1999SCMR2189 (PLP)

IRSHAD HASAN KHAN, J.

This petition, under Article 188 of the Constitution of the Islamic Republic of Pakistan, 1973, read with Order XXVI, Supreme Court Rules, 1980, seeks review of the judgment, dated 22-2-1999, of this Court passed in Civil Petition No.49 of 1999, wherein it was observed that under Article 32 of the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 (President's Order 1 of 1983) (hereinafter referred to as the Order), the President has full and complete powers to arrive at his own conclusion in order to do justice but in the exercise of such powers he must act justly and fairly and if the recommendations made/findings recorded by the Mohtasib are intended to be interfered with in the interest of justice, valid reasons must be assigned. It was further observed that the President while seized of a representation under Article 32 of the Order is under legal obligation to deal with it fairly and justly and a complainant in whose favour a finding has been recorded/recommendations made by the Mohtasib, has a legal right to demand that the President should decide his representation, affecting his valuable rights, by assigning valid reasons if findings/recommendations made by the Mohtasib are sought to be set aside/reviewed or modified, irrespective of the fact whether acting independently or on the advice of the Prime Minister.

2. We have heard Mr. Muhammad Yawar Ali, learned Deputy Attorney-?General for the petitioner and Mr. Hamid Khan, learned Advocate Supreme Court, for respondent No.

1. Mr. Hamid Khan has supported the judgment under review.

3. Mr. Muhammad Yawar Ali, learned Deputy Attorney-General, vehemently contends that under Article 48 of the Constitution of Pakistan, the President of Pakistan, in the exercise of his functions, shall act in accordance with the advice of Prime Minister of Pakistan; the President of Pakistan while accepting the representation of the Government against the recommendation of Wafaqi Mohtasib had passed the impugned order purely and simply on the advice of Prime Minister of Pakistan; there was no need for recording reasons for acceptance of representation of Government and this aspect of the case escaped the notice of this Court in recording the impugned judgment. He contended that this is an error apparent on the face of the record calling for review of the impugned judgment.

4. The contention is devoid of any force. A bare reading of paragraphs 8, 9 and 10, shows that the same was attended to in its entirety to reach the conclusion. It was held that it is wholly immaterial whether in such cases he acts independently or on the advice of the Prime Minister and that under Article 32 of the Order he must act justly anti fairly and if the findings/recommendations of the Mohtasib are intended to be interfered with, then valid reasons must be assigned for the same. Thus visualized, there is no error apparent on the face of the record, justifying a review. Reference may be made to the Government of Punjab v. The Board of Foreign Missions of the Presbyterian Church in the United States of America through Lahore Church Council (PLD 1988 SC 382), wherein it was held that reversal of conclusion earlier reached by the Court, after full consideration of the question, is not possible in exercise of the review jurisdiction under Article 188 of the Constitution; Haji Muhammad Saifullah Khan v. The Federation of Pakistan (PLD 1990 SC 79), wherein it was held that where conscious and deliberate decision had been taken with regard to the 8 nature of orders which Court was competent to pass under a provision of law, only because another view with regard thereto was canvassed, could not and did not constitute a ground for review; Ghulam Nabi v. Farrukh Latif (1987 SC MR 608), wherein it was observed that where the impugned order did not suffer from any ambiguity or legal error, petition for review was devoid of merits; and Syed Nazeer Ahmed v. The Federation of Pakistan (1970 SCMR 28), wherein it was held that where the matter had been fully considered in the judgment .of the Court, it could not be allowed to be re-argued by way of a review. The above decisions-were followed by the Full Bench of this Court -in the case Mohtarma Benazir Bhutto v. The State (PLD 1999 SC 937). ?

