' I RFAN SAADAT KHAN, J . -- -This Constitutional Petition has been filed against the order passed by the Section Officer, Government of Pakistan, Logistic and Human Rights Division, dated 11-1-2003, whereby the competent authority i.e. President of Pakistan was pleased to accept the representation made by the respondent No,1 i.e. State Life Insurance Corporation (Corporation) against the recommendations of the Wafaqi Mohtasib (Mohtasib) so far as they relate to the revival of the policy or waiver of any amount including the late fee etc. The respondent No,2 found the recommendations of the Mohatsib regarding rechecking of the payments allegedly made by the petitioner to the Corporation and recalculation of the interest with correct value date, if any payment to be missing or proper value date, was not given for the purposes of survival benefits, if any, were maintained.
2. The matter was heard at length on 2-6-2011 and on which date the following order was passed by this Court:- "We have heard the petitioner Vakil Ahmed Siddiqui. In person, and Mr. Ghulam Ali, learned counsel for the respondent, and have perused the case.
' We are of the considered opinion that the order of the revisional authority does not fulfill the ingredients specified by the Hon'ble Supreme Court in its judgment A in the case of Federation of Pakistan v. Muhammad Tariq Pirzada (1999 SCMR 2744) and Federation of Pakistan v. Muhammad Tariq Pirzada (1999 SCMR 2189) by which the review application against the above order was dismissed and, therefore, for reasons to follow the order of the revisional authority is set aside and the recommendations of the Wafaqi Mohtasib stand restored.
' Mr. Muhammad Anwar Tariq, learned counsel, who was sitting in the Court in some other matter, has referred a judgment in the case of State Life Insurance Corporation and another v. Jaffar Hussain and others (PLD 2009 SC 194). We would like to express gratitude of the Bench for his assistance".
3. Briefly stated the facts of the case are that the petitioner in 1981 was an employee of Bank of Oman, now Bank Al-Mashriq, at Dubai and acquired a life policy No,D/65/0000847 dated 10-8-1981.
The said policy was acquired by the petitioner from the office of the respondent No,1 situated at Dubai. The petitioner thereafter joined BCCI and when the said Bank faced some crisis he came back to Karachi. On 22-7-1991 the petitioner wrote a letter to the respondent No,1 at their Karachi Office intimating about some recent changes, which letter as per the petitioner was duly received in the office of the respondent No, 1 . According to the petitioner, he thereafter made a number of attempts by reminding the respondent No,1 to decide the fate of his insurance policy. Thereafter vide letter dated 18-2-2000 the respondent No,1 informed the petitioner about the current status of his policy. Subsequently the petitioner vide letter dated 10-5-2000, informed the respondent No,1 that the working of the policy made by them was incorrect as they have made certain arbitrary deductions adversely affecting the petitioner. The respondent No,1 thereafter informed the petitioner that as a special case they were ready to revive the policy subject to the terms and conditions as mentioned in their letter dated 11-6-2002 seeking from the petitioner a payment of Dirham 67,281.32 including 100% late fee with further medical examination of the petitioner.
Thereafter the petitioner kept on pursuing" the matter and a letter dated 18-9-2000 was received by him from the Chairman Complaint Cell of the respondent No,1, however, as per the petitioner; no fruitful result was obtained. The petitioner thereafter accepted the offer of revival of the policy with the request of waiver of revival fee vide his letter dated 10-7-2000. On 12-11-2000 the respondent No,1 informed the petitioner about refusal to revive the said policy due to certain reasons.
4. Being left with no remedy the petitioner approached the Mohtasib on 28-3-2001 by filing a complaint. The matter thereafter proceeded before the Mohtasib, who after hearing the parties at length came to the following conclusion:-- "(a) The Life Policy of the petitioner be revived.
(b) Rectification be done and accounts adjusted.
(c) Mark-up be waived and late fee charged at a higher rate be revived.
(d) Declaration of good health be obtained, instead of medical checkup.
(e) Compliance in 30 days w.e.f. 19-4-2002".
