Sunday 22 September 2013

Can a respondent be deleted to not to be a party?

PLJ 2005 Karachi 21
[Sindh Circuit Hyderabad]
Present: Muhammad Mujibullah Siddiqui, J.
ARMY WELFARE SUGAR MILLS, WORKERS UNION through its GENERAL SECRETARY--Applicant
versus
REGISTRAR TRADE UNIONS, HYDERABAD and 2 others--Respondents
Labour Revision No. 13 of 2004, decided on 5.5.2004.
Civil Procedure Code, 1908 (V of 1908)--
----O. 1, R. (10) and O. VII, R. 11--Application submitted petitioner that respondent be deleted from the array of parties--Labour Court rejected the application that Complaint was filed by the Registrar or the representation made by respondent wherein the proposition of law and authorities of Superior Courts were brought to the knowledge of Registrar regarding registration of Union and thereafter the Registrar applied for cancellation of registration of petitioner before Labour Court joining the respondent also as a party--Ordinarily in case of registration, Registrar and concerned Union are party but Registrar can move application to the Labour Court for cancellation either suo moto or information laid before it by the employer--Since the complaint was filed at the instance of Management, therefore, Managing authority was necessary party and was rightly joined as respondent in complaint--Held: No justification for the admission of the labour revision--Even case of delay in disposed of matter pending before the Labour Court--No prejudice caused to the applicant with the rejection of application under Order 1, Rule 10 CPC or no omission of justice has been taken place--Even all parties filed their affidavit-in-evidence and all of them had been subjected to cross-examination--No justification for admission of pension application but shall cause delay in disposal of matter--Dismissal in limine.     [Pp. 22, 23 & 24] A, B & C
Mr. Ghulam Sarwar Chandio, Advocate for Applicant.
Mr. Masood Ahmad Noorani, Addl. A.G. for Respondent No. 1.
Mr. Mahmood Abdul Ghani, Advocate for Respondent No. 2.
Date of hearing : 5.5.2004.
Order
The petitioner is aggrieved by the order dated 5.2.2004 passed by the learned Labour Court No. VI, Hyderabad in Complaint No. 48/2003 pending before the learned Labour Court.
The petitioner, who is Respondent No. 1 in the complaint before the learned Labour Court, submitted an application that Respondent No. 2 be deleted from the complaint filed by the Registrar, Trade Unions, for the reason that the Management was not a necessary party. It was alleged in the affidavit annexed with the application under Order 1 Rule (10) CPC that the General Manager of the Army Welfare Sugar Mills (Management) has nothing to do with the cancellation of registration of the Union and under Section 12 of the Industrial Relations Ordinance, 2002 the General Manager of the company was not required to be impleaded as party. It was further stated in Para 5 of the affidavit sworn by Mr. Abdul Salam, General Secretary of the petitioner Workers Union, that only establishment/ company/mills can be impleaded as party, wherever it is necessary and permissible under the law but in the instant case neither General Manager nor establishment are necessary parties.
The learned Labour Court dismissed the application with the observation that the issue was already decided by the Court while passing order on application under Order 7, Rule (11) CPC.
The copy of order on application under Order 7, Rule (11) CPC referred to in the impugned order dated 5.3.2004 has been produced along with the petition as annexure `A/4'. A perusal thereof shows that an application was submitted on behalf of petitioner on 9.10.2003 praying that the Respondent No. 2 be deleted from the array of parties. The learned Labour Court rejected the application vide order dated 19.2.2004. It is observed in the said order that "the complaint was filed by the Registrar on the representation made by the Respondent No. 2, wherein the propositions of law and authorities of superior Courts were brought to the knowledge of Registrar regarding registration of Union and thereafter the Registrar applied for cancellation of registration of petitioner before the Labour Court joining the Respondent No. 2 also as a costly". The learned Labour Court further observed that ordinarily in case of registration of Trade Union or cancellation of registration the Registrar and the concerned Union are necessary parties and are to be impleaded but the Registrar can move application to the Labour Court for cancellation of the registration either suo

