' MUHAMMAD KHALID MEHMOOD KHAN, J.---The respondent No,1 filed a constitutional petition against the respondents Nos.2 and 3, complaining that the Federal Ombudsman vide an order 14- 7-2011 directed respondents Nos. 2 and 3 to restore the respondents sui gas connection subject to payment of 40% of disputed amount, the respondents have refused to comply with the order of Ombudsman.
2. That during the proceedings learned counsel for respondents Nos.2 and 3 informed learned Single Judge that office of Federal Ombudsman is lying vacant since October 2010 and the consultant who passed the impugned order enjoys no powers to issue any directions and as such the Officials of Wafaqi Mohtasib are doing illegal acts after October 2010. The learned Single Judge issued notices to the Secretary Federal Ombudsman, and the respective consultant, they appeared and learned Deputy Attorney General for Pakistan representing Federal Ombudsman argued that under Article 19 of the Establishment of the Office of Wafaqi Mohtasib (Ombudsman)
Order, 1983 (hereinafter referred to as "the Order, 1983") the Wafaqi Mohtasib has delegated judicial as well other powers to officers/consultants and the Consultants/Officers being the delegate of Ombudsman are performing their duties. Learned Single Judge after hearing the parties directed as under: "7. I, therefore, direct Secretary Wafaqi Mohtastb to hold a detailed inquiry into the matter and to initiate departmental action against the officers/consultants, who have violated the law by passing interim orders on behalf of the Wafaqi Mohtasib and submit a detailed report to this court within a period of three months from today clearly showing the actions taken against the said officers. The Secretary of the Wafaqi .Mohtasib is also directed to ensure that no judicial order/interim order is issued in future by the staff/officers/consultants working at the Wafaqi Mohtasib Secretariat. As far as the main case of the petitioner is concerned, let it come up for hearing on 15-11-2011."
3. The appellant being Secretary of Wafaqi Mohtasib Secretariat filed the present appeal.
4. The affected consultants/authorized officers filed an application under Order I rule 10 Code of Civil Procedure, 1908 for impleading them as appellants/the aggrieved persons of the impugned order. Their application was allowed vide order dated 21-2-2012 and they are impleaded as appellants Nos. 2 to 7.
5. The learned counsel for appellants submits that under Article 19 of the Order, 1983, the Wafaqi Mohtasib, has delegated powers to appellants and the appellants are duly appointed Consultants under Article 20 of the Order, 1983. No doubt the office of Wafaqi Mohtasib is lying vacant but the appellants are performing their duties under their delegated authority. Learned counsel for appellants has relied on an order dated 21-7-1999 of Acting Ombudsman and submits that the appellants are performing their duties in good faith and their all acts done in good faith are protected under Article 30 of the Order, 1983 and as such the learned Single Judge had erred in law while passing the impugned order. Learned counsel further submits that the appellants have been condemned unheard and impugned order is against their guaranteed rights under the Constitution of the Islamic Republic of Pakistan. Learned Counsel submits that under Article 10-A of the Constitution of the Islamic Republic of Pakistan 1973, the appellants are entitled of fair trial.
Learned counsel adds that the impugned order is even otherwise not sustainable in the eye of law.
Learned counsel relied on Reference No,2 of 2005 by the President of Pakistan (PLD 2005 SC 873).
6. Learned counsel for respondent/Sui Northern Gas Pipelines Limited submits that the appellants have no authority in law to exercise the powers of Ombudsman under the garb of delegation of powers, the appellants have no authority to investigate the matter and pass any recommendation or issue directions for doing acts which are only within the jurisdiction of Wafaqi Mohtasib. Learned counsel submits that the delegated powers come to end when the delegator vanishes from the scene and an agent loses his authority to act on behalf of his principal when such principal is removed from the picture. Learned counsel thus submits that the appellants who claim to be consultants have no authority to act in the absence of Wafaqi Mohtasib. Learned counsel has relied on Karim Bakhsh v. Mst.Mubarik Jan (PLD 1970 Peshawar 169), Jodhey and others v. State through Ram Sahai (1952 Cri.L.J. Allahabad High Court 1282), Philips Electrical Industries of Pakistan Ltd. v. Pakistan and others (2000 YLR 2724), Messrs Shaheen Air International Ltd (SAD and others v. Messrs Voyage De Air and others (2006 SCMR 1684) and Federation of Pakistan through Secretary Ministry of Law, Justice and Parliamentary Affairs, Islamabad v. Dr.Mubashir Hassan and others (PLD 2012 SC 106).
