Central Administrative Tribunal - Ahmedabad
Shivkumar B. Nair vs Union Of India (Uoi) And Ors. on 7 June, 2005
Equivalent citations: 2005(3)SLJ210(CAT)
ORDER Shankar Prasad, Member (A)
1. Aggrieved by the order of Disciplinary Authority imposing the penalty of dismissal from service and that of Appellate Authority in not deciding his appeal the applicant had preferred the present O.A. He had sought for the quashing of the charge sheet, the report of Enquiry Officer and the penalty imposed by ad hoc Disciplinary Authority. After the O.A. had been admitted the Appellate Authority also passed an order modifying the penalty to reduction to minimum of pay scale for three years with cumulative effect. The respondents also issued an officer office order reinstating him in service but imposing some further conditions. The O.A. was amended to challenge both these orders also.
2. The facts lie in a narrow compass. The applicant is a staff car driver with Debt Recovery Tribunal, Ahmedabad Bench. He was placed under suspension vide order dated 8.3.2002. Presiding Officer, DRT II Mumbai was appointed as the ad hoc Disciplinary Authority by Chairman DRAT acting for and on behalf of the President of India at the behest of GOI. He issued a charge sheet dated 9.8.2002 containing fourteen articles of charge including that of sending a complaint against the Presiding Officer DRT Ahmedabad to Central Vigilance Commission levelling charges of corruption and sending another complaint to Prime Minister, Chief Justice of India/Chief Justice of High Court, Chairperson DRAT and others. The Presiding Officer, Ahmedabad Bench was cited as a witness. On the denial of charges the ad hoc Disciplinary Authority himself conducted the enquiry. He forwarded his report to the applicant vide his letter dated 27.6.2003. He held that charge No. 1 regarding demanding gifts from Law Officer of SBI, charge No. 10 regarding threatening Bimesh P an employee, who has been named as a witness in the charge sheet, charge No. 12 regarding conveying a threat to Recovery Officer, charge No. 13 cajoling Anil Sharma to file a suit for absorption in DRT as not proved. Charge No. 14 was found to be established in a modified form. A further charge No. 15 was also held to be proved. The applicant submitted a detailed report. The ad hoc Disciplinary Authority, thereafter conveyed a further report, which also included the order imposing the penalty of dismissal.
The applicant preferred an appeal, which was not decided for a long time. The respondents in their reply have stated that due to various unavoidable reasons the appeal could not be decided. The matter for nominating Appellate Authority for Gr. 'C' and 'D' posts under DRT is under the consideration. After the Appellate Authority is nominated the appeal will be decided within two months. The O.A. was thereafter admitted. Secretary (Financial Services) has thereafter passed the orders as an Appellate Authority without obtaining leave of the Tribunal.
3. The case of applicant in brief is that there is no provision in CCS (CCA Rules to appoint an ad hoc Disciplinary Authority. No order appointing P.O. DRT II Mumbai as ad hoc Disciplinary Authority was served on him. The charge sheet was amended on the request of Presenting Officer after the prosecution witnesses have been examined and the prosecution case was closed. The complaint sent by him to CVC (Charge No. 5) had been acknowledged by CVC and the same had been forwarded to Additional Secy. (Banking) for necessary action. It was a bona fide complaint. The applicant had also produced the draft Bill recommended by Law Commission. The applicant being a whistle blower has received the punishment without finalising the enquiry on his complaint. As per the draft bill CVC will be the Competent Authority to grant protection. The findings of ad hoc DA arc not based on evidence on record or on proper appreciation of evidence. The ad hoc DA has also not given due weightage to the fact that exhibit 39, letter purported to have been written by SBI and produced by Shri Verma the Presiding Officer had been denied by the Bank Authorities. This shows the biased mind of Enquiry Officer. Prosecution witnesses were told that if they depose in favour they will be considered for absorption, otherwise their deputation will be terminated. These witnesses accordingly cannot be called independent. The applicant had denied his signature on the letter in respect of which Charge No. 14 has been framed.
