Syed Arshad Ali, J.--Through this single judgment we intend to dispose of Writ Petitions No, 428-A/2014, 503- A/2014, 504-A/2014, 505-A/2014, 590-A/2014 and 05-A/2016 as in the above writ petitions a common question of law is involved.
2. All the petitioners in the above writ petitions are seeking regularization of their services in the Respondent bank.
3. The petitioners Sohail Ahmed and three others in Writ Petition No, 428-A/2014 initially joined the services in the Respondents bank as janitors against a meager salary of Rs,3500/- as evident from debit voucher dated 25.11.2008. Whereas rest of the petition ers claimed to have remained office attendants in the respondent Bank since long and subsequently their services were outsourced to certain companies. However , they have been working within the premises of respondent Bank. They have annexed a letter dated 12.8.2008 with the writ petition through which the Regional Compliant Chief had issued instructions to all Branch Managers/ Operation Managers, whereby they were restrained from allowing access to the janitors to BBO operations as they were receiving complaints that BBO is operated by janitorial staff and even pass words are shared among them. Hence it is established that the petitioners are workin g in the Bank. They further stated that the petitioners are highly qualified and for all practical purposes they are working in the premises of the bank, therefore, relationship of employer and employee exists between the petitioners and the respondent Bank and not with the outsourced company . The petitioners have placed reliance on the judgment of apex Court Ikram Bari and 524 others vs National Bank of Pakistan through President and another 2005 SCMR 100 and unreported judgment dated 22.5.2014 of this Court passed in Writ Petition No, 69-A of 2014, which was upheld by the august Supr eme Court of Pakistan on 24.5.2016 in Civil Appeal No, 1549 of 2014. In all other writ petitions, the petitioners are seeking regularization on the same grounds.
4. The respondents have filed their comments, wherein they have pleaded that the petitioners are the employees of an independent outsourced company i,e, M/S Outriders (Pvt) Ltd and Eagle Security Guards (Pvt) Ltd. They have also placed on record appointment letters of the petitioners showing that they were appointed by the said outsourced companies and National Bank of Pakistan is not paying any amount to the petitioners directly , rather the amounts are paid to the aforesaid outsourced companies. They have also placed on record agreement dated 26.5.201 1 executed between National Bank of Pakistan and M/S A.A Janitorial Company a registered firm. Through the said agreement the janitorial company would provide 74 janitorial cleaners for cleanliness for the branches of National Bank of Pakistan as per approval of General Manager Operation with consent of General Manager HR.
5. Heard. The record reveals that the jobs offered to the petitioners are being performed by them within the bank premises and relate to the necessary and incidental service of bank as maintaining cleanliness in branch offices is the service which is permanently required by the respondent bank and for the purpose of the said service a large number of employees/persons were appointed against the said posts.
6. Earlier the practice in the Respondent bank was that such like appointments were made on fixed salary like waterman etc., they continued their service for number of years, and however , Respondents bank did not regularize their services, constraining the employees to approach Federal Service Tribunal, Islamabad. The Worthy Tribunal dismissed their appeals, hence the petitioners approached august Supreme Court of Pakistan through Civil Petitions, which were finally decided through judgment reported as Ikram Bari and 524 others Vs. National Bank of Pakistan through President and another 2005 SCMR 100. The august Supreme Court of Pakistan allowed all the appeals. In Para 12 of the judgment the employees, who were employed at godown for borrower to whom financial facilities were extended held that "For all practical purposes and legal consequences they were placed under the administrative control of Natio nal Bank of Pakistan." Resultantly , the petition was accepted and the respondents were ordered to regularize the services of the petitioners in the National Bank of Pakistan.
