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Petitioner: Allama Iqbal Open University (AIOU) through Registrar VS Respondent: Federation of JUDGMENT
Court Name: Islamabad High Court Judge(s): Miangul Hassan Aurangzeb Title:Allama Iqbal Open University (AIOU) through Registrar vs Federation of
JUDGMENT
Reported As: 2023 CLC 638 Result: Case remanded Judgment JUDGMENT MIANGUL HASSAN AURANGZEB, J. Through the instant writ petition the petitioner, Allama lqbal Open University ("A.I.O.U."), impugns the order dated 10.12.2020 passed by the President of Pakistan whereby the representation filed by A.I.O.U. under Article 32 of the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 ("the 1983 Order") against the revised order / findings dated 28.08.2020 of the Wafaqi Mohtasib ("the Ombudsman") was dismissed. Through the said revised order dated 28.08.2020, the Ombudsman accepted the complaint filed by respondent No.2, Shahid Jamil, and recommended that an amount of Rs.9,26,168.50 deducted by A.I.O.U. from respondent No.2's pension be refunded to him. Earlier the Ombudsman had rejected respondent No.2's complaint vide order dated 17.06.2020. FACTUAL BACKGROUND:- 2. The record shows that Nisar Ahmad Aziz ("Mr. Aziz") had been awarded scholarship for Ph.D in Business Administration at a university in the United Kingdom for a period of five years out of the income from the endowment fund of A.I.O.U. At that time Mr. Aziz was serving as Assistant Professor in the Department of Business Administration at A.I.O.U. On 02.08.2000, Mr. Aziz had executed a surety bond assuring A.I.O.U. that he shall inform A.I.O.U. of the date of his return to Pakistan and shall serve A.I.O.U. for a period of five years. Mr. Aziz had also assured A.I.O.U. that in case of the breach of any of the terms and conditions of the surety bond by him, respondent No.2 and Iqbal Hussain as the guarantors would be held responsible for the payment of damages as detailed in
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paragraph (b) of the said bond. For the purpose of clarity, paragraph (b) of the said bond is reproduced herein below:- "(b) AND THE SCHOLAR HEREBY FURTHER CONVERANTS That in case of breach of any of the above terms and conditions by his/her or on his/her Or on his/her failure to return to and stay in Pakistan, the scholar/trainee shall, on the breach of the above agreement, be bound to compensate the A.I.O.U. by making a refund of the total amount of expenditure incurred on hint/her in foreign currency or Pakistan rupees. In addition to the above the scholar/trainee will have to pay/refund the salary/allowance paid during the study period as well as the liquidating damages approved by the executive council in 1st. 57th meeting held on 7.2.98 vide Notification No.21-40/97- Refg.239 dated 20.2.98 as under. "I. FOREIGN STUDY/TRAINING S. No.Duration of Study/TrainingPeriod of Service in Allama Iqbal Open University after return from study/trainingDamages 1Over one month but not more than 3 monthOne Year Rs.50,000/- 2Over 3 months but not more than 6 months1 1/2 Year Rs.75,000/- 3Over 6 months but not more than 12 months2 Years Rs.1,00,000/- 4Over 12 months but not more than two years4 YearsRs. 3,00,000/- 5 Over two years 5 Years Rs.5,00,000/- In addition to Salary/Leave/Allowance perquisite other expenditure and amount of scholarship." 3. The said surety bond also contains a guarantee by respondent No.2 which reads thus:- "(c) GUARANTEE TO THE ALLAMA IQBAL OPEN UNIVERSITY I. Shahid Jamil son of Ch. Shah Muhammad do hereby guarantee the payment of any such sum as the above scholar/trainee may be called upon to re-fund/pay to the Allama Iqbal Open University for the breach of any the terms and conditions of the above agreement and I hereby undertake to pay such sum on demand in the event of the scholar/trainee making a default in the payment of the same and bind myself and each of my heirs, executors and administrators jointly and severally." 4. After availing the said scholarship and obtaining a Ph.D degree, Mr. Aziz returned to Pakistan and resumed his duties at A.I.O.U. on 15.06.2006. Mr. Aziz is said to have taught at A.I.O.U. between 15.06.2006 and 13.01.2009. On 13.01.2009, he again proceeded to the United Kingdom on leave which had been sanctioned for a period of 19 days i.e., up to 31.01.2009. His application dated 01.02.2009 for an extension in his leave period by five weeks was turned down by A.I.O.U. 'vide email dated 02.02.2009. Mr. Aziz did not return to Pakistan and on 24.07.2009 sent his resignation to A.I.O.U. Vide office order dated 16.07.2012, the Vice Chancellor of A.I.O.U. accepted Mr. Aziz's resignation with effect from 24.07.2009, "in anticipation of approval of the Executive Council" of A.I.O.U. In the said office order, it was mentioned that an outstanding amount of Rs. 18,52,336.66 would-be recovered from Mr. Aziz or his guarantors, and that the period from 01.02.2009 to 24.07.2009 had been treated as unauthorized absence from duty. 5. On 09.06.2014, respondent No.2, who was the guarantor for Mr. Aziz's obligations under the surety bond, retired from service. He was serving as System Analyst, Computer Centre, A.I.O.U. at the time of his retirement. A.I.O.U.'s office order dated 03.07.2014 shows that there was nothing outstanding against respondent No.2 except Rs.9,26,168.50 being the 50% share of the amount outstanding
