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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.

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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

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[2014 GLH 1]

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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.  

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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

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(2015) 9 SCC 1

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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,

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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.        

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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

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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.