The O.A. was amended to challenge the order of the Appellate Authority. It has been contended that he was not given an opportunity of personal hearing. Even otherwise the grounds raised in the appeal petition have not been considered properly.
4. The respondents had raised a preliminary objection that as appeal had not been decided the O.A. is not maintainable.
The respondents in their reply have stated that as the applicant had made a serious complaint against the Presiding Officer, the Ministry appointed ah ad hoc Disciplinary Authority of equivalent rank. The charge sheet, enquiry report and orders imposing penalty cannot be set aside on the ground that the appeal has not been decided. The delay is on account of administrative reasons. The enquiry was properly conducted and in accordance with rules. The applicant was given an opportunity of defending himself against additional charge. As the ad hoc DA was not knowing the applicant from before there is no question of bias. The applicant had also not complained during the course of enquiry. Exhibit 39 was not established and hence the charge was held as not proved. None of the witnesses had stated that they were pressurized. Even if the applicant was correct in approaching the CVC he could not have obtained official documents without permission as he is only a staff car driver. The employee had also sent a copy to Solicitor General of India, assuming the role of Inspector. The incidents brought to the notice of CVC were two years old. It shows that applicant wanted to settle scores. The Appellate Authority has passed a speaking order.
5. We have heard the learned Counsels.
6. Section 20(2)(b) of AT Act makes it abundantly clear that O.A. can be preferred if the representation made or appeal preferred is not decided within 6 months from the date on which it was preferred. The appeal was admittedly preferred on 1.9.2003 and the O.A. is filed on 29.3.2004 that is after the expiry of period of 6 months on 1.3.2004. The preliminary objection of the respondents is not sustainable.
7. The important question that arises for consideration in the present O.A. is as to what is the implication of abatement of proceedings as provided under Section 19(4) of the Administrative Tribunal Act.
8. The AIR Manual (5th Edition, 1989) refers to a number of decisions in the notes below Section 19 of A.T. Act. The decisions relevant to present issue are discussed in the subsequent paragraphs.
9. A Division Bench of the Tribunal in All India Association of Accounts and Audit Officers of A.P. Unit, through its Secretary General v. Union of India and Ors., (1988) 8 ATC 390 has laid down as under:
"In fact Sub-section (4) of Section 19 of the Act declared that where an application under Section 19 had been admitted by a Tribunal under Sub-section (3) every proceedings under the relevant service rules as to redressal of grievances in relation to the subject matter of such application, pending immediately before such admission stands abated. Obviously, having regard to this statutory provision, the respondents did not further proceed to consider the representation. The Tribunal has, however, powers under the said sub-section to direct hat a representation in relation to the matter be entertained and considered. Having regard to the several questions raised in these applications, we think it appropriate that the respondents do consider the representation on its own merits and pass such orders as they may deem fit.
10. Another Division Bench of the Tribunal in Prem Baboo v. Union of India, (1987) 4 ATC 727 was also considering the effect of disposal of the appeal after the O.A. had been admitted. It held: "In view of Sub-section (4) of Section 19 of the Act extracted above, when once the O.A. has been admitted by this Tribunal the appeal that was pending before the Appellate Authority abates so that in the eyes of law there was no appeal as such for consideration and disposal on 12.8.86. The result is that the order dated 12.8.86 by which the appeal is stated to have been dismissed is non est. To be clear, we hereby declare it to be so."
11. A Division Bench of the Tribunal in G.S. Prabhakar v. Union of India, (1988) 16 ATC 714 was considering the matter relating to filing of appeal under AIS (DA) Rules against an order of suspension. It held :
"If that be the position, we do not see how the applicant can contend that an appeal to Central Government is not an effective alternative remedy. We also concur with the view expressed by Allahabad Bench in Bhagwan Das v. Northern Railway, Chief Engineer, which held that two remedies cannot be pursued simultaneously. Consequent to the view we have taken, we direct the Central Government to dispose off the appeal within two months from the date of the received of this order".