5. When faced with this, the learned Deputy Attorney-General placed reliance on Abdul Ghaffar-Abdul Rehman v. Asghar Ali (PLD 1998 SC 336), wherein on the scope of review jurisdiction of the Supreme Court, it was observed as under:-- "

17. From the above case-law, the following principles of law are deducible: (i) That every judgment pronounced by the Supreme Court is presumed to be a considered, solemn and final decision on all points arising out of the case; ? (ii) that if the Court has taken a conscious and deliberate decision on a point of fact or law, a review petition will not lie; (iii) that the fact the view canvassed in the review petition is more reasonable than the view found favour with the Court in the judgment/order of which review is so review petition; (iv) that simpliciter the factutn that a material irregularity was committed would not be sufficient to review a judgment/order but if the material irregularity was of such a nature, as to convert the process from being one in aid of justice to a process of injustice a review petition wold lie (v) that simpliciter the fact that the conclusion recorded in a judgment/order is wrong does not warrant review of the same but if the conclusion is wrong because something obvious has been overlooked by the court or it has failed to consider some IM matter, a review petition would lie; (vi) that if the error in the judgment/order is so manifest and is floating on the surface, which is so material that had the same been noticed prior to the rendering of the judgment the conclusion would have been different, in such a case a review petition would lie; (vii) that the power of review cannot be invoked as a routine matter to re?hear a case which has already been decided nor change of a counsel would warrant sustaining of a review petition, but the same can be pressed into service where a glaring omission or patent mistake has crept in earlier by judicial fallibility; (viii) that the Constitution does not place any restriction on the power of the Supreme Court to review its earlier decisions or even to depart from them nor the doctrine stare decisis will come in its way so long as review is warranted in view of the significant impact on the fundamental rights of citizens or in the interest of public good; (ix) that the Court is competent to review its judgment/order suo motu without any formal application; (x) that under the Supreme Court Rules, it sits in divisions and not as a whole. Each Bench whether small or large exercises the same power vested in the Supreme Court and decisions rendered by the Benches irrespective of their size are decisions of the Court having the same binding nature. " Mr. Muhammad Yawar Ali submitted that if the principles of law enunciated in clauses (iv) and (vi) above, are applied to the case in hand, it becomes evident portant? that this Court has overlooked the fact of amenability of the order of the President to the advice of the Prime Minister/Cabinet. Notwithstanding the ingenuity of the submissions made by the learned Law Officer, the fact remains that the above question was duly considered and repelled in the judgment, which is sought to be reviewed. Clearly, no material irregularity was committed, which would be sufficient to review the judgment nor there is any error in the judgment, not to talk of a manifest error floating on the surface. The judgment under review was rendered after dealing with the pleas raised by the learned Law Officer then, in support of the petition for leave to appeal. Clearly, Federation of Pakistan could neither be permitted to seek reversal of conclusion earlier reached by the Court after full consideration of all the questions of fact and law before it nor to reargue the case in the garb of review.

6. Needless to emphasise that the functions performed by the Wafaqi Mohtasib are quasi-judicial. The concept of a representation envisaged by Article 32 of the Order is that where the Mohtasib has failed to record just and proper findings/recommendations, the President should undo the wrong done to the complainant for the advancement of the purposes of the Order. The powers vesting in the President under Article 32 ibid have to be exercised in conformity with section 24-A of the General Clauses Act, 1897 as amended by General Clauses (Amendment) Act, 1997 (Act XI of 1997), which reads thus:-- "24-A.Exercise of power under enactments.

(1) Where, by or under any enactment, a power to make any order or give any direction is conferred on any authority, office or person such power shall be exercised reasonably, fairly, justly and for the advancement of the purposes of the enactment. (2) The authority, office or person making any order or issuing any direction under the powers conferred by or under any enactment shall, so far as necessary or appropriate, give reasons for making the order or, as the case may be, for issuing the direction and shall provide a copy of the order or, as the case may be, the direction to the person affected prejudicially."