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against Mr. Aziz due to the breach of his obligations under the surety bond. A.I.O.U. withheld the said amount from respondent No.2's pension. 6. On 13.03.2020, respondent No.2 filed a complaint before the Ombudsman seeking a direction to A.I.O.U. to release the withheld pension amounting to Rs.9,26,168.50. A.I.O.U., in its reply dated 19.05.2020, took the position that the Executive Council of A.I.O.U. in its 93rd meeting held on 16.08.2012 had decided not to accept the resignation submitted by Mr. Aziz till the settlement of his outstanding liabilities to A.I.O.U. On 17.06.2020, the Ombudsman closed the investigation in the matter. The Ombudsman in its order had recorded that Mr. Aziz had failed to deposit the damages for breach of the terms of the surety bond furnished by him and therefore an amount of Rs.9,26,168.50 had been recovered from respondent No.2 vide A.I.O.U.'s office order dated 03.07.2014. Respondent No.2 filed a review application before the Ombudsman on 16.07.2020. On 28.08.2020, the Ombudsman accepted respondent No.2's complaint and recommended that the amount deducted from respondent No.2's, pension be refunded to him. A.I.O.U.'s representation to the President of Pakistan against the said order dated 28.08.2020 was turned down vide order dated 10.12.2020. The said Concurrent orders passed by the Ombudsman and the President of Pakistan have been assailed by A.I.O.U. in the instant writ petition. CONTENTIONS OF THE LEARNED COUNSEL FOR TIIE PETITIONER:- 7. Learned counsel for A.I.O.U., after narrating the facts leading to the filing of the instant petition, submitted that respondent No.2 had stood as a guarantor for the fulfillment of Mr. Aziz's obligations under the surety bond dated 02.08.2000; that one of Mr. Aziz's obligations was that upon the completion of his scholarship, he would return to Pakistan and serve A.I.O.U. for a period of five years; that although Mr. Aziz did return to Pakistan after the completion of his scholarship and served in A.I.O.U. from 15.06.2006 to 13.01.2009 but before completing five years of service he went abroad on leave which was sanctioned only for 19 days and never returned to rejoin his duties; that he sent his resignation from abroad which has not been accepted by the Executive Council of A.I.O.U.; that Mr. Aziz was bound to repay the amount spent by A.I.O.U. on his scholarship and on his default, respondent No.2, being one of the two guarantors, was liable to return half of the said amount i.e., Rs.9,26,168.50; that on 17.06.2020, the Ombudsman had rejected respondent No.2's complaint against the deduction of the said amount from his pension but subsequently the review application filed by respondent No.2 was allowed by the same incumbent vide order dated 28.08.2020 without specifying whether there was any error apparent on the face of the earlier order dated 17.06.2020; that the Ombudsman and the President of Pakistan concurrently erred by not appreciating that a suit had been instituted by Mr. Aziz regarding the amount in dispute with A.I.O.U.; that respondent No.2 had appeared as the petitioner's witness in the said suit and had deposed that the amount of Rs.9,26,168.50 which A.I.O.U. had sought against Mr. Aziz in its counterclaim had already been deducted by A.I.O.U. from respondent No.2's pension; that this deposition of respondent No.2 was instrumental in A.I.O.U.'s counterclaim against Mr. Aziz being defeated; that the Ombudsman and the President of Pakistan concurrently erred by not appreciating that respondent No.2's complaint was grossly time barred; and that since the orders passed by the Ombudsman and the President of Pakistan suffer from jurisdictional errors, they are liable to be set-aside. Learned counsel for A.I.O.U. prayed for the writ petition to be allowed in terms of the relief sought therein. CONTENTIONS OF THE LEARNED COUNSEL FOR RESPONDENT NO.2:- 8. On the other hand, learned counsel for respondent No.2 submitted that since A.I.O.U. did not accept Mr. Aziz's resignation, does this mean that he is still an employee of A.I.O.U.? He also submitted that if Mr. Aziz is still an employee of A.I.O.U., why are the guarantors being held liable for his default in not serving A.I.O.U. for a period of five years upon his return from abroad? He further submitted that A.I.O.U. has not explained the present legal status of Mr. Aziz's employment with
