2026 PLP (C (PLC(CS))

SHAHID WAHEED, J.- When the court s bright hand lifts the veil of wrong, And my name returns to the roll of those who serve, I stand not just reinstated, but whole again, Seeking the wages of days that were stolen, The allowances that should have walked beside me, The pension s promise that time cannot erase. Grant me the back-benefits that justice owes, That my family may taste the security I earned, And that the scales, now balanced, may sing of fairness. A heart renewed, awaiting its rightful reward.1

2. The controlling idea of these verses interlocks three distinct sets of cases. The first comprises CPLAs Nos.1935 to 1938 of 2018, the second is a civil appeal by leave, C.A. No.174 of 2020, arising from claims by various police officials, and the third consists of civil appeals by leave, C.As. Nos.185 to 187 of 2020, brought before this Court by the Provincial Police Officer, Government of Khyber Pakhtunkhwa. The interwoven questions arising from these cases prompted the Court to hear the arguments collectively; as such, for clarity and efficiency, we will resolve these matters in this single judgment.

3. The tapestry of facts presented in each case is connected by a shared thread, underscoring a common narrative. To lay the groundwork, we will first explore the legal principles that apply to the circumstances which have brought these cases before us. Once the legal context is established, we will delve into the specifics of each case to determine which party s claims are well-founded.

4. It is crucial to clarify from the very beginning that in all of these cases, once the dismissal of the police officials was overturned, the Provincial Police Officer reinstated them to their position without any lapse in their continuity of service and with due adjustment. The primary concern in these cases revolves exclusively around the matter of back pay, which had not been paid for the period during which the police employees were dismissed. Thus, at the heart of these disputes lies a crucial point of contention: whether the police officials, upon annulment of a dismissal order, automatically acquire the right to back pay. The police officials contend that, having been exonerated from unfounded allegations and reinstated in their previous positions, they should be entitled to a full array of back pay. They argue that the damage inflicted upon their reputations tainted by these proceedings necessitates a complete restoration to their rightful status. In their view, compensation in the form of back pay for the unjustly lost time and the hardships endured by their families as a result of their absence from duty is imperative. Their appeals resonate with a desire for fairness, compassion, and equitable treatment amidst complex legal challenges. These sentiments poignantly capture the verse cited above. Quite the opposite, the other side asserts that upon the annulment of a punishment order, the police officials are not automatically entitled to back pay; instead, the authority retains the discretion to determine what amount of back pay the reinstated employee may receive, as the Tribunal/Court cannot interfere with the determination of the appropriateness of granting any back pay.

5. Before embarking on a deeper exploration of the issue at hand and prior to determining which side s argument holds merit, it is vital to emphasise a significant shift brought about by the Constitution. With the introduction of Article 10-A, which enshrines the right to a fair trial as a fundamental right, we must now evaluate issues emerging in administrative law through a refreshed lens: the culture of justification.2 This evolving perspective seeks to transform the traditional culture of authority that has long characterised governance, into a culture of justification. To fully understand this transition, it is important to clarify what we mean by a culture of authority. This framework is rooted in the premise that the legitimacy and legality of governmental actions stem from the authority officials hold to wield power. Under this conception of public law, the focus is on delineating the limits of public action and ensuring that decisions are made solely by those duly authorised to do so. In stark contrast, the culture of justification represents a paradigm shift where the mere existence of such authority is only a preliminary aspect of the analysis. While authorisation to act remains a necessary condition for the legality of governmental actions, it is not sufficient in itself. The core requirement for any legitimate and legal administration of power now hinges on its justification. Sound justification for government actions involves establishing the cogency and persuasiveness of the rationale behind government actions and requires such actions to be scrutinised for their rationality and reasonableness.3 Thus, if Article 10-A of the Constitution serves as a decisive departure from the restrictive culture of authority, it becomes evident what it aims to transition towards: a culture of justification. In this new model, every exertion of power must stand on its own merits, compelling authorities to substantiate their decisions through sound reasoning rather than relying on the fear associated with the force they command. The envisioned culture prefers persuasion and collaboration over coercion and intimidation to maintain efficiency, discipline and accountability in public service.4 It is from this coign we proceed to address the question at issue.

