ISLAMABAD: The Supreme Court ruled on Wednesday that it was the duty of a court or a tribunal to remedy any injustice or harm suffered by a litigant due to their mistake.

“It is the foremost duty of the court and the tribunal to do complete justice,” observed Justice Muhammad Ali Mazhar in a judgement on Wednesday.

“A patent and obvious error or oversight on part of the court in any order or decision may be reviewed sanguine to the renowned legal maxim, actus curiae neminem gravabit, which is a well-settled enunciation and articulation of law expressing that no man should suffer because of the fault of the court, or that an act of the court shall prejudice no one, and this principle also denotes the extensive pathway for the safe administration of justice,” emphasised Justice Mazhar.

The judge was on a two-member Supreme Court bench, headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial, which had taken up an appeal against rejection on Aug 18, 2020, by the Federal Service Tribunal, Islamabad, of a petition on the ground that the plea was time-barred.

Justice Mazhar of SC says if a mistake is committed, it must be undone without blaming any party

Abid Jan, the appellant, was dismissed from service by the Ministry of Defence on May 29, 2019. He filed a departmental appeal on June 28 that year, but it was not decided in time.

The petitioner then approached the Peshawar High Court (PHC), although he should have filed an appeal with the Federal Services Tribunal (FST) since he was a civil servant.

The PHC observed on June 16, 2020, that the appeal should be treated as a service appeal and referred it back to FST.

During the hearing before the Supreme Court, the petitioner’s counsel, Riaz Hanif Rahi, said that the appeal was dismissed by FST on the ground of limitation rather than on merit. The FST did not take into account the fact that the appeal was not time-barred and it was sent to FST by the high court with a continuing cause of action. But the appeal was dismissed in limine.

In his order, Justice Mazhar emphasised that nobody should become a “victim of injustice” in consequence of a court’s mistake. But if it so happens, the judge added, it should be remedied by making necessary correction forthwith.

Principle of restitution

The principle of restitution states that if a court is satisfied that it has committed a mistake, the affected person should be restored to the position which he would have acquired if the mistake did not happen, Justice Mazhar observed.

It is interrelated and intertwined with the state of affairs where the court is under an obligation to reverse the wrong done to a party by an act of the court, Justice Mazhar said.

“It is an elementary doctrine and tenet to the system of administration of justice beyond doubt that no person should suffer because of a delay in procedure or the fault of the court.”

A wrong order should not be perpetuated by preserving it nor should it stand in the way under the guiding principle of justice and good conscience, observed Justice Mazhar.

“So in all fairness, it is an inescapable duty that if any such patent error on the face of it committed as in this case, the same must be undone without shifting blame to the parties and without further ado being solemn duty of the court to rectify the mistake.”

The Supreme Court observed that when the case was treated as a service appeal and transmitted to the FST, then “non-su­i­­ting the petitioner on the ground of limitation” was not justified and the pro­per course was to issue notice to the res­pondent and after providing ample opportunity of hearing to the parties, the service appeal should have been decided on merit as opposed to a technical knockout.

The court, however, converted the matter into an appeal by setting aside the FST’s rejection.

The matter was remanded back to FST for decision of the appeal afresh after providing a proper opportunity of hearing to both parties, the Supreme Court held.

Published in Dawn, July 13th, 2023