( 1 ) THIS is an appeal against the judgment and order passed by Banerjee, J. dated April 19, 1971 in C. R. 1848 (W) of 1967 whereby the Rule was made absolute. The facts, in brief, according to the petitioner are as follows: The petitioner since 1963 had been working as temporary Messenger (Civilian) under Administrative Officer, Head Quarters, Eastern Command, Fort William, Calcutta. The petitioner while on duty at Fort William fell ill on October 20, 1966 and was examined by the office surgeon. The petitioner filed his sick report to the general staff (BR) and at that time he informed the Superintendent (G. S.) (Co-ordination) that as he was felling unwell he might not be able to perform command duty on October 22, 1966. On returning home petitioner's illness aggravated and a local medical practitioner attended him and when the petitioner rejoined on October 31, 1966 he submitted a medical certificate. On October 27, 1966 a memo was sent by GSO-I (SD) to the dismissing authority stating that the petitioner's explanation that he informed G. S. (Co-ordination) of his absence prior to absenting was false. The petitioner's application for leave submitted on October 24, 1966 was forwarded for necessary action. It was also stated therein that the petitioner was a regular offender in regard to absence without leave. It was stated that stern disciplinary act on should be taken against him for making false declaration and for absenting without leave on October 22, 1966. It was further requested that the petitioner should be replaced by a suitable hand. On November 5, 1966 the petitioner was served with a notice calling upon him to show cause why disciplinary action should not be taken against him for absence without leave on October 22, 1966 and for making false statement. The petitioner filed his defence denying the allegations and reiterated that he had informed the Superintendent (GS) while handing over his sick report on October 20, 1966 that he might not be able to report on October 22, 1966. SOI (SD) forwarded the explanation to the show cause notice stating the petitioner should have been more careful in regard to duty on holidays and his case for absence without leave was acceptable as it was accompanied with medical certificate. SOI (SD) forwarded the explanation to the show cause notice stating the petitioner should have been more careful in regard to duty on holidays and his case for absence without leave was acceptable as it was accompanied with medical certificate. It was however stated that the petitioner's statement that he informed superintendent G. S. (Co-ordination) about his inability to perform Command duty on October 22, 1966 was wrong. The authorities found fault with the petitioner as he passed over the G. S. branch and submitted his explanation direct to the Administrative Branch. Disciplinary action, it was said, was merited by reason of his false statement about inability to perform the Command duty on October 22, 1966 and the insubordinate manner in which he submitted his explanation. Thereafter the following order was passed: confidential notice of Termination of Services under Rule 5 of Central Civil Services (Temporary Service) Rules, 1949 Sri P. C. Guha, Temporary Messenger is hereby given notice that his service is terminated from the date of expiry of one calendar month commencing from 24 December, 66. Sd/- Illegible brig. IC Adm. Headquarters Eastern Command fort William, Calcutta-21 24 Dec. 66. ( 2 ) THE petitioner contended that the order of termination of service under Rule 5 of the Central Civil Services (Temporary Services) Rules 1949 was unwarranted as the petitioner was not governed by the said service rules. The order was by way of punishment without inquiry and there was not second show cause notice thereby denying him the reasonable opportunity of being heard as provided under Article 311 of the Constitution. Further while, petitioner's explanation was accepted new charges were brought against him and the order was thus malafide, and colourable exercise of power. Further, the punishment was disproportionate and severe and the punishing authority was prejudiced by the observations of G. S. Branch. On these allegations and contentions the petitioner moved this Court under Article 226 (1) of the Constitution praying for a writ in the nature of certiorari quashing the order of termination of service and also for a writ in the nature of mandamus directing the respondents to cancel or rescind the impugned order. On this application this Court issued this instant Rule on September 11, 1967 in terms of the prayer. ( 3 ) THE respondents in this Rule were the Administrative Officer, Headquarters E. C. Fort William, Brigadier-in-charge Administration Fort William. On this application this Court issued this instant Rule on September 11, 1967 in terms of the prayer. ( 3 ) THE respondents in this Rule were the Administrative Officer, Headquarters E. C. Fort William, Brigadier-in-charge Administration Fort William. Superintendent G. S. (Co-ordination) and Secretary in the Ministry of Defence, Government of India. The affidavit-in-opposition was filed on behalf of the respondents by Saudagar Singh, Superintendent G. S. (Co-ordination) affirmed on September 6, 1968 denying all material allegations. It was reiterated that the petitioner made false statement to the Superintendent G. S. regarding his inability to perform the command duty on October 22, 1966. It was stated that the petitioner could not be retained