Ombudsman not empowered to defend its decisions before higher forum by becoming party to proceedings: SC

ISLAMABAD: The Supreme Court has held that Wafaqi Mohtasib (Ombudsman) by law and by design is not empowered to defend its decisions before a higher forum by becoming a party to the proceedings, as this would totally tarnish its neutrality.

"Ombudsman, being a creature of the statute, cannot challenge the powers vested in him by the legislature, however, the parties to the proceedings may bring such a challenge [before the courts]," said the judgment of two-judge bench comprising Justice Syed Mansoor Ali Shah and Justice Amin-ud-Din Khan.

"The powers enjoyed by the Ombudsman cannot be confused with his rights under the law," it added. The secretary Ombudsman had filed a petition against the Lahore High Court judgment.

The judgment authored by Justice Mansoor said that Ombudsman's office is a neutral quasi-judicial adjudicatory forum created under a statute, cannot become a party to the proceedings brought before it. Such a forum is simply to redress mal-administration by exercising its powers under the law.

"The Ombudsman by law and by design is not empowered to defend its decisions before a higher forum by becoming a party to the proceedings. This would totally tarnish its neutrality."

The Ombudsman also has no locus standi to challenge an order passed by the constitutional court that interprets its jurisdiction or powers under the law. Therefore, the instant petition filed by the Wafaqi Mohtasib's Secretariat is hopelessly misconceived and not maintainable.

The filing of this petition by the Wafaqi Mohtasib's Secretariat through its secretary has left us concerned and disturbed. The Court directed the Ombudsman to hold an inquiry into the matter and submit a report to this Court within two months from Monday as to who had authorised the filing of the instant petition and the action taken against the concerned officials.

This hopelessly misconceived petition passes for frivolous litigation and has resulted in wasting the time of the court. Therefore, this petition is dismissed with costs of Rs100,000/- imposed under Order XXVIII, Rule 3 of the Supreme Court Rules, 1980.

The facts of the case are that an industrial gas consumer approached the Wafaqi Mohtasib (Ombudsman) to complain about the excessive gas billing by Sui Northern Gas Pipeline Ltd (SNGPL), and the mal-administration of its officials. In the "Findings Recommendations" issued by Wafaqi Mohtasib's Secretariat dated 28 October 2014 the complaint of gas consumer against the SNGPL was rejected.

Thereafter, the gas consumer filed a review, and in its "Revised Findings" and "Final Recommendations for Implementation" issued by the Wafaqi Mohtasib's Secretariat on 26 February 2016 to the SNGPL to reconsider the matter by adopting proper procedure and take disciplinary action against the delinquent officers, etc.

The SNGPL challenged these Recommendations of the Ombudsman before the Lahore High Court, and vide impugned order dated 13 December 2016, the High Court held that the disputes pertaining to detection bills on allegations of meter tampering fell within the exclusive jurisdiction of the Oil and Gas Regulatory Authority (OGRA) under the Oil and Gas Regulatory Authority Ordinance, 2002, and Ombudsman had no jurisdiction over such like matters.

The LHC passed decision in favour of the SNGPL. The Wafaqi Mohtasib's Secretariat (not the Ombudsman) approached the apex court to set aside the LHC verdict. The Ombudsman Secretariat alleged that the LHC had curtailed its jurisdiction and powers in matters pertaining to gas detection bills and meter tampering, which fall under the OGRA Ordinance.

The Supreme Court noted that the powers of the Ombudsman under the Establishment of the office of the Wafaqi Mohtasib (Ombudsman) Order, 1983 read with the Federal Ombudsman Institutional Reforms Act, 2013 have been interpreted and determined.

How is the Wafaqi Mohtasib's Secretariat or the Wafaqi Mohtasib (Ombudsman) aggrieved by the impugned order? And more importantly, can the Ombudsman and his secretariat be aggrieved of an order, which interprets and determines the jurisdiction and powers of the Wafaqi Mohtasib under the Order and the Act?

The judgment said according to Wafaqi Mohtasib (Ombudsman) Order, 1983 Wafaqi Mohtasib's Secretariat is not a legal entity, in fact it is not a defined term under Order, 1983 and does not enjoy any legal status or the power to sue or be sued under the law.

The Wafaqi Mohtasib's Secretariat is at best an administrative term and refers to the establishment of the offices of the Ombudsman under Wafaqi Mohtasib (Investigation and Disposal of Complaints) Regulations, 2003.

Copyright Business Recorder, 2020