M.S.Kazi vs Muslim Education Society & Ors

 

 


 

M.S.Kazi vs Muslim Education Society & Ors on 22 August, 2016

Bench: T.S. Thakur, A.M. Khanwilkar, D.Y. Chandrachud

 

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

 

 

 

 

 

 

 

 

 

 

 

 

 

BACKGROUND OF THE CASE

 

This case acquaints us with the idea of Impleadment. The Apex Court here switched the past judgment of the High Court dated 28th March,2014 and reestablished the Letters Patent Appeal which was excused before by the Division seat of High Court by virtue of its Non-Maintainability.

Until this case showed up, the example which has been followed is repeated because of Gujarat SRTC v. Firoze M. Mogal which held that if the court or council hosts not been impleaded as party in the principle writ request, at that point simply impleading such court or council without precedent for letters patent allure would not change the nature and character of the procedures, in this way it would not be viable.It has been significantly understood through a representation for this situation that in specific authorizations, the area passes judgment on work as an Election Tribunals against whose orders and writs lie upon. In such a circumstance, the apex court, regardless of whether needed to guard its orders, is to be made a party which the procedure under the steady gaze of the court are laid, in any case would be viewed as non-viable.

On account of Waryam Singh v. Amarnath, it was clarified that councils are dependent upon administration of the High Courts under Art. 227 of the Constitution and that is both Judicial and authoritative. In the event of Udit Narayan Singh v. Board of Revenue, the apex court truly abided upon the debate as to the impleadment of parties in whose favor orders had been passed and in the setting saw that council is an important party.

Similarly, in the case of Savitridevi v. District Judge Gorakhpur,the court took exception to the courts and councils for being made the parties. The common courts, which choose the matter, are courts in the strictest feeling of the term. In the event that the High court, in exercise of its writ locale or revisional ward, by and large, calls for records, the equivalent can generally be called for by the High Court without the court, council or managing official being obstructed as a party.

 

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FACTS OF THE CASE

 

  1. The Appellant, M.S. Kaziwas employed as an Assistant Teacher on 30.06.1978 in a school led by the principal Respondent, which is a minority organization. On 25.06.2002, a charge sheet was given to the appellant asserting that somewhere in the range of 29.11.2001 and 15.12.2001, he had continued on a pilgrimage sans earlier authorization and was missing without endorsed leave. Likewise, it was asserted that while in his application for withdrawal from the fortunate asset, the explanation of the journey was demonstrated to be Haj, the application for leave showed a journey to Umrah. The Appellant denied the charges and thus departmental request was started and the charges were discovered to be set up and consequently, he dismissed from service on 13.01.2004.

 

  1. The Appellant moved the Gujarat Higher Secondary Education Tribunal (Education Tribunal) attacking the request for excusal where his application was therefore excused by request dated 13th June 2006. Oppressed, a Special Civil Application under Articles 226 and 227 of the Constitution was moved under the watchful eye of the Gujarat High Court looking for putting to the side of the request dated 13.06.2006 and weighty reliefs for treating him in help until October 2005 when he achieved the time of superannuation and the award of pensionary benefits. In this manner, the appellant conjured the investigative ward of the Hon'ble Supreme Court.

 

 

 

 

 

 

CHALLENGE BEFORE TRIBUNAL

The appellant was employed as an assistant teacher on 30th June, 1978 in the minority education institution but then was dismissed from the service.

CHARGES FILED:-

1. Proceeded on a pilgrimage without permission from 29th Nov– 15th Dec, 2001 and was absent without a sanctioned leave.

2. Withdrawal of the following funds on the very pretext of going on a pilgrimage to Haj whereas the application which was presented stated leave is for pilgrimage to a place called Umrah.

DEPARTMENTAL ENQUIRY

 

Charges were set up and he was excused from the assistance on 13th January, 2004, yet his administrations were delighted in by the establishment till October, 2005. Appellant tested the request for the excusal passed against him in Disciplinary procedures before the Gujarat Secondary Education Tribunal which was established under Section 39 of the Gujarat Secondary Education Act, 1972. The Tribunal dismissed the test made by the appealing party on demonstrated charges.

SPECIAL CIVIL APPLICATION -Subsequently, the appealing party favored a Special Civil Application under Art.226 and 227 of the Constitution under the watchful eye of the High court of the concerned.

PETITION DISMISSED- The Single Judge of the High Court excused the said request on Merits.

LETTERS PATENT APPEAL – LPA was documented immediately, which was dismissed before the division seat of the high court as not viable considering Non-impleadment of the Tribunal as involved with the Special Civil application and afterward implementing it to the later stages.

APPEAL BEFORE SUPREME COURT:-The Supreme Court set out that the High Court was in mistake in excusing the LPA on ground that it was not viable, in this manner the past judgment was saved and LPA was reestablished.

