MUHAMMAD SAJID MEHMOOD SETHI, J. This consolidated judgment shall decide instant petition along with connected petitions detailed in the "Schedule", appended herewith, as common questions of law and facts are involved in these cases.
2. Through instant petition, petitioners have assailed vires of consolidated orders dated 17.11.2016 & 25.05.2018, passed by learned Member, National Industrial Relations Commission ("NIRC"), Islamabad and Full Bench of NIRC at Lahore, respectively, whereby grievance petitions filed by respondents for regularization of their services, were concurrently allowed.
3. The facts, narrated in instant petition, are that petitioner M/s Instaclear (Pvt.) Ltd. is a leading service provider of Pakistan working since early 1990s for different companies, registered with Income Tax, EOBI, Social Security and other government institutions since 1995/96. Since the start of project / construction of Pak Arab Refinery Limited ("PARCO") in 1995 at Mahmood Kot, Muzaffargarh, petitioner-company entered into various service contracts with PARCO to provide various services to the project as well as at their housing / residential complex. Respondent No.1 claiming to be employed as Personal Assistant (Admin.) since 01.09.1995 in PARCO against a permanent post and continued to serve as such for a long time, requested the company to regularize his services, but in vain. Lastly, after serving grievance notice on 22.04.2008, respondent No.1 filed grievance petition before learned Punjab Labour Court No.9, Multan ("Labour Court"), with the prayer that PARCO be directed to regularize / confirm him as a permanent workman from the date of his employment with consequential benefits, which was contested by the PARCO, who denied the relationship of employer and employee between the parties. Petitioners also contested the aforesaid petition by contending that respondent No.1 is their employee as Security Guard who joined duty w.e.f. 01.10.2004 on temporary basis. After promulgation of Industrial Relations Act, 2012 ("IRA, 2012"), the matter was remitted to Single Bench of NIRC, who vide consolidated order dated 17.11.2016 (passed in 05-cases) was pleased to order PARCO to regularize services of respondents from the date of their appointment within a period of 30-days. Being dissatisfied, petitioners filed appeals before learned Full Bench of NIRC at Lahore, which were dismissed vide order dated 25.05.2018. Hence, these petitions.
During course of hearing of these cases, evident from order dated 14.09.2021, learned counsel for petitioner-companies emphasized to create different categories of cases and proposed as under:-
(i) There are petitions where respondents are either Security Guards or Fire Fighters, who are excluded from the definition of workman which fact has not been appreciated by fora below and against which both M/s. M/s. Instaclear (Pvt.) Ltd. as well as PARCO have filed the writ petitions;
(ii) There are set of cases in which the other workmen inter alia, Personal Assistants, Electricians, Plumbers, etc., who claim to be employees of PARCO and are allowed regularization accordingly although they were in regular employment of M/s. Instaclear (Pvt.) Ltd.;
(iii) The last category relates to such persons who do not fall in the definition of workman being Supervisors in W.P. No.10148 / 2018.
Whereas one of learned counsel for respondents in W.P.Nos.10263, 10282, 10157, 10153, 10259, 10286, 10246, 10297, 10299, 10314, 10254, 10284, 10301, 10312, 10142, 10145 and 10160 of 2018 claimed as under:- Mr. Muhammad Umair Baloch, Advocate representing the respondents in W.P. No.10263 / 2018 along with other connected writ petitions while relying upon the dictum laid down in Messrs State Oil Company Limited v. Bakht Siddique and others (2018 SCMR 1181) submits that they were working for PARCO and hence, they have been rightfully regularized; and BRIEF FACTS
4. Brief visualization of factual matrix of these cases is that posts held by respondents in instant as well as connected cases are inter-alia Personal Assistant (Admin), Water Tank Gauger, Helper (Lab), Computer Operator, Plumber, Driver, Room Attendant, Instrument Mechanic, Plant Electrician, Fire Tender Operator, Electrician, Plant Attendant, Helper P L Maintenance, AC Mechanic, Office Attendant, Cook, Store Clerk, Naib Qasid, Chowkidar, Supervisor, Fire Fighter, Security Guard etc., all alleged to be employees of PARCO. In some cases, M/s Instaclear Pvt. Ltd. and in others PARCO has challenged the concurrent decisions of learned Single Bench and Full Bench of NIRC. The stance of M/s Instaclear Pvt. Ltd. and PARCO ("Petitioner-Companies") is same, the dates of appointment of private respondents are different, dates of service of grievance notice and filing of grievance petitions are alike and dates of decisions of learned fora below are similar in all these cases.
