SAIYED SAEED ASHHAD, C J.---In this Constitutional petition the petitioner has sought the following reliefs: .......... That this Hon'ble Court may declare that the assumption of jurisdiction in the instant matter by respondent No,I was without lawful authority and of no legal effect and that the impugned findings/order dated 22nd November, 1992, passed in the case is illegal, unwarranted and of no legal effect and the same may be set aside. Any other declaration /direction that may be found appropriate in, the facts and circumstances of the case may also be granted/issued. The petition may be accepted with costs." The brief facts which led to filing of this Constitutional petition are that respondent No,2 Messrs Air Master (Pvt.) Ltd., company incorporated under the Companies Ordinance, 1984 and carrying on the business of tourism and Travelling Agent filed a complaint dated 16-6-1991 before respondent No,1 Wafaqi Mohtasib against petitioner Messrs Pakistan International Airlines Corporation (hereinafter referred to as ("M/s. PIAC") praying therein that the petitioner may be directed to reimburse the amount of Rs,2,10,839 to respondent No,2 as the same was deducted without any lawful justification. In the complaint it was averred that respondent No,2 had sold/issued tickets on behalf of the petitioner on VIP fares from Karachi to points in Europe and return, which were available at 63% with normal economy class round trip from ex-Karachi as per instructions issued by the petitioner. The petitioner vide their letter dated 7-8-1989 informed respondent No,2 that as a result of the checking of the periodical sale returns it was found that the fares had been undercharged, which was denied by respondent No,2 vide their letter dated 25-8-1989, wherein it was stated that the collection of the fares in respect of the tickets sold/issued was in accordance with the Circular dated 20-7-1987 thus requesting that the letter dated 7-8-1989 be withdrawn. The petitioner did not accede to the request of respondent No,2 and on the contrary by their letter dated 6-5-1990 called upon them to pay Rs,2,10,83'9 on account of short collection of fares. Failing- to obtain any beneficial response from the petitioner, the respondent No,2 filed the above complaint before the Wafaqi Mohtasib the petitioner submitted detailed comments to the complaint, wherein it was submitted that respondent No,2 had violated the provisions of the Circular dated 20-7-1987 inasmuch as it has sold/issued tickets on VIP fares in respect of destinations which were not included in the circular, therefore, the concessional rate of fares of 63% of the normal economy class was not applicable to the sale of such tickets. The petitioner submitted that the above action of respondent No,2 was not on account of any ambiguity in the Circular dated 20-7-1987 but it was on account of wrong interpretation thereof as a result of ,which loss was caused to the petitioner which respondent No,2 was liable to make good/reimburse. The petitioner further submitted that the clear-cut instructions were conveyed for the sale of tickets on VIP fares which were wilfully violated by respondent No,2 resulting in loss to the petitioner and it had no option but to charge normal fare as per rules. It was denied that there was any ambiguity or misconception in the Circular dated 20-7-1987. The petitioner also denied that discriminatory treatment has been given to some other travel agents, who had been guilty of the same mistake and it was submitted that the matter was being scrutinized/examined and if proved, action would be taken against all those, who had violated the Circular in question. The learned Wafaqi Mohtasib vide his order dated 13-10-1991 rejected the complaint of respondent No,2 for non-prosecution. It is necessary to reproduce certain passages from the order of the Wafaqi Mohtasib for determining as to whether the complaint was rejected for non-prosecution or was rejected on merits after taking into consideration the contents of the complaint as well as the objections/reply filed by the petitioner. The relevant portions are as under:-- "3. The petitioner's Advocate through registered UMS 18 days' notice was asked to furnish carefully point-wise rejoinder comments not later than 5-10-1991, else the matter would not be pursued further. He has not cared to reply even till today although his offices situated at Rawalpindi.
4. PIAC has elaborately and convincingly explained why relief to the petitioner cannot be extended.
This position has not been rebutted by the petitioner. In fact, it would appear that the petitioner or his Advocate are not particularly interested in pursuing this case. Under the circumstances no relief is extendable nor is any maladministration made out. The complaint is rejected for non- prosecution on the part of the petitioner."