 

 

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ISSUES OF THE CASE

 

  1. Regardless of whether a council or court whose request is challenged in procedures under Articles 226 and 227 of the Constitution is an essential party to the procedure.

 

  1. Regardless of whether the Civil Appeal In High Court under Article 226 and 227 is viable or not?

 

  1. Regardless of whether the impleadment of the court is important at each phase of procedures?

 

  1. Regardless of whether the High Court was mistaken in excusing the letters patent allure as not reasonable and same was reestablished by Apex Court for removal on merits?

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

RULES

 

  1. Gujarat Secondary Education Act, 1972; Section- 38,39(4),36(5) and 39(9).

 

(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, 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 headmaster, 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).

 

 

 

 

2.    Civil Procedure Code, 1908

 

The Code of Civil Procedure, 1908 is a procedural law identified with the organization of common procedures in India. The Code is partitioned into two sections: the initial segment contains 158 sections and the subsequent part contains the First Schedule, which has 51 Orders and Rules.

 

3.     Constitution of India; Art 226 and 227.

 

Article 226, empowers the high courts to issue, to any person or authority, including the government (in appropriate cases), directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, certiorari or any of them.

 

Article 227 determines that every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction (except a court formed under a law related to armed forces).

 

  1. Letters Patent

 

Letters patent are a sort of lawful instrument as a distributed composed request gave by a monarch, president, or other head of state, by and large conceding an office, right, restraining infrastructure, title, or status to an individual or corporation.

 

 

 

 

 

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CONTENTIONS

 

THE TRIBUNAL

Single Judge of the High Court additionally excused a writ appeal. A LPA under Clause 15 of Letters Patent was in this way documented. Division Bench held that allure was not viable by depending upon a judgment delivered 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 the Constitution was not viable where the Court or council whose request was looked to be subdued was not hindered as involved with the procedures.

 

THE APPELLANT

The Appealing party established a procedure before the Tribunal to challenge a request for excusal passed against him in disciplinary procedures. Prior to the Tribunal, lawfulness of request of excusal was being referred to. Legitimateness of discipline forced upon Appellant was a matter for employers to protect against a test of illicitness in Special Civil Application. The Tribunal was not needed to protect its request in composed procedures under the steady gaze of a Single Judge. Regardless of whether the High Court was to require creation of records before the council, there was no need of carrying out Tribunal as involved with procedures. Court not being needed in law to protect its own request, procedures under Articles 226 and 227 of Constitution were viable without a Tribunal being executed. The High Court failed in excusing LPA on ground that it was not viable.

 

 

 

 

 

 

 

 

 

 

 

 

RATIO/JUDGEMENT

 

Impleading the Tribunal as Party Is No Necessity:- A request for the council is fit for being tried for the Judicial Review power under Art. 226 and 227 of the Constitution. Here, the Tribunal was not needed to safeguard its request in the Writ procedures in the High court, under the steady gaze of the single appointed authority and along these lines, need not to be hindered as involved with the procedures and on this premise the special civil application can't be excused. On account of the State of U.P. v. Vijay Anand Maharaj, it was decided that Art. 226 gives a force on a High Court to give writs, orders or headings referenced in that for the requirement of any rights presented by Part III or for some other reason. This is neither any investigative nor a revisional ward of the High Court. It is displayed to empower the High Courts to keep subordinate councils inside the limits.

Writ Maintainable: – The Supreme Court decided that the procedures under Art.226 and 227 were viable without the council being an important party, turning around the past choice of the High Court.

LPA Dismissed: - A division seat of the High court of Gujarat excused Letters Patent Appeal which emerged out of excusal of special civil application by a solitary seat, however on appeal to Supreme Court, it was again reestablished. LPA was excused on the ground that it was not viable depending upon the judgment of Gujarat SRTC v. Firoze M. Mogal in which it was held that a Special Civil Application under Art. 226 and 227 would not be viable, if the court whose orders should be subdued isn't blocked as involved with the procedures.

Apparel TO Apex Court:- The Supreme Court held that the Tribunal was not needed to safeguard its orders, subsequently no need emerged to carry out the council as involved with the procedures. It is viable under Art. 226 and 227 of the Constitution. It was held that the High Court was mistaken in excusing the LPA on ground that it was not viable.

Held:- Division bench request dated 28 March, 2014 is saved and LPA (2014) is reestablished under the watchful eye of the High Court for removal and attempt a speedy removal as pending for 14 years.

