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Initializing Secure Chambers
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Initializing Secure Chambers
Petitioner: (1) Dr. Huma Jokhio and others (2) Dr. Ehsan Ali Palari (3) Dr. Shafiq Ahmed (4) Dr. Syed Abbas Haider VS Respondent: (1) Federation of Pakistan & others
Court Name: Sindh High Court Judge(s): Muhammad Iqbal Kalhoro, Adnan-ul-Karim Memon Title:(1) Dr. Huma Jokhio and others (2) Dr. Ehsan Ali Palari (3) Dr. Shafiq Ahmed
(4) Dr. Syed Abbas Haider vs (1) Federation of Pakistan & others Case No.:(1) C.P No.D-75 of 2017 (2) C.P No.D-4442 of 2016 (3) C.P No.D-4465 of 2016 (4) C.P No.D-4694 of 2016 Date of Judgment:2017-06-01 Reported As: 2017 SHC 265 Result: petition disposed of Judgment ADNAN-UL-KARIM MEMON,J:- Since In all the captioned Petitions similar points of law and facts are involved, therefore, we intend to dispose of the same by this common judgment. 2. In C.P. No.D-75/2017, Petitioners are seeking regularization of service at par with their colleagues who are being considered for regularization as per respective Office Memorandum dated 16.11.2016 and 17.11.2016 issued by the Respondent-Company . 3. Similarly , the Petitioners in C.P No.D-4442/2016, 4465/2016 and 4694/2016 earlier filed Constitutional Petitions bearing No. D-1533, D 1954 and D-1929 of 2015 respectively before this Court and the same were disposed of vide order dated 27.04.2016 with direction to the Respondent-Company to consider the Representations of the Petitioners within 30 days. The Respondent-Company disposed of the Representations of Petitioners vide impugned Letter dated 26.5.2016 with the following findings:- "With reference to your representation dated May 03, 2016 and an o opportunity afforded for personal hearing in compliance top the order dated April 27, 2017 of the Honorable High /court of Sindh, Karachi in C.P.P. No. D 1954, D-1929 and D-1533 of 2015. Considering your contentions and after examining relevant record of the Company, following is conveyed: That the resolution of Board of Directors of the Company pertains to the regularization of contract employees/officers from EG-V and does not apply to a person engaged as a daily wager. During the personal hearing you failed to provide any document to support your contention. In fact allowing you the benefit of regularization would be a clear violation of Company' s policy which is tantamount to extending undue benefit.
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OGDCL has no policy of regularizing temporary manpower or officers engaged on daily wage basis or Contractor employees and have never done in violation to the rule/policy . The matter of age relaxation has no connection with regularization of the officers particularly in this case. 2. In view of the foregoing, your request cannot be acceded to being without merit. (Tariq M. Qureshi) Chief Incharge (Admin/Rectt) Contact: 051-920023544" 4. Petitioners feeling aggrieved and dissa tisfied with the impugned Letter dated 26.5.2016, have approached this Court with the prayer to set aside the impugned letter and sought declaration that they are eligible for regularization of service as Medical Officer but, Respondent-Company is not considering their case whereas, colleagues of Petitioners are being given the same benefit. 5. The Respondent-Company filed parawise comments and controverted the allegations leveled by the Petitioners. 6. Mr. Malik Naeem Iqbal, learned counsel for Petitioners in C.P No. D-75/2017 has argued that Petitioners were initially appointed as Medical Officers on contract basis in the year 2004, whereafter pursuant to a policy , the contract of the Petitioners was converted into daily wages in the year 2012, since then the Petitioners are performing their duties in various offices of Respondent-Company . Per learned counsel, the case for regularization of Petitioners is not considered by Respondent-Company , as the process for regularization of contract employees is being conducted by taking interviews and issuance of office Memorandum dated 17.11.2016 (available at page 73-75 of case file). He next contended that Petitioners have been working as professional Doctors on permanent posts in the Respondent-Company with effect from 06.10.2004. In the meantime, the Respondent-Company issued a policy of conversion of contractual employment into daily wages (work charge) by changing the terms and conditions of contractual employment. He next contended that said policy has created chaos amongst the contract employees who were rendering their services but, have not been considere d for regularization. However , Respondent-Company extended the benefit of regularization to colleagues of the Petitioners. Per learned counsel, Petitioners have sufficient expertise in their profession therefore they are entitled to be considered for regularization. He next contended that Respondent-Company advertised the post of Medical Officer (EG-III) and Petitioners participated in the competition. But, the Respondent-Company rejected the candidature of Petitioners