1. NAZIM HUSSAIN SIDDIQUI, J.---The petitioner has impugned the order dated 21-11-1991 passed by learned Wafaqi Mohtasib,. Respondent No.l. The facts forming the background of this petition are as follows:-- The respondent No.2, who is an employee of petitioner National Bank of Pakistan, was proceeded with by the petitioner for omissions and commissions, in respect of service matters, and in that connection 5 charges were framed against him. It is alleged that after inquiry, the competent Authority decided to award punishment of degradation to lower stage of pay by two steps and also debarred him from promotion for next two years under Rule 37(b) of the National Bank of Pakistan Staff Service Rules, 1980. This order was challenged by the respondent No.2 vide Writ Petition No.33/89 before the Lahore High Court, Rawalpindi Bench, in which he had impleaded the petitioner and 22 other officers, serving with the petitioner, but those private respondents later on were voluntarily deleted by him vide order dated 14-5-1989 of Lahore High Court. This petition was accepted, as per order dated 28-6-1989, and its operative part is as follows:-- "Since opportunity of personal hearing was not afforded to the petitioner by the competent authority before infliction of punishment the writ petition is accepted with consequential benefits and order dated 30-12-1986 is declared to have been passed without any lawful authority and of no legal effect and is set aside."
2. The petitioner challenged the aforesaid judgment of Lahore High Court before the Supreme Court of Pakistan through petition for leave to Appeal in which leave to appeal was granted by the Hon'ble Supreme Court of Pakistan 6n 23-10-1989, but finally the appeal was dismissed vide judgment dated 19-6-1990/22-12-1990. The petitioner preferred review petition, -but ,.The same, as per order dated 6-2-1991, was rejected being time barred. It is said that detailed judgment of the said appeal was still not available, when the respondent No.2 filed proceeding for contempt in the Lahore, High Court against the petitioner. The Lahore High Court called a report from the petitioner which accordingly was submitted and therein it was mentioned that no contempt was committed and the orders of High Court and Supreme Court of Pakistan were being implemented. Thereafter, the Board of Directors of the petitioner, on 20-3-1.991, ordered promotion of respondent No.2 in the.
3. Grade of Executive Vice-President with effect from 1-1-1988, treating the order of punishment dated 30-12-1.986 as non-existent., The contempt proceedings were finally dismissed, vide order dated 10-7-1991, with the following observations- "8. As is evident from the preceding paragraphs the petition moved by the petitioner proceeds mainly on the premises that acceptance of the writ petition by this Court and dismissal of the appeal of the respondents by the Supreme Court implied grant of the relief to him in the same terms as was prayed by him. This contention requires the interpretation of the order of the Supreme Court because the order dated 28-6-1989 of this Court stands merged into the order dated 11---12-1990 passed by the Supreme Court. I am afraid if this Court is in a position to do so. In the above circumstances, if the petitioner has any grievance against the alleged non-compliance of the order he should agitate the matter before, the Supreme Court."
4. During the pendency of. Contempt proceedings, Messrs Mumtaz Saeed and Syed Mehdi Mustafa, two serving officers of the petitioner, who were shown as respondents by the respondent No.2 in Writ Petition. No.113/89, and were voluntarily dropped as per order dated 14-5-1989 applied before ,the Lahore High Court for being heard before implementation of the order of the High Court dated 28-6-1989, as according to them, they were. Adversely to be affected by such implementation.
5. Their applications were, however, disposed of in view of the dismissal of contempt proceedings.
6. The respondent No.2, instead of agitating the matter before the Hon'ble Supreme Court in the light of High Court order dated 10-74W] quoted above, filed complaint before the respondent No.1 seeking immediate, implementation of the order of the Hon'ble Supreme Court of Pakistan. In this complaint before the respondent No.1, the respondent No.2 did not disclose about contempt proceedings and the order passed thereon. The respondent No.1 by impugned order dated 21-11- 1991, passed on the complaint No.K/2110/91-A-390, directed the petitioner to report complete compliance of the order within .30 days from the receipt of the said order in terms of Article 11 (2) of.
