Most Important Case Law on Re-instatement of Sacked Employees Historic Judgment on Re-instatement of Sacked Employee

Mobashir Hassan v. Federation of Pakistan PLD 2010

SC 265 ref.

The reinstatements under the 2010 Act were carried out without following any proper procedure and without having regard to the nature of the posts occupied by the beneficiary employees during their initial appointments. On the other hand, the regular employees were inducted into service after fulfilling all the codal formalities. Therefore, 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, in particular Articles 4, 9 and 18 of the Constitution. Said three constitutional provisions envisage a State in which all aspects of a citizen's life, including his/her right to enter a profession, will be regulated by law. Nevertheless, the 2010 Act by reinstating the beneficiary employees whilst ignoring the applicable laws, rules and regulations, which detailed the process to be followed in making appointments, has flouted these guarantees of the Constitution. Therefore, the 2010 Act has directly impinged upon the fundamental rights of regular employees.

Argument that the judgment under review should have read down section 4 of the 2010 Act and preserved its watered-down version along with the other provisions of the Act that were not inconsistent with fundamental rights, fails to recognise two important aspects of section 4; firstly, section 4 as it stands does not suffer from just a singular defect. Instead, it is fundamentally flawed. It not only provides one-step higher regularisation in subsection (a) [which could potentially have been read down] but it also regularises all beneficiary employees regardless of the post they were occupying before their initial termination. This defect is so central to section 4 that to read it down would essentially require the Court to rewrite it which is not permissible as such an exercise would enter into the realm of legislation. Secondly, section 4 is the governing/primary provision of the 2010 Act. Therefore, once it is declared unconstitutional no substance is left in the 2010 Act as all other provisions are secondary to section 4 and cannot control the operation of the 2010 Act on their own. As a result, no purpose will be achieved in retaining the 2010 Act on the statute book when its effect will have been destroyed by the deletion of section.