on the ground that they have become overage. This treatment with the Petitioners by the Respondent-Company is highly objectionable and against basic norms of justice. Per learned counsel, how Petitioners became overage when they have been working in the Resp ondent-Company since 2004. Learned counsel referred to various orders of extension of contract period of the Petitioners from time to time and argued that Respondent-Company called interviews of contract employees for regularization vide office Memorandum dated 17.11.2016 whereas, the Petitioners were not considered for regularization on the grounds that their service was converted on work charge / causal basis and as per policy dated 22d October, 2012 Petitioners being daily wages employees cannot be considered for regularization, as they are not the contract employees. This treatment given to the Petitioners is highly deplorable. He also referred to the Oil and Gas Development Company Limited Employees Service Rules, 2002 and has argued the said Rules protect the Petitioners service. Per learned counsel, the Petitioners were initially appointed on contract basis in the year 2004 and the said Rules clearly stipulate that appointments made in the regular service except those who were appointed on daily wages or against the project, are entitled for consideration of regularization in service. In support of his case, he relied upon the case of Pakistan Tele Communication Company Ltd through General Manager and another v. Muhammad Zahid and others (2010 SCMR 253), in the case of Ajaz Akbar Kansi and others v. Ministry of Information and Broad Casting and others (2011 PLC CS 367), in the case of Captain Saleem Bilal v. Pakistan International Airline Corporation and others (2013 PLC CS 1212) and in the case of Pir Imran Sajid and others v. Managing Director / General manager (Managing Finance) Telephone Industry of Pakistan and others (2015 SCMR 1257). 7. Mr. Muhammad Athar Ismail, learned counsel for Petitioners in C.P. No. D-4442, D-4465 and D-4694 of 2016 respectively adopted the arguments of Mr. Malik Naeem Iqbal, Advocate. Howeve r, he contended that Petitionersn
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are working as Medical Officers with effect from 19.7.2007 on contract basis against the post, which is of regular nature. He next contended that Respondent-Company in violation of dicta laid down by the Hon`ble Apex Court has wrongly rejected the claim of the Petitioners vide impugned Letter dated 26.05.2016. He next contended that Respondent-Company wrongly stated in impugned Letter that there is no policy of Respondent-Company to regularize the service of daily wages employees and they have never regularized them. This stand of Respondent-Company itself negates their own Letter dated 14.01.2011 whereby contractual employees were regularized in service. He next contended that Petitioners are serving on post of permanent nature and Respondent-Company vide Letter dated 05.11.2012 converted the contract service into daily wages in violation of law and policy. Per learned counsel, the Respondent-Company cannot change terms and conditions of service of the Petitioners on the premise of purported policy. He next contended that Petitioners are eligible and qualified to be considered for regularization of service. He next contended that Respondent-Company has regularized the blue eyed persons in a discriminatory manner. He next contended that the Government of Pakistan, Cabinet Secretariat, Establishment Division in Minutes of Meeting dated 7.3.2013, directed the Respondent-Company to regularize the contract employees/daily wages. Since 2007 till date the Respondent- Company has not regularized Petitioners and on the contrary issued impugned Letter dated 26.5.2016 by stating that regularization is not policy of the Respondent-Company. The said act on the part of Respondent- Company is discriminatory and in violation of fundamental right of the Petitioners. He next contended that Petitioners are experienced Doctors having sufficient knowledge of relevant field but the Respondent-Company is keeping the Petitioners on daily wages and not regularizing their services in violation of the policy of Government of Pakistan. The Respondent-Company cannot give preference to their policy by ignoring the policy of Federal Government because Respondent-Company is a Government owned entity and not a private company. He next contended that impugned Letters dated 26.5.2016 issued by Respondent-Company are nullity in the eyes of law and liable to be set-aside by this Court. He next contended that Respondent-Company has wrongly stated that the matter of age relaxation has no connection with regularization of the officers because it is a matter of record that Petitioners are serving in Respondent-Company since 2007. Per learned counsel, age relaxation issue can be settled by the Competent Authority as per law which they have miserably failed to do so. 8. Syed Javed Iqbal, learned counsel for the Respondent-Company / OGDCL has raised the preliminary issue of maintainability of the