IJAZ ANWAR, J. Through this single judgment, we intend to decide the instant writ petition and Writ Petition bearing No.5239-P/2018 titled, "Aamir Sheraz and others Vs. Bank of Khyber through its Managing Director, Peshawar Cantt and others", since in both these cases, petitioners have claimed relief to the effect that, being victim of discrimination and injustice, they may please be regularized from the date of appointment with all back benefits, as per law on the principle of parity/equality, policy, in the light of precedents of the Apex Court protecting their fundamental rights, under the constitution and law.
2. Facts of the case are that petitioners being contract employees of the respondents/bank are working for the last 03 to 07 years; initially they were interviewed and then selected & appointed by the respondent/bank and thereafter were made to sign contract with third party; presently petitioners are working as Credit Assistant in Khud Kafalat Scheme and also performing other staff related works which is apparent from different office orders/notice; respondent/bank was time and again verbally and in written requested to regularize their services, but in vain; that in the year 2005 the august Supreme Court of Pakistan vide judgment reported in 2005 SCMR 100 regularized temporary employees of the National Bank of Pakistan who were also employed through contractor; that respondent/bank in the year 2011 registered two companies in order to convert them into temporary contract employees and made it mandatory for the employees to be employed in the respondent Bank through the above referred two companies just to avoid service protection to the contract workers; that respondent/bank issued a circular No. 01/18 on 27.6.2018 forcing the petitioners to resign from their existing companies in order to sign a new contract. Hence, in order to rectify the discrimination, illegal, unjust act and for regularization of their services, petitioners filed the instant writ petition.
3. Learned counsel for the petitioners argued that petitioners are having the prescribed qualification for their respective post, they were though appointed by the ASK Development (hereinafter to be referred as Contractors) albeit, they were performing core functions of bank. He referred to different office orders whereby petitioners were posted by the respondent/bank in different branches to carry out the functions of bank wherever their services were required. He further argued that merely outsourcing their employment would not change their status of employment, because they are performing functions within the affairs of Bank of Khyber (hereinafter to be referred as BoK) and as such they are for all intent and purposes are employees of the BoK, he placed reliance on the, 2015 PLC (CS) 1487, 2019 PLC (CS) 751, 2020 PLC (CS) Para- 70, 2005 SCMR 100, 2013 SCMR 1253 , 2015 SCMR 1257 , 2018 SCMR 1405 , 2018 SCMR 1281, 2018 SCMR 157, PLD 201 1 SC 22 , and 2007 PLC 472.
4. As against that learned counsel for respondents argued that outsourcing arrangements by the respondent/BOK is with the permission of the State Bank of Pakistan, to this effect he referred to guide lines on outsourcing arrangements. He further argued that petitioners are not employees of the bank, they were specifically appointed for Khud Kafalat Scheme, as such were never allowed to perform duties of general banking.
5. Arguments heard and record perused.
6. Bank of Khyber was established through the Bank of Khyber Act, 1991. Section 11 of the Act provides for composition of the Board; similarly, Section 24 of the Bank of Khyber Act, 1991, empowered the Board to make by laws not inconsistent with the Act and other matters enumerated therein. In terms of Section 34 the Board of Directors approved the rules namely , Bank of Khyber Resource Manual, 2009. The question of statutory status of the Bank of Khyber came up before this Court in W.P. No.2574-P/2016 in the case of "Haider Ali Vs. The Managing Director Bank of Khyber" and this Court decided the question of statutory status of the bank and the jurisdiction of this Court and held that constitutional petitions by the employees of the BoK is maintainable.
7. We have also examined the guide lines on outsourcing arrangements issued by the State Bank of Pakistan, Banking Policies and Regulation Department Karachi. In terms of Para-14 under the heading Restricted Activities, "there is specific restriction that the licensed institutions (Bank) are not allowed to outsource their core activities, functions and processes. Specifically they could not outsource risk management functions, internal audit functions, treasury functions, internal controlled functions and decision making including determining compliance with Know Your Customer (KYC) requirements for opening deposit account and credit functions."
