M.S. Kazi v. Muslim Education Society and Ors. - (Supreme Court) (22 Aug 2016)

Tribunal not required to defend its own order, proceedings under Articles 226 and 227 of Constitution maintainable without Tribunal being impleaded

MANU/SC/0921/2016

Service

Appellant was employed as an Assistant Teacher, chargesheet was issued to Appellant alleging that, he had proceeded on a pilgrimage without prior permission and was absent without sanctioned leave. Apart from this allegation, which constituted first Article of charge, second was that whereas in his application for withdrawal from provident fund, reason of pilgrimage was shown to be Haj, application for leave indicated a pilgrimage to Umrah. Upon a departmental inquiry, charges were found to be established and Appellant was dismissed from service. Appellant moved Tribunal for challenging order of dismissal. Tribunal dismissed the application.

Single Judge of High Court also dismissed writ petition. An LPA under Clause 15 of Letters Patent was thereupon filed. Division Bench held that, appeal was not maintainable by relying upon a judgment rendered by a five-Judge Bench of High Court in Gujarat State Road Transport Corporation v. Firoze M. Mogal and Anr., in which it was held that a Special Civil Application under Articles 226 and 227 of Constitution was not maintainable where Court or tribunal whose order was sought to be quashed was not impleaded as a party to the proceedings.

From record, it appears that though the Tribunal was not impleaded as a party to Special Civil Application, it was impleaded to LPA. Tribunal, 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). Tribunal is not required to defend its orders when they are challenged before 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 case may be. It is for the person aggrieved to pursue his or her remedies before 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, Tribunal is not required to step into arena of conflict for defending its order. Hence, Tribunal is not a necessary party to the proceedings in a Special Civil Application.

Appellant instituted a proceeding before Tribunal to challenge an order of dismissal passed against him in disciplinary proceedings. Before Tribunal, legality of order of dismissal was in question. Lawfulness of punishment imposed upon Appellant was a matter for employer to defend against a challenge of illegality in Special Civil Application. Tribunal was not required to defend its order in writ proceedings before Single Judge. Even if High Court was to require production of record before the tribunal, there was no necessity of impleading Tribunal as a party to proceedings. Tribunal not being required in law to defend its own order, proceedings under Articles 226 and 227 of Constitution were maintainable without Tribunal being impleaded. High Court erred in dismissing LPA on ground that, it was not maintainable.

Relevant : Section 38, 39 of Gujarat Secondary Education Act, 1972

Tags : TRIBUNAL IMPLEADMENT NECESSITY