IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

Present:

Mr. Justice Muhammad Ali Mazhar

Mr. Justice Syed Hasan Azhar Rizvi

Civil Petitions No.278-K and 279-K OF 2022

Against the judgment dated 03.12.2021 passed by High Court
of Sindh, Karachi in CPs No.D-3081 and D-4120/2019

Waqar Ahmed & others (in CP 278-K/22)

Aaqib Ali and others (in CP 279-K/22)
…Petitioners
Versus

The Federation of Pakistan through Secretary

Cabinet Secretariat, Establishment Division,
Islamabad & others …Respondents

For the Petitioners: MaliK Naeem Iqbal, ASC

Mr. M. Iqbal Chaudhry, AOR

For the Federation: Mr. Khaliq Ahmed, DAG

For Respondent No. 3 Mr. Ahmed Pervaiz, ASC

(KPT): Syed Imtiaz Shah, Legal Head (KPT)

For Respondent No. 4 Mr. M. Saleem Thapadewala, ASC

(Aquatech):

Date of Hearing: 02.08.2024

Judgment

Muhammad Ali Mazhar, J. The aforementioned Civil Petitions for

leave to appeal are directed against the common judgment dated
03.12.2021, passed by High Court of Sindh, Karachi, in C.Ps. No.D-
3081 and D-4120 of 2019, whereby both the Constitution Petitions
were dismissed along with the pending applications.

2. As a matter of fact, the petitioners had filed constitutional petitions

in the Sindh High Court for regularization of their services in Karachi
Port Trust (“KPT”) and also prayed for restraining orders against the
respondents to prevent them from taking any adverse action. The
basic plea raised in the High Court was that KPT engaged the workers
directly in the year 2006/2007; however, the petitioners were later
CPs 278-K/22 & 279-K/22 2

engaged through a contractor, while similarly situated employees were

regularized in pursuance of the decision of the Cabinet Sub-Committee
for regularization of employees in BS-01 to BS-15. It was further
alleged that after their appointment, the petitioners always performed
their duties to the utmost satisfaction, but despite performing duties
on posts of permanent nature, they were not treated as permanent
employees. Rather, some projects which were initially implemented by
KPT were also handed over to M/s Jaffar Brothers and subsequently to
M/s Aquatech Infrastructures Limited. The petitioners approached the
High Court of Sindh with the grievance that they performed their
duties in KPT for more than 6 to 15 years, hence they have the
legitimate expectation for regularization in service rather than being
treated as the employees of the contractor, M/s Aquatech
Infrastructures Limited (“Aquatech”).

3. The learned counsel for the petitioners argued that the learned High
Court failed to take into consideration that the petitioners were
working under the command and control of KPT since 2006, hence,
they are entitled for regularization, but the impugned judgment was
passed under the misconception that after expiry of contract, the
employees cannot be regularized. It was further contended that the
petitioners were terminated in violation of the interim order passed by
the High Court. It was further averred that the petitioners were low
paid employees working since 2006, hence they had a legitimate
expectation of regularization in service in view of their length of
service, qualification, and experience. It was further argued that the
petitioners’ case squarely falls within the scope of the decision of the
Federal Cabinet Committee, but the High Court failed to consider and
appreciate that a vested right accrued in favour of the petitioners
which was denied without any lawful justification.

4. The learned counsel appearing for Respondent No.3 (KPT) argued

that the petitioners were never engaged by KPT; instead, but they were
the employees of the contractor Aquatech, hence, they have no vested
right to claim regularization of service in KPT. It was further argued
that there was a genuine outsourcing arrangement with the contractor
which was executed after inviting applications from interested parties
through newspaper proclamations. It was further averred that there is
no relationship of employer and employee between KPT and the
CPs 278-K/22 & 279-K/22 3

petitioners and admittedly, they were the employees of the contractor

and such arrangement has already expired and the contract is no
more in field.

