[2016J4 S.C.R. 80

M. S. KAZI

MUSLIM EDUCATION SOCIETY & ORS.

(Civil Appeal Nos. 11976-11977 of2014)

AUGUST 22, 2016

[T.S. THAKUR, CJI, A.M. KHANWILKAR AND DR.

D.Y. CHANDRACHUD, JJ.]

Constitution of India -Arts. 226 and 227 - Proceedings under, maintainability - Whether Tribunal 1vhose order challenged in the writ proceedings. necessw:r party to the proceedings - In the instant case, appellant an Assistant Teacher, challenged his dismissal from service before the Tribunal - Tribunal dismissed the application - Single Judge of High Court in a petition by appellant under Arts. 226 and 227 upheld the dismissal on merits - In LPA, the Division Bench held the appeal to be not maintainable in absence of impleadment of the Tribunal in the writ proceedings - Held: Before the Tribunal, the legality of the order of dismissal of appellant was in question - Tribunal having upheld the dismissal, the la11fulness of the punishment imposed upon the appellant was a matter for the employer to defend against a challenge of illegality in the writ proceedings u/Arts. 226 and 227 - Therefore, the /is was between the management and a member of its teaching staff - Hence, the Tribunal was not required to defend its own order in the writ proceedings u!Arts. 226 and 227 and thus was not a necessary party - Judgment of Division Bench set aside, LPA restored for disposal on merits - Since the charge sheet was issued J.I years ago, High Court to endeavour an expeditious disposal - Gujarat Secondary Education Act, 1972 - ss. 31, 36, 38, 39 - Party - Necessary party - Service law.

Allowing the appeals, the Court

HELD: 1. The Gujarat Secondary Education Act 1972 was enacted by the State legislature for the regulation of secondary education in the State. Section 39 provides for the constitution of a tribunal. Section 38 confers upon the tribunal the jurisdiction to decide certain disputes. The tribunal was constituted both as an original and an appellate adjudicating forum: an original forum

M. S. KAZI

v. MUSLIM EDUCATION SOCIETY 81

to decide disputes under Section 38 (1) and an appellate forum A under Section 39(5). [Para 7) [84-D-E : 85-D)

Sh Jogendrasinhji Vijaysinghji v. State of G11jarat and Ors. 2015 (6) SCR 504: (2015) 9 SCC 1relied on.

Gujarat State Road Transport Corporation v. Firoze M Moga! & Anr. 2014 GLH 1 - referred to.

2.1. The tribunal was not required to defend its orders when challenged before the High Court in a Special Civil Application under Articles 226 and 227. The /is was between the management and a member of its teaching or non-teaching staff, as the case may be. It is for the person aggrieved to pursue his or her remedies before the tribunal. An order of the tribunal is capable of being tested in exercise of the power of judicial review under Articles 226 and 227. When the remedy is invoked, the tribunal is not required to step into arena of conflict for defending its order. Hence, the tribunal was not a necessary party to the proceedings in a Special Civil Application. [Para 8) (85-E-F]

2.2. The appellant instituted a proceeding before the tribunal to challenge an order of dismissal passed against him in disciplinary proceedings. Before the tribunal, the legality of the order of dismissal was in question; The lawfulness of the punishment imposed upon the Appellant was a matter for the employer to defend against a challenge of illegality in the Special Civil Application. The tribunal was not required to tlefend its order in the writ proceedings before the Single Judge. Even if the High Court was to require the production of the record before the tribunal, there was no necessity of impleacJing the tribunal as a party to the proceedings. The tribunal not being reql!ired in law to defend its own order, the proceedings under Articles 226 and 227 of the Constitution were maintainable without the tribunal being impleaded. [Para 9) (85-G-H; 86-A]

2014 GLH 1

2015 (6) SCR 504

Case Law Reference

referred to relied on Para 5 Para6

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 11976- 11977 of2014.

A From the Judgment and Order dated 24.12.2012 of the High Court

of Gujarat at Ahmedabad rendered in Special Civil Application No. 20747 of2006.

C. George Thomas, Ejaz MaqbooL Advs. for the Appellant.

Ms. Jesal Wahi, Kabir Hathi, Ms. Shikha Sandhu, Ms. Soumi Kundu, Ms. Hemantika Wahi, Ms. Sadhana Sandhu, Advs. for the Respondents.

