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Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order 1983

 (I of 1983)

 

24th January, 1983

Whereas it is expedient to provide for the appointment of the Wafaqi Mohtasib (Ombudsman) to diagnose, investigate, redress and rectify and. injustice done to a person through mala administration ;

Now, therefore, in pursuance of the Proclamation of the fifth day of July, 1977, and in exercise of all owners enabling him in that behalf, the President and Chief Material Law Administrator is pleased to make the following Order :-

 

1. Short title, extent and commencement.-(1) This Order may be called the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983.

(2) It extends to the whole of Pakistan.

(3) It shall come into force at once.

2. Definitions.-In this Order, unless there is anything repugnant in the subject or context,-

(1) '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 ;

(2) 'Maladministration' includes- (i) a decision, process, recommendation. Act of omission or commission which-

(a) is contrary to law, rules or regulations or is a departure from established practice or procedure, unless it is bonafide 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 excesses ; and

(ii) neglect, inattention, delay, incompetence, inefficiency and inaptitude, in the administration or discharge of duties and responsibilities ;

(3) 'mohtasib' means the Wafaqi Mohtasib (Ombudsman) appointed under Article 3 ;

(4) 'office' means the office of the Mohtasib ;

(5) 'prescribed ' means prescribed by rules made under this Order ;

(6) 'public servant' means a public servants defined in Section 21 of the Pakistan Penal Code (Act XLV of 1860), and includes a Minister. Adviser, Parliamentary Secretary and the Chief Executive, Director or other officer or employee or member of an Agency ; and

(7) 'staff' means any employee or Commissioner of the office and includes co-opted members of the staff, consultants, advisers, bailiffs, liaison officers and experts.

3. Appointment of Mohtasib.– (1) There shall be Wafaqi Mohtasib (Ombudsman), who shall be appointed by the President.

(2) Before entering upon Office, the Mohtasib shall take an oath before the President in the form set out in the First Schedule.

(3) The Mohtasib shall in all matters, perform his functions and exercise his powers fairly, honestly, diligently and independently the Executive ; and all executive authorities throughout Pakistan shall act in aid of the Mohtasib.

4. Tenure of the Mohtasib.-(1) The Mohtasib shall hold office for a period of four years and shall no be eligible for any extension of tenure or for re-appointment as Mohtasib under any circumstances.

(2) The Mohtasib may resign his office by writing under this hand addressed to the President.

5. Mohtasib act to hold any other office of profit, etc.-(l) The Mohtasib shall not :-

(a) hold any other office of profit in the service of Pakistan ; or

(b) occupy and other position carrying the right to remuneration for the rendering of services.

(2) The Mohtasib shall not hold any office of profit in the service of Pakistan before the expiration of two years after he has ceased to hold that office ; nor shall be eligible during the tenure of office and for a period of two years thereafter for election as a member of Parliament or a Provincial Assembly or any local body or take part in any political activity.

6. Terms and conditions of service and remuneration of Mohtasib.-(1) The Mohtasib shall be entitled to such salary, allowances and privileges and other terms and conditions of service as the President may determine and these terms shall not be varied suring the term of office of a Mohtasib.

(2) The Mohtasib may be removed from office by the President on the ground of misconduct or, of being incapable of property performing the duties of his office by reason of physical or mental incapacity :

Provided that the Mohtasib may, if he sees fit and appropriate to refute any charges, request an open public evidentiary hearing before the Supreme Judicial Council and, if such a hearing is to held within thirty days of the receipt of such request or not conclude with in ninety days of its 'receipt, the Mohtasib will be absolved of any and all stigma whatever. In such circumstances, the Mohtasib may choose to leave his office and shall be entitled to receive full remuneration and benefits for the rest of his term.

(3) If the Mohtasib makes a request under the proviso to clause (2), he shall not perform his functions under this Order until the hearing before the Supreme Judicial Council has concluded.

(4) A Mohtasib removed from office on the ground of misconduct shall no be eligible to hold any office of profit in the service of Pakistan or for election as a member of Parliament or a Provincial Assembly or any local body.

7. Acting Mohtasib.-At any time when the office of Mohtasib is vacant, or. the Mohtasib is absent or is unable to perform his functions due to any cause, the President shall appoint as acting Mohtasib.

8. Appointment and terms and conditions of service of staff.-(1) The members of the staff, other than those mentioned in Article 20 or those of a class specified by the President by order in writing shall be appointed by the President to consultation with the Mohtasib.

(2) It shall not be necessary to consult the Federal Public Service Commission for making appointment of the members of the staff or on matters relating to qualifications for such appointment and methods of their recruitment.

(3) The member of the staff shall be entitled to such salary, allowances and other terms and conditions of service as may be prescribed having regard to the salary, allowances and other terms and conditions of service that may for the time being be admissible to other employees for the Federal Government in the corresponding Grades in the National Pay Scales.

(4) Before entering upon office a member of the staff mentioned in clause (1) shall take on oath before the Mohtasib in the form set out in the Second Schedule.

9. Jurisdiction, functions and powers of the Mohtasib.-(1) The Mohtasib may on a complaint by an aggrieved person, on a reference by the President, the Federal Council or the National Assembly, as the case may be, or on a motion of the Supreme Court or a High Court made during the course of any proceedings before it or of his own motion, undertake any investigation into any allegation of maladministration on the part of any Agency or any of its officers or employees :

Provided that the Mohtasib shall not have any jurisdiction to investigate or inquire into any matters which :–

(a) are sub judice before a Court of competent jurisdiction or judicial Tribunal or board in Pakistan on the date of receipt of a complaint, reference or motion by him ; or

(b) relate to the external affairs of Pakistan or the relations or dealings 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 matter 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.

