| Dismisses all petitions seeking review of August 17 judgment | Notes Sacked Employees (Reinstatement) Ordinance Act 2010 will remain unconstitutional

ISLAMABAD   -  The Supreme Court of Pakistan Friday restored the sacked employees in exercise of jurisdiction under Article 184 (3) of the Constitution, but dismissed their review petitions.

Justice Syed Mansoor Ali Shah dissented with the majority judgment of 4-1. He allowed the petitions and recalled the impugned judgment and stated “Parliamentary sovereignty or legislative supremacy is the cornerstone of a strong democracy.”

Dismissing all petitions seeking review of August 17 judgment, the Court said the Sacked Employees (Reinstatement) Ordinance Act 2010 will remain unconstitutional. Pakistan People’s Party (PPP) through the Sacked Employees (Re-instatement) Act, 2010 had restored 16,000 employees, who were appointed during 1993 to 1996, but were removed in 1997 and the successive governments. The Supreme Court three-judge bench on August 19, 2021 had declared the Act 2010 ultra vires of the Constitution and now the five-member bench, headed by Justice Umar Ata Bandial, with the majority of 4 to 1 upheld it.

The short order said that the impugned legislation, namely, the Sacked Employees (Re-instatement) Act, 2010 is held to be violative of, inter alia, Articles 25, 18, 9 and 4 of the Constitution and therefore void under the provisions of Article 8 of the Constitution.

However, in exercise of the Court’s jurisdiction under Article 184(3) of the Constitution read with Article 187, we have taken into consideration the services rendered by the reinstated employees of the “employers” [as defined in Section 2(d) of the Act] and hereby order that: “Employees who were holding posts that on the date of their initial termination of service (from 01.11.1996 to 12.10.1999) did not require any aptitude or scholastic or skill test, for appointment thereon, shall be restored from the date of the judgment under review to the posts they were holding on the same terms and conditions of service applicable on the date of their termination pursuant to the judgment under review.”

It added, “The other employees who were holding posts that on the date of their initial termination of service (from 01.11.1996 to 12.10.1999) required the passing of any aptitude or scholastic or skill test, for appointment thereon shall from the date of the judgment under review be restored to their said posts on the same terms and conditions of service applicable on the date of their initial termination.”

The bench further said that any improvement in the terms and conditions of service of all the restored employees shall be granted strictly in accordance with the laws and rules applicable to their service or employment and in the absence thereof by regulations laid down for this purpose by their respective employers.

The order said,  “The relief granted shall not be granted to employees whose initial termination of service (from 01.11.1996 to 12.10.1999) was on grounds of absence from duty, misconduct, corruption, misappropriation of money/stock or unfitness on medical grounds if such termination was not set aside finally by a Court of law.”

In his dissenting note, Justice Mansoor allowed the review petitions and recalled the impugned judgment. He declared the following sections ultra vires the Constitution: Sections 4(a) and 10 to the extent of reinstatement and regularization on “one scale higher”, which give an undue advantage to the reinstated employees to the detriment of the rights of the already working regular employees and thus violate their fundamental rights. The provisions of the said Sections, except the words “one scale higher”, shall, however, remain operative with effect from the date of enactment of the Act, and be read to mean the reinstatement and regularization in the same or restructured, as the case may be, scale, grade, cadre, group, post or designation.

He added that Sections 2(f)(vi), 11, 12 and 13, which deal with and provide 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 attained finality by being unchallenged or unsuccessfully challenged. Such employees fall outside the class of sacked employees who suffered “political victimization,” envisaged by the Act for a beneficial treatment, and they by themselves do not constitute a distinct class having an intelligible differentia, which bears a reasonable relation to the object and purpose of the Act.

He also said that all the employees terminated from service on the basis of the judgment under review, stand restored in the service with effect from the date they were so terminated, and shall be paid the pay of the intervening period treating the said period as an extraordinary leave with pay; and iv. The cases decided by the judgment under review, which now stands recalled, shall be deemed pending and decided on their own merits by the regular Bench(es) of this Court in accordance with the provisions of the Sacked Employees Reinstatement Act 2010, subject to the declaration made in the above paras.

Justice Mansoor stated that the parliamentary sovereignty or legislative supremacy is the cornerstone of a strong democracy. “We must, therefore, recognize the central role of the legislature. Undermining the legislature undermines democracy. Both the legislature and the judicature must play their role in a spirit of profound respect for the other and within the limits set out in the Constitution,” maintained the judge.

He further said, “Rule of law is not merely public order, it is social justice based on public order. The law exists to ensure proper social life by balancing the needs of the society and the individual. The courts must protect this rich concept of rule of law. Under Article 8 of the Constitution, any law enacted by the legislature is void only to the extent it takes away or abridges fundamental rights of the people.”