moto or on information laid before it by the employer. With this reference the learned Labour Court examined the issue whether Management was a necessary party and came to the conclusion that since the complaint was filed at the instance of Management, therefore, the Management was necessary party and was rightly joined as Respondent No. 2 in the complaint filed by the Registrar. It was further observed that the under the new Industrial Relations Ordinance, 2002 the Registrar was required to inform the employer by giving a notice regarding registration of Union and the employer is deemed to be a necessary party in the proceedings even under the repealed Statute. With these observations the application under Order 7, Rule (11) CPC was dismissed.
The petitioner feeling aggrieved with the above order dated 19.2.2004, filed a revision application before this Court being Labour Revision Application No. 12/2004. During the course of hearing at Katcha Peshi stage Mr. Ghulam Sarwar Chandio, advocate, informed a learned single Judge of this Court that on 8.9.2003 affidavit-in-evidence has been filed by the Registrar, Trade Union, Hyderabad and the matter was adjourned for cross-examination of the complainant. The revision application was disposed of with the observation that in case cross-examination has not been conducted by the applicant, the Presiding Officer should before hearing arguments on the main petition allow the applicant to cross-examine the Registrar, Trade Union, whose affdavit-in-evidence has been placed on record. The applicant was also given opportunity to produce evidence if so desired. The matter part of the order was necessitated because Mr. Ghulam Sarwar Chandio, advocate, informed the learned single Judge that the matter has been posted for arguments on main petition without giving opportunity of cross-examination to the parties.
Be that as it may, the revision application filed against the order dated 19.2.2004, whereby the prayer for deleting the Respondent No. 2 from the array of respondents was disposed of.
In the above circumstances this second application under Order 1 Rule (10) CPC seeking same relief which, was sought in the application dated 9.10.2003 under the caption, under Order 7, Rule 11 CPC, was uncalled for.
Mr. Ghulam Sarwar Chandio has submitted that the second application was submitted under Order 1, Rule (10) CPC, which is the proper provision of law because the earlier application was submitted under Order 7, Rule 11 CPC, which was not the correct provision of law. The Courts are supposed to consider the contents of the application and not the law which is cited in the application. Mere wrong citation of a provision of law is neither sufficient for rejection of any application nor has any bearing on the merits of the case. I find that, notwithstanding, the wrong citation of law in  the  application dated 9.10.2003 the prayer in the application was that the Respondent No. 2 was not a necessary party and may be deleted from the array of respondents. The learned Labour Court in it's order dated 19.2.2004 has considered the contention elaborately and has given a finding that in the peculiar facts and circumstances of the case the Management was a necessary party. The order dated 19.2.2004 was assailed in the earlier revision application No. 12/2004. Although there is nothing in the order of learned single Judge of this Court dated 23.2.2004 that the revision application was not admitted for the reason that the application dated 9.10.2003 was shown to have been submitted under Order 7, Rule (11) CPC, but Mr. Ghulam Sarwar Chandio states that the earlier revision application was disposed of for the reason that the application ought to have been submitted under Order 1 Rule (10) CPC. I do not find any such observation in the order of learned single Judge of this Court dated 23.2.2004.
I am of the opinion that second round of litigation was uncalled for.
coming to the merits, I find that no prejudice has been caused to the applicant with the rejection of application under Order 1, Rule (10) CPC. I have specifically asked Mr. Ghulam Sarwar Chandio, learned Counsel for the applicant, to show as to what prejudice has been caused to the applicant or what is the miscarriage of justice which has taken place. The learned Counsel is not able to show any such prejudice or miscarriage of justice caused to the applicant. Mr. Mahmood Abdul Ghani, who is appearing before the Labour Court also, has stated that all the parties have filed their affidavit-in-evidence and all of them have been subjected to cross-examination including the Registrar, Trade Union and now the matter has been fixed for final arguments on 11.5.2004. Thus the earlier directions contained in the order dated 23.2.2004 have been complied with.
At this stage I do not find any justification for admission of this revision application, which shall cause delay in the disposal of matter pending before the Labour Court. The revision application is dismissed in limine along with the listed application.
(N.T.)      Application dismissed

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