5. According to the petitioner, in spite of several reminders the respondent No,1 did not comply with the instructions of the Mohtasib on one pretext or the other and made a representation to the President of Pakistan i.e. Respondent No,2, who without giving any opportunity of hearing to the petitioner upheld the representation of the respondent No,1 in the manner enumerated above. It is against the said order passed by the respondent No,2 that the present petition has been filed.
6. The petitioner Mr. Vakil Ahmed Siddiqui appeared in person and submitted that a number of letters were written by him from time to time to the respondent No,1 but they have failed to take any action in this regard and kept ignoring the same. He submitted that the respondent No,1 has illegally failed to revive the policy and had arbitrarily demanded exorbitant revival fee from him. He submitted that it almost took 10 years to the respondent No,1 to give a plausible reply in response to his various letteRs, He submitted that the respondent No,1 was inefficient so far as keeping proper record of the petitioner's policy and due to their mismanaged affairs the petitioner had suffered. As per the petitioner he timely informed the respondent No,1 that in view of the changed circumstances it would not be possible for him to continue the policy but instead of settling the account and reconciling the matter regarding payment of the premium amount in dispute the matter is lingering on ever today. He stated that he addressed a number of letters to the respondent No,1 about change of address and rectification of some errors, which remained unanswered. He stated that the mala fide on the part of the respondent No,1 is obvious from the fact that they after making arbitrary deductions from the premium amounts paid by the petitioner informed him about the same but no proper effect in calculating the amounts paid by the petitioner was given by the respondent No,1 with regard to the amounts paid in foreign currency between the years 1981 to 1991 which speaks volume about the inefficiency and incompetency of the respondent No,1 in maintaining proper policy account of the petitioner. He stated that though the respondent No,1 in his letter dated 11-6-2002 has narrated that the case of the petitioner was being treated as a special case but the actual story was contrary to this letter as according to the petitioner the respondent No,1 instead of helping out the petitioner rearranged the policy in an arbitrary manner by demanding 100% late fee for the same. He stated that the respondent at no point of time settled the account with the petitioner regarding the amount already paid by the petitioner but kept on embarking upon the balance payment with late fee etc. In order to revive the said policy. He stated that when he came to the conclusion that no fruitful result would be obtained in this regard and the respondent No,1 is not acceding to the request made by him he filed a complaint with the Mohtasib, who after detailed deliberation and obtaining detailed reply from the parties decided the matter in his favour. He stated that the respondent No,2 has passed the present order without affording any opportunity of hearing to him and without even asking to file his objections in this regard or apprise to the respondent No,2 about factual position. He stated that the order passed by the respondent No,2 is not in accordance with Article 32 of the Establishment of Office of Wafaqi Mohtasib (Obudsman) Order, 1983 (Order 1983) and is liable to be quashed. He further submitted that the order passed by the respondent No,2 could by no stretch of imagination be considered to be a speaking order and hence is liable to be set aside as the respondent No,2 has not considered the fact that the respondent No,1 vide its order dated 12-11-2000 had admitted their negligence and apologized to the petitioner with regard to certain omissions. He stated that the respondent No,2 has also not considered the fact that the respondent No,1 had deliberately delayed the matter which had adversely affected the petitioner. He stated that the respondent No,2 instead of helping the petitioner, being victim of the respondent No,1, had helped the respondent No,1 without any legal and lawful justification. In the end he prayed that the order passed by the respondent No,2 may be vacated and that of Mohtasib may be restored.
7. Mr. Ghulam Ali, learned counsel appeared on behalf of the respondent No,1 and stated that this petition is not maintainable as alternate remedy as provided under the Insurance Act was available to the petitioner and hence this petition is not maintainable. He in this regard invited our attention to the relevant provision of the Act. He stated that the order passed by the respondent No,2 is in accordance with law as the said competent authority after going through the file and the record came to the conclusion that the order passed by the Mohtasib was not correct. However, in response to a question raised by this Bench as to whether before passing the order any opportunity of hearing was provided to the petitioner or not, he submitted that the same was not necessary as the respondent No,2 has passed the order after going through the record of the case.