6. The matter at hand is governed by Section 17 of the Khyber Pakhtunkhwa Civil Servants Act of 1973, which delineates the rights and entitlements of civil servants concerning their pay. This section articulates:

17. Pay. A civil servant appointed to a post shall be entitled, in accordance with the rules, to the pay sanctioned for such post. Provided that, when the appointment is made on a current charge basis or by way of additional charge, his pay shall be fixed in the prescribed manner: Provided further that where a civil servant has, under an order which is later set aside, been dismissed or removed from service or reduced in rank, he shall, upon the setting aside of such order, be entitled to such arrears of pay as the authority setting aside such order may determine.

7. It is crucial to emphasise that similar provisions are prevalent across nearly all Civil Servants Acts applicable at both the Federal and provincial levels. The pivotal focus of our discussion lies in the second proviso to Section

17. The straightforward language of the second proviso clearly indicates that discretion to determine back pay is conferred upon the authority responsible for reinstating a civil servant into service. Notably, the command of the law is unequivocal; the granting of such arrears is not an automatic consequence but rather a decision for which the authority possesses discretion, emphasising the equitable nature of such power.5 However, it must be recognised that this legislation that bestows these discretionary powers lacks a clearly defined set of conditions, circumstances, and standards to guide the authority in exercising its powers. This absence of specificity is deliberate and serves a distinct purpose as the discretion is inherently tied to the latitude granted by the legislative enactment and allows the designated official or authority to make determinations within a defined spectrum. The decision-maker is not confined to the belief that there exists only one correct resolution.6 Instead, while the authority s choices should align with established legal principles of reason and justice, its judgment must be rooted in careful consideration and not arbitrary preferences.7 Exercising discretion is a grave responsibility, a sacred trust that demands utmost diligence, vigilance, and fairness.8 This power should be wielded with precision, rationality, and an unwavering commitment to the principles underpinning natural justice.9 Any deviation from this meticulous duty threatens to compromise the integrity of the decision-making process and jeopardises the foundational elements of governance. The authority, serving as the custodian of this discretion, is mandated by both the Constitution and service laws to act with impartiality, fairness, and transparency. It must consciously avoid actions that appear arbitrary or whimsical and instead embrace a thoughtful approach that acknowledges and balances the diverse interests and rights of all parties involved. The decision-making process must be guided by relevant factors, with precise articulation and disclosure of the reasons for decisions. At its core, the principle of fairness central to administrative law compels the authority to act without bias, prejudice, or ulterior motives, to guarantee that all civil servants receive equitable treatment.10 Any failure to adhere to this principle constitutes a breach of the duty of fairness and invites judicial scrutiny.

8. Furthermore, the authority must remain cognizant of the doctrine of proportionality, and ensure that its decisions are not only reasonable but also proportionate to the specific circumstances and objectives pursued. Any decision deemed excessive or disproportionate may be challenged as unreasonable or arbitrary. The significance of transparency and accountability in the exercise of discretion cannot be overstated. The authority must ensure that its decision-making processes are open and that it holds itself accountable for the outcomes of its decisions. The authority must provide persuasive and cogent rationales for its decisions, and be willing to defend its decisions before the judiciary or other forums when required. The authority that exercises discretion must be acutely aware that, if asserted arbitrarily or capriciously, this power can easily become a mechanism of oppression and injustice.11 Therefore, it is incumbent upon the authority to bring into play its discretion fairly, reasonably, and lawfully. To do anything less would not only betray the trust vested in it but also undermine the foundational tenets of the rule of law, and that would warrant judicial intervention.