The new judgment of M.S. Kazi v. Muslim Education Society passed by the Supreme Court of India has become an established milestone judgment settling on that every one of the Tribunals or Courts are excessive parties to the procedures where lawfulness of its orders are tested. This case has tossed upon a lawful issue which has gigantic significance in practicality of the Writ appeal under Art.226 and 227. The choice of the High court of Gujarat was tried under the careful gaze of the Apex Court of India which lead to the totally clear status, that whether the Tribunals or Courts should transform into an important party to the methods or not.The past judgment was switched by Apex Court, opening up the new skylines of the current lawful situation of the procedures and breaking the bars.The matter was tested under the watchful eye of the High Court in 2012. The court hosting heard both the parties, gave its last decision on 22nd August, 2016 with the discoveries that:-

  1. The Tribunal was not needed to guard its orders in the writ procedures under the steady gaze of a solitary adjudicator of the High Court and accordingly viable under Art. 226 and 227 of the Constitution.
  2. The High Court was erroneous in excusing the Letters Patent Appeal which prompted putting to the side the sets of the division seat of High Court.
  3. LPA was reestablished on benefits and matter was mentioned to discard speedily.

Seeing the past judgment of Gujarat SRTC v. Firoze M. Mogal which was viewed as a significant point of reference has been turned around by the Apex Court of India, it got applicable to remember the accompanying contemplations:-

      The current points of reference which had set out that a Special Civil Application under Art. 226 and 227 was viable regardless of whether the Tribunal or the Court hosts not been a gathering to the procedures which was before considered as a need.

Institution of Special Civil Application:- The Art. 226 and 227 are separately the first and administrative ward of the High Court. Along these lines, the request for the council is equipped for being tried in exercise of the force of legal survey under Art.226 and 227, additionally the court need not be a fundamental party to carry out as involved with the procedures in unique common application. The court was not needed for the creation of the record, regardless of whether it is, at that point likewise it isn't required for the council to be carried out as a party.

Consequential Relief:- The minority education institution excused the appealing party from his administrations in 2004, in spite of all that they exploited his administrations till October, 2005 when he accomplished the time of superannuation and the honor of pensionary benefits, at that point removed him to not to give these benefits which is mistaken, they should confess all hands.

DISMISSAL OF WRIT PETITION:- Writ request under Art.226 and 227 was excused by learned Single Judge, thinking about the accompanying:-

Charge of offense by appellant was set up.

No illegality in the view taken by the Tribunal or the Disciplinary procedures.

LPA was Filed Thereupon:- It was considered by the Division Bench dated 28th March, 2014 as allure not viable on the grounds that the court was not carried out as involved with the Special Civil application yet to the Letters Patent Appeal, however it would not have any impact hence and along these lines offer was excused.

The significant point of reference that was continued in the judgment given by the High court if there should arise an occurrence of Gujarat SRTC v. Firoze M. Mogal, render an issue with the viability of the allure, if the court whose orders should be censured isn't obstructed as involved with the procedures. The significant choice was given that it can't be restored only by hindering the council or the court to the LPA against the past judgment. The instance of Radhey Shyam and Anr. v. Chhabi Nath and Ors. while managing the rightness of law held that

(I) Judicial orders of civil court are not amenable to Writ ward under Article 226 of the Constitution; and (ii) jurisdiction under Article 227 is particular from purview under Article 226."

Making it recognizable on account of M/S Indo European Breweries Ltd v. Dnyaneshwar and others it was held that whether the learned Single Judge has practiced the locale under Article 226 or under Article 227 or both, unnecessary to underline, would rely on different angles that have been accentuated in the aforestated specialists of this Court, it will be the commitment of the Division Bench hearing the letters patent appeal to recognize and choose whether the request has been passed by the learned Single Judge in this purview.

Also, the council establishes wide purview under Section 38 of the Act. It acts in an unprejudiced manner like force under Section 39(9) which accommodates the orders or headings to the position to reestablish or consent to bearings, passed by the court after tracking down that the excusal of the instructing or non-encouraging staff is uncalled-for or unlawful. It acts in a straightforward strategy to guarantee justice and goes about as both unique and investigative discussion.

In the Supreme Court, after a cautious examination of the contentions progressed by the parties, specialists referred to the item and motivation behind the order of Gujarat Secondary Education Act 1972, Dr. D Y Chandrachud representing the three-judge seat of the Hon'ble Supreme Court saw that the Gujarat High Court blundered in excusing the LPA as the Education council was not needed in law to shield its own request and the procedures under Articles 226 and 227 of the Constitution were consequently viable without the council being impleaded. In doing as such, the judgment in Sh. Jogendrasinhji Vijaysinghji v. State of Gujarat and Ors was depended upon, wherein it was seen that the right recommendation of law is that the specialists or the councils, who in law are qualified for guard the orders passed by them, are important gatherings and in the event that they are not exhibited as parties, the writ request can be blessed to receive be not viable or the court may allow freedom to implead them as parties in the activity of its carefulness. Also, there are councils which are not in the least needed to guard their own request, and all things considered, such courts need not be exhibited as parties. Consequently, it was held that the lis was between the administration and an individual from its instructing or non-showing staff, by and large and it was for the individual wronged to seek after their cures before the council. A request for the council it was held is equipped for being tried in the activity of the force of legal survey under Articles 226 and 227. At the point when the cure is conjured, the court isn't needed to venture into the field of contention for protecting its request, and consequently, it's anything but a vital party to the procedures in a Special Civil Application.

