1989 PLP 2384 (CLC)

15. It will be appropriate to examine the various provisions of applicable laws to the facts of the case. Ordinance No. XXIV of 1971 was promulgated on 2‑9‑1971 to provide for compulsory service in the Armed Forces of Essential persons. Section 3 of the Ordinance provides that every person to whom this Ordinance applies shall be liable to call up for service under this Ordinance, if he is not over the age of 60 years. The persons called up shall be liable to serve with Armed Forces so long as their services were required. Under Section 4 of the Ordinance, a Manpower Board was provided who was empowered to issue call up notice to any person on the requisition from any of the Service Headquarters. It also provides that any other authority can be invested with such powers. Section 9 of the Ordinance provides for the reinstatement of such persons who were called up and rendered services in the Army under the Ordinance.. Section 9 is as follows:

9. Reinstatement of persons released under the orders of the Board.‑ (1) Subject to the other provisions of this section, every employer by whom a person was released for service under this Ordinance m pursuance of a notice served under subsection (3) of section 4 shall, on the termination of such service, reinstate such person in the employment from which he was released, and if such reinstatement is less favourable to such person than that to which he would, in the ordinary course, have been entitled, give him such employment as is not less favourable: Provided that the employer shall not be required to so reinstate or employ any person if such person does not apply or report to him for the purpose within three months of his release from service under this Ordinance. (2) Where, for any reason, reinstatement or employment under subsection (1) is not practicable, the employer shall, within seven days from the date on which the person to be reinstated or employed applies or report himself for reinstatement or employment, make an application to the Manpower Tribunal concerned for exemption from the provisions of subsection (1) and send a copy thereof to such person. (3) Upon an application from the employer under subsection (2), the Manpower Tribunal shall, after such enquiry and hearing as it consider: necessary, make an order‑‑ (a) exempting the employer from the provisions of subsection (1), in which case the employer shall be required to pay within three months of the order to such person a compensation of a sum not less than six months nor more than twelve months' remuneration calculated at the rate he was entitled to when he was released by the employer and such sum, in this case of failure to make payment, shall be recoverable as arrear of lane revenue; or (b) requiring the employer to reinstate or give employment to such person v terms of subsection (1), or on such terms and conditions as it may speciF in the order. (4) If any employer (a) without seeking exemption under subsection (2), (2) fails to comply with the provisions of subsection (1) or, (b) having applied for exemption under subsection (2) fails to comply writ an order of reinstatement under clause (b) of subsection (3), he shall without prejudice to any penalty to which he may be liable under Section 10 be also liable if the Court convicting him so directs, to pay a compensation a sum not exceeding twelve months' remuneration of the person concerned in addition to the compensation provided under clause (a) of subsection (3). (5) Any sum which the employer is required to pay under an order of the Court under subsection (4) shall be recoverable as if it were a fm imposed by a Court.

16. As indicated above, the questions calling for inquiry are: (i) Has the applicant a right to claim seniority, increments and benefits respect of service rendered by him under the Ordinance when he is employed under Section 9 of the Ordinance? (iii) Is the duty cast under Section 9 of the Ordinance upon the employer to reinstate the person released under the order of Board from the date of his initial appointment? (ii) Is the duty under Section 9 absolute or discretionary?

17. The question calling for the inquiry in respect of question No. (i) is to locate the duty of employer under Section 9 of the Ordinance. The question is to be examined from the scope of word "reinstatement". It is appropriate to examine the meaning of "reinstate" and "reinstatement" in various legal dictionaries. The meanings of "reinstate" and "reinstatement" given in Black's Law Dictionary are as follows:‑ Reinstate.‑‑To reinstall; to re‑establish; to place again in a former state, condition, or office; to restore to a .state or position from which the object or person had been removed. Reinstatement.‑‑In insurance, as restoration of the insured's rights under a policy which has lapsed or been cancelled. To reinstate a policy‑holder or one who has allowed his policy to lapse does not mean new insurance or taking out a new policy, but does mean that the insured has been restored to all the benefits accruing to him under the policy contract, the original policy.

