2001 PLP (C (PLC(CS))

GHULAM RABBANI, J.

The facts which lead to the filing of this Constitutional petition are that by way of notification, dated 28th February, 1993 issued by the Ministry of Defence (Aviation Division) Government of Pakistan, the employees of Airport Development Agency (Pvt.) Company, now liquidated, were merged with the Civil Aviation Authority. The respondents Nos.2 and 3, who are widows of such employees, respondent Nos.4 and 5, who were themselves employees of Airport Development Agency approached Wafaqi Mohtasib (Ombudsman) asking for directions to Civil Aviation Authority to pay to them pensionary benefits as, according to them, they are entitled to the same, in view of Government of Pakistan Letter No.7-1/95/12 ADA, dated 20-6-1995 where under 122 Ex-ADA employees were merged with Civil Aviation Authority and allowed the pension. Their complaints so made were allowed by ' way of different orders passed on 26-12-1996, 30-1-1997, 3-4-1997 and 30-4-1997 and the Civil Aviation Authority was directed to grant pensionary benefits to the complainants. These orders were challenged by the Civil Aviation Authority by way of representation submitted to the President of Pakistan which were rejected. In the abovementioned perspective of the matter, the orders of learned Wafaqi Mohtasib (Ombudsman) have been challenged through this Constitutional petition.

2. Mr. Abdul Qadir Siddiqui, learned counsel for the petitioner at the outset challenged the jurisdiction of Wafaqi Mohtasib and contended that he had no power to issue the impugned directives. He drew our attention to a notification dated 13-8-1984 purporting to have been issued by COS to the President and CMLA to the effect that the President of Pakistan- in exercise of his powers conferred by Article 32 of the Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, in order to remove all doubts, ordered that the ouster of the, jurisdiction contained in paragraph (c) of proviso to clause (1) of Article 9 of the aforesaid order is absolute with respect to the matters relating to the Defence Division, Defence Production Division and the Military, Naval or Air Force of Pakistan and any department, body, authority or organisation directly or indirectly under the management or control of, or in any manner connected with, either of the division or the said force. Mr. Siddiqui also referred to a Notification, dated 19th November, 1996 issued by Cabinet Division, Government of Pakistan to contend that the department of Civil Aviation in Pakistan is an organ of Defence Division. He argued that in view of ouster of the jurisdiction vide aforementioned notifications: Wafaqi Mohtasib had no authority to entertain and adjudicate upon the complaints made. by the respondent Nos.2 to 5, therefore, the, impugned orders have been passed without any authority and have no legal force. While referring to subsection (2) of section 9 of the order (ibid), learned counsel further argued that there is a bar to the acceptance or investigation by Wafaqi Mohtasib of any complaint of a public servant relating to the agency in which he is or has been working in respect of any personal grievance relating to his service therein. He urged that the petitioner, Civil Aviation Authority, is, therefore, not bound to act on the directive issued by the Wafaqi Mohtasib (Ombudsman) in the said orders.

3. Apart from the above, Mr. Siddiqui, dwelt on the point of jurisdiction of this Court to review the orders passed by Wafaqi Mohtasib (Ombudsman). He submitted that this Court has inherent powers to invoke Constitutional jurisdiction where an action or order on the face of it appears to- suffer for want of jurisdiction. He placed reliance on a case of International Cargo Handling Company (Pvt.) Ltd. v. Port Kassim Authority through Secretary, Bin Kassim Authority (PLD 1992 Karachi 65) and Pakistan International Airlines Corporation v. Wafaqi Mohtasib and others (1998 SCMR 841).

4. Having dealt with the jurisdictional points,- as above, Mr. Siddiqui informed us that the respondent No.2 Sultana has been paid a sum of Rs.1,88,000 as Group Insurance; also, an amount of Rs.1,629 per month is being paid to her - till her death or remarriage from benevolent fund. Respondent No.3 Mst. Rehana has been paid gratuity of Rs.42,063, Group Insurance. of Rs.1,25,000 and an amount of Rs.1,320 per month is being paid to her till her death or remarriage. Besides she has been inducted into employment of the petitioners on contract basis initially for two years which stands extended for further period of two years. Similarly, respondent No.4 has also been paid gratuity of Rs.44,833.