9. It is now well-founded that the processes of setting aside the punishment of dismissal from service and the subsequent granting of back pay are two distinct yet interconnected elements. Ordinarily, these are addressed within the framework of a composite order. Importantly, any order relating to back pay is always crafted with consideration of the nature and context of the order that rescinds the punitive action. To fully grasp the legal implications, it is crucial to recognise that the decision to annul a dismissal typically arises in one of four specific circumstances. Firstly, this may occur when it is determined that the punishment was enacted due to a procedural irregularity meaning that the correct protocols were not followed during the disciplinary process leading to a de novo inquiry.12 Secondly, a punishment order may be rescinded based on a technicality or on taking a lenient view of the matter.13 Thirdly, dismissal may be overturned if this punishment is deemed disproportionate to the substantiated misconduct, suggesting that the severity of the action taken against the civil servant does not correspond to the seriousness of his behaviour, and, consequently, the punishment is altered and replaced with another.14 Lastly, a dismissal is set aside when the alleged misconduct is not proven, indicating that the civil servant did not engage in behaviour warranting such punitive measures.15 These scenarios clearly delineate dismissals into two categories: (i) unfair dismissal, and (ii) wrongful dismissal. The first three circumstances typically fall within the realm of unfair dismissal, highlighting procedural, technical, or proportionality issues. Conversely, the situation identified in the last point pertains to wrongful dismissal, arising from a lack of evidence for the alleged misconduct. Depending on whether the annulled dismissal was unfair or wrong, the consequences, including back pay, may vary significantly.

10. This prompts a thorough examination of how this Court has constructed a framework of legal precedents designed to guide decision-makers (the authority) in exercising their discretion when issuing reparation orders pertaining to back pay, particularly in cases involving the annulment of dismissals. It is essential to emphasise that the fundamental principle anchoring such orders is the notion of fair go all round. This principle of fairness encompasses not only the notion of individual justice but also extends to institutional justice, reflecting a broader equity that considers the interests of both.

11. Mindful of the principle of fairness, the precedents to date mandate that when a civil servant who was dismissed regardless of whether the circumstances surrounding the action were deemed unfair or wrongful seeks a restoration of back pay, he is required, in the first instance, to either present a formal plea or, at a minimum, articulate a statement before the adjudicating authority or the Tribunal. This statement must convey that he was either not gainfully employed during the period in question or that he was employed at significantly reduced wages. Conversely, should the authority wish to contest the full award of back pay, the onus is on it to formally plead and provide compelling evidence that substantiates its claim that the civil servant was, in fact, gainfully employed during the relevant period and receiving a salary commensurate with or equivalent to what he earned prior to his dismissal from service.16 This legal expectation is rooted in the established principle that the burden of proof for the existence of a particular fact lies with the person asserting it affirmatively. Consequently, proving a positive fact, such as prior employment, is generally easier than disproving a negative fact, such as the absence of employment. Therefore, once a civil servant effectively demonstrates that he was not employed, the burden shifts to the authority to specifically plead and substantiate its claim that the civil servant had been gainfully employed and was receiving remuneration that was the same as or closely comparable to their former pay.

12. After it is determined whether the civil servant was employed anywhere during the intervening period or not, the next stage is to determine how back pay should be granted. The question of awarding back pay in cases where a civil servant has been unfairly dismissed is guided by a general principle: such pay should ordinarily be granted to those civil servants who have been unlawfully deprived of their positions. However, this principle is not absolute and is subject to various conditions. The decision could grant back pay in full or in part, or it could deny back pay altogether. There is no rigid formula that dictates under what specific circumstances back pay should be authorised. The determination depends heavily on the unique facts and circumstances of each case.17 It would be erroneous to assume that entitlement to back pay is warranted solely based on technical legalities that invalidate a dismissal order. Instead, the awarding of back pay whether in whole or in part, or none at all requires a nuanced evaluation of several factors. These factors may include the nature of the civil servant s appointment, the length and quality of his service, any proven misconduct, his financial situation, and other relevant considerations. This careful analysis seeks to balance the competing interests at play. Due to the diverse nature of such cases, there is no one-size-fits-all approach for providing relief in the form of back pay. Each situation must be assessed on its own merits, and this evaluation is often entrusted to the discretion of the relevant authority. However, it needs to be emphasised that while granting full back pay is generally the standard, it falls upon the authority to demonstrate compelling reasons that would justify a deviation from this norm. At this stage, the authority is tasked with exercising its discretion judiciously and consistently with established legal standards. This discretion must be exercised thoughtfully, based on a clear and convincing rationale that is evident from the official record. The exercise of discretion should adhere to the principles of reason and justice based on law rather than whim and must avoid arbitrary or capricious decisions.18

