Ch. AKBAR ALI vs SECRETARY, MINISTRY OF DEFENCE, RAWALPINDI And Another

ORDER

1. MUHAMMAD AFZAL ZULLAH, CJ.--In this service matter the petitioner has approached this Court for the second time. Earlier his petition for leave to appeal was dismissed on merits on 9-5-1977. He had then argued his case in person.

2. It appears that the petitioner started another frivolous round in order to make undeserved immoral gain in the hope that if after over a decade he is able to seek reversal of the orders passed against him in earlier litigation, he might earn huge amounts of money in arrears of pay and emoluments.

3. This, we have noticed is modus operandi of some ex-employees in prolonging the litigation and ultimately making an absolutely unearned gain at the cost of the public exchequer. The Courts and forums concerned must keep a careful watch on this tendency so as to curb it. Otherwise too, there is no reason why service matters should be allowed to linger on to unreasonable limits. If in this exercise in scrutiny, a case like the present one is discovered, the forum concerned after due caution to the civil servant concerned must proceed in such a manner that the party concerned should realise that such tactics are fruitless rather counter--productive.

4. Before closing this order it is necessary to reproduce the concluding part of the order of this Court passed against the petitioner in Civil Petition No.96-R of 1977. It reads as follows:----- "In this petition before us the petitioner attempted to advance all these contentions in support of his petition. But on going through the record we find that on the merits of the charge against him he has no satisfactory explanation to offer. He appears to have remained absent from service without permission from 23rd December, 1972 to 19th January, 1973 from 13th March, 1973 to 17th March, 1973 from 28th June to 14th July, 1973 and since 3rd of August 1973. He was also habitually late and most irregular in attending his office. He was found to be disobedient in complying with the lawful orders issued by his superiors. In the circumstance we are of the considered opinion that there are no equities in favour of the petitioner. It appears from the facts of this case that substantial justice has been done between the parties and we are not inclined to interfere with the impugned order passed by the Tribunal on mere technical consideration advanced by the petitioner This petition is therefore liable to be dismissed on this short ground and we order accordingly".

5. This Court has emphasized the vigilance to be exercised by the Courts and forums of law so as not to be duped by the interplay of technicalities which do not go to the root of the case in so far as the dictates of substantial justice are concerned. Since the introduction of Islamic Law and jurisprudence in our Constitutional set up including the Objectives Resolutions enacted by the first Constituent Assembly in 1949, the emphasis on real substantial justice has increased manifold. So much so that although it is not enshrined in the Constitution as a fundamental right, in the entire Constitutional set up mentioned above, the right to obtain justice as is ordained by Islam, has become inviolable right of citizens of Pakistan.

6. One who seeks justice must be ready to see justice being done to the other side. When the other side is the Government or any State Institution or functionary acting on behalf of the State, it is the duty of a litigant for justice against the State not to shirk the responsibility of being just to the adversary also.

7. This is a clear case of an attempt to do otherwise. It suffices as an illustration also to refer here to a part of the impugned judgment. It reads as follows:-- "The appellant preferred the Appeal No.264 (R) 'of 1975 against the order dated 1-10-1974 of his dismissal from service as L.D.C. In the office of the Chief Administrative Officer, G.H.O, Rawalpindi.

8. His appeal was dismissed on merits as well as on the ground of limitation by judgment which was finalised on 4-1-1977. He filed review application which was dismissed by order dated 15-3-1977. He made another review application and that too was dismissed by order dated 16/17-1-1978. He filed Civil Petition for Special Leave to Appeal (No.96-R of 1977) before the Supreme Court. His petition was dismissed by judgment dated 9-5-1977. He has filed this miscellaneous application on 10-1- 1991.

9. "We have heard the appellant. His main contention is that the order of his dismissal was void ab initio and the decision may be revised and the order impugned in the appeal may be set aside. He has quoted some reported cases on the principles of Interpretation of Law, Defamation, Civil Liability, Defamation/Malicious Prosecution. Burden of Proof, Succession etc. None of the cases advances his case for setting aside the order of his dismissal from service. As stated above, his appeal before this Tribunal was dismissed and his review applications filed before the Tribunal were also dismissed and his petition for leave to appeal before the Supreme Court too was dismissed. His first round of litigation against order of his dismissal from service stood completed by the decision of the Supreme Court on his petition for special leave to appeal on 9-5-1977. This miscellaneous application filed on 10-1-1991 for revival of the appeal is totally misconceived."

10. In the exercise to do justice in accordance with law the Courts and forums of law cannot sit as mere spectators as if at a high pedestal, only to watch who out of two quarrelling parties wins. See the judgment of this Court in the case of Muhammad Azam v. Muhammad Iqbal and others (PLD 1954 SC 95 at page 132) and Civil Appeal No.789 of 1990 decided on 26-6-1991(Syed Phul Shah v.

11. Muhammad Hussain PLD 1991 SC 1051), On the other hand deep understanding and keen observance of proceedings is a sine qua non for doing justice in the Constitutional set up of Pakistan. Those Rules of adversary system based merely on technicalities not reaching the depth of the matter, are now a luxury of the past. Neither of the parties can be permitted to trap an improperly defended or an undefended or an unsuspecting adversary by means of technicalities when the demand of justice is clearly seen even through a perfect trap. It will make no difference if the litigant parties are citizens high or low and/or is Government or a State institution or functionary acting as such.

12. The petitioner has made an immoral attempt to make an immoral gain in his over a decade long attempt in realm of technicalities which having been exposed by us on questioning him, he in open Court, felt very much perturbed and visibly ashamed. Not only this he openly felt sorry for his conduct. We consoled him and advised him that there is nothing wrong in returning to a straight path even after a person has been led astray by the satanic motives. He still seems to be of very good health and from appearance looks young. If he has expressed the Tauba from the depth of his heart there is every reason to hope that it should be accepted. While leaving the Court it appeared as if he would change his path. With this hope and the further hope that the sooner our culture of litigation changes from its previous mornings to the new ones, the better it will be for the State and the citizen, and with the foregoing observations, this petition is dismissed as frivolous and leave to appeal is refused with the same order as passed on 9-5-1977.