The phrase ‘justice delayed is justice denied’ resonates profoundly within the realm of service matters. This article highlights the prolonged litigation faced by employees as a consequence of non-implementation of the judgments of the Federal Service Tribunal (FST) in Pakistan, necessitating an urgent need for systemic reform.
According to Justice Mazhar Alam Khan Miankhel in 2022 SCMR 1765:
“The concerned officers of the Department were morally and legally bound to implement the decision of the Tribunal in accordance with the settled law but it appears that the act of the Department once again was not without tinge of malice and arbitrariness.”
Nowhere in the world is delayed justice more evident than in Pakistan where government institutions purposely delay the implementation of FST judgments on the misconceived pretext to file a ‘civil petition for leave to appeal’ (CPLA) in the Supreme Court of Pakistan. This little departure of government departments drags the employee concerned into the pits of years-long unnecessary litigation merely for a simple judgment to be implemented in its true letter and spirit.
According to the ESTA Code (2021 Edition), it is clear as crystal that government departments cannot back out of implementing the judgments of the FST unless the Supreme Court has stayed them. Chapter 10 S.I no. 6.2 of the ESTA Code (2021 Edition) states the following in this regard:
“It has been observed that orders passed in service matters by the Federal Service Tribunal decided against the government are not implemented as per directions given in the respective orders. The government departments postpone the implementation of the orders of the Federal Service Tribunal on the grounds that CPLA is preferred against the order and wait for the disposal of the matter by the Honorable Supreme Court of Pakistan. The government departments are hereby informed that unless the order of FST is suspended specifically by an order of the Supreme Court, the same must be implemented forthwith. However, a clause may be added in the implementation orders that it shall be subject to the final decision of the matter by the Honorable Supreme Court of Pakistan.”
Chapter 08, S.I. No. 28.9 of the ESTA Code (2021 Edition) states:
“…Employees reinstated in service administratively or as a result of the court’s decision with consequential benefits are allowed salary for the period they stayed out of service.”
As an example, let us suppose that a court orders the reinstatement of an employee from the date he or she was removed from service. The concerned department does not implement the judgment which causes the employee to dive into another round of litigation. The employee then files an application for the implementation of the same judgment of the FST under s. 20 of the Service Tribunals Act, 1973. When the court literally scolds the department and orders it to implement the judgment, the department then plays with words, comes up with whimsical interpretations and reinstates the employee albeit bereft of his or her rightful benefits, thus diverting from implementing the court’s order in true letter and spirit.
Order XX, Rule 1 of the Supreme Court Rules, 1980 states the following with regard to file a CPLA:
“The filing of a petition for leave to appeal or an appeal shall not prevent execution of the decree or order appealed against, but the Court may, subject to such terms and conditions as it may deem fit to impose, order a stay of execution of the decree or order, or order a stay of proceedings, in any case under appeal to this Court.”
The implementation of an FST judgment is at the whims and wishes of departmental higher-ups. Should they opt to, they implement only a portion of the judgment (a mere reinstatement of the employee), manipulating the wording of the judgment, while subjecting the remaining judgment (the consequential benefits owed to the employee for the duration he or she had been kept away from his or her duty) to the final outcome of a misconceived pretext—the filing of a CPLA with the Supreme Court, circumventing the ESTA Code, Civil Procedure Code, Supreme Court Rules, 1980 and all the case-law in matters of service jurisprudence. This only prolongs the agony of the employee and crushes him or her under the pressure of litigation with limited to no financial source and a face-off against the entire department.
It must be acknowledged that the courts have done a remarkable job in developing service jurisprudence in Pakistan. However, government institutions still try to blot out its very spirit with their own whimsical, capricious and self-serving interpretations of laws, rules and regulations. Recently, a three-member bench of the Supreme Court of Pakistan in 2022 SCMR 1765 has also taken cognizance of such departmental brutality of prolonging the agony of the employee and wasting the time of the court in the following words:
“We are also unable to understand as to what important question of law of public importance was involved in this appeal which led the Department to file this appeal. It was nothing but a frivolous petition and then the appeal. The Government despite having a full-fledged law department, with qualified and competent officers therein, but even then, such type of frivolous petitions and appeals are filed…”
Similarly, the Supreme Court in PLD 1966 SC 983 has reiterated that,
“It is well settled that the operation of a decree or order, passed by a Court is not automatically suspended, on the mere filing of an appeal therefrom.”
In 2005 CLD 674, the Supreme Court also held the following:
“…It is, however, to be noted that no stay order was granted by this Court, hence, the question of suspension of execution of proceedings does not arise.”
There is a plethora of case-law decided by the Supreme Court on the proposition that a department cannot assume a stay order on the implementation of an FST decision in letter and spirit. They merely do so to harass the employee, which leads to the erosion of trust through continued injustices by government servants.
Order XLI, Rule 5 of the Civil Procedure Code (CPC), 1908 further bars government departments from assuming an automatic stay on the proceedings of FST on the filing of CPLA to the Supreme Court. According to Order XLI, Rule 5:
“An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree.”
The analysis of the aforementioned laws, procedures and case-law should necessitate the legal community to question how a system, well-versed in what should not be done, can allow such transgressions to persist. It is bewildering to witness sheer disregard for such established laws and precedents.
The non-implementation of FST orders harbors severe consequences that extend across multiple dimensions. First, it leads to the opening of a floodgate of cases that overwhelm an already overburdened judicial system, resulting in significant delays in resolving disputes and prolonging the agonizing litigation period for employees. This practice not only burdens the superior courts but also perpetuates a culture of impunity within government institutions, eroding the confidence of government employees in the judicial system. In addition, failure to implement FST judgments deprives employees of their benefits, promotions and redressal of grievances to which they are entitled, leaving them feeling betrayed and disempowered. This further undermines fairness and equality within government institutions, raising questions about the effectiveness of FST as an independent forum and diminishing its credibility. In addition, it establishes a perilous precedent, allowing government institutions to avoid legal obligations and undermine public confidence in the integrity of these institutions.
The Quran also views justice as giving others their due rights and not harming them:
“Believers! Be upholders of justice and bearers of witness to the truth for the sake of Allah, even though it may either be against yourselves or against your parents and kinsmen, or the rich or the poor: for Allah is more concerned with their well-being than you are.”
– Quran [4:135]
The commitment to fairness in the actions or inactions of bureaucrats predisposes them to be sensitive to the rights and needs of government employees, yet they choose to twist and misinterpret every dot and every comma in an FST judgment, leaving the employee to run from pillar to post and get the judgment interpreted by the courts, which endures a whole lifetime.
The government must reform this problem by:
- strengthening compliance mechanisms;
- establishing transparent protocols for implementing FST judgments;
- introducing monitoring mechanisms; and
- imposing penalties for non-compliance with FST orders.
Furthermore, the bureaucratic process must be streamlined to expedite the implementation of FST judgments by:
- simplifying administrative procedures;
- reducing the layers of approval; and
- enhancing interdepartmental coordination to eradicate delays. Any bureaucrat who purposefully or intentionally delays or does not comply with a court order should be held accountable, as they are the ones responsible for these delays in the first place.
Moreover, the legal advisers of a department who actually advise the department to not implement the decision and file frivolous appeals to the Supreme Court with no question of any public importance should also be scrutinized for their competence and disregarded from continuing their services in the department.
In the face of such departmental failures, the employee suffers the most which also causes hindrances in the government’s own functioning. The reforms recommended above would serve as great steps towards strengthening the government’s functioning, relieving courts of the unnecessary burden of cases and enhancing the wellbeing of a government employee.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.