7. The job description and the comments filed by the Respondents bank do not give any impression that the petitioners are not working under the administrative control of the Respondent bank. It appears that in order to nullify the effect of the judgement of Ikram Bari supra, a system has been devised that employees would serve, the Respondent bank but with the financial arrangements with a outsourced company . Hence, the most crucial issue in the case is to see whether in the present scenario relationship of employer and employee exists between the parties. The description, janitorial service itself suggests and means one who keeps the premises of a building clean, tends the heating system and makes minor repairs. Hence, we hold that these services are essential regular services of the bank. In Fauji Fertilizer Company Limited versus National Industrial Relations Commission. (2013 SCMR 1253 ) the august Supreme Court in para 17 of the judgment held: "It would also be advantageous to consider cases on the issue in hand from the Indian jurisdiction. In the case of Messrs Basti Sugar Mills v. Ram Ujagar (AIR 1964 SC 355) the Indian Supreme Court has held that the word 'employed by the factory' are wide enough to include workmen employed by the contractors of the factory . In the case of Silver Jubilee Tailoring House v. Chief Inspector (AIR 1974 SC 37) = [(1974 ) 3 SCC 498] certain employees claim the status of regular workers in a tailoring house "as employed in the estab lishment" within the meaning of Section 2(14) of the Shops and Establishments Act. On the question as to whether there existed employer- employee relationship between the workers and the Management, the Court pointed out that the control test, which is normally adopted for considering the said question is not an exclusive test or a decisive test. If the ultimate authority over the performance of the work of the employee rested in the employer so that he is subject to the supervision of the principal employer , would be sufficient. In the case of Hussainbhai, Calicut v. The Alath Factory Thezhilali Union, Kozhikode (AIR 1978 SC 1410) = [(1978) 4 SCC 2571 the Indian Supreme Court laid the test for determining the workmen employed by the independent contractor to work in employer's factory . The said issue relates to hiring workmen through contrac tors by an industry manufacturing ropes. The Supreme Court pointed out to the admitted fact that the work done by the contract labour was an integral part of the industry concerned and the workmen were broadly under the control of the Management. The relevant para therefrom reads as under: The true test may, with brevity , be indicated once again. Where a worker or group of workers labours to produce goods or services and these goods or services are for the business of another , that other is, in fact, the employer .
He has economic control over the workers' subsistence, skill and continued employment. If he, for any reason, hokes off, the worker is, virtually , laid off. The presence of intermediate contractors with whom alone the workers have immediate or direct relationship ex contract is of no consequence when, on lifting the veil or looking at the conspectus of factors governing employment, we discern the naked truth, though draped in different perfect paper arrangement, that the real employer is the Management, not the immediate contractor . Myriad devices, half-hidden in fold after fold of legal form depending on the degree of concealment needed, the type of industry , the local conditions and the like, may be resorted to when labour legislation casts welfare obligations on the real employer , based on Articles 38, 39, 42, 43 and 43-A of the Constitution. The Court must be astute to avoid mischief and achieve the purpose of the law and not be misled by the maya of legal appearances."
In the case of Catering Cleaners of Southern Railway v. Union of India (AIR 1987 SCC 777) = [(1987) 1 SCC 700], on the issue of contract labour engaged for cleaning catering establishments and pantry cars in Southern Railway , the Indian Supreme Court pointed out that the work of cleaning catering establishments and pantry cars is necessary and incidental to the industry or the business of the Southern Railway; the employment was of perennial nature and that the work required employment of sufficient number of whole-time workmen. It was directed that those workmen, who were previously employed by the contractor on the same wages and conditions of work as were applicable to those engaged in similar work in Western Railway , be absorbed without waiting for the decision of the Central Government. In the case of Sankar Mukherjee v. Union of India (AIR 1990 SC 532) = 1(1990) (Supp)
SCC 668J, the Indian Supreme Court considered the notification by the Government of West Bengal prohibiting the employment of contract labour in various departments including the job of loading and unloading of bricks from the wagons and trucks in Brick Department. The Court pointed out that the bricks handled by the Brick Department were used in furnaces of the company as refractory and incidental to the industry carried on by the company . Even though the petitioners therein were not doing the job of stacking the bricks, there was no denial or any averment or material to show that the job of loading and unloading of bricks was not incidental or alike to the stacking of the bricks; on the other hand, the workers performing those jobs which were of perennial nature, were to be treated alike. The workers doing the job of loading and unloading from the wagons and trucks in the Brick Department are to be treated on par with those who were doing the job of cleaning and stacking in the said Department. There was no reason as to why others doing the same job should be treated differently . In the case of Indian Overseas Bank v.