12. A division Bench in R. Vembu v. GM H/F Avadi Madras (1989) 1 SLR 341 has held:
"From the scheme of Administrative Tribunal Act it is clear that a Civil Servant aggrieved by an order has normally to pursue all remedies available to him in the relevant service rules and not approach the Tribunal as soon as an adverse order is passed. In a case of the present nature wherein a penalty has been imposed after the conduct of an enquiry in accordance with CCS (CCA) Rules there is specific provision for the filing of an appeal. The rules also provide how an appeal if filed has to be considered and disposed of. As such unless it be a case where urgent interim relief is required from the Tribunal which the Appellate Authority may not be able to grant under the Service Rules, it will not be proper that the application is entertained before the Civil Servant pursues the statutory remedy of appeal."
"It was submitted by the Counsel of the petitioner that the appeal even if it is filed will not be disposed of within time. We are afraid, the submission if accepted will mean that in all cases where a Civil Servant approaches this Tribunal without pursuing the remedy of appeal, the Tribunal will have to entertain the application against the order."
13. The following principles emerge from the aforesaid decisions:
(i) That the provision of appeal must be exhausted. (ii) There cannot be two simultaneous proceedings in the case of disciplinary enquiry. (iii) That the appeal abates on admission of the matter. (iv) That any order of Appellate Authority passed after admission of O.A. in non-est.
But none of these judgments through any light on the consequence of abatement of proceedings. Is it that the expression proceedings has to be treated as meaning only the appeal with the result that the order passed by Disciplinary Authority revives? Is it that the entire disciplinary proceedings are abated? Is it that the Tribunal shall in addition to power of judicial review also exercise the powers of Appellate Authority in the alternative as the appellate jurisdiction is being, so as to say, abolished?
14. Administrative Tribunal Act has been enacted by the Parliament in exercise of powers conferred by Article 323(A) of the Constitution. The prime objective of the said act is expeditious disposal of grievances and lessening of load on the High Court. Rule 14(2) of CAT (Procedure) Rules provides that O.A. should be disposed off in 6 months.
Section 19 of the A.T. Act provides that an aggrieved person can make an application for redressal of his grievance. Sub-section (3) provides that if the Tribunal is satisfied after such inquiry as it may deem necessary that the application is a fit case for adjudication it can admit the same. If the Tribunal is not satisfied, it may summarily rejected the O.A. after recording is reason.
Sub-section (4) is as under:
"Where an application has been admitted by a Tribunal under Sub-section (3), every proceeding under the relevant service rules as of redressal of grievances in relation to the subject matter of such application pending immediately before such admission shall abate and save as otherwise directed by the Tribunal, no appeal or representation in relation to such matter shall thereafter be entertained under such rules".
15. Section 20 provides that application shall not ordinarily be admitted unless the applicant has availed off the available remedy under the relevant service rules. Sub-section (2)(b) provides that if no order has been made by the Government or the authority or the person competent to pass such an order within the period of 6 months from the date on which the appeal was preferred or representation is made affected person shall be deemed to have availed off all the available opportunity under the relevant service rules. Section 21 provides a limitation of one year after the expiry of the period of one year.
16. Section 22 provides that Tribunal is not bound by CPC but shall be guided by principles of natural justice and subject to the other provisions of this Act and rules framed there under.
Section 29 provides for transfer of pending cases. This does not refer to Appellate Authority under CCS (CCA) Rules. Section 29A contains provisions for filing of certain appeals. This does not refer to orders passed by Disciplinary Authority under the CCS (CCA) Rules.
17. Section 33 is the non-obstanate clause and reads as under:
"The provision of the act shall have effect not with standing any thing inconsistent therewith contained in any another law for the time being enforce or instrument having effect by virtue of any law other than this act."
