1. ' BASHARAT AHMAD SHAIKH, J.--- The appellants filed a writ petition in the High Court to challenge the order of Labour Appellate Tribunal passed on 17th of March, 1994. The writ petition has been dismissed by the High Court by its order of 23rd November, 1995 on the short ground that Labour Court was a necessary party but had not been impleaded as a respondent in the writ petition. The appellants have filed the present appeal to challenge that order.
2. ' The learned counsel for the appellants, Mr. Farooq Hussain Kashmiri, drew our attention to the following observations made by the learned Judge in the High Court: "It is celebrated principle of law that in the absence of the functionary whose order is assailed, the institution of the case is not proper and no relief can be granted. I am fortified in holding this view by the case captioned as 'Sadia Shah v. Nomination Board' decided by the Supreme Court of Azad Jammu and Kashmir in 1996 M LD 347, wherein the Secretary and Chairman of the Nomination Board were impleaded as a party in the petition, but the Board in itself was not impleaded as a party, the Supreme Court was pleased to set aside the order of the High Court passed in writ jurisdiction. A plethora of case-law is produced in the above-referred authority, wherein it is laid down that in the absence of impleading a necessary party/functionary whose order is assailed, the institution of writ is not competent."
3. ' Mr. Farooq Hussain Kashmiri submitted that there is no quarrel with the celebrated principle of law reiterated in paragraph reproduced above that a writ petition is liable to be dismissed if the functionary whose order is assailed is not impleaded as a respondent, but it escaped the attention of the learned Judge in the High Court that the Labour Court was not a functionary whose order had been assailed. It was explained that respondent No, 2, Manzoor Ahmad Butt, was dismissed from service of the National Bank and he challenged the order of his dismissal before the Labour Court which dismissed his petition. Thereupon, the order of Labour Court was challenged before the Labour Appellate Tribunal which accepted the appeal filed by the said respondent. Writ petition in the High Court was filed by the appellants, the functionaries of the National Bank of Pakistan, for annulment of the order passed by the Labour Appellate Tribunal and the revival of the order passed by the Labour Court. Mr. Farooq Hussain Kashmiri submitted that the appellants did not want any relief against the Labour Court rather they wanted that the order of the Labour Court should be revived by quashing the order passed by the Labour Appellate Tribunal.
4. ' The facts stated above are not disputed by Ch. Muhammad Ibrahim Zia, the learned counsel for respondent No, 2, Manzoor Ahmad Butt. However, reliance was placed by the learned counsel on the reasoning adapted in the judgment under appeal that Labour Court was a necessary party because all the evidence, including the inquiry report etc., was adduced before the Labour Court and it was basically the Labour Court which passed the order enabling Labour Appellate Tribunal to exercise its jurisdiction in appeal. The learned counsel referred to Muhammad Nazir v. Muhammad Ashraf PLD 1987 SC (AJ&K) 16; Muhammad Resham Khan v. Chairman, Inspection Team 1987 CLC 341; Syed Muhammad Akram Shah v. Chairman, Allotment Committee Appeal No, 8 of 1995; Hashwani Hotel Ltd. v. Federation of Pakistan 1987 CLC 341 and Teoomal v. Settlement and Rehabilitation Commissioner, Sanghar PLD 1981 Kar.
5. 349.
6. ' In Muhammad Nazir's case it was argued before this Court in appeal that the order of the Election Tribunal had been illegally set aside in the writ petition because the Election Tribunal was not arrayed as a respondent. This Court observed that in judgments reported as Hussain Bakhsh v.
7. Settlement Commissioner PLD 1970 SC 1; Abdul Ghani v. Settlement Commissioner 1971 SCM R 98; Teoomal v. Settlement and Rehabilitation Commissioner PLD 1981 Kar. 349 it was laid down that the authority which has made the impugned order is a necessary party and no effective order can be passed in the absence of such a party. However, it was noted that this point had not been decided by the High Court the case was, therefore, remanded for deciding this point.
8. ' In Resham Khan's case it was held by this Court that it is mandatory requirement that in a writ petition the Government or the person performing functions in connection with the affairs of the State whose order is challenged is made a party.
9. ' In Syed Akram Shah's case it was held by this Court that it was settled beyond dispute that a writ petition is maintainable only if the authority which has made the order or against whom a direction is sought is impleaded as a respondent.
10. ' In Hashwani Hotel's case it was held that no effective relief could be granted to the petitioner because all the concerned parties were not before the Court. The facts of the case were that Hashwani Hotel Ltd. Filed a writ petition seeking benefit of reduced rate of interest granted to hotel industry. The writ petition was dismissed on merits but in addition to it, it was found that loans had been taken by the Hashwani Hotel Ltd. From two consortiums consisting of five and seven companies respectively but out of them only Investment Corporation of Pakistan was impleaded as a respondent. It is in light of these facts that it was held that no effective relief could be granted to the petitioner.
11. ' In Teoomal's case a Division Bench of Karachi High Court held that the authority whose order is impugned would be a necessary party in a writ petition.
12. It is clear from these judgments discussed above that in a writ petition that functionary of the State whose order or action is challenged or against whom a direction or prohibition is sought is a necessary party. In the absence of such a functionary a writ petition is not maintainable because an effective order cannot be passed. Appeal No, 23 of 1995 "Rahat Saeed Bokhari v. Sadia Shah" was relied upon by the learned Judge in the High Court but the dictum in that judgment is not in any way different. We may quote:-- " It is a fundamental requirement of law that if an order of a public functionary has to be challenged in the High Court through a writ petition that functionary must be impleaded as a party.
13. Similarly if a direction or prohibition is sought against a public functionary that functionary is a necessary party without which neither a writ petition is maintainable or an effective order can be passed. In the present case the direction issued to the Nomination Board has been given in its absence and that Board is, therefore, not bound by the order of the High Court. The Chairman and the Secretary of the Nomination Board are not the same as Nomination Board itself. Thus, the writ issued in the case is not effective."
14. ' The same view has been expressed in Muhammad Resham Khan's case already mentioned above, Abdul Hamid v. Muhammad Zameer 1990 M LD 1617, Mirza Lal Hussain v. Custodian of Evacuee Property 1992 SCR 214, Barkat Hussain v. Sardar Misri Khan PLD 1992 SC (AJ&K) 45 and Muhammad Shafi v. Feroz Khan 1994 SCR 19.
15. ' The fact that it was basically the Labour Court which passed the order enabling the Labour Appellate Tribunal to exercise its jurisdiction in appeal does not make the Labour Court a necessary party. The order passed by the Labour Court is favourable to the appellants and therefore, they do not want any relief against the said Court. It may be noted that the order of the Labour Court has already been vacated and question of seeking any relief against that Court does not arise.
16. ' The result is that no legal defect occurred due to the absence of the Labour Court from the line of respondents in the writ petition and the judgment of the High Court is not, for that reason, sustainable. The appeal is accepted and the order of the High Court is set aside. The writ petition filed by the appellants is restored to its original number so that it may be decided in accordance with law by the High Court.
17. ' The parties are directed to appear before the Registrar of the High Court on 29th February, 1996 to take further orders.