' ALI NAWAZ A. CHANNA , (CHAIRMAN).---This appeal under section 22-D of I.R.O. Is directed against the order, of learned Member N.I R.C. Lahore dated 31-5-1999 by which order he ordered reinstatement of the respondents with all back-benefits. The management of Telephone Industries of Pakistan being aggrieved by the said judgment have filed this appeal. The brief facts leading to the filing of this appeal are that the respondents had filed petition before the learned Member under section 22-A(8)(g) of I.R.O., 1969 with a prayer that they may be reinstated in service and that they may be declared as permanent employees and that their termination by the appellant was illegal and an act of unfair labour practice. The respondents had pleaded before the learned Member that they are the employees of the appellant and they are in the service since many years but the appellants are not regularizing their service and are not treating them as permanent employees and they had terminated their service on the ground that they are work charged employees and are not permanent employees.
2. The learned Member after recording the evidence of both the parties and hearing the arguments of Advocates of both the parties ordered the reinstatement of the respondents and declared them as permanent employees and awarded them all the back-benefits.
3. The contention of the appellant before the learned Member was that the respondents were being employed by them on contract basis for a limited period. They had stated that the appellants were appointing the respondents on the availability of work and whenever the work was finished or completed the contract of the respondents was being terminated and whenever there arose another work they were employing the respondents. The appellants had stated before the learned Member that there was no continuity of service of the respondents and upon the termination of contract the respondents stood automatically terminated.
4. The learned Member agreed with contention of the respondents that they are not temporary employees, that they are in continuous service of the appellant, that they were illegally terminated and that they were declared to be permanent employees of the appellant hence he ordered their reinstatement.
5. We have heard the learned Advocate for the appellants and the learned Advocate for the respondents. We have gone through the record very minutely and the documents filed by both the parties.
6. At the very outset the learned Advocate for the appellant argued that the respondents were temporary employees being appointed with intervals on contract basis. He argued that those contracts have been produced by the petitioners themselves in the evidence. He argued that the appointment orders would reveal that the respondents were being employed by the appellants on contract for a limited period, the periods of which are mentioned in the appointment orders. He argued that the respondents have accepted these appointment letters without any objection or reservation and, therefore, now the respondents are estopped from claiming that they were the permanent employees of the appellant or that they continue in service notwithstanding the contracts on periodical basis.
7. As against this the learned counsel for the respondents argued that the respondents are in continuous service of the appellant since many years and they should have been regularised by the respondents and that the oral termination of the respondents by the appellant is illegal, ultra vires mala fide and not warranted by law. In this connection he placed his reliance on PLD 2000 SC 50 and 2002 PLC 267 which is also the judgment of Hon'ble Supreme Court of Pakistan.
8. We have considered the arguments of the learned Advocates for the parties in juxtaposition with the documents available on record. All the respondents had filed their affidavits-in-evidence before the learned Member and every respondents had produced appointment letters with his affidavit-in-evidence. All the respondents have given the particulars of their duties performed by them with the appellant. From the affidavits it would reveal that after every contract employment there was a gap. In the last contract there was a gap of about 3-1/2 years. It means that there was no continuity of service of the respondents with the appellants. The respondents have themselves produced their appointments letters in which definite period has been mentioned for which they were appointed. In some of the appointment letters the petitioners were appointed for one year, for 9 months, for 8 months or 6 months. This also means that after every termination of contract the petitioners were applying for the job and they were given the appointment. This, therefore, leads to a conclusion that the respondents were neither permanent employees of the appellant nor were in continuous job with the appellant. The Authorities referred to by the learned Advocate for the respondents have no application to this case as in these two authorities it was held and observed that if an employee works on post which is of a permanent nature and works on the said post with a continuous period then he will be treated as a permanent employee, but it is not the case in this case. In this case as stated above neither the respondents were working on a post of permanent nature nor they were performing their duties continuously. As already mentioned there used to be gap of some months in their appointment letters. The appointment letters also reveals that the respondents were being appointed purely on contract basis and the facilities available to the permanent employees were not being extended to them. In such way the respondents cannot be treated as permanent employees or regular employees.
9. The appointment orders of the respondents would also reveal that the respondents were not working on same posts but they were being appointed at places where there was some work to be started and was being done at different places, therefore, it also cannot be said that the respondents were working on same posts for a continuous period. The learned Advocate for the appellant in order to repel the arguments of the learned Advocate respondents places his reliance upon a judgment of Supreme Court of Pakistan re- Dr. Anwar Sehto and 339 others v. Federation of Pakistan and others dated 22-10-2001 (PLD 2002 SC 201). In order to appreciate this judgment it will be necessary to give some excerpts from the said judgment. In para 10 it was held by the Supreme Court as under:-- "The learned Attorney-General was quite right in contending that the appellants having been appointed on contract basis for a specific project and their services having been terminated on the completion of the project in question, could be dealt with by terminating their contracts of service within the contemplation of their respective appointment letters".
' It was further observed in this judgment that: "Needless to mention that a contract appointment cannot become permanent by a flux of time".
' In para. 31 of the judgment very pertinent observation were made which has nexus with this case which is reproduced below; "No doubt the appellant/petitioners had served the respondent-Company for a number of years in its various projects, which continued beyond their normal period within which they were to be completed but the continuing in service due to delayed completion of the projects for a longer period than the initial period of temporary assignment, would not be a determining factor of the nature of their employment".
