In broad-spectrum, the word ‘order’ is used in the meaning of command, adjudge, to adjudicate, to instruct, to legislate, to lineup or manage etc. In legal sense, the word ‘order’ has no universal meaning. Different statutes define this expression differently. Yet the word ‘order’ has not been defined in the Act like the Code of Civil Procedure, 1908 which gives it a special meaning in order to distinguish it from a decree.Judicial Order:A judicial act seems to be an act done by a competent authority upon a consideration of facts and circumstances, and imposing liability, or affecting the rights of others.Judicial order is an order while exercising judicial authority nevertheless, to make an order a judicial order, the following criteria must be satisfied:i. it is in substance a determination upon investigation of a question by the application of objective standards to facts found in the light of pre-existing legal rules;ii. it declares rights or imposes upon parties obligations affecting their civil rights; andiii. the investigation is subject to certain procedural attributes, namely: (a) contemplating and opportunity of presenting its case to a party; (b) ascertainment of facts by means of evidence, if a dispute is on question of fact, and if the dispute is on question of Law, on the presentation of legal argument; (c) a decision resulting in the disposal of the matter on findings based upon these questions of Law and Fact.Quasi-Judicial Order:The word ‘Quasi’ is prefixed to a noun means that although the thing signified by the combination of ‘Quasi’ with the noun does not comply in strictness with the definition of the noun, it shares its qualities, falls philosophically under the same head, and is best marked by its approximation thereto.The prefix “Quasi” is derived from Latin roots meaning – similar to but not exactly. Thus Quasi-Judicial proceedings are similar, but not exactly Judicial or Court proceedings. Also, some Quasi-Judicial bodies may derive certain powers from certain Acts; yet they cannot be considered as Courts. In fact, the term Quasi-Judicial is employed to differentiate it from Judiciary or Court. ‘Quasi Judicial’ is a term applied to the action, discretion, etc, of public administrative officers or bodies, who are required to investigate facts, or ascertain the existence of facts, hold hearings, weigh evidence, and draw conclusions from them, as a basis for their official action, and to exercise discretion of a judicial nature.Quasi Judicial act is a judicial action performed by one not a judge. Quasi Judicial power is the power of an administrative agency to adjudicate the rights of persons before it.The term ‘Quasi Judicial Order’ has been given a liberal interpretation so as to include orders by tribunals or authorities other than the regular courts of justice. To constitute a Quasi-Judicial Order, the authority passing the order should be under an obligation to hear the parties, to make an inquiry, to weigh the evidence and to base its conclusion thereon. Its decision should be based on the result of the inquiry and not on its own discretion.Administrative Order:An ‘Administrative Order’ is an issuance by any agency under the executive branch of government.Governmental systems based on the English tradition are typically comprised of executive, legislative, and judiciary branches. The judicial system of courts and judges has the primary authority to interpret the law of the land in civil and criminal matters. Certain government agencies outside the judicial branch are established by statute to regulate aspects of life within a jurisdiction and are empowered to take the statute, that defines its authority and create working regulations to detail the procedures for complying with the law. The process of an agency issuing and enforcing regulations based on an authorizing statute is known as administrative law.Administrative order is an enforceable order issued by a public authority (under the powers conferred to it by one or more statutes) to an individual or an organization to take certain corrective action, or to refrain from an activity.In United States of America, when authorized by the Court, the Chief Judge may issue administrative orders of general scope which apply to all cases pending in the district and administrative orders of a more limited nature which apply to smaller groups of cases (E.D. Mich. LR 83.3).Judicial, Quasi Judicial and Administrative Order — Divergence:In Shri Sitaram Sugar Company v. Union of India (AIR 1990 SC 1277), the Indian Supreme Court held as under:-“52. The True position, therefore, is that any act of the repository of power, whether legislative or administrative or quasi-judicial, is open to challenge if it is in conflict with the