The Judgment of the Court was delivered by

DR. D. Y. CHANDRACHUD, J. A Division Bench of the High Court of Gujarat dismissed a Letters Patent Appeal filed by the Appellant.

The LPA arose out of the dismissal of a Special Civil Application under Articles 226 and 227 of the Constitution by a learned Single Judge on the ground that it was not maintainable. In arriving at this conclusion the Division Bench relied upon a judgment rendered by a five-Judge Bench of the High Court in Quiarat State Ro9gJransport Cor11oratio11 Vs. Firoze M. Moga I and Anl., in which it was held that a Special Civil Application under Articles 226 and 227 of the Constitution is not maintainable where the court or tribunal whose order is sought to be quashed is not impleaded as a party to the proceedings. The Appellant assails the judgment of the Division Bench.

2. The Appellant was employed as an Assistant Teacher on 30 June 1978 in a school conducted by the first Respondent, which is a minority institution. On 25 June 2002 a chargesheet was issued to the Appellant alleging that between 29 November 2001 and 15 December 200 I, he had proceeded on a pilgrimage without prior permission and was absent without sanctioned leave. Apart from this al legation, which constituted the first article of charge, the second was that whereas in his application for withdrawal from the provident fund, the reason of the pilgrimage was shown to be Haj, the application for leave indicated a pilgrimage to Umrah. The Appellant denied the charges. Upon a departmental inquiry, the charges were found to be established and the Appellant was dismissed from service on 13 January 2004. The Appellant moved the Gujarat Higher Secondary Education Tribunal for challenging the order of dismissal. On 13 June 2006, the Tribunal dismissed the application.

H 1 (2014GLl-!l]

3. Aggrieved by the order of the Tribunal, the Appellant instituted a Special Civil Application under Articles 226 and 227 of the Constitution before the High Court. Besides seeking to challenge the order of the Tribunal and the punishment of dismissal, the Appellant sought consequential reliefs for treating him in service until October 2005 when he attained the age of superannuation and the grant of pensionary benefits.

4. The learned Single Judge of the High Court dismissed the writ petition on 24 December 2012 on merits holding that the charge of misconduct stood established and there was no illegality in the view taken by the Tribunal or in the decision of the disciplinary authority. An

LPA under Clause 15 of the Letters Patent was thereupon filed.

5. The Division Bench by its judgment dated 28 March 2014 held that the appeal was not maintainable. From the record, it appears that though the Tribunal was not imp leaded as a party to the Special Civil Application, it was impleaded to the LPA. Be thatas it may, the High Co mt relied upon a judgment of a Bench of five-Judges of that court in Gujarat State Road Transport Corporation (supra). The judgment, inter alia, holds that where a Special Civil Application is described as one under Articles 226 and 227 of the Constitution and the court or tribunal whose order is impugned is not made a party, the application wouldnot be maintainable. In such an event, the ojection to maintainability would - it was held - not be cured merely by impleading the tribunal or court to the LPA against a judgment of the Siilgle Judge.

6. The issue whether a tribunal or cou1t whose order is challenged in proceedings under Articles 226 and 227 of the Constitution is a necessary party to the proceedings has been considered in a judgment of this Court in Sh Jogcndrasinhji Viig.l§.inghji_Vs. State ofGuiarat and

Ors~. The judgment of this Court has also adverted to the view that was taken in the judgment rendered by a Bench offiveJudges of the Gujarat High Court, noted above. After considering the position in law emanating from the earlier decisions of this Court, the judgment holds thus:-

"43 .............. Therefore, the proposition that can safely be culled out is that the authorities or the tribunals, who in law are entitled to defend the orders passed by them, are necessary parties and if they are not arrayed as parties, the writ petition can be treated to

1 (2015)9 sec 1

be not maintainable or the court may grant liberty to implead them as parties in exercise of its discretion. There are tribunals which are not at all required to defend their own order, and in that case such tribunals need not be arrayed as parties: To give another example:- in certain enactments, the District Judges function as Election Tribunals from wl~_:e n.-ders a revision or a writ may lie depending upon the pm"':ions in the Act. In such a situation, the superior court, that is the High Court, even if required to call for the records, the District Judge need not be a par1Y. Thus, in essence, when a tribunal or authority is required to defend its own order, it is to be made a party failing which the proceeding before the High Court would be regarded as not maintainable."