' In this case also the respondents were being employed for the projects commencing from time to time hence they cannot be said to be in continuous job or that they were working on a permanent posts. In para. 34 of the judgment it was observed that:- "The services of the appellants/petitioners herein could be dispensed with at any time in terms of their respective contracts of temporary assignment."
10. The above observations of the Hon'ble Supreme Court apply to the facts and circumstances of this case. In this case also the respondents were employed on contract basis and it was within the discretion of the appellant to terminate the contract at anytime. It is not necessary that there should be written order for termination of the respondents on the expiry of contracts as the services of the employees stand automatically dispensed with. There is no question of passing any written order for termination of the employees. In this case since the contracts were for a fixed period of time hence upon the expiry of that period the contract stood automatically dispensed with and the employees automatically terminated. In such circumstances there is no need to pass separate termination orders.
11. The respondents have challenged their last termination of service. The last appointment letters of the respondent is dated 31-3-1997. In this letter the respondents were appointed for 28 days w.e.f 4-3-1997. On the expiry of period of 28 days the respondents stood automatically terminated because there was no stipulation in the order that their services could further be extended. Since the contract of 28 days expired hence there was no need for the appellant to have issued separate orders for terminating the services of the respondents.
12. In view of the above stated situation, we are of the opinion that the respondents were purely temporary contract employees and for a fixed period of time and, therefore, they were neither working on the basis of permanent nature, nor the respondents were in continuous employment of the appellant, therefore, upon the termination of their contract the respondents stood automatically terminated.
13. The learned Advocate for the appellants then argued that the respondents have failed to give instances of unfair labour practice on the part of the appellant which motivated them to dismiss or terminate the respondents. As against this the learned counsel for the respondents argued that the CBA Union had submitted charter of demands in which it was specifically demanded that services of the temporary employees may be made permanent and they may be declared the employees of the appellant, due to which the management became annoyed and they dispensed with the services of the respondents.
14. We are not impressed with the arguments of the learned counsel for the respondents. Merely submission of charter of demands with the appellant by CBA will not spell out instances of unfair labour practice. If the appellant had any reason for annoyance that could have been against the office-bea:ers of the CBA Union who submitted the charter of demands and not for the respondents. Moreover, the appellant and CBA could have held negotiations and there were chances that the appellants might not have acceded to the demands of the CBA for declaring temporary employees as permanent. This will, therefore, not furnish instances of unfair labour practice on the part of the appellant to terminate the services of the respondents. On the contrary the respondents automatically stood terminated upon the expiry of contract of employment.
15. We are of the opinion that the petition of the respondents before the learned Member was without instances of unfair labour practice. It would also be seen that the respondents have not recounted their own actions towards the activities of trade union which prompted the appellant to take action against the respondent. Merely becoming a member of any union or merely submission of charter of demands by CBA would not furnish the grounds which annoyed or motivated the appellants to take such action. The respondents have, therefore, utterly failed to give their own activities which specifically annoyed the management of the appellants to take action against the respondents .
16. The learned Advocate for the appellants then argued that the services of the respondents were terminated on 31-3-1997 whereas they approached the Commission on 5-4-1997 as such the unfair labour practice, if any, stood already committed, therefore, the Commission had absolutely no jurisdiction to entertain the petition of the respondents. This contention has sufficient force. There is no doubt that the services of the petitioners stood automatically terminated on 31-3- 1997 and the petition having been filed on 5-4-1997 the unfair labour practice, if any, stood already committed and completed hence the Commission had no jurisdiction to entertain the petition. The powers of N.I.R.C. Are to prevent the occurrence of acts of unfair labour practice but if the acts of unfair labour practice have already been committed and completed then N.I.R.C. Has no jurisdiction. In this connection reliance can be placed on Lahore High Court judgment reported as 1976 PLC 47. In this authority it was held that if unfair labour practice has already been committed then remedy for the employees was to have approached the N.I.R.C. By filing a complainant under section 53 of the I.R.O. But the petition under section 22-A(8)(g) was not maintainable. This judgment of the Lahore High Court was followed by Sindh High Court as reported in 1990 PLC 599. In this authority it was observed as follows:-- "Powers of reinstatement as embodied in Regulation 32 held was not independent or ancilliary or incidental to process of adjudication but was dependent on finding the person standing trial to be guilty under section 53 of I.R.O., 1969. Such powers of reinstatement could only be exercised in case of awarding punishment for unfair labour practice and not in case of acquittal of the charges".
' This authority has made it abundantly, clear that a terminated employee cannot approach N.I.R.C.
Under section 22-A(8)(g) but if he wants his reinstatement in service on the ground of unfair labour practice, he has to file complaint under section 53 of I.R.O. And upon conviction of the employer the employee could be reinstated in service and not otherwise. This authority has also made it clear that in exercise of powers under section 22-A(8)(g) a terminated employee cannot be reinstated in service and upon this premise the order of the learned Member is illegal and without jurisdiction and not sustainable in the eye of law.
' In view of what has been discussed above, we are inclined to hold that the judgment passed by the learned member N.I.R.C. Is not legal, proper but is without jurisdiction and therefore, cannot be sustained in law. Accordingly the order of the learned Member is set aside and this appeal is allowed.