instant Petitions. Per learned counsel, the Petitioners were hired against a unit of Medical Officers through "Outsource " i.e. third party contractor and as per policy issued in the year 2012 they were converted into Daily Wagers. Learned counsel further contended that staff workers who were initially hired through "Outsource " were converted as Daily Wagers and taken on contract by virtue of 23d Memorandum of Settlement (MOS) between the Management of Respondent-Company and CBA. However due to non-availability of Policy regarding placement of Daily Wages Officer on contract the Petitioners or any other Daily Wage Officers have not been taken on contract. It is next contended that Respondent-Company advertised various posts of Engineers and Medical Officers for appointment on contr act basis. Petitioners applied as per the said advertisement however they did not qualify for the post as per requisite criteria due to overage, therefore, the Petitioners were not short listed. It is also contended that Petitioners were never assured that their status of employment would be brought at par with the new appointees on contract basis. It is next contended that Board of Directors of Respondent-Company has authorized the Managing Director/CEO to regularize the contract employees upon completion of one year in service. Since the Petitioners are Daily Wages and not contract employees, they are not entitled for regularization. He next contended that Petitioners in C.P No. D-4442, 4465 and 4694 of 2016 respectively earlier filed Constitution Petition bearing No. D-1533, 1945 and 1929 of 2015 before this Court and the said Petitions were disposed of vide order dated 27.4.2016. Therefore, the Petitioners cannot file fresh petitions on the same cause of action. He next contended that Petitioners were never appointed on contract basis. He next contended that in compliance of order dated 27.4.2016 passed by this Court the Representations of Petitioners were disposed of on 26.5.2016 and the Petitioners were informed accordingly. He next contended that regularization could only ber
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made in respect of only officers who are working on contract basis from EG-1 to EG-V. He next contended that Respondent-Company at no time regularized any officer working on daily wages basis or hired through "Outsource" in deviation of policy/rules. He next contended that the matter of age relaxation has no concern with the issue of regularization. He next contended that the case of Petitioners does not fall under policy/rule of Respondent-Company for regularization therefore, the claim of Petitioners is rightly rejected by the Respondent- Company vide impugned Letter dated 26.5.2016. Per learned counsel, no discrimination has been meted out to the Petitioners nor any fundamental right is violated. 9. We have considered the submissions of the parties and have perused the material available on record and case laws cited at the Bar . 10. In the first place, we would like to examine the issue of maintainability of the captioned Petitions under Article 199 of the Constitution. As per Section 3 of Oil & Gas Development Corporation (Re-Organization) Ordinance, 2001 OGDCL got status of a Company limited by shares with effect from the date of incorporation of the Company with the Securities and Exchange Commi ssion of Pakistan under the Companies Ordinance, 1984 (XLVII of 1984). As per Section 2 (g) of Public Sector Companies, (Corporate Governance) Rules, 2013 defines company ' as under:- (g) "Public Sector Company" means a company , whether public or private which is directly or indirectly controlled, beneficially owned or not less than fifty percent of the voting securities or voting power of which are held by the Government or any instrumentality or agency of the Government or a statutory body , or in respect of which the Government or any instrumentality or agency of the Government or a statutory body , has otherwise power to elect, nominate or appoint majority of its directors, and includes a public sector association not for profit, licensed under Section 42 of the Ordinance." 11. On the issue of non-statutory rules of service, we are fortified with the decisions rendered by the Honorable Supreme Court in the case of OGDCL etc. vs. Nazar Hussain etc. (2010 SCMR 1559 ) and Sayed Tahir Abass Shah versus OGDCL etc (2012 PLC CS 885) wherein it has been held by the Hon'ble Apex Court that Oil and Gas Development Corporation Employees (Service) Regulation, 1994 have statutory force. In so far as the question of maintainability of captioned Petitions is concerned, we seek guidance from the decision rendered by the Honorable Supreme Court in the case of Ramna Pipe and General Mills (Pvt.) Ltd v. Sui Northern Gas Pipe Lines (Pvt.) reported in 2004 SCMR 1274 wherein it has been held that a Constitutional Petition against a Public Limited Company is maintainable. Thus, the High Court has jurisdiction to interfere in the subject affairs of OGDCL under the Constitution. 