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.
FACTS OF
THE CASE
- 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.
- 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.
ISSUES OF
THE CASE
- 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.
- Regardless of whether the Civil
Appeal In High Court under Article 226 and 227 is viable or not?
- Regardless of whether the
impleadment of the court is important at each phase of procedures?
- 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
- 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).
- 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.
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:-
- 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.
- 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.
- 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.
[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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