ISLAMABAD: The Sindh High Court (SHC) has directed the Federal Tax Ombudsman (FTO) that the FTO office cannot initiate action against the employees of the Federal Board of Revenue (FBR) without issuing notice or hearing their viewpoint under Article 10(A) of the Constitution.

According to a judgment of the SHC issued against the FTO, it is high time that the office of FTO realises its domain and jurisdiction while dealing with complaints and shall not become the supervisory body or authority of all the employees of FBR as they are to be dealt with strictly in accordance with the Civil Servants Act, 1973, and the Rules framed there under.

The counsel for the petitioner submitted that the FTO while passing order/ recommendations dated July 7, 2022 has recorded some adverse findings against the petitioner who is working in FBR as an additional commissioner (audit) and it has been recommended by the FTO that the officer is not suitable for any field posting. According to him, this was done without issuing any notice to the petitioner; nor does FTO have any lawful jurisdiction to do so.

The SHC declared that even if it appears that there are certain provisions in the FTO Ordinance or for that matter under any other law, which empowers the FTO to initiate any proceedings and action against any person, without notice; but when looked into on the touchstone of Article 10 (A) 1 of the Constitution, it appears that such an action cannot be sustained by the courts. At least not in the manner as has been done by the FTO in this case.

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Therefore, the entire exercise carried out by the FTO against the petitioner (audit officer), whereby, his service record has been tarnished and adverse findings have been recorded without any memo of explanation or at least a notice cannot be sustained under any circumstances, notwithstanding the provisions of the Ordinance and law as noted herein above.

This is a glaring exercise of misuse of powers and authority on the part of the FTO, which cannot be overlooked by this court while exercising its jurisdiction under Article 199 of the Constitution, which requires this court to correct such brazenly obvious and notable wrongs committed by the authorities below.

The SHC order stated that it appears to be a matter of record that time and again, the courts have interpreted the law including the FTO Ordinance, as well as the jurisdiction which can and cannot be exercised by the FTO; and notwithstanding these judgments, the FTO is passing somewhat similar orders by completely ignoring the dictum laid down by the courts.

“Such an act of his office, on the face of it appears to be contemptuous and against the law settled by the courts. This tendency of his office has to be looked into as time and again the judgments of the Constitutional Courts are being disobeyed as if they are worthless piece of papers for him”, the SHC order said.

Per settled law, once the Ordinance or any law has been interpreted by a Constitutional Court, then the office of Ombudsman is bound to accept the same and cannot be said to be aggrieved of, if the powers to redress mal-administration vested in him under the law are modified (enhanced or curtailed) through interpretation of Constitutional Court, whereas, even the Ombudsman has no locus standi to challenge an order passed by the Constitutional Court that interprets its jurisdiction or powers under the law.

Lastly, it is also settled law that the act(s) and functions, i.e., (passing of Orders) by the officers of FBR while performing quasi-judicial functions under the tax laws, are not always subject to an administrative control of FBR so as to bring disciplinary proceedings against such officers for passing orders while performing such functions.

In view of the above, in our considered opinion the conduct of FTO whereby, adverse findings have been recorded against the petitioner while deciding a complaint of a taxpayer cannot be sustained as it was done without any notice and without following the principles of natural justice. Moreover, such an act is also in violation of the judgment(s) of the Constitutional Courts as above and therefore, the impugned order amounts to violating such judgments.

However, for the present purposes, showing restraint we have decided not to initiate any proceedings against the office of FTO and leave it open to be taken up in an appropriate case as and when brought before this Court.

Copyright Business Recorder, 2023