1969 PLP 695 (SCMR)

‑Arrears of salary‑Judgment in P L D 1959 S C (Pak.) 147 does not relieve Government of all ethical notions or absolve of its moral obligations‑Government should act honestly and conscientiously and arrears of salary should not be refused en bloc irrespective of merits of individual case. Jamil Hussain Rizvi, Advocate‑General West Pakistan (Dr. Nasim Hasan Shah, Advocate Supreme Court with him) instructed by Iftikharuddin Ahmad, Attorney for Appellant. Respondent in person. Date of hearing : 17th December 1959. MUHAMMAD MUNIR, C. J.‑This is an appeal from a judgment of the High Court of West Pakistan at Lahore passed in the exercise of its writ jurisdiction directing the General Manager, North Western Railway, to pay to the respondent a sum of Rs. 4559'14 together with such increments as he might have earned as arrears of salary. The respondent was dismissed from the service of the. North‑Western Railway by an order of the General Manager. On a suit by the appellant the order of dismissal was set aside and a decree declaring him to be still in the service of the Railway was granted. The appellant was re‑instated on 12th January 1956 but suspended on the same day on a charge to be inquired into. As the period from the date of his dismissal to the date of his re‑instatement was ordered by the General Manager to be treated as leave without pay, the appellant successfully obtained a writ from the High Court directing the payment of salary for that period. In compliance with this writ the Railway Department paid him the amount due. We gave special leave to the Railway to appeal from the judgment of the High Court with a view to considering whether the present case was governed by this Court's decision in State of Pakistan v. Mirajuddin (P L D 1959 S C (Pak.) 147). Having heard the learned Advocate‑General for the Railway we are of the opinion that this appeal should be dismissed on the short ground that the point raised in the petition for special leave to appeal, though mentioned in the Railway's reply to the petition for a writ, does not appear to have been raised in the arguments before the High Court. In the judgment of that Court there is not one word about it and there is neither a statement from the bar nor any affidavit that it was mooted before it. And we cannot suppose that such an important question, if it had been argued before the High Court, would have been flagrantly overlooked by that Court. It appears to us therefore that the right to withhold the salary was waived by the Railway and that special leave to appeal was thought of only after the judgment of this Court State of Pakistan v. Mirajuddin was delivered. But by that time the order of the High Court had been complied with and the amount due paid. If the Railway had any equity or justice on its side, we would perhaps have been inclined to examine the case further. This Court's judgment in State of Pakistan v. Mirajuddin does not relieve the Government of all ethical notions or absolve it of its moral obligations and in coming to the conclusion that we did in that case we expected that Government would in each case act honestly and conscientiously and not that arrears of salary would be refused enable and irrespective of the merits of the individual case. In the present case the respondent has received a bounty from the State to which he was entitled in equity and the appeal by the department merely detracts from that benevolent spirit. The appeal is dismissed but the parties will bear their own costs. Appeal dismissed.