2001 PLP (C (PLC(CS))

WAHID BUX BROHI, J.

Messrs Pakistan State Oil Company Limited, have invoked the jurisdiction of this Court under Article 199 of the Constitution challenging the order dated 8-10-2000, passed by the Wafaqi Mohtasib (Acting Ombudsman), the respondent No.:, whereby complaint of P.S.O. Pensioners Welfare Association, the respondent No.2, was entertained and recommendations were made in their favour. The claim of respondents No.2 was that, their pensions be revised/increased in accordance with the following office memoranda of the Finance Division, Government of Pakistan:-- (1) No. l(1)Reg(6)86, dated 1-7-1986 (minimum pension to be fixed not less than Rs.1,770 per month from the date of retirement). (2) No.l(4)Reg(6)87, dated' 1-1-1987 (pension of all those retired between 1-7-1986 to 30-6-1987 be indexed @ 4% w.e.f. 1-7-1987). (3) No. l0.Reg.(6)/88, dated 1-7-1988 (pension of all those retired upto 30-6-1988 be indexed @ 7% w.e.f. 1-7-1988). (4) No. l(2)MP/94; dated 15-6-1994 (pension of all those retired before the introduction of new pay scales, to be revised according to directives of the Federal Government). (5) No. l/MP/94, dated 15-6-1994 (Pensioners retired from 1-6-1993 to 30-6-1994 as specifically mentioned in clause 9 of OM be revised according to the directives of the Federal Government).

2. On this complaint, comments of the petitioners were called, the case was duly examined in the light of pleadings of the parties and order was passed on 8-10-2000, the operative part whereof runs: "According to clause (12) of these Pension Rules, the Company may increase all or any of the pensions being paid in such manner as the Company in its absolute discretion shall decide'. It is, however, observed that the Agency has failed to exercise it- discretion without explaining any reasons although the Federal Government has revised the pensions of the civil servants many times as claimed and established by the complainant through the Office Memorandums of Finance Division referred to above. De complainants admittedly being civil servants in terms of section 2-A of Federal Service Tribunals Act, 1973, are also entitled to the revision of pension. This office, therefore, recommends that the Agency should take up the matter regarding revision of pension of its retired employees before the Board of Management of P.S.O., to enhance the pensions of the retired employees according to the above referred O.M. of the Finance Division."

3. Learned counsel for petitioners assailed the above order mainly on the ground that the Wafaqi Mohtasib (Ombudsman) had no jurisdiction to entertain and decide a matter relating to services of respondent No.2, the order, therefore, having been passed without jurisdiction and being coram non judice, was liable to be set aside. He emphasised that the respondents No.2 are not governed by the rules applicable to Federal Government employees but by the rules separately framed by the petitioner, therefore, any office memorandum applicable to the employee of Federal Government cannot be pressed into service for seeking relief by them. He relied on National Bank of Pakistan Karachi v. Wafaqi Mohtasib (Ombudsman) PLD 1992 Karachi 339, Gatron Industries Limited v. Government of Pakistan 1999 SCMR 1072 and Abdul Majeed Khan v. Hyderabad Municipal Corporation, Hyderabad 1990 CLC 796.

4. Learned counsel for respondent No.2 submitted that the impugned order passed by the Ombudsman was appealable under Article 32 of Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 (hereinafter to be referred to as the Order), the alternative remedy being available to the petitioners as such, invoking of Constitutional jurisdiction was uncalled for and the petition was not maintainable. He contended that the petitioners have no locus standi to file this petition and that the. Ombudsman has expressly observed that this is a case of maladministration which stands unchallenged. Even otherwise, according to hint, the contention on behalf of petitioners that the subject-matter fell within the domain/exclusive jurisdiction of Federal Services Tribunal would debar canvassing such plea through a Constitutional Petition. He relied on Water and Power Development Authority v. Commissioner; Hazara Division 1992 SCMR 2102. Learned Dy. A.-G. supported the contentions raised by learned counsel for respondent No.2.

