ISLAMABAD: The Supreme Court has held that civil servants when reinstated on merits cannot be deprived of back benefits as such deprivation would be against his/her constitutional rights.

“In case of reinstatement or restoration to a post on merits, the employee is entitled to full back benefits and there is no discontinuity of service,” observed Justice Syed Mansoor Ali Shah in a judgement he wrote.

The judgment by a two-judge Supreme Court bench consisting of Justice Manzoor Ahmad Malik and Justice Syed Mansoor Ali Shah was issued on Thursday on a set of appeals against the Dec 21, 2015 Punjab Service Tribunal Lahore order. The matter concerns the scope of entitlement of a civil servant to back benefits on their reinstatement in service after their wrongful removal or dismissal was set aside.

In its verdict, the Supreme Court also considered the treatment of the period spent by a civil servant away from duty (due to dismissal from service or absence from duty) and the purpose and meaning of the terms leave without pay or leave of the kind due granted to a civil servant.

Says benefits can be withheld of employees who accepted another employment or engaged in profitable business

By virtue of a declaration given by the court, the judgement said, the civil servant was to be treated as being still in service and should also be given the consequential relief of back benefits (including salary) for the period he was kept out of service as if he were actually performing duties.

A civil servant once exonerated from the charges would stand restored in service as if he were never out of it and would be entitled to back benefits, Justice Shah emphasised.

One of the exceptions of not granting full back benefits is that if the reinstated employee had accepted another employment or engaged in any profitable business during the intervening period, the amount in such a case would be set off against the salary, the judgement explained.

It said that when the dismissed government servant was reinstated, the revising or appellate authority may grant him for the period of his absence from duty, if he is honourably acquitted, the full pay to which he would have been entitled if he had not been dismissed or removed and by an order to be separately recorded any allowance of which he was in receipt prior to his dismissal or removal. In this case, the period of absence from duty would be treated as a period spent on duty, the verdict said.

Thus the employee on reinstatement on merits cannot be deprived of back benefits and in case of reinstatement or restoration to a post on merits, the employee is entitled to full back benefits and there is no discontinuity of service, thus the question of intervening period does not arise in such a case, it added.

“We also feel inclined to underscore that a civil servant cannot be burdened with the loss of service benefits without attributing any charge to him,” Justice Shah emphasised, adding that the appellate authorities, without saying a word about the charge, often, as in two of these petitions, reinstate a civil servant taking a lenient view or on compassionate ground or on the ground of proportionality.

This view usually becomes the ground to deny back benefits to the reinstated civil servant. It is underlined for the sake of clarity that the matter of ‘leniency’ or ‘compassion’ or ‘proportionality’ does not erode the charge rather it does not consider the award of penalty to be appropriate in the case, the judgement said.

“It may so happen that the charge stands established yet the authority or the court, applying leniency or compassion or proportionality as standard, feels inclined to extend concession of reinstatement to the civil servant. Notably the civil servant in such a case is not reinstated unconditionally and, therefore, he may be denied a portion of pay — while maintaining a proportion between the gravity of the fault of the civil servant and special/extenuating circumstances of the case — he would otherwise get on reinstatement,” it said.

The judgement also explained that in case back benefits as of right were not awarded to the civil servant and he was 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 extraordinary leave without pay or leave of the kind due or leave without pay, as the case may be, the judgement said. The service gaps are usually regularised as extraordinary leave without pay or leave of the kind due.

Terming the absence period 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, it 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 judgement explained.

Published in Dawn, April 30th, 2021