5. Learned counsel for petitioner-companies submits that respondents have never been employees of PARCO rather employed in M/s Instaclear against a project completed in 2000 and in some other small projects ended in 2007/2008. He adds that after completion of projects, respondents were transferred to other work sites of petitioner-company in 2009 but they did not join new place of posting, thus, deserted from service; hence they have not been the employees of M/s Instaclear since 2009. Further submits that learned Member NIRC mentioned this aspect in the decision, however no findings were rendered. Argues that grievance petitions should have been regulated under the Industrial Relations Ordinance, 2002. Contends that learned Courts below have not rightly appreciated the factual as well as legal planes of the matter and impugned decisions are based on misreading and non-reading of evidence brought on record. Next submits that respondents miserably failed to prove that they were employed in PARCO and evidence tendered by M/s Instaclear has not been taken into consideration while passing the impugned decisions.
Maintains that as per Section 1(4)(g) of IRO, 2002, learned forums below have got no jurisdiction to entertain and dilate upon the grievance petitions of petitioners holding the posts of Security Guard or Fire Fighter. Further submits that without passing reinstatement order of respondents, learned forums could not have passed order for regularizing their services, thus, impugned decisions are against the dictum of law laid down by the Hon'ble Apex Court. He further contends that reliance of learned forums below on the judgment reported as Pir Imran Sajid & others v. Managing Director / General Manager Telephone Industries of Pakistan and others (PLJ 2015 SC 933) is misconceived because aforesaid judgment is based upon quite distinguishable facts and circumstances. He also submits that in some cases oral as well as documentary evidence of the parties has not been signed / exhibited by learned Member NIRC. In the end, he submits that impugned decisions are unsustainable in the eye of law. He has relied upon Mian Munir Ahmad v.
The State (1985 SCMR 257), Farid Ahmad v. Pakistan Burmah-Shell Ltd. and others (1987 SCMR 1463), Muhammad Sadiq v. Punjab Labour Court No.1, Lahore and another (PLD 1988 Supreme Court 633), Sahibzada K.A.K. Afridi v. Pakistan International Airlines Corporation and another (1992 SCMR 1379), Pak Arab Refinery Limited v. Muhammad Rashid (1999 SCMR 373), Ikram Bari and 524 others v. National Bank of Pakistan through President and another (2005 SCMR 100), Messrs Dawood Cotton Mills Ltd. v. Sindh Labour Appellate Tribunal and others (2006 SCMR 630), Chairman, State Life Insurance Corporation and others v. Humayun Irfan and 2 others (2010 SCMR 1495), Ch. Ali Hassan v. Province of the Punjab and others (2011 SCMR 1160), Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others (PLD 2011 Supreme Court 132), Mehmood Hussain and another v. Presiding Officer, Punjab Labour Court and others (2012 SCMR 1539), Fauji Fertilizer Company Ltd. through Factory Manager v. National Industrial Relations Commission through Chairman and others (2013 SCMR 1253), Shahid Perwaiz v.
Messrs Galaxo Klin Pakistan Ltd. and others (2016 SCMR 30), Wasal Khan and others v. Dr. Niaz Ali Khan (2016 SCMR 40), M.C.B. Bank Limited, Karachi v. Abdul Waheed Abro and others (2016 SCMR 108), Muhammad Yaqoob v. Mst. Sardaran Bibi and others (PLD 2020 Supreme Court 338), Government of Pakistan, Revenue Division, Federal Board of Revenue through Chairman, Islamabad and another v. Nawaz Ali Sheikh (2020 SCMR 656), Messrs Textile Corporation of Pakistan Ltd., Hyderabad v. Shaukat Ali and 9 others (1970 PLC 386), The Area Manager, Merck Sharp and Dohme of Pakistan Ltd. Dacca and another v. The Chairman, First Labour Court, East Pakistan, Dacca and another (1971 PLC 406), Workers v. The Management, Sultan Textile Mills Ltd., Sargodha through the Managing Director and another (1973 PLC 175), Riazul Hassan v.
Hidayat Ullah (PLD 1975 Lahore 841), Haji Wali Muhammad and 129 others v. Power-Looms Workers' Union and 4 others (1976 PLC 834), Taj Din and 44 others v. Punjab Labour Court No.3, Lyallpur and another (PLD 1976 Lahore 1169), Souvenir Tobacco Co. Ltd. v. Najammuddin and others (PLD 1977 Karachi 250), B.S. Magnetic (Private) Limited, Karachi v. Sindh Labour Court No.5 and 2 others (1997 PLC 556), Nasir Jamal and 23 others v. PAK Suzuki Motor Company Limited and 3 others (2000 PLC 52), Messrs Hinopak Motors Limited v. Chairman, Sindh Labour Appellate Tribunal and others (2000 PLC 89), Seagull Exports (Pvt.) Ltd. v. Sindh Labour Appellate Tribunal and others (2002 PLC 212), M/s. Dawood Cotton Mills Limited v. Sindh Labour Appellate Tribunal & others (SBLR 2004 Sindh 614), Fauji Fertilizer Company Ltd. v. Sindh Labour Appellate Tribunal & others (SBLR 2005 Sindh 1121), Abdul Qadir Khan and 12 others v. Managing Director, Millat Tractors Private Limited and another (2005 PLC 438), Muhammad Saleem Nagani v. M.C.B. Ltd. and others (2006 PLC 304), Fauji Sugar Mills through General Manager v.
