1996 PLP 2002 (MLD)

9. As stated above, the perusal of the orders of Ombudsman reveals that the orders against the petitioners have been passed directing the agencies to terminate their services, without the petitioners being impleaded as a party in the cases and without a notice to them. The factual position is admitted that the learned Ombudsman has given the directions adversely affecting the rights of the petitioners without hearing them, and thus, the petitioners have been condemned A unheard. The celebrated principles of natural justice that nobody can be condemned unheard is grossly violated while passing the impugned orders. There is plethora of case‑law on the point that nobody can be condemned unheard and an order passed against the interest of a person without hearing him is without lawful authority. This Court in Writ Petition No. 15/93 captioned as "Iftikhar Ahmed Khan and others v. Mohtasib and others", decided on July 14, 1993, under the similar circumstances has held as follows: "The contention of the learned counsel for the petitioner that the learned Ombudsman has passed the order without a notice to the petitioners and without affording them an opportunity of being heard, thus the order being against the rules of natural justice is without jurisdiction, also carries weight. The Ombudsman, no doubt, has the jurisdiction to see and ensure that the agencies of the Government act in accordance with law and rules and any gross departure from rules and established practice has to be declared as a maladministration. This is a sacred power and at the same time a bounded duty entrusted to the dignatory of the State. But this power is subject to his overall duty of acting in accordance with rules and regulations based on principles of natural justice. The Ombudsman has to restrain himself when the action or order of a Government agency, though irregular, creates a valuable right in favour of a third party. In such‑like cases, the Ombudsman has to comply with the rules of natural justice, if he is empowered to open such cases. In the instant case, if the Ombudsman was not apprised of the initial order and was misled by a report of the agency, but the fact should have still remained in his notice that the appointment against the posts had created a right in the petitioners. They could not have been condemned unheard. The principle of natural justice, that is the right of being heard before passing any order against a person, is to be read in every statute and has to be followed in every action by the authority vested with the powers to pass an order. Reference may be made to PLD 1982 SC (AJ&K) 124 and PLD 1977 Azad J&K

1. The principle of law as laid down in "Rafique Akhtar Ch. v. Azad Government and others" PLD 1982 SC (AJ&K) 124 may be reproduced here: 'Before dealing with the merits of the arguments advanced, we deem it proper to determine as to how want of show‑cause notice affects an order. There is no denying of the fact that natural justice generally demands that before any action is taken in taking away a right which had come to reside in a person, show‑cause notice is a must. Therefore, where an order in respect of a vested right to the prejudice of a party is made without affording him an opportunity to explain his position the order being bad in law is to be ignored and struck down. This principle which is known as ' audi alteram partem' i.e. a person cannot be condemned unheard, is a time honoured principle and has deep roots in our judicial system. The requirement of the principle, however, must depend on the circumstances of each case'. "

10. The Karachi High Court in the case reported as "International Cargo Handling Company (Pvt.) Limited v. Port Bin Qasim Authority" PLD 1992 Kar. 65 when faced with a similar proposition has held: "I have carefully examined the legal position as. is necessary for the purpose of deciding this injunction application. It is an admitted position duly verified by Mr. Shaukat Kamal, learned counsel for the defendant that the plaintiff‑company was neither a party before the learned Mohtasib nor any show‑cause notice was issued to it before the order was passed by him cancelling its pre-qualification as cargo handling agents and debarring it from acting in that capacity till October, 1992. A bare reading of section 29 of the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order of 1983 (P.O. No. 1 of 1983) leaves no doubt that the jurisdiction of Courts 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 from the fact 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 an aggrieved person. It is a universally accepted and foremost principle of administration of justice that no person shall be condemned unheard, audi alteram partem. Section 9(1) defines the persons who may lodge a complaint against an agency, its Officers or employees before the Mohtasib and includes among others an individual and at the same time restricts the complaint against the agency, its officers or employees. In other words the jurisdiction of the Mohtasib is restricted by section 9(1) and cannot be extended further. " Similarly in "Zaheer Ahmed and another v. The Inspector‑General of Police and another" (PLD 1994 Azad J&K 16), it is held as follows: "The learned counsel for the petitioners has rightly argued that Mohtasib has not followed the procedure as he has condemned the petitioners at their back on the basis of the report of some police agency which was contrary to the true facts. This is so as complainant Muhammad Moazzam Khan had admitted before the Mohtasib that he has also appeared in test and interview, which was conducted for inducting suitable person as Assistant Sub‑Inspector of Police in Police Department. The principle of audi alteram partem is supposed to be implied in every statute even where the statute does not provide a right of audience unless its application is excluded through express provisions. Under the Act, a person facing accusations cart appear personally or through a duly authorized representative before the Mohtasib to defend the accusation. In the present case, the Mohtasib had at no stage, issued any show‑cause notice to the petitioners: In my opinion, the learned Mohtasib failed in his duty as he conducted no inquiry in the matter. Thus the impugned order was passed by Mohtasib in an illegal exercise of jurisdiction. Unfortunately while implementing the order of Ombudsman, dated 8th November 1992, respondent No. l also offered no opportunity to the petitioners to explain their position. Thus the order passed by respondent No. 1 on 3rd of February; 1993 is also bad in law. Because it is settled proposition of law that if basic order is bad, all subsequent orders passed on the basis of 'that order; are also bad in law and are liable to be struck down."

