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 the reinstatement and back pay of police personnel, holding that annulment of a dismissal order does not automatically entitle an employee to full pay and benefits during the intervening period. Instead, the power to grant or deny back pay rests with the competent authority, which must exercise this discretion fairly, equitably and transparently.
In a reportable detailed judgment, a five-member bench headed by Justice Shahid Waheed issued a consolidated decision on several civil complaints and petitions involving employees of the Khyber Pakhtunkhwa Police. 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 re-employment following the revocation of a dismissal order, is automatically entitled to full repayment of wages and benefits for the period of dismissal.
The court held that under Section 17 of the Khyber Pakhtunkhwa Civil Servants Act, 1973, the grant of the gratuity is a discretionary power, but this 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 entitlement”.
The judgment emphasized that administrative powers should not be exercised solely on the basis of authority or powers but should be supported by sound reasons, rational reasons and transparent reasons. The court clarified that the annulment of a dismissal and the approval of the severance pay are two different, but interrelated, matters.
The Supreme Court identified four possible grounds for a dismissal to be overturned: procedural errors, technical grounds, disproportionate punishment, and failure to prove allegations. It noted that if a dismissal is found to be substantively unfair, the likelihood of full reinstatement with back pay is higher. However, if reinstatement is due to technical or procedural deficiencies, the decision on back pay should be made in the light of the specific circumstances of each case.
The court further held that an employee seeking back wages must prove to the appropriate forum that they remained unemployed or worked at lower wages during the notice period.
Conversely, if the government or relevant authority opposes the payment of the severance pay, it bears the burden of proving, by credible evidence, that the employee was fully or comparably employed elsewhere during that period.