Mehmood Ahmed (2006 PLC 630), Glaxo Smith Kline Pakistan Limited through Group Industrial Relations Manager / Notified Factory Manager v. Sindh Labour Appellate Tribunal Sindh and 2 others (2013 PLC 183), Muhammad Hashim and 30 others v. General Manager, Human Resources, Sui Southern Gas Co. Ltd. and 3 others [2015 PLC (C.S.) 195], M.S. Ghani Gases Limited v. Federation of Pakistan and 2 others (PLD 2016 Lahore 207), Dharangadhra Chemical Works Ltd. v. State of Saurashtra and others (AIR 1957 S.C. 264), Hussainbhai v. The Alath Factory Tezhilali Union and others (AIR 1978 Supreme Court 1410) and Steel Authority of India Ltd. v. National Union Water Front Workers (AIR 2001 Supreme Court 3527).
6. Contrarily, learned counsel for respondents defends the impugned decisions by contending that learned counsel for petitioners has failed to pinpoint any illegality or legal infirmity therein. In support of his submissions, he has referred to Executive Engineer, Central Civil Division, Pak.
P.W.D. Quetta v. Abdul Aziz and others (PLD 1996 Supreme Court 610), Punjab Seed Corporation and 2 others v. Punjab Labour Appellate Tribunal and 2 others (1996 SCMR 1947), Capital Development Authority through Chairman and another v. Mrs. Shaheen Farooq and another (2007 SCMR 1328), Secretary (Schools), Government of Punjab, Education Department and others v. Yasmeen Bano (2010 SCMR 739), Rizwan Javed and others v. Secretary Agriculture Livestock and others (2016 SCMR 1443), Pakistan Railways through Chairman, Islamabad and another v. Sajid Hussain and others (2020 SCMR 1664), Syed Saqlain v.
Pakistan Telecommunication Company Limited through Chairman and 2 others [2008 PLC (C.S.)
193] and Administrator, Town Committee, WARBURTON and another v. Muhammad Aslam (2010 PLC 430), Messrs Allied Precision Engineering Products (Pvt.) Ltd. through Notified Factory Manager and others v. Jhanda Khan Maree and others (2011 PLC 286), Tehsil Municipal Administration through Administrator and others v. Abdul Sattar and others (2016 PLC 424), Pakistan Telecommunication Company Limited through Manager and 2 others v. Iftikhar ahmad Khan and 2 others (2016 PLC 428), Pakistan Telecommunication Company Limited
(PTCL) through General Manager and 2 others v. Azeem Kibria Bhatti and 2 others (2016 PLC 491),
7. I have heard learned counsel for the parties at considerable length and perused the available record with their able assistance.
8. Record shows that the respondents claimed to have served the PARCO against permanent posts continuously for about 15-22 years, after successfully completing their probationary period satisfactorily, without any break, thus, attained the status of permanent workmen within the contemplation of Para 1(b) to the Schedule of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. M/s Instaclear and PARCO contested the grievance petitions by filing replies wherein PARCO altogether denied any relationship of employer and employee, whereas M/s Instaclear admitted to have hired services of respondents but on temporary basis, however asserted to have ousted the respondents in the year 2009.
9. Learned Single Member of NIRC afforded ample opportunity to the parties to adduce their evidence, which they duly availed. In the instant case, perusal of impugned order passed by learned Single Member of NIRC, in 05-cases, clearly deploys the facts in detail, respective contentions, names of witnesses and detail of documents tendered by the parties in each case separately. PARCO, by denying relationship of employer and employee specifically asserted in the written reply to the grievance petition that it entered into agreement for execution of work with M/s Instaclear on 18.04.2007, wherein work force was employed by M/s Instaclear. This version stood negated by the documentary evidence tendered by respondents duly exhibited and elaborately discussed by learned forums below clearly showing that respondents were employed and had been working in PARCO much prior to execution of aforesaid agreement with M/s Instaclear. In this scenario, respondents, by no stretch of imagination, could be the employees of M/s Instaclear as it was not alleged that there was any agreement of provision of staff between PARCO and M/s Instaclear prior to agreement dated 18.04.2007.