18. The meanings of the words "reinstate" and "reinstatement" in the Stroud's Judicial Dictionary in context of different laws are as follows:‑ Reinstate.‑‑(1) When a fire policy gives the insurers an option to "reinstate or replace" the insured property instead of making payment for damage, "the word `reinstate' applies to property which is damaged, and the word `replace' to that which is destroyed" and "when one is dealing with property in the nature of chattels, the term reinstate means to replace he chattels not in situ but in statu; and all that the insurers are bound to do is to make the chattles as good as they were before the fire" .... (2) To reinstate, e.g. a tunnel. Reinstatement.‑The natural and primary meaning of "to reinstate", as applied to a man who had been dismissed, was to replace him in the position from which he was dismissed and so restore the status quo ante the dismissal. It was not sufficient merely to pay the man wages without providing him with work,...unless there was in fact no work for him to do... He had to be reinstated at the same place of work ....included rebuilding of similar premises four miles away from the site of the original building Whether land would but for compulsory acquisition have continued to be devoted to a particular purpose (and thus satisfy the requirements of this section as to intention to reinstate in some other place) is determinable as at the date of the notice to treat ....In the context of condonation "reinstatement" may arise through a resumption of cohabitation even though there is no resumption of sexual intercourse."

19. In Aiyar's Judicial Dictionary (10th Edition), the meanings of "reinstatement" are as follows:‑ Reinstatement means the act of being reinstated effected from the date of dismissal with back pay from that date.

20. From the meaning of "reinstate" and "reinstatement" it becomes clear that "reinstatement" means "reinstallation" or "re‑establishment" or "a placement again in a formal state condition or office, or restoration to a state or position from which the object or person had been removed. Reinstatement, therefore, is not synonymous with re‑employment. It is practically a concept of restoration to the original position. I am of the view that the word "reinstatement" in the Ordinance means the re‑establishment or restoration of person from the former state of condition or office. The duty cast upon the employer is absolute and mandatory. From the purport of Section 9 of the Ordinance it becomes very clear that the re‑employment is the right of the person and it is the imperative duty of the employer to reinstate him within the framework of Section 9 ibid. This section also provides penalty and procedure in the case. If this duty is not performed by the employer. Subsection (2) of Section 9 of the Ordinance provides that for any reason if the employer is not able to reinstate or re‑employ the released person, he shall within seven days from the date of the application of such person, make an application to Manpower Tribunal for exemption from the provision of, subsection (1) and send a copy of this application to such person. It again provides that the Manpower Tribunal shall undertake the inquiry and pass an order. If it comes to a conclusion that re‑employment or reinstatement is not' possible, he may order such compensation which should not be less than six months or more than 12 months remuneration calculated at the rate he was entitled when he was released by the employer. It is further provided that this sum shall be recoverable as arrears of land revenue.

21. It is further stipulated in Section 9 ibid that the Manpower Board can still require the employer to reinstate or give employment to such persons in terms of subsection (1) or on such terms and conditions as may be specified in the order. If any employer fails to comply with the provisions of subsection (1) he shall be liable to penalty under Section 10 of the Ordinance.

22. The analysis of Section 9 of the Ordinance makes it clear that it provides the right of reinstatement to all those persons who are released under the call up notice issued by the Board; it also provides the mechanism in which the re employment is to be made. It also keeps the power of Board intact to pass the order of reinstatement or grant exemption if the employer satisfies the Board that re‑employment is not possible. These circumstances lead to an irresistible conclusion that the duties cast under Section 9 ibid are of compulsive nature. I; therefore, hold that the duty under Section 9 ibid is mandatory and not directory.

23. After having held that the duties of reinstatement are imperative and that the employees are to be reinstated from the date of their original position, I am not inclined to accept the objection that Section 9 of the Ordinance does not guarantee the promotion or the right of seniority. The concepts of promotion/seniority advanced by the learned counsel for the respondents relate to service laws. Section 9 ibid has got no concern with it. It provides for the reinstatement of released employees who serve the Armed Forces under the Ordinance. Therefore, the objection and the authorities cited by the learned counsel for the respondents are of least help in respect of interpretation of Section 9 ibid.

