1996 PLP (C (PLC(CS))

(i) a decision, process, recommendation, act or omission or commission which: (a) is contrary to law, rules or regulations or 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 refusal to do so, for corrupt or improper motives, such as, bribery, jobbery, favouritism, nepotism and administrative excess; and (ii) neglect, inattention delay, incompetence. inefficiency and inaptitude, in the administration or discharge of duties and responsibilities." It is evident that the case of respondent No. 1 who is alleged to have manoeuvred his appointment as teacher on the basis of forged matriculation certificate does not fall within the purview of 'maladministration'. The word 'maladministration' implies the exercise of jurisdiction by an agency or its employee contrary to law or in a manner which falls within the eventualities enumerated under section 3 of the Act. However, there is provision in the Act that even' if a case for a public servant does not fall within the ambit of 'maladministration', the Ombudsman can recommend to the appropriate authority for taking disciplinary action Against him if he has reason to believe that such public servant or other functionary has acted in' a manner which warrants criminal or disciplinary proceedings against such person. Subsection (6) of section 14 of the Act which would govern the case of the appellant is reproduced as under:‑‑ (1) ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . . ... ... .. ... ... (2) ... .... ... ... .... ... ... .... ... .... ... .... ... ... ... .... ... ... ... ... ... (3) ... ... .... ... ... .... ... ... ... ... .... ... ... ... ... ... ... ... ...... ... ... (4) ... ... .... ... ... ... ... ... ... ... ... ... .... ... ... ... ... ... .... ..... ... (5) ... ... ... .... .... .... ... ... ... .... ... ... ... ... ... ... ... ... ....... ... (6) If the Mohtasib has reason to believe that any public servant or other functionary has acted in a manner warranting criminal or disciplinary proceedings against him, he may refer the matter to the appropriate authority for necessary action to be taken within the time specified by the Mohtasib. (7) ... ... ... ... ... ... ... ... .... .:. ... ... ... ... ... ... ... ... ... .. ... . It may be stated that the matter is further elucidated by section Y3 of the Act which stipulates that if the Ombudsman is satisfied that a case falls within the purview of section 9(1) of the Act, the Mohtasib may refer the case to the concerned authority for appropriate disciplinary action or corrective measures. For convenience, section 13 of the Act is reproduced as under:-‑ "

13. Reference by Mohtasib.‑‑Where during or after an inspection or an investigation the Mohtasib is satisfied that any person is guilty of any allegations as referred to in subsection (1) of section 9, the Mohtasib may refer the case to the concerned authority for appropriate corrective or disciplinary action, or both corrective and disciplinary action, and the said authority shall inform the Mohtasib within thirty days of receipt of reference of the action taken. If no information is received within this period the Mohtasib may bring the matter to the notice of the President for such action as he may deem fit." The combined reading of sections 13 and 14(6) referred to above reveals that in case of ' maladministration' it is necessary that before making any reference the Ombudsman must be satisfied that a person is guilty of an allegation as stipulated under section 9(1) of the Act, whereas subsection (6) of section 14 envisages that the Mohtasib can make reference if he has reason to believe, that a public servant has acted in a manner which warrants criminal or disciplinary proceedings against him. It needs not be further emphasized that for the purpose of section 13, the Mohtasib must be satisfied but in case of subsection (6) of section 14, he need not be 'satisfied' he may refer the matter to the appropriate authority for proper action if he merely has reason to believe, that the concerned public servant acted in a manner which warrants criminal or disciplinary proceedings against him. In the instant case as has been indicated above the Mohtasib has only recommended that Muhammad Akram, respondent No. 1 might be proceeded under Efficiency and Discipline Rules: Obviously no adverse finding has been given against the respondent by the Ombudsman. He has only referred the matter to the authorities concerned for proceeding under the Efficiency and Discipline Rules. Thus mere recommendation by the Ombudsman for appropriate proceedings against the respondent under Disciplinary Rules is not tantamount to an adverse finding against the respondent which entitles him to have an opportunity of hearing. The Ombudsman is competent to make such a reference under law as has been indicated above and it is not necessary to afford an opportunity of hearing at reference stage opportunity of hearing is amply afforded in regular inquiry held under the relevant law. Needless to say that even otherwise the disciplinary action against a civil servant under Efficiency and Discipline Rules can be initiated by the authority concerned on an information or suo motu. Thus, a public servant has no right to insist that inquiry under the aforesaid Rules cannot be initiated without giving him an opportunity of hearing. The question as to whether the concerned public servant is guilty of committing an act or omission calling for disciplinary action is to be decided after the inquiry and not at the stage of the initiation of the proceedings. Thus, it cannot be said that as the respondent way not heard by the Ombudsman before passing the impugned order the respondent was condemned unheard because only a disciplinary action has been recommended against the respondent which is not synonymous with the verdict of being guilty. The next point which was made the basis for acceptance of the writ petition is that the proceedings against the respondent were ‑not taken on the application of an aggrieved person. It may be stated that even if it is assumed that the case of the appellant falls within the ambit of ' maladministration' as defined under the Act the fact remains that the Ombudsman can take action either on the application of an aggrieved person or on his own motion. Consequently the impugned order would not be rendered illegal merely because the appellant herein was not an aggrieved person. Besides it has already been pointed out that action in the instant case against the respondent has not been taken under section 9 of the Act rather his case falls under section 14 (6) of the Act as indicated earlier. At the most it can be said that while investigating against the concerned agency the Ombudsman felt that there were reasonable grounds to believe that respondent No. 1 had acted in a manner which calls for disciplinary proceedings against him. The matter may be looked at from another angle. If the application by the appellant would have been made only against Muhammad Akram, respondent alleging that he had manoeuvred his appointment, as teacher on, forged document, the Ombudsman had no jurisdiction to probe into the matter because that would not constitute ' maladministration' by the respondent, rather it would have been a case of disciplinary or criminal action against him. The jurisdiction was assumed by the Ombudsman in the instant case because there was also allegation that Muhammad Akram, respondent was re‑instated by the agency concerned or its employee without holding an inquiry despite the fact that he had committed forgery. It is during the investigation of the aforesaid allegation that the Ombudsman acted under section 14(6) and made recommendations against the respondent No.

1. In the light of what has been stated above, we accept the appeal, set aside the impugned judgment of the High Court and direct it to rehear the arguments and dispose of the writ petition after considering the points which were left undecided. In view of the circumstances of the case we make no order as to the costs. A.A./101/SC(AJ&K) Appeal accepted.