In these circumstances, argument of M/s Instaclear that respondents were ousted from the employment on 10.03.2009 and this fact was not thrashed out by learned Member NIRC becomes baseless. This argument is also not tenable as the stance of respondents was that they were verbally banned to perform duty and enter into premises of PARCO in the year 2008, which constrained them to approach the Labour Court and the Court vide order dated 23.04.2008 specifically ordered to maintain status quo with regard to service rights of respondents.
10. Classification of workmen, which includes permanent workman, is provided in Paragraph 1(a) of the Schedule to the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and Clause (b) of Paragraph 1 provides that 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.
Perusal of record reveals that respondents have been working with PARCO against different posts since many years and in some cases employment is expanding on decades. It is not disputed that they satisfactorily and successfully completed the prescribed probationary period. There is no allegation against them regarding misconduct during employment, involvement in involuntary closure of the employer-company or illegal lock-out or strike. In these circumstances, there is no apparent legal or factual justification for not declaring them as permanent workmen within the contemplation of afore-referred provision of law. It has not been denied that respondents were performing their duties with due diligence to the satisfaction of the authorities.
11. Needless to say that even a work charge, casual and daily-wages worker, on account of long continuation in service earns a presumption of regular need of his services. Thus, denial to regularize their services is not permissible under the law. Reliance can safely be placed on Punjab Seed Corporation and 2 others v. Punjab Labour Appellate Tribunal and 2 others (1995 PLC 539).
The Hon'ble Apex Court has deprecated the practice of keeping employees on temporary basis for long periods of time without confirming or regularizing their services. Reliance is placed upon Executive Engineer, Central Civil Division, Pak. P.W.D. Quetta v. Abdul Aziz and others (PLD 1996 Supreme Court 610) and Board of Intermediate and Secondary Education, Faisalabad through Chairman and others v. Tanveer Sajid and others (2018 SCMR 1405).
In judgment reported as Abdul Ghafoor and others v. The President National Bank of Pakistan and others (2018 SCMR 157), the Hon'ble Supreme Court has rendered following observations:- "6. Similarly in the case of Ikram Bari and others v. National Bank of Pakistan (2005 SCMR 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."
12. Even otherwise, the Apex Court of the country, in a series of judgments, has ordered regularization of services of the workers appointed on work charge basis or on contracts by observing that period of employment is not sole factor to declare as to whether a workman is permanent or not, but the nature of the work is the determining factor in this regard. In these cases, the posts held by the respondents are permanent in nature and cannot be held as casual or temporary from any angle as these posts are necessary for working of PARCO. Reliance is placed on Executive Engineer, Central Civil Division, Pak. P.W.D. Quetta v. Abdul Aziz and others (PLD 1996 Supreme Court 610), Managing Director, Sui Southern Gas Company Ltd., Karachi v.
Ghulam Abbas and others (PLD 2003 Supreme Court 724), Tehsil Municipal Administration v.
Muhammad Amir (2009 PLC 273), Punjab Seed Corporation v. Punjab Labour Appellate Tribunal (1996 SCMR 1947), Province of Punjab through Secretary Communication and Works Department and others v. Ahmad Hussain (2013 SCMR 1547), Board of Intermediate and Secondary Education, DG Khan and another v. Muhammad Altaf and others (2018 SCMR 325) and Punjab Seed Corporation through Managing Director and another v. Labour Court No.9, Multan through Presiding Officer and 2 others (2015 PLC 232).
13. Petitioners' objection qua non-signing of certain evidence of the parties or missing of some evidence from the record of the learned Single Member of NIRC are not helpful for PARCO in the light of the observations recorded supra. Moreover, it is clear from the record that grievance of M/s Instaclear for exclusion of documents exhibited during statement of PW-1, was redressed with the consensus of the parties, whereby hand written Exh.P-9 to Exh.P-12 were excluded from the evidence, vide order dated 30.05.2016, passed by learned Member NIRC. Record also does not suggest that thereafter petitioners agitated this matter either before the learned Single Member or Full Bench of NIRC. Needless to observe that the function of the Courts is to do substantial justice and not to knock out or non-suit the parties on technicalities. It would not be out of context to quote here that Law is made for man and not man for the law. Under Article 3 of the Constitution of the Islamic Republic of Pakistan, 1973, it is the responsibility of 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. Similarly, Article 37 of the Constitution makes it obligatory upon the State to ensure equitable and just rights between employer and employees and provide for all citizens, within the available resources of the country facilities of work and adequate livelihood with reasonable rest and leisure. Reliance is placed upon President, Zarai Taraqiati Bank Limited, Head Office, Islamabad v. Kishwar Khan and others (2022 SCMR 1598).
