MAQBOOL BAQAR, J.- C.M.As. 7903/16 and 3473 and 4154/2017. The C.M.As. are allowed.
C.P. 3724/2015
2. According to the petitioners, they were appointed in the respondent-bank against vacant posts of cleaners and messengers. They remained regular and punctual and their application for raising their salaries was accepted, some of them were even promoted as clerks. It was claimed that respondent-bank has decided to permanently employ all the clerical and non-clerical staff performing their duties on contract basis. But instead, initially the respondent bank declined payment of salaries to the petitioners for more than eight months, and ultimately vide letter dated 31.5.2011, terminated their services without any justification. The petitioners contended that being regular employees of respondent bank they were entitled for their employment on permanent basis however their grievance petition was dismissed by the National Industrial Relations Commission ("NIRC") for want of jurisdiction, and so also was their application under section 41 of the Balochistan Industrial Relation Act, 2010 was dismissed. Same has been the fate of their appeal before the Labour Appellate Tribunal, Balochistan.
3. In their comments the respondent-bank contended that petitioners had no locus standi to initiate the proceedings as no cause has accrued to them. It was claimed that petitioners were not employed by the bank, and were also not on their pay roll. It was contended that petitioners rendered janitorial services as contractor in different spans of eleven (11) months each. It was claimed that such contracts were awarded to the petitioners after obtaining from them the quotation for their services and thus those who quoted the lowest rates were engaged for the cleaning job of the bank branches and offices. It was stated that neither the petitioners were daily wagers, nor were they adhoc or permanent employees of the respondent-bank, or were receiving any salary for the services rendered, but were paid their charges as contractors.
4. There is no denying the fact that the petitioners were rendering janitorial services in the various offices and branches of the respondent-bank for the last several years, and on the basis of contract executed directly between them and the respondent-bank for different spans of 11 months, from time to time. The services they rendered are such that it hardly need any emphasis to say that the work performed by the petitioner is surely of a permanent nature. Earlier the bank attempted to avoid giving permanence to the job rendered by its low paid employees by engaging them through contractors but having failed in their bid 'before this Court, in Civil Appeal No,1549 of 2014 (National Bank of Pakistan and another v. Talimand and others), where this Court declined to uphold the contention of the appellant-bank, to deny permanence to the services of its workers, on the pretext of their being employed through a contractor, and thus upholding the judgment of the learned High Court, ordering regularization of the services of such workers, has now devised an innovation of acquiring the services of workers like cleaner, messengers and/or janitors, by calling such engagement/ employment a "contract". Although like any other employee or worker these so called contractors are themselves rendering manual services for the bank, for petty monthly compensation, neither are they supplying any manpower nor any goods to the bank, or/are getting any job done by acquiring and/or engaging the services of others, and thus clearly do not fall within the definition or category of contractors, the so called contractors, as noted earlier, are manual workers, they are also not being paid on item to item and/or project basis. The so called contract is therefore, of no avail to the bank in avoiding regularization of the services of the petitioners, and to deny to them the right to livelihood, this Court cannot allow this fundamental right of the petitioners, to remain susceptible to the whims and caprice of the respondents.
5. Here it may be beneficial to quote a few passages from the case of Pir Imran Sajid and others v.
Managing Director/General Manager (Manager Finance), Telephone Industries of Pakistan and others (2015 SCM R 1257) as follows: "9. It is now well established that right to life as envisaged by Article 9 of the Constitution, includes the right to livelihood and as laid down in the case of Abdul Wahab (supra), the "right to livelihood, therefore, cannot hang on to the fancies of individuals in authority." Certainly, as has further been held in the said judgment; "it shall unmistakably be permissible that the employment of an employee can be brought to an end, but obviously in accordance with law", whereas in the present case, and as observed earlier, there was/is no justification for not making their employment permanent, and for keeping their entire career, rather livelihood exposed and' susceptible to the whims of the authorities, which also hurts the dignity of the appellants.
10.It hardly needs to be emphasized that the whole edifice of governance of the society has it genesis in the Constitution and laws aimed at to establish an order, inter alia, ensuring the provisions of socio-economic justice, so that the people may have guarantee and sense of being treated in accordance with law that they are not being deprived of their due rights. Provision of Article 4 embodies the concept of equality before law and equal protection of law and save citizens from arbitrary/ discriminatory law and actions by the Governmental authorities. Article 5(2) commands that everybody is bound to obey the command of the constitution. Every public functionary is supposed to function in good faith, honestly and within the precincts of its power so that persons concerned should be treated in accordance with law as guaranteed by Article 4 of the Constitution. It would include principles of natural justice, procedural fairness and procedural propriety. The action which is mala fide or colourable is not regarded as action in accordance with law. While discharging official functions, efforts should be made to ensure that no one is prevented from earning his livelihood because of unfair and discriminatory act on their part.
12. It is now well laid down that the object of good governance cannot be achieved by exercising discretionary powers unreasonably or arbitrarily and without application of mind but objective can be achieved by following the rules of justness, fairness, and openness in consonance with the command of the Constitution enshrined in different articles including Articles 4 and 25. The obligation to act fairly on the part of the administrative authority has been evolved to ensure the rule of law and to prevent failure of the justice.
6. Similarly in the case of Ikram Bari and others v. National Bank of Pakistan (2005 SCM R 100), where the petitioners had been working with the appellant-bank for the past many years on daily wages in various categories and their services were terminated on the ground that although the employees were appointed by the bank yet their salaries were being paid by the borrower/loanees, this Court, deprecated such arrangement and held the same to be a fraud on the statute and observed that in Islamic Welfare State, it is the obligation of the State to establish a society which is free from exploitation wherein social and economic justice is guaranteed to its citizens. Whilst noting that no equilibrium of bargaining strength between employer and employees existed, the Court found it difficult to countenance the approach of the bank that the temporary godown staff and the daily wages employees should be continued to be governed by disgraceful terms and conditions of service for indefinite period, directed the bank to issue appointment letters to the petitioners/employees.
7. In the present case also, the respondent bank cannot be allowed to persist in its similar practice and machination to exploit it workers and to defeat the spirit and purpose of law and the judgments of this Court, by describing the employment of the petitioners as a contract and calling such workers as "contractors" instead of "contract employment" and "contract employees". As the petitioners for all intents and purposes were engaged/employed by the respondent bank for manual jobs and were being paid salary/compensation for the services they rendered for the respondent-bank, on monthly basis and from year to year personally/manually, and having so served for more than one year, on several 11 months stints, have earned entitlement for regularization of their services with the respondent-bank.
8. In the circumstances, we would convert this petition into an appeal and allow the same by setting-aside the impugned judgment, and direct the respondent bank to regularize the services of the petitioners as their permanent employees.