13. Additionally, we hold the view that courts or tribunals, may justifiably interfere with the award of the primary adjudicatory authority in cases of prolonged litigation when the civil servant is placed on a floating status, particularly when the delay is not attributable to the civil servant. A civil servant is in floating status where his punishment order remains intact, but the civil servant has initiated proceedings to set aside the dismissal and to claim back pay for the intervening period. Often, inadequate infrastructure and manpower delay case resolution, and this should not become a penalty imposed on the civil servant. A civil servant s deprivation of payments solely because of a protracted lapse of time between their dismissal and the eventual reinstatement order would constitute a grave injustice. The underlying rationale is that, in many instances, the authority holds a more advantageous position compared to the civil servant. The authority has access to skilled legal resources, while the civil servant may struggle to afford competent legal representation. Given these disparities, prolonged litigation, through no fault of the civil servant, weighs heavily in favour of full back pay on reinstatement as the normative outcome, to ensure fairness and justice are upheld in these sensitive matters.

14. Regarding the appropriateness of awarding back pay in instances of wrongful dismissal, a fundamental principle emerges: such pay should, as a general rule, be granted to the civil servant who had been wrongly dismissed from his position. This directive fundamentally aligns with the overarching goal of restoring the civil servant to his original economic condition a condition that would have been maintained had the wrongful action not occurred. It is vital to remember that in cases of wrongful dismissal from service, the responsibility for the injustice lies squarely with the authority, while the repercussions are suffered by the civil servant. This scenario constitutes what can be regarded as a constitutional tort, as it results in a civil servant being stripped of his means of livelihood. This deprivation connects directly to Article 9 of the Constitution, which guarantees the right to life. The term life encompasses a broader interpretation, encapsulating not only mere existence but also the means to sustain it. William Shakespeare, in his renowned play The Merchant of Venice, aptly captures this sentiment with the poignant line: You take my life, when you do take the means whereby I live. Therefore, it is unjustifiable to permit the authority to evade accountability for its wrongful actions by relieving it of the obligation to compensate the civil servant with full back pay. Such compensation is not merely a matter of financial restitution; it is a necessary step to rectify the imbalance created by the authority s wrongdoing and to uphold the integrity of the civil servant s constitutional rights and dignity.19

15. With the legal framework firmly established, we turn to a detailed examination of the merits of each set of cases indicated above.

16. CPLA Nos.1936 to 1938 of 2018: These three petitions seek leave to appeal against a consolidated judgment delivered on 19th of March, 2017, which approved a partial grant of back pay. The Tribunal classified the period between 19th of December, 2016, and 7th of February, 2017, as leave of the kind due, while designating the remaining duration as leave without pay. A thorough review of the records shows that the petitioners were also exonerated from the alleged charges, yet their request for complete back pay was denied without any compelling rationale. Such a refusal could only be comprehended in a culture of authority, which, especially in light of Article 10-A of the Constitution, is no longer tenable. The respondents have failed to produce any credible evidence or reasoning to justify the denial of full back pay to the petitioners. This critical aspect appears to have been overlooked by the Tribunal, resulting in a misdirection that unjustly denied the petitioners their rightful entitlements. There is no evidence indicating that the punishments were not wrongful or that the petitioners had secured gainful employment during the intervening period. Consequently, we conclude that the petitioners request for full back pay was invalidly rejected. These petitions thus possess merit and are poised to succeed.