5. The learned counsel for Respondent No.4 (contractor) argued that

all the petitioners were employed by Aquatech; however, no such
contract is currently in effect. He also referenced some letters that
govern the relationship. It was further avowed that the aforesaid
contract was for 5 years which has now been terminated. For some
unpaid dues owed by KPT, the company has already initiated
appropriate legal proceedings in a court of law.

6. The learned DAG argued that since the petitions were not
maintainable for regularization of service, hence the learned High
Court rightly dismissed the same. He further argued that there was no
relationship of employer and employee between KPT and the
petitioners, therefore, the claim of regularization of service against KPT
was unjustified. He further argued that there must be some policy for
regularization for which the appropriate remedy is not a writ
jurisdiction; instead, the petitioners should have sought an
appropriate remedy before an appropriate forum in accordance with
law.

7. Heard the arguments. The bone of contention between the parties is

that the petitioners approached the learned High Court under the
constitutional jurisdiction to claim their regularization in the service of
KPT with consequential benefits, while according to the rival
contentions, they were never employed by KPT, but were employed by
Aquatech (Respondent No.4). The learned counsel for the petitioners,
on the other hand, argued that the petitioners were in fact the
employees of KPT but in order to circumvent the laws, KPT executed a
sham-arrangement with Aquatech.

8. By and large, the rationale for outsourcing is essentially advocated

to enhance the cost-effectiveness and every entrepreneur has the right
and discretion to develop a proficient business stratagem and,
according to the business plan, may outsource certain activities to an
external force or outsourcing agency, who is then responsible for
accomplishing the job and arranging manpower under its own
CPs 278-K/22 & 279-K/22 4

supervision and control. However, in the case at hand, it was not clear
that the petitioners were directly employed by KPT; rather, it was
through an outsourcing contractor. Therefore, for all practical
purposes, the Federal Cabinet decision could not be applied to deal
with cases of contractual employees engaged by an outsourcing
contractor to fulfill any job or task. Respondent No.4 has also pleaded
that their contract is no more in the field and they also instituted legal
proceedings for the recovery of their unpaid dues. Furthermore, it is
well settled that the claim of regularization of service must be
recognized through some law and/or policy across the board with
certain parameters and procedure in any organizational and
administrative structure for its enforcement. The extraordinary
jurisdiction under Article 199 of the Constitution of the Islamic
Republic of Pakistan, 1973 (“Constitution”), is destined to dispense
with an expeditious remedy in cases where the illegality or impropriety
of an impugned action can be established without any exhaustive
inquisition or recording of evidence, but if some convoluted or
disputed question of facts are involved, the adjudication of which can
only be determined by the Courts of plenary jurisdiction after
recording evidence of the parties, then incontrovertibly the High Court
cannot embark on such factual controversy.

9. The only ground for non-suiting the petitioners was that under
Article 199 of the Constitution, the regularization of the contractual
employees was not possible due to unavailability of any law or policy
meant for such purpose in the writ jurisdiction. We are sanguine that
in the peculiar facts of the case, such observation of the learned High
Court is based on the correct articulation of law, but at one fell swoop,
we are also mindful that in the relationship of master and servant,
unless it is regulated by some specific law in the future, an aggrieved
person may seek recourse by filing a lawsuit in the civil courts, but if
the relationship is regulated and governed under the labour laws
meant for Industrial Relations including the application of the
Industrial and Commercial Employment (Standing Orders) Ordinance,
1968 (“Standing Orders”), or any analogous provincial legislation
which promulgated after the 18th Amendment in the Constitution, the
proper remedy for an aggrieved worker is to approach the Labour
Court or the National Industrial Relations Commission (“NIRC”), as the
CPs 278-K/22 & 279-K/22 5

case may be, for redressal of his grievance. Here, certain fundamental
issues were congregated which need to be established and resolved;
that is to say, whether the petitioners were actually employed by the
contractor and, despite this engagement, whether they could claim
regularization or permanency in their jobs as employees of KPT; and
whether the outsourcing arrangement between KPT and the contractor
was genuine or was based on a sham-arrangement to circumvent the
obligations and benefits arising from labour laws; and finally, whether
the petitioners, by serving several years against the permanent posts,
without any gaps have thus attained the status of permanent workers
by virtue of the Standing Orders. All these crucial disputed questions
or factual controversies could not be decided by the High Court in the
writ jurisdiction. Even under the Standing Orders, the scheme of law
provides certain parameters for claiming regularization or permanancy
in service, which could neither be decided without recording the
evidence of the parties nor without adverting to the actual relationship
of employer and employee.

