2025 PLP 88 (PLC)

SARDAR AHMAD HALEEMI, J.

Since common question of law and facts are involved in all the above petitions, therefore, are being disposed of through this common judgment.

2. The brief facts of the instant constitution petitions are that the private respondents: Jalaluddin (respondent No.1 in C.P. No.146 of 2024), Nadeem Ahmed (respondent No.1 in C.P. No.147 of 2024), Bashir Ahmed, and Raheem Bakhsh (respondents Nos.1 and 2 in C.P. No.1195 of 2023), Irshad Ali and Wahed Ali (respondents Nos.1 and 2 in C.P. No. 203 of 2022) and Habibullah (respondent No.1 in C.P. No.355 of 2022) have respectively filed grievance petitions under section 33 of Industrial Relations Act, 2012 (hereinafter the "Act, 2012") before the National Industrial Relations Commission (NIRC), Quetta Bench with the averments that the private respondents were appointed in the National Bank of Pakistan (petitioner) on their respective posts with the prayer to regularize their services along with all back benefits.

3. The petitioner/bank filed its contesting written statement and repudiated the claim of the private respondents on the ground that the private respondents could not claim their induction into permanent service of the bank, as they were employees of third-party contractors, as such, their claims cannot be entertained.

4. The private respondents in support of their claim filed the affidavits-in-evidence which were cross-examined by the petitioners.

5. In rebuttal, the petitioner/bank filed affidavit-in-evidence through the representative namely Ghulam Jailani, Banker NBP, Quetta.

6. After hearing the arguments of the parties, the learned NIRC, Quetta Bench disposed of the petition filed by the private respondents vide orders of even dated 03-01-2022 impugned through C.Ps. Nos. 146, 147 of 2024, and 1195 of 2023 (hereinafter the "impugned order") and orders dated 14-07-2021 and 03-11-2021 impugned through C.Ps. Nos.203 and 355 of 2022 (hereinafter the "impugned orders"), whereby, the private respondents were declared permanent employee of the petitioner/bank with all back benefits as per their entitlements in accordance with law and rules.

7. The petitioners/bank feeling disgruntled from the impugned orders dated 03-01-2022, 14-07-2021, and 03-11-2021 filed appeals before the National Industrial Relations Commission Full Bench at Karachi ("Appellate Bench"), which was partially allowed by declaring the regularization against law and by maintaining the impugned orders passed by the NIRC Bench at Quetta to the extent of declaring the private respondents as permanent workers of the petitioners/bank as well as entitled them to all the benefits i.e. promotion, rise in salary, bonuses as allowed to permanent, however, the impugned orders of the NIRC, Quetta Bench to the extent of direction for regularizing the services of private respondents was set aside, hence these constitution petitions.