5. On the other hand, Mr. Arshad Tayyab Ally learned counsel for the respondent No.2 argued that the Wafaqi Mohtasib has issued impugned directives -treating the cause of the complainants as an act of administrative excesses on the part of the petitioner in discharge of its function. According to him, the respondent No. 1, Wafaqi Mohtasib has made a real effort to do justice to the complainants. He urged that learned Wafaqi Mohtasib decided the complaints of respondents on merits giving findings of facts which, even when, are found to be erroneous, this Court shall not ordinarily embark on to examine and review the orders passed by him. He placed reliance on the case of Almas Khanum v. Federation of Pakistan and others (1994 MLD 6) and Malik Azam .fan v. Habib Bank Ltd. Karachi and 3 others-(1995 CLC 234). He, however, acknowledged that the provisions of sub-Article (2) of Article 9 of the order ibid may create some difficulties for the private respondents. He also, admitted that the respondent No.2 has been inducted in service but her services are purely on contract basis which may be terminated any time.

6. We have considered the arguments of both the learned counsel. Before we consider that the impugned orders passed by learned Wafaqi Mohtasib (Ombudsman) warrant interference, we wish to deal with the objection of learned counsel for the respondent No.2 regarding point of jurisdiction of this Court to, review the impugned orders. He has referred to cases of Almas Khanum and Malik Azam Jan (supra). In the first mentioned case, selection of the petitioner therein as Headmistress of a school in Jeddah was declared null and void by the Wafaqi Mohtasib which was challenged by her in a writ petition. However, on an objection challenging the jurisdiction of Wafaqi Mohtasib it was observed that learned Wafaqi Mohtasib having found the selection of the petitioner not made on the basis of merits, competently took cognizance of the matter and in exercise of his jurisdiction passed the order which did not suffer from error so also it was observed that jurisdiction of the Wafaqi Mohtasib was not ousted in the matter. The petition was accordingly dismissed. It, therefore, appears that the circumstances in the referred case are quite distinguishable and it is of no assistance to learned counsel for the, respondent, In another case of Malik Azam Jan it has been observed that there could not be much dispute that in case of mala fide, void, coram non judice order remedy in judicial review was available for correction of the error, howsoever, high functionary who made the order may be, none was above the law of the land and that Wafaqi Mohtasib and President of Pakistan were not exception to this statement of law. Apart, from this, the circumstances in this case are also different. This case in view of above also does not seem to be of any help to the respondent. As against this, in case of Pakistan International Airlines Corporation (supra) referred to by learned counsel for the petitioner, it has been held that, now it is well-established that any order passed by Mohtasib can be interfered with under Article 199 of the Constitution if it suffers from the lack of jurisdiction. Also in case of International Cargo Handling Company (Pvt.) Ltd. (supra) similar view has been taken and it has been observed that a bare reading of section 29 of Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 (P.O. No. l of 1983), leaves no doubt that the jurisdiction of the Court is barred, inter alia, in respect of any action taken or order made including order of injunction or stay, by the Mohtasib; but, where the order on the face of it is repugnant to law under which it was made or suffers from want of jurisdiction, a Court may invoke its inherent jurisdiction vested in it under law so as to prevent injustice being done to any aggrieved person. In view of the aforementioned, we hold that this Court can exercise its jurisdiction to review the order of Wafaqi Mohtasib, inter alia, on the ground of lack of jurisdiction on the part of Wafaqi, Mohtasib.

7. Coming to the point of jurisdiction of Wafaqi Mohtasib (Ombudsman) whether he enjoined powers to entertain, investigate and adjudicate upon the complaints of the private respondents, it is noted in the first place that there is a barring provision in sub-clause (2) of Article 9 of the President Order No: l of 1983, For the sake of facility it is reproduced below:-- "(2) Notwithstanding anything contained in clause (1), the Mohtasib shall not accept for investigation any complaint by or on behalf of a public servant or functionary concerning any matter relating to the agency in which he is, or has been working in respect of any personal grievance relating to his service therein." It is an admitted position that the respondents Nos.2 and 3 are widows of former employees of the Civil Aviation Authority and claim benefits derivable from them and the respondents Nos.4 and 5 themselves were employees of the said authority. The complaints taken by them before the learned Wafaqi Mohtasib (.Ombudsman) related to pensionary benefits. A bare reading of the above provision of law reveals that there is an embargo on the exercise of the jurisdiction of Wafaqi Mohtasib not to accept for investigation any complaint by or on behalf of a public servant or functionary concerning any matter relating to the agency in which he has been working in respect of any personal grievance relating to his service therein. Admittedly, the husbands of the respondents Nos.2 and 3 so also respondents Nos.4 and 5 have been working in the employment of petitioner, Civil Aviation Authority which is an agency within terms of section 2(l) of the President Order 1 of 1983. The grievance of respondents Nos.2 to 5 relates to pensionary benefits, which arise as a matter of service in the agency. Therefore, it is abundantly clear that in view of the embargo referred above, learned Wafaqi Mohtasib (Ombudsman) did not enjoy any power to accept, investigate and adjudicate upon the matter involved in the complaints of the said respondents.

