' IRFAN SAADAT KHAN, J.--- The instant petition has been filed with the following prayers:---
(a) That this Hon'ble Court may be graciously be pleased to declare that the act of the respondents Nos.1 to 3, while not issuing regularization order in favour of the petitioners is illegal, mala fide and in clear violation of rights guaranteed in the constitution, and the principle of merit as envisaged in the Sindh Civil Servant Rules, and other law.
(b) That Hon'ble Court may graciously be pleased to direct the respondents Nos. 1 to 3 to issue appointment/regularization order of the petitioners, on the basis of announcement of learned Minister for Petroleum and Natural Resources.
(c) To restrain the respondents Nos.1 to 3 from taking any drastic action of removal from services of petitioners without any cogent reason and making fresh appointment in place of the petitioners in any manner of whatsoever nature, by themselves and/or through any agency, by granting permanent injunction in the matter.
(d) To grant any other relief/reliefs may be awarded, which this Hon'ble Court may deems fit and proper in the circumstances of the case, even if the same has not been prayed for.
(e) To award the costs of the petition.
2. Briefly stated the facts are that the petitioners claimed themselves to be the Caretakers and Guards working on contract basis in the respondent/company and were posted at different places for such purpose. It is the claim of the petitioners that since they are working satisfactorily in the respondent/company hence their services may be regularized.
3. Mr. Ghulam Shabbeer Shar, advocate has appeared on behalf of the petitioners and has reiterated the above facts and submitted that since the petitioners were not regularized, as such they were left with no option except to approach this Court for redressal of their grievance. He submitted that even after the announcement made by the Minister for Petroleum and Natural Resources way back on 7-1-2012, the respondent/company has not regularized the services of the petitioners. He in this regard has also furnished some photographs and other material showing that a number of persons working on contract basis, in the respondent/company were regularized but a discriminatory treatment has been meted out to the petitioners, which is violative of Articles 4 and 25 of the Constitution. Learned counsel in support of his submissions has furnished copies of the security passes issued to the petitioners and other material to show that the petitioners are employees of the respondent/ company and hence have a legal right to be regularized. In support of his above contentions the learned counsel has placed reliance on the following decisions.
(1) 2005 SCMR 100 [lkram Bari v. NBP] (2) 2010 SCMR 253 [PTCL v. Muhammad Zahid]
4. Mr. Mukesh Kumar. G. Karara, Advocate has appeared on behalf of the respondent/company and has vehemently opposed the instant petition and submitted that the petitioners are/were never the employees of the respondent/company, rather they are the security guards/employees of ZIM Security (Private) Limited. Learned Counsel has also placed before us the agreement executed between the respondent/company and ZIM Security, mentioning therein that ZIM Security has provided its employees as guards to the respondent/ company. He, therefore, submitted that at no point of time the petitioners were either considered as employees of the respondent/company or/were on their pay roll. He in this regard has also invited our attention to clause 21 of the agreement and to the pay roll sheets prepared by the ZIM Security Company clearly mentioning that the petitioners are its employees. He, therefore, has submitted that the petitioners have approached this Court with unclean hands and since they are not the employees of the respondent/company, hence the question of regularization of their services hardly arises.
Learned counsel submitted that the decisions relied upon by the learned counsel for the petitioners are distinguishable and has prayed that this petition may be dismissed with heavy cost.
5. Mr. Yousuf Ali, Standing Counsel has adopted the arguments advanced by Mr. Mukesh Kumar.
G.Karara, and submitted that this petition is liable to be dismissed since the petitioners have no lien or right over the company and are not the employees of said organization.
6. We have heard all the learned Counsel at considerable length and have perused the record and the decisions relied upon. A perusal of the record reveals that the petitioners are working as security guards in the respondent/company. Learned counsel for the petitioners was asked to produce the appointment letters issued by the respondent/company in favour of the petitioners, which he could not produce. The perusal of the record further reveals that the security passes issued in favour of the petitioners clearly mentions the note that "the Contractor will return the security passes to the Security Officer when the services of the Caretaker are not required any longer" which also demonstrate that the security passes issued to the petitioners were for performance of their duties on the designated places and a responsibility was fixed upon the Contractor to return the security passes, when the services of the petitioners are no more required and needed. The purported salary slips produced by the learned counsel for the petitioners also reveal that the same are in the name of the Contractor rather than in the name of the petitioners, which also depict that the amounts paid by the respondent/company were in the name of the Contractor and not in the name of petitioners directly, as it has also been claimed by the Counsel for the respondents that the salaries were paid by the ZIM security to the petitioners. The salary sheets produced by the learned Counsel for the respondent/company also show IA that the petitioners are the employees of the ZIM-security company and are not on the pay roll of the respondent/company.