7. The Establishment of the office of Wafaqi Mohtasib (Ombudsman) Order No.1 of 1983 (hereinafter called the Presidential Order I of 1983). in order to appreciate the points involved in this petition, it would be useful to reproduce the definition of "Agency' and "mal-- administration" as given in the Presidential Order I of 1983. They are as follows:-- "Agency' means a Ministry, Division Department, Commission or office of the Federal Government or a statutory corporation or other institution established or controlled by the Federal Government but does not include the Supreme Court, the Supreme Judicial Council, The Federal Shariat Court or a High Court;" mal-administration' includes, a decision, process, recommendation, act of omission or commission which--
(i) - 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 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, favoritism, nepotism and administrative excesses; and
(ii) neglect, inattention, delay, incompetence, inefficiency and inaptitude, . In the administration or discharge of duties and responsibilities;".
8. Articles 9 and of the Presidential Order are a1so-elevant and they re reproduced below:- "9. Jurisdiction, functions and' powers of the Mohtasib.--(l) The Mohtasib may on a complaint by an aggrieved person, on a reference by the President, the Federal Council or the National Assembly, as or a High Court made during the course of any proceeding before it or of his own motion, undertake any investigation into any allegation of mal-administration on the part of any Agency or any its officers or employees:-- Provided that the Mohtasib shall not, have any jurisdiction to investigate or inquire into any matters which-- are sub-judice before; a Court of competent jurisdiction or judicial tribunal or board in Pakistan on the date of the receipt of a complaint reference or motion by him; or
(b) relate to the external affairs of Pakistan or the relations or dealing of Pakistan with any foreign state or government; or (c)relate to, or are connected with, the defence of Pakistan or any part thereof, the Military, naval and air forces of Pakistan, or the matters covered by the laws relating to those forces.
(2) Notwithstanding anything contained in clause (1), the Mohtasib shall not accept for investigation any complaint by or on behalf of a public servant or functionary concerning any matters relating to the Agency. In which he is, or has been working in respect of any personal grievance relating to his service therein., (3)For carrying out the objectives of this Order and, in particular for ascertaining the root causes of corrupt practices and injustice, the Mohtasib may arrange for studies to be made or research to be conducted and may recommend appropriate steps for their eradication.
9. (4)The Mohtasib may set up regional offices as, when and where required."
10. "29. Bar of jurisdiction.' 4o Court or other I authority shall havejurisdiction--'
11. 1)to question the validity of any action taken, or intended to be taken,-or. Order made, or anything done or purporting to have been taken, -made, or done under this Order; or (2)to grant an injunction or stay or to make any interim order in relation to any proceedings before, or anything done or intended to be done or purporting to have been done by, or under the orders or at the instance of the Mohtasib." it is contended on behalf of the petitioner that the office of respondent No.1 is not a constitutional office like that of President (Article 42), Prime Minister (Article 91), Federal Ministers (Article 92), Speaker and Dy. Speaker (Article 53), Chairman and Deputy Chairman of Senate, Members Majlis- e--Sboora (Article 62), Governor (Article 1.02), Chief Minister (Article 131), Provincial Ministers (Article 132), Auditor General (Article 168), Chief Justice of Pakistan (Article 178) and Chief Justices of High Courts (Article 194) of the Constitution. He submitted that appointment of Wafaqi Mobtasib is made under Article 3 of the Presidential Order I of 1983 by the President. He also submitted that no specific Article is available in the Constitution for Wafaqi Mohtasib like that of the above mentioned constitutional offices, and "as per Fourth Schedule Article 70(4) of the Constitution, 'item No.13, the Federal Government legislates laws in respect of the Federal Ombudsman. Learned counsel argued that since the appointment of Wafaq! Mohtasib is under 'a Statute,,, therefore, all those conditions which are attached to a constitutional office are not available to him.. The plea that. The office of the' respondent No.1 is not a constitutional office as that of those referred to above, has not been challenged by the respondents and probably it could not be challenged due to absence of any Article in the Constitution regarding Wafaqi Mohtasib, and nor to is plea has any bearing so far the merits of this case are concerned.
