Petitioner's Complaint No,L/992/2001 was decided by the learned Acting Ombudsman through decision dated 4-9-2001 in favour of the petitioner.
2. Against the above decision, respondent No,2 i,e, the Director, Legal Affairs, Headquarters Office, Pakistan Railway, Lahore filed a representation before Honourable the President of Pakistan under Article 32 of President's Order No,1 of 1983 i,e, Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983.
3. By an Office Memorandum dated 27-5-2002, the petitioner was informed by the Section Officer, Government of Pakistan, Law Justice and Human Rights Division that upon acceptance of the representation of respondent No,2, the decision of the learned Acting Ombudsman was set aside by Honourable the President of Pakistan.
4. Through this petition, the above orders were challenged by the petitioner.
5. Malik Waqar Saleem, the learned Deputy Attorney-General has appeared on behalf of respondent No,1. Despite service, no one appeared on behalf of respondents Nos.2 and 3. They are thus proceeded against ex parte.
6. In parawise comments filed on behalf of respondent No,1, impugned memo. Dated 27-5-2002 was supported. Yet along with these comments, another memo. Dated 21-2-2003. Was annexed by respondent No 1. Interestingly per this memo.
7. Malik Waqar Saleem, the learned Deputy Attorney-General submitted that both the orders of Honourable the President of Pakistan were well reasoned as per the observations of the Honourable Supreme Court of Pakistan in the case of Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad v. Muhammad Tariq Pirzada and 2 others 1999 SCMR 2744, the minimum standards were fulfilled and the impugned orders containing reasons were to be upheld, even if the petitioner was not heard.
8. Having considered the submissions of the learned Deputy Attorney-General on behalf of respondent No,1, I am not persuaded to accept the argument that the impugned order could have been passed by Honourable the President of Pakistan without granting a hearing to the petitioner, even if the decision dated 4-9-2001 of the learned Acting Ombudsman was presumed to be without jurisdiction.
9. Had the petitioner been granted an opportunity of hearing in his defence, he might have succeeded in showing a case different from the one decided through the impugned orders or may have persuaded the represented authority in upholding the order of the learned Ombudsman, Absence of hearing to the petitioner by Honourable the President of Pakistan, at minimum, cultivates an impression in the minds of the general public (and of course of the petitioner) that neither justice has been done to the petitioner nor does it seem to have been equitably administered. Right of hearing is undoubtedly fundamental to the whole system of administration of the justice and law.
10. Examination of the impugned order shows that the petitioner has been denied notice and the right of hearing on the respondents' representation against him. This representation has been decided in absence of the petitioner who has admittedly been condemned unheard. The impugned order adversely affects the petitioner as it sets aside an order in favour of the petitioner without giving an opportunity of defence to the petitioner. Allowing the right of participation to the affected party B. Is fundamental to the Rules of natural justice as well as to the administration of the legal system of justice.
11. Question of proper hearing on a representation to the Honourable President of Pakistan was settled by the august Supreme Court of Pakistan in the case of Federation of Pakistan v.
Muhammad Tariq Pirzada and 2 others 1999 SCMR 2744 and Federation of Pakistan v. Muhammad Tariq Pirzada and 2 others 1999 SCMR 2189. The Honourable Supreme Court of Pakistan also defined the nature of jurisdiction vesting in the President under Article 32 of the above-referred Order of 1983 by holding that:-- "that jurisdiction vested in the President under Article 32 partakes of appellate jurisdiction..."
' And that:-- "Under the scheme of the order, the President exercises the same nature of functions as are performed by the Ombudsman. Thus, visualized, the President 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."
12. The Honourable Supreme Court of Pakistan while deciding the above-referred appeal titled Federation of Pakistan v. Muhammad Tariq Pirzada 1999 SCMR 2744 educatively observed that:-- "The President under the Order is a statutory body and has to function as such under the provisions and the scheme envisaged by the Order. It could not be the intention of the Legislature that disposal of the representation be made in an arbitrary manner. Even if it is assumed that the institution of Wafaqi Mohtasib is an administrative body and the President also acts in administrative capacity while disposing of a petition under Article 32 of the Order, an aggrieved person in whose favour a recommendation has been made/finding recorded by the Mohtasib, has legal right to demand that an adverse decision should not be taken against him in violation of the principle of natural justice. It is true that there is no provision for affording a hearing either to the person who lodged a complaint before the Mohtasib or the representationist. Nevertheless, a favourable order having accrued in favour of a complainant, cannot be brushed aside by setting aside the recommendation of the Mohtasib without assigning any reason whatsoever. The recording of valid reasons while setting aside the recommendations of the Mohtasib would be the minimum requirement of law consistent with the principle of natural justice, under the scheme of the Order It is an inalienable right of every individual to be dealt with in accordance with law and in case of violation thereof, the High Court in exercise of its Constitutional jurisdiction can interfere."
13. The law as above laid down by the Honourable Supreme Court of Pakistan thus, clearly postulates that:--
(i) An aggrieved person has a legal right to demand due adherence with the principles of natural justice;
(ii) An order favourable to a complainant cannot be set aside without recording valid reasons as the minimum requirement of law consistent with the principles of natural justice; and
(iii) If the order of the President is not in accordance with the law, the High Court in exercise of its Constitutional powers can interfere.
14. Federation's review petition against the above judgment was dismissed by the Honourable Supreme Court of Pakistan in the above-referred case of Federation of Pakistan v. Muhammad Tariq Pirzada 1999 SCMR 2189 by holding that:-- "The forum has several attributes of a Court in many aspects of its powers.
' Application of judicial mind is a must for reaching a fair and just conclusion on the lis brought before the President who performs quasi-judicial functions.
' The provisions of Article 48 of the Constitution as to the advice of the Cabinet/Prime Minister to the President is not applicable as P.O. 1 of 1983 has been specified in the 7th Schedule of the Constitution.
' 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."
15. The concise position of law, thus, is that Honourable the President of Pakistan has to meet the minimum standards of natural justice by giving opportunity of hearing to the affected person(s) and to pass a well-reasoned judgment on due consideration of the facts of the case and the applicable law. This statutory obligation can neither be abridged nor departed from by the President under any circumstances or IC in any eventuality whatsoever.
16. This Court in judgment dated 28-10-2003 passed in Writ Petition No,5893 of 2003 titled Messrs Eastern Leather Company (Pvt.) Limited. v. Federation of Pakistan and others reported as PLD 2004 Lah. 83 has also held that the law and the principles of natural justice oblige Honourable President to decide a representation before him after due opportunity to the parties before him.
17. In the present case the representation has been decided without hearing the petitioner.
Wherefore, this petition is accepted. The impugned orders conveyed to the petitioner through memo. Dated 27-5-2002 and memo. Dated 21-2-2003 are declared to be without lawful authority and of no legal effect.
18. This Constitutional petition has been decided for the reason that the decision of representation was made without an opportunity of hearing to the petitioner; therefore, the questions of law and facts involved in the case have not been dealt with and decided. The questions are left to be redecided in the representation filed by the respondents before Honourable the President of Pakistan. The representation shall be deemed to be pending and shall be redecided in accordance with law after due notice and opportunity of hearing to the parties. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.