7. Thus visualized, the jurisdiction vested in the President under Article 32 partakes of appellate jurisdiction. Application of judicial mind is a must for reaching a fair and just conclusion on the lis brought before the President/Wafaqi Mohtasib. Such an approach is in consonance with the scheme of the order, in that, the office of Wafaqi Mohtasib (Ombudsman) has been created in order to diagnose, investigate, redress and rectify any injustice done to a person through mala administration. The view taken by this Court in the judgment under review that the Ombudsman performs quasi-judicial functions, also finds support from the earlier judgment of this Court in Hafiz Muhammad Arif Dar v. Income-tax Officer (PLD 1989 SC 109), wherein while examining the scope, powers and functions of the Ombudsman, it was observed: "Amongst others he can file a complaint and grievance annlication before the Federal Ombudsman, who can provide effective redress, in a case like the present one. That forum has several attributes of a Court in many aspects of its powers It can also move in a matter promptly whenever so needed. At the same time it does not suffer from some of the handicaps, due to the technicalities of-procedural nature, which operate as impediments or thwart such-like action by the Courts. For example the limitation of non-availability of an alternate remedy in this case for the High Court under Article 199 of the Constitution is not applicable to the said forum: Besides, the same being quasi-judicial it is also headed by a Judge of the Supreme Court; with similar powers to punish for contempt In this context therefore, it can be safely concluded, that it can provide the alternate effective and adequate remedy to the petitioner also." (Underlining is by way of emphasis). . Under the scheme of the Order, the President exercises the same nature of functions as are performed by the Ombudsman. Thus visualized, the Presidem while performing his functions under Article 32 of the Order acts in quasi-?judicial and not in administrative capacity, which is totally distinguishable from administrative actions.

8. It is true that, the Article 48 of the Constitution provides that in the exercise of his functions the President shall act in accordance with the advice of the Cabinet or the Prime Minister provided that he may require reconsideration of the matter either generally or otherwise and the President shall act in accordance with the advice tendered after such reconsideration. However, the above provisions are not attracted in the instant case, inasmuch as, the establishment of the office of Wafaqi Mohtasib (Ombudsman) was gone ahead finder the order and the same having been specified in the 7th Schedule of the Constitution, could only be amended in the manner provided for amendment of 'the Constitution. It is not the case of the learned Law Officer that any such amendment has been brought by the Legislature (National Assembly).

9. Mr. Muhammad Yawar Ali next submitted that the recommendations of the Wafaqi Mohtasib were recommendatory in nature and not binding on the Government. The stand taken by the learned Deputy Attorney-General is in clear conflict with the directives of the President and the Prime Minister of Pakistan. They have emphatically directed the agencies to implement the findings/recommendations of the Ombudsman and desist from making unnecessary representation. These directives have been quoted in the Mohtasib (Ombudsman)'s Annual Report, 1998 as follows:-- "Directives of the President and Prime Minister of Pakistan" The President as well as the Prime Minister of Pakistan have emphatically directed the agencies to implement the Findings/Recommendations of the Wafaqi Mohtasib (Ombudsman) and desist from making unnecessary representations. The following directives may be specifically quoted in this respect. 1.Directive No.1 of 1990 vide Letter No.178/1 President of 20 September, 1990. IMPLENTATION OF FINDINGS/RECOMMENDATION OF WAFAQI MOHTASIB OMJBUDSMAN. It is a matter of grave concern for me to note that the Findings/Recommendations made by the Wafaqi Mohtasib (Ombudsman) are, at times, not implemented promptly by some of the Ministries/Divisions. The Ombudsman's institution has been established under President's Order No. l of 1983 basically to render inexpensive and speedy justice to the poor and downtrodden citizens, aggrieved to affected by the act of mala administration of the Federal Agencies. However, the very purpose of this highly useful institution is lost when its recommendations are either not implemented or are delayed. Article 16 of P.O. 1 of 1983 confers the same powers on the Ombudsman as are enjoyed by the Supreme Court of Pakistan for the purposes of taking action for non-compliance of his Orders under Article

14. The Ombudsman, however, has not so far invoked this Article in order to allow time to the Executive Authorities for adjustment with the concept of 'accountability'. In order, therefore, to ensure that relief is provided to the common man against the excesses and acts of maladministration of the Federal Government functionaries, the following instructions may be taken note of:-- Recommendations/Findings of the Wafaqi Mohtasib (Ombudsman) should be implemented within the stipulated time. Representations by the Federal agencies under Article 32 of P.O. 1 of 1983 should only be made if there is a strong case in their favour. These should not be made on frivolous grounds or merely to gain time. It has to be noted that Article 3(3) of P.O. 1 of 1983 specifically enjoins upon all executive authorities, throughout Pakistan, to act in aid of the Mohtasib. The tendency of defying or delaying the implementation of the Ombudsman's recommendations should be avoided. Unjustifiable defiance of the Mohtasib's recommendations shall be recorded in the personal file/character roll of the public servant primarily responsible for the defiance, as provided by Article 12(2) of P.O. 1 of 1983`. Finally, all Federal Agencies are, once again, urged to extend full co?operation to the Ombudsman for carrying out his functions smoothly in accordance with the requirements of P.O. 1 of 1983.