 

 

 

 

ANALYSIS

Appellant was utilized as an Assistant Teacher, chargesheet was given to Appellant asserting that he had continued on a journey without earlier authorization and was missing without sanctioned leave. Aside from this claim, which established the primary Article of charge, second was that while in his application for withdrawal from opportune asset, reason of journey was demonstrated to be Haj, application for leave showed a journey to Umrah. Upon a departmental request, charges were discovered to be set up and Appellant was excused from administration. Appellant moved the Tribunal for testing request of excusal. The Tribunal excused the application.

Single Judge of the High Court likewise excused the writ appeal. A LPA under Clause 15 of Letters Patent was hence documented. Division Bench held that, request was not viable by depending upon a judgment delivered 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 the Constitution was not viable where the Court or council whose request was looked to be subdued was not impeded as involved with the procedures.

From record, it creates the impression that however the Tribunal was not executed as involved with Special Civil Application, it was carried out to LPA. Council is established both as a unique and a re-appraising arbitrating gathering: a unique discussion to choose questions under Section 38 (1) and an investigative discussion under Section 39(5). Council isn't needed to protect its orders when they are tested under the watchful eye of the High Court in a Special Civil Application under Articles 226 and 227. The rundown is between the administration and an individual from its instructing or non-showing staff, as case might be. It is for the individual abused to seek after their cures before the Tribunal. A request for the council is equipped for being tried in exercise of the force of legal audit under Articles 226 and 227. At the point when the cure is conjured, the Tribunal isn't needed to venture into the field of contention for protecting its request. Subsequently, Tribunal is certifiably not an essential gathering to the procedures in a Special Civil Application. The dicta of the Hon'ble Apex Court adumbrated the right recommendation of law by holding that a council will not be considered as an essential party responsible to safeguard its orders until and except if they are needed by the law to do as such. Subsequent to having response to the arrangements of Gujarat Secondary Education Act 1972, the Hon'ble Court properly held that the council was established under the said act both as a unique and a redrafting mediating party and in any contest emerging between the administration and an individual from its instructing or non-showing staff, it was not needed to shield its request and suitable legal survey of the request for the court is accessible under Articles 226 and 227 of the Constitution.

The Appealing party established a procedure before the Tribunal to challenge a request for excusal passed against him in disciplinary procedures. Prior to the Tribunal, legitimateness of request of excusal was being referred to. Legality of discipline forced upon Appellant was a matter for bosses to protect against a test of lawlessness in Special Civil Application. The Tribunal was not needed to protect its request in composed procedures under the watchful eye of a Single Judge. Regardless of whether the High Court was to require creation of records before the council, there was no need of executing Tribunal as involved with procedures. Council not being needed in law to safeguard its own request, procedures under Articles 226 and 227 of the Constitution were viable without a Tribunal being executed. The High Court failed in excusing LPA on ground that it was not viable.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CONCLUSION

 

The new translation of the Supreme Court of India in this landmark judgment has turned to all the more clear comprehension of the impleadment cycle which had before made numerous fancies about the situation with the parties and whether an outsider ought to be impleaded as involved with the procedures or not, whose orders should be rethought or subdued which would eventually prompt the choices in regards to the practicality of writs and advances as well. Holding the choice that councils or courts need not to be a need party to execute during the procedures had speeded up the preliminaries and prompted more comprehension of the procedures. In the milestone judgment in M.S. Kazi v. Muslim Education Society and Ors it was believed that all councils are excessive parties in a Special Civil Applications under Articles 226 and 227 of the Constitution when they are not needed to shield its orders when they are tested under the watchful eye of the High Court.

 

 

 

 

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[1] https://indiankanoon.org/doc/19222171/

[2]Drafting of Petition Under Article 226 or 227 | Jurisdiction | Pleading, Scribd, https://www.scribd.com/document/487346285/Drafting-of-Petition-Under-Article-226-or-227 (last visited Apr 6, 2021).

[3]Editor, Tribunal whose order is challenged under Articles 226 and 227 is not a necessary party in a Special Civil Application SCC Blog (2016), https://www.scconline.com/blog/post/2016/08/23/tribunal-whose-order-is-challenged-under-articles-226-and-227-is-not-a-necessary-party-in-a-special-civil-application/ (last visited Apr 6, 2021).

[4]Tribunal not required to defend its own order, proceedings under Articles 226 and 227 of Constitution maintainable without Tribunal being impleaded, Manupatra eNewsLine, http://roundup.manupatra.in/asp/Singlecontent.aspx?item=5589 (last visited Apr 6, 2021).

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