during his term of office in respect of anything done or not done by him in his personal capacity whether before or after he enters upon his office unless, at least sixty days before the proceedings are instituted, notice in writing has been delivered to him, or sent to him in the manner prescribed by law, stating the nature of the proceedings, the cause of action, the name, description and place of residence of the party by whom the proceedings are to be instituted and the relief which the party claims."
14. It is true that the President, a Governor, the Prime Minister, Federal Minister, a Minister of State, the Chief Minister and a Provincial Minister shall not be answerable to any court for exercise of powers and performance of their respective offices but in the present case the Governor while hearing the Representation is acting as a Quasi Judicial Forum and is not performing any functions stricto sensu as the Governor of the Province "in whose name the Executive Authority of the Province is exercised" in terms of Article 129 of the Constitution of Islamic Republic of Pakistan, 1973.
In fact, the Governor is acting as an appellate authority to substitute the decision of the Provincial Ombudsman and, therefore, any order passed by the Governor as in Representation when challenged before High Court the Governor can be impleaded as an appellate authority to the decision made by the Ombudsman.
15. Article 248 has to be read in conjunction with Article 105 of the Constitution of Islamic Republic of , Pakistan, 1973 which reads as under:--- "105. Governor to act on advice, etc.--- (1) Subject to Constitution, in the performance of his functions, the Governor shall act (on and) in accordance with the advice of the Cabinet [for the Chief Minister): [Provided that [within fifteen days) the Governor may require the Cabinet or, as the case may be, the Chief Minister to reconsider such advice, whether generally or otherwise, and the Governor shall {, within ten days,) act in accordance with the advice rendered after such reconsideration.]
(2) The question whether any, and if so what, advice was rendered to the Governor by the Chief Minister [or the Cabinet] shall not be inquired into in, or by, any court, tribunal or other authority.
(3) Where the Governor dissolves the Provincial Assembly, notwithstanding anything contained in clause (1), he shall,---
(a) appoint a date, not later than ninety days from the date of dissolution, for the holding of a general election to the Assembly; and
(b) appoint a care-taker Cabinet.]
(5) The provisions of clause [(2)] of Article 48 shall have effect in relation to a Governor as if reference therein to "President" were reference to "Governor ".] ' The wisdom behind the immunity provided under Article 248 of the Constitution of Islamic Republic of Pakistan,' 1973 is that since the Governor is acting upon advice of the Cabinet, therefore; immunity has been provided to the office of Article 248 (1) of the Constitution of Islamic Republic of Pakistan, :973. In present case the Governor is not to act in accordance with the advice of the Cabinet or the Chief Minister but is acting as a Quasi Judicial Authority. Even otherwise in Writ Petition filed under 199 of the Constitution of, Islamic Republic of Pakistan, 1973 against the decision made by the Governor no relief is claimed against the Governor of the Province and it is only the decision of the Governor which is challenged in Writ of Certiorari. Moreover, the writ petition filed by the appellant involved factual controversies which could not be resolved in writ jurisdiction.
16. For what has been discussed above, this appeal fails and is dismissed.