7. We have heard the learned counsel for the parties and perused the record.
8. Admittedly the office of Wafaqi Mohtasib is lying vacant since October 2010. It is an admitted fact that the appellants Nos.2 to 7 were appointed as consultants; the consultants in the absence of Wafaqi Mohtasib are issuing recpmmendations on the complaints of the aggrieved persons against agencies/ departments, etc. The appellants have relied on order dated 21-7-1999 passed by acting Wafaqi Ombudsman, for better appreciation of appellants contentions it is reproduced as under: "WAFAQI MOHTASIB (OMBUDSMAN)'S SECRETARIAT No,8(60)A.I/99 Islamabad, the 21st July, 1999
' In exercise of the powers conferred on me under Article 19 of the Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 (President Order No,1 of 1983) I hereby delegate the powers of Investigation under Clauses (4) to (8) of Article 10 and Clauses (1). To (3) of Article 14 of the Order to all the Investigating Officers of this Secretariat at the Head Office and the Regional Offices.
Sd.
(JUSTICE KHALIL UR REHMAN KHAN)
Acting Ombudsman"
9. The very purpose of the establishment of office of Wafaqi Mohtasib is provided in the preamble of Order 1983 which reads as under: "Whereas it is expedient to provide for the appointment of the Wafaqi Mohtasib through (Ombudsman) to diagnose, investigate, redress and rectify an injustice done to a person through maladministration."
10. The President of. Islamic Republic.Of Pakistan under Article 3 of the Order 1983 appoints the Wafaqi Mohtasib but surprisingly .The qualification of Mohtasib is not provided in the entire enactment, and the Mohtasib before entering into office takes oath before the President as set out in the first schedule of Order 1983. Under Article 3(3) of Order 1983, the Mohtasib in all matters shall perform his functions and exercise his powers fairly,. Honestly, diligently and independently of the Executive, and all executive authorities throughout Pakistan shall act in aid of the Mohtasib.
11. Under Article 11 of the Order 1983, the Wafaqi Mohtasib after investigating the complaint against any agency has to issue recommendations for implementation to the concerned agency. For better appreciation of the jurisdiction and authority of Wafaqi Mohtasib, Article 11 is reproduced as under: "11. Recommendations for implementation.-(1) If after having considered a matter on his own motion or on a complaint or on a reference by the President, the Federal Council or the National Assembly, or on a motion by the Supreme Court or a High Court, as the case may be, the Mohtasib is of the opinion that the matter considered amounts to maladministration, he shall communicate his findings to the Agency concerned."
12. The perusal of Article 11 of the Order, 1983 shows that Wafaqi Mohtasib after completing investigation and probing the matter has to communicate his finding to the agency concerned, meaning thereby Wafaqi Mohtasib can only recommend remedial measures against the concerned officers of the agency if in his opinion it is proved that any malpractice exists at the part of the agency. Under Article 16 of the Order, 1983, the Wafaqi Mohtasib also enjoys the power to punish for contempt and his powers are mutatis mutandis with the Supreme Court of Pakistan thus the powers of Ombudsman are of quasi-judicial nature.
13. The argument of learned counsel for appellant is that delegated powers continue even if the delegator office become vacant, because statutory office continue to exist in the absence of its incumbent for the time being. To appreciate the argument of Learned Counsel, One has to see, whether Ombudsman himself has the power to further delegate his powers or he alone can exercise his statutory powers.
14. Article 19 of the Order 1983 provides the delegation of powers of Wafaqi Mohtasib, The Article is read as under: "19. Delegation of Powers.-The Mohtasib may, by order in writing, delegate such of his powers as may be specified in the order to any member of his staff or to a standing or advisory committee, to be exercised subject to such conditions as may be specified and every report of such member or committee shall first be submitted to the Mohtasib with his or its recommendations for appropriate action. "
15. Under Article 20 of the Order 1983, the Wafaqi Mohtasib has the power for appointment of advisers; which is read as under: "20. Appointment of advisers, etc.-The Mohtasib may appoint advisers, consultants, fellows, bailiffs, interns, commissioners and experts, or ministerial staff with or without remuneration, to assist him in the discharge of his duties under this Order."