I.O.B. Staff Canteen Workers' Union (AIR 2000 SC 1508) = 1(2000) 4 SCC 2451 the Court held that no single or substantive test could be confined or concretized as a fixed formula of universal application in all class or category of cases. Although some common standards could be devised, the mere presence of one or more or their absence of the same cannot, by itself, be held to be decisive of the whole issue, since every case has to be decided on the peculiar aspects of a particular case. That being the position, in order to safeguard the welfare of the workmen, the veil may have to be pierced to get at the realities. In the case of Steel Authority of India Ltd. v. Union of India (AIR 2001 SC 3527) the Court held that even in case of contract labour , there can be adjudication as to the regularization of the employment by the Industrial Court/T ribunal. If the contract is found to be not genuine, but a mere camouflage, the so called contract labour will have to be treated as employee of the principal employer , who shall be directed to regularize the services of the contract labour in the establish ment concerned. In the case of Mishra Dhatu Nigam Ltd. v. M. Venkataiah (AIR 2003 SC 3124) = [(2003) 7 SCC 488] the Indian Supreme Court held that where in discharge of a statutory obligation of maintaining a canteen in an establishment the principal employer availed the services of a contractor , the contract labour would indeed be the employees of the principal employer and that such cases do not . relate to or depend upon the abolition of contract labour . In the case of Ram Singh v. Union Territory , Chandigarh (AIR 2004 SC 969) = [(2004) 1 SCC 126] the Court reiterated that in determining the relationship of employer and employee, even though 'control' test is an important test, it is not the sole test. It was further observed that it is necessary to take a multiple pragmatic approach weighing up all the factors for and against the employment instead of going by the sole test of contro l. An "integration" test is one of the relevant tests. It is applied by examining whether the person was fully integrated into the employer's concern or remained apart from and independent of it. The other factors which may be relev ant are, who has the power .to select and dismiss, to pay remuneration , deduct insurance contributions, organize the work, supply tools and materials and what are the "mutual obligations" between them. The. Court further held that the mere fact of formal employment by an independent contractor will not relieve the master of liability where the servant is, in fact, in his employment. In that event, it may be held that an independent contractor is created or is operating as a subterfuge and the employee will be regarded as the servant of the principal employer . In the case of Workmen of Nilgiri Coop.
Mkt. Society Ltd. v. State of T.N. (AIR 2004 SC 1639) = [(2004) 3 SCC 514] after. referring to the case of Ram Singh (supra) the Court reiterated that the test of organization or of control and supervision are the only decisive test and different tests have to be applied in different facts and circumstances; ultimately all relevant facts have to be integrated in considering the said question. Relevant portion therefrom is reproduced herein below:-- "37. The control test and the organization test, therefore, are not the only factors which can be said to be decisive.
With a view to elicit the answer , the Court is required to consider several factors which would have a bearing on the result:--
(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."
16. The crux of the above case-law is that:--
(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 .
8. In unreported judgment National Bank of Pakistan Vs. Talimand and others dated 24.5.2016 passed in Civil Appeal No, 1549 of 2014, the august Supreme Court of Pakistan has laid down that:-- "In the instant case, as noted earlier , the respondents have been serving the appellant-bank in various junior/menial capacities since several years. They have been recommended to be, regularized, and the appellant- bank has not alleged any misconduct or inefficiency on their part. Their regularization is, however , being resisted on the pretext that, though they have been working with the appellant-bank and for its benefits, but their salaries are being paid by the contractor/service provider . The above arrangement, in the fact and circumstances of the case, is merely a vehicle of oppression and exploitation of the poor hapless employees, who on account of widespread unemployment and economic and social disparities, are for their bare survival, compelled to accept whatever arrangement! farcade as offered by the employer to deny them their due and lawful right, as guaranteed in the Constitution, which is to say the least is reprehensible. Such nature of practice, as noted earlier , had already been deprecated by this Court in the case of Ikram Bari (supra) and therefore following the dictum as laid down in the said case we would uphold the impugned judgment. The appeal is, therefore, dismissed with no orders as to costs."
9. In the present case too when some of the petitioners were working in the respondent bank prior to outsourcing their employment and they are performing similar functions and duties with those employees whose services have been regularized by this Court vide judgment dated 22.5.2014 and august Supreme Court of Pakistan in its unreported judgment dated 14.5.2016. W e are left with no option but to accept these petitions.
10. In view of what has been said above, these petitions are allowed and the Respondents bank is directed to regularize the services of the petitioners against the posts they are still working in the bank.