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A.I.O.U.; that A.I.O.U. has never passed an order regarding Mr. Aziz's dismissal from service or his superannuation; that in the service parlance, there is no concept of 'anticipatory approval'; that upon the acceptance of Mr. Aziz's resignation on 24.07.2009, respondent No.2 could not be held liable for Mr. Aziz's failure to complete five years of service with A.I.O.U. after his return to Pakistan; that after Mr. Aziz's return to Pakistan, respondent No.2's liability under the guarantee came to an end; that it is A.I.O.U. that permitted Mr. Aziz to proceed abroad on leave; that respondent No.2 cannot be held liable for Mr. Aziz's default in rejoining his duties after the completion of his ex- Pakistan leave period of 19 days; that A.I.O.U. did not take any action against Mr. Aziz for the recovery of damages or the amount spent on his education abroad; that A.I.O.U. should have filed a civil suit for recovery against Mr. Aziz; and that it is only when Mr. Aziz refused to make payment that recourse could have been made to the guarantors. 9. Furthermore, it was submitted that it was respondent No.2's fundamental right to receive his pension upon his retirement on 09.06.2014; that under Section 11 of the Pensions Act, 1871, respondent No.2's pension could not have been withheld; that pension is a matter of right and not a bounty of the State; that even for the execution of a money decree, pension cannot be stopped; that the provisions of the Allama lqbal Open University Act, 1974 as well as the rules made thereunder do not authorize the Executive Council of A.I.O.U. to withhold a retired employee's pension; that the delay in filing of the complaint before the Ombudsman was because respondent No.2 had filed an application dated 14.07.2014 asserting therein that his pension had been illegally withheld; that this fact is clearly mentioned in respondent No.2's complaint as well as in the Ombudsman's order; that A.I.O.U. had constituted a committee which never took a decision on respondent No.2's grievance; that proceedings pursuant to the complaint filed by respondent No.2 were closed due to the COVID-19 pandemic; and that after respondent No.2 filed a review application, the case was examined on its merits by the Ombudsman. Learned counsel for respondent No.2 prayed for the writ petition to be dismissed. CONTENTIONS OF THE LEARNED COUNSEL FOR TIIE OMBUDSMAN'S SECRETARIAT:- 10. Learned counsel for the Ombudsman's Secretariat submitted that the fact of the civil suit instituted by Mr. Aziz against A.I.O.U. was not brought to the notice of the Ombudsman; that had the Ombudsman been informed about the said civil suit, the proceedings pursuant to respondent No.2's complaint would have been dropped; that A.I.O.U., in its reply to respondent No.2's complaint, did not mention anything about the litigation between Mr. Aziz and A.I.O.U.; that even in the instant writ petition, it has not been asserted that respondent No.2's complaint was not competent on account of such litigation; that the objection as to the maintainability of respondent No.2's complaint has only been raised by A.I.O.U. in arguments before this Court; that liability of respondent No.2 under the guarantee is a contractual liability and has no nexus with respondent No.2's service with A.I.O.U.; that in paragraph 7 of the review application, respondent No.2 had pleaded that A.I.O.U. had constituted a committee in 2014 to decide whether respondent No.2's pension could be withheld to satisfy his liability under the guarantee; that the maladministration committed by A.I.O.U. was not to decide respondent No.2's application dated 14.07.2014 for the release of his pension despite the constitution of a committee; and that the delay in deciding an application for the release of pension is also an act of maladministration. Learned counsel for the Ombudsman's Secretariat submitted that the instant petition may be decided in accordance with the law. 11. Learned counsel for A.I.O.U. in rejoinder submitted that the provisions of the Pensions Act, 1871 do not apply to autonomous / statutory bodies; that even otherwise provisions of the said Act provide a mechanism for recovery of pension; and that respondent No.2 has not complied with the procedure prescribed for the recovery of pension.
