' Through this Constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan 1973, the petitioner has challenged the impugned order, dated 8-8-2000 passed by the Provincial Ombudsman/respondent No,2 and the order passed by the Worthy Governor of the Punjab/respondent No,3, in appeal dated 6-4-2001 and has prayed for setting aside of the same and declaring these orders as having been passed without lawful authority and of no legal effect.
2. The brief facts of the case are that respondent No,1 joined Family Planning Department in 1965 in Grade-16 as Family Planning Officer. In October, 1973, the Governor of the Punjab floated the Punjab Agricultural Development and Supplies Corporation as statutory body. Respondent No,1 preferred to join the same and he submitted an application for his appointment before the Chairman (Minister) on 1-10-1973 instead of the competent Authority. However, he was appointed on temporary basis as Assistant Director in Grade-17 on 2-11-1973. Respondent No,1 joined the department on 6-11-1973. After 23 years of the joining of the Corporation, respondent No,1 on 20-10- 1996 requested that the period of his service from 5-7-1965 to 18-1-1973 (8 years and four months) with the Family Planning Department of the Government of Punjab might be counted towards his Gratuity etc. After the submission of the application, respondent No,1 kept mum for three years and then he repeated his application on 20-10-1996, when the Corporation was ordered to be defunct on 11-4-1998 by the Governor of the Punjab and the services of all the employees of the Corporation were dispensed with immediate effect.
3. Respondent No,1 filed an application before the Provincial Ombudsman/respondent No,2 on 24- 3-2000 for issuance of direction to the petitioner to pay the gratuity with allowances for the period of his previous service rendered with the Family Planning Department from 5-7-1965 to 5-11-1973.
The petitioner submitted reply on 25-5-2000 to the application of respondent No,1 but the learned Ombudsman passed the impugned order on 8-8-2000 and directed the petitioner to make the payment to the respondent No, 1 . A representation was filed against the said order by the petitioner before the Governor of the Punjab/Appellate Authority under section.32 of the Punjab Office of the Ombudsman Ordinance, 1997. The decision was not set aside and was upheld vide order, dated 6-4-2001. Both these orders are now impugned in this writ petition.
4. Learned counsel for the petitioner contends that the Provincial Ombudsman has no jurisdiction to entertain the petition regarding the terms and conditions of the service and the order passed by him is without jurisdiction and is liable to be stuck down. Similarly appeal was also disposed of without applying its mind by the Worthy Governor: Learned counsel for the petitioner has relied upon two orders passed by the Governor of the Punjab while hearing the representations of the employees whereby it was held that the matter relates to the terms and conditions of service and there being bar of jurisdiction of Ombudsman under section 9(2) of the Punjab Office of the Ombudsman Ordinance, 1997 the Ombudsman has no authority to entertain and pass the orders and the appeals were accepted. He argues that the orders passed by the Provincial Ombudsman is without jurisdiction and thus falls within the definition of sub-clause (1) of clause (2) and the petitioner-Corporation is "Agency" because the petitioner is a statutory Corporation. The employees of such Corporation are public servants under sub-clause (c) of section 20 of the, P.P.C.
(sic) and the case also do not fall within the purview of maladministration as is defined in section 2-A (sic) in the abovesaid Ordinance. It is further contended that the order passed by the Worthy Governor by dismissing the representations of the petitioner is contradictory to the two other orders which have been produced in this Court whereby it has been held that the Provincial Ombudsman has no jurisdiction to entertain and adjudicate upon similar matter. It is also contended that respondent No,1 joined the service and kept mum for 23 years and then filed claim for the gratuity which was time-barred. It is also contended that respondent No,1 had opted Golden Hand Shake and gave an undertaking at the time of receipt of the total amount that there is no pending claim of him any nature against PAD and this undertaking is an estoppel to raise further demand for the payment of any amount.
5. On the other hand learned counsel appearing on behalf of respondent No,1 has opposed this petition on the ground that the orders passed by the Provincial Ombudsman are with jurisdiction and with lawful authority as respondent No,1 could not file the appeal under the Service Tribunals Act. He relied upon Ikram Ali v. The State (PLD 1980 Lah. 597). It is further contended that the option of Golden Hands Shake Scheme will not affect his previous right accrued in his favour for the payment of the gratuity for the period for which he has served the Family Planning Department. It is further contended that some decisions of the Ombudsman have been accepted by the petitioner and some, are being questioned in the Court of law and discriminatory treatment is being given to respondent No,1 by the petitioner. He also relied on Nafees Ahmad v. Government of Pakistan (2000 SCMR Page 186) in which the gratuity and pensionary benefits were given to an employee who served earlier in another department.