17. CPLA No. 1935 of 2018: The petitioner has applied, CMA No.10580 of 2021, seeking the court s permission to withdraw this leave petition. The petitioner s counsel, fully aware of our order concerning the interconnected matters, has duly pressed for this application. We hereby accept the withdrawal request.

18. C.A. No.174 of 2020: This appeal, by leave, challenges the Tribunal s judgment of 18th of April, 2018, which focused solely on whether the appellant, having been exonerated of the charges, was entitled to full back pay. The Tribunal determined that, although the competent authority had cleared the appellant, he was not entitled to full back pay under the principle of no work, no pay. After careful reflection, we find no persuasive grounds to uphold the Tribunal s reasoning. In evaluating the appellant s entitlement to back pay, the Tribunal was expected to ascertain two key aspects: first, whether the punishment imposed on the appellant was unfair or wrongful; and second, whether he was engaged in any productive employment during the intervening period. A close examination of the case record reveals that the charges against the appellant were not substantiated, leading to his exoneration. This clearly indicates that his punishment was indeed wrongful. Furthermore, the appellant has provided an affidavit affirming that he was not involved in any gainful employment during this time. Given this context, the legal framework set forth in the preceding paragraphs of this judgment supports the conclusion that the appellant should not be denied back pay. As such, it follows that the Tribunal s judgment must be overturned, and the appellant is entitled to receive the full back pay.

19. CAs Nos.185 to 187 of 2020: These appeals, by leave, stem from actions undertaken by the respondents to challenge the authority s order overturning their dismissals from service. However, the authority s order awarded respondents only partial relief, categorising the intervening period as leave of the kind due rather than granting full back pay. Upon appeal, the Khyber Pakhtunkhwa Service Tribunal (the Tribunal) carefully considered the circumstances and noted that all respondents had been exonerated of the charges brought against them. Consequently, the Tribunal ruled that they were entitled to all back pay, as the authority s decision failed to provide any substantial justification for withholding them. We find the Tribunal s conclusions sound, as the respondents situation clearly constitutes wrongful dismissal and aligns with the legal principles discussed in the aforementioned paragraphs. Thus, we determine that these appeals lack merit and must, therefore, be dismissed.

