Messrs SIDDIQSONS WEAVING MILLS (PVT.) LTD through Director VS FEDERATION OF PAKISTAN through Secretary Law, Justice and Human Rights, 2006 PTD-KARACHI-HIGH-COURT-SINDH 1151 (2005)

(a) Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000)---

----S. 32---General Clauses Act (I of 1897), S.24-A---Constitution of Pakistan (1973), Art.199--Constitutional petition---Representation to the President---Order passed by the President without issuance of notice to the petitioner, without supplying the copy of representation and without affording the opportunity of placing his point of view on record vis-a-vis the representation made by the agency, was violative of the principles of natural justice---Acceptance of the representation made by the agency on consideration of one sided point of view had caused gross miscarriage of justice---Consequence of condemning the petitioner unheard in the case, was very much obvious and glaring on the face of it---Impugned order passed by the President was set aside by the High Court under Art.199 of the Constitution and case was remanded for fresh proceedings---Reasons enumerated.

Federation of Pakistan v. Muhammad Tariq Pirzada 1999 SCMR 2189 and Federation of Pakistan v. Muhammad Tariq Pirzada,. 1999 SCMR 2744 fol.

(b) Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000)----

----S.32---General Clauses Act (I of 1897), S.24-A---Constitution of Pakistan (1973), Art.199---Representation to the President---Procedure to be adopted detailed by the High Court.

While processing and considering the representation under section 32 of the Establishment of Office of Federal Tax Ombudsman Ordinance, 2000 the following procedure shall be adopted:---

(a) A notice shall be issued to the opposite party intimating that a representation has been received assailing the recommendations made by the Federal Tax Ombudsman.

(b) A copy of the representation shall be supplied to the opposite party.

(c) A reasonable opportunity of personal hearing or submission of reply/comments/written arguments shall be afforded to the opposite party.

(d) If the opportunity is provided to the opposite party for placing its point of view through submissions/arguments, a reasonable time shall be allowed for furnishing the written submissions in reply.

(e) All the contentions raised in the representation and the written reply/submissions shall be considered objectively and shall be disposed of by a speaking order as required under section 24-A of the General Clauses Act.

(f) If a time-barred representation is entertained the reason for entertaining such representation and condonation of delay shall be recorded in writing showing the law empowering to condone the delay. Such order shall be incorporated in the final order.

(g) A copy of the full text of the order accepting or rejecting representation shall be supplied simultaneously to both the parties.

Muhammad Afzal Awan for Petitioner.

Sajjad Ali Shah, D.A.G. for Respondent No.1.

Haider Iqbal Wahniwal for Respondents Nos. 2, 3 and 4.

Date of hearing: 23rd August, 2005.

JUDGMENT

MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---The facts giving rise to this petition are that the Respondent No.3 Deputy Collector Customs Appraisement BG Cell, Customs House, Karachi, demanded surcharge/mark-up from the petitioners against past and closed bank guarantees. The petitioner filed a complaint before Federal Tax Ombudsman, contending that it was a case of maladministration because the surcharge/mark-up was being demanded unauthorisedly. The Federal Tax Ombudsman vide order dated 23-1-2002 held that a case of manifest maladministration was made out. It was held as under:--

"The amounts of duty payable on the import of machinery and surcharge were protected by the bank guarantees furnished by the Complainant. The Department should have, encashed the guarantee when the importer defaulted in payment. The surcharge is payable on the deferred amount and the condition No.(4) of the bank guarantee provides for the payment of surcharge on the amount of surcharge payable in case the importer requests the Customs Authorities not to take action to recover the dues under sub-para. (6)(a) of the conditions. However, the operative condition in the bank guarantee format is at paragraph (3) where the bank undertakes to pay the deferred amount or the surcharge within 10 days from the date of receipt of demand in the event of default of the importer to pay the instalment. Clearly the bank discharged its liability by paying the guaranteed amount on demand by the Customs. The bank guarantee documents should, therefore, be returned to the bank. There is no justification to demand 'surcharge on the deferred amount and surcharge on surcharge from the complainants or the bank for failure of the Department to encash the guarantees in time."

2. Federal Tax Ombudsman ultimately recommended that the Central Board of Revenue should direct the Collector of Customs to:

(i) Identify the official responsible for negligence and take necessary action against them;

(ii) return bank guarantee documents to the Bank;

(iii) direct him that levy of surcharges as demanded by the Department has no legal validity and the notice issued to the Complainants and the bank be withdrawn/cancelled; and

(iv) report compliance within one month."