8. Learned counsel for the petitioners/bank contended that the services of the private respondents were acquired through third party i.e. contractors and they have no connection with the petitioners/bank, as such, they were not the employees of the Bank, and their affairs with regard to pay, allowances and other facilities were being managed by the contractors; that neither the private respondents were appointed by the petitioners/bank nor were on the payroll of the petitioners/bank, but the NIRCs Quetta Bench as well as the appellate tribunal have failed to consider these aspects of the matter; that besides above, the private respondents before filing of grievance petitions failed to serve the mandatory grievance notices under section 33 of the Act, 2012, which was the requirement of the law; that the private respondents prated for their regularization and had not sought the relief of declaration as permanent workmen, but this legal aspect of the matter have not been considered in the impugned order, thus, erred in law by declaring the private respondents as permanent workers of the petitioners/bank, whereas neither the private respondents were permanent nor temporary employees of the petitioners/bank; the private respondents being employees of outsourcing companies and they had privity of contract with the petitioners/bank; that the private respondents had no legal characters for filing of grievance petitions under section 33 of the Act, 2012 against the petitioners/bank; that no document had been produced by the private respondents with regard to their employments with the petitioners/bank; that the NIRC Quetta Bench and the appellate tribunal while passing the impugned orders did not consider the policy of the petitioner/bank and passed the impugned orders contrary to the record; that the impugned orders were passed without appreciating the facts and material available on record, therefore, the impugned orders are result of misreading and non-reading of the material available on record, and the same are liable to be set aside. In support of their contentions, learned counsel for the petitioner relied upon the cases Qaim Ali Shah and another v. Government of Khyber Pakhtunkhwa through Chief Secretary at Civil Secretariat, Peshawar and others (2023 PLC (C.S) 475), Messrs Sui Southern Gas Company Ltd. v. Zeeshan Usmani and others (2022 PLC (C.S.) 424), Secretary Local Government, Election Rural Development, Khyber Pakhtunkhwa, and others v. Muhammad Tariq Khan and others (2021 SCMR 1433), Government of Khyber Pakhtunkhwa through Secretary Forest, Peshawar and others v. Sher Aman and others (2022 SCMR 406), Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others v. Intizar Ali and others (2022 SCMR 472), Deputy Director Finance and Administration FATA through Additional Chief Secretary FATA, Peshawar, and others v. Dr. Lal Marjan and others (2022 SCMR 566), Province of Punjab through Chief Secretary, Lahore and others v. Prof. Dr. Javed Iqbal and others (2022 SCMR 897), Deputy Commissioner Upper Dir, and others v. Mst. Nusrat Begum (2022 SCMR 964), Muhammad Sajjad v. Federation of Pakistan through Secretary, Aviation Division and others (2022 PLC (C.S) 469 Sindh), Umar Rasheed Malik and others v. Federation of Pakistan through Secretary Cabinet Secretariat, Establishment Division, Islamabad and others (2022 PLC (C.S) 1498), Khushal Khan Khattak University through Vice-Chancellor and others v. Jabran Ali Khan and others (2021 SCMR 977), Vice-Chancellor, Bacha Khan University Charsada, Khyber Pakhtunkhwa and others v. Tanveer Ahmad and others (2022 PLC (C.S) 85 Supreme Court), Pakistan Telecommunication Company Ltd. v. Muhammad Samiullah (2021 SCMR 998), Vice-Chancellor, Bacha Khan University Charsada, Khyber Pakhtunkhwa and others v. Tanveer Ahmad and others (2021 SCMR 1995), Government of Khyber Pakhtunkhwa through Chief Secretary and others v. Muhammad Younas (2021 SCMR 1045), Government of Khyber Pakhtunkhwa through Secretary Agriculture, Livestock and Cooperative Department Peshawar and others v. Saeed-ul-Hassan and others (2021 SCMR 1376), Government of Khyber Pakhtunkhwa through Secretary Health, Peshawar and others v. Jawad Ali and others (2021 SCMR 185), Government of Khyber Pakhtunkhwa, Workers Welfare Board through Chairman v. Raheel Ali Gohar and others (2020 SCMR 2068), M/s Pakistan State Oil Company Ltd. v. Ghulam Ali and others (2015 SBLR 233 Supreme Court), Israr Ali and others v. Government of Khyber Pakhtunkhwa through Secretary Home and Tribal Affairs Department and others (2023 PLC (C.S) 358 Peshawar).

9. Conversely, the learned counsel for the private respondents controverted the contentions of learned counsel for the petitioner/bank and submitted that the private respondents performed their duties with the petitioner/bank and to date rendered their services against the permanent nature of job without any break since their initial appointments, which fact was not disputed by the petitioner/bank, as such, the private respondents fall under the definition of permanent workmen defined under sections 2(i) and 2(g) (1) (a) (b) of the Industrial and Commercial Establishment Standing Orders Ordinance, 1968; that while passing the impugned orders, the NIRC Quetta Bench as well as the appellate tribunal have rightly appreciated the law on the point, which findings are based on proper appreciation of law and facts, as such, are immune from any interference, thus are liable to be sustained. Learned counsel for respondents relied upon the cases Executive Engineer, Central Civil Divisions Pak. P.W.D Quetta v. Abdul Aziz and others (PLD 1996 SC 610), Qayyum Nawaz and others v. N.W.F.P Small Industries Development Barod, Peshawar through Manning Director Kohat Road, Peshawar and others (2000 PLC 215), Ikram Bari and others v. National Bank of Pakistan through President and another (2005 SCMR 100), General Manager Pakistan International Airline, and another v. Matiullah and others (2017 PLC 148 Balochistan) Muhammad Ashraf Khan and another v. Ghulam Rabbani (1987 PLC 298) and Reckitt and Colman of Pakistan Ltd. v. Carmine Demllo and others (2001 PLC 543).

10. We have heard the arguments advanced by the learned counsel for the parties and perused the record with their able assistance.

11. As per record, the National Bank of Pakistan ("Bank") appointed private respondents on a contract basis for janitorial services in the year 2004 and onward for a period of 11 months, which were extended from time to time without any break in their services. Under section 2(g)(i)(b) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, the permanent workman has been defined, which reads as follows: A "permanent workman" is a workman who has been engaged on work of permanent nature likely to last more than nine months and has satisfactorily completed a probationary period of three months in the same or another occupation in the industrial or commercial establishment, including breaks due to sickness, accident, leave, lock-out, strike (not being an illegal lock-out or strike) or involuntary closure of the establishment and includes a badli who has been employed for a continuous period of three months or for one hundred and eighty-three days during any period of twelve consecutive months.