8. With profound respects, however, we do not feel ourself inclined to share the views of Mr. Siddiqui that the jurisdiction of the Mohtasib was totally excluded in respect of all matter relating to the petitioner in terms of notification, dated 13-8-1996 of the Chief Martial Law Administrator's Secretariat. Para. 9(1)(c) of the order clearly provides that the jurisdiction of the Mohtasib will not extend to the matters relating to or connected with:-- (i) The defence of Pakistan or any part whereof; (ii) The Military, Naval and Air Force of Pakistan; or (iii) Matters covered by the laws relating to such Forces.

9. Admittedly the petitioner is a statutory body established under the Civil Aviation, Ordinance, 1982 to provide for promotion and regulation of Civil Aviation activities and to develop an infra structure for safe, efficient, adequate economical and properly coordinate Civil air transport service in Pakistan as is evident from preamble of the Ordinance. Ex-facie, its function does not relate to the defence of Pakistan or the Military, Naval or Air Force of the country. Moreover, the Pakistan Army Act, 1952 as well as similar statute relating to Naval and Air Force clearly specify matters covered by. the statute and describe persons who are subject to them. The petitioner or its employees are not covered by any, of such statute.

10. Interpretation of the scope of a legal provision, is the exclusive function of Courts of law and there appears to be no provision in the order enabling the President or any other person to enlarge or abridge the scope of the Order, under an assumed jurisdiction to remove doubts. Indeed Article 31(3) does enable the President to exclude specified matters, public functionary or agencies from the operation or purview of the provision of the order. The word 'specified', however, is significant and in case there was any intention to exclude the petitioner from the purview of the Order, a notification under Article 31(3) could be conveniently made as was done in the case of Federally Administered Tribal Areas under a notification issued on the same date. In the circumstances, we are clearly of the opinion that the petitioner could not claim immunity from the jurisdiction of the Mohtasib on the basis of a general order passed under an assumed jurisdiction to remove doubts under Article 32 of the Order.

11. Mr. Abdul Qadir Siddiqui learned counsel for the petitioner argued that reference of Article 32 was a clerical error and the notification had in fact been issued under the powers available to the President under Article 38 of the Order: Indeed, Article 38 empowers the President, when a difficulty arises in giving effect to the provision of the Order to make an order not inconsistent with the provision of the Order as may appear necessary for the purpose of removing such difficulty. To justify the validity of an Order passed under Article 38 also it was necessary for the petitioner to show that a genuine difficulty had arisen in giving effect to the provision of the Order. Indeed the provision of the Order could not be changed under the purported exercise of the power to remove difficulties. It may be recalled that in the exercise of similar power under the 19.62 Constitution the President had passed an order enabling Ministers to retain their seats in the respective Houses of Legislature. The Hon'ble, Supreme Court in the celebrated judgment of Fazalul Qadir Chaudhry v. Muhammad Abdul Haq (PLD.1963. SC 486) held the President's Order to be ultra vires his power on the ground that the President could not alter the. Constitution a provision thereof had become entirely unworkable. Respectfully, following the law declared by the Hon'ble Supreme Court, we are of the considered view that the jurisdiction of the Mohtasib could not be excluded through an order passed under Article 38 of the Order.

12. We had pointed out to Mr. Siddiqui learned counsel for the petitioner that it was well--settled that even an order without jurisdiction may not necessarily be set aside if the dictates of substantial justice required otherwise. Learned counsel has taken pains to place relevant material and point out that despite being under no apparent obligation to do so; the petitioners have paid substantial amount to respondents Nos.2 to 4, granted them pension and even appointed one of them on contract. Of course, it is apparent that respondent No.5 who is said to have a small period of service i.e. three years nine months and twenty days, has not been granted any pensionary benefit. In the circumstances, we are of the view that the petitioners conduct has not been inequitable though we have not been able to determine the entitlement, if any, of each respondents, we would, therefore, allow- this petition and set aside the impugned order, however, the respondents Nos.2 to 5 are at liberty to have their grievance, if any, redressed by an authority, or tribunal in accordance with law. This petition was heard for final disposal with the consent of learned counsel for the parties and is disposed of in the above terms. Q.M.H./M.A.K./C-24/K Petition allowed.