12. Mr. S.M. Zafar learned counsel next argued that in view of Article 9(2) of the Presidential Order I of 1983 and it being admittedly a case relating to personal grievance of service, the respondent No.1 had no jurisdiction in the matter. He also submitted that for this very reason the impugned order is illegal, unwarranted, and of no legal effect. In support of his contention, he cited (1) PLD 1975 SC 58 Shabbir Ahmad v. MA. Kabir-un-Nisa and others. (2) PLD 1963 SC,322 Nagina Silk Mill Lyallpur v.
13. Income Tax Officer and others (3) PLD 1992 Kar. 65 International Cargo Handling Co. Ltd. v. Port Bin Qasim Authorities. Ln ,Shabbir Ahmad's, case it was held that assumption of jurisdiction upon clear mis-reading of provisions of law and such error apparent on the face of record is open for interference in writ jurisdiction. Ln, Nagina Silk Mills case the principle laid down by the Hon'ble Supreme Court is that in case of absence or excess of jurisdiction or where the impugned order suffers for illegality on the basis of record a certiorari may be granted even though the right of statutory appeal had not been availed of. In International Cargo Handling Co. Limited case a learned Single Judge of this Court held that Wafaqi Mohtasib's order was suffering from want of jurisdiction and in such circumstances the Court has -inherent jurisdiction to prevent injustice done to as aggrieved person.
14. As against above, learned counsel for the respondents contended that this case clearly falls within the scope of "mal-administration" as such, the respondent No.1 had jurisdiction in the matter. It has also been argued on behalf of the respondent No.1 that proviso (a) of the sub-Article (1) of Article 9 of the Presidential Order No.1 of 1989, only ousts the jurisdiction of the respondent No.1 in respect of matters which are subjudice before the Courts of competent jurisdiction ofjudicial tribunals and the case in hand being already finally decided the respondent No.1 had jurisdiction in this matter.
15. 'In other words the contention is that jurisdiction is only ousted in respect of those matters, which are subjudice and not those, which have already been, finally decided. Learned counsel also submitted that, in view of Article 00 of the Constitution. All executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court. A plea has also been taken that in -view of Article 270-A all orders made, proceedings, taken, and acts done by any authority or by any person during the period specified in this Article shall be deemed to be and always to have been validly made, taken or done and shall not be called in question in any Court on any ground whatsoever and the impugned order of the respondent No.] is covered by this Article. It is ,contended that this Article is not subject to the Article 199.
16. We are of the view that, admittedly it being a matter relating to personal grievance, the respondent No.1 had no jurisdiction in the matter. The A respondent No.1 while dealing ,this point in the impugned order observed as follows:- "Although the complaint relates to service matters but it has been alleged that the Agency is not implementing the order of the High Court and the Supreme Court whole-heartedly with the mala fide motive of depriving the complainant of his rightful claim. If it is. So, it comes within the definition of 'mal-administration 'and hence within the jurisdiction of Wafaqi Mohtasib".
17. The Supreme Court, the Supreme Judicial Council, Federal Shariat Court. And High Court-, do not fall within the scope of Agency. Article 9 (2) of the Presidential Order I of 1983, it appears, has not been correctly interpreted. A statute is to be construed in a way that every part of it is to be given.
18. Its effect and no clause, sentence, or word is to be, considered, redundant.. It is, for the reason that the legislature does not use any unnecessary, word in the Statute. Sub Article 2 of Article 9 of the Presidential Order No.1 of 1983 is. Non-- obstante clause, which either creates exception or it clarifies original position, In the instant case, it has certainly created an exception and should be treated as such. Article 37 of the Presidential Order 1 of 1983 cannot be construed in a way as to totally erase out the provisions of Sub-Article (2) of Article 9 of the said Order.