3. A representation was made before the President of Pakistan under section 32 of the Establishment of Office of Federal Tax Ombudsman Ordinance, 2000. It is alleged in the petition that the copy of representation was not supplied to the petitioner and that the representation was barred by limitation.

4. Subsequently, the petitioner received a letter from the office of Respondent No.1, Ministry of Law, Justice and Human Rights, Islamabad, dated 24-10-2003, which reads as follows:---

"No.19/2002-Rep(FTO)Law

Government of Pakistan,

Law, Justice and Human Rights Division

Dated 24-10-2003

OFFICE MEMORANDUM

Sub: Representation under section 32 of the Ordinance XXV of 2000 against findings of the Federal Tax Ombudsman dated 23-1-2002 in Complaint No.C-1373-K/2001 (Messrs Siddiqsons Weaving Mills (Pvt) Ltd. v. C.B.R.

The undersigned is directed to refer to Central Board of Revenue's Representation C. No.1(75)S(TO-II)/2001, dated 25-2-2002, on the above subject and to say that the President has been pleased to pass the following order:--

"Rule 6 of the Deferment of Import Rules, 1985 provides the surcharge at the rate of eleven per cent. per annum shall be payable on the deferred amount commencing from the date of initial payment. Liability to pay the surcharge in the terms of rule 6 ibid is statutory and not contractual. Even if the liability to pay the surcharge is not secured by the bank guarantee it remains payable. The complainant who defaulted to pay the duty was liable to the surcharge. He could not make out case for relief when he failed to discharge statutory liability.

2. Accordingly, the President has been pleased to accept the representation of the Agency (CBR) and set aside the Federal' Tax Ombudsman's finding dated 23-1-2002 in Complaint No.1373 K/2001".

(Sd.)

(Raja Qamar Sultan)

Section Officer

5. The petitioner thereafter requested the Law, Justice and Human Rights Division, for supplying the copy of the order passed by the President of Pakistan. However, the copy of order was not supplied. Instead of supplying a copy of order passed by the President or any officer authorized to sign the order passed by the President, the Law and Justice Division informed the petitioner that the office memorandum issued by the Section Officer dated 24-10-2003 was the order passed by the President.

6. It is contended by the petitioner that the President was required to pass the reasoned, speaking order after affording proper opportunity to the petitioner and therefore, the order communicated vide letter dated 24-10-2003, is void on the following grounds:--

(a) It was not passed by the President under his own signatures, by applying judicial mind and after granting proper opportunity of being heard to the petitioner.

(b) It has been passed without any notice to the petitioner and is violative of the law laid down by the Hon'ble Supreme Court, in the case' of Federation of Pakistan v. Muhammad Tariq Pirzada, 1999 SCMR 2189 and Federation of Pakistan v. Muhammad Tariq Pirzada, 1999 SCMR 2744.

(c) The petitioner has been condemned unheard.

(d) An adverse order has been passed against the petitioner without affording him an opportunity to participate in the proceedings.

(e) The order passed by the President of Pakistan under section 32 of the Establishment of Office of Federal Tax Ombudsman Ordinance, 2000, is a quasi-judicial order which requires the affording of right of hearing to the parties and recording of reasons.

(f) On account of petitioner being condemned unheard, a time barred representation has been allowed without condoning the delay.

7. In the para-wise comments filed on behalf of Respondent No.1, it is stated that a representation was received from Respondent No.2 challenging the finding of Federal Tax Ombudsman dated 23-12-2002, seeking intervention of the President. The respondent No.1, accordingly examined the representation and submitted the same to the President for decision. The President of Pakistan was pleased to accept the representation of the Agency (C.B.R.) and set aside the Federal Tax Ombudsman's finding. It is contended that the order passed by the competent Authority is in accordance with the law, self-speaking and well-reasoned. The contentions that the order was passed by the President without any notice to the petitioner and without opportunity of being heard and that the representation made to the President was barred by time, have not been denied.

8. We have heard Mr. Muhammad Afzal Awan, learned counsel for the petitioner and Messrs Sajjad Ali Shah, D.A.G. and Haider Iqbal Wahniwal, Advocate for the respondents.

