LAW FOR ALL

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.