He further submitted that the petitioner has come to the Court with unclean hands as he was a defaulter in payment of the policy premium and thereafter his policy came to an end but when the petitioner requested for revival of the same he was granted the facility of the revival, subject to the condition that he should first pay the requisite revival fee, which too was not paid by the petitioner.
He stated that the petitioner was required to pay a sum of Dirham 67,280.92 for revival of his policy, which was not paid at all rather the petitioner kept on lingering the matter on one pretext or the other. He stated that there is no fault of the respondent No,1, as it was the petitioner who firstly did not pay the premiums timely and promptly and thereafter with mala fide intention has filed the present Constitutional Petition, which is liable to be dismissed with costs.
8. We have heard the petitioner, and the learned counsel for the respondent No,1 at length and have also heard Mr. Anwar Tariq Advocate, who was sitting in the Court in some other matter, and have perused the record and decision given by the apex Court.
9. It is seen from the record that a letter of acceptance dated 10-8-1981 was issued by the respondent No,1 in favour of the petitioner wherein a policy in the sum insured for UAE Dirham 80,000 for a term of 21 years and a premium amount has been fixed at Dirham 508.24 payable annually. Thereafter some dispute arose between the parties with regard to the status of the policy and when policy reached near maturity the petitioner was informed that the entire money deposited by him from 1981 to 1991 has been adjusted against the late fee. The petitioner kept on pursuing the matter but it appears that no satisfying reply was furnished by the respondent No,1 in this regard. It is only on 11-6-2000 that UAE Office of the respondent No,1 addressed a letter to the petitioner showing their deep regret on the matter and informing that the policy of the petitioner had become auto surrender due to the non-payment of the premium since 5-3-1993. However the petitioner was allowed revival of the policy as a special case on the condition that he pays balance required amount of Dirham 67281.32 and further get his full medical checkup from the Doctor of the respondent No,
1. It was also informed that only after the receipt of the payment the matter will be proceeded and one month's time was allowed for doing the needful. Thereafter vide letter dated 12-11-2000 the Branch Office of the respondent No,1 at Dubai informed that as the said offer was not availed by the petitioner his policy cannot be revived and all the amounts of premium paid by him were adjusted against the outstanding premium and late fee. It is, however, noted that in the said letter it was admitted that due to oversight the matter regarding adjustments were not informed to the petitioner previously and in this regard apology was tendered. It was also informed that as per the policy of the respondent No,1 if any person wants to revive a policy he has not only to pay the full arrears but also other charges including the late fee etc. It was only thereafter that the petitioner approached the Mohtasib with an application apprising him about the full facts of the case. Representation was made by the respondent No,1 before the Mohtasib, who after detailed deliberation vide his order dated 19-4-2002 observed as under:- "9. In view of the above, the Agency is advised:-
(i) to waive 50% of the amount of DH 23,208.34 mentioned in SLIC letter of 11-6-2000.
(ii) late fee of DH 6,641.46 charged out of 2nd survival benefit vide SLIC's letter dated 5-7-1995, which has been charged at a rate which is more than 50% may be reversed and recalculated at the rate of 10 or 12%, after which 50% thereof may be waived (reference sub Para (c) at page 2).
(iii) to recheck payments as per list given to the representative of the Agency by the complainant.
(iv) to recalculate interest with correct value date if any payment is found missing or proper value date not given, and
(v) to obtain declaration of good health instead of medical examination reports, and
(vi) late fee may also not be charged from the date revival was offered to him, till the finalization of this case by this office.