18. It is clear from Sections 19 and 20 read together that if an appeal preferred against the order of Disciplinary Authority is not decided within the period of 6 months referred to in Section 20(2)(b) of the A.T. Act then the O.A. can be filed and on its admission the appeal abates. The Appellate Authority cannot thereafter decide the said appeal except with the permission of the Tribunal.
19. A -3 Judges Bench of the Apex Court in Union of India v. Parmanand, AIR 1989 SC 1185 has held as under:
"In an original proceedings instituted before the Tribunal under Section 19 the Tribunal can exercise any of the powers of a Civil Court or High Court. The Tribunal thus could exercise only such powers which the Civil Court or High Court could have exercised by way of judicial review. It is neither less or more."
20. The Apex Court in Union Public Service Commission v. Hiranyalal Deb, has held:
"6. Learned Counsel for the respondents in this connection however placed on a decision of this Court in State of Gujarat v. S. Tripathy, and pointed out that in that case this Court, instead of directing the Government of Gujarat to consider afresh the claim of Shri Tripathy for promotion to the Selection Grade and the super time scale, declared that should have been given selection grade and super time scale w.e.f. from the dates mentioned therein and directed the Government of Gujarat to give the consequential monetary benefits. So far this submission is concerned it may at the first instant be pointed out that the extent and the jurisdiction by this Court cannot be equated with the jurisdiction of CAT. Secondly, as is apparent from the opening part of the judgment the appeals had been filed by the State of Gujarat more to vindicate Mr. H.K.L. Capoor, who was previously Chief Secretary and against whom certain caustic observations had been made by the High Court of Gujarat rather than for a decision on the merit of the case."
21. The Apex Court in Khem Chand v. Union of India, , held that the reasonable opportunity envisaged in Article 311(2) includes:
(A) an opportunity to deny his guilt and to establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are passed.
(B) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence; and finally (C) an opportunity to make his representation as to why the proposed punishment should not be inflicted upon him, which he can only do if the Competent Authority, after the inquiry is over and after his applying his mind to the gravity or otherwise of the charges proved against the Government servant tentatively proposes to inflict one of the 3 punishments and communicates the same to the Government servant.
Thereafter the Article was amended by the fifteenth amendment. The amended article also stated "... and where it is proposed, after such enquiry to impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during the enquiry." The Constitution Bench in Managing Director, ECIL v. B. Karunakar, : observed:
"The Amendment also provided for a second opportunity to the employee to show cause against the penalty if it was proposed as a result of the inquiry. The Courts held that while exercising his second opportunity of showing cause against the penalty, the employee was also entitled to represent against the findings on charges, as well. What is necessary to note for our present purpose is that inspite of this change, the stage at which the employee was held to be entitled to a copy of the report, was the stage at which the penalty was proposed, as was the case prior to the said Amendment."
The said article was again amended by the 42nd amendment. It stated that "it shall not be necessary to give such person any opportunity of making representation on the penalty proposed." The validity of the said amendment came up before the Constitution Bench in Union of India v. Tulsiram Patel, . The Apex Court held "in Associated Cement Co. Ltd. v. A.T. Srivastava, 1994 SCC 1488," this Court held that neither under the ordinary law of the land nor under industrial law the second opportunity to show cause against the proposed punishment is necessary. Since the right to such opportunity does not exist in law it follows that the only right which the Government servant had to make a representation on the proposed penalty was to be found in Clause (2) of Article 311 prior to its amendment by the Constitution (42nd amendment) Act. This right having been taken away by the Constitution (42nd amendment) Act, there is no provision of law under which the Government servant can claim that right."
22. The Apex Court in Ramachandra v. Union of India, AIR 1996 SC 1173 has held:
"Such being the legal position, it is of utmost importance after the forty-second Amendment as interpreted by the majority in Tulsiram Patel case that the Appellate Authority must not only give a hearing to the Government servant concerned but also pass a reasoned order dealing with the contentions raised by him in the appeal. We wish to emphasise that reasoned decisions by Tribunals, such as the Railway Board in the present case, will promote public confidence in the administrative process."