12. In the foregoing provisions of law, it manifests that any person performing his duties in the industrial or commercial establishment completed a period of 90 days successfully, falls within the definition of workman. The petitioner/bank has not denied the fact that the private respondents are working as janitorial staff in the respective branches without any break. It is a matter of record that the petitioner/bank paid a monthly salary to the private respondents which was admitted by the representative Ghulam Jilani in his cross-examination, supported by the debit vouchers issued by the petitioner/bank.

13. Conversely, the petitioner/bank did not bring on record any document that substantiated the connection of employment between the contractors with the private respondents. In the present matter, the record reveals that the private respondents were performing their duties for many years under the supervision of the petitioner/bank, as such, falls in the definition of permanent workman. Though, the petitioner/bank alleged that the services of the private respondents had been hired through contractors/outsource arrangement, but during the proceedings, the alleged contractors did not come forward to show that they had an agreement with the petitioner/bank regarding the provisions of janitorial staff and the concerned contractors had paid monthly salary to the private respondents, even though, there is no bar to hire the services of the required human sources through outsource contractors, but it can not be used as a tool to deprive the permanent workman of their legitimate/fundamental rights to explicit labor laws. Reliance in this regard is placed in the case of Ikram Bari and 524 others v. National Bank of Pakistan through President and another (2005 SCMR 100), wherein it has been held as under:

15. An Islamic Welfare State is under an obligation to establish society which is free from exploitation wherein social and economic justice is guaranteed to its citizens. The temporary Godown staff and the daily wages employees were continued in service of the Bank on payment of meager emoluments fixed by the Bank. In most of the cases of these employees, there were artificial breaks in their service so as to circumvent the provisions of the Labor Law and the rules of the Bank and to deny them the salaries and other service benefits of regular employees. In some cases, the Bank did not issue formal letters of appointment or termination to the employees so as to preclude them to have access to justice. There was no equilibrium of bargaining strength between the employer and the employees. The manner in which they had been dealt with by the bank was a fraud on the Statute. A policy of pick and choose was adopted by the Bank in the matter of absorption/regularization of the employees. By Article 2-A of the Constitution which has been made its substantive part, it is unequivocally enjoined that in the State of Pakistan principle of equality, social and economic justice as enunciated by Islam shall be fully observed which shall be guaranteed as fundamental right. The principle of policy contained in Article 38 of the Constitution also provide, inter alia, that the State shall secure the well being of the people by raising their standards of living and by ensuring equitable adjustment of rights between employers and employees and provide for all citizens, within the available resources of the country, facilities for work and adequate livelihood and reduce disparity in income and earnings of individuals. Similarly, Article 3 of the Constitution makes it obligatory upon the State to ensure the elimination of all forms of exploitation and the gradual fulfillment of the fundamental principle, from each according to his ability, to each according to his work. It is difficult to countenance the approach of the Bank that the temporary Godown staff and the daily wages employees should be continued to be governed on disgraceful terms and conditions of service for an indefinite period. In view of section 24-A of the General Clauses Act, 1897, the National Bank was required to act reasonably, fairly and justly. An employee being jobless and in fear of being shown the door had no option but to accept and continue with the appointment on whatever conditions it was offered by the Bank. In the case of Pakistan v. Public at Large PLD 1987 SC 304, it was contended before the Shariat Appellate Bench of this Court that the provisions of law impugned therein amounted to a contract between the Government and the civil servant and thus they involved his consent. It was observed that in fact it as not in the nature of a free consent between the agents. On the one hand, State power was projected in the form of a Statute and on the other, the civil servant had no choice of a bargain on those provisions when joining the service. He could not get it changed. In Habibullah v. Government of the Punjab and 5 others PLD 1980 Lah. 37, it was held that the employer being placed in a position of authority and strength could always coerce employees to waive their legal protection and accept contractual terms at the pains of losing his job.

14. Similarly, the Hon'ble Supreme Court of Pakistan in the case of IFFCO Pakistan (Private) Limited v. Ghulam Murtaza and others (2024 SCMR 1548), has determined several factors, which are necessary to recap and control the outsourced contractors. For convenience, the relevant part is reproduced as under:

