2018 PLP 1181 (SCMR)

MIAN SAQIB NISAR, C.J.

These petitions are directed against the judgment of the learned High Court, whereby the respondents, who are working for the petitioner company, approached the Court for regularization of their services in the petitioner company. The defence set out by the petitioner was that the respondents are not their employees rather their jobs have been outsourced and they are employees of the contractor. It is also the petitioner's case that the respondents' petition before the learned High Court was incompetent because there is no statutory rules of the petitioner and as per the law laid down in Abdul Wahab and others v. HBL and others (2013 SCMR 1383) these two pleas have not been accepted by the learned High Court and the petition has been dismissed on the ground that in such like cases, where the services or the jobs were outsourced the petitioner itself has regularized the services. Besides, this case is not about the terms and conditions of service rather about regularization, in such a situation the jurisdiction would not be of the Labour Court. Both these points have been debated by the counsel, who states that the petitioner under the law has the authority to outsource the jobs of the respondents and thus for all intents and purposes the respondents are the employees of the contractor.

2. It was also argued that there are disputed questions of fact and such questions could not be resolved in the constitutional jurisdiction of the Court. In this context, the judgments in the cases of Farid Ahmed v. Pakistan Burma Shell and others (1987 SCMR 1463) and PIA and others v. Tanveer-ur-Rehman and others (PLD 2010 SC 676) were relied upon.

3. We heard the learned counsel for the petitioner and found both the submissions not well founded and are misconceived. The regularization of the employees is not a part of the terms and conditions of service of the employees for which there need to be some statutory rules but it depends upon the length of service and in terms of equity that a person who has given his prime life and youth to a department is always kept in dark and his services were taken in a very explorative manner. So it is on the principle of the above that they have approached the learned High Court for regularization of their service, where there is no statutory rules or law while exercising its jurisdiction for the purposes of enforcement of the fundamental right to life particularly Articles 9 and 25 of the Constitution. Therefore, the first objection about the maintainability of the writ petition has no force and is accordingly rejected. As regards the question that the respondents were not the employees of the petitioner but the contractor, suffice it to say that it is a normal practice on behalf of such industries to create a pretence and on that pretence to outsource the employment of the posts which are permanent in nature and it is on the record that the respondents have been in service starting from as far back as 1984. This all seems to be a sham or pretence and therefore, it being not a case of any disputed fact and no evidence was required to be recorded. Moreover, we have seen from the order under challenged that in such like cases where the orders have been passed by the Labour Tribunals, the employees, even those who were under the contractors' alleged employment, have been regularized by the petitioner. And thus keeping in view the rule of parity and equality, all the respondents even if considered to be the employees of the contractor, which is not correct, they having been performing duties of permanent nature should have been regularized. However, at this stage, we would like to observe that the employment of the respondents shall be regularized with effect from the date when they approached the learned High Court through the Constitution petition but for their pensionary benefit and other long terms benefits, if any, available under the law, they would be entitled from the date when they have joined the service of the petitioner. All the petitions are accordingly dismissed. MWA/S-15/SC Petitions dismissed.