WIOAR AHMAD, J. This order is directed to dispose of W.P. No. 572-M of 2017 filed by the petitioner against respondents under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
2. It was contended in the writ petition that the petitioner had been appointed as Junior Clerk by the Board of Technical Education Khyer Pakhtunkhwa for a period of six (6) months vide order dated 18.07.2008, whereafter he joined his duty. Later on, the respondents invited applications for filling the post of Junior Clerk in BPS-7 on regular basis, to which the petitioner also applied. Petitioner was accordingly appointed on 12.01.2009 as Junior Clerk in BPS-7. He has further stated in his writ petition that due to unavoidable circumstances he had absented himself from duty and consequently his services had been terminated vide order dated 19.08.2009. Petitioner had brought the instant writ petition on 10th of August 2017 for setting aside order dated 19.08.2009 with the following prayer; " It is therefore, most humbly prayed that on acceptance of this writ petition the impugned order dated 19.08.2009 may very kindly be set aside and the respondents may kindly be directed to re-instate the petitioner into service with all back benefits. Any other remedy which this august Court deems fit that may be awarded in favour of the petitioner ."
3. Para-wise comments of respondents were called, which were accordingly submitted. It was stated therein that due to willful absence of the petitioner , he was removed from service during probation according to the rules and regulations.
4. Learned counsel for petitioner contended during the course of his arguments that the order impugned in the instant writ petition was a void order , against which no limitation was running and therefore his writ petition was maintainable against it. In this respect, he has placed reliance on the judgment in the case of "Qazi Munir Ahmed v/s Rawalpindi Medical College and Allied hospital through principal and others" reported as "2019 PLC (CS.) 928". Regarding the merits of his case, the learned counsel submitted that petitioner had not been provided an opportunity of hearing which was his due right despite the fact that he had been serving on probation. In this respect, he placed reliance on the judgment in the case of "The Secretary Govt: of the Punjab Health Department of Lahore and others v/s Riaz-ul-Haq" reported as "1997 SCMR 1552 ".
5. We have heard arguments of learned counsel for the petitioner and perused the record.
6. Perusal of record reveals that the petitioner was appointed on regular basis vide order dated 12.01.2009 as Junior Clerk in BPS-7 in the Board of Technical Education Peshawar . He was in his period of probation that he absented himself. This fact has been admitted in Para 5 of the writ petition, which is reproduced hereunder for ready reference; " That due to avoidable circumstances the petitioner has absented himself from duty and in consequence the Secretary Board of Technical Education had terminated the services of the petitioner on the ground of absentia vide impugned order dated 19.08.2009."
His services were being governed by the North West Frontier Province Board of Technical Education Regulations 1994 (hereinafter referred to as "the Regulations" ) framed under section 19 of the North West Frontier Province Board of Technical Education Act, 1972. Regulation No. 5 of the Regulations relates to the services of a person on probation, which read as follows;
5. Probation.- (1) A person appointed to a post on regular basis shall remain on probation for a period of two years, if appointed by initial recruitment, and for a period of one year, of appointed otherwise; provided that if his work or conduct during the period of probation has, in the opinion of the appointing authority , not been found satisfactory , the appoin ting authority may, notwithstanding that the period of probation has not expired,
(a) dispenses with his services, if he has been appointed by initial recruitment; or
(b) ............................
(c) ...............................