(4) The Mohtasib may set up regional offices as, when and where required.

10. Procedure and evidence.-(1) A complaint shall be made on solemn affirmation or oath and in writing addressed to the Mohtasib by the person aggrieved or, in the case of his death, by his legal representative and may be lodged in person at the Office or handed over to the Mohtasib in person or sent by any other means of communication to the Office.

(2) No anonymous or pseudonymous complaints shall be entertained.

(3) A complaint shall be made not later than three months from the day on which the person aggrieved first had the notice of the matter alleged in the complaint, but the Mohtasib may conduct an investigation pursuant to a complaint which is not within time if he considers that there are special circumstances which make it proper fro him to do so.

(4) Where the Mohtasib proposes to conduct an investigation he shall issue to the principal officer of the Agency concerned, and to any other person who is alleged in the complaint to have taken or authorised the action complained of, a notice calling upon him to meet the allegations contained in the complaint, including rebuttal :

Provided that the Mohtasib may proceed with the investigation if no response to the notice is received by him from such principal officer or other person within thirty days of the receipt of the notice or within such longer period as may have been allowed by the Mohtasib.

(5) Every investigation shall be conducted in private, but the Mohtasib may adopt such procedure as he considers appropriate for such investigation and he may obtain information from such persons and-in such manner and make such inquiries as he thinks fit.

(6) A person shall be entitled to appear in person or be represented before the Mohtasib.

(7) The Mohtasib shall, in accordance with the rules made under this Order, pay expense and allowances to any person who attends or furnishes information for the purposes of an investigation.

(8) The conduct of an investigation shall not affect any action taken by the Agency concerned, or any power or duty of that Agency to take further action with respect to any matter subject to me investigation.

(9) For the purposes of an investigation under this Order the Mohtasib may require any officer or member of the Agency concerned to furnish any information or to produce any document which in the opinion of the Mohtasib is relevant and helpful in the conduct of the investigation, and there shall be no obligation to maintain secrecy in respect of disclosure of any information or document for the purposes of such investigation:

Provided that the President may, in his discretion, on grounds of its being a State secret, allow claim of privilege with respect to any information or document.

(10) In any case where the Mohtasib decides not to conduct an investigation, he shall send to the complainant a statement of his reasons for not conducting the investigation.

(11) Save as provided in this order, the Mohtasib shall regulate the procedure for the conduct of business or the exercise of powers under this Order.

11. Recommendations for implementation.-(1) If, after having considered a matter on his own motion or on a complaint or on a reference by the President, the Federal Council or the National Assembly, or on a motion by the Supreme Court or High Court, as the case may be, the Mohtasib is of the opinion that the matter considered amounts to maladministration, he shall communicate his findings to the Agency concerned-

(a) to consider the matter further ;

(b) to modify or cancel the decision, process, recommendation, act or omission ;

(c) to explain more fully the act or decision in question ;

(d) to take disciplinary action against any public servant of any Agency under the relevant laws applicable to him ;

(e) to dispose of the matter or case within a specified time ;

(f) to take action on his findings and recommendation to improve the working and efficiency of the Agency within a specified time ; or

(g) to take any other step specified by the Mohtasib.

(2) The Agency shall, within such time as may be specified by the Mohtasib, inform him about the action taken on his recommendations or the reasons for not complying with the same.

(3) In any case where the Mohtasib has considered a matter, or conducted an investigation, on a complaint or on a reference by the President, the Federal Council or the National Assembly or on a motion by the Supreme Court or a High Court, the Mohtasib shall forward a copy of the communication received by him from the Agency in pursuance of clause (2) to the complainant or, as the case may be, the President, the Federal Council, the National Assembly, the Supreme Court or the High Court.

(4) If, after conducting an investigation, it appears to the Mohtasib that an injustice has been caused to the person aggrieved in consequence of maladministration and that the injustice has not been or will not be remedied, he any, if he thinks fit, lay a special report on the case before the President.

(5) 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 shall be treated as 'Defiance of Recommendations' and shall be dealt with as hereinafter provided.

12. Defiance of recommendations.-(1) If there is a 'Defiance of recommendations' by any public servant in any Agency with regard to the implementation of a recommendation given by the Mohtasib, the Mohtasib, may refer the matter to the President who may, in his discretion direct the Agency to implement the recommendation and inform the Mohtasib accordingly.

(2) In each instance of 'Defiance of Recommendations' a report by the Mohtasib shall become a part of the person 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.

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 clause (1) of Article 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 s he may deem fit.

14. Powers of the Mohtasib.-(1) The Mohtasib shall, for the purposes of the Order, have the same powers as are vested in a civil Court under the Code of Civil Procedure, 1908 (Act V of 1908), in respect of the following matters, namely:-

(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. '

(2) The Mohtasib shall have the power to require any person to furnish information on such points or matters as, in the opinion of the Mohtasib, may be useful for, or relevant to, the subject-matter of any inspection or investigation.

(3) The powers referred to in clause (1) may be exercised by the Mohtasib or any person authorised in writing by the Mohtasib in this behalf while carrying out an inspection or investigation under the provisions of this Order.

(4) Where the Mohtasib finds the complaint referred to in clause (1) of Article 9 to the false, frivolous or vexatious, he may award reasonable compensation to the Agency, public servant or other functionary against whom the complaint was made; and the compensation shall be recoverable from the complainant as an arrears of land revenue ;

Provided that the award of compensation under this clause shall not debar the aggrieved person from seeking civil and criminal remedy.

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