1. ' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the judgment of the High Court dated 4-7-1995 whereby the writ petition filed by respondent No,1 was accepted and the order of Ombudsman dated 9-7-1993 was set aside.
2. ' The facts giving rise to the present appeal are that Muhammad Akram respondent No, 1 was appointed as a teacher in Education Department on 7-6-1972 and was subsequently confirmed on 30-8-1972 against a clear vacancy. On an application by some anonymous person against the respondent that he manoeuvred his appointment as a teacher on the basis of forged matriculation certificate the District Education Officer directed him to produce his matriculation certificate. However, the respondent No, 1 failed to do the needful despite the fact that he was provided reasonable opportunity. Thus, respondent No, 1 was suspended and an inquiry was ordered against him. However, Assistant Education Officer who had to conduct the inquiry subsequently wrote to the District Education Officer that despite the fact that the respondent remained under suspension for the last eight months he was not charge-sheeted because the person who had made anonymous application could not be traced and that according to the respondent his certificate had been destroyed as he belonged to the area which is target of Indian firing. The Assistant Education Officer also wrote to the District Education Officer that many Assembly members had made recommendations in favour of respondent and thus, it would be desirable if he was reinstated. On the basis of letter of Assistant Education Officer, the District Education Officer passed an order on 18-2-1993. Whereby the respondent was re-instated and this period of suspension was treated as on duty. Subsequently, another application was submitted by the appellant, herein before the Ombudsman alleging that the matriculation certificate of the respondent was forged and that the District Education Officer had wrongly reinstated the respondent. Thus he prayed for an appropriate investigation in the matter. A notice was issued to the District Education Officer, Muzaffarabad by the Ombudsman and his statement was also recorded on 16-6-1993. After discussing the matter in the impugned order, the Ombudsman made the following recommendations on 9-7-1993 to the concerned authority. {{URDU TEXT}} ' The respondent feeling aggrieved by the order of Ombudsman challenged the same by filing a writ petition in the High Court, inter alia on the grounds that Shamas Ullah Khan, appellant herein, on whose application the impugned order was passed by the Ombudsman was not an aggrieved person and thus no action could be taken on his application and that the respondent was not provided an opportunity of hearing before passing the impugned order against him. The learned Judge in the High Court decided both the points mentioned above in favour of the respondent and set aside the impugned order of the Ombudsman. The learned Judge did not advert to the other points raised in the writ petition observing that as the writ could be disposed of on the said two grounds, it was not necessary to decide the other points raised in the writ petition. The present appeal has been filed by Shamas Ullah Khan, the appellant herein, and the District Education Officer challenging the judgment of the High Court as being violative of law.
3. ' We have heard the arguments and perused the record. It has been argued on behalf of the appellant that the High Court has erred in holding that action could be taken by the Ombudsman only on the application of an aggrieved person. It has been contended on behalf of the appellant that the Ombudsman is competent to take' action even suo motu and thus, the impugned order does not suffer from any legal infirmity on the ground that the appellant-applicant was not an aggrieved person It has been further argued that the High Court has also made an error in holding that it was necessary to hear respondent No, 1 before passing the impugned order and he could not be condemned unheard.
4. ' The arguments advanced by the learned counsel for the appellant were controverted by the learned counsel for the respondents who maintained that the action was taken against the respondent on the application of Shamas Ullah Khan and until and unless the appellant is shown to be an aggrieved person no action could be taken against the respondent and that in any case the respondent could not be condemned unheard.
5. ' We have given our due consideration to the arguments advanced by the learned counsel for the appellants. It may be stated that section 9 of the Act known as Establishment of Office of Mohtasib (Ombudsman) in Azad Jammu and Kashmir Act, 1992 (hereinafter shall be referred to as the Act) invests the Ombudsman with the jurisdiction to investigate and take action in case of maladministration. 'The word maladministration has been defined in section 3 of Act as under:- "Maladministration includes--
(i) a decision, process, recommendation, act or omission or commission which:
(a) is contrary to law, rules or regulations or 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 or 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, favouritism, nepotism and administrative excess; and
(ii) neglect, inattention delay, incompetence, inefficiency and inaptitude, in the administration or discharge of duties and responsibilities."
6. ' It is evident that the case of respondent No, 1 who is alleged to have manoeuvred his appointment as teacher on the basis of forged matriculation certificate does not fall within the purview of 'maladministration'. The word 'maladministration' implies the exercise of jurisdiction by an agency or its employee contrary to law or in a manner which 611s Within the eventualities enumerated under section 3 of the Act. However, there is provision in the Act that even if a case for a public servant does not fall within the ambit of maladministration', the Ombudsman can recommend to the appropriate authority for taking disciplinary action against him if he has reason to believe that such public servant or other functionary has acted in a manner which warrants criminal or disciplinary proceedings against such person. Subsection (6) of section 14 of the Act which would govern the case of the appellant is reproduced as under:-- (1)
7. (2)
8. (3)
(4) .....