We also note that the Department of Personnel and Training, which is a nodal department of the Central Government in the matters of personal policy has issued instructions vide its letter dated 28.10.85 that where the appeal is against an order imposing major penalty and Appellate Authority having regard to the circumstances allow such request the applicant should be given personal hearing. The 1991 instructions provides that he can also take the assistance of his defence assistant.
23. The CCS (CCA) Rules have been framed in exercise of Article 309 of the Constitution Part 7 of the rules contains provision relating to appeals. Rule 25 provides for limitation in filing of appeals. It provides that the same shall be preferred in 45 days. The Appellate Authority has also been given the powers to condone the delay if sufficient cause for not preferring the appeal in time is shown. Rule 27(2) regarding considerations of appeal relevant (part) is as under:
"(2) In the case of an appeal against an order imposing any of the penalties specified in Rule 11 or enhancing any penalty imposed under the said rules, the Appellate Authority shall consider:
(a) Whether the procedure laid down in these rules has been complied with and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice;
(b) Whether the findings of the Disciplinary Authority are warranted by the evidence on the record; and
(c) Whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe;"
and pass orders:
Rule 28 provides that the authority, whose order has been appealed against shall give effect to these orders.
24. Para 3 of Department of Personnel and Training dated 19th May, 1971 contain instructions regarding appointment of more Appellate Authorities and procedure for reviewing the pendency with a view to achieve quicker disposal of appeals Para 3 provides:
"A separate detailed statement of appeals pending disposal for over month should be submitted by the Appellate Authority indicating the particular reason on account of which the appeals could not be disposed of within a month and further time likely to be taken for disposal of such appeal alongwith the reason therefore. This would enable the appropriate higher authority to go into the reasons for delay in the disposal of the appeal pending for more than 1 month and take remedial steps wherever necessary to have the pending appeals disposed of without further delay."
25. The right to make a representation against the Disciplinary Authority's report both as regards to fact as well as quantum of punishment was recognised by the Apex Court in Khemchand's case Fifteenth amendment recognised this right. The Constitution Bench decision regarding the scope of this amendment refers. The 42nd amendment takes away this right. The Apex Court in Ramchandra's case accordingly recognised the need for giving a personal hearing to the applicant and of passing a speaking reasoned order. The circulars of DoPT suggesting giving of an opportunity of personal hearing alongwith the defence assistant may be seen in this context. The powers of Appellate Authority have been referred to in para above. The Department of Personnel and Training circular referred to in para above emphasis expeditious disposal of appeal by constant monitoring of such appeal and by appointing additional Appellate Authorities if necessary.
26. It is clear from the foregoing discussion that the Appellate Authority has a minimum 6 months time to decide the appeal. The actual time may be more if the O.A. is filed and registered beyond this period and the O.A. is admitted subsequently. The GOI instructions provide for expeditious disposal of appeal.
If the appeal is not decided during this period or after admission with the leave of the Court, the appeal abates, if the proceedings are treated as synonymous with appeal.
27. The Tribunal can only exercise the powers of judicial review. It is a settled position of law that while exercising powers of judicial review the Tribunal can neither act as an Appellate Authority nor substitute its decision. A-3 Judges Bench of Apex Court in High Court of Judicature v. S.S. Patil, has held that if two views are possible on the basis of evidence on record the Tribunal shall not substitute its view if there is some legal evidence to support the view on record.
28. The Apex Court in Rahmani Khatoon v. Harkoo Gope, was considering the effect of abatement of proceedings before Civil Court pursuant to the issue of notification under Consolidation Act.
It had been contended before the Apex Court that the order of the High Court that with the abatement of the second appeal all the earlier decisions would also abate was incorrect.