20. In light of the detailed considerations outlined above, we hereby conclude our findings in the following terms: (a) The matters classified as CPLAs Nos.1936 to 1938 of 2018 are hereby converted into appeals and are allowed. The judgment issued on the 19th of March, 2017, by the Tribunal is also set aside, and the petitioners are held entitled to the complete back pay as they have petitioned for. (b) CPLA No.1935 of 2018 is dismissed following the petitioner s request to withdraw the case. (c) Appeal C.A. No.174 of 2020 is accepted; consequently, the judgment delivered on the 18th of April, 2018, by the Tribunal is set aside. The appellant is now held entitled to receive the full back pay sought throughout this process. (d) The Appeals numbered CAs Nos.185 to 187 of 2020 are hereby dismissed. (e) The relevant authority in charge of implementing this order is directed to ensure compliance within a period of one month from the receipt of the certified copy of this judgment. (f) It is hereby ordered that there shall be no costs attributable to this proceeding. MH/S-11/SC Order accordingly. 1 The author of these verses is unknown. 2 The term culture of justification was coined by the South African scholar Etienne Mureinik, who presented it as an ideal for the new South African Constitution. 3 (2001) 1 Oxford U. Commonwealth L.J. 5, 29 and, Moshe Cohen-Eliye and Iddo Porat, Proportionality and Constitutional Culture (Cambridge University Press, 2013), P.111 4 Muhammad Arshad v. Deputy District Food, Multan and others 2025 PLC (C.S.) 1607 5 National Labor Relations Board v. J.H. Rutter-Rex Manufacturing Company, Inc. (1969) (396 US 258); Muhammad Hafiz Javaid v. The Secretary, Department of Agriculture, Government of Punjab and another (PLD 1992 SC 31); Anisul Hassan v. Government of Punjab through, Secretary, Local Government and another (2003 SCMR 694) and Chief Executive MEPCO and others v. Muhammad Fazil and others (2019 SCMR 919) 6 Francis Bennion, Understanding Common Law Legislation: Drafting and Interpretation (Oxford University Press, 2001) 137-38 7 Minister for Immigration and Citizenship v. Li (2013) 249 CLR 332 8 R v. Tower Hamlets LBC, ex parte Chetnik Development Ltd. (1988) AC 858, JP Whitter (Water Well Engineers) Ltd v. HRMC (2018) UKSC 31, and Porter v. Magill (2002) 2 AC 357 9 Padfield v. Minister of Agriculture and Fisheries (1968) AC 997; Board of Education v. Rice (1911) AC 179 10 Wheeler v. Leicester City Council (1985) AC 1054; Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. (1986) 162 CLR 24; Elsick Development Co. Ltd v. Aberdeen City and Shire Strategic Development Planning Authority (2017) UKSC 66; and R (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs (No.3) (2018) UKSC 3 11 Quila v. SSHD (2011) 3 All ER 81; DPP v. Ziegler (2020) QB 253; R (Agyarko) v. SSHD (2017) UKSC 11 12 Muhammad Arif Khan Ex. Overseer Grade II v. Dy.Enc.E-IN-C S Branch, G.H.Q Rawalpindi and another (1991 SCMR 1904); Engineer Majeed Ahmed Memon v. Liaquat University of Medical and Health Science Jamshoro and others (2014 SCMR 1263); Commandant Elite Force, Khyber Pakhtunkhwa and others v. Jamshed Ali (PLD 2019 SC 570); Muhammad Sadiq v. Inspector General of Police, Punjab, Lahore and others (2017 SCMR 1880) and Raja Muhammad Shahid v. The Inspector General of Police (2023 SCMR 1135) 13 Abdul Majeed v. Chairman WAPDA and 2 others (1990 SCMR 1458); Muhammad Tufail v. Divisional Forest Officer, Forest Division, Lahore and 3 others (1990 SCMR 1708), Muhammad Yousaf v. Pakistan Ordnance Factories and another (1990 SCMR 5) and Syed Kamaluddin Ahmad v. Federal Service Tribunal and others (1992 SCMR 1348) 14 Sikandar Ali Shah v. Chief Secretary, Government of Sindh, Karachi and another (1995 PLC (C.S.) 915), Saadat Pervaz Sayan v. Chief Secretary, Government of Punjab, Lahore and 3 others (2003 PLC (C.S.) 1277) and Deputy Postmaster General, Northern Sindh Circle, Hyderabad and others v. Nafees Ahmed (2004 SCMR 950) 15 Muhammad Sharif and others v. Inspector General of Police, Punjab, Lahore and others (2021 SCMR 962) 16 Administrator Zila Council, Sahiwal v. Arif Hussain and others (2011 SCMR 1082), General Manager, National Radio Telecommunication Corporation, Haripur, District Abbottabad v. Muhammad Aslam and 2 others (1992 SCMR 2169); Khalid Mehmood v. State Life Insurance Corporation of Pakistan and others (2018 SCMR 376) 17 Inspector-General of Police Punjab v. Tariq Mahmood (2015 SCMR 77) 18 Pepsi-Cola Products, Philippines, Inc v. Molon (2013) (704 Phil. 120) 19 Pakistan through General Manager, P.W.R., Lahore v. Mrs. A.V. Issacs (PLD 1970 SC 415), General Manager/Circle Executive Muslim Commercial Bank Limited and another v. Mehmood Ahmed Butt and others (2002 SCMR 1064), Umer Said and others v. District Education Officer (Female) and others (2007 SCMR 296), Sohail Ahmed Usmani v. Director-General Pakistan Civil Aviation Authority and another (2014 SCMR 1843) and Inspector-General of Police, Punjab v. Tariq Mahmood (2015 SCMR 77)