RAZA FECTO TRACTORS (PVT.) LTD. VS FEDERATION OF PAKISTAN, 2015 PTD-KARACHI-HIGH-COURT-SINDH 438 (2014)

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

----S. 32---Constitution of Pakistan, Art.199---Constitutional petition---Natural justice, principles of---Applicability---Personal hearing by the President---Scope---Petitioner was aggrieved of order passed by the President as appellate authority under Federal Tax Ombudsman Ordinance, 2000---Plea raised by petitioner was that the President did not give personal hearing to him and decide appeal---Validity---Requirement of law was not that a person was to be given personal hearing by the President in such matters while deciding representation filed by authorities in terms of S. 32 of Federal Tax Ombudsman Ordinance, 2000---Principle of natural justice i.e. 'no one shall be condemned unheard' which was to be applied in judicial, quasi-judicial and even in administrative proceedings, an opportunity of filing comments or objections before the President under S. 32 of Federal Tax Ombudsman Ordinance, 2000, would meet requirements of "sufficient opportunity"---Requirements of natural justice were not violated in matters, wherein aggrieved party was provided with an opportunity of filing its objections/comments on a representation filed under S.32 of Federal Tax Ombudsman Ordinance, 2000, in writing before the President---High Court declined to interfere in order passed by the President as the same was correct in law and did not warrant exercise of any discretionary relief and interference by High Court in Constitutional jurisdiction---Petition was dismissed in circumstances.

Federation of Pakistan through Secretary Establishment Division, Government of Pakistan v. Muhammad Tariq Pirzada 1999 SCMR 2189; Federation of Pakistan through Secretary Establishment Division, Government of Pakistan v. Muhammad Tariq Pirzada 1999 SCMR 2744; Messrs Siddiqsons Weaving Mills (Put) Limited, v. Federation of Pakistan PLD 2005 Kar. 656; Commissioner of Income Tax, Faisalabad Zone, Faisalabad and another v. Akhlaq Cloth House, Faisalabad and another 2008 PTD 965; Federation of Pakistan v. Professor Dr. Anwar and 2 others 2006 SCMR 382; Collector of Customs, Lahore v. Universal Gateway Trading Corporation and another 2005 SCMR 37; Impartial Paints and Varnish Works v. The Federal Government and 2 others PLD 1996 Kar. 550 and SF Engineering Services v. Federation of Pakistan and 4 others PLD 2014 Sindh 378 ref.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---Competent forum, order of---Constitutional jurisdiction can not be exercised against order of an authority which has otherwise been passed by competent forum having jurisdiction---High Court cannot sit in appeal to examine veracity of any such order and or material which requires factual ascertainment of allegations, as the same is beyond the scope of Art. 199 of the Constitution---Relief sought under Constitutional jurisdiction is discretionary in nature, therefore, the same cannot be exercised in matters which involve disputed facts and require further probe and investigation.

Faisal Siddiqui for Petitioners.

Dilawar Hussain, Standing Counsel for Respondents.

Date of hearing: 23rd September, 2014.

JUDGMENT

MUHAMMAD JUNAID GHAFFAR, J.---Through instant petition, the petitioner has impugned letter dated 9-12-2005 issued by the respondent No.1, whereby, it was communicated to the petitioner that the Representation filed by the respondent No.4 under section 32 of the FTO Ordinance, 2000, has been allowed and the decision of Federal Tax Ombudsman dated 6-1-2004 in Complaint No.1102/K of 2003 has been set aside.

2.Briefly, relevant facts as stated in the memo. of petition are that the petitioner being aggrieved by the act and conduct of respondent No.4 had filed a Complaint bearing No.C-1102-K/2003 before the Federal Tax Ombudsman alleging maladministration on the part of respondent No.4. The complaint filed by the petitioner was decided by the learned FTO in favour of the petitioner vide decision/finding dated 6-1-2004. The decision/finding of the learned FTO, was assailed by the respondent No.4, through respondent No.3, by filing a Representation under section 32 of the FTO Ordinance, 2000, before the President of Pakistan, (respondent No.2). The respondent No.2 vide impugned order has been pleased to set aside Federal Tax Ombudsman's decision dated 6-1-2004, which has now been challenged through instant petition.