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12. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. The facts leading to the filing of the instant petition have been set out in sufficient detail in paragraphs 2 to 6 above and need not be recapitulated. WHETHER THIS COURT CAN DECLARE THE PROCEEDINGS PURSUANT TO RESPONDENT NO.2'S COMPLAINT TO BE WITIIOUT JURISDICTION DUE TO MATTER HAVING BEEN DECIDED BY THE LEARNED CIVIL COURT:- 13. I propose in the first instance to address the objection taken by the learned counsel for A.I.O.U. to the maintainability of respondent No.2's complaint before the Ombudsman on the ground that the said complaint was with respect to a matter which was sub-judice before a Court. 14. Article 9(1) of the 1983 Order, and clause (a) of the proviso to the said Article reads thus:- "9. Jurisdiction, functions and power of the Mohtasib.---(1) The Mohtasib may, on a complaint by any 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 the receipt of a complaint, reference or motion by him; 15. The proviso to Article 9(1) of the 1983 Order removes from the pale of the Ombudsman's jurisdiction "matters which are sub-judice before a Court of competent jurisdiction etc." It does not require for the complainant to be a party to any proceedings which are sub-judice before a Court of competent jurisdiction. 16. It is not disputed that on 15.10.2012, Mr. Aziz had instituted a suit for declaration, permanent and mandatory injunction against A.I.O.U. before the Court of the learned Civil Judge, Islamabad. In the said suit, it was pleaded inter alia that A.I.O.U. had been demanding payment from the sureties of Mr. Aziz despite the fact that his services had not been terminated (paragraph 20 of the suit). Furthermore, it was pleaded that since A.I.O.U. had failed to pay the full scholarship amount to Mr. Aziz, it was estopped from claiming any money or compensation under the terms of the surety bond (paragraphs 22 and 23 of the suit). It was also pleaded that A.I.O.U. had been asked by Mr. Aziz to refrain from taking adverse action against Mr. Aziz's sureties (paragraph 40 of the suit). In the said suit, Mr. Aziz had prayed for a declaration to the effect that the surety bond dated 02.08.2000 was null and void and inoperative on the rights, interests and legal status of Mr. Aziz and his sureties. 17. A.I.O.U. had filed a written statement in the said suit on 15.01.2013. Perusal of the said written statement shows that A.I.O.U. had sought recovery of Rs.18,52,336.66 against Mr. Aziz by way of set off/counterclaim. It may be mentioned at this stage that half of the said amount i.e. Rs.9,26,168.50 has been deducted by A.I.O.U. from respondent No.2's pension. The other half has been deducted from the pension of the other surety, who was also an employee of A.I.O.U. Had the said set off been allowed by the learned Civil Court, there would have remained no reason for A.I.O.U. to withhold the pension of respondent No.2 and the other surety any further. 18. Respondent No.2 had appeared as PW.1 in the said suit and in his affidavit-in-evidence filed on 24.01.2015, he had deposed inter alia that he had given a surety that Mr. Aziz would serve A.I.O.U. for a period of five years and that A.I.O.U. had deducted Rs.9,26,168.50 from respondent No.2's pension. The trial in the said suit culminated in the judgment and decree dated 27.06.2019 whereby Mr. Aziz's suit as well as A.I.O.U.'s counter-claim were dismissed. The finding of the learned Civil Court on the issue pertaining to A.I.O.U.'s prayer for the recovery of Rs.18,52,336.66 against Mr. Aziz is as follows:-
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"12. During the course of evidence, the plaintiff produced one Shahid Jamil as PW-1, who was one of the guarantor, and he specifically deposed that university has already deducted an amount of Rs. 926,168 (half of the surety amount) from his pension, further, the plaintiff has claimed that entire amount of surety has already been deducted by the university from the pensions of two sureties, and the university has not rebutted this contention of the plaintiff, therefore, they are not entitled to claim the same amount again. Resultantly, this issue stands answered in negative." 19. As can be gathered from the learned Civil Court's findings referred to herein above the testimony of respondent No.2, who had appeared as a witness for Mr. Aziz, was instrumental in A.I.O.U.'s counterclaim being dismissed. But for respondent No.2's testimony, A.I.O.U.'s counterclaim may not have been defeated. 20. The reason why it was essential to narrate respondent No.2's role in the proceedings in the suit instituted by Mr. Aziz against A.I.O.U. is that he would be deemed to be aware as to the surety bond dated 02.08.2000 to be the subject matter of the said suit when he, on 13.03.2020, filed a complaint before the Ombudsman against A.I.O.U. It may also be mentioned that Mr. Aziz has assailed the said judgment and decree dated 27.06.2019 in Regular First Appeal No.220 of 2019 before this Court. 