14. The stance of respondents is that they have been treated with discrimination as similarly placed employees have been regularized by PARCO. When confronted, learned counsel for PARCO could not deny this fact rather stated that it was prerogative of PARCO. Needless to say that to claim such a right as has been granted to similarly placed other persons, is the fundamental right of respondents and our Constitution extends protection to their such right and as such, they cannot be treated differently. The scale of justice has to be balanced on the same pattern, which is the mandate of Article 25 of the Constitution. The law of the land in this regard has become well- established that equal treatment of all similarly placed must be ensured in order to eliminate frustration in the society. Under Article 4 of the Constitution, respondents are entitled to the equality before law and same relief / treatment as has been given to the other similarly placed employees.
Reference in this regard can be made to Engineer Naraindas and another v. Federation of Pakistan and others (2002 SCMR 82), Tehsil Municipal Administration, Rahimyar Khan and others v. Hanif Masih and others (2008 SCMR 1058), Ejaz Akbar Kasi and others v. Ministry of Information and Broadcasting and others (PLD 2011 Supreme Court 22) and Quetta Development Authority through Director General v. Abdul Basit and others (2021 SCMR 1313).
15. The category (i) cases, supra relate to respondents working as Security Guard and Fire Fighter.
Learned counsel for petitioners submitted that as per its Article 4(g), IRO, 2002 did not apply to the Security or Fire Service Staff and same was the situation in the repealing Act i.e. the Industrial Relations Act, 2008. Regarding class of respondent(s) holding the post of Supervisor [category (iii), supra], learned counsel for petitioners argued that in accordance with Section 2(x)(g), "Supervisor" was included in the definition of employer / Managerial Staff and ousted from the definition of workman as provided under Section 2(xxx) of IRO, 2002. Petitioners contended that in these circumstances, grievance petitions filed under the provisions of the Industrial Relations Ordinance, 2002, by the respondents holding the posts of Security Guard, Fire Fighter and Supervisor, were not maintainable, thus, impugned decisions to their extent are nullity.
16. Suffice it to say that factual plane of the argument is correct; however its legal perspective is misconceived. The Industrial Relations Act, 2012 was enacted on 14.03.2012, pursuant whereto the matters / grievance petitions pending before learned Labour Court were transferred to NIRC, on the application filed by PARCO. The exclusion of employees relating to Security and Fire Service Staff, as was present in Article 4(g) of IRO, 2002, was done away with by the Section 3 of the IRA, 2012. For reference both the provisions are reproduced as under: Section 4 of IRO, 2002
(4) It shall apply to all persons employed in any establishment or group of establishments or industry except those employed (a) in the Police or any of the Defence Services of Pakistan; (b) in any installations or services exclusively connected with the Armed Forces of Pakistan including Ministry of Defence lines of the Railways; (c) by the Pakistan Security Printing Corporation or the Security Papers Limited or Pakistan Mint; (d) in the administration of the State other than those employed as workmen by the Railways, Post, Telegraph and Telephone Departments; (e) by an establishment or institution maintained for the treatment or care of sick, infirm, destitute and mentally unfit persons excluding those run on commercial basis; (f) by an institution established for payment of employees' old-age pensions or for workers' welfare; (g) as a member of the Watch and Ward, Security or Fire Service Staff of an oil refinery or of an establishment engaged in the production, transmission or distribution of natural gas or liquefied petroleum gas or petroleum products or of a seaport or an airport: Section 3 of IRA, 2012
(3) It shall apply to all persons employed in any establishment or industry, in the Islamabad Capital Territory or carrying on business in more than one province, but shall not apply to any person employed,--
(a) in the Police or any of the Defence Services of Pakistan or any services or installations exclusively connected with the Armed Forces of Pakistan including an Ordnance Factory maintained by the Federal Government;
(b) in the administration of the State other than those employed as workmen;
(c) as a member of the Security Staff of the Pakistan International Airlines Corporation or drawing wages in pay group not lower than Group V in the establishment of that Corporation as the Federal Government may, in the public interest or in the interest of security of the Airlines, by notification in the official Gazette, specify in this behalf;
(d) by the Pakistan Security Printing Corporation or the Security Papers Limited; and (e) by an establishment or institution for the treatment or care of sick, infirm, destitute or mentally unfit persons excluding those run on commercial basis."
Furthermore, the post of "Supervisor" was also included in the definition of "workman" as is apparent from the bare reading of Section 2(xxxiii) of IRA, 2012, which reads as under:- (xxxiii) "worker" and "workman" means person not falling within the definition of employer who is employed (including employm ent as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment are express or implied, and, for the purpose of any proceedings under this Act in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off, or removal has led to that dispute but does not include any person who is employed mainly in managerial or administrative capacity."
