Raja Muhammad Shafqat Khan Abbasi, J.--Through this writ petition, petitioner has assailed the order dated 26.8.2004 passed by the President of Islamic Republic of Pakistan, under Article 32 of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 whereby order dated 22.1.2000 passed by the Acting Ombudsman on the representation filed by Respondent No, 2 was set aside.
2. Brief facts of the case are that the petitioner being consumer of Respondent No, 2/Sui Northern Gas Company filed a complaint No, L/3962/99/1167 on 18.5.1999 against exorbitant bill of Rs, 1,87,895/- before the Wafaqi Mohtasib alleging maladministration and wrong billing on the part of Respondent No, 2.
3. On consideration of the matter the learned Acting Ombudsman issued direction to respondent/company on 22.1.2000 to the following effect: "In view of the facts of the case and discussions held, the Agency is advised to charge the consumer from 12/97 to 6/98 according to the average consumption of the years 1997, 1998 and 1999 i,e, , 37.872 HM P.M. that of Okara Bakery, restore connection on payment of revised bill without reconnection charges and also take disciplinary action against the meter reader who failed to record correct monthly reading'.
4. While implementing the directions of the learned Ombudsman, Respondent No, 2 issued revised bill of Rs,83,948/- which was duly deposited by the petitioner.
5. Respondent No, 2 also filed representation under Article 32 of the Establishment of the Office of Wafaqi Mohtasib (Ombudsman), Order 1983 on 16.6.2003 before the President of Islamic Republic of Pakistan challenging the order/recommendation of learned Acting Ombudsman dated 22.1.2000.
6. The petitioner took objections as to limitation as well as maintainability of the representation in his reply/comments before the President. However, the representation of the respondent/Company was accepted on 26.8.2004 whereby Acting Mohtasib's recommendation dated 21.1.2000 in complaint No, L/3962/99/1167 were set aside.
7. The learned counsel for the petitioner submits that no opportunity of hearing was provided to the petitioner by the President while setting aside the recommendation of learned Ombudsman. He further submits that finding/recommendation of the learned ombudsman dated 22.1.2000 was challenged by the respondent Company through representation dated 16.6.2003 which was filed after about three years and six months whereas under Article 32 of President's Order 1 of 1983, any person aggrieved by a decision or order of the Ombudsman could make representation within thirty days to the President. According to the learned counsel, the representation of the Agency (which is available on the file as annexure-F) reflects that review under Article 11(2-A) of Ordinance was filed by the Agency against the finding dated 22.1.2000 was also dismissed on 10.5.2003, which show that Respondent No, 2 had assailed the final order dated 22.1.2000 after dismissal of review.
The learned counsel submits that while deciding the representation the question of limitation or maintainability of the representation has not been decided in its true perspective.
8. Conversely the learned counsel for Respondent No, 1 supports the impugned order and submits that as per the scheme of law, it was not possible for President to provide personal/oral hearing to the parties. He placed reliance on Federation of Pakistan v. Dr. Anwar (2006 SCM R 382). Regarding limitation issue the learned counsel states that limitation will be reckoned from the date when reasons for noncompliance are rejected by the Ombudsman.
9. It may be observed that while performing his functions under Article 32 of the Order, the President acts in a quasi judicial and not in an administrative capacity. Reliance is placed on Hafiz Muhammad Arif Dar v. Income Tax Officer P.L.D. 1989 S.C. 109) and Federation of Pakistan vs. Muhammad Tariq Peerzada (1999 SCM R 2189). Recording of reasons while setting aside the recommendations of the Ombudsma n is the minimum requirement under the law, which is in- consonance with the principle of natural justice. Reference for this purpose is made to Federation of Pakistan vs. Muhammad Tariq Peerzada (1999 SCM R 2744). The question of limitation has not been dealt with in the impugned order which ought to have been dealt as a vested right accrues to either of the party on expiry of limitation. The order suffers from this flaw of serious nature.
10. There is consensus that issues of like nature were considered by a learned Division Bench of this Court comprising one of us (Sayed Zahid Hussain, CJ) in ICA No, 296/2004 and the judgment rendered therein is reported as Commissioner of Income Tax, Faisalabad Zone, Faisalabad and another V. Akhlaq Cloth House, Faisalabad and another (2008 PTD 965). The operative part of the judgment is as follows: In view of the preceding discussion, it follows that all such cases where the person/party concerned had notice/opportunity of filing comments/reply to the representation, the decision of the President cannot be annulled simply for the reason that personal/oral hearing was not afforded. But where the person/party concerned had no notice/opportunity of filing comments or reply and decision was made without affording such opportunity, the representation need to be considered and decided after notice and affording an opportunity of filing reply/comments to the same."
In the present case the non-application of mind to the issues emerging from the reply filed by the petitioner, is apparent which need to be decided afresh in accordance with law.
11. In this view of the matter, we declare the order dated 26.8.2004 as of no legal effect with the observation that representation dated 16.6.2003 in complaint No, L/3962/99/1167 filed by the respondent Company will be deemed to be pending before Respondent No, 1, which will be considered and decided afresh in accordance with law. It is also clarified that contents of the reply to the representation filed by the petitioner may also be given due weight while deciding the representation. In order to avoid further delay in the matter, it is observed that the matter, if possible, should be considered expeditiously i,e, within three months.
12. With the above observations, this writ petition is disposed of.