6. I have heard the learned counsel for the parties and also perused the record, The only pivotal question in this petition which requires to be decided at the first instance is whether the Provincial Ombudsman has the jurisdiction and powers to pass the impugned order dated 8-8-2001 and whether the order passed 'by the Governor of the Punjab on representation and challenged through this petition is sustainable or not. I am in agreement with the learned counsel for the petitioner that under subsection (2) of section 9 of the Punjab Office of the Ombudsman Act. 1997, the Provincial Ombudsman cannot interfere in the service matters of the employees including the employees of the statutory Corporation and as the petitioner was statutory Corporation and the payment of gratuity relates to the terms and conditions of the service of the employees, the interferences by the Provincial Ombudsman is without jurisdiction and without lawful authority.
Subsection (2) of section 2 of the said Act is as under:- "(2) 'Maladministration' includes:--
(i) a decision, process, recommendation, act or omission or commission which,-
(a) is contrary to law, rules or regulations or is a departure from established practice or procedure, unless it is bona fide and for valid reasons; or
(b) is perverse, arbitrary or unreasonable unjust biased, oppressive, or discriminatory; or
(c) is based on irrelevant grounds; or
(d) involves the exercise of powers or the failure or refused to do so, for corrupt or improper motives, such as, bribery, jobbery, favouritism, nepotism and administrative excesses; and
(ii) neglect, inattention, delay, incompetence, inefficiency and ineptitude, in the administration or discharge of duties and responsibilities."
"Section 9. Jurisdiction, functions and powers of the Ombudsman.--The Ombudsman may on a complaint by any aggrieved person, on a reference by the Government of the Provincial Assembly, or on a motion of the Supreme Court or the High Court made during the course of any proceedings before it or of his own motion, undertake any investigation into any allegation of maladministration on the part of any Agency or any of its officers or employees: ' Provided that the Ombudsman shall not have any jurisdiction to investigate or inquire into any matter which-
(a) are sub-judice before a Court of competent jurisdiction on the date of the receipt of a complaint, reference or motion by him or
(b) relate-to the external affairs of Pakistan or any part thereof, the Military, Naval and Air Forces of Pakistan, or the matters covered by the laws relating to those forces.
(2) Notwithstanding anything contained in subsection (1), the Ombudsman shall not entertain for investigation any complaint by or on behalf of a public servant or functionary concerning any matter relating to the Agency in which is, or has been, working in respect of any personal grievance relating to his service therein.
(3) For carrying out the objectives of this Act and, in particular for ascertaining the root causes of corrupt practices and injustice, the Ombudsman may arrange for studies to be made or research to be conducted and may recommend appropriate step for their eradication."
From a bare perusal of the abovesaid provision it is crystal clear that the Provincial Ombudsman has no jurisdiction in the service matters and there is no dispute that the payment of gratuity to a civil servant or to a servant of statutory Corporation cannot be entertained by the Provincial Ombudsman. The Governor of Punjab while hearing the appeal in two cases which have been referred by the learned counsel for the petitioner has held that the service matters falls outside the jurisdiction of the Ombudsman under section 9(2) of the Office of the Ombudsman Act, 1997. The orders of the Governor of the Punjab are reproduced as under:-- "(i) The respondent has been found guilty during enquiry. He was awarded a major penalty under the relevant rules. The order, which imposed the major penalty, should have been challenged in the forum having competent jurisdiction. Ombudsman is not the appellate forum or a forum having jurisdiction in the matter.
(ii) It is a service matter and bar of jurisdiction of the Ombudsman under section 9(2) of the Punjab Office of the Ombudsman Act, 1997, is attracted."
"(1) Grant of seniority is essentially a service matter. Remedies in this context are available within the department and also with the Courts having competent jurisdiction. The respondent should have availed the departmental remedy available under rule 18 of the PAD & SC Employees Service Rules, 1982.
(2) Service matters fall outside the jurisdiction of Ombudsman under section 9(2) of the Punjab Office of the Ombudsman Act, 1997"
'Whereas the representation/appeal of the petitioner has been dismissed by the Governor of the Punjab though earlier it has been decided by the same authority that the Provincial Ombudsman cannot interfere in the matters relating to the terms and conditions of service. There is no cavil to the proposition that the employees of a statutory Corporation after the induction of section 2-A can file an appeal before the Federal Service Tribunal and it has finally been decided by the august Supreme Court that amendment is a procedural law and will operate with retrospective effect as is laid down in judgments reported as "1997 SCMR page 2000", "2000 SCMR 826" and "2000 SCMR page 959". The bar of jurisdiction under Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973, is also attracted in this case and only the Tribunal constituted under the said provision is the lawful authority to entertain and decide the matters relating to the terms and conditions of service hence the Provincial Ombudsman has no jurisdiction in the administrative functions of the department.
7. I do not want to comment on the merits of the case so that it may not cause any prejudice to any of the parties before the proper forum if the matter is presented before the Service Tribunals.
8. For what has been discussed above this writ petition is accepted, and the impugned orders passed by respondents Nos.2 and 3 are set aside as having been passed without lawful authority and of no legal effect.
' The parties are, however, to bear their own costs.