From a bare perusal of the above passages reproduced from the order of the Wafaqi Mohtasib, it is to be observed that while dismissing/rejecting the complaint of respondent No,2, the learned Wafaqi Mohtasib has gone through the contents of the complaint as well as the objections/reply filed by the petitioner and had duly considered them. It is further to be noted that he had observed that in spite of being directed, respondent No,2's Advocate failed to furnish rejoinder/comments to the objections/reply filed by the petitioner as a result of which the elaborate and convincing explanation given by the petitioner/Messrs PIAC for not extending the relief sought by the petitioner had gone unrebutted. Subsequently, an application for review was filed by, respondent No,2 before the learned Wafaqi Mohtasib praying for review of the order dated 13-10-1991. The petitioner Messrs PIAC submitted its objections/reply to the review application, wherein they objected to the maintainability of the review on the ground that no such provision exists in the President's Order I of 1983, Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 (hereinafter refefred to as "the P.O. 1 of 1983". Whereby the office of Ombudsman was established and further that Article 32 of the P.O. 1 of 1983 provided a representation before the' President by a person aggrieved by an order of the Wafaqi Mohtasib. It was further submitted that even otherwise the Wafaqi Mohtasib vide his order dated 31-10-1991 had given a finding that there was no maladministration involved and no relief was extendable and for making an application for review, even if maintainable, it was incumbent for respondent No,2 to show the existence of some new material or evidence, which was not in the possession of respondent No,2 while proceedings before the learned Wafaqi Mohtasib were in progress, the nature of the said material being such that had it been produced before him at the earlier stage, then he would not have come to the above conclusion, which respondent No,2 completely failed to establish. It was submitted by Mr. Shafi Muhammadi that the learned 113 Wafaqi Mohtasib had rejected the complaint for non-prosecution on the part of the petitioner thus he would have the power to recall the order of rejection for non-prosecution and restore the complaint to regular hearing. He further submitted that such action would not amount to review of the order and the application filed by respondent No,2 purporting to be a review application could have been treated as an application for recall of the order rejecting the complaint for non-prosecution. In this regard it is to be noted that though the Wafaqi Mohtasib in his above order dated 13-10-1991 mentioned that the complaint was rejected for non-prosecution on the part of the respondent No,2 but that non-prosecution would not adversely affect his findings to the effect that neither any maladministration was made out nor any relief was extendable as the said findings had been arrived at by him after going through the elaborate and detailed explanation given by the petitioner relating to the contents of the complaint which were not rebutted though respondent No,2 was called upon to submit point- wise rejoinder/comments to the explanation submitted by the petitioner. In the circumstances, recall of the order dated 13-10-1991 by the learned Wafaqi Mohtasib would not amount merely to recalling an order passed for non-prosecution but would amount to setting aside an order which he had consciously and intentionally made after going through the entire material available before him. The findings given by him were arrived at after application of mind with bona fide intention which did not render the order dated 1340-1991 to be illegal or irregular/erroneous so as to enable him to exercise the power in pursuance of section 21 of the General Clauses Act for recalling, rescinding, varying, modifying or cancelling the same. Apart from the above, it is also doubtful whether on the basis of the facts and circumstances of the case the action of the petitioner in not conceding to the request of respondent No,2 in not allowing/making payment of the sum of Rs,2,10,839 deducted by it on account of charging less fares on the tickets sold/issued by him on VIP fares would be covered by the definition of maladministration as given in section 2(2) of the P.0.1 of 1983. For determining the above controversy, it will be useful to reproduce the definition of maladministration given in the P.0.1 of 1983, which is as under: "2. Definition.--In this order, unless there is anything repugnant in the subject or context,-
2. "maladministration" includes,--
(i) a decision, process, act of omission or commission which--
(a) is contrary to law, rules, or regulations or is 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 excesses; and
(ii) neglect, inattention, delay, incompetence, inefficiency and inaptitude, in the administration or discharge of duties and responsibilities."
From a bare perusal of the above definition of maladministration it is necessary that the decision, process, recommendation, act of omission or commission, to come within its scope, must not only be either contrary to law, rules/regulations or a departure from the established practice or procedure but there should also be absence of bona fides and legality: In other words a decision, process, recommendation, act of omission or commission should be contrary to law, rules/regulations or a departure from established practice or procedure with mala fide intention and for invalid reasons. The second category of decision, process, recommendation, act of omission or commission which would. Come within the definition of maladministration would be those which are perverse, arbitrary or unreasonable, unjust, biased, oppressive, or discriminatory.
