ISLAMABAD: The Supreme Court held that a civil servant on unconditional reinstatement in service is to be given all back benefits and the only exception justifying part withholding of back benefits could be that he accepted gainful employment/engaged in profitable business during the intervening period.
A two-judge bench, comprising Justice Manzoor Malik and Justice Mansoor Ali Shah, delivered this judgment in response to various petitions of Punjab Civil Servants – Muhammad Sharif, sub-inspector in Punjab Police and Roqyya Khushnood, lady traffic warden, Lahore, Riasat Ali, constable in Punjab Police, and Dr Muzaffar Nasrullah Chattha, consultant orthopedic surgeon.
The judgment, authored by Justice Mansoor, considered the entitlement of a civil servant to back benefits on his reinstatement in service after his wrongful removal or dismissal has been set-aside or on his being restored to his post after the penalty imposed on him has been set-aside.
It also considered the treatment of the period spent by a civil servant away from duty (due to dismissal from service or absence from duty, etc) and the purpose and meaning of the terms such as leave without pay or leave of the kind due granted to a civil servant.
The court said that in case, the dismissal/removal of a civil servant is declared illegal for a defect in disciplinary proceedings without attending to the merits of the case, the entitlement to back benefits may be put off till the inquiry is conducted in the matter finally determining the fault of the civil servant.
It further stated that in case where there is some fault of the civil servant, including a situation where concession of reinstatement is extended to the civil servant while applying leniency or compassion or proportionality as standard and where penalty is modified but not wiped off in a way that the civil servant is restored to his position, the back benefits will be paid as determined by the authority/court.
The judgment said in case back benefits as of right are not awarded to the civil servant and he is served with any other penalty after reinstatement in service, the intervening period has to be counted for, otherwise, the interruption in the service of a civil servant may entail forfeiture of his service, therefore, the intervening period has to be regularised by treating it as an extra ordinary leave without pay or leave of the kind due or leave without pay, as the case may be.
The judgment said the regularisation of the intervening period is a totally separate matter and has no bearing on the penalty imposed upon the civil servant.
The competent authority may condone interruptions in service provided that the gaps are not due to any fault or willful act of the employee.
The service gaps are usually regularised as extraordinary leave without pay or leave of the kind due.
Terming the absence period as extraordinary leave without pay is not a punishment, rather, a treatment given to regularise the period spent away from duty.
Nor could a concession given to a civil servant that his absence from duty be treated as extraordinary leave without pay mean that major penalty imposed in the same order is wiped off.
The judgment said nevertheless the powers given to treat the period of absence as extraordinary leave without pay or leave of the kind due are to be exercised after due application of mind and considering the facts and circumstances of a case.
The judgment said that it is important to structure the discretion to be exercised by the authority or court in granting arrears of pay after the order of dismissal, removal or reduction in rank has been set-aside. This discretion is to be structured keeping in mind the constitutional provisions, the wisdom handed down by the jurisprudence evolved till date and the administrative and financial oversight envisaged under Fundamental Rule, and Civil Service Rule (Punjab) and the Esta Code.
Copyright Business Recorder, 2021