Constitution or the governing Act or the general principles of the law of the land or it is so arbitrary or unreasonable that no fair minded authority could ever have made it.”If the statutory authority is allowed to pass an order subjectively, based on his personal or private opinion, and does not impose a liability or affect the right of others in a substantial manner, then the order will be executive, but if the statutory order is to be passed objectively, and based on some relevant and existing circumstances and facts, and at the same time substantially affects the rights of others, it would be a Quasi Judicial Order.Stason and Cooper in their treatises on “Cases and other materials on Administrative Tribunals” point out at pages 150 that “one of the great difficulties of properly classifying a particular function of an administrative agency is that frequently – and, indeed; typically -a single function has three aspects. It is partly legislative, partly judicial and partly administrative. Consider, for example, the function of rate-making. It has sometimes been characterised as legislative, sometimes as judicial. In some aspects, actually, it involves merely executive or administrative powers. For example, where the Interstate Commerce Commission fixes a tariff of charges for any railroad, its function is viewed as legislative. But where the question for decision is whether a shipment of a mixture of coffee and chicory should be charged the rate established for coffee or the lower rate established for chicory, the question is more nearly judicial. On the other hand, where the problem is merely the calculation of the total freight charges due for a particular shipment, the determination can fairly be described as an administrative act.”Views of Superior Courts of Pakistan:i. PLD 1958 SUPREME-COURT 437 Held: administrative Tribunals judicial , quasi judicial , or administrative tribunals Precise definition not possible Considerations for correct determination Certiorari Where lies judicial or quasi judicial order s Lack of jurisdiction Constitution of Pakistan, Art. 170.ii. 1960 PTD 812 KARACHI-HIGH-COURT-SINDHEstate Duty Act 1950 ——Ss. 58-A, and 58-D-“order ” determining Estate duty-” Notice ” of demand based on such order -“Notice” cannot be challenged without challenging “order ” ” Notice ” not a quasi judicial but an administrative act-Not challengeable by writ of certiorari-Constitution of Pakistan (1956), Art. 170.iii. PLD 1962 DHAKA 310West Pakistan Motor Vehicles Act 1939 S. 58–order under section 58 neither judicial nor quasi -judicial -Cannot be quashed by certiorari unless order could not have been made under provisions of section-Exercise of discretionary statutory power in perfunctory manner by administrative officer-Deprecated-Constitution of Pakistan (1956), Art. 170.iv. 1962 PLC 1091Government Servant Government servant-Member of Secretary of State’s Services Right of appeal to Governor-General-in-Council from order of Local Government under r. 57 (1) (5) proviso, Civil Services (Classification, Control and Appeal) Rules-Continues to subsist Government of India Act, 1935, Ss. 241, 276-Indian Independence Act, 1947, Ss. 10 & 10-A-Constitution of Pakistan (1956), Art. 233 read with Art. 224 (I)”Individual judgment” of Governor General replaced, in new context, by “Governor-General acting upon advice of Ministers”–Denial of right of appeal, by withholding (by Provincial Government) of appeal and representation of Government servant, from being forwarded to Governor-General to be remedied by issue of mandamus and not by certiorari Constitution of Pakistan (1956), Art. 170-Certiorari to be issued in judicialor quasi -judicial cases and not in administrative cases.v. 1986 CLC 1214Constitution of Pakistan 1973 Art. 199–Bias–Constitutional jurisdiction, exercise of–Official exercisingjudicial /quasi -judicial function with regard to matter on which such official had previously exercisedadministrative function, held, would be hit by doctrine of bias–High Court in exercise of Constitutional-jurisdiction could declare order of such official based on bias to be without lawful authority and of no legal effect.