7. The Gujarat Secondary Education Act 1972 was enacted by the State legislature for the regulation of secondary education in the State. Section 2( o) defines the expression private secondary school to mean a secondary school which is not owned, managed or sponsored by the Central or the State Governments.In order to be a registered school under Section 2 (s), the school has to be registered by the Gujarat Secondary and Higher Secondary Education Board under Section 31.

Section 39 provides for the constitution ofa tribunal. Section 38 confers upon the tribunal the jurisdiction to decide certain disputes. Section 38 provides as follows:

"38. Dispute to be decided by Tribunal- (I) Where there is any dispute or difference between the manager of a registered private secondary school and any person in service of such school as head-master a teacher or a member of non-teaching staff, which is connected with the conditions of service of such person, the manager or, as the case may be, the person may make an application to the Tribunal for the decision of the dispute.

(2) As from the appointed day the State Government or any officer of the State Government shall have no jurisdiction to decide any such dispute pending before the State Government or any officer of the State Government immediately before the appointed day shall, as soon as may be, after the appointed day, be transferred to the Tribunal for its decision."

Under Section 39 ( 4) the tribunal is empowered to decide among other things a dispute of the nature referred to in sub-Section (I) ofSection 38 or an appeal under sub-Section (5) of Section 36.Under sub-Section (5)

of Section 36 a person aggrieved by an order of dismissal, removal or reduction in rank has a remedy of an appeal before tribunal.Section 39

(9) provides for the orders which can be passed by the tribunal upon finding that the dismissal, removal or reduction in rank of a headmaster, teacher or member of the non-teaching staff is unlawful or unjustified.

Section 39(9) is in the following terms:

"(9) Where any order of dismissal, removal or reduction in rank of a headmaster, a teacher or a member of the non-teaching staff ofa registered private secondary school is decided by the Tribunal to be wrong, unlawful or otherwise unjustified, the Tribunal may pass an order directing that the head master, the teacher or, as the case may be, the member of the non-teaching staff concerned shall be reinstated in service, or as the case may be, restored to the rank which he held immediately before his reduction in rank, by the manager, and the manager shall fo11hwith comply with such direction."

The tribunal, in other words is constituted both as an original and an appellate adjudicating forum: an original forum to decide disputes under Section 38 (I) and an appellate forum under Section 39(5).

8. The tribunal is not required to defend its orders when they are challenged before the High Court in a Special Civil Application under Articles 226 and 227. The !is is between the management and a member of its teaching or non-teaching staff, as the case may be. It is for the person aggrieved to pursue his or her remedies before the tribunal. An order of the tribunal is capable of being tested in exercise of the power of judicial review under Articles 226 and 227. When the remedy is invoked, the tribunal is not required to step into arena of conflict for defending its order. Hence, the tribunal is not a necessary party to the proceedings in a Special Civil Application.

9. The Appellant instituted a proceeding before the tribunal to challenge an order of dismissal passed against him in disciplinary proceedings. Before the tribunal, the legality of the order of dismissal was in question. The lawfulness of the punishment imposed upon the Appellant was a matter for the employer to defend against a challenge of illegality in the Special Civil Application. The tribunal was not required to defend its order in the writ proceedings before the learned Single Judge.Even if the High Court was to require the production of the record before the tribunal, thcre was no necessity of impleading the tribunal as

A a party to the proceedings. The tribunal not being required in law to defend its own order, the proceedings under Articles 226 and 227 of the Constitution were maintainable without the tribunal being imp leaded.

I 0. For these reasons, we hold that the High Court was in error in dismissing the LPA on the ground that it was not maintainable.

B Consequently, the judgment an'.:! v•..'.'.!~ of the Division Bench dated 28 March 2014 is set aside and 1 ". ·. ~6of2014 is restored before the High Court for disposal on merits.

11. Since the disciplinary proceedings relate to a chargesheet which was H>sued fourteen years ago, we would request the High Court to c endeavour an expeditious disposal. We clarity that all the rights and contentions of the parties on merits are left open for decision by the High Court.

12. The Civil Appeals are allowed in the above terms. No costs.

Divya Pandey Appeals allowed.