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Constitutional Petition No.D-228 of 1981, decided on 28th September, 1986.

---Art.9--Civil Procedure Code (V of 1908), O.VI, R.17- Constitutional Petition--Application for allowing amendments in petition--Amendments sought to be made in petition and prayer clause likely to introduce a new case which was not pleaded earlier at any stage of proceedings and no useful purpose was to be served if petitioner allowed to make amendments--Amendments sought were not only of incidental nature but if allowed would completely alter relief, sought by petitioner in case--Application dismissed--Held, in exercise of constitutional jurisdiction petitioner could not be allowed to take up a plea which was not taken by him earlier before any of the tribunals.

Rashid Akhund for Petitioner.

M.L. Shahani for Respondents.

.--These two applications namely C.M.A. No.1765/86 and C.M.A. No.357/86 were' dismissed by us today by a short order, the reasons for which are as follows:-

The Petitioner in the main petition has impugned the orders dated 27-11-1980 and 21-12-1980 passed by the learned Sind Labour Appellate Tribunal, Karachi. The facts forming background of the case are that the respondent No.3 was working with the Petitioner as commercial Art Editor. During the course of his employment the respondent No.3 was charged with misconduct and consequently his services were terminated by the Petitioner. Thereafter, the respondent No.3 served grievance notice dated 16-8-1976 on the Petitioners and on 16-10-1976 he filed a grievance Petition under Section 25-A of the I.R.O. before the learned Labour Court, Karachi. The Petitioners then filed reply statement wherein amongst others an objection was taken that the application of the respondent No.3 was barred by limitation. However, the Labour Court after dealing with the objection came to the conclusion that the grievance application of the respondent was within time and the orders of termination passed against the respondent No.3 were set aside and the respondent was reinstated in service of the Petitioners with back benefits. The Petitioner then filed appeal before the learned Sind Labour Appellate Tribunal which was dismissed vide order dated 27-11-1980 for non prosecution. The Petitioner then filed an application for restoration of the appeal before the learned Appellate Tribunal which was also dismissed vide order, dated 21-12-1980 and thereafter petition No.D-228/81 was filed.

During the pendency of this petition the petitioner has now filed an application (C.M.A. No.357/86) under the provisions of Order VI Rule 17, and section 151, C.P.C. seeking amendments in the petition. Firstly the Petitioner seeks to amend para (b) of the "Grounds" by substituting ground b(i) and b(ii) in its place. Originally, according to ground (b), one of the grounds on which the orders of the Learned Appellate Tribunal were assailed was, that grievance notice dated 16-8-1976 was time barred as the same had been issued after expiry of the statutory period prescribed under Section 25-A of the I. R.O. Now the Petitioner seeks to substitute grounds No. b(i) and b(ii) by stating that grievance application of the respondent No.3 under Section 25-A of the I.R.O. was time barred in view of the grievance notice being sent by the respondent No.3 to the Petitioners on 3-6-1976. Besides seeking to substitute ground (b) as pointed out above, the Petitioner also seeks to make consequential amendments in the prayer clause.

The objection of Mr. M.L. Shahani, learned counsel for the respondent No. 3 in the case was that the Petitioners cannot be allowed to make such amendments so as to change the fundamental character of the case.

We have perused the written statement filed by the Petitioner before the Labour Court, a copy of which has been filed by the Petitioner alongwith the memo of petition as annexure A. It is clear that the new ground sought to be taken by the Petitioner now through the proposed amendments had not been taken by him in the written statement. This is further confirmed by the order 'dated 28-4-1980 passed by the learned Labour Court wherein in para 5, the other objection of the Petitioner has been discussed but it nowhere transpires that such objection had been taken. Mr. Rasheed Akhund, learned counsel for the Petitioner however, pointed out that such argument was advanced on behalf of the Petitioner but the same was not considered by the learned Labour Court. We might have agreed with Mr. Rasheed Akhund if this assertion had found mention in the memo of appeal which had been filed by the respondent before the learned Appellate Tribunal, but a perusal of the memo of appeal, which has been filed as annexure C to the Petition, shows that no such objection had been taken by the Petitioner. The inference, therefore, would 'be that no such argument had been advanced on behalf of the Petitioner. Even in the Petition, 16-8-1976 has been mentioned as the date of the grievance notice. It is the before, clear that by grounds No. (b) (i) and b(ii), the Petitioner now wants to introduce a new case which was not pleaded by him earlier at any stage of the proceedings. It may be pointed out that in the exercise of constitutional, jurisdiction the Petitioner cannot be allowed to take up a plea which was not taken by him earlier before any of the Tribunals. We are therefore of the opinion that in such view of the matter no useful purpose would be served by allowing the Petitioner to make these amendments in the Petition. Similar appears to be the case with amendments sought to be introduced in the prayer clause. The amendments sought are not only of incidental nature but if allowed, they will completely alter the relief sought by the Petitioner in the case. For such reasons, C.M.A. No.357/86 was dismissed by us.

As far as C.M.A. No.1765/86 is concerned, the Petitioner had sought calling of the record of the case from the learned Labour Court in order to confirm that the respondent had filed the said grievance notice dated 3-6-1976 alongwith his affidavit dated 18-10-1976 filed in the said case. This prayer in C.M.A. No.1765/87 being connected with the same subject-matter of C.M.A. No.357/86, would have served no purpose even if the same had been granted. C.M.A. No.1765/85, therefore, was also dismissed.

M.Y.H./H-22/K Application dismissed

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