7. Though, it is claimed that the petitioners are working with the respondent/company since quite some time and have not been regularized but it is an undeniable fact that the petitioners are not in possession of any appointment letter issued to them by the respondent/company. In our view, if the petitioners claim that they are the employees of the company they should have atleast produced the appointment letters issued to them. In our view assigning a job by the respondent/company for deploying them at a certain place would not imply that they have become the employees of the said company when it is evident that the petitioners are the security guards, provided by ZIM security company as per the agreement executed between the respondent/company and the said security company. Hence simply outsourcing certain specific jobs in our view would not mean that the petitioners have become the employees of the respondent/company. For a better appreciation of the matter before us, we made an extensive research on our own and are able to lay our hands on some of the reported judgments which are detailed below:---
(i) In the case of Mian Munir Ahmed v. The State (1985 SCMR 257), the Hon'ble Supreme Court of Pakistan has observed as under:--- "It is an admitted position that an employer is required to issue such tickets only to the persons employed by him as workers. This stands to reason because a factory owner may need, for example, to erect an additional structure within the Factory premises and for this purpose he may employ a building contractor on the terms settled with him. Naturally the contractor would employ his own labour who would obviously not be the employees of the Factory. Nor would, in such a case, the Factory Management be responsible for them in any manner and would not be required to issue attendance tickets to such workers under section 2 of Schedule 2(g) of the Standing Orders Ordinance."
In the case of Farid Ahmed v. Pakistan Burmah-Shell Ltd. (1987 SCMR 1463), the Hon'ble Supreme Court of Pakistan has observed as under:--- "8. Learned counsel for the appellant contended that notwithstanding the fact that the appellant had been employed by the contractor it was competent for him to have filed a criminal complaint against the Principal Company, i.e, Pakistan Burmah Shell Ltd.. According to him the liability of all acts done by the contractor with regard to the workmen or persons employed at the petrol pumps being run by the contractors rested on the respondent-company.
11. The net result of the above discussion is that the High Court has rightly held that Farid Ahmed appellant was not the employee of the respondent-company but that of Mr. Saleh, the company's contractor. The appeal is consequently dismissed as having no merit."
(iii) In the case of Mehmood Hussain and another v. Presiding Officer, Punjab Labour Court and others (2012 SCMR 1539), the Hon'ble Supreme Court has observed as under:--- "12. Admittedly, appellant No,2 did not issue any appointment letter in favour of respondent No,3. A claim under the Payment of Wages Act can only be made with regard to payment withheld by an employer. If respondent No,3 failed to prove that he was an employee of the appellant in terms of section 2(2) clause-G of the Payment of Wages Act, 1936, the claim made by him from the appellant was not tenable in law. Consequently, this appeal is allowed, the impugned judgment dated 25-3-2011 is set aside and that of the Authority established Under the Payment of Wages Act dated 29-9-2005 is restored."
(iv) In the case of Fauji Fertilizer Company Ltd. Through Factory Manager v. National Industrial Relations Commission, through Chairman and others, (2013 SCMR 1253), the Hon'ble Supreme Court has observed as under:--- "The employees of the contractor shall not be the employees of the company, if (a) they are under the control and management of the contractor, and not that of the company; (b) they are not on the pay-roll of the company and the management of the company is not even aware of the number of the workers employed by the contractor or about the terms and conditions of their appointment or service; and (c) the contractor has the power of hiring and firing the employees, and assigns works to them and the company has no concern with it."
(v) In the case of Malik Mazharul Haq and another v. Chairman, Pakistan International Airlines Corporation, Islamabad and 3 others, (2010 PLC (C.S.) 1472), a Single Judge of the Lahore High Court has observed as under:--- "... The petitioners were not employed by the respondents, they were the employees of contractor of respondents who are not party to petition and as such they have no claim against the respondents and even if it is assumed that they were employees of respondents even then the relationship of Master and servant does exist between the parties, the petitioners are not entitled to be reinstated. The petition fails and dismissed."
8. In view of what has been decided by the Hon'ble apex Court and the learned Single Judge of the Lahore High Court, nothing much remains in the instant petition to be decided, since the petitioners have failed to adduce any evidence to show that they were at any given point of time the employees of SSGC Company, hence are not entitled for regularization. The decisions relied upon by the learned Counsel for the petitioners are found to be distinguishable on the ground that the persons in those cases were either the contract employees or the persons working on daily wages basis, whereas the petitioners in the instant petition are admittedly the security guards provided to the respondent/company by ZIM Security Company to the petitioners, who are deployed at different destinations by the said Security Company. So far as the regularization of certain other persons are concerned, needless to mention here that those persons were approved by the HR department of respondent/ company who were working on casual work basis, thus have no nexus with the present case of the petitioners, hence this argument raised by the learned counsel for the petitioners is not tenable. This petition thus is found to be devoid of any merits and is accordingly dismissed, along with the listed applications.