9. Mr. M.Afzal Awan learned counsel for the petitioner has submitted that the scope of Article 32 of the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (I of 1983), came for consideration before the Hon'ble Supreme Court in the case of Federation of Pakistan v. Muhammad Tariq Pirzada, 1999 SCMR 2744, wherein it was held that the functions performed by Mohtasib are quasi-judicial in nature, therefore, the recommendations made or findings recorded by him cannot be arbitrarily set aside without assigning any valid reason in writing in disposing of the petition under Article 32 of the Order. He has further submitted that in this case, the Hon'ble Supreme Court held that while disposing of a petition wider Article 32 of the Order, an aggrieved person in whose favour 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 principles of natural justice.

10. In the cited case a learned Single Judge of the Lahore High Court, while deciding a petition assailing the order passed by the President on representation of agency setting aside the order of Ombudsman under Article 32 of the Ombudsman Order, 1983, had observed, as follows:

"The order does not give any indication that the President applied his conscious judicial mind to the facts of the case before him. Keeping in view the tone, the tenor and the text of the order as passed by the President, it can safely be gathered that it runs counter to the manifest intent behind the enactment of Article 32 of the Ombudsman Order, 1983, which provision provided that any person feeling aggrieved of the order of the Wafaqi Mohtasib could file a representation to the President of Pakistan. It could not be the intention of the Legislature that the representation to be filed before the President and which of course would involve valuable rights of the parties to the litigation shall be disposed of by the President in such a summary manner in which the order, dated 2-5-1998 has been passed by the Hon'ble President."

11. Mr. Afzal Awan, has maintained that a review petition was filed before the Hon'ble Supreme Court, which was also dismissed vide judgment reported as Federation of Pakistan v. Muhammad Tariq Pirzada, 1999 SCMR 2189. The learned counsel has contended that while deciding the review petition the Hon'ble Supreme Court, again examined the entire law and made very pertinent observations. The principles laid down earlier were reiterated and confirmed.

12. Mr. Afzal Awan, has submitted that the adherence to the principles of natural justice requires that nobody should be condemned unheard and no adverse orders should be passed against any person without affording a reasonable opportunity of placing his point of view before the authority seized of a matter involving valuable rights of a party. He has contended that admittedly, no notice was issued to the petitioner either by the Ministry of Law or by any officer in the President House/President Secretariat, the copy of representation made by the agency was not supplied to the petitioner and no opportunity of personal hearing or making submission in writing was afforded. He has contended that the non,-compliance with the principles of natural justice has resulted in gross injustice to the petitioner as a time-barred representation was entertained, thereby depriving the petitioner of a valuable right accrued in his favour. On merits also the finding given by the learned Federal Tax Ombudsman was ignored and the representation was accepted on a point, which was not the basis of recommendations made by the learned Federal Tax Ombudsman. He has pointed out that the learned Federal Tax Ombudsman after examination of the entire facts and circumstances held in so many words that the officers of the Customs Department failed to perform their duty and the action was taken by them after six years. It was also held that for this negligent and abnormal delay, the responsibility squarely lies on the Customs Authorities. They could have issued show-cause notice at the first default of the importer in failing to pay the instalment or encashment of the bank guarantee. According to learned Federal Tax Ombudsman, it was the case of manifest maladministration. After careful consideration of the entire facts, the learned Federal Tax Ombudsman, had further observed that, "there is no justification to demand surcharge on the deferred amount and surcharge on surcharge from the complainants or the bank for failure of the Department to encash the guarantees in time".

13. He has submitted that, with the above considered findings the recommendations were made by the learned Federal Tax Ombudsman.

14. Mr. Afzal Awan, has pointed out that on account of non-adherence to the principles of natural justice and non-affording of opportunity to the petitioner to place the issues in their right perspective, the representation was accepted without giving any finding that the finding of learned Federal Tax Ombudsman on the point of mal?administration was not sustainable. In the absence of proper assistance from the complainant/petitioner the proper issue escaped the notice and a valuable right vested in petitioner was taken away. He contended that the order passed by the President on representation of agency under section 32 of the Ordinance XXXV of 2000, may be excluded out of consideration and the recommendations made by the Federal Tax Ombudsman may be restored.

