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Monday, August 22, 2016

The Gujarat Secondary Education Act 1972 Sec.38 and 39 - Tribunal is not necessary party to implead in LAP/SLP/WRIT = whether a tribunal or court 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 Jogendrasinhji Vijaysinghji Vs. State of Gujarat and Ors[2]. The judgment of this Court has also adverted to the view that was taken in the judgment rendered by a Bench of five Judges 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 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 whose orders a revision or a writ may lie depending upon the provisions 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 party. 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.” = 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 (1) and an appellate forum under Section 39(5).- 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 lis 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.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, there was no necessity of impleading the tribunal as 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 impleaded. For these reasons, we hold that the High Court was in error in dismissing the LPA on the ground that it was not maintainable. Consequently, the judgment and order of the Division Bench dated 28 March 2014 is set aside and LPA 86 of 2014 is restored before the High Court for disposal on merits.Since the disciplinary proceedings relate to a chargesheet which was issued fourteen years ago, we would request the High Court to endeavour an expeditious disposal. We clarify that all the rights and contentions of the parties on merits are left open for decision by the High Court.

                                                                  REPORTABLE

        IN THE SUPREME COURT OF INDIA
                         CIVIL APPELLATE JURISDICTION
                   CIVIL APPEAL Nos.  11976-11977 OF 2014


M. S. KAZI        .....APPELLANT



                                   Versus



MUSLIM EDUCATION SOCIETY
& ORS.          .....RESPONDENTS


                               J U D G M E N T





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 Gujarat
State Road Transport Corporation Vs. Firoze M. Mogal and Anr[1]., 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 2001, he had proceeded on a
pilgrimage without prior permission and was absent without sanctioned
leave.  Apart from this allegation, 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.
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 impleaded as a party to the Special Civil  Application,  it
was impleaded to the LPA.  Be that as it may, the High Court 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 would not be  maintainable.   In  such  an
event, the objection to maintainability would – it was held -  not be  cured
merely by impleading the tribunal or court to the LPA against a judgment  of
the Single Judge.

6     The issue  whether a tribunal or court 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 Jogendrasinhji  Vijaysinghji   Vs.  State  of  Gujarat  and  Ors[2].  The
judgment of this Court has also adverted to the view that was taken  in  the
judgment rendered by a Bench of five  Judges  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  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 whose  orders  a  revision  or  a
writ may lie depending upon the provisions 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 party. 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
of a 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- (1) 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 (1) of Section 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 of a  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  forthwith  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 (1) 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 lis 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, there was no necessity of impleading the tribunal as  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 impleaded.

10    For these reasons, we hold  that  the  High  Court  was  in  error  in
dismissing  the  LPA  on  the  ground  that   it   was   not   maintainable.
Consequently, the judgment and order of the Division Bench  dated  28  March
2014 is set aside and LPA 86 of 2014 is restored before the High  Court  for
disposal on merits.

11    Since the disciplinary proceedings relate to a chargesheet  which  was
issued fourteen years ago, we would request the High Court to  endeavour  an
expeditious disposal.  We clarify 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.




.........................................CJI
                                               [T S  THAKUR]



 …..........................................J
                                              [A M  KHANWILKAR]




..............................................J
                                            [Dr D Y  CHANDRACHUD]

New Delhi
AUGUST 22, 2016.
-----------------------
[1]

      [2]    [2014 GLH 1]
[3]

      [4]    (2015) 9 SCC 1


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