21. It is well settled that an appeal is a continuation of proceedings instituted before the original forum. The matter pertaining to the liability of Mr. Aziz as well as that of respondent No.2 under the surety bond was sub-judice when respondent No.2 filed a complaint on 13.03.2020 before the Ombudsman. In the said complaint, respondent No.2 did not make any disclosure as to Mr. Aziz's liability under the surety bond having been adjudicated upon and decided by the learned Civil Court. This was a material concealment by respondent No.2. Learned counsel for the Ombudsman's Secretariat had submitted in unequivocal terms that had respondent No.2 or even A.I.O.U. disclosed the factum as to the judgment and decree dated 27.06.2019 having been passed by the learned Civil Court, the proceedings pursuant to respondent No.2's complaint would have been dropped. True, the representatives of A.I.O.U. had been most unfair by not mentioning in the reply to respondent No.2's complaint or representation to the President of Pakistan the fact about the said judgment and decree or the filing of the regular first appeal by Mr. Aziz but this non- disclosure on the part of A.I.O.U. would not result in vesting jurisdiction in the Ombudsman over the matter which was clearly barred in terms of proviso (a) to Article 9(1) of the 1983 Order. Where a mandatory condition for the exercise of jurisdiction by a Court or Tribunal is not fulfilled, the assumption of jurisdiction in such a matter is liable to be declared as without lawful authority. It is also well settled and not open to any dispute that a defect of jurisdiction goes to the root of the matter and strikes at the very authority of the Court or a Tribunal to pass an order and this cannot be cured by the consent or waiver of the parties. In holding so, reliance is placed on the following case law:- (i) In the case of Executive District Officer, Schools and Literacy v. Qamar Dost Khan (2006 SCMR 1630), the Hon'ble Supreme Court held inter alia that the question of jurisdiction goes to the root of the case and could be raised for the first time even while appearing before the highest Court of the country. Furthermore, it was held that "justice according to law is the duty of the Court which can neither be abdicated in favour of the whims or ignorance of the litigants or their lawyers nor it be avoided or evaded on the pretext that a question of law going to the root of the case was not raised promptly." (ii) In the case of Mansab Ali v. Amir (PLD 1971 SC 124), it has been held as follows:- "It is an elementary principle that if a mandatory condition for the exercise of jurisdiction by a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any order passed in continuation of these proceedings in appeal or revision equally suffer from illegality and are without jurisdiction."
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(iii) In the case of Muhammad Sadiq v. Pakistan, through Collector, Rawalpindi (1988 CLC 123), it has been held as follows:- "Term 'Jurisdiction', which refers to the legal authority and competence of the Court to administer justice, is conferred by law only. Jurisdiction can neither be conferred nor ousted by consent. Nor submission shall confer jurisdiction on the Court, when it does not exist. ... It is settled statement of law that decision given without jurisdiction is a total nullity." 22. Since neither respondent No.2 nor A.I.O.U. made a disclosure to the Ombudsman or the President of Pakistan about the matter regarding Mr. Aziz's liability under the surety bond having been decided by the learned Civil Court, there was no way for the Ombudsman or the President of Pakistan to have been aware of this fact. The non-disclosure of the said material fact either by respondent No.2 or A.I.O.U. would not render inoperative the bar contained in proviso (a) to Article 9(1) of the 1983 Order. WHETHER RESPONDENT NO.2 HAD FILED THE COMPLAINT BEFORE THE OMBUDSMAN BEYOND THE LIMITATION PERIOD PROVIDED BY LAW:- 23. Insofar as the question whether the complaint filed by respondent No.2 before the Ombudsman was barred by limitation is concerned, Article 10(3) of the 1983 Order provides that 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 any investigation pursuant to a complaint which is not within time if he considers that there are special circumstances which make it proper for him to do so. 24. Learned counsel for respondent No.2 tried to justify the delay in filing of the complaint by submitting that the committee constituted by A.I.O.U. to consider respondent No.2's application dated 14.07.2014 for the release of his pension never decided the said application and this fact was stated by respondent No.2 in his complaint to the Ombudsman. It was also submitted that the Ombudsman had also, in his order dated 28.08.2020, recorded respondent No.2's contention that such a committee had not taken a decision. 25. Respondent No.2 had retired from service on 09.06.2014. In A.I.O.U.'s office order dated 03.07.2014 which was also marked to respondent No.2, it was mentioned that his outstanding dues were Rs.9,26,168.50 being 50% share of the amount payable…
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