The Apex Court having regard to the language of Sections 3 and 4 of the Consolidation Act upheld the order in following terms:
"10. The concept of abatement is known to civil law. If a party to a proceeding either in the Trial Court or any appeal or revision dies and the right to sue survives or a claim has to be answered, the heirs and legal representatives of the deceased party would have to be substituted and failure to do so would result in abatement of proceedings. Now, if the party to a suit dies and the abatement takes place, the suit would abate. If a party to an appeal or revision dies and either the appeal or revision abates, it will have no impact on the judgment, decree or order against which the appeal or revision is preferred. In fact, such judgment, decree or order under appeal or revision would become final. Such is not the scheme of abatement as conceived by Section 4 of the Act. Here, if he abatement as is conceptually understood in the Code of Civil Procedure is imported, it will do irreparable harm."
29. A Constitution Bench of the Apex Court in P.K. Mitra v. Stare of West Bengal, AIR 1959 SC 144 was considering the matter relating to consideration of revision in a Criminal case after the death of accursed. The Apex Court held:
"The High Court is not bound to entertain an application in revision or having entertained one, to order substitution in every case. It is not bound the other way, namely, to treat a pending application in revision as, having abated by reason of the fact that there was a composite sentence of imprisonment or fine. The High Court has been left complete discretion to deal with a pending matter on the death of petitioner in the requirements of justice".
30. The net effect thus is that if the word proceedings is construed as synonymous with appeal and the appeal is not decided in time the same abates and the valuable right of applicant to challenge the findings of facts of Disciplinary Authority is just taken away by implication. The importance of the same has been emphasised in Ramchandra's case. This conclusion holds without ascertaining the true meaning of abatement in this section.
It has to be further noted that A.T. Act does not provide for transfer of appeals before Appellate Authority to the Tribunal under Section 29 of the A.T. Act. It also does not provide for filing of appeals as provided for some other matters under Section 29A. Thus no alternative forum for deciding appeal is also created.
31. We however note that Section 19(4) actually talks of abatement of proceedings and not of appeal. The word 'proceedings' is not defined in A.T. Act. The word 'proceedings' also appears in Sections 29 and 29A of A.T. Act.
32. The Apex Court in M.M. Thomas v C.I.T., was considering the question as to whether the words "proceedings" in a CBDT Circular referred to proceedings at the appellate stage also Para 8 of the judgment is as under:
"8. It is well settled that the word "proceedings" shall include the proceedings at the appellate stage. It is sufficient to refer to the judgment of this Court in Veraya v. N. Subbiah Choudhry , wherein the Court said at p. 553.
(i) that the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceedings."
33. The Apex Court in R.C. Agrawal and Anr. v. State of Uttar Pradesh, was considering the question as to whether the District Judge in exercise of powers under Section 24 CPC can transfer a reference under Section 146(1) of Criminal Procedure Code. It held:
"The provisions of the Civil P.C. would apply generally to a proceeding before a Civil Court arising out of a reference to it by a Magistrate under Section 146(1) of the Criminal P.C. The expression 'proceeding' used in Section 24, Civil P.C. is not a term of art which has acquired a definite meaning. Looking to the context in which the word has been used in Section 24(1)(b) of the Civil P.C. It would appear to be something going on in a Court in relation to the adjudication of a dispute other than a suit or an appeal. Bearing in mind that the term "proceeding" indicates something in which business is conducted according to a prescribed mode it would be only right to give it, a comprehensive meaning so as to include within it all matters coming up for judicial adjudication and not to confine it to a civil proceeding alone. A proceeding before a Civil Court arising out of a reference to it under Section 146(1), Criminal P.C. can be transferred by the District Court under Section 24, Civil P.C. Because it is in any case a 'proceeding.'
34. Part of Para 27 of the majority judgment in most rev. PMA Metropolitan and Ors. v. Moram Har Marthoma and Anr., AIR 1995 SC 2001 us as under:
"The dictionary meaning of the word 'proceedings' is that institution of legal action any step taken in legal action. In Black's law dictionary it is explained as. "In a general sense, the form and manner of conducting judicial business before a Court or judicial Officer. Regular and orderly progress in form of law, including all possible steps in an action from is commencement to the execution of judgment. The term also refers to administrative proceedings before agencies, Tribunals, bureaus or like."
