Court rules that financial restitution is not discretionary when dismissal is deemed unfair
Police officers walk past the Supreme Court of Pakistan building, in Islamabad, Pakistan April 6, 2022. REUTERS
ISLAMABAD:
In a ruling with far-reaching implications for civil service law, the Supreme Court has ruled that a civil servant reinstated after unfair dismissal is, as a general rule, entitled to receive full back pay and benefits for the period he remained out of service.
The verdict, written by Justice Shahid Waheed, was delivered while deciding whether police officials, after the cancellation of a dismissal order, automatically acquire the right to back pay.
The five judges, led by Justice Waheed, delivered a 13-page judgment reaffirming that financial restitution is not discretionary when a dismissal is found to be unfair.
“Regarding the advisability of granting salary arrears in the event of unfair dismissal, a fundamental principle emerges: this compensation must, as a general rule, be granted to the civil servant who has been wrongly dismissed from his position,” the judgment indicates.
The decision explains that this directive fundamentally aligns with the overarching goal of restoring the official to his or her original economic condition, a condition that would have been maintained had the wrongful action not occurred.
The Court observed that unfair dismissal is not simply an administrative error but a violation of constitutional rights.
The judgment notes that “it is essential to remember that in the event of unfair dismissal, responsibility for the injustice lies directly with the authority, while the repercussions are suffered by the civil servant.”
This scenario constitutes what can be considered a constitutional offense, as it results in the deprivation of a public servant’s means of subsistence. This deprivation is directly linked to Article 9 of the Constitution, which guarantees the right to life.
He further clarifies that the term “life” encompasses a broader interpretation, encompassing not only mere existence but also the means of maintaining it.
“William Shakespeare, in his famous play ‘The Merchant of Venice’, aptly captures this sentiment with the poignant phrase: ‘You take my life, while you take the means by which I live.’ Therefore, it is unjustifiable to allow the authority to evade responsibility for its wrongful acts by exempting it from the obligation to compensate the official by paying him his full back pay.”
The court noted that such compensation is not merely a matter of financial restitution, but is a necessary step to correct the imbalance created by the wrongdoing of the authority and to maintain the integrity of the constitutional rights and dignity of the official.
The court further emphasized that administrative authorities must act within the bounds of law and equity.
“The authority must provide cogent and convincing justifications for its decisions and be prepared to defend its decisions before the judiciary or other fora when necessary. The authority exercising discretion must be fully aware that, if asserted arbitrarily or capriciously, this power can easily become a mechanism of oppression and injustice.
Therefore, the court noted, it is incumbent on the authority to exercise its discretion in a fair, reasonable and lawful manner. “To do anything less would not only betray the trust placed in it, but also undermine the fundamental principles of the rule of law, which would justify judicial intervention.”
The judgment explains that the reversal of a dismissal generally occurs in four circumstances.
“To fully understand the legal implications, it is crucial to recognize that the decision to overturn a dismissal generally arises in one of four specific circumstances. First, this can occur when it is determined that the sanction was issued due to a procedural irregularity – meaning that the correct protocols were not followed during the disciplinary process – leading to a de novo investigation.
“Secondly, a sanction decision may be overturned for technical reasons or due to a lenient attitude towards the matter. Thirdly, the dismissal may be overturned if this sanction is found to be disproportionate to the proven misconduct, suggesting that the seriousness of the action taken against the official does not correspond to the seriousness of his behavior and, therefore, the sanction is modified and replaced by another.”
“Finally, the dismissal is canceled when the alleged misconduct is not proven, indicating that the official did not engage in behavior justifying such punitive measures.”
The court said these scenarios divide layoffs into two legal categories.
“These scenarios clearly divide dismissals into two categories: (i) unfair dismissal and (ii) unfair dismissal. The first three circumstances generally fall under unfair dismissal, highlighting procedural, technical or proportionality issues.”