3.Mr. Faisal Siddiqui, learned counsel for the petitioner has contended that the impugned order is in fact, not an order of the President, as required under the FTO Ordinance, 2000. Per learned counsel, the impugned letter dated 9-12-2005 is an order of the section Officer of respondent No.1, hence, the same is liable to be set aside, on this ground alone, as according to the learned Counsel, no order has been passed by the President in the instant matter. Without prejudice to this submission, learned counsel further contended that the impugned order has been passed by the President without affording an opportunity of personal hearing to the petitioner, as this is a mandatory requirement under the law. Per learned counsel, since the Representation, filed by the respondents was against the decision/findings of the FTO, which was in favour of the petitioner, hence, any proceedings for setting aside the said decision, cannot be sustained unless the petitioner is heard in person. In view of such position, the learned counsel prayed that the impugned order may be set aside and the decision/findings of the FTO dated 6-1-2004 may be restored in favour of the petitioner. In support of his contention the learned Counsel relied upon the cases of Federation of Pakistan through Secretary Establishment Division, Government of Pakistan v. Muhammad Tariq Pirzada (1999 SCMR 2189), Federation of Pakistan through Secretary Establishment Division, Government of Pakistan v. Muhammad Tariq Pirzada (1999 SCMR 2744), Messrs Siddiqsons Weaving Mills (Put) Limited, v. Federation of Pakistan (PLD 2005 Karachi 656).

4.Conversely, Mr. Dilawar Hussain learned Standing Counsel has opposed the maintainability of instant petition and has contended that no writ lies against the order of President in such proceedings. Learned Standing Counsel further contended that there is no provision of personal hearing before the President in the FTO Ordinance, 2000, and calling of written submissions/comments from the petitioner, amounts to providing of an opportunity of hearing to meet the principles of natural justice. Learned Standing Counsel prayed for dismissal of instant petition.

5.We have heard the learned counsel for the petitioner and the learned Standing Counsel and perused the record. Since a short controversy is involved, by consent of both the learned Counsel instant petition is being disposed of at Katcha peshi stage.

6.It appears that the petitioner, on or about 2-11-2000 had imported a consignment of components/goods in CKD (Complete Knock Down) condition for the manufacture of agricultural tractors and had sought exemption from custom duty under S.R.O.502(I)/1994 dated 9-6-1994 which was denied by the Customs authorities on the pretext that the petitioner had no certification from CBR for having in house facility for the manufacture of tractors, which was the basic requirement for availing exemption under the said S.R.O. The petitioner thereafter furnished a Bank Guarantee to the satisfaction of respondent No. 4 and undertook to furnish the requisite certificate from CBR within a period of three months. Thereafter the respondent No. 3 (CBR) vide its letter dated 17-3-2001, directed respondent No. 4, that since the petitioner did not possess any provisional or final certificate in terms of S.R.O. 502(I)/1994 dated 9-6-1994 at the time of import of CKD Kits; hence, the Bank Guarantee furnished by the petitioner in this regard shall be en-cashed forthwith. Such Bank Guarantee was en-cashed by respondent No.4 vide notice dated 2-4-2001 issued to the concerned Bank. Thereafter on or about 18-4-2003 the petitioner filed a refund application before the respondent No.4 on the ground that subsequently respondent No. 3 had issued a final Survey Certificate to the petitioner, hence the petitioner was entitled for the refund of custom duty which was recovered by en-cashing the Bank Guarantee, prematurely. The petitioner, thereafter filed a Complaint bearing No. C-1102-K/2003 before the Federal Tax Ombudsman, in terms of FTO Ordinance, 2000, wherein comments were filed by respondent No. 4. During pendency of the complaint, the officer of respondent No.4 passed an Order-in-Original dated 29-10-2003, whereby it was held that the customs duty recovered by encashment of the Bank Guarantee was correct, against which no appeal was preferred by the petitioner. The learned PTO vide its decision/findings dated 6-1-2004 recommended the respondent No.3 to direct the respondent No.4 to process and decide the refund claim of the petitioner within thirty days and report compliance of the same within forty five days. The respondents, thereafter, preferred a representation against the findings of the learned FTO in terms of section 32 of the FTO Ordinance, 2000, before the President of Pakistan and such representation has been decided in favour of the respondents as communicated vide letter dated 9-12-2005 issued by respondent No. 1.