35. The Apex Court in Babu Lal v. Hazarilal Kishorilal, was considering the scope of Section 22 of Specific Relief Act. The Apex Court held:
"17. The word 'proceeding' is not defined in the Act. Shorter Oxford Dictionary defines it as "carrying on of an action at law, a legal action or process; any act done by authority of a Court of law; any step taken in a cause by either party." The term 'proceeding' is a very comprehensive term and generally speaking means a prescribed course of action for enforcing a legal right. It is not a technical expression with a definite meaning attached to it, but one the ambit of whose meaning will be governed by the statute. It indicates a prescribed mode in which judicial business is conducted. The word 'proceeding' in Section 22 indicates execution proceedings also. In Rameshwar Nath v. Uttar Pradesh Union Bank Ltd., such a view was taken. It is a term giving the widest freedom to a Court of law so that it may do justice to the parties in the case. Execution is a stage in the legal proceedings. It is a stage in litigation. It a step in the ladder. In the journey of litigation there arc various stages. One of them is execution."
36. The Apex Court in P.L Kantha Rao v. State of Andhra Pradesh, was considering the question as to whether execution proceedings to give effect to an order passed by a Tribunal under the Presidential order 1985 would also have to be transferred to the Tribunal Constituted under this Act. It held:
"2. After persuing the relevant provisions an the order of the High Court, we are of the view that the High Court is right in is conclusion that it is a proceeding under Sections 29 and 29-A of the Act and that the petitioners could avail of the remedy of enforcement before the Administrative Tribunal constituted under the Act. The relevant portion of Section 29 reads thus:
"... other proceeding pending before any Court or other authority immediately before the date of establishment of a Tribunal under this Act, being a ... by proceeding the cause of action whereon it is based is such that it would have been, if it had arisen after such establishment, within the jurisdiction of such Tribunal, shall stand transferred on that date to such Tribunal."
The word 'proceeding' engrafted in Section 29 must be understood in a broader perspective. The word 'proceeding' would depend upon the scope of the enactment wherein the expression is used with reference to a particular context where it occur. It may mean a course of action for enforcing a legal right. In the journey of litigation, there are several stages, one of which is the realisation of the judicial adjudication which attained finality. The word 'proceeding' though has not been defined under Section 29, it is a comprehensive term."
"3. The right to adjudicate the dispute arising from the service conditions of the employees of the State has been expressly taken out from the jurisdiction of the Civil Court and the High Court, except of this Court under Article 136 and has been conferred upon the Tribunal constituted under the Act.
The right to enforce the order of a Tribunal is incidental to the right to claim the relief relating to the service conditions of the employees. Having divested the jurisdiction of the Civil Courts to adjudicate these disputes, the Act did not intend to confer jurisdiction in the Civil Court of the execution of the order of the Tribunal. Therefore, the term 'proceeding' in Section 29 is a very wide term to mean a prescribed course of action to enforce the legal right. It indicates that prescribed mode in which the judicial business is conducted. The execution is a step in the judicial process. It seeks to enforce the final order to realise the result of the adjudication. Therefore, it is an integral part of the order passed by the Tribunal which was abolished and that new Tribunal came to be constituted under the Act. Therefore, the Tribunal constituted under the Act gets jurisdiction and power to enforce the orders passed by the Tribunal and which attained finality."
37. The Constitution Bench of the Apex Court in Pradyut Kumar v. Chief Justice of Calcutta, in the context of Article 320(3)(c) has held "The Phrase all disciplinary matters affecting a person is sufficiently comprehensive to include any kind of disciplinary action proposed to be taken in respect of a particular person. We further note that Justice R.P. Sethi in Supreme Court on words and phrases refers to decisions in R.P. Kapur v. Union of India AIR 1964 SC 787 and P.R. Nayat v. Union of India, AIR 1972 SC 591 to indicate that suspension is related to disciplinary matters.
