Police officers walk past the Supreme Court of Pakistan building, in Islamabad, Pakistan April 6, 2022. REUTERS
ISLAMABAD:
The Supreme Court of Pakistan has laid down key legal principles regarding reinstatement and salary arrears of police employees, ruling that rescission of a dismissal order does not automatically entitle an employee to full salary and benefits for the interim period. Instead, the power to grant or deny back pay rests with the competent authority, which must exercise this discretion in a fair, reasonable and transparent manner.
In a detailed judgment approved by the report, a five-member bench headed by Justice Shahid Waheed gave a consolidated ruling on several civil appeals and petitions involving Khyber Pakhtunkhwa Police employees. Other members of the bench included Justice Naeem Akhtar Afghan, Justice Malik Shahzad Ahmad Khan, Justice Aqeel Ahmed Abbasi and Justice Shakeel Ahmed.
The central issue before the court was whether an employee, upon reinstatement following the rescission of a dismissal order, is automatically entitled to full back pay and benefits for the period of dismissal.
The court held that under Section 17 of the Khyber Pakhtunkhwa Civil Servants Act, 1973, grant of back pay is a discretionary power, but such discretion is neither absolute nor arbitrary. It must be exercised in accordance with Article 10-A of the Constitution, which guarantees the right to a fair trial, and the broader principle of a “culture of justification”.
The judgment emphasizes that administrative powers should not be exercised solely on the basis of authority or power, but must be supported by sound reasoning, rational justification and transparent reasons. The court clarified that the annulment of a dismissal and the approval of back pay are two separate, although interrelated, issues.
The Supreme Court has identified four possible grounds on which a dismissal may be annulled: procedural defects, technical grounds, disproportionality of the sanction and lack of proof of the allegations. It observed that if a dismissal is found to be substantially unlawful, the likelihood of full reinstatement with back pay is higher. However, where reinstatement results from technical or procedural deficiencies, the decision regarding back pay must be made in light of the specific circumstances of each case.
The court further ruled that an employee claiming back pay must demonstrate before the competent authority that he remained unemployed or worked on a lower salary during the period of dismissal.
Conversely, if the government or competent authority objects to payment of back wages, it has the burden of proving, with credible evidence, that the employee was fully or comparably employed elsewhere during that period.