15. He lastly contended that in the absence of appropriate guidelines regarding the procedure required to be adopted on receiving representation under section 32 of the Ordinance XXXV of 2000, the very purpose of Establishment of the Office of Federal Tax Ombudsman, is being frustrated. He has urged that in the light of two judgments of the Hon'ble Supreme Court, in the case of Muhammad Tariq Pirzada referred to above, a detailed guidelines may be outlined in order to protect the citizens getting favourable orders from Federal Tax Ombudsman from being deprived of their valuable and vested rights.

16. On the other hand, the learned Advocates for the respondents have fully supported the order passed by the President and have contended that the sole requirement for sustaining of the order is that it should contain the reasons and according to them the order passed by the President accepting the representation under section 32 of Ordinance (XXXV of 2000) contains the reasons.

17. They have not denied that the copy of representation was not furnished to the petitioner, notice was not issued and opportunity of personal hearing or submission of written comments were not afforded. They have maintained that affording of opportunity to the petitioner is not the requirement of law and therefore, it is inconsequential. In the absence of relevant record they are not able to say anything whether the representation was submitted within the period prescribed in law or was barred by time. They are also unable to rebut the contention that the learned Federal Tax Ombudsman had given the finding that it was a case of maladministration on the part of Customs officials and consequently, the petitioner was not liable to pay any amount on account of negligence/delay on the part of Customs officials. This point has not been adverted to in the order passed by the President on representation by the agency.

18. We have carefully considered the contentions raised by the learned Advocates for the parties. We are of the opinion that before dwelling on the points urged before us, it would be appropriate to reproduce the findings of the Hon'ble Supreme Court in the case of Muhammad Tariq Pirzada. The Hon'ble Supreme Court, held in the case reported as 1999 SCMR 2744 as follows:-

"8. The contention is devoid of any force. It is true that in terms of Article 32 of the Order, any person aggrieved by a decision or order of the Mohtasib may, within 30 days of the decision or order, make a representation to the President, who may pass such order thereon as he may deem fit. The words "as he may deem fit" used in Article 32 of the Order clearly signify that the President has full and complete powers to arrive at his own conclusion in order to do justice but in the exercise of such powers he must act justly and fairly and if the recommendations made/findings recorded by the Mohtasib are intended to be interfered with in the interest of justice, valid reasons must be assigned. The above phrase does not imply passing of arbitrary orders but only just and fair orders by assigning valid reasons by the President. It is wholly immaterial whether in such cases he acts independently or on the advice of the Prime Minister. Clearly, the Mohtasib records his findings and recommendations, after thorough investigation of the complaint lodged before him. Article 11 of the Order lays down the scope ad methodology for implementation of the recommendations/ findings recorded by the Mohtasib. Sub-Article (2) of Article 11 provides that the Agency concerned has to inform, within such time, as may be specified by the Mohtasib, about the action on his direction or the reason for not complying with the same. If the Agency concerned does not comply with the recommendations of the Mohtasib or does not give reasons to the satisfaction of the Mohtasib for non-compliance, it is treated as "Defiance of Recommendations" as contemplated under Article 12, Sub-Article (2) whereof provides, In each instance of "Defiance of Recommendations" a report by the Mohtasib shall become a part of the personal file or Character Roll of the public servant primarily responsible for the defiance; provided that the public servant concerned had been granted an opportunity to be heard in the matter. Article 14 of the order provides that the Mohtasib has the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908, in respect of: (a) summoning and enforcing the attendance of any person and examining him on oath; (b) compelling the production of documents; (c) receiving evidence on affidavits; and; (d) issuing commission for the examination of witnesses.

It has been laid down by their Lordship of the Privy Council in Nakkauda Ali v. M. F. De S. Jayarane (PLD 1950 PC 102), that the only relevant criterion as to whether an act is a judicial act "is not the general status of the person or body of persons by whom the impugned decisions is made but the nature of the process by which he or they are empowered to arrive at their decision. When it is a judicial process or a process analogous to the judicial, certiorari can be granted". It would, thus, be seen that the functions performed by the Mohtasib are quasi-judicial in nature, therefore, the recommendations made or findings recorded by him cannot be arbitrarily set aside without assigning any valid reasons in writing in disposing of a representation under Article 32 of the Order.