38. The word "proceedings" is not defined in A.T. Act. While Section 19 refers to every proceedings under the relevant service rule. Section 29 refers to proceedings pending before a Court or authority. The Apex Court decisions about proceedings under Income Tax Act, CPC, Specific Relief Act, disciplinary proceeding and Section 29 of the Act leads to the irresistible conclusion that the word "every proceedings" under the relevant service rule" is an extremely wide term and which in the case of disciplinary proceedings would commence with suspension pending issuance of charge sheet and conclude with the order of Revisional Authority under CCS (CCA) Rules.
39. A question that has therefore also to be considered is to whether there is an implied repeal of that part of CCS (CCA) Rules which enables the Appellate Authority to exercise his power or of the entire CCS (CCA) Rules if the O.A. is admitted under Section 19(4) of A.T. Act before the decision of Appellate Authority.
40. A 3 Judges Bench of the Apex Court in Syndicate Bank v. Prabha D. Naik, was also considering the question as to whether the Limitation Act, 1963 impliedly repealed Article 535 of the Portuguese Civil Code. It held:
"At the cost of repetition we say that while implied repeal is not be readily inferred but in the contextual facts, upon scrutiny. We cannot but hold that on the wake of the factum of the Limitation Act coming into existence from 1.1.64 Article 535 of the Portuguese Civil Code cannot but termed to be impliedly repealed and it is of this score that the decision of this Court in Jastimano's case stands overruled."
41. A Constitution Bench of the Apex Court in Maharaja Shree Umaid Mills Ltd. v. Union of India, held :
"19. In view of our conclusion that the agreement of April 17, 1941 is not law, it is perhaps unnecessary to decide the further question as to whether Section 3 of the Rajasthan Ordinance, 1949 (Ordinance 1 of 1949) continued it or whether Section 30 of the Rajasthan Excise Duties Ordinance, 1949 (Ordinance XXV of 1949) repealed it. We may merely say that with regard to the effect of Section 30, learned Counsel for the appellant relied on the principle that the presumption is that a subsequent enactment of a purely general character is not intended to interfere with an earlier special provision for a particular case, unless it appears from a consideration of the general enactment that the intention of the legislature was to establish a rule of universal application in which case the special provision must give way to the general (see Paragraphs 71), page 467 of Vol. 36, Halsbury's Law of England, Third Edition, and Williams v. Pritchard, (1790) 100 ER 862 Eddington v. Borman, (1790) 100 ER 863)."
"20: On behalf of the respondents it was submitted that Section 30 of the Rajasthan Excise Duties Ordinance, 1949, in express terms, repealed all laws dealing with matter covered by the Ordinance, and Section 3 thereof dealt with excise duties on goods produced or manufactured in Rajasthan, therefore, there was no room for the application of the maxim generalia specialibus non derogant and Section 30 clearly repealed all earlier laws in the matter of excise duties or exemption therefrom. It is perhaps unnecessary to decide this question because we have already held that the agreement of April 17, 1941 was neither law nor had the force of law. We may merely point out that the question is really one of finding out the intention of the legislature, and in view of the very clear words of Section 30 of the Rajasthan Excise Duties Ordinance, 1949 and of the repealing provisions in the Finance Act, 1950, it would be difficult to hold that the earlier special law on the subject still continued in force."
42. A Constitution Bench of Apex Court in (sic) v. Subbiah Choudhary, AIR 1957 SC 540 has held:
"(i) the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceedings;
(ii) the right of appeal is not a mere matter of procedure but is a substantive right;
(iii) the institution of the suit carried with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the carrier of the suit;
(iv) the right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced, such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of filing of appeal;
(v) this vested right of appeal can be taken away only by a subsequent enactment if it so provides expressly or by necessary intendment and not otherwise."
43. Justice G.P. Singh in his "Principles of Statutory Interpretation" (Ninth Edition, 2004) (p. 475) has written:
"When a Court to which the appeals would have laid