2001 PLP 1818 (YLR)

SAIYED SAEED ASHHAD, C.J.-- This Constitutional Petition has been filed against the order, dated 28-7-1998 passed by Provincial Ombudsman, Sindh on review application for review of his order, dated Nil wherein the following prayers have been made: "It is prayed that this Hon'ble Court may be pleased to hold and declare the impugned order, dated 28-7-1998 passed by the learned respondent No.2 as being without jurisdiction as such of no legal consequence and may be further pleased to set aside the impugned order, dated 28-7-1998. It is further prayed that respondent No.3 the Secretary to the Government of Sindh, Labour and. Transport Department, may be directed to proceed against respondent No.1 under the Sindh Civil Servant (Efficiency and Discipline) Rules, 1973, as directed by the learned respondent No.2 through his earlier decision in Complaint No.POS/3988/95-141(D)/ G-1 /communicated under covering letter dated 31-7-1996. Any other relief/relief's deemed just and proper may also be granted by this Hon'ble Court." The brief facts necessary for disposal of this Constitutional petition are that complainant Saleh Muhammad Shah, General Secretary of the petitioner lodged a complaint before the Provincial Ombudsman, Sindh against Ali Anwar Ghanghro, Joint Director Labour. Government of Sindh, Karachi for unjustly withholding enquiry in connection with the illegal closure of factory of Metal Container (Pvt.) Limited by the management. After holding investigation and enquiry the Ombudsman directed the Labour Department to ensure that:- "(i) Mr. Ghanghro makes; forthwith, report to the concerned Labour Court under section 46-A(1) and serves notice under section 46-A(2) in connection with enquiry, admittedly conducted by him, in the respect of the allegation of the illegal lock-out the subject-matter of this complaint. (ii) Disciplinary proceedings, in view of the above observations, relating to negligence; incompetence, ineffi ciency and misconduct, are promptly initiated against Mr. Ghanghro, Joint Director, Central Division, Labour Welfare Department, Government of Sindh, Karachi, under the Sindh Civil Servants (Efficiency and Disciplinary) Rules, 1973: (19) The Agency/Secretary, Labour 'Department, Government of Sindh; is hereby directed under section 11(2) of the Sindh Act, 1992 to inform me latest by 1-9-1996 about the action taken in respect of the recommendations specified herein above." Subsequently, Mr. Anwar Ali Ghanghro, Joint Director, Labour submitted a review application, wherein he clarified his position and submitted that the factory in question had initially declared lock-out for 10 days, which resulted in termination of services of 19 workers, 16 of whom collected their dues, one of them tendered his resignation, another approached the Labour Court while one of them did not. take any action and that the aforesaid actions did not amount to lock-out. The learned Ombudsman was also informed that prior to filing of the complaint before him a case under section 45 of the I.R.O. was filed by the petitioner in the Sindh Labour Court No.1, Karachi, which facts was concealed from the learned Ombudsman. After taking into consideration the contents of the review application the above order dated Nil was recalled by the Provincial Ombudsman, Sindh vide order, dated 28-7-1998. The petitioner feeling aggrieved and dissatisfied with the aforesaid order, dated 28-7-1998 has challenged the same by way of this Constitutional petition, Section 32 of The Establishment of the Office of Ombudsman for the Province of Sindh Ordinance, 1991 provides for filing or an appeal/representation before the Governor of Sindh by a party aggrieved by an order passed by the learned Provincial Ombudsman and in view of the above provisions resort could not be had to the Constitutional jurisdiction of this Court in view of settled principle that when an adequate alternate and, efficacious remedy is available to an aggrieved party against an order passed by a Government functionary in exercise of powers under a Statute then resort to Constitutional jurisdiction cannot be allowed. It was submitted on behalf of the petitioner that the order, which has been challenged in this Constitutional petition was an absolutely illegal and void order inasmuch as the Provincial Mohtasib Establishment Ordinance did not confer power on the Provincial Ombudsman to review his orders and in the circumstances a Constitutional petition was maintainable as it amounted to challenging an illegal, unlawful and void order. This contention is without any force and requires no consideration. The order, dated 28-7-1998 is not in the nature of a review order but an order recalling an illegal/unlawful order passed earlier on the basis of wrong information and concealment of facts by the petitioner. In view of the wrong information and concealment of facts the earlier order had become illegal, unlawful and void and the learned Ombudsman by his order, dated 28-7-1998 had merely recalled the illegal and void order, which in no way could be considered to be a review of the earlier order. Even, if a review order, the fact remains that the same should and ought to have been challenged before the Governor and the petitioner would not be able to claim the right to invoke the Constitutional jurisdiction of this Court on the ground that the impugned order was en illegal, unlawful and void order, therefore, it would not require to be challenged before the authority nominated under the aforesaid Ordinance and a. Consti tutional Petition would be maintainable. This presumption was not at all called for and was absolutely contrary to the law. Upon the above discussion we are satisfied beyond any doubt that this Constitutional petition is misconceived and is not maintainable. By a short order, dated 17-5-2000 we had dismissed this Constitutional petition in limine together with the miscellaneous application pending therein for reasons to be recorded later. These are the reasons for the said short order. H.B.T./M-241/K Petition dismissed.