2. The President's Secretariat (Public) directed, vide Letter No. 8(5) PS/Legal/91, dated 20 February, 1992, that time-barred representations may not be processed. ?

3. Further directions were issued by he Secretary, Law, Justice and Parliamentary Affairs Division vide Letter No.2784/93-Law, dated 6th December, 1993, to all the Federal Secretaries, as follows:-- ' The President has been pleased to direct that the Ministries/Divisions/ Departments may refrain from making unnecessary representations under Article 32 of Presidential Order No. l of 1983. The Orders of the President may also please be brought to the notice of the attached departments, subordinate offices, corporations, autonomous and semi?autonomous organisations under the control of your Division for strict compliance.' "4???????? Once again the Secretary Law, Justice and Parliamentary Affairs Division, vide his Letter F. No. 10(4)/89-Law, dated 19th November, 1995, addressed to all the Federal Secretaries as follows:-- "Please refer to our D.O. Letter No.2784 of 1993-Law, dated the 6th December, .1993, whereby the directions of the President of Pakistan were conveyed that the Ministries/Divisions/Departments may refrain from making unnecessary representations under Article 32 of Presidential Order 1 of 1983. "In spite of the instructions, it has been observed by the Prime Minister's Secretariat that Ministries/Divisions/Departments still continue to make unnecessary representations ostensibly to delay the implementation of the Wafaqi Mohtasib's Order. I shall be grateful if the instructions are complied with in letter and spirit." The Prime Minister of Pakistan addressed all Federal Ministries, Ministers of State, Federal Secretaries, vide Letter No.JS9PUBOMisc/14156/25035, dated 14-11-1995, directing as follows:-- "The Prime Minister, with a view to eliminating the unnecessary delays in the implementation of Wafaqi Mohtasib's findings/recommendations/orders by submitting representations to the President as a matter of routine, has been pleased to direct as under: -- (i) All Federal agencies should strictly follow, both in letter and spirit, the directions of the President circulated vide No. 178/1/President, dated 20th September, 1990 and Letter No.2784/93-Law, dated 6th December, 1993. (ii) Before making a representation to the President recourse must be had to Article 11(2) of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 (P.O.No.1 of 1983) which provides for review of his findings etc. by the Wafaqi Mohtasib. (iii) In future, compliance shall be made promptly. In respect of the cases involving pensions, gratuities or other benefits arising on retirement; for giving preference in employment to the widow or children of deceased/retired employees in Grade 1 to 11 as per relevant recruitment rules for appointment of women against their reserved quota; medical expenses; insurance claims; utility bills; lowed to widows, orphans, invalids or incapacitated persons where the amount is not more than Rs.5 lac in an individual case and is permissible under the law." "

6. On the 5th July, 1997, the Prime Minister Secretariat issued another directive No.389/DS-Law/97. The contents of the same are reproduced below: "As recommended by the Wafaqi Mohtasib, the head of each agency is required to study the recommendations made in the Annual Reports for the last 3 years and determine the status of their implementation. For this purpose, it would be appropriate to constitute a group of three officers under the concerned agency for an in depth examination of the relevant recommendations and check the progress in each case. On completion of this exercise, the head of each agency may; study the progress and send a report to the Wafaqi Mohtasib, within three months. It may please be noted that where implementation of some recommendations is not 'possible, further action is required to be initiated for obtaining orders of the competent authority. "The Prime Minister has been pleased to direct that all Secretaries/Additional Secretaries Incharge of the Ministries/Divisions should initiate timely action on the recommendations in respect of the Ministries/Divisions and the Organisations under their respective administrative control." "All Ministries/Divisions are accordingly advised to initiate requisite action and send a report to the Wafaqi Mohtasib and this Secretariat immediately. " It would thus appear that it has been the departmental interpretation of the Federal Government itself that recommendations of the Mohtasib ought to be implemented promptly. It is unfortunate that the agencies/public functionaries unnecessarily resort to representations under Article 32 of the Order instead of expeditious implementation of the recommendations of the Ombudsman and thereby thwart the ends of justice, aggravating the suffering of the complainants, 10??????? It is next contended that the grievance raised by the respondent before the Ombudsman pertains to a service matter, cognizance whereof could not be taken under Article 9(2) of the Order. We are afraid, even this question was fully considered and repelled in the following terms:-- "