9. There is nothing in Article 32 of the Order to support the plea raised by the learned Deputy Attorney-General that while disposing of a representation the President can pass any order, without assigning reasons. The Order is a self-contained code and provides methodology and manner of enforcement of the findings recorded and the recommendations made by the Mohtasib on complaints lodged by any person against maladministration and injustices suffered by him. The institution of the Wafaqi Mohtasib was established for redressal of the people against maladministration of the Agencies. Thus, visualized, the recommendations made by the Mohtasib cannot be lightly interfered by the President in exercise of power vested in him under Article 32 of the Order, except for valid reasons to be assigned in writing. Suffice it to say that even if the President, while seized of a petition under Article 32 of the Order, is considered as an administrative authority; whether acting independently or on the advice of the Prime Minister, is under legal obligation to deal with the representation before him fairly and justly and a complainant in whose favour finding has been recorded and recommendations made by the Wafaqi Mohtasib, has a legal right to demand that the President should decide the representation affecting his valuable right by assigning valid reasons, if the findings/recommendations by the Mohtasib are sought to be set aside, reviewed or modified.

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 Mohtaisb 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 principles 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 accordance with law and in case of violation thereof, the High Court in exercise of its Constitutional jurisdiction can interfere. Refer Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal (PLD 1987 SC 447), wherein this Court while examining the scope of section 25-A of the Industrial Relations Ordinance (XXIII of 1969), with specific reference to the interpretation of the words "just" and "proper" under subsection (5) of section 25-A of the Ordinance XXIII of 1969 observe at page 452 as follows:--

"I cannot agree with the learned Judge in the High Court. The view of the learned Judge that this Court has ruled that even if the order of a Tribunal is wrong in law, the High Court still cannot intervene in exercise of its Constitution jurisdiction is not justified and I feel that the judgments of this Court in the cases of Muhammad Hussain Munir (PLD 1974 SC 139) and Zulfiqar Khan Awan (1974 SCMR 530) have not been read in their proper context. It is not right to say that the Tribunal, which is invested with the jurisdiction to decide a particular matter, has the jurisdiction to decide it `rightly or wrongly' because the condition of the grant of jurisdiction is that it should decide the matter in accordance with the law. When the Tribunal goes wrong in law, 'it goes outside the jurisdiction conferred on it because the Tribunal has the jurisdiction to decide rightly but not the jurisdiction to decide wrongly. Accordingly, when the Tribunal makes an error of law in deciding the matter before it, it goes outside its jurisdiction and, therefore, a determination of the Tribunal which is shown to be erroneous on a point of law can be quashed under the writ jurisdiction on the, ground that it is in excess of its jurisdiction.

It needs hardly be said that under Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973, it is the right of every individual to be dealt with in accordance with law. Where the law has not been correctly or properly observed a case for interference by the High Court in exercise of its Constitutional jurisdiction is made out.

In this case, the terms `just' and `proper' occurring in sub-section (5) of section 25-A, were not rightly construed. The Labour Court, under the said provision of law, could only make a `just' and `proper' adjudication when an issue existed that could be tried in regard to the violation of a right guaranteed or. secured by or under any law. Hence merely because an order was thought to be `just' and `proper' even though no justifiable issue in regard to the violation of a legal right existed was clearly liable to be corrected under the writ jurisdiction of the High Court."

11. There is also no force in the plea raised by the learned Deputy Attorney-General that the complaint lodged by the respondent was hit by Article 9(2) of the Order, which provides, "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 matter relating to the Agency in which he is or has been, working in respect of any personal grievance relating to his service therein". The learned Judge in Chambers was right in holding that the case, of the respondent was based on a selection as a result of the competitive examination held by the Federal Public Service Commission. He had yet to enter the service and was not already in service for the purpose of the claim as made by him. Article 9 of the Order, therefore, could not stand in his way in seeking redress of his grievance through complaint filed by him before the Wafaqi Mohtasib. We are, therefore, inclined to held that the complaint lodged by the respondent before the Wafaqi Mohtasib was not hit by Article 9 (2) the Order.

??????????? 12. In view of the above discussion, we do not find any illegality or legal flaw, in ??????????? the well-reasoned impugned judgment of the High Court to warrant interference."

