Historic Judgment of Supreme Court of Pakistan on Sacked Employees

 Sacked Employees (Re-instatement) Act (XXII of 2010)---

Dear Readers:

In this Article I have shared a judgment of Supreme Court of Pakistan on Re-instatement of sacked employees.

Ss. 2(d), 2(f)(vi), 4, 10, 11, 12 & 13 & Preamble---Constitution of Pakistan, Arts. 4, 9, 14, 18, 25, 184(3), 187, 188, 240 & 242---Supreme Court Rules, 1980, O. XXXIII, R. 6---[Per Umar Ata Bandial, J. (Majority view): Initial appointment of majority of the reinstated employees ('the beneficiary employees') was made without following the principles of merit, non-discrimination, transparency and fairness---Through operation of section 4 of the Sacked Employees (Re-instatement) Act, 2010 ('the 2010 Act') all beneficiary employees were ordered to be regularised (either on the same scale or on one-step higher scale) within a certain timeframe without complying any codal formalities and without regard to the nature of the post that they occupied prior to their dismissal, removal or termination from service---Furthermore the 2010 Act discriminated against similarly placed persons who were dismissed, removed or terminated from service in the periods prior to 01-11-1996 and subsequent to 12-10-1999---Such classification of the time period was neither reasonable nor based on any intelligible differentia---By giving leeway to the beneficiary employees and by placing them at the same (or in some cases better) footing in the organisational structure of the employers the fundamental rights of the regular employees were breached --- Act of 2010 was violative of the different provisions of the Constitution, specifically Articles 4, 9, 18, 25, 240 & 242, therefore the same was declared to be void with retrospective effect---Review petitions were dismissed with certain directions regarding services rendered by the re-instated employees of the "employers" [as defined in section 2(d) of the Sacked Employees (Re-instatement) Act, 2010]---[Per Syed Mansoor Ali Shah, J. (Minority view): Vires of the Sacked Employees (Re-instatement) Act, 2010 ('the 2010 Act') enacted by the Parliament could not be examined and declared ultra vires, on the touchstone of Articles 4, 240 & 242 of the Constitution, as said Articles did not provide any criterion to test the vires of a law---Parliamentary debates relating to the objects and reasons of the enactment of the 2010 Act showed that the persons to be reinstated in service had suffered "political victimization" in the matter of their dismissal, removal or termination from service, at the hands of the Government during that period, and the object of the 2010 Act was to provide relief to such persons---Hence, persons reinstated formed a distinct class, and their classification was based on intelligible differentia, distinguishing them from those who had been left out, and it had a rational nexus to the object sought to be achieved by the 2010 Act, therefore, only their reinstatement and regularization under the 2010 Act as such did not offend the fundamental right to equal treatment under Article 25(1) of the Constitution---However, the issue of seniority that affected the right to 'status' enshrined in fundamental 'right to life' of the regular employees serving in the relevant departments, had arisen only in cases of employees reinstated and regularized on "one scale higher", under sections 4(a) & 10 of the 2010 Act---Such reinstatement and regularization was violative of the right to 'status' enshrined in fundamental 'right to life' of the regular employees serving in the relevant departments at the time of promulgation of the 2010 Act, and it was also violative of the 'right to dignity' and 'right to equality before law' as it gave an undue advantage to the reinstated employees to the disadvantage of the rights of the already working regular employees---Proper course, in such circumstances, was for the Court to declare (as ultra vires) only that part of the provisions of sections 4(a) & 10 of the 2010 Act that had the said offending effect, i.e., the reinstatement and regularization on "one scale higher" and this could have easily been done by reading out (severing) the words "one scale higher to" from the provisions of section 4(f) and the words "one scale higher than" from the provisions of section 10 of the 2010 Act---Furthermore sections 2(f)(vi), 11, 12 & 13, of the 2010 Act which dealt with and provided for reinstatement and regularization of such sacked employees who had been dismissed, removed or terminated from service on account of absence from duty, misconduct, mis-appropriation of Government money or stock, or unfitness on medical grounds, and the determination of their guilt or medical unfitness had attained finality by being unchallenged or unsuccessfully challenged, were also ultra vires the Constitution].

Per Umar Ata Bandial, J. (Majority view):

The material on record in the present case, furnished by the relevant Ministries/Divisions, establishes that these principles of merit, non-discrimination, transparency and fairness were not followed in the vast majority of the initial appointments (from 01.11.1993 to 30.11.1996). Therefore, such defective appointments suffered from illegality and were void.

For the initial appointments of reinstated employees ('the beneficiary employees') that were illegal from the outset, it was not within the competence of Parliament to enact laws that firstly, bypassed the settled requirements enshrined in the Constitution for joining public employment and secondly, protected these unlawful appointments without curing their respective defects. Such contravention can be seen in section 4 of the Sacked Employees (Re-instatement) Act, 2010 ('the 2010 Act') where all beneficiary employees were ordered to be regularised (either on the same scale or on one-step higher scale) within a certain timeframe without complying any codal formalities and without regard to the nature of the post that they occupied prior to their dismissal, removal or termination from service.

State and public functionaries act as fiduciaries for and are responsible/accountable to the people of the country. They are duty bound to act in the furtherance of public interest. However, how the public interest was promoted by reinstating the beneficiary employees in question who had been inducted without complying with the duly prescribed procedure for appointment is neither determinable nor defensible.

In re: Suo Motu 2010 SCMR 885 ref.

The 2010 Act was enacted to achieve a specific object and purpose, namely, the reinstatement of those employees who had been initially appointed during tenure of a political party. The 2010 Act discriminates against similarly placed persons who were dismissed, removed or terminated from service in the periods prior to 01-11-1996 and subsequent to 12-10-1999. The Preamble of the 2010 Act coupled with its substantive provisions do not disclose the reason for reinstatement of only those employees who had been dismissed, removed or terminated from service during the specific period of 01-11-1996 till 12-10-1999. Clearly then the Act's classification of the time period is neither reasonable nor based on any intelligible differentia. There is also no rational nexus with the object being sought to be achieved because if the intent of Parliament was to assist people who had been dismissed, removed or terminated from service on account of political victimisation then there is no rhyme or reason as to why only the persons dismissed, removed or terminated between 01-11-1996 and 12-10-1999 were granted this relief. Surely such a classification ought to have been preceded by some study, data collection and analysis, however, the same are lacking. There must exist a plethora of people since independence of the country (till date) who have been unfairly removed from service on account of political victimisation yet no favour is extended to them by the 2010 Act.