11. The Supreme Court of Azad Jammu and Kashmir in the case reported as "Abid Hussain Jafri and others v. Azad Government and others" 1993 SCR 105 has held as follows:‑‑‑ "It is well‑settled principle of law that any order which is 'violative of the principle of ' audi alteram partem' would be deemed to be a nullity in the eyes of law. The appointments of the respondents could not be annulled without affording an opportunity of hearing to them; nobody can be condemned unheard. "

12. The Supreme Court of Azad Jammu and Kashmir in another case reported as "Azad Jammu and Kashmir Government through Chief Secretary, Muzaffarabad and others v. Muhammad Younas Tahir, Advocate, Mirpur and others" 1994 CLC 2339 has held that a "specific order in respect of a person cannot be passed unless he is arrayed as a respondent and is given a proper hearing".

13. As stated above, the orders impugned before the Court through the above‑captioned writ petitions having been, passed against the petitioners without hearing them, are, on the face of it, without lawful authority.

14. The other argument advanced at Bar on behalf of the petitioners that the orders passed by the Ombudsman relate to the service matter for which his jurisdiction stands ousted under section 9(2) of the Establishment of the Office _Qf Mohtasib (Ombudsman) Act, 1992. Relevant section is as follows: 9 (2) Notwithstanding anything contained in subsection (1) the Mohtasib tic 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." .

5. The complainants before the Ombudsman admittedly were not the public servants but State Subjects complaining against different agencies of the Government for violating the rules and thus acting in the manner which amount to maladministration. It is within the power of the Mohtasib to entertain the grievance against the agency of the Government where the maladministration is alleged against the agency of the Government. But where the grievance cannot be resolved without resolving the right of a third person who is likely to be affected, by the order of Mohtasib, the Mohtasib cannot pass such an order unless" that person is not personally heard. However, when such an authority or person is riot an agency of the Government as the petitioners in the instant case, who are affected by the orders of Mohtasib, the prima facie reading of the Ombudsman Act reveals that such a grievance cannot be entertained by the Ombudsman and the proper course for the complainant in such a case is to approach to (he Court of law. The jurisdiction of the Mohtasib is restricted to 8 have a check upon the agencies, not to adjudicate upon and enter into the conflicts effecting civil rights of the citizens inter se. The word "agency" is defined‑ it! section 2(l) of the Mohtasib (Ombudsman) Act as under: Agency' means a Secretariate Department, Attached Department, Commission or Office of the Government or a statutory corporation or other institution established or controlled by the Government but does not include the Supreme Court, the Supreme Court Judicial Council, the Shariat Court, High Court, Service Tribunal, any Court or a Judicial Tribunal.

16. The learned Ombudsman may enter into the arena even where a non agency is involved if the agency has not yet acted upon its orders complained as maladministration. But once the orders have taken the practical shape conferring rights upon the State Subjects, the jurisdiction of the Mohtasib stands ousted as it becomes matter of civil rights (civil dispute if anybody is aggrieved), not within the competence of the Ombudsman. Thus, the contention that the matter relates to the terms and conditions of civil servant cannot be accepted in the instant case as the complaint was made by persons not public servants and with respect to the non‑observance of the rules by the agency. But as the alleged non observance having culminated into an order conferring rights upon a third person, its justiciability stands ousted from the jurisdiction of the Mohtasib in spite of complainants not being public servants.