11. Without a doubt, the employer has the right to administer, operate and carry out its business activity in the best suited manner, strategy and discernment and may make use of the most efficacious and proficient resources in its business planning. There is no bar to contract out the whole job or in the bits and pieces to the outsource contractor, including human resource within its own premises or through toll manufacturing agreements but what is crucial is that outsourcing should not be used as a weapon of circumvention of labour laws by means of sham agreements. In the case in hand, it was established that the respondent employees were under the direct supervision and control of IFFCO and were working within their premises and involved directly or indirectly in the manufacturing process and were also performing their duties for the past many years. The agreements produced in evidence had also expired and reliance on such expired agreements could not be placed. Despite expiry of alleged contracts, the respondent employees were not disengaged but continued to perform their duties. The alleged outsourcing arrangement cannot be allowed to be used as a device to deprive the workers of their legitimate rights envisaged under the labour laws. Throughout the proceedings, the alleged contractors never came forward to rescue IFFCO and to show that they are the actual employers of the respondent workers which is also quite a strange state of affairs. There is a huge distinction between bona fide and mala fide outsourcing. The weapon of outsourcing should not be used to exploit the labourers and labour laws. It should not be used as vehicle of oppression to deprive the workers of their legitimate and fundamental right of forming a union and/or becoming a part thereof as observed by this Court. The case of Nilgiri Coop. Mkt. Society Ltd. v. State of T.N. [(AIR 2004 SC 1639) = (2004) 3 SCC 514] was also referred to in the case of Fauji Fertilizer case (supra) in which also the Court recapped that the control test and t he organization test, are not the only factors which can be said to be decisive but the Court is required to consider Civil Petitions Nos.525-K to 541-K/2023 10 several factors which would have a bearing on the result, such as (a) who is the appointing authority; (b) who is the paymaster; (c) who can dismiss; (d) how long alternative service lasts; (e) the extent of control and supervision; (f) the nature of the job e.g. whether it is professional or skilled work; (g) nature of establishment; (h) the right to reject. This Court draws the crux of the above case law as under:- "(a) the word 'employed by the factory' are wide enough to include workmen employed by the contractors of the company; (b) the employees of the contractor shall be the employees of the company if the contractor engaged the workers for running of the affairs of the company and not for some other independent work which has no concern with the production of the company; (c) if the employees are working in a department of the company which constituted one of the principle organs of the company, the machines belong to the company, the raw material is supplied by the company and the said department is controlled by the supervisors of the company, the employees of the contractor shall be the employees of the company; (d) the employees, engaged directly or through a contractor, would be deemed to be the employees of the company for whose benefit they perform functions; (e) even though 'control' test is an important test, it is not the sole test; a multiple pragmatic approach weighing up all the factors for and against the employment has to be adopted, including an "integration" test; and (f) if the contract is found to be not genuine and a device to deprive the employees from their legitimate rights/benefits, the so called contract employees will have to be treated as employee of the company".

15. The next contentions of learned counsel for the petitioner/bank was that one of the private respondents had filed grievance petitions before the NIRC Bench with considerable delay, as such, the petitions are liable to be dismissed on this score alone. In this context, the record depicts that the private respondents in C.P. No.147 of 2024, filed a petition under section 33 of the Industrial Relation Act, 2012 appended with an application for condonation of delay, which was rebutted by the petitioner/bank, meaning thereby that the petitioner/bank did not object. This pivotal issue has been discussed and decided by the NIRC Bench in the impugned order. The relevant part is reproduced as under:

17. The law of limitation is found upon maxims such as "Interest Reipublicae Ut Sit Finis Litium" which means that litigation must come to an end in the interest of society as a whole, and "vigilantibus non dormientibus Jura subveniunt" which means that the law assists those that are vigilant with their rights, and not those that sleep thereupon. Hence, the general rule of law of limitation is that an extension shall not be granted under Section 5 if there is no sufficient cause or cogent ground for the condonation of delay, the onus of proving which lies on the petitioner. The words "sufficient cause", as appearing in Section 5 of Limitation Act, should receive a liberal construction when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the petitioner, in order to advance substantial justice. The words "sufficient cause for not making the application within the period of limitation" should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case. The decisive factor in condonation of delay is not the length of delay but sufficiency of a satisfactory explanation. The degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. Admittedly, the contention raised by the petitioner in the application for condonation of delay has not been contested by the respondents by filing rejoinder to it, meaning thereby having no objection in condoning the delay, hence the delay incurred in filing of petition is condoned being not contested and being the sole discretion of Commission in the interest of justice. The appellate Bench has also rendered its findings on this particular issue wherein it has held as under: "

5. The petitioner submitted application for condonation of delay under Section 5 of the Limitation Act, and the appellants/respondents did not contested the application by not submitting written reply to the application, thus, the application went unrebutted. Moreover, the learned Trial Court had condoned the limitation advancing the reasonable grounds therefore, we do not want to interfere in that finding".

16. As a sequel to the above discussion, we are of the considered view that NIRC Quetta Bench has dilated upon all the aspects of the matter and assessed/evaluated the evidence, as such, the findings are based on cogent and valid reasons. No infirmity, perversity, or jurisdictional error has been found in the impugned orders, thus, the same are immune from interference by this Court in its constitutional jurisdiction. The judgments referred to and relied upon by learned counsel for the petitioner are distinguishable from the facts and circumstances of the instant case. For the above reasons, Constitution Petitions Nos.146 of 2024, 147 of 2024, 1195 of 2023, 203 of 2022, and 355 of 2022, being bereft of merits are dismissed. SA/167/Bal. Petitions dismissed.