–[Bias].vi. 1996 CLC 293A dministration of Justice judicial and quasi judicial forums were required to pass well-reasoned order s—administrative Authorities were under no less obligation to do likewise, rigour of such requirement in their case, however, was not as intense as in case of judicial or quasi judicial bodies.vii. 2003 PLC(CS) 645S.13—Disciplinary proceedings, commencement of—Terminus quo of–Civil servant was sent on forced leave on 12-4-2000, whereas charge-sheet was issued to him on 24-11-2000 and 30-12-2000—order of suspension or order of sending civil servant on leave was in the nature of administrative action– -Issuance of charge-sheet and statement of allegations was the start of quasi -judicial investigating process, through which allegations were brought to notice of civil servant—Pending proceedings contemplated in S.13 of the Ordinance related to proceedings that commenced with issuance of chargesheet and not by anadministrative act of sending civil servant on forced leave—Charge-sheet had been issued after commencement of the Ordinance, S.13 thereof would have no application—Civil servant was liable to be dealt with under the Ordinance.viii. PLD 2004 LAHORE 83Art. 32—Constitution of Pakistan (1973), Art.199—Constitutional petition—Representation before President of Pakistan—Principles of natural justice—Applicability—Authorities filed representation againstorder passed by Wafaqi Mohtasib before the President of Pakistan which was accepted without notice to the petitioner and without affording him opportunity of hearing—Petitioner having been condemned unheard,order passed by the President had affected him adversely who was vested with right of participation in proceedings before the President of Pakistan being a necessary party—President of Pakistan, while performing functions under Art.32 of Establishment of Office of Wafaqi Mohtasib (Ombudsman) order , 1983, was to act in quasi -judicial and not in administrative capacity which was totally distinguishable from theadministrative actions— Principles of natural justice having been violated in the case, order passed by the President of Pakistan was without lawful authority and of no legal effect and was set aside by High Court in Constitutional petition.ix. 2006 YLR 1214Art. 32—Constitution of Pakistan (1973), Art.199—Constitutional petition— Representation before President of Pakistan—Maxim: ‘Audi alteram partem’—Applicability—Authorities filed representa¬tion against order passed by Wafaqi Mohtasib before the President of Pakistan which was accepted without notice to the petitioner and without affording him opportunity of hearing—Impugned order adversely affected petitioner, who was vested with a right of participation in proceedings against her as necessary party but was condemned unheard—President of Pakistan, while performing his functions under Art.32 of Establishment of Office of Wafaqi Mohtasib (Ombudsman) order , 1983, was to act in a quasi judicial and not in an administrative capacity, which was totally distinguishable from the administrative actions—Principles of natural justice having been violated in the case, order passed by the President of Pakistan was without lawful authority and of no legal effect and was set aside by High Court—Questions of law and facts involved in the case, were not touched by the High Court and were left to be re-decided hence representation would have to be deemed to be pending. x. PLD 2008 PESHAWAR 145S. 30-A [as amended by Pakistan Electronic Media Regulatory Authority (Amendment) Act (II of 2007)]—Application for permission to install cable network—Dismissal of application—Appeal—Principles of natural justice, violation of—Appellants submitted application to the Authority supported by two demand drafts for the issuance of licence—Authority, by a short order through a letter communicated to appellants; informing them that there being already functioning four cable networks, no scope existed for the issuance of further licence—Impugned order had been passed at the back of appellants and no notice of hearing had been given to them—Effect—Appellants, who had a right of hearing had been deprived of their right which could not be denied to them, especially in the circumstances when no notice of hearing had been issued to them—Not only in judicial proceedings, but also in administrative actions, petitioner or appellant, as the case may be, was always entitled to a notice or a chance of hearing—Even, in a lis pending in administrative Tribunals or quasi -judicial Tribunals, the right of hearing of a party was a must which was derived from natural justice as nobody could be condemned unheard—Impugned order had revealed that same was cursory, non-speaking and violative of law and was liable to be struck down—Impugned order was set aside and matter was remitted to the Tribunal constituted under Pakistan Electronic Media Regulatory Authority Ordinance, 2002 to re-decide the same afresh strictly in accordance with law after giving an opportunity of hearing to the appellants.
References/courtesy:
i. AIR 1971 MP 16ii. AIR 1963 SC 677iii. AIR 1955 All 501iv. Web link of business dictionaryv. PLD 1958 Peshawar 157vi. Official web link of United States District Court, Eastern District of Michigan.vii. Web link of Wise Geek.
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