2006 SCMR 382 (PLP)

MUHAMMAD NAWAZ ABBASI, J.

This petition has been directed against the order passed by the learned Judge in Chamber of the Lahore High Court, in a constitutional petition filed by the respondent wherein he challenged the order passed by the President of Pakistan in a representation filed by the petitioner under Article 9 of the P.O. No.1 of 1983 against the order of Wafaqi Mohtasib (Ombudsman).

2. The grievance of the respondent in the writ petition before the High Court was that the order passed by the Ombudsman in the complaint filed by him was set aside in the representation filed by the Agency before the President of Pakistan under Article 32 of the P.O. No.1 of 1983 without hearing him and he was condemned unheard. The learned Judge in the High Court setting aside the order by virtue of which representation was accepted, directed the concerned Section Officer in the Ministry of Law, Justice and Human Rights, Government of Pakistan for providing an opportunity of hearing to the respondent before disposal of the representation of Agency. The petitioner being aggrieved of the above order has filed this petition before this Court.

3. The learned D.A.-G. has contended that the representation filed by the Ministry of Education was decided in accordance with the procedure provided in law and right of personal hearing could not possibly be given by the President to the parties and calling of the written reply/comments to the representation under Article 32 of P.O. No. l of 1983 would be sufficient in compliance of the law laid down by this Court in Federation of Pakistan through Secretary Establishment Division v. Muhammad Tariq Pirzada 1999 SCMR 2744. The learned counsel for the respondents, on the other hand, has contended that in the present case even written reply of respondent was not called before B passing an order adverse to his interest and thus, it was passed in utter disregard to the law laid down by this Court in the above judgment and the principle of natural justice.

4. This is an admitted fact that the representation of the agency (Ministry of Education) against the order of Ombudsman was allowed and order passed by the Wafaqi Mohtasib was reversed without notice to the respondent and behind his back so much so a written reply to the representation was not obtained from him before passing the order in question. The ratio of observation of this Court, in a similar situation in the above referred case of Tariq Pirzada etc. was that before deciding a representation against the recommendations of Wafaqi Mohtasib, the valid and justiciable reasons must be given for arriving to the conclusion contrary to the recommendations of Wafaqi Mohtasib.

5. Be that as it may, it is to be seen that the opportunity of hearing is not confined to the personal hearing rather it may also be in the form of written reply and thus as per scheme of law in a representation to the President against the order of Ombudsman it is not possible for the President to provide personal hearing to the parties in such representation therefore, inviting the comments/written arguments in reply to the representation by the concerned quarters would be considered sufficient compliance of the law. However, the direction of the High Court for providing hearing to the respondent by the Section Officer in the Ministry of Law, Justice and Human Rights was beyond the scope of Article 32 of P.O. No.1 of 1983, as a Section Officer cannot act as an agent of the President under the (ibid) Article rather the requirement of law in the representation against the order of Ombudsman can be conveniently fulfilled by giving right of hearing through a written reply to the representation.

6. For the reasons given above, we convert this petition into appeal and dispose of the same with modification in the impugned judgment that the representation of the Agency in the present case would be deemed to be pending which will be decided after obtaining the written reply of the respondent and considering the same in accordance with law. This appeal is partly allowed with no order as to costs. H.B.T./F-1/SC???????????????????????????????????????????????????????????? Order accordingly.