7.The precise legal issue raised on behalf of the petitioner is, that firstly, the president has not given any personal hearing to the petitioner in the matter and secondly even otherwise there is no order passed by the President in the matter as the letter dated 9-12-2005 has been issued by a Section Officer of respondent No.1, whereby, though the decision has been communicated to the petitioner, but such order is not the order of the President, hence the same is without any lawful authority and cannot be sustained in law. We are not in agreement with such contention as raised on behalf of the petitioner for a number of reasons, discussed hereinafter. Firstly, it is not the requirement of law that a person is to be given a personal hearing by the President in such matters while deciding a representation filed by the Revenue Division in terms of section 32 of the FTO Ordinance, 2000. However, keeping in view the principles of natural justice i.e. "no one shall be condemned unheard", which is to be applied in judicial, quasi judicial and even in Administrative proceedings, an opportunity of filing comments or objections before the President under section 32 of the FTO Ordinance, 2000, would meet the requirements of sufficient opportunity. The requirements of Natural justice are not violated in matters, wherein the aggrieved party is provided with an opportunity of filing its objections/comments on a representation filed under section 32 of the FTO Ordinance, 2000, in writing before the President. It is an admitted position that the petitioner was provided such an opportunity and this has not been controverted by the petitioner, rather it has been admitted that such opportunity was availed by the petitioner and the written reply of the petitioner has also been taken cognizance of. The Hon'ble Supreme Court in the case of Federation of Pakistan v. Muhammad Tariq Peerzada (1999 SCMR 2744) while dealing with the provisions of section 32 of the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, (which is analogous to the provisions of section 32 of the FTO Ordinance, 2000) has been pleased to observe "that it is true that there is no provision for affording a hearing in such proceedings before the Mohtasib, whereas, the recording of valid reasons while setting aside the recommendations of the Mohtasib, is the minimum requirement in law". In the instant matter, it is not the case of the petitioner that the impugned order is without any reasons. The Hon'ble Supreme Court at Para 10 of the said judgment has observed as follows:--

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 Mohtasib 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 an adverse decision should not be taken against him in violation of the principle 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 favorable 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. 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 in accordance with law and in case of violation thereof, the High Court in exercise of its Constitutional jurisdiction can interfere." (Emphasis Supplied)

8.Similarly a Division Bench of the Lahore High Court in the case of Commissioner of Income Tax, Faisalabad Zone, Faisalabad and another v. Akhlaq Cloth House, Faisalabad and others reported in 2008 PTD 965 has been pleased to observe as follows:--

In view of the preceding discussion, it follows that all such cases where the person/party concerned had notice/opportunity of filing comments/reply to the representation, the decision of the President cannot be annulled simply for the reason that personal/oral hearing was not afforded. But where the person/ party concerned had no notice/opportunity of filing comments or reply and decision was made without affording such opportunity, the representation need to be reconsidered and decided after notice and affording opportunity of filing reply/ comments to the same. Since in the present case the respondent had the opportunity of filing reply to the representation which was decided through a speaking order, no interference was warranted with the order in writ jurisdiction. The petition was thus liable to be dismissed.

9.Similarly the Hon'ble Supreme Court in the case of Federation of Pakistan v. Professor Dr. Anwar and 2 others (2006 SCMR 382) has again reiterated such settled position of law in a more elaborate and expressive manner, and has been pleased to hold as under:--

4. This is an admitted fact that the representation of the agency (Ministry of Education) against the order of Ombudsman was allowed and order passed by the Wafaqi Mohtasib was reversed without notice to the respondent and behind his back so much so a written reply to the representation was not obtained from him before passing the order in question. The ratio of observation of this Court, in a similar situation in the above referred case of Tariq Pirzada etc. was that before deciding a representation against the recommendations of Wafaqi Mohtasib, the valid and justiciable reasons must be given for arriving to the conclusion contrary to the recommendations of Wafaqi Mohtasib.