10. Compliance be reported in 30 days hereof.
10. It is seen from the record that the petitioner has been made victim of the technicalities. It has been admitted by the respondent No,1, which has not been denied by the learned counsel representing the respondent No,1, that timely information about the status of the policy of the petitioner was not conveyed by the respondent No,1 which is evident from the letters of the respondent No,1 dated 11-6-2000 and 12-11-2000. The respondent No,1 instead of helping its policy holder appears to have indulged him in technicalities. The attitude of the respondent No,1 appears to be contrary as at one hand they were apologizing the petitioner for not keeping him abreast about his policy and on the other hand putting such conditions which were impossible to meet by the petitioner. The Mohtasib, in our view, after detailed hearing of the case had come to the correct conclusion that the respondent No,1 on the one hand was holding the money of the petitioner and on the other hand was also demanding late fee. It is also to be noted that Mohtasib also came to the conclusion that in fact the respondent No,1 had penalized the petitioner for their own inefficiency and had the petitioner been timely informed about the status of his policy the position could have been different but admittedly the respondent No,1 did not give any reply to the various letter written by the petitioner to them and kept mum in this regard, which is evident from the letter written by the respondent to the petitioner apologizing for their indifferent attitude. It appears that the respondent No,1 instead of guiding the petitioner had kept him in total darkness about the status of his policy. The Mohtasib has also come to the conclusion that the record maintained in this regard by the respondent No,1 was also defective as the premiums have not been recorded properly and some premiums had been missed out in the said record. We are, therefore, of the considered view that the order passed by the Mohtasib does not suffer from any legal or factual error in this regard.
11. Now coming to the second limb of this case that whether the order passed by the Section Officer dated 11-1-2003, which is impugned in the present petition, could be considered a legal and just order or not? Suffice it to say that the Hon'ble Supreme Court of Pakistan in the case of Federation of Pakistan v. Muhammad Tariq Pirzada reported as 1999 SCM R 2189 and 1999 SCM R 2744 has observed as under:- 1999 SCM R 2189 "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 maladministration".
1999 SCMR 2744 "10. 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 would be seen that under Article 32 of the Order, any conceivable just and proper order can be passed, depending upon the facts of each case. The phrase "as he may deem fit" implies that the President has jurisdiction, power and competence to pass all proper and necessary orders as the facts of each case justify and in doing so he must decide rightly and in accordance with law. 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".
12. Perusal of the above observations made by the Hon'ble apex Court it would appear that undoubtedly the President has the authority under section 32 of the Order, 1983 to pass any order as he may deem fit but such exercise of the powers must be conducted in a just and fair manner and recommendations of the Mohtasib can only be interfered with by assigning valid reasons.
Simply affirming or discarding the findings of the Mohtasib, in our view, would not be termed as proper dispensation of justice vested in this regard. The respondent No,2 has to pass a speaking order mentioning the reasons for accepting or discarding the recommendations of the Mohtasib and provisions of section 24-A of the General Clauses Act are fully attracted in the circumstances.
A specific question was asked from the learned counsel representing the respondent No,1 that whether the recommendations of the Mohtasib disapproved by the respondent No,2 could by any stretch of imagination be considered to be a proper dispensation of justice, learned counsel could not controvert the same except by stating that the President has ample powers to reject or accept the recommendations of the Mohtasib. We fully agree with the contention of the learned counsel representing the respondent No,1 that the respondent No,2 has ample authority under the law to accept or to reject the recommendations of the Mohtasib but the question is whether this exercise of authority has to be made by way of passing a speaking order or by passing the order in a cursory manner? In our opinion the answer to this proposition is quite simple and would be in an emphatic 'Yes' that the exercise of authority should be by way of passing a well reasoned and a speaking order. It is seen that in the present case the recommendations of the Mohtasib have been discarded without giving even a single reason for doing the same and in a very hasty manner the matter appears to have been disposed of, which could not be considered a proper dispensation of justice.
13. We, therefore, in view of the above observations have come to the conclusion that as the matter was not disposed of by the respondent No,2 in a legal and judicious manner by fulfilling the norms of the law, the order in this regard passed by the respondent No,2 is hereby set aside and the recommendations of the Mohtisib stands restored.
' Respondent No,1 is directed to implement the recommendations of the Ombudsman within a period of thirty days from the date of this order.
' Above are the detailed reasons in respect of our short order dated 2-6-2011.