Deciding the question that whether a tribunal or court whose order is challenged in proceedings under Articles 226 and 227 of the Constitution is a necessary party to the proceedings, the Bench of A.M. Khanwilkar and Dr. D. Y. Chandrachud, JJ held that the tribunal is not a necessary party to the proceedings in a Special Civil Application.
Earlier, in the matter where the dispute was between the management of an Educational society and a member of its teaching or non-teaching staff, the High Court of Gujarat had dismissed the petition filed by the appellant by relying upon the decision of the division bench of the Gujarat High Court in Gujarat State Road Transport Corporation v. Firoze M. Mogal, [2014 GLH 1], where it was held that a Special Civil Application 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.
In the present case, 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. Considering the facts of the case, the Court held that the tribunal was not required to defend its order in the writ proceedings before the learned Single Judge.
Holding the order of the High Court to be erroneous, the Court said that it is for the person aggrieved to pursue his or her remedies before the tribunal. 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. 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. [M. S. Kazi v. Muslim Education Society, 2016 SCC OnLine SC 841, decided on 22.08.2016]