M. S. KAZIversusMUSLIM EDUCATION SOCIETY & ORS.

                             [2016J4 S.C.R. 80



A                               M. S. KAZI
                                     v.
                MUSLIM EDUCATION SOCIETY & ORS.
                  (Civil Appeal Nos. 11976-11977 of2014)
B                           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
c   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
D   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
E
    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
F   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
G         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
H   an original and an appellate adjudicating forum: an original forum
                                     80
       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 1- relied on.
      Gujarat State Road Transport Corporation v. Firoze M
      Moga! & Anr. 2014 GLH 1 - referred to.                           B

      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            c
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            D
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               E
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     F
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]
                      Case Law Reference                                G
   2014 GLH 1                      referred to        Para 5
   2015 (6) SCR 504                relied on          Para6
   CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 11976-
11977 of2014.
                                                                        H
82                SUPREME COURT REPORTS                      [2016] 4 S.C.R.


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
B    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.
c    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 An~l., in which it was held that a Special Civil Application
D    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
E    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
F    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
G    moved the Gujarat Higher Secondary Education Tribunal for challenging
     the order of dismissal. On 13 June 2006, the Tribunal dismissed the
     application.


     1
H        (2014GLl-!l]
        M. S. KAZI v. MUSLIM EDUCATION SOCIETY                                   83
                [DR. D. Y. CHANDRACHUD, J.]

      3. Aggrieved by the order of the Tribunal, the Appellant instituted        A
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
                                                                                 B
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.
                                                                                 c
       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          D
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 o~jection to maintainability     E
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              F
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:-
                                                                                 G
       "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                                                                H
84             SUPREME COURT REPORTS                          [2016] 4 S.C.R.


A          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
B
           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
c          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
D    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:
E
           "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
F          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
G          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
H    or an appeal under sub-Section (5) of Section 36.Under sub-Section (5)
        M. S. KAZI v. MUSLIM EDUCATION SOCIETY                                  85
                [DR. D. Y. CHANDRACHUD, J.]

of Section 36 a person aggrieved by an order of dismissal, removal or           A
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:
                                                                                B
      "(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
                                                                                c
      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          D
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             E
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         F
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         G
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       H
86              SUPREME COURT REPORTS                        [2016] 4 S.C.R.



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.
D