5. Admittedly, the petitioners have not chosen to avail the legal remedy available to them under Article 32 of the Order. Reliance was, however, placed on Abdul Majeed Khan v. Hyderabad Municipal Corporation, Hyderabad 1990 CLC 796 to contend that High Court need not insist upon first availing the alternate remedy before the forum provided under the law. The aforesaid decision rendered by this Court has its peculiar features in that the plea of alternate remedy and plea of lack of jurisdiction of High Court on account of not availing the remedy was raised in that case for the first time after expiry of several years, whereas in the instant case the respondent No.2 has raised this plea at the earliest stage without loss of time. In the case of Gatron (Industries) Limited v. Government of Pakistan 1999 SCMR 1072, Hon'ble Supreme Court while discussing the competency of Constitutional petition in absence of availing the remedy of appeal or revision observed that it would depend upon the facts and circumstances of each case. The relevant observations are as under:-- "Be that as it may, it is well-settled that the rule about invoking the Constitutional jurisdiction only after exhausting all other remedies, is a rule of convenience and discretion by which the Court regulates its proceedings and it is not a rule of law affecting the jurisdiction. A Constitutional petition is competent if an order is passed by a Court or Authority by exceeding its jurisdiction even if the remedy of appeal/revision against such order is available, depending upon the facts and circumstances of each case. In the instant case, the appellant clearly stated in paragraph 15 of the writ petition the reasons for not exhausting the departmental remedies. In any event, the learned Judges of the High Court rendered the impugned judgment on merits of the case after hearing at length the submissions of the learned counsel for the parties. The appellants never pressed any objection as to the maintainability of the Constitutional petition before the High Court. Thus, visualised, the discretion exercised by the High Court in the facts and circumstances of the case, to entertain the petition and decide it on merits does not suffer from any illegality. In view of the above discussion, the first preliminary objection is overruled. "

6. In the cited case the reason for not availing the remedy of appeal and revision was not the appellate authorities, respondents Nos.4 and 5 in that petition were subordinate to and acting under the dictation of respondent No. l therein who had issued the notification which was impugned in the said petition. Obviously, those facts are remarkably distinct from the facts of the instant case as the appellate authority within the meaning of Article 32 of the order is the President of Pakistan, who has his independent Constitutional status, and there could be no reason not to file an appeal before him. Secondly, the question of maintainability of the petition was not raised in the High Court but it was taken, for the first time, in the Hon'ble Supreme Court whereas the High Court had entertained the petition and decided it on merits. In the present case no question arises as to hearing of the subject-matter on merits as undisputedly the controversy between the parties relates to terms and conditions of service and falls within the exclusive jurisdiction of Services Tribunal as such the jurisdiction of this Court is barred under Article 212 of the Constitution.

7. In the latest pronouncement the Hon'ble Supreme Court with regard to the question of not availing the alternate remedy, emphasised in the case of Mir Zaman v. Mst. Sheds 2000 SCMR 1699 upon first availing the remedy available to the parties. In the cited case the party did not avail the remedy of appeal/revision available to him under the law and invokes extraordinary jurisdiction of the High Court, therefore, it was observed that it rendered the Constitutional petition incompetent and not maintainable.

8. Even if it is assumed that the order passed by the Wafaqi Mohtasib (Acting Ombudsman) was coram non judice and ultra vires, in view of the observations made in National Bank of Pakistan Karachi v. Wafaqi Mohtasib (Ombudsman) PLD 1992 Karachi 339, the subject-matter was such that it fell within the exclusive jurisdiction of the Services Tribunal and this Court may not entertain such matter. The principle laid down in the case Asadullah Rashid v. Muhammad Muneer 1998 SCMR 2129 may be quoted with advantage on this point.

9. Reference was also made to the decision of a Division Bench of this Court in C.P. No.D-504 of 1998, wherein it was held that this Court could exercise its jurisdiction to review the order of Wafaqi Mohtasib (Ombudsman) inter alia on the ground of lack of jurisdiction on the part of Wafaqi Mohtasib (Ombudsman). It would be significant to point out here that in the said case, the aggrieved party had already made representation to the President of Pakistan against the order of Wafaqi Mohtasib (Ombudsman). Notwithstanding the observations of this Court in the afore?mentioned judgment the distinguishing feature that emerges presently is that the petitioners have not at all preferred to avail the appellate remedy under Article 32 of the Order. More precise arid specific pronouncement on the issue in question was made by Hon'ble Supreme Court in Water and Power Development Authority v. Commissioner, Hazara Division 1992 SCMR 2102 wherein the order of High Court that the order of Wafaqi Mohtasib (Ombudsman) was not to be interfered with in view of adequate remedy available under Article 32. of the Order was upheld and the petition was dismissed.

10. Upon thorough examination of the ambient circumstances and the legal position, we are inclined to hold that in the instant case the order of Wafaqi Mohtasib (Ombudsman) even if coram non judice and without jurisdiction we would restrain ourselves from interfering with the same for the simple reason that there is alternate remedy available to the petitioners against the impugned order by way of making representation to President under Article 32 of the Order. On merits the matter substantially relates to terms and conditions of service falling within the exclusive jurisdiction of Services Tribunal and on that score if the Ombudsman has no jurisdiction, the jurisdiction of High Court is equally taken away by Article 212 of the Constitution. This petition as such is misconceived and not competent. By consent of the parties the matter was heard for the purpose of final disposal at Katcha Peshi stage and it is hereby disposed of in above terms. The petition stands dismissed. Q.M.H/P-22/K??????????????????????????????????????????????????????????????????????????????????? Petition dismissed.