5. Be that as it may, it is to be seen that the opportunity of hearing is not confined to the personal hearing rather it may also be in the form of written reply and thus as per scheme of law in a representation to the President against the order of Ombudsman it is not possible for the President to provide personal hearing to the parties in such representation therefore, inviting the comments/written arguments in reply to the representation by the concerned quarters would be considered sufficient compliance of the law. However, the direction of the High Court for providing hearing to the respondent by the Section Officer in the Ministry of Law, Justice and Human Rights was beyond the scope of Article 32 of P.C.No.I of 1983, as a Section Officer cannot act as an agent of the President under the (ibid.) Article rather the requirement of law in the representation against the order of Ombudsman can be conveniently fulfilled by giving right of hearing through a written reply to the representation. (Emphasis supplied)

In view of such settled position of law, the objection raised on behalf of the petitioner in this regard is misconceived, devoid of any merits, and is hereby repelled.

10.Similarly, the second objection raised by the learned counsel for the petitioner with regard to passing of the order by a Section Officer of respondent No.1, instead of the President himself, is also based on misconception and is hereby repelled. The office of President is a symbol of Federation of Pakistan and by virtue of Article 90 of the Constitution of Islamic Republic of Pakistan, 1973, the executive authority of the Federation is to be exercised in the name of the President by the Federal Government. It has more of a symbolic attribute to its office, rather than a functional office of the Federal Government. The various provisions of the Constitution of Pakistan, 1973 and the Rules of Business, 1973, provides for the functioning of the office of the President as well as the Federal Government. The acts of the President and its office cannot be challenged or brought before any Court of law, merely for the reason that such orders or directions have not been issued or signed by the President himself, and by a Section Officer. The provisions of Article 99 of the Constitution and the Rules of Business, 1973 are very clear in this regard. It would be advantageous, if we may refer to the provision of Article 99 of the Constitution of Pakistan, 1973, which reads as under:--

Article 99... Conduct of business of Federal Government.---(1) All executive actions of the Federal Government shall be expressed to be taken in the name of the President.

(2)The (Federal Government) shall by rules specify the manner in which orders and other instruments made and executed {in the name of the President} shall be authenticated, and the validity of any order or instrument so authenticated shall not be questioned in any court on the ground that it was not made or executed by the President.

[(3)The Federal Government shall also make rules for the allocation and transaction of its business]

11.On perusal of the above Article of Constitution, it is explicitly clear that the orders and instruments made and executed in the name of the President shall be authenticated in such manner as may be specified in rules to be made by the Federal Government, and validity of such orders shall not be called in question on the ground that it is not an order or instrument made or executed by the President. After having gone through the provision of above Article, we do not find any substance in the contention of the learned counsel for the petitioner to the effect that the impugned order dated 9-12-2005 issued by the section officer of respondent No.1, is not an order of the President, whereas, the decision of the President of Pakistan on the representation of the Revenue Division under section 32 of the FTO Ordinance, 2000, has merely been communicated by the section officer of respondent No.1. It appears that the petitioner through instant petition, after having failed to point out any illegality in the impugned order on merits of the case, whereby the representation under section 32 of the FTO Ordinance, 2000, has been allowed in favour of the respondents, has tried to lay much emphasis as to the determination of the fact that whether the impugned order has been passed by the President or not. We have examined and perused the record in juxtaposition to the contention so forcefully raised on behalf of the petitioner in this regard, and it is observed that the factual assertions of the petitioner have been seriously disputed/denied by the respondents in their Para wise comments, duly supported by affidavits. Needless to state that we, in a petition under Article 199 of the Constitution of Pakistan, 1973, cannot examine such disputed factual assertions and its veracity which is being disputed by the respondents, hence instant petition is even otherwise liable to be dismissed on this ground as well. If any authority is needed we may refer to the case of Collector of Customs, Lahore v. Universal Gateway Trading Corporation and another reported in 2005 SCMR 37, wherein the Hon'ble Supreme Court has been pleased to hold that controversial questions cannot be resolved in exercise of Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan. Similar view has been expressed by a Division Bench of this Court in the case of Imperial Paints and Varnish Works v. The Federal Government and 2 others reported in PLD 1996 Karachi 550 and in the case of SF Engineering Serivces v. Federation of Pakistan and 4 others reported in PLD 2014 Sindh 378.

