KARACHI: The Sindh High Court (SHC) has observed that the judiciary has, on occasions, faced challenging times as safeguarding fundamental rights is perceived as a ‘threat’ or ‘intervention’ by other state organs in executive matters, instead of being considered an opportunity to improve governance.
The bench directed the federal and provincial governments, as well as the state institutions to ensure continuous improvement inthe administrative as well as judicial justice delivery system in order to strengthen the public trust in the state and its institutions.
The SHC also said that any negligence or lacking towards such constitutional obligation would have disastrous and long-lasting repercussions since no society could flourish without an independent justice delivery system.
A two-judge bench, comprising by Justice Muhammad Faisal Kamal Alam and Justice Jawad Akbar Sarwana, made these observations while deciding a petition filed by a former chief technician of the Pakistan Air Force (PAF) against his dismissal from service.
The petitioner, Abdul Monem, submitted that an inquiry was ordered against him in 2020 in respect of embezzlement of service medicines, and he was eventually dismissed from service in 2024 under Section 20(1) of the PAF Act, 1953, read with Rule 31-A of the PAF Rules.
The bench in its judgement, authored by Justice Alam, said that once the respondent has elected to prosecute the petitioner by initiating a board of inquiry, then halfway through, and that too after nearly four years, it cannot abruptly dismiss the petitioner by invoking Section 20, without first completing the prescribed procedure.
“… the dismissal of the petitioner from the service is done in a gross violation of the prescribed procedure, due process and the Act itself. The violation of due process of law is, in fact, a violation of the fundamental rights as protected under Article 10-A of the Constitution,” it added.
The bench also observed that Article 37 [d] of the Constitution enjoined that the state must ensure inexpensive and expeditious justice, and although the principles set out in Chapter 2 (Principles of Policy) were not enforceable through courts, at the same time, they had been termed the conscience of the Constitution.
The bench wrote in the verdict: “Therefore, the Governments [provincial and federal] and the State Institutions must ensure continuous improvement in the justice delivery system, whether it is the administrative justice through the executive or justice dispensed by Courts, in order to strengthen the public trust in the State and its Institutions. Any negligence or lack towards this constitutional obligation would have disastrous and long-lasting repercussions, because no society can flourish without an independent justice delivery system in place.
“Courts which have propounded public interest litigation and safeguarded fundamental rights in their respective jurisdictions have on occasions faced challenging times. Frequently, this stems from the other Organs [Limbs] of the State perceiving such judicial safeguards as a threat or an intervention in executive matters, rather than an opportunity to improve governance”, it added.
Referring to various judgments of the apex court, the bench observed that “it can be deduced that the principles of policy, which is the covenant between the state, organs of the state, its functionaries and citizens of the country, and thus, state policies must be structured on that constitutional covenant”.
The foundation of this distinct feature of the Constitution has been laid down by its framers by preserving the power of judicial review, which is a basic feature of the Constitution. Therefore, the legislative powers are not unlimited,” it added.
Regarding arguments of the lawyers for the petitioner about the validity of Section 20(1) and Rule 31-A of the PAF Act and the PAF Rules, the bench noted that Section 20 came up for consideration in various cases before the Supreme Court, and none of those judgments had observed any illegality in that provision.
“Merely because a provision of law is exercised in a colourable manner, does not justify that the same be declared as illegal or struck down. This is what has happened in the present case,” it added.
The bench set aside the impugned dismissal order and ruled that the petitioner was entitled to receive service dues and benefits applicable to his cadre and length of service.