It is pellucid from the above that the employees holding the posts of Security Guard, Fire Fighter and Supervisor were governed by the IRA, 2012 and could agitate their grievances under said Act.
Section 88 of IRA, 2012, is regarding Repeal and savings and its clause (b) provides that anything done, rules made, notification or order issued, officer appointed, Court constituted, notice given, proceedings commenced or other actions taken under the repealed Act shall be deemed to have been done, made, issued, appointed, constituted, given, commenced or taken, as the case may be, under the corresponding provisions of this Act. Thus, grievance petitions, though filed under the provisions of IRO, 2002, would be legally maintainable and lawfully regulated under the IRA, 2002. It is well-settled principle of interpretation that statutes being remedial in nature can operate with retrospective effect and are applicable to the proceedings pending at the time when the Act came into force. However, remedial legislation would not apply to cases which had been finally determined or proceedings which had attained finality. Moreover, there is no express provision in IRA, 2012, which is prohibiting that said Act should not be applied to pending proceedings.
Reference can be made to Commissioner of Sales Tax (West), Karachi v. Messrs Kruddsons Ltd (PLD 1974 Supreme Court 180), Syed Wajid Ali and 4 others v. Globe Automobiles Ltd. and another (1993 SCMR 819), The Collector of Sales Tax and Central Excise, LTU, Karachi v. Messrs Pak Suzuki Co. Ltd., Karachi (2016 PTD 867), Dawood Cotton Mills v. Commissioner of Income Tax (2000 PTD 285), Reckitt & Colman of Pakistan Limited, Karachi and others v. The Commissioner, Sindh Employees' Social Security Institution, Awan-e-Mehnatkash, Gulshan-e-Iqbal, Karachi and others (2001 PLC 245), Commissioner of Income Tax v. J. D. Sugar Mills Ltd. (2009 PTD 481) and Commissioner Inland Revenue v. Muhammad Aslam (2019 PTD 381).
In the Case of Messrs Pak Suzuki Co. Ltd., Karachi, supra, the Hon'ble Apex Court has observed as under:- "11. Remedial and Curative enactments have repeatedly come up for interpretation before this Court. In the case of Divisional Superintendent, PWR, Karachi, and others v. Bashir Ahmad, and others (PLD 1973 SC 589), it was held as under:-- "... And it is well-established principle of interpretation that remedial statute should be construed in a manner so as to advance the remedy and suppress the mischief or else it would frustrate the legislative intendment."
12. In the judgment reported as Commissioner of Sales Tax (West), Karachi v. Messrs Kruddsons Ltd. (PLD 1974 SC 180), it was held as under:- "It is important to point out that in the precedent case on the day when the appellant filed in this Court his petition for special leave by virtue of the law earlier laid down by this Court in Bardul Haque Khan's case, which was correctly applied by the High Court, the appellant in that case stood disqualified to contest the election and having been elected, to retain his seat in the Provincial Assembly. Nevertheless, because of the repealing Act which was given retrospective operation, the appellant was held to be entitled to take advantage of the removal of the bar, relieved of his disability ex post facto and declared to have been validly elected. It was observed in that case that there could be no doubt that it applied to the proceedings pending at the time when the Act came into force and this Court had no hesitation to grant the appellant's interest in accordance with law as it existed at the time of the hearing of the appeal, without discussing the law as it existed at time when the High Court had seizin of the case. It was further observed that once the appeal had been admitted against the Order of the High Court, the matter became sub judice again and thereafter this Court had the seizin of the whole case. On this view of the matter, therefore, this Court took into account and gave effect to the repealing Act, notwithstanding the fact that the judgment of the High Court was unassailable according to law as it then stood. In taking the above view this Court relied upon its own two previous judgments viz. The Province of East Pakistan v. Muhammad Mehdi Ali Khan and others (1) and Election Commissioner v. Sajjad Ali Khan (2) and also upon the Privy Council case in Mukharji v. Ram Narian (3). In the Privy Council case, effect was given to an Act passed during the pendency of the appeal which deprived the appellant of the right which he had sought to enforce by filing an appeal and the Judicial Committee found no difficulty in dismissing the appeal because of the change in law."
In the case of Commissioner of Income Tax v. Shahnawaz Ltd. and others (1993 SCMR 73), it was observed as follows:- "The conclusion arrived at by the High Court on this question was expressed in the following words: "In our view, as the amending provision under consideration had been inserted in subsection (6) of section 18-A to remedy a wrong that was being done to the assessee, and the amending provision does not affect any vested right or create any new obligations, the amending provision is to be given retrospective operation for extending benefit to the affected parties in pending cases, to give effect to the intent of the legislature. As observed earlier, a wrong was being done to the assesses by providing for an indefinite period during which they were made liable for payment of additional tax at the rate of 2% per mensem and this wrong was sought to be remedied by the remedial and curative amendment brought about by the Finance Act, 1973. If the intention of the Legislature had been that this remedy should be available only in respect of assessment for the year 1973-74 and subsequent years, the legislature would have used appropriate words to express such intention. No such appropriate words are mentioned in the amending provision. There is no reason why the remedial provision of the amending law should not be applied to pending proceedings. In fact, this appears to be the intent of legislature."
