Bench states that financial restitution is not discretionary if dismissal is found wrongful
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 public service law, the Supreme Court has determined that an official who is re-employed after wrongful dismissal is, as a general rule, entitled to full back pay and benefits during the period he has been out of service.
The judgement, authored by Justice Shahid Waheed, came while deciding the issue of whether police officials, after canceling a dismissal order, are automatically entitled to back pay.
The five-judge bench, headed by Justice Waheed, issued the 13-page judgment confirming that monetary compensation is not discretionary when a dismissal is found to be wrongful.
“Regarding the appropriateness of awarding back pay in the event of wrongful dismissal, a basic principle emerges: such pay should, as a general rule, be granted to the official who has been wrongfully dismissed from his position,” the judgment said.
The ruling explained that this directive is fundamentally consistent with the overall goal of restoring the official to his original economic condition, a condition that would have been maintained had the wrongful act not occurred.
The court noted that wrongful termination is not merely an administrative error but a violation of constitutional rights.
The judgment observed that “it is important to remember that in cases of wrongful dismissal from service, the responsibility for the injustice rests entirely with the authority, while the consequences are borne by the official”.
This scenario constitutes what can be considered a constitutional tort as it results in a public servant being deprived of his livelihood. This deprivation is directly linked to the constitution’s Article 9, which guarantees the right to life.
It further elaborated that the concept of “life” encompasses a wider interpretation that encompasses not only mere existence but also the means of sustaining it.
“William Shakespeare, in his famous play ‘The Merchant of Venice’, aptly captures this sentiment with the poignant line: ‘You take my life when you take the means by which I live’. Therefore, it is unjustifiable to allow the authority to evade responsibility for its wrongful actions by absolving it of the obligation to compensate the official in full arrears.”
The court noted that such compensation is not merely a matter of financial restitution as it is a necessary step to correct the imbalance created by the authority’s failure and to maintain the integrity of the constitutional rights and dignity of the public servant.
The court further emphasized that administrative authorities must act within the limits of the law and reasonableness.
“The authority must provide cogent and cogent reasons for its decisions and be willing to defend its decisions before the judiciary or other forums when required. The authority exercising discretion must be acutely aware that, if asserted arbitrarily or capriciously, this power can easily become a mechanism of oppression and injustice.”
The court therefore observed that it is incumbent upon the authority to exercise its discretion fairly, fairly and lawfully. “To do anything less would not only betray the trust reposed in it, but also undermine the fundamental principles of the rule of law, and that would warrant judicial intervention.”
The judgment explained that annulment of a dismissal typically occurs in four circumstances.
“To fully understand the legal implications, it is critical to recognize that the decision to overturn a dismissal typically arises in one of four specific circumstances. First, this may occur when it is determined that the punishment was issued due to a procedural irregularity—meaning that the proper protocols were not followed during the disciplinary process—leading to a de novo proceeding.”
“Secondly, an order of punishment may be set aside on a technicality or a lenient view of the matter. Thirdly, dismissal may be overturned if that punishment is found to be disproportionate to the offense justified, suggesting that the seriousness of the action taken against the official is not commensurate with the seriousness of his punishment. and replaced with another.”
“Finally, a dismissal is set aside when the alleged wrongdoing is not proven, indicating that the official did not engage in conduct that warrants such punitive action.”
The court said these scenarios divide dismissals into two legal categories.
“These scenarios clearly demarcate dismissals into two categories: (i) unfair dismissal and (ii) unfair dismissal. The first three circumstances typically fall within the realm of unfair dismissal, highlighting procedural, technical or proportionality issues.”
