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, the Bench observed.
The Supreme Court in M. S. KAZI VS. MUSLIM EDUCATION SOCIETY has held that all Tribunals are not necessary parties in a Special Civil Applications under Articles 226 and 227 of the Constitution, when they are not required to defend its orders when they are challenged before the High Court.
Three Judge Bench comprising of Chief Justice of India T S Thakur, Justices A M Khanwilkar and Dr D Y Chandrachud made this observation while setting aside Gujarat High Court judgment which had dismissed Letters Patent Appeal against a Single Bench order for the reason that the Gujarat Higher Secondary Education Tribunal was not impleaded in the Special Civil Application.
The Court observed: “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 Court referring to Sh Jogendrasinhji Vijaysinghji Vs. State of Gujarat and Ors further held: “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.”
Read the Judgment here.