1988 PLC(CS) 419

IHSANUL HAQ CHAUDHRY (CHAIRMAN).‑‑ The relevant facts for the decision of the appeal are that the appellant was posted as Assistant Food Controller PR Centre, Shergar in the year 1984‑85 when a total quantity of 23,487.110 M/Tonnes of wheat (2,47,350 bags) was purchased and stored at the Centre. It carne to the notice of the respondent No.l that a shortage of 3,970 'B' class empty bags (Bardana) had occurred at Shergar Centre. He, therefore, proceeded to serve the appellant and his Foodgrain Inspector i.e. Ijaz Nabi Saleemi with a show‑cause notice dated 1‑1‑1986. They were called upon to show cause why an amount of Rs.55,585 being the price of 3,970 empty bags at the rate of Rs.14 per bag should not be recovered from them. The appellant as well as his Foodgrain Inspector submitted their respective replies.

2. The main plank of the defence of the appellant was that since he was not incharge of the empty bags, therefore, he cannot be held responsible for their loss. The respondent No.l after due consideration of the reply of both the officials proceeded to impose the recovery of amount of Rs.55,580 on them in equal proportion. The order of respondent No.l is dated 13‑1‑1986.

3. The appellant alone filed an appeal while the Foodgrain Inspector deposited his share of the liability. Since the appeal was not decided within statutory period of 90 days, therefore, appellant filed the present appeal in this Tribunal under section 4 of the Punjab Service Tribunals Act, 1974.

4. The appeal was admitted to regular hearing on 4‑11‑1986. The respondents have contested the same. We have heard the learned Counsel for the appellant as well as Mr. A.G. Humayun, District Attorney for the respondents. The learned counsel for the appellant in support of the appeal has raised the following points:‑

(i) Firstly, that the appellant is not responsible as practically stocks and bags remained in the custody of Ijaz Nabi Saleemi, Foodgrain Inspector and the appellant was, most of the time, at Baseerpur in connection with rice procurement; and

(ii) Secondly, that supply of the bags was throughout received by Ijaz Nabi Saleemi, therefore, the appellant has wrongly been held responsible for the same.

5. The appellant in support of the contention has produced the reports as to the despatch of empty bags from Mughalpura, Lahore. On the other hand, learned District Attorney submitted that both the points raised by the appellant are in fact one and the same thing. The learned District Attorney produced record of the Deputy Director from which it is clear that while the empty bags were received by Ijaz Nabi Saleemi, Foodgrain Inspector from Mughalpura, Lahore but at the destination the same were received by the appellant. The appellant therefore, cannot escape from the liability. The appellant has rightly been held liable for the same and there is no merit in the appeal.

6. The appeal is, also, liable to be dismissed as the appellant has failed to implead all the necessary parties as respondents. The dispute was as to who out of Ijaz Nabi Saleemi and appellant is responsible and accountable for the loss of bags and to what extent. Therefore, the appellant was bound to implead the said Ijaz Nab Saleemi as a respondent.

7. Mr. Ijaz Nabi Saleemi was necessary party because in case we had come to the conclusion that he was responsible for whole loss and the appellant is not liable at all then how this recovery could have been imposed on Ijaz Nabi Saleemi, who has not been impleaded~ a party to the appeal. The law is very clear and strict. We in this behalf may refer to case of P.R.T.B. v. Tanvir Ahmad reported as 1983 C L C 1165. The relevant portion reads as under:‑

"11. Since Nazar Muhammad was not made a party and we have declined in exercise of our jurisdiction to implead him as a party, we cannot exercise the discretion under Order XLI, rules 4 and 33, C.P. C. and adjudicate the appeal on merits.

12. The appeal having not been properly constituted on account of absence of Nazar Muhammad a necessary party from array of respondents, is incompetent. It is accordingly dismissed with costs."

8. We hold that Ijaz Nabi Saleemi was a necessary party and in his absence, an effective order cannot be made. In this view of the matter, the appeal is liable to be dismissed on this score alone. The appellants should be careful in future while impleading the respondents in appeal in respect of liabilities. They should implead the necessary parties.

9. The result is that the appeal is dismissed with costs both on merits as well as being incompetent.

A.E. /192/Sr.P ???????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.