in service as his retention would set a bad example to other employees in Defence Department in the interest of defence service. It was stated that the petitioner was property dealt with under the relevant rules. Action was taken by appropriate authority who was in duty bound to maintain proper order and discipline in Administrative office of Headquarters. It was further stated that Rules referred in the termination notice was incorrect, as the petitioner was governed by Civilians in Defence Services (Temporary Service) Rules, 1949 and Rule 5 thereof warranted the passing of the impugned order. ( 4 ) THE learned Judge held that misquotation of the relevant rule in the impugned order did not make the order bad when the power was there. It was found that on the affidavit filed on behalf of the respondents that the order of termination of service was by way of punishment and it was not an order of termination simpliciter. The Rule accordingly was made absolute and the impugned order was set aside and quashed giving opportunity to the respondents to proceed in accordance with law. The propriety of the order has been challenged in this appeal. ( 5 ) MR. Upendra Chandra Mallick, learned Advocate appearing for the appellants contended that the learned Judge erred in holding that the order of termination was by way of punishment and not an order of termination simpliciter under paragraph 5 of the Rules. It was submitted that the learned Judge ought to have held that termination was not on the basis of proceeding initiated on the show cause notice. Mr. It was submitted that the learned Judge ought to have held that termination was not on the basis of proceeding initiated on the show cause notice. Mr. Gopal Chakraborty, learned Advocate for the petitioner-respondent contended on the other hand that the above contentions were untenable and the learned Judge committed no error in holding that the impugned order was by way of punishment. He referred us to the relevant paragraphs of the affidavit-in-opposition which according to him clearly indicated that the order was passed by way of penalty. ( 6 ) AS was held in (1) Champaklal v. Union of India, AIR 1964 SC 1854 , temporary servants are entitled to protection of Article 31 (2) in the same manner as permanent Government servants but this protection is available when dismissal, removal, or reduction in rank is sought to be inflicted by way of punishment and not otherwise. In (2) State of Punjab v. Sukh Raj Bahadur, AIR 1968 SC 1089 it was held that the services of a temporary servant can be terminated under rules of employment and such termination without more would not attract the operation of Article 311 of the Constitution. The attending circumstances have to be examined in each case, motive behind it being immaterial, and order of termination in unexceptionable form, not visiting the public servant with any evil consequences or casting any aspersion against his character or integrity, preceded by an inquiry by the superior authority to ascertain if he should be retained in service, does not also attract the operation of Article 311. In (3) State of Bihar and Ors. v. Bhikshuk Misra, AIR 1971 SC 1011 , it was laid down that the entirely or circumstances preceding or attendant on the impugned order must be examined and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order. ( 7 ) IN the case before us it appears that the order of termination was by itself innocuous. The affidavit-in-opposition however indicted in paragraph 17 that the petitioner could not be kept in service inasmuch as his retention would set a bad example to other employees in the Defence Department in the interest of Defence service. ( 7 ) IN the case before us it appears that the order of termination was by itself innocuous. The affidavit-in-opposition however indicted in paragraph 17 that the petitioner could not be kept in service inasmuch as his retention would set a bad example to other employees in the Defence Department in the interest of Defence service. It is further stated in paragraph 19 that the action to dispense with the service of the petitioner was perfectly valid and good and was taken after due consideration of all relevant facts and circumstances by the competent authority who were duty bound to maintain proper order or discipline in the administrative office of Headquarters, Eastern Command, Fort William, Calcutta. ( 8 ) THESE assertions clearly indicate that the alleged misconduct of the petitioner was not merely the motive but the very foundation of the impugned order. The petitioner's service was terminated because he could not be retained in the interest of discipline in the organisation as he was held guilty of making false statement and insubordination and this clearly indicated that the action was taken by way of punishment against his alleged misconduct. If this was the position, the petitioner was entitled on the authority of the above decisions to the protection of Article 311 before his service could be terminated. Accordingly, we are of opinion, in agreement with the learned Judge that the impugned order which was by way of punishment being in violation of the provisions of Article 311 (2) or under the relevant rules could not be sustained. ( 9 ) MR. Chakraborty has raised another point in that the reference to the rule on basis whereof the order of termination was passed was incorrect and as such the order on this ground also could not be sustained. The contention was overruled by the