16. It is a case of appellants that they are duly appointed advisers under Article 20 of the Order 1983 and Wafaqi Mohtasib has delegated powers to appellants under Article 19 of the Order 1983. Article 19 of the Order ibid provides that Wafaqi Mohtasib may by order in writing delegate such of his powers as is specified in the order to any member of his staff or to a standing or advisory committee to be exercised subject to such conditions as may be specified and every report of such member or committee shall first be submitted to the Mohtasib with his or its recommendations for appropriate action.
17. The order dated 21-7-1999 relied on by the appellants shows that acting Ombudsman has delegated limited powers to appellants less the power to pass final recommendation.
18. The words used in Article 19 ibid are "shall first be submitted to the Mohtasib with his or its recommendations for appropriate action" The language of Article 19 shows that the delegatee under Article 19 of the Order ibid has no independent right to do any act on behalf of Wafaqi Mohtasib. No doubt the authorized/delegate can investigate and probe into the complaint but he/she has to submit his recommendations to Wafaqi Mohtasib for appropriate orders. This means that Wafaqi Mohtasib is the only person under the Order 1983 who can pass the recommendations and the consultants/authorized officer can only investigate and probe the matter and to submit his report or recommendations to the Wafaqi Mohtasib, the delegate thus has no independent powers to issue any recommendations.
19. The reason for not delegating the powers to consultants/ authorized officers to recommend directly is evident, as the Wafaqi Mohtasib is under oath under the Order 1983 ibid; whereas the consultant is only the appointee of Wafaqi Mohtasib and is not tinder oath. The prescribed oath of Wafaqi Mohtasib is read as under: "THE FIRST SCHEDULE [See Article 3(3)] I,------------------------- do solemnly swear that I will bear true faith and allegiance to Pakistan; ' That as Wafaqi Mohtasib, I will discharge my duties and perform my functions honestly, to the best of my ability, faithfully in accordance with the laws of the Islamic Republic of Pakistan, and without fear or favour, affection or ill-will; ' That I will not allow my personal interest to influence my official conduct or my official decisions; ' That I shall do my best to promote the best interest of Pakistan; ' And that I will not directly or indirectly communicate or reveal to any person any matter which shall be brought under my consideration, or shall become known to me as Wafaqi Mohtasib, except as may be required for the due discharge of my duties as Wafaqi Mohtasib.
' May Allah almighty help and guide me (Ameen)."
20. The Ombudsman oath read with Article 19 of Order 1983, show that Wafaqi Mohtasib has no authority to delegate his powers to pass any final recommendation, -hence the principal if is unable to delegate his powers, how the agent can claim that he has the powers to act as Ombudsman.
21. There is another angle of this issue, under Article 7 of the Order 1983 in the absence to Mohtasib, the President has to appoint an Acting Mohtasib. The Acting Mohtasib also has to administer oath before the President as provided in second schedule. The appointment of Acting Mohtasib clearly, shows the intention of legislator, if the intention of legislator was that Wafaqi Mohtasib can delegate his powers there was no need to appoint the Acting Mohtasib, it can easily be enacted that the senior most officer of Wafaqi Mohtasib office will act as Wafaqi Mohtasib in the latter's absence. The provision of Acting Ombudsman in the statute are thus intentional.
22. The order of Acting Ombudsma n relied upon by the learned counsel for appellants also strengthens this proposition. The order dated 21-7-1999 passed by the Acting Ombudsman shows that he has delegated the powers of investigation under clauses (4) to (8) of Article 10 and clauses
(1) to (3) of Article 14 of the Order 1983 to all the investigating officers of the secretariat and regional office. Article 14 of the Order 1983 provides the powers of Mohtasib, the order of Acting Mohtasib shows that the powers defined in clauses (1) to (3) have been delegated only which do not authorize the delegatee to pass any recommendations. Clauses (4) to (7) of Article 14 of the Order 1983 provides that the Ombudsman alone can pass a final recommendation or order and powers under clauses (4) to (7) of Article 14 of Order 1983 ibi'd remain with the Ombudsman.
' The order dated 21-7-1999 is clear that the then Ombudsman has not delegated the powers to the Investigating Officer for issuing the final order or final recommendation.
23. It is an established principle of law that normally the judicial powers are confided to a person or office specific unless the statute provides otherwise. D. Smith in his monumental work on Judicial Review of Administrative Action, First Edition, Page 173 has opined as under: "A discretionary power must, in general, be exercised only by the authority to which it has been committed. It is well-known principle of law that when a power has been confided to a person in circumstances indicating that trust is being placed in his individual judgment and discretion, he must exercise that power personally unless he has been expressly empowered to delegate it to another."