11. There is also no force in the plea raised by the learned Deputy Attorney-General that the complaint lodged by the respondent was hit by Article 9(2) of the Order, which provides, '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'. The learned Judge in Chambers was right in holding that the case of the respondent was based on a selection as a result of the ,competitive examination held by the Federal Public Service Commission. He had yet to enter the service and was not already in service for the purpose of the claim as made by him. Article 9 of the Order, therefore, could not stand in his way in seeking redress of his grievance through complaint filed by him before the Wafaqi Mohtasib. We are, therefore, inclined to hold that the complaint lodged by the respondent before the Wafaqi Mohtasib was not hit by Article 9(2) of the Order. "

11. Mr. Hamid Khan, learned counsel for the respondent/caveator, has complained that the recommendations made by the Ombudsman have not been implemented till today notwithstanding the judgment passed by this Court. We have, however, no doubt, that in pursuance of this order, the Establishment Division, shall implement the judgment forthwith in letter and spirit.

12. It will be noticed that according to the Mohtasib (Ombudsman)'s Annual Report, 1998, dated 2-3-1999, "during the last four years 1,71,352 complaints had been received, 14,843 were already pending for investigation Out of the total 186,195 by the end of year, 179,803 have been disposed of". The learned Deputy Attorney-General has, however, failed to disclose the list of representations under Article 32 of the Order, pending with the Government. He has merely given 'a list of cases which are presently under process with the Ministry of Law. Justice and Parliamentary affairs.

13. Needless to observe that the office of the Ombudsman has been created for redressal of grievances of the citizens who are not in a position to approach the Courts/officials and the Ministries concerned. We note with great concern that notwithstanding various directives issued by the President and the Prime Minister from time to time urging the Federal agencies to implement the orders of Wafaqi Mohtasib, a large number of representations are invariably filed and the same remain pending at that juncture. A general perception is that dilatory tactics are resorted to by the agencies/Government functionaries to see to it that the orders passed favouring the citizens are made the subject-matter of the representation under Article 32 of the Order and thereby thwarting the further process/implementation thereof. We express our deep concern about the alarming situation with a view to alleviating the miseries of the citizens who run from pillar to post to obtain relief in terms of the orders of the Mohtasib. Moreover, a number of Constitution petitions brought by the citizens for issuance of appropriate directions for the implementation of the orders of the Mohtasib are not entertained for the reason that the representations against such orders in favour of the petitioners therein were pending under Article 32 of the Order. ;

14. It is true that Article 32 of the Order does not prescribe the time within which a representation is to be finally disposed of, nevertheless, justice and fair play demand that all such representations should be disposed of within a reasonable time. On the question of the quantum of time to be considered as reasonable for disposal of representations, having regard to the purposes of the Order, we are inclined to hold that representation under Article 32 of the Order normally should be disposed of within 90 days from the date of its presentation, except for valid reasons existing for extending the time further, under intimation to all concerned.

15. The adjudicatory/quasi judicial powers vesting in the President under Article 32 of the Order are to be exercised by him in his individual judgment by recording reasons in writing and not on the advice of the Prime Minister/Cabinet. The recommendations/findings recorded by the Mohtasib are binding on the Agencies concerned subject to the orders by the President on representation under Article 32 of the Order and in the light of the observations made in the judgment under review as clarified in this order.

16. With the above observations this petition is dismissed. M.B.A./F-59/S??????????????????????????????????????????????????????????????????????? ??????????? Order accordingly.