learned Judge and rightly in our opinion, as where the powers exists the misquotation of the rule would not invalidate the order. In (4) Hukum Chand v. Union of India, A. I. R. 1959 S. C. 536, mistake of reference was not considered of vital importance as to affect the validity of the order of removal. In (4) Hukum Chand v. Union of India, A. I. R. 1959 S. C. 536, mistake of reference was not considered of vital importance as to affect the validity of the order of removal. The same view was taken in (5) J. K. Steel v. Union of India, A. I. R. 1970 S. C. 1173 in which it was observed that if the exercise of a power can be traced to a legitimate source, the fact that the same was purported to have been exercised under a different power does not vitiate the exercise of power in question. It has not been disputed that the appointing authority had otherwise the requisite power to terminate the service of the petitioner under the rules though the same was stated to have been exercised under a different power which was not applicable. The Civilians in Defence Services (Temporary Service) Rules, 1949 were framed in April 30, 1949 in exercise of the powers conferred by sub-section (2) of section 241 of the Government of India Act, 1935 and the Rule 5 (a) thereof provides that the service of a temporary Government servant who is not in quasi-permanent service shall be liable to termination at any time by notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant. It was further provided in sub-section (b) that the period of such notice shall be one month, unless otherwise agreed to by the Government and by the Government servant. Accordingly it is obvious and it has not been disputed that the Government had otherwise the requisite power to terminate the service of the petitioner under Rule 5 of the said Rules. ( 10 ) THERE is however a formidable obstruction in the way of the petitioner's success. The Union of India has not been made a party respondent in the writ proceedings and the question before us is whether the defect of non-joinder of the Union of India is fatal to the writ proceedings. Though this point was not taken or urged before the learned Judge it is a matter fundamental in that a writ court will not issue a futile writ which cannot be enforced. Though this point was not taken or urged before the learned Judge it is a matter fundamental in that a writ court will not issue a futile writ which cannot be enforced. The petitioner had been an employee of the Government of India which was its employer and obviously the order of termination was given effect to by the Government of India. If the order of termination be set aside the result would be that the petitioner must be deemed to be in service as if his service was never terminated and he would otherwise be entitled to his salary in the meantime and throughout from the Government of India. Unless the Central Government was a party to the writ proceeding it would not be bound by the order passed in this proceeding setting aside the termination nor would have the liability under the said order to pay the salary for the period and treat the service as subsisting and accordingly the writ as might be issued would be nugatory and futile. There can be thus be little doubt that the Union of India was a necessary party to the proceeding and not merely a proper party. ( 11 ) THE judicial decisions are uniform in holding that if no relief is claimed against a party he need not be made a party respondent. Reference may be made to the decision cited by Mr. Chakravarti in (6) Syed Hussain v. Syed Siddiq, A. I. R. 1959 Rajasthan 177 in which it was held that as no relief was claimed against the Central Government though the vires of a Central Act was challenged, it was not necessary party. In (7) Sri Krishna Rice Mills v. Deputy Director, Food, Government of India, A. I. R. 1960 A. P. 431 it was held that the court could not adjudicate on the validity of an act of an authority in its absence and any person who is likely to be affected by any decision given by a Court should be added as a party. In (8) Udit Narain Singh v. Additional Member of Board of Revenue, Bihar, A. I. R. 1963 S. C. 786 the principle was set out as follows: ?a necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. ? it was further observed: ?in a writ of certiorari the defeated party seeks for quashing of the order issued by the Tribunal in favour of the successful party. . . Without the presence of the successful party the High Court cannot issue a substantial order affecting his right. Any order that may be issued behind the back of such a party can be ignored by the said party with the result that the tribunal's order would be quashed but the right vested in that party by the wrong order of the tribunal would continue to be effective. Such a party therefore is a necessary party and a petition filed for the issue of a writ of certiorari without making him a party or without impleading him subsequently if allowed by the court would certainly be incompetent. ? ( 12 ) IT would also be noted that no proceeding was pending before the Disciplinary Authority after the order of termination was passed. The position would have been different if the writ proceeding was initiated against an interlocutory order or steps in course of a disciplinary proceeding and such proceeding was still pending when the writ was to be issued. But once a final order is passed terminating the proceeding the employer of the public servant in