24. The issue of delegation of judicial authority was considered by the HOUSE of LORDS in VINE v.
National Dock Labour Board (1957 AC 488) and it was opined as under:- "In deciding whether a "person" has power to delegate one has to consider the nature of the duty and the character of the person. Judicial authority normally cannot, of course, be delegated, though no one doubted in Arlidge's case that the Local Government Board, which consisted of the President, the Lord President of the Council, the Secretaries of State, the Lords Privy Seal and the Chancellor of the Exchequer (Local Government Board Act, 1871) could act by officials duly deputed for the purpose,, whether or not the act to be done had judicial ingredients. There are, on the other hand, many administrative duties which cannot be delegated. Appointment to an officer or position is plainly an administrative act. If under a statute a duty to appoint is placed on the holder of an office, whether under the Crown or not, he would, normally, have no authority to delegate. He could take advise, of course, but he could not ,by a minute authorized someone else to make the appointment without further reference to him. I do not, therefore, find it necessary to consider what judicial requirements might be held implicit in the local board's proceedings under clause 16. I am, however, clear that the disciplinary powers, whether "judicial" or not, cannot be delegated. The non-entitlement to pay, the suspension, the notice or the dismissal must be a step taken by the board and not by a delegate. The penalties, in some case, may be slight but, in some cases, very great."
25. Admittedly the consultants/appellants Nos.2 to 7 are not enjoying any powers to pass an independent order as Wafaqi Mohtasib themselves, the consultants under Article 20 of the Order 1983 are only to assist the Wafaqi Mohtasib in discharging of his duties and under Article 19 of the Order 1983 the final authority is with the Wafaqi_ Mohtasib for issuance of recommendations for appropriate action.
26. The argument of learned counsel for appellant thus fails, the consultants in the absence of Wafaqi Mohtasib are not authorized to pass the recommendations or order like the impugned order. The alternate argument of learned counsel for appellants is that the actions of consultants are protected under Article 30 of the Order 1983 done in the absence of Ombudsman. Learned counsel submits that. The consultants have passed the impugned order under a bona fide impression and in good faith that Wafaqi Mohtasib has delegated the powers to them for passing the final order or recommendation.
27. Admittedly the appointment of appellants Nos.2 to 7 as consultants is not in dispute but the dispute is only about the authority to pass final recommendation in the absence of Wafaqi Mohtasib. The appellants have no personal interest or bias against the respondents and as such the impugned order/act of the appellants Nos.2 to 7 will be deemed to be protected under Article 30 of the Order 1983 ibid being bona fide mistake.
28. The Federal Government is bound to appoint. Wafaqi Mohtasib. A similar issue of appointment of Chairman Accountability Bureau came up before the Hon'ble Supreme Court of Pakistan in Al- Jehad Trust and another v. Federation of Pakistan and others (PLD 2011 SC 811), the Hon'ble Supreme Court of Pakistan held as under:- "In the case of Al-Jehand Trust and others v. Federation of Pakistan and others (1999 SCMR 1379) it had been held that this Court can direct that proper administrative and legislative steps may be taken by the government where needed under the Constitution. Under Article 5(2) of the Constitution obedience to the Constitution and law is an "inviolable obligation" and, thus, the authority of this Court to direct taking of proper administrative and legislative steps needed under the Constitution would necessarily include the authority to direct taking of such steps where needed under the law.
8. For what has been discussed above the Federal Government is directed to fill the vacant offices of the Chairman, National Accountability Bureau and the Prosecutor-General Accountability within one month of announcement of this judgment positively failing which respondent No,5 shall ipso facto and without further ado stand denuded of his authority to continue exercising the delegated powers of the Chairman, National Accountability Bureau and performing any other function not conferred upon him by the National Accountability Bureau practically ceases to exist or function under the National Accountability Ordinance, 1999 then the blame far the same shall rest squarely upon the shoulders of the Federal Government. This Constitution petition is disposed of with the directions issued and the observations made above."
29. As the appellants have not impleaded the Federal Government as party to this appeal and as such we are unable to pass any direction to Federal Government; however, the office will pass on the copy of the judgment to the Federal Secretary Law for taking appropriate measures for appointment of Wafaqi Mohtasib.
30. In view of above, the impugned order of learned Single Judge is set aside to the extent only which provides that inquiry be initiated against the consultants who are passing recommendations in the absence of the Wafaqi Mohtasib. This appeal is thus allowed partially.