JAWAD HASSAN, J.--- Through this appeal, filed under Section 3 of the Law Reforms Ordinance, 1972, the Appellants have called in question the legality of order rendered in W.P. No,25322/2014 dated 10.11.2015 passed by the learned Single Judge (the "Impugned Order"), whereby the Constitutional Petition of the Appellants was dismissed.
2. The facts pithily revealed from the Appeal are that the Appellants are Members of Provincial Local Service and perform their duties in the Engineering Staff as ATO (I&S) SDO TMA, Bhakkar and Sub-Engineer TMA Bhakkar, respectively. They are governed by the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 (the "Act"). On 27.03.2013 one Mushtaq Hussain moved a complaint against the Appellants and others levelling certain allegations, whereupon an inquiry was held by the Director General and in this regard a three members inquiry committee was constituted which after concluding the proceedings submitted his report with certain recommendations. The Secretary forwarded the complaint along with inquiry report to the Superintendent Engineer LG&CD Punjab Lahore for further probe who found the allegations against the Appellants not proved, however, a warning/censure was administered to the Appellants to be careful in future. Subsequently, the Respondent No,5 submitted similar complaint to the Respondent No,2 on 22.07.2013 adding allegation of corruption by the Appellants on which the Respondent No,2 constituted an inquiry committee again against the Appellants and others and disposed of the matter. Feeling aggrieved thereby the Appellants filed W.P. No,25322/2014 which was dismissed. Hence, this Appeal.
3. Learned counsel for the Appellants submitted that the Respondent No,5 was neither an aggrieved person nor he has any locus standi to file the complaint before the Respondent No,2; that the Respondent No,2 has assumed the jurisdiction without any authority; that the proceedings under the Act have already been concluded, as such the matter had become past and closed; that the Appellants cannot be vexed twice on the basis of same allegations; that the remedy provided under Section 32 of the Punjab Ombudsman Act, 1997 (the "Act of 1997") is not appropriate and speedy; that the learned Single Judge has failed to take into consideration the provisions of the Act of 1997 in its true perspective. In support of his contentions learned counsel has placed reliance on the case titled Muhammad Irshad v. Secretary, Local Government and Rural Development Lahore and others (2009 PLC (C.S.) 74), Professor Mian Ejaz ul Hassan v. Lahore Development Authority through its Director General, L.D.A. Plaza Lahore and 3 others (2002 YLR 3705) and Dr. Muhammad Shoaib Suddle v. Province Sindh and others (1999 PCr.LJ 747).
4. On the contrary learned counsel appearing on behalf of the Respondents assisted by the learned Law Officer submitted that the impugned order has rightly been passed as an alternate remedy was available to them under Section 32 of the Act of 1997; that the Appellants had filed the writ petition mere to evade the consequence of allegations levelled against them; that the Respondent No,2 has rightly taken the cognizance of the matter as per Section 9(1) of the Act of 1997, hence the instant Appeal is liable to be dismissed.
5. We have heard the arguments of the learned counsel for the parties and perused the record.
6. From the perusal of record it reveals that the Appellants filed writ petition seeking quashing of complaint and inquiry proceedings initiated thereon moved by the Respondent No,5. In the impugned order the learned Single Judge has observed that as the Appellants have an alternate remedy of Representation under Section 32 of the Act of 1997, therefore, the Appellants may file Representation before the Governor. The record reflects that on the complaint of the Respondent No,5 the Respondent No,2 disposed of the matter by passing a specific order referring the matter to the Commissioner, Sargodha Division, Sargodha to hold inquiry into the matter. Section 32 of the Act of 1997 specifically provides a remedy to the Appellants for the redressal of their grievance against the orders of the Respondent No,2 before the Governor, who is the higher authority of the Respondent No,2, which they have bypassed and directly filed the writ petition before this Court.
Hence, the learned Single Judge has aptly dismissed the petition by observing that the Appellants may avail the alternate remedy available to them against the inquiry proceedings. There is an established line of cases in which Courts have recognized that when alternate remedy is available Constitutional petition is not maintainable. Reliance in this regard is placed on the case reported as Muhammad Abbasi v. S.H.O. Bhara Kahu and 7 others (PLD 2010 SC 969) wherein the august Supreme Court of Pakistan has inter alia held that "The invocation of constitutional jurisdiction where alternate remedy is provided which is convenient and beneficial cannot be made."
7. The reasons advanced by learned counsel for the Appellants for not filing the Representation are not persuasive as nobody can be allowed to bypass any provision of law and the procedure laid down for a particular purpose.
8. The instant Intra Court Appeal is filed under Section 3 of the Law Reforms Ordinance, 1972 whereas the object of proviso to subsection (2) of Section 3 of the Law Reforms Ordinance, 1972 bars the remedy of Intra Court Appeal in those cases in which the relevant law provides the remedy of appeal, revision or review. Under the doctrine of pith and substance, the Representation is an Appeal, if filed to the higher forum, hence if the right of an Appeal is available, then the remedy of Intra Court Appeal cannot be availed. Reliance in this regard is placed on the case titled Muhammad Aslant Sukhera and others v. Collector Land Acquisition, Lahore Improvement Trust, Lahore and another (PLD 2005 Supreme Court 45) wherein the Hon'ble Supreme Court of Pakistan has held as under: "7. There is no doubt in our mind that the award by the Tribunal is treated to be an original judgment and decree within the meaning of section 26 of the Act. Being an original decree, the award has been specifically made appealable before the High Court and then before this Court under section 54 of the Act of 1894. In view of express provisions of section 54 of the Act it is not possible for us to hold otherwise. It cannot be said that the award by the Tribunal is not an original order for the purposes of bar contained in proviso of section 3(2) of the Ordinance. Therefore, it is not necessary for us to determine as to whether the award made by the Collector could also be treated to be an original order or not. The object of Proviso to subsection (2) of section 3 of the Ordinance, 1972 seems to be to bar the remedy of Intra Court Appeal in those cases in which the relevant law provides the remedies of appeal, revision or review."
9. As noted above that the proviso to subsection (2) of Section 3 of the Law Reforms Ordinance, 1972 bars the remedy of Intra Court Appeal in those cases in which the relevant law provides the remedy of appeal, revision or review. But Section 32 of the Act of 1997 provides the remedy of Representation to the Governor, as such now the question needs to be resolved here is that whether a Representation can be considered to be an Appeal or not. 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. Reliance is placed on the case titled Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad v.
Muhammad Tariq Pirzada and others (1999 SCM R 2189). The concept of a Representation envisaged by Article 32 of the Act of 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. Reliance can also be placed on the case titled Muhammad Riaz v. Province of Punjab and others (2014 CLC 817).
10. In view of above, we are suffice it to say that the remedy of Representation before the Governor is infact an Appeal as the Governor is acting as an appellate forum.
11.So far as the case law cited by the learned counsel for the Appellants are concerned, in this regard it is stated that each and every case has its own facts and circumstances, therefore, the case in hand being distinguishable from the above cited case law which are not relevant, cannot be relied upon.
12.In view of the referred facts and circumstances, there is no illegality or perversity in the impugned order which otherwise is apt and calls for no interference by us. We, therefore, agree with the findings of the learned Single judge which have been passed in consonance with the spirit of law.
13.In view of what has been discussed above, the instant Intra Court Appeal, being not maintainable, is hereby dismissed.