19. Again while deciding review petition in the judgment reported as 1999 SCMR 2189, the Hon'ble Supreme Court reiterated as follows:-

"6. Needless to emphasise that the functions performed by the Wafaqi Mohtasib are quasi-judicial. The concept of a representation envisaged by Article 32 of the Order is that where the Mohtasib has failed to record just and proper findings/recommendations, the President should undo the wrong done to the complainant for the advancement of the purposes of the Order. 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 (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 to 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. The view taken by this Court in the judgment under review that the Ombudsman performs quasi-judicial functions, also finds support from the earlier judgment of this Court in Hafiz Muhammad Arif Dar v. Income-tax Officer (PLD 1989 SC 109), wherein while examining the scope, powers and functions of the Ombudsman, it was observed: "Amongst others he can file a complaint and grievance application before the Federal Ombudsman, who can provide effective redress in a case like the present one that forum has several attributes of a Court in many aspects of its powers. It can also move in a matter promptly whenever so needed .At the same time it does not suffer from some of the handicaps due to the technicalities of procedural nature, which operate as impediments or thwart such like action by the Courts. For example the limitation of non-availability of an alternate remedy in this case for the High Court under Article 199 of the Constitution is not applicable to the said forum. Besides, the same being quasi-judicial it is also headed by a Judge of the Supreme Court; with similar powers to punish for contempt. In this context therefore, it can be safely concluded, that it can provide the alternate effective and adequate remedy to the petitioner also." (Underlining is by way of emphasis).

Under the scheme of the Order, the President exercises the same nature of functions as are performed by the Ombudsman. Thus visualized, the President while performing his functions under Article 32 of the Order acts in quasi-judicial and not in administrative capacity, which is totally distinguishable from administrative actions."

20. Now we revert back to the facts of the present case and find that the impugned order passed by the President without issuance of notice to the petitioner, without supplying the copy of representation and without affording the opportunity of placing his point of view on record vis-a-vis the representation made by the agency is violative of the principles of natural justice. The acceptance of the representation made by the agency on consideration of one-sided point of view has caused gross miscarriage of justice. The consequence of condemning the petitioner unheard is very much obvious and glaring on the face of it for the following reasons:-

(1) A time-barred representation is alleged to have been accepted (in view of the order proposed to be made we abstain from giving any finding on merits on this point).

(2) Under section 32 a representation on behalf of the Revenue can be made by the Revenue Division only and none else. In parawise comments filed by the Respondent No.1, it is stated that the representation was received from Respondent No.2, the Collector of Customs Appraisement Karachi. In the comments filed on behalf of Respondent No.2, it is stated that the department preferred representation before the President of Pakistan. It is not stated that the representation was made by the Revenue Division.

(3) If the above two contentions are correct, the acceptance of representation by the President is violative of the provisions contained in section 32 of Ordinance XXXV of 2000.

(4) The finding given by the Federal Tax Ombudsman on the point of maladministration has been totally ignored for which no reasons have been assigned and consequently the impugned order is violative of the mandatory requirement of section 24-A of the General Clauses Act, 1897.

21. For the foregoing reasons, the impugned order passed by the President is hereby set aside and the case is remanded for fresh proceedings.

22. In the light of the two judgments of Hon'ble Supreme Court, in the case of Muhammad Tariq Pirzada (supra), it is directed that while processing and considering the representation under section 32 of the Ordinance XXXV of 2000 the following procedure shall be adopted:

(a) A notice shall be issued to the opposite party intimating that are presentation has been received assailing the recommendations made by the Federal Tax Ombudsman.

(b) A copy of the representation shall be supplied to the opposite party.

(c) A reasonable opportunity of personal hearing or submission of reply/comments/written arguments shall be afforded to the opposite party.

(d) If the opportunity is provided to the opposite party for placing its point of view through submissions/arguments, a reasonable time shall be allowed for furnishing the written submissions in reply.

(e) All the contentions raised in the representation and the written reply/submission shall be considered objectively and shall be disposed of by speaking order as required under section 24-A of the General Clauses Act.

(f) If a time-barred representation is entertained the reason for entertaining such representation and condonation of delay shall be recorded in writing showing the law empowering to condone the delay. Such order shall be incorporated in the final order.

(g) A copy of the full text of the order accepting or rejecting representation shall be supplied simultaneously to both the parties.

23. The petition was allowed by a short order on 23-8-2005. These are the detailed reasons in support thereof.

M.B.A./S-140/K????????????????????????????????????????????????????????????????????????????????? Petition allowed.