The third category of such decision, process, recommendation, act of omission or commission would be those which are based on irrelevant grounds. The fourth category of such decisions, process, recommendations, act of omission or commission would be which involve exercise of powers and it was exercised for corrupt motive or had been refused to be exercised for corrupt or improper motives. A separate category of maladministration emerging from the above definition is negligence, inattention, delay, incompetence, inefficiency and inaptitude in the administration or discharge of duties and responsibilities. It is the case of the petitioner that respondent No,2 in selling the tickets at 63% of the normal rate of the economy class tickets had misinterpreted the provisions of Circular dated 20-7-1987 as amended from time to time.' It is pertinent to note that in its complaint dated 16-6-1991 addressed to the Wafaqi Mohtasib, respondent No,2 had itself stated that the petitioner informed it through its letter dated 7-8-1989 that as a result of the checking of the periodical sale returns a discrepancy had been observed as the fares had been under charged but the case of respondent No,2 was that they had sold/issued tickets and charged fares relying on the instructions contained in the Circular dated 20-7-1987, which representation was rejected on the ground that another Circular dated 20-4-1989 was issued which modified the practice of issuance of tickets as per the previous practice and there was no justification for issuance of the tickets by respondent No,2 as per past practice. It is also pertinent to note that respondent No,2 in paragraph 11 of its complaint submitted that the instructions contained in the Circular dated 20-7- 1987 were ambiguous which forced the petitioner to modify/amend the same through Circular dated 22-5-1990. It was submitted that in view of ambiguity in the Circular dated 20-7-1989 undercharging of the fares would appear to be an inadvertent, bona fide and unintentional not warranting imposition of penalty on it by calling upon it to reimburse the loss resulting on account of undercharging the fares on the sale of tickets. Even if the contention to the above effect is admitted for the sake of argument, still the action of the petitioner in calling upon respondent No,2 to reimburse the amount of Rs,2,10,839 undercharged by them on sale of its tickets would definitely not come within the definition of maladministration so as to give jurisdiction to the learned Wafaqi Mohtasib to entertain the complaint. The petitioner in support of its impugned action placed reliance on Circular dated 20-7-1987. The fact that this Circular was amended/modified by a subsequent Circular dated 20-7-1990 did not necessarily simply that the earlier Circular dated 20- 7-1987 was ambiguous or vague which was the cause for under-charging the fares on sales of petitioner's tickets by respondent No,2. Thus, respondent No,2 cannot rid itself of his liability for undercharging the fares from the customers on this presumption. It was incumbent for the respondent No,2 to point out before the Wafaqi Mohtasib the ambiguity or vagueness in the Circular dated 20-7-1987 acting on which it inferred that only 63% of the fares was to be charged on the sale of tickets in respect of the flights covered by the said Circular dated 20-7-1987. In the absence of such procedure it cannot be said that the Circular dated 20-7-1987 suffered from ambiguity or vagueness which contributed to undercharging the price of the tickets by respondent No,2. Respondent No,2 cannot be permitted to claim his innocence, to plead that it was not at all at fault, and to allege that the act of the petitioner in calling upon to make good/reimburse the loss accruing to it, petitioner due to undercharging of the fares amounted to maladministration. The office of the Wafaqi Mohtasib was established primarily to provide relief to the aggrieved persons by diagnosing, investigating, redressing and rectifying any injustice done to a person through maladministration. If any decision, process, recommendation, act of omission or commission does not suffer from maladministration then the Wafaqi Mohtasib would not have the jurisdiction to entertain and investigate a complaint in relation thereto. Upon the above discussion we find that the act of the Wafaqi Mohtasib in entertaining the review petition and setting aside his findings dated 13-10-1991 vide order dated 22-11-1991 was without jurisdiction and void ab initio as he had no authority to recall, rescind, modify or alter an order which 'he had passed after perusal and consideration of the material on record. We are also satisfied in view of the above discussions that the alleged decision, process, recommendation, act of omission or commission complained of was not covered by the definition of maladministration thus ousting the jurisdiction of the Wafaqi Mohtasib to entertain the same. For the foregoing reasons and discussions we find that this Constitutional petition carries weight and merits consideration. Accordingly, we allow this Constitutional petition and set aside the impugned order dated 22-11-1991 and restore the order dated 13-10-1991 as a result of which the complaint filed by respondent No,2 was rejected. The parties are directed to bear their own costs.