Services of the petitioner were dispense d with under the above cited clause. The factum of willful absence was admitted, therefore we do not think that the right of hearing would have made any difference in the present discourse. The Hon'ble Apex Court in the case of "Justice Khurshid Anwar Bhinder v/s Federation of Pakistan and another" reported as "PLD 2010 Supreme Court 483" held as follows; It must not be lost sight of that in the above mentioned "exclusionary cases, the 'audi alteram partem' rule is held inapplicable not by way of an exception to fair play in action but because nothing unfair can be inferred by not affording an opportunity to present or meet a case." (Maneka Gandhi v Union of India AIR 1978 SC 597, (1978) 1 SCC 248. vide also Mohinder Singh Gill v The Chief Election Commissioner AIR 1978 SC 851, (1978) 1 SCC 405. The doctrine of 'audi alteram partem' is further subject to maxim nemo inauditus condemnari debet contumax. Therefore, where a person does not appear at appropriate stage before the forum concerned or is found to be othe rwise defiant the doctrine would have no application. It is also to be kept in view that "application of said principle has its limitations. Where the person against whom an adverse order is made has acted illegally and in violation of law for obtaining illegal gains and benefits through an order obtained with mala fide intention, influence, pressure and ulterior motive then the authority would be competent to rescin d/withdrawn/ cancel such order without affording an opportunity of personal hearing to the affected party . Said principle though was always deemed to be embedded in the statute and even if there was no such specific or express provision, it would be deemed to be one of the parts of the statute because no adverse action can be taken against a person without providing right of hearing to him. Principle of audi alteram partem, at the same time, could not be treated to be of universal nature because before invoking/apply ing the said principle one had to specify that the person against whom action was contemplated to be taken prima facie had a vested right to defend the action and in those cases where the claimant had no basis or entitlement in his favour he would not be entitled to protection of the principles of natural justice.
An action of the departmental authority may be reversed on the basis of omission in providing hearing when the right of hearing may have made a difference and when the petitioner have some solid case viz-a-viz existing of vested right, to be presented before the authority . In absence of such a vested right when an action is taken according to law and when a right of hearing is found to be a mere formality , then omission of right of hearing cannot be made the basis for reversal of an order of the administrative authority . In this regard, reliance is also placed on the judgments of Hon'ble Apex Court in the case of "Nazir Ahmad Panhwar v/s Government of Sindh through Chief Secretary , Sindh and others" reported as "2009 PLC (C.S.) 161", in the case of "Abdul Hague Indhar and others v/s Province of Sindh through Secretary and others" reported as "2000 SCMR 907" and in the case of "Abdul Waheed and another v/s Secretary , Ministry of Culture & Sports and another " reported as "2002 SCMR 769 ".
7. Beside the fact that when an employee practically absented himself and did not turn up before the department for almost a decade then practically it is not possible to provide him a right of hearing or notice. The judgment relied upon by learned counsel for the petitioner reported as "1997 SCMR 1552 " is not relevant in the case of willful absence as the said judgment had been given in the case of misconduct and where in-fact the effected employee was available for effecting service of notice and hearing. In the case in hand, the petitioner was not so available to the department for service of notice and hearing. He has filed his departmental appeal on 23.02.2017 which had righty been dismissed by the department.
8. The contention of learned counsel for the petitioner , regarding the fact that the order was void in nature, is difficult to be agreed with. The judgment reported as "2019 PLC (C.S.) 928" and relied by learned counsel would also be of no help to the petitioner for the reason that the order in the case in hand was found to have been lawfully passed in exercise of the powers vested in the department by Regulation 5 (a) of the Regulations reproduced above. By no dint of imagination, the order in the case in hand may be considered as void one. The ratio of the judgment of the Hon'ble Apex Court does not apply in the case in hand. Above all, the writ petition of the petitioner is hit by the doctrine of laches. Petitioner has filed the instant constitutional petition on 10th August 2017 for setting aside order dated 19.08.2009, which was expressly hit by the doctrine of laches. In this respect, reliance is placed on the judgments of the Hon'ble Apex Court given in the case of "Trustees of the port of Karachi v/s Organization of Karachi port trust work ers" reported as "2013 SCMR 238" and in the case of "Dr. Muhammad Tahir-ul-Qadri v/s Federation of Pakistan through Secretary to others" reported as "PLD 2013 Supreme Court 413".
9. For what has been discussed above, the writ petition in hand is found to be meritless as well as non- maintainable being hit by the doctrine of laches, is accordingly dismissed in limine.