Government service the Central or State Government as the case may be, must be made a party or otherwise such Government will not be bound by an order that may be passed by the Court and issuance of writ in such circumstances will be futile. It will not be enough to make the Secretary of the Government a party respondent as the Secretary is not the Government nor competent to represent a Government in its absence. Accordingly the omission to implead the Central Government as the Union of India as provided in Article 300 of the Constitution is fatal to the writ proceeding. ( 13 ) MR. Accordingly the omission to implead the Central Government as the Union of India as provided in Article 300 of the Constitution is fatal to the writ proceeding. ( 13 ) MR. Chakraborty next submitted that the Court may at any stage add a party to the proceeding if such party is considered to be a necessary party to the proceeding and this power indisputedly the court has even at the appellate stage. For this unfortunate omission, for which the petitioner was not responsible, the court should not dismiss the application challenging an order found to be bad and unsustainable in law. Under sub-section (1) of section 21 of the Limitation Act, which applies in terms to suits, when new party is substituted or added, the suit is to be deemed to have been instituted when he was so made a party, provided the court being satisfied that such omission was due to a mistake in good faith, may direct that the suit as regards such party is to be deemed to have been instituted on any earlier date. There are authorities holding that Court has ample as also inherent power to permit addition of parties in appeal in order to do justice between the parties. ( 14 ) WE are however not satisfied that the omission was due to mistake in good faith as in the facts of the case the Union of India was really the most material party which was to be restrained from giving effect to the impugned order. The result of allowing Union of India a party to the proceeding at this stage will be to require the Union of India to treat the petitioner all through as being in service from January 1967 when the order became effective. ( 15 ) THE question of adding a necessary party at a belated stage of proceeding really involves a consideration of the law relating to delay in initiating writ proceeding in service matters. In (9) Kamini Kumar Das Choudury v. State of West Bengal, A. I. R. 1972 S. C. 2060 in an appeal from a decision of this Court, the Supreme Court was considering an order of dismissal dated August 1, 1951 and an order of departmental appeal therefrom on October 27, 1951 affirming the dismissal while the petition under Article 226 of the Constitution was filed on September 9, 1953. It was observed as follows: ?it (Division Bench of this Court) rightly observed that laches is a well established ground for refusal to exercise the discretion to issue a writ. . . . The Division Bench had also referred public interest or public policy which could be taken into account in cases where a public servant had come to a Court of an order in the nature of Mandamus for reinstatement. It has held that in such cases, promptness on the part of aggrieved servant is essential for invoking the extraordinary jurisdiction of a High Court so that the State is not called upon to pay unnecessarily for the period for which the dismissed servant is not employed by it. ? the Court further observed that delay may raise suspicious about the motive of the dismissed employee. The Court accordingly was opinion that there are good grounds for refusal to exercise the discretion to interfere with the impugned order of dismissal. ( 16 ) IN (10) State of Madhya Pradesh v. Bhailal, AIR 1994 S. C. 1006, it has held that the maximum period of time within which the relief by a suit in Civil Court must be brought may ordinarily be taken to be a reasonable standard by which the delay in seeking remedy under Article 226 can be measured. A delay may not even be reasonable even it is less than the period of limitation but where the delay is more than this period, it will almost always be proper for the Court to hold that it is unreasonable. ( 17 ) AS we have seen a harder line has been taken about matters relating to dismissal from service on ground of public policy and in public interest on the question of delay in initiating proceeding under Article 226. The consensus is that the aggrieved person must approach the Court with utmost expedition and any delay for inaction for any period must be reasonably explained to the satisfaction of court before the application could be taken up for consideration. The consensus is that the aggrieved person must approach the Court with utmost expedition and any delay for inaction for any period must be reasonably explained to the satisfaction of court before the application could be taken up for consideration. On the above principles we do not feel that the leave should be granted to the petitioner to implead the Union of India at this belated stage in the appellate court, the effect whereof will be to take up a dismissal order long after seven years it had come into effect when by all criteria a writ petition after such lapse of time would be condemned. For all these reasons the appeal is allowed; the order under appeal is set aside and the rule is discharged. There will be no order as to costs in the circumstances. All interim orders if any are vacated. B. C. Ray J. : I agree. Appeal allowed.