12. On merits, the foremost question in the present proceedings is whether the Petitioners were initially appointed on contract basis and/or on work charge/casual basis and consequently their service cannot be regularized? Admittedly , the Petitioners were initially appointed on contract basis in the year 2004 & 2007, where after pursuant to the policy decision dated 22.10.2012, the Petitioners and other contract employees were converted into daily wages. Since then the Petitioners are performing their duties in various offices of Respondent-Company as daily wages employees. 13. We address the main objection of Respondent-Company that Petitioners were hired against a unit of Medical Officer through Outsource that is, third party contractor and the Petitioners are not eligible for regularization under the policy adopted by Respondent-Company. The said policy is reproduced as follows: "OIL AND GAS DEVELOPMENT COMP ANY LIMIDED POLICTY DEP ARTMENT Head office, Islamabad No. AA0103-32 22 nd October 2012 Subject: POLICY/PROCEDURE REGARDING PLACEMENT OF 3rd PARTY HIRED SER VICE UNITS/WORKERS AS DAIL Y WAGES (WORK CHARGE) BASIS CA TEGORIES
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It has been decided by the management that all the third (3d) party workers, working against regular posts, in offices as well as in fields/locations, will be brought in the categories of Daily Wages (Work charge) at the strength of concerned locations/departments of the company . 2. Therefore, all the concerned Fields/location In charges shall prepare and provide complete lists of third (3d) party workers, hired in their departments. These lists will be submitted to respective EDs/GMs duly verified by Field/location In charges for approval. The verified copies of lists (as per specimen attached at Annex-1) will be incorporated in computer record/data at Recruitment Department at Head Office 3. In the fields/locations, hiring on specific projects basis shall be continue only for those categories which are likely to be finished with the completion of the projects. Such categories of workers shall be termed as man-days and the concerned department will undertake the exercise to determine them as work charge/daily wages if employed against regular posts. 4. The nature of employment in the fields/locations/officers so far as erstwhile third party workers are concerned, will henceforth be categorized as under: i) Daily wages/Work charge Workers: All those third (3d) party workers, hired against regular positions for short duration up to 87 days (as per existing rates already notified by the Company) to be termed as Daily W ages/Work charge Worker . ii) Project Workers/Man-days/Labour etc. All those workers who are engaged for specific projects only and are to remain in employment only till the completion of that specific project, as per approved rates. Their duration of employment will be strictly followed for 87 days after each term of continuity in hiring. 5. PROCEDURE FOR PLACEMENT AS DAILY WAGES/LABOUR ETC. Presently, there are 2884 third party workers as on 15.10.2012 hired at different location/fields/departments. Their location-wise/department wise detail with break up is given at Annex-II. The placement process will be completed in one go (provided they fulfill the pre-requisite of the post) and after that no service unit will be hired through third (3) party. 6. DAILY RATES: The revised rates applicable for daily service units of various categories/groups notified vide policy order No. AAOi07-03 dated 09-08-2012 i.e. in nine (09) groups of jobs, shall remain applicable to all the Daily Wages/Work charge employees from their date of placement on Company' s roll/strength. 7. FACILITIES/BENEFITS FOR DAIL Y WAGES/WORKCHARGE WORKERS. The facilities/benefits previously notified (from time to time) for Daily Wages/Work charge Workers shall be decided by the management, detail of which is given as under: S# Details of Facilities/Benefits i) Casual leave (15 days in calendar years) ii) Medical Facility (for self only) iii) Tours based on operational requirements (Rail/Bus Fare) iv) Safety shoes and Helmets (at Fields only) v) Provision of Uniform at fields. vi) 12 days leave with wages/Bus/Railway Fare (for the most familiar routes after 03 months max 04 fares in a calendar year) No railway fare will be allowed for routes where train service is not available. vii) Wages for the period of Hospitalization. viii) Grant of award equal to 50% of the gross monthly wages instead of minimum basic pay whenever the award is announced for the employees. ix) Overtime will be admissible as per following rate per hour Gross W ages/240. x) Payment of 5% WPPF (if admissible as per rules) 8. ENGAGEMENT AND DIS-ENGAGEMENT POWERS: i) No formal letter of engagement will be issued for engaging the work charged/man-days labour against specific project requirements, which stand dis-engaged on completion of project (for seismic parties only).r r r rd