24. Coming back to the last question as to whether the writ of mandamus is an appropriate remedy or not, I am of the view that a writ of mandamus is the only appropriate remedy. Suffice it to say that the Government of Pakistan is the Government of laws and not of men. It will certainly cease to deserve this high v appellation if the law furnishes no remedy for violation of vested legal right. Whenever it is established that a statutory duty is breached by someone this Court under Article 199(2)(a)(i) of the Constitution has the powers to provide the remedy in the form of mandatory orders.

25. Writ of mandamus is, therefore, an appropriate extraordinary remedy. The writ of this nature is described in the celebrated authority of constitutional law by E.C.S. Wade and G. Godfrey Phillips in the following words:‑‑ "Mandamus is a peremptory order, issuing out of the King's Bench Division of the High Court, commanding a body, or person, to do that which it is its, or his, duty to do. This issue of the order is entirely a matter for the discretion of the Court, which "will render it as far as it can the supplementary means of substantial justice in every case where there is no other specific legal remedy for a legal right; and will provide as effectually as it can that others exercise their duty wherever the subject‑matter is properly within its control"‑‑per Lord Ellenborough, C.J. in The King v. Archbishop of Canterbury (1812), 15 East 117, 136".

26. In District Magistrate, Lahore and Commissioner Lahore Division v. Syed Raza Kazim PLD 1961 SC 178 it was held that the foundation for an application for a writ of mandamus is that there must exist a legal right in the persons seeking the writ to insist upon clear duty performed by some public officer or other authority in respect of that time. The accepted conditions for grant of writ of this nature are that it must be proceeded by demand of justice and refusal thereof and there should be no other equally expeditious, inexpensive and efficacious remedy available to the person seeking this extraordinary remedy.

27. In short, the writ of mandamus is the grant of peremptory order by which the officers of the Government, Local Bodies or Corporation are directed in the words of Blackstone, "to do a particular thing therein specified, which appertains to his office and duty, and. which the Court has previously determined, or at least supposes, to be consonant to right and justice."

28. From the rule emerging from Article 199 of the Constitution of Islamic Republic of Pakistan and authorities cited above, it appears that the jurisdiction of this Court to issue the writ has following features:‑ (1) that since the High Court has the power and, therefore, a discretion to make the order, the order cannot be asked as of right; (2) that since the person who is directed by the order must be one who is performing functions in connection with the affairs of the Centre, a Province or a Local Authority, the order can issue only against a class of public functionaries; (3) that since the order directs a public functionary to do what he is required by law to do, such functionary must have a legal duty to do what he is directed to do; (4) that the Court's jurisdiction to make an order is dependent on the non existence of an alternative adequate remedy; and (5) that to give it jurisdiction, the Court must be moved by a party aggrieved, i.e. by a person whose rights are being adversely affected by the inaction or refusal of the public functionary. "Right" means a right recognised by law and capable of being enforced by the power of the State."

29. Applying the aforesaid principles to the case I am of the view that this petition must succeed. The petitioners have a vested legal right to claim the reinstatement under Section 9 of the Ordinance, a mandatory duty is cast upon the employer to reinstate the petitioners from the date of their release, the employer is under duty to count the service rendered by the petitioners in Army under the Ordinance in their employment in HMC.

30. For whatever has been stated above, this petition is accepted, mandatory direction is given to respondents Nos.l and 2, to count the service rendered by the petitioners in Army under the Ordinance in the employment of the petitioners in HMC and also grant all the benefits to the petitioners from the date of release from the HMC in the terms of Section 9 of the Compulsory Service (Armed Forces) Ordinance, 1971 (Ordinance XXIV of 1971), in accordance with the interpretation of this Court. There shall be no orders as to costs. AA./N‑276/L Petitions accepted.