P L D 1964 Supreme Court 559 (PLP)

FAZLE‑AKBAR, J.

‑This appeal against an award of the Industrial Court of West Pakistan, Lahore is brought before this Court on the basis of special leave granted to the appellant Muhammad Jamil. The principal opposite‑party is ‑the Orient Match Factory, Shahdara (hereinafter referred to as `the employer'). There was an industrial dispute between the employer and its Labour Trade Union and on the failure of the conciliation pro ceedings an application was made under subsection (5) of section 5 of the Industrial Disputes Ordinance, 1959 to the Industrial Court, West Pakistan at Lahore for adjudication and determination of the said dispute. The award which the Industrial Court gave on 27th March 1962, deals with five different demands, but of these the appellant is challenging the award in respect of only one item in Demand No. 2, namely, refusal to re‑instate him to his original post. Demand No. 2 is as follows: "The services of the following persons have been terminated on account of their Union activities and they should, therefore, be re‑instated: (i) Muhammad Jamil son of Fayaz‑ud‑Din, President. (ii) Umar Din, son of Chiragh Din, Vice‑President. (iii) Muhammad Tufail son of Jalal Din, Joint Secretary." The Industrial Court ordered for re‑instatement of the last two named persons but rejected the demand with respect to this appellant Muhammad Jamil. Mr. S. M. Zafar, the learned counsel for the employer has taken a preliminary objection as to the competency of this appeal. He has put forward the contention that the appeal is not properly constituted for the following reasons: The award was given on the 27th March 1962 and it was published in the Gazette on 7th April 1962. In the petition for special leave to appeal which was filed by this appellant on 9th May 1962, the employer was not impleaded as a party. On 19th February 1963, the appellant filed a petition for adding the employer as a respondent and on the 4th March 1963, the Court ordered `permitted subject to just exception. Thus the employer was made a party to this appeal long after the period of limitation. Mr. Zaman, the learned counsel for the appellant has found it difficult to meet the objection of Mr. Zafar. It is not disputed that the employer being a necessary party ought to have been joined as a respondent at the time of filing of this appeal. Owing to the appellant's failure to make the employer a respondent within the time limited for filing appeal, this appeal so far as the employer is concerned, is barred by limitation. The employer is therefore, entitled to hold to the award which is in his favour and in the words of Sir John Wallis in V. P. R. V. Chockalingam Chetty v. Seethai Ache and others (55 I A 7) it is a substantive right of a very valuabe kind of which they should not lightly be deprived. In these circum stances Mr. Zafar has rightly contended that in the absence of the employer it would not be possible to modify or set aside the award. Mr. Zaman has prayed for condonation of the delay. No doubt under Order XLI, rule 20 of the Code of Civil Procedure the Court has power in a proper case to allow a necessary party to be added as a respondent, but the power to take the action is discretionary and should not be exercised in case of extreme neglect. On 13th February 1963, the Court enquired suo motu why the employer was not added as a party in this case and the appellant thereafter on 19th February 1963, filed a petition for adding the employer as a respondent in the appeal. He however, even then did not file any petition for condonation of the delay. In the petition he merely stated that through inadvertence he did not implead the employer as a party. The employer has acquired a valuable right which we do not think should be taken away from him in the circumstances of the 4 present case. The preliminary objection therefore ought to prevail. This is sufficient to determine this appeal against the appellant. But we would like to observe that the facts appearing on the record raise an important question, namely, whether the Industrial Court was entitled to uphold the order of termination c of the appellant's service on grounds other than those urged by the employer. The employer's case was that the Management, terminated the appellant's services on 10th July 1961, on the ground that his services were no longer required. The Industrial Court however, gave the following reasons for refusing to re‑instate him: "The case of Muhammad Jamil, however, stands on different footing. He has admitted as P. W. 2 that he has also addressed letters against C. C. Bowman to his superior authorities. He has consequently by writing this letter lost the equitable right of re‑instatement. Apart from that as I have noted while recording his evidence he was extremely insolvent and rude in answering the question. If he is so bitter against the Manager under whom he has to work, it will be wrong to impose him upon the Management and create a bad atmosphere in the factory. A rude and insolent man has no place in a civilised society. Taking all these facts into consideration I am afraid I am not prepared to order the re‑instatement of Muhammad Jamil. The demand with respect to him is rejected." We do not think it would be right in the present appear to express any opinion on the merits of the case. We would however, like to repeat the observations of this Court in Sui Gas Transmission Co. Ltd. v. The Islamic Republic of Pakistan and others (P L D 1959 S C (Pak.) 66): "It is true that a Tribunal dealing with an industrial dispute is not a Court in the sense that it is strictly bound by the rules of evidence but that does not mean that it can act on mere conjecture and its own peculiar ideas of social justice. It is obligatory on its part to act within the jurisdiction and according to the law applicable to the matter in dispute." We hope the Industrial Courts will keep the above observation in view while deciding the industrial disputes. For the reasons stated above we uphold the preliminary objection and dismiss this appeal, but make no order as to costs. A. H. Appeal dismissed.