(6) If the Mohtasib has reason to believe that any public servant or other functionary has acted in a manner warranting criminal or disciplinary proceedings against him, he may refer the matter to the appropriate authority for necessary action to be taken within the time specified by the Mohtasib.
9. ' It may be stated that the matter is further elucidated by section 1-3 of the Act which stipulates that if the Ombudsman is satisfied that a case falls within the purview of section 9(1) of the Act, the Mohtasib may refer the case to the concerned authority for appropriate disciplinary action or corrective measures. For convenience, section 13 of the Act is reproduced as under:-- "13. Reference by Mohtasib.--Where during or after an inspection or an investigation the Mohtasib is satisfied that any person is guilty of any allegations as referred to in subsection (1) of section 9, the Mohtasib may refer the case to the concerned authority for appropriate corrective or disciplinary action, or both corrective and disciplinary action, and the said authority shall inform the Mohtasib within thirty days of receipt of reference of the action taken. If no information is received within this period the Mohtasib may bring the matter to the notice of the President for such action as he may deem fit."
10. ' The combined reading of sections 13 and 14(6) referred to above reveals that in case of ' maladministration' it is necessary that before making any reference the Ombudsman must be satisfied that a person is guilty of an allegation as stipulated under section 9(1) of the Act, whereas subsection (6) of section 14 envisages that the Mohtasib can make reference if he has reason to believe, that a public servant has acted in a manner which warrants criminal or disciplinary proceedings against him. It needs not be further emphasized that for the purpose of section 13, the Mohtasib must be satisfied but in case of subsection (6) of section 14, he need not be ' satisfied' he may refer the matter to the appropriate authority for proper action if he merely has reason to believe, that the concerned public servant acted in a manner which warrants criminal or disciplinary proceedings against him. In the instant case as has been indicated above the Mohtasib has only recommended that Muhammad Akram, respondent No, 1 might be proceeded under Efficiency and Discipline Rules. Obviously no adverse finding has been given against the respondent by the Ombudsman. He has only referred the matter to the authorities concerned for proceeding under the Efficiency and Discipline Rules. Thus mere recommendation by the Ombudsman for appropriate proceedings against the respondent under Disciplinary Rules is not tantamount to an adverse finding against the respondent which entitles him to have an opportunity of hearing. The Ombudsman is competent to make such a reference under law as has been indicated above and it is not necessary to afford an opportunity of hearing at reference stage opportunity of hearing is amply afforded in regular inquiry held under the relevant law.
11. Needless to say that even otherwise the disciplinary action against a civil servant under Efficiency and Discipline Rules can be initiated by the authority concerned on an information or suo motu.
12. Thus, a public servant has no right to insist that inquiry under the aforesaid Rules cannot be initiated without giving him an opportunity of hearing. The question as to whether the concerned public servant is guilty of committing an act or omission calling for a disciplinary action is to be decided after the inquiry and not at the stage of the initiation of the proceedings. Thus, it cannot be said that as the respondent was not heard by the Ombudsman before passing the impugned order the respondent was condemned unheard because only a disciplinary action has been recommended against the respondent which is not synonymous with the verdict of being guilty.
13. ' The next point which was made the basis for acceptance of the writ petition is that the proceedings against the respondent were not taken on the application of an aggrieved person. It may be stated that even if it is assumed that the case of the appellant falls within the ambit of 'maladministration' as defined under the Act the fact remains that the Ombudsman can take action either on the application of an aggrieved person or on his own motion. Consequently the impugned order would not be rendered illegal merely because the appellant herein was not an aggrieved person. Besides it has already been pointed out that action in the instant case against the respondent has not been taken under section 9 of the Act rather his case falls under section 14
(6) of the Act as indicated earlier. At the most it can be said that while investigating against the concerned agency the Ombudsman felt that there were reasonable grounds to believe that respondent No, 1 had acted in a manner which calls for disciplinary proceedings against him. The matter may be looked at from another angle. If, the application by the appellant would have been made only against Muhammad Akram, respondent alleging that he had manoeuvred his appointment, as teacher on, forged document, the Ombudsman had no jurisdiction to probe into the matter because that would not constitute 'maladministration' by the respondent, rather it would have been a case of disciplinary or criminal action against him. The jurisdiction was assumed by the Ombudsman in the instant case because there was also allegation that Muhammad Akram, respondent was re-instated by the agency concerned or its employee without holding an inquiry despite the fact that he had committed forgery. It is during the investigation of the aforesaid allegation that the Ombudsman acted under section 14(6) and made recommendations against the respondent No, ' In the light of what has been stated above, we accept the appeal, set aside the impugned judgment of the High Court and direct it to rehear the arguments and dispose of the writ petition after considering the points which were left undecided. In view of the circumstances of the case we make no order as to the costs.