8. Keeping in view the above, guide lines, we have to see as to whether petitioners were in fact assigned merely the duties of Khud Kafalat Scheme or they were also performing other internal banking duties. Admittedly , all the petitioners were issued appointments orders by the contractor on different dates starting from the year 2013 and onward, mostly they were appointed against the contract post of Credit Assistant/Cashier/Cash Sorter. The record annexed with this petition further suggests that petitioners were holding the prescribed qualifications required for their post. The record annexed with this petition further suggests that the petitioners were performing the duties of opening of accounts, online transfers, assigned targets for recovery of loan and achieving targets regarding deposit in the bank. The above facts got confirmation from the letters issued to some of the petitioners by the BoK for fulfilling the responsibilities of deposit targets and recovery of loans etc. Thus, the admitted documents available on the record clearly suggest that appointment of petitioners was not merely for Khud Kafalat Scheme rather BoK was utilizing their services wherever required. The august Supreme Court of Pakistan recently in the case of "Government of Khyber Pakhtunkhwa Vs Jawad Ali and others (2021 SCMR 185)" has approved such outsourcing through contractor where assignment of duties, performance of functions is controlled by the contractors, however, it was also held that when employees are hired by the private company for a temporary project, it will be distinguishable from cases of shame outsourcing.
9. This case is, however , distinguishable from the one reported as 2021 SCMR 185, because petitioners are performing core functions of the bank and they were got involved in each and every section of the bank. The banks issued their transfer orders to different banks wherever their services are required. In an identical case the august Supreme Court of Pakistan in the case of "M/S State Oil Company Ltd: Vs. Bakht Sadique and others (2018 SCMR 1 181)", has held as follow:- "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."
10. Similarly , the august Supreme Court of Pakistan in the case of "Fauji Fertilizer Company Ltd Vs. National Industrial Relations Commission", while commenting upon status of employment through contractor , observed as below:- " 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."
11. Recently the Division Bench of this Court in the case of "Sohail Ahmad Vs National Bank of Pakistan & others (2019 PLC (CS) Note-7)" while relying upon the judgment of the august Supreme Court of India in the case of "Nilgiri Coop. Mkt. Society Ltd: V. State of T.N (AIR 2004 SC 1639)" , referred to the test of organization or of control and supervision to be the decisive test for holding the status of an employ ee and has reproduced Para-37 from the said judgment being relevant in the matter , it is also reproduced for sake of convenience:- "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 illicit 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 job, e.g, whether it is professional or skilled work;
(g) nature of establishment;
(h) the right to reject. "
12. In an unreported judgment of the august Supreme Court of Pakistan in the case of "National Bank of Pakistan Vs Talimand and others" decided on 24.5.2016 in Civil Appeal No. 1549 of 2014, while discussing similar situation held as under:- "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 , been 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 helpless employees, who on account of widespread unemploymen t and economic and social disparities, are for their bare survival, compelled to accept whatever arrangement/faade as offered by the employ er 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, therefore, dismissed with no orders as to costs."
13. In the case of "Abdul Ghafoor and others Vs. Preside nt National Bank of Pakistan" in C.P. No.3724 of 2015 decided on 13.6.2017, the august Apex Court has held as under:- "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. "
14. Similarly , this Court in the case of "Kashif Salah-ud-Din and other Vs. National Bank of Pakistan (W.P.No.69-A/2014 decided on 25.5.201 4)" and "Sohail Ahmed & others Vs. National Bank of Pakistan (W.P.
No.428-A/2014 decided on 07.8.2017)" followed the earlier views of the Apex Court and held the Janitorial employees entitled to the regularization in National Bank of Pakistan service.
15. The objection taken by the learned counsel for the respondents that the outsourcing policy of the respondent bank has never been adjudged as illegal by any of the forum and that besides this policy is formulated by State Bank of Pakistan, such pretext is not sustainable. In fact it was probably the same policy and a practice in the National Bank, which this court as well as the apex court has considered it as explo itation of the employees serving the bank, because its aim is to deprive the employees of proper service structure and respectable status in the bank surely bank has ignored that because of the services of the employees they are earning profits and running the bank. The august Supreme Court of Pakistan in case reported as 2009 SCMR 1 held that "if a tribunal or this Court decides a point of law relating to the terms and conditions of a civil servant who litigated, and there were other civil servants, who may not have taken any legal proceedings, in such a case, the dictates of justice and rule of good governance demand that the benefit of the said decision be extended to other civil servants also, who may not be parties to that litigations instead of compelling them to approach the tribunal or any other legal forum."
16. In view of the above clear pronounce ments of the superior courts and also of the fact that the petitioners are performing core functions of banking in the respondent/bank, as such are held to be employees of the bank for all intent and purposes, and are entitled to similar service protection at par with their colleagues serving in the Bank on regular basis.
17. In the light of the above, this writ petition and the connected writ petition are allowed and petitioners are declared as employees of the respondent/bank.