While applying its dictum, the High Court, however, felt that the retrospective operation visualized by the instant amendment could extend only to such "cases which were pending at the time the amending law was enacted i.e. cases which had not been finally determined or proceedings which had not attained finality. The retrospective effect of the amending law would, therefore, apply only to those cases where assessm ent had not been made by the I.T.Os. or where an appeal was pending before the Tribunal or a reference was sub judice before the High Court, at the time the amending law was enacted. The cases which had finally been determined or had attained finality i.e. which were past and closed transactions, could not be reopened under amending legislation as there are no express words to that effect employed in the amending law.
13. It may be beneficial to refer to the case Rai Ram Taran Banerjee Bahadur and After Him Soshi Coomar Banerjee and another v. Mrs. D.J. Hill and others (AIR 1949 FC 135) of the Indian Supreme Court, wherein it was held as under:- "... The words of a remedial statute must be construed so far as they reasonably admit so as to secure that the relief contemplated by the statute shall not be denied to the persons intended to be relieved."
14. An overview of the above reveals the legal position that as a general rule, the Courts look with favour upon Remedial and Curative enactments, which are beneficial in nature and are interpreted in the context of the evil to be cured and the mischief to be remedied. Its provisions are to be liberally construed so as to advance the remedy and suppress the mischief and to ensure that the legislative intent, in this behalf, is not frustrated. Remedial and Curative statutes generally are retroactive in their application and apply to pending proceedings. However, in the absence of the express words to the contrary, the enactment should not ordinarily be construed to destroy vested rights, create new liabilities and obligations or disturb past and closed transactions. Needless to say that any interpretation, which offends against any Constitutional provision, would not be acceptable. With regard to the judgments passed prior to the enactment of a remedial or curative statutes, the finality thereof may be disturbed and destroyed during the pendency of appeal there-against, if such is the intention of the Legislator, which can be fairly gathered from the express words employed in the remedial or curative enactment."
[emphasis added] In the case of Reckitt & Colman of Pakistan Limited, Karachi supra, learned High Court of Sindh has observed as under:- As already held by the Hon'ble Supreme Court of Pakistan in the judgments cited above, the entire law contained in the Ordinance is beneficial in nature, therefore, the provision under consideration is also a beneficial and welfare legislation and thus, is required to be' interpreted liberally and in a way which has the effect of advancing the relief and suppressing the mischief. It is further held that the provisions contained in proviso are explanatory in nature and an explanation added by the legislature is deemed to be a note of caution indicating the real intention of the legislature and purpose of the enactment as well as removal of any doubt. Thus, the provision is clarificatory as well. The presumption is that the legislature while enacting any law or making any amendment is conscious of the circumstances prevailing at the time of enactment/ amendment/ substitution, and therefore, it is held that the legislature was aware that questions were being raised about the exclusion of a worker from the purview of the terms employee used in the Ordinance as defined in section 2(8)(f) and a view was prevailing which was prejudicial to the interest of worker and was not in consonance with the avowed object and purpose of legislation, therefore, an amendment was inserted whereby it was clearly provided without any ambiguity that once a person/worker is included within the definition of employee under the Ordinance, he shall continue to be so, notwithstanding crossing the ceiling of wages. Thus, the law curative in nature as well. Thus, the proviso to section 2(8)(f) of the Ordinance being a part of definition section is declaratory and at the same time it is beneficial, curative, remedial and welfare legislation and has to be given retroactive effect.
[emphasis added]
17. Consequently, taking a leaf out of the dictum laid down by the Hon'ble Apex Court in the case reported as Messrs State Oil Company Limited v. Bakht Siddique and others (2018 SCMR 1181), it is observed that regularization of respondents holding posts of Supervisor, Security Guard and Fire Fighter would take effect from the date of promulgation of IRA, 2012 i.e.14.03.2012, but for their pensionary and other long term benefits, they would be entitled from the date when they joined the service at PARCO. The impugned decisions stand clarified to this extent.
18. So far as argument of petitioners that respondents were employed by the contractor i.e. M/s Instaclear is concerned, suffice it to say that such practice of outsourcing the employment of posts of permanent nature has been deprecated by the Hon'ble Apex Court and even in such scenario ordered regularization of services of the employees. Reference can be made to the case of Bakht Siddique and others supra, and Abdul Ghafoor and others v. The President National Bank of Pakistan and others. In the former case, the august Supreme Court has observed as under:- "3...