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ii) Monthly wages would be paid directly by Accounts Rep. at fields/locations/RO and in case of HO by Payable Section, through proper vouchers duly verified/signed by concerned Location In charge, Area Manager and HOD, with monthly attendance sheets. iii) The Location In charges/PC/OM/FMs would be empowered to dis-engage or replace the hired worker against approved strength of concerned location/field/offices after clearance of HOD/GM concerned. 9. All those workers hired under supply and Services agreements through SCM Department (including Security Services etc.) would not be covered under this placement policy of the Company. 10. Keeping in view the job description, manpower meeting the criterion shall be adjusted accordingly . 11. This issues with the approval of Managing Director/CEO. Sd/-22.10.12 (TalatHaider) Chief H.R Officer (Policy) Ext.3606 DISTRIBUTION: As per list "A" 14. Per learned counsel for the Respondent-Company, the post of Medical Officer (EG-III) for appointment on contract basis was advertised and Petitioners participated but they did not qualify due to overage, whereas, in C.P No.D-1533/2015, 1954/2015 and 1929/2015 Respondent-Company admitted that Petitioners were appointed on contract basis and this Court vide order dated 27.04.2016 recorded the stance taken by them. The contract letter dated 06.10.2004 of Petitioner namely Dr. Ahsan in Constitution Petition bearing No. 75/2017 available at page 17 establishes that he was appointed as Medical Officer on contract basis. The said Letter is reproduced as under:- "No.FM-03/QP/2004/376 Dated 06.10.2004 To, Dr. Ahsan Ali, S/o Taj Muhammad Ramejo Village Lohi Sharif, P.O, Khanpur Mahar, Taluka Khangarah Sharif, District, Ghotki, Subject:- PLACEMENT OF "MEDICAL OFFICER" ON CONTRACT 01-With reference to your application for the placement of "Medical Officer" (on contract) in Social Welfare Public Dispensary (OGDCL) Qadirpur District Ghotki. 02- The competent authority has been pleased to place you on the panel of OGDCL as Medical Officer (on contract) on the following terms and condition with effect the date of assumption of duty at Social Welfare Dispensary-Qadirpur Gas Field District Ghotki. i) Retainer-ship fee of Rs.11000/- per month. ii) You will attend the dispensary 06 days a week. iii) Causal leave 15 days in a calendar year. iv) Field medical facilities for self only as per policy of company in real emergency . v) One month notice will be required from either party to dispense with the agreement. 03- In case of above terms and conditions are acceptable, you are advised to report for duty to the Field Manager Qadirpur Gas Field, Ghotki within 03 days after receipt of this letter . 04- If you failed to report on due time, your placement may be treated as cancelled. Yours faithfully Sd/- 6.10.2004 ( Abdul Majeed) Field Manager 15. We have noted that Respondent-Company has converted contractual posts into daily wages which ex-facie appears to deprive the Petitioners from regularization of their service. This procedure adopted by the Respondent- Company by converting the contractual appointment in the categories of daily wages (work charge), is against the basic spirit of terms and condition of contract appointment letters. Because due to that policy, the Petitioners have been placed at the hands of third party i.e. contractor and are now on daily wages and there is no protection to
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them under the said policy so far as regularization of their service is concerned. We have further noted that management of the Respondent-Company has attempted to regularize some of the employees working on contract posts under the garb of Office Memorandum dated 16.11.2016 and 17.11.2016, where case is at par with the case of petitioners. We find this treatment discriminatory. 16. We are cognizant of the fact that all appointments in the Respondent-Company are made either by promotion or by initial recruitment or on contract basis or on daily wages basis. Except daily wages all other appointments are deemed to be appointed in the Regular Service of the Company , therefore, only employee of the daily wages have been singled out without any reasonable classification. Thus, in our views the Petitioners are entitled to be considered for regularization along with their colleagues as per Of fice Memorandum dated 17.1 1.2016. 17. We are not satisfied with the assert ion of Respondent-Company that Petitioners were initially appointed on daily wages through Outsource/Third party contractor , therefor e, they are not entitled for regularization. It may be mentioned that this issue has been settled down by the Hon'ble Surpeme Court in the case of Fouji Fertilizer Company Ltd v. National Industrial Relations Commissions and others (2013 SCMR 1253 ), the Hon'ble Supreme Court at Paragraph No.17 and 18 has held as follows:- "17.Normally , the relationship of employer and employee does not exist between a company and the works employed by the Contractor; however , in the case where an employer retains or assumes control over the means and method by which the work of a Contractor is to be done, it may be said that…
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