|CITATION||2016 SCC OnLine SC 841|
|COURT||Supreme Court of India|
|JUDGES/CORAM||Justice T.S. Thakur, Justice A.M Khanwilkar and Justice D.Y. Chandrachud|
|DATE OF JUDGEMENT||22.08.2016|
The three-judge bench of Hon’ble Supreme Court comprising of Chief Justice of India T S Thakur, Justices A M Khanwilkar and Dr. D Y Chandrachud while setting aside the judgment of division bench of the Gujarat High Court opined that all tribunals are not necessary parties in a Special Civil Applications under Articles 226 and 227 of the Constitution when they are not required to defend its orders when they are challenged before the High Court.
The facts of the case are as follows: The Appellant, M.S. Kaziwas employed as an Assistant Teacher on 30.06.1978 in a school conducted by the first Respondent, which is a minority institution. On 25.06.2002, a charge sheet was issued to the appellant alleging that between 29.11.2001 and 15.12.2001, he had proceeded on a pilgrimage sans prior permission and was absent without sanctioned leave. In addition to that, it was averred that while 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 and consequently departmental inquiry was initiated and the charges were found to be established and ergo, he dismissed from service on 13.01.2004.
The Appellant moved the Gujarat Higher Secondary Education Tribunal (Education Tribunal) assailing the order of dismissal where his application was subsequently dismissed by order dated 13th June 2006. Aggrieved, a Special Civil Application under Articles 226 and 227 of the Constitution was moved before the Gujrat High Court seeking setting aside of the order dated 13.06.2006 and consequential reliefs for treating him in service until October 2005 when he attained the age of superannuation and the grant of pensionary benefits. Subsequently, the appellant invoked the appellate jurisdiction of the Hon’ble Supreme Court.
The main issue in the case was: Whether or not a tribunal or court whose order is challenged in proceedings under Articles 226 and 227 of the Constitution is a necessary party to the proceeding.
Summary of court decision and judgment
The learned Single Judge of the High Court dismissed the writ petition on 24 December 2012 in lieu of which an LPA was filed before the Division Bench of Gujarat High Court. Relying upon a judgment rendered by a five-Judge Bench of Gujarat High Court in State Road Transport Corporation v. Firoze M. Mogal and Anr, wherein 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 proceeding, it was opined that the LPA was not maintainable.
In the Supreme Court, after a careful perusal of the arguments advanced by the parties, authorities cited and the object and purpose of the enactment of Gujarat Secondary Education Act 1972, Dr. D Y Chandrachud, J speaking for the three-judge bench of the Hon’ble Supreme Court observed that the Gujrat High Court erred in dismissing the LPA as the Education tribunal was not required in law to defend its own order and the proceedings under Articles 226 and 227 of the Constitution were thus maintainable without the tribunal being impleaded. In doing so, the judgment in Sh. Jogendrasinhji Vijaysinghji v. State of Gujarat and Ors.was relied upon, wherein it was observed that the correct proposition of law 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 be not maintainable or the court may grant liberty to implead them as parties in the exercise of its discretion. In addition, 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. Ergo, it was held that the lis was between the management and a member of its teaching or non-teaching staff, as the case may be and it was for the person aggrieved to pursue his or her remedies before the tribunal. An order of the tribunal it was held is capable of being tested in the 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 the arena of conflict for defending its order, and hence, it is not a necessary party to the proceedings in a Special Civil Application.
The dicta of the Hon’ble Apex Court adumbrated the correct proposition of law by holding that a tribunal shall not be considered as a necessary party liable to defend its orders until and unless they are required by the law to do so. After having recourse to the provisions of Gujarat Secondary Education Act 1972, the Hon’ble Court rightly held that the tribunal was constituted under the said act both as an original and an appellate adjudicating forum and in any dispute arising between the management and a member of its teaching or non-teaching staff, it was not required to defend its order and appropriate judicial review of the order of the tribunal is available under Articles 226 and 227 of the Constitution.
In the landmark judgment in M.S. Kazi v. Muslim Education Society &Ors it was opined that all tribunals are not necessary parties in a Special Civil Applications under Articles 226 and 227 of the Constitution when they are not required to defend its orders when they are challenged before the High Court.
 State Road Transport Corporation v. Firoze M. Mogal and Anr (2014) 1 GLH 1.
 Sh. Jogendrasinhji Vijaysinghji v. State of Gujarat and Ors. (2015) 9 SCC 1.
 M.S. Kazi v. Muslim Education Society, (2016) 9 SCC 263.