2002 PLP 958 (SCMR)

2. The Review Board shall comprise the following:‑‑ Chairman (1) Chairman, National Industrial Relations Commission. Members (2) Syed Rizwan Hussain, Central Labour Advisor, Labour Division (3) A representative of the Administrative Ministry responsible for the administration of the establishment to which the employee belongs.

3. The Review Board shall take up review of cases after inviting applications from the affected persons and make its recommendations after examining the available record and affording to the applicants an opportunity of being heard. Any employee of an industrial or commercial establishment referred to in the first paragraph of this notification who was removed or dismissed from employment under a Martial Law Regulation or as a result of conviction by a Summary Military Court or otherwise purely on political grounds, as the case may be, submit a review petition to Review Board by the 31st May, 1989. The National Industrial Relations Commission shall be responsible for all administrative and financial matters relating to the Review Board. (Sd.) FAZAL KARIM KHAN, Deputy Secretary." The perusal of notification would show that the cases of removal/dismissal from service other than the categories mentioned therein, would be dealt with under the said notification and Review Board was not competent to exercise its power except in the cases referred therein and consequently, the recommendations made by the Review Board for reinstatement of the respondent in service, being out of the purview of the notification in question, would neither be binding upon the Bank nor have any legal consequence. The respondent having moved a representation to the Review Board in 1990 i.e. after about 11 years of his dismissal from service succeeded in getting favourable recommendations for reinstatement in service on 31‑7‑1990 and later on the basis of same, filed the writ petition in the Peshawar High Court on 24‑3‑1997 wherein he sought direction for the implementation of the said recommendations of Review Board. The writ petition was allowed vide impugned judgment dated 5‑3‑1998 when the Constitutional Petition No. D/3546/1993 on the same subject filed by the appellants before the High Court of Sindh was still pending which was later allowed vide judgment dated 18‑11‑1998 with the following observations:‑‑ "From the above it will be clear that the petitioner is a Bank which was originally nationalized but was privatized in the year 1992. The case against a private bank or for that matter any private agency cannot be looked into by the respondent No.1 . Since the matter pertains to the reinstatement of the respondent No.2 who was dismissed from service by the petitioner therefore, the decision of the Hon'ble Supreme Court where they have held that in matters of personal service the respondent No. 1 has no jurisdiction, is binding. The very recent authority is the case of Pakistan International Air Lines Corporation v. Wafaqi Mohtasib and others reported in 1998 SCMR at page

481. In this case even though P.I.A. was an agency but as the matter pertained to the service of the respondent No.2 therefore, it was held that the Wafaqi Mohtasib has no jurisdiction to try the case. They have set aside the decision of the High Court and allowed the appeal. Based upon the above, the petition was allowed by a short order dated 18‑11‑1998." The above judgment of the High Court of Sindh attained finality for want of challenge either through an intra‑Court appeal or a petition before ID this Court. The question regarding the jurisdiction of Ombudsman in the matters relating to the 'terms and conditions of employees of financial. institutions controlled by the Government was discussed in detail in the above judgment in the light of case‑law and it was held that Wafaqi Mohtasib had no jurisdiction to interfere in the matter. Having examined the provisions of Article 9 of the "Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983), (P.O.No.1 of 1983)" we find no exception to the view taken by the High Court of Sindh in the abovesaid judgment. Article 9 of P.O. No.l of 1983 is read as under:‑‑ '

9. Jurisdiction, functions and powers of the Mohtasib.‑‑(1) The Mohtasib may on a complaint by an aggrieved person, or a reference by the President, the Federal Council or the National Assembly, as the case may be, or on a motion of the Supreme Court or a High Court made during, the course of any proceedings before it or of his own motion, undertake any investigation into any allegation of maladministration on the part of any Agency or any of its officers or employees: Provided that the Mohtasib shall not have any jurisdiction to investigate or inquire into any matters which‑‑ (a) are sub judice before a Court of competent jurisdiction or Judicial Tribunal or Board in Pakistan on the date of the receipt of a complaint, reference or motion by him; or (b) relate to the external affairs of Pakistan or the relations or dealings of Pakistan with any foreign State or Government; or (c) relate to, or are connected with, the defence of Pakistan or any part thereof, the military, naval and air forces of Pakistan, or the matters covered by the laws relating to those forces. (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 o the Agency in which he is. or has been. working in respect of any personal grievance relating to his service therein. (3) For carrying out the objectives of this Order and, in particular for ascertaining the root causes of corrupt practices and injustice, the Mohtasib may arrange for studies to be made or research to be conducted and may recommend appropriate steps for their eradication. (4) The Mohtasib may set up regional offices as, when and where required.", (The underlining is by us to provide emphasis). The respondent invoked the Constitutional jurisdiction of the High Court of Peshawar for the implementation of recommendations of Review Board on the strength of recommendations of the Ombudsman but as observed earlier, the Review Board was neither competent to entertain the matter and enlarge its jurisdiction to make such a recommendation in the case of respondent nor the said recommendations created any right in his favour to be .implemented by the Bank or enforced through the Constitutional jurisdiction of the High Court. We may point out that the respondent being in contest with the appellants in the Constitutional petition pending before the High Court of Sindh on the same subject could not maintain an independent/similar petition before the Peshawar High Court and since the matter was sub judice before the High Court of Sindh at Karachi, therefore, the respondent either should agitate the implementation of recommendations made by the Review Board in his favour on the basis of which Ombudsman disposed of his complaint against the Bank or should have filed a separate petition before the High Court which had already taken cognizance of the matter. The invoking of Constitutional‑ jurisdiction of the different High Courts on the same subject seeking the same relief either on the same grounds or on different grounds is not permissible. The relief being sought by the respondent from the Peshawar High Court was substantively under adjudication in the Constitutional petition filed by the appellants in the High Court of Sindh and the result of said petition in either way would be relevant to determine the rights of parties. Since the same matter was under adjudication in both the petitions on different grounds, therefore, we are of the considered view that pending disposal of Constitutional petition filed by the appellants before High Court of Sindh, the Constitutional petition on the same subject before the High Court at Peshawar was not maintainable. The respondent despite being an employee of Bank, being run under the control of Government at the relevant time, instead of availing the appropriate remedies available to him under the law, approached the Review Board and Ombudsman for redressal of his grievance but none of the said forums had lawful authority to entertain the representation/complaint of respondent and exercise jurisdiction in the matter, therefore, the recommendations made by the said forums having no legal sanction, were not enforceable through the Constitutional jurisdiction of the High Court. For the foregoing reasons, we set aside the judgment impugned therein and allow this appeal with no order as to costs. S.A.K./M‑356/S Appeal allowed.