19. Once the matter is found pertaining to the personal grievance of service the jurisdiction of Wafaqi Mohtasib is ousted even though the matter D may have been finally decided. It is true that all executive and judicial. Authorities shall act in aid of the Supreme Court, but that has to be subject to the various laws and provisions of the Constitution. We are also not impressed by the plea that, in view of Article 270-A of the Constitution, the impugned order cannot be challenged. When assumption of jurisdiction is clearly based upon misreading of the provisions of law, it is, and has always been, a valid ground for interference in writ jurisdiction. All laws which have been protected under article 270-A of the Constitution are required to be implemented within the -four corners of the relevant Statute. Cover of said protection cannot be used for defending an order which, ex- facie, is without jurisdiction.
20. The cases cited by learned counsel for the respondent No.1 (1) PLD 1966 SC I Mian Jamal Shah v. The Provincial Election Commission Government of Pakistan Lahore and others (2) PLD 1991 SC 691 Mohammad Baran and others vs. Members Settlement and Rehabilitation Board of Revenue, Punjab and others to contend, on the basis of these cases, that in writ matters anything in the nature of the exercise of full scale appellate jurisdiction must be rigorously avoided by the High Court, and that before a person can be permitted to invoke discretionary constitutional jurisdiction under Article 1.99 it must be, shown that the order sought to be set aside had occasioned some injustice to the parties, have no bearing so far the facts of this case are concerned. They are distinguishable. In the instant case, there is no question of exercise of full scale appellate jurisdiction as the impugned order, ex-facie, is without lawful authority. In the case reported in PLD 1959 SC 147 it has been held that the matters like reinstatement of person in a great public department involve a great many consideration such as seniority, suitability, salary, and treatment of the period of absence which arc exclusively within the competence of the relevant authorities and can only be decided by those authorities after a good deal of examination and care involving the exercise of discretion and judgment in regard to many complex matters. The- petitioner, therefore, in all fairness should have been given reasonable time to implement the order of Hon'ble Supreme Court and there was no justification in haste to approach the respondent No.l.
21. Learned counsel for the petitioner next argued that respondent No.2, if aggrieved, could invoke the jurisdiction of the Supreme Court regarding the interpretation of the Supreme Court order dated 22-12-1990. The Lahore High Court, in its order dated 10-7-1991 quoted above, has taken the view that the respondent No.2 should agitate the matter before the Supreme Court and we also hold the same view on this point.
22. Learned counsel for the petitioner also contended that -respondent No. 1 cannot be turned into an executing Court. The writ is k constitutional jurisdiction and not a proceeding 'stricto sensu'.
23. Normally he executing Court for such purpose is High Court, except as provided' under Article 9(1) of the Presidential Order 1 of 1983. The respondent No.1 is G iot legally competent to take upon himself the functions of executing Court in such matters. The case in hand is not covered by the aforesaid exception Mr. Sharaf Faridi learned counsel for the respondent No.2. Argued hat the petition is premature, 'in as much as, the petitioner neither under Article 1](2) of the Presidential Order 1 of 1983 has informed the respondent 4o.1 about the action taken on his recommendation and nor before coming to he Court the remedy available under Article 3 ' 2 of the said Order was availed. ,'his contention in our view has no force. Learned counsel for the petitioner meeting this argument cited PLD 1972 SC 279, the Murree Brewery Co. Ltd. v. 'Pakistan through Secretary to Govt. Of Pakistan, wherein it has been held that he rule that High Court will not entertain the writ petition when other appropriate remedy available is not a rule of law barring jurisdiction, but it is a rule by which the Court regulates its jurisdiction. Further, it has been held that the of the well recognised exceptions to the general rule is a case where an ,order is attacked on the ground that it was wholly without authority. In the case I hand also, the jurisdiction of the respondent No.1 was clearly barred and he H ad no authority to pass the impugned order. Therefore, following the rule laid down in the above. Quoted Supreme Court case, we hold that this petition is maintainable.
24. In view of the above discussion, we allow this petition and hold that the impugned order dated 21- 11-1991 passed by the respondent No.1 is illegal, without lawful authority and of no legal effect. Under the circumstances, the parties are left to bear their own costs.
25. A.A./N-419/K