' Through this Constitutional petition the petitioner has challenged the impugned order dated 13-8- 2001 passed by respondent No,4/Appellate Authority by which the order passed by the Provincial Ombudsman has been set aside.
2. The brief facts of the case are that the petitioner was appointed as ADASO in the West Pakistan Agricultural Development and Supplies Corporation in the year 1970 and remained posted at District Faisalabad. Some embezzlement was detected in Bulk Depot No,1, Jaranwala Road, Faisalabad, and F.I.R. No,843 was registered on 29-11-1997 under sections 420, 468, 471, 408 and 406, P.P.C. With Police Station Saddar, Faisalabad against Inayat Ali, Incharge of the Depot at the instance of the petitioner. Challan was submitted against said Inayat Ali. Respondent No,2 suspended the petitioner as well due to same reasons vide order dated 30-3-1998 and also got registered FIR., No,1427 dated 24-12-1998 under sections 420. 406, P.P.C. At Police Station Saddar Faislabad and same type of allegations were levelled against him.
3. The Punjab Agricultural Development and Supplies Corporation was dissolved on 11-4-1998 and the employees of the Corporation were offered Golden Handshake Scheme with terminal benefits but the petitioner was not given the benefits and his pensionary benefits were confiscated by respondent No,1 vide order dated 2-3-1999. The petitioner filed a review petition against the abovesaid order which was dismissed vide order dated 9-10-1999.
4, The petitioner filed a petition before the Provincial Ombudsman who summoned both the parties and accepted the complaint of the petitioner vide order dated 20-3-2000 and set aside the order dated 2-3-1999 passed by respondent No,1 regarding the confiscation of Goden Handshake Scheme benefits to the petitioner i,e, G.P. Fund and gratuity of the petitioner. The petitioner claims that he approached to respondent No,1 for the implementation of the order of the Provincial Ombudsman but no action-was taken and he filed the contempt application and the Provincial Ombudsman vide order dated 28-11-2000 directed the respondent to implement the order dated 20-3-2000. Respondent No,1 filed an appeal against the order dated 20-3-2000 passed by the Provincial Ombudsman which was accepted through the impugned order dated 13-8-2001 which is being assailed through this writ petition.
5. Learned counsel for the petitioner contends that the order has been passed by the Appellate Authority without affording an opportunity of hearing to the petitioner, which is hit by the principle of natural justice and equity and is liable to be set aside on this score alone. He relies on Mrs. Anisa Rehman v. P.I.A.C. And another (1994 SCMR page 2232). The second contention of the learned counsel for the petitioner is that under section 32 of the Provincial Ombudsman, an appeal can be preferred against his order within thirty days but respondent No,1 filed a time-barred appeal and no reason was given for the filing of time-barred appeal by respondent No,1 and respondent No,4/Appellate Authority has not dealt with the question of filing of time-barred appeal by respondent No,1 while accepting the same hence the order impugned is illegal and is liable to be set aside upon this score alone.
6. On the other hand Mr. Hameed Ullah Khan, Advocate, learned counsel appearing on behalf of the Department argues that the Provincial Ombudsman has no jurisdiction to entertain the petition and pass the order on the basis of which the petitioner claims the pensionary benefits i,e, G.P. Fund and gratuity etc. As under section 9 of the Office of Ombudsman Act, 1997, the jurisdiction of the Provincial Ombudsman in entertaining the complaint against the matter relating to the terms and conditions of service is barred. He relies upon the judgment passed by this Court in Writ Petition No, 10376 of 2001. He further contends that the limitation does not run against a void order. Also relies on Munawar Kashan and another v. Government of Balochistan and 2 others (2000 MLD 2015), Farooq Ahmad Mehesar v. Government of Sindh and another (2001 PLC (C.S.) 555), Mst. Parveen Begum v. Habib Gul and another (1997 MLD 2473) and Mustajab Hasan and others v. Director, Trade Organisations and others (1996 CLC page 1725).
7. Mr. Muhammad Shah Gul, learned counsel appearing on behalf of the Government argues that the appeal has been rightly accepted by the learned Appellate Authority and the opportunity of hearing hasten afforded to the petitioner through this writ petition hence the order even if passed in his absence can be maintained as the order passed by the Provincial Ombudsman was patently without jurisdiction. The writ petition according to him is not maintainable and is liable to be dismissed.
8. I have heard the, learned counsel for the parties and also perused the record. The first question which requires consideration by this Court is whether the Provincial Ombudsman has the jurisdiction to pass the order dated 20-3-2000 which was impugned in the appeal and same has been accepted. As I have already held in my judgment dated 31-10-2001 passed in Writ Petition No,10376 of 2001 that the Provincial Ombudsman has no jurisdiction to entertain the matters relating- to the terms and conditions of service and the impugned orders passed by him has already been set aside, the order passed by the Provincial Ombudsman on the face of it is without jurisdiction and the Provincial Ombudsman has failed to show whether he had the jurisdiction to entertain the complaint filed by the petitioner and has passed an order which is without jurisdiction. Thus, the order of the Provincial Ombudsman is void and without jurisdiction. As far as the contention of the learned counsel for the petitioner that though the appeal could only be filed under section 32 of the Provincial Ombudsman within thirty days and time-barred appeal was filed before respondent No,4 hence this question first was to be decided which could have been decided by respondent No,4 whether the appeal could be heard in spite of filing of- it after the lapse of time. I am in agreement with the learned counsel for the respondents that the appeal even if filed after the lapse of time against void order can be heard and decided on merits by the Appellate Authority as the limitation does not run against the void order. I am fortified by the judgment delivered in Munawar Kashan's case (2000 MLD 2015), the relevant portion is as under:-- "Die entire record was neither scrutinized nor examined by the leaned MBA-III and thus, his order, was patently illegal and void, therefore, the question of any limitation does not arise. The learned MBR-III has ignored deliberately that how and to whom the status of occupancy tenant could be conferred."
' Similar view is taken in Farooq Ahmad Mehesar's case (2001 PLC (C.S.) 555) in which it has been held that it is well-settled principle of law that limitation does not operate against an illegal and void order. In this view of the matter, the contentions of the learned counsel for the petitioner that the appeal was time-barred and could not be heard has no force as the order passed by the Provincial Ombudsman on the face of it was without jurisdiction. However, I am in agreement with the learned counsel for the 'petitioner that the Appellate Authority could have heard the petitioner before passing the impugned order and he was not heard but since the original order which was appealed before respondent No,4 has been held by this Court as having been passed without jurisdiction the non-hearing of the petitioner by the Appellate Authority will not affect the fate of this petition. Even otherwise I have afforded full opportunity to the petitioner to show whether the Provincial Ombudsman had the authority or power to adjudicate upon the matter and to pass the order which' was appealed against, but, he has ,failed to point out any authority conferring powers on the Provincial. Ombudsman to pass the orders relating to the terms and conditions of service. In such-like circumstances the argument 'of the learned counsel though has force but is met by providing him opportunity of hearing in this Court through this writ petition and he has failed to show that the passing of the order by the Provincial Ombudsman was within his jurisdiction.
9. This petition is dismissed. As the petitioner now has no remedy to avail against the order passed by respondent No,1, prima facie, respondent No,1 has deprived the petitioner from his pensionary benefits, it will be in the fitness of things and the interest of justice that the petitioner if moves an application before the Administrator he shall pass fresh orders after affording an opportunity to the petitioner for the payment of gratuity and the other benefits which have been provided to other employees of the Corporation. The order shall be passed after affording full opportunity to the petitioner and shall be a speaking order as it is mandatory under section 24-A of the General Clauses Act.