10. Time and again, it was held by this Court in numerous judgments
that a writ does not lie under Article 199 of the Constitution against
an organization having no statutory rules of service. Likewise, it was
held numerously that for regularization of service of contractual
employees, writ only lies if it is permissible under some law and policy
decision across the board, provided that the said organization is
amenable to the writ jurisdiction of the High Court under Article 199
of the Constitution. Even in the case of Faraz Ahmed vs. Federation of
Pakistan through Secretary, Ministry of Communications, Government
of Pakistan (2022 SCMR 1680 = 2022 SCP 238) (authored by one of
us), it was specifically held that contractual employees have no vested
right to regularization, but their regularization may be considered
subject to their fitness, suitability and the applicable laws, rules and
regulations of the Department. They have no automatic right to be
regularized unless the same has specifically been provided for in the
law, and they must demonstrate statutory basis for such a claim, in
the absence of which, relief cannot be granted. However, in the present
context, it is reiterated that if any such person is covered under the
definition of “worker” under the labour laws, they can seek remedy, as
CPs 278-K/22 & 279-K/22 6

provided under the labour laws, by filing a grievance petition for the
enforcement of the Standing Orders.

11. The aforesaid important aspect should have been examined and
considered by the petitioners at the initial stage for deciding the
invocation of the best available, lawful, and expeditious remedy, as
mere filing of a constitution petition and invoking the jurisdiction of
the High Court under Article 199 is not the solution of all problems or
miseries. Another important aspect that cannot be lost sight of is that
both the constitution petitions were filed in the High Court on
30.04.2019 and 18.06.2019, and were dismissed on 03.12.2021, after
more than 2 years. Sometimes due to availing the wrong remedy, the
actual remedy provided under the law for redressal becomes frustrated
or wrecked by the efflux of time. So it is better that, while filing the
constitution petition in the High Court, the petitioner should
confidently mention, after due diligence, whether the arrayed
respondent has any statutory rules of service or not, and if the case is
based on regularization of contractual services by means of a
constitution petition, then in such scenario also, the memo of petition
should explicate and identify the law under which the regularization of
contractual services is being sought or claimed. At the same time, due
to absenteeism of such relevant particulars or any ambiguity or
doubts, the Office may also raise objections as to the maintainability of
the petition and invite the attention of the Court so that such objection
may be taken up at the very initial stage and if the petition is not
found maintainable within the rigors of Article 199 of the Constitution
and is dismissed at the preliminary stage or withdrawn, then at least,
in such set of circumstances, the aggrieved person may be able to seek
an appropriate remedy within time rather than pursuing the wrong
remedy before the wrong forum. Of course, for implementation of
labour laws/Standing Orders in the case of worker/workman, the law
has already provided a remedy before the Labour Court or the NIRC,
as the case may be, for which the precise procedure is provided on
how to lodge grievance petitions under the provisions of the Industrial
Relations laws.

12. After arguing the case at some length, the learned counsel for the
petitioners, on instructions, submits that the petitioners will seek
CPs 278-K/22 & 279-K/22 7

appropriate remedy in accordance with law. However, it is clarified

that if any proceedings are instituted in accordance with law, the
concerned Court/Authority shall decide the matter independently on
its own merits without being influenced by any observation of the
learned High Court in the impugned judgment. The Civil Petitions are
disposed of in the above terms.

Judge

Judge

KARACHI
2nd August, 2024
Mudassar
Approved for reporting