12.Even otherwise on the directions of this Court dated 25-2-2009, the learned Federal Counsel has filed a statement dated 13-4-2009 along with a copy of order issued by the Section Officer (Law) at the President's Secretariat, which clarifies that the order in respect of the representation of the Revenue Division under section 32 of the FTO Ordinance, 2000, was passed at the President's Secretariat and was communicated to the Secretary, Ministry of Law, Justice and Human Rights Division, on 7-12-2005, whereafter the respondent No.1 had communicated the same through letter dated 9-12-2005 which has been impugned in the instant petition. In view of such position the contention raised on behalf of the petitioner is frivolous, hence cannot be entertained.

13.We may observe that at the fag-end of the arguments, the learned counsel for the petitioner, when we were about to announce our decision, contended that in the alternative, the petitioner has also raised an objection with regard to delay in filing of representation under section 32 of the FTO Ordinance, as according to the petitioner the same was filed beyond the period of 30 days by the respondent No.4. Per learned Counsel, the order of FTO was purportedly received by respondent No.4 on 15-1-2004, whereas the representation was filed on 17-2-2004, and despite a preliminary objection with regard to limitation, the impugned order passed by the officer of President has failed to appreciate such contention of the petitioner and has erred in observing that the representation was within time. We would like to reproduce the relevant findings of respondent No.2 in this context, which reads as follows:--

6. The complainants have raised certain preliminary objections to the representation. They contend that there were two respondents i.e. Secretary, Revenue and Collectorate in their complaint, therefore, the representation made by the Collector only is defective. The objection is not well founded. This representation has been drafted and signed by the Collector and filed by the Revenue Division/CBR. Also the expression "Revenue Division" (Section 2(7) of 2000 Ordinance) includes all sub-ordinate departments and offices of the Revenue Division. The complainants contend that the representation is time barred. The representation forwarded to the Law Division under Revenue Division/CBR's letter dated 16-2-2004 was received in that Division on 17-2-2004. The record shows that the FTO's decision/findings were sent to the Secretary, Revenue Division on 13-1-2004. The Collector has stated on oath that the decision was received in his office on 19-1-2004. Since the Collector was respondent, therefore, reckoning the limitation from 19-1-2004 the representation filed on 17-2-2004 is within time.

7. For the benefit of the complainants it may be pointed out that the role of the FTO is not to provide appeal against tax employee's decisions on merits. His role is to identify maladministration, which connotes some misbehaviour, such as delay, inattention, corrupt motives, etc. No such allegation has been made. The complainants have failed to explain why they did not approach the FTO within six months of the day on which Bank Guarantee was en-cashed as provided under section 10(3) of 2000 Ordinance. The FTO's decision/findings cannot be sustained.

14.It would not be out of place to observe that in Constitutional jurisdiction and specially against an order of an authority, which has otherwise been passed by a competent forum having jurisdiction, this Court cannot sit in appeal to examine the veracity of any such order and or material which requires factual ascertainment of allegations, as the same is beyond the scope of Article 199 of the Constitution of Pakistan, 1973. Secondly, since the relief being sought under the writ jurisdiction, is discretionary in nature, the same cannot be exercised in matters which involve disputed facts and require further probe and investigation, hence, in the given facts and circumstances of instant matter, we are even otherwise not inclined to interfere with the impugned order as the merits of the case have not been agitated or argued by the learned Counsel for the petitioner before us. Nonetheless, even on merits, no case of any indulgence has been made out, as on perusal of the record before us, admittedly the case of the petitioner did not fall within the definition of "maladministration", as defined under the FTO Ordinance, 2000, for the simple reason, that an order-in-original was passed in the matter against which no departmental remedy was availed by the petitioner, and whether such order was correct in law or not, could have been agitated by filing an appeal before the appropriate forum through a judicial process and not by alleging maladministration. The impugned order has dealt with both the objections, regarding limitation and delay in filing of the representation as well as the jurisdiction of the office of FTO in such matters, which prima facie did not fall within the definition of "maladministration", and we are in agreement with such findings of respondent No.2 and are not inclined to disturb such finding which depicts correct factual and legal position.

15.In view of hereinabove facts and circumstances of this case, we are of the view that the impugned order dated 9-12-2005, passed by respondent No.2 is correct in law and does not warrant exercise of any discretionary relief and interference by this Court in writ jurisdiction. Consequently, instant petition was dismissed by us vide short order dated 23-9-2014 and these are the reasons thereof.

MH/R-31/SindhPetition dismissed.