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..."
The above dictum of law was also followed by learned Islamabad High Court in case reported as Shell Pakistan Limited v. Registrar Trade Unions and others (2020 PLC 57) and learned Peshawar High Court in case reported as Mudasir Nazar and 35 others v. Bank of Khyber through M.D.
Peshawar and 3 others [2022 PLC (C.S.) 668].
19. In category (ii) supra, M/s Instaclear claimed that certain respondents are in their permanent employment whereas their regularization has been ordered in PARCO by learned forums below. If the alleged factual position is correct then both M/s Instaclear and PARCO are directed to look into said cases individually in the light of observations of this Court in preceding paragraphs and pass appropriate orders keeping in view the best interests of the respondent-employees.
20. The cases referred to by Mr. Muhammad Umair Baloch, Advocate are not a separate category like noted above; however the respondents represented by said learned counsel shall be dealt with according to the observations contained in this judgment.
21. The concurrent decisions passed by learned fora below are based upon correct appreciation of evidence available on record. The relevant provisions of law have also rightly been applied. In order to invoke the constitutional jurisdiction of this Court, which is discretionary and equitable in nature, the petitioners were obliged to show any jurisdictional defect, legal infirmity or irregularity in both the decisions but learned counsel for petitioners remained unable to pinpoint any of above defects in the impugned decisions. The case law relied upon by the petitioners, being distinguishable, is not attracted to the present scenario.
22. In view of the above, these petitions, being devoid of any merit, are dismissed with no order as to costs.
SCHEDULE DETAIL OF CONNECTED CASES MENTIONED IN JUDGMENT DATED 13.12.2022 PASSED IN W.P. NO.10143 OF 2018 SR. NO. CASE NUMBERS
1. W.P. No.10139 of 2018
2. W.P. No.10140 of 2018
3. W.P. No.10142 of 2018
4. W.P. No.10144 of 2018
5. W.P. No.10145 of 2018
6. W.P. No.10149 of 2018
7. W.P. No.10150 of 2018
8. W.P. No.10151 of 2018
9. W.P. No.10152 of 2018
10. W.P. No.10154 of 2018
11. W.P. No.10155 of 2018
12. W.P. No.10156 of 2018
13. W.P. No.10158 of 2018
14. W.P. No.10159 of 2018
15. W.P. No.10160 of 2018
16. W.P. No.10161 of 2018
17. W.P. No.10162 of 2018
18. W.P. No.10163 of 2018
19. W.P. No.10164 of 2018
20. W.P. No.10165 of 2018
21. W.P. No.10166 of 2018
22. W.P. No.10215 of 2018
23. W.P. No.10242 of 2018
24. W.P. No.10243 of 2018
25. W.P. No.10245 of 2018
26. W.P. No.10246 of 2018
27. W.P. No.10248 of 2018
28. W.P. No.10250 of 2018
29. W.P. No.10251 of 2018
30. W.P. No.10253 of 2018
31. W.P. No.10254 of 2018
32. W.P. No.10255 of 2018
33. W.P. No.10257 of 2018
34. W.P. No.10258 of 2018
35. W.P. No.10259 of 2018
36. W.P. No.10261 of 2018
37. W.P. No.10262 of 2018
38. W.P. No.10263 of 2018
39. W.P. No.10264 of 2018 40 W.P. No.10266 of 2018
41. W.P. No.10267 of 2018
42. W.P. No.10270 of 2018
43. W.P. No.10272 of 2018
44. W.P. No.10273 of 2018
45. W.P. No.10275 of 2018
46. W.P. No.10279 of 2018
47. W.P. No.10280 of 2018
48. W.P. No.10282 of 2018
49. W.P. No.10284 of 2018
50. W.P. No.10286 of 2018
51. W.P. No.10287 of 2018
52. W.P. No.10290 of 2018
53. W.P. No.10291 of 2018
54. W.P. No.10293 of 2018
55. W.P. No.10294 of 2018
56. W.P. No.10295 of 2018
57. W.P. No.10297 of 2018
58. W.P. No.10299 of 2018
59. W.P. No.10300 of 2018
60. W.P. No.10301 of 2018
61. W.P. No.10302 of 2018
62. W.P. No.10306 of 2018
63. W.P. No.10307 of 2018
64. W.P. No.10309 of 2018
65. W.P. No.10310 of 2018
66. W.P. No.10311 of 2018
67. W.P. No.10312 of 2018
68. W.P. No.10314 of 2018
69. W.P. No.10315 of 2018
70. W.P. No.10316 of 2018
71. W.P. No.10318 of 2018