17. The argument of the learned counsel for the respondents that the jurisdiction of the High Court stands ousted in the service matters in view of section 47 of the Interim Constitution Act, 1974 can also not be accepted for the reasons stated above and for the reason that the Mohtasib is not a Departmental Authority as defined in the Civil Servants or Service Tribunal Act. When an order is passed by the Mohtasib affecting the terms and conditions of civil servants, it cannot be excluded from the jurisdiction of this Court simply for the reason that the matter relates to the terms and conditions of the civil servant. It is only the order passed by a Departmental Authority which ordinarily excludes the jurisdiction of this Court, not an order passed by an authority not concerned with any of the terms and conditions of civil servants. The Mohtasib's jurisdiction is limited to the investigation and looking into the maladministration on the part of any agency or any of its officers or employees.

18. Argument of the learned counsel for respondents that the validity of the orders passed by the Mohtasib is beyond the jurisdiction of the Court in view of section 29 is without any force. Relevant section 29 is reproduced as follows: "

29. Bar of Jurisdiction. ‑‑‑No Court or other authority shall have jurisdiction:‑‑‑ (1) to question the validity of any action taken, or intended to be taken, or order made, or anything done or purporting to have been taken, made or done under this Act; or (2) to grant an injunction or stay or to make any interim order in relation to any proceedings before, or anything done or intended to be done or purporting to have been done by, or under the orders or at the instance of the Mohtasib.

19. A perusal of the section reveals that only those orders of the Ombudsman which are passed in consonance with and in exercise of powers vested under the Act, are valid. The moment Ombudsman travels beyond powers vested in him under the Act, these are open to challenge before the High Court. It is held in the case reported as "Zaheer Ahmed and another v The Inspector‑General of Police and another" PLD 1994 Azad J&K 16 as follows: "I agree with the learned Advocate‑General that if the order has been passed by any authority having exclusive jurisdiction, in accordance with law, then the bar contained in the relevant enactment, shall positively exclude the jurisdiction of all the Courts, including the High Court, if so is laid down in the relevant Act. But at the same time, it cannot be brushed aside from mind that if the jurisdiction has been exercised by an authority having exclusive jurisdiction in the matter, in an arbitrary, unguided or colourful manner, then the jurisdiction available to this Court under the Azad Jammu and Kashmir Interim Constitution Act, 1974, can be invoked by an aggrieved party. Because any tribunal or authority having exclusive jurisdiction has got no right to overstep its limits or bypass clear provisions which it is required to follow in exercise of its jurisdiction." Similar is held in the case reported as "Muhammad Aslam Khan v: Government of Pakistan" PLD 1993 Kar. 41 as follows: "The barring provisions contained by Article 29 of the Ombudsman's Order would apply, if the Wafaqi Mohtasib's order is within the four corners of the law defining his jurisdiction. If there is any lack of jurisdiction the provisions contained in Article 199 of the Constitution of Pakistan would be attracted. In the case of International Cargo Handling Company (Pvt.) Limited PLD 1992 Kar. 65 the view taken was that where the order passed by Wafaqi Mohtasib on the fact 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 an aggrieved person. It was also observed that jurisdiction of the Mohtasib is restricted by section 9(1) and cannot be extended further. In the case of National Bank of Pakistan PLD 1992 Kar. 339 the view taken was that when assumption of jurisdiction if clearly based upon misreading of the provisions of law, it is, and has always been a valid ground for interference in writ jurisdiction. "

20. Under the circumstances, the Ombudsman at the most can recommend to the concerned agency to consider the case in the light of the rules and law if he is of the opinion that the agency has travelled beyond the rules, but it cannot recommend the termination of service of the petitioners. It is held in the same authority i.e. PLD 1993 Kar. 41 as follows: "There is force in the contention raised on behalf of the petitioner that in the light of the provisions in sub‑Article (1) of Article 11 of Ombudsman's Order, the Wafaqi Mohtasib after having considered a matter and after having formed an opinion that the matter considered y amounted to maladministration could move the concerned Agency while communicating his findings, for taking disciplinary action against any public servant of that Agency under the relevant laws applicable to him, but he could not have recommended that appointment of a public servant be terminated after observing usual formalities under the relevant rules. The maximum that the Wafaqi Mohtasib can do is, to move concerned Agency to take disciplinary action against a public servant under the rules applicable to such public servant. There is nothing in Article 11 of Ombudsman's Order, to entitle Wafaqi Mohtasib to recommend termination of services of a public servant."

21. In the light of what has been stated above, accepting the writ petitions the orders passed by the Mohtasib are declared as without lawful authority and of no legal effect and orders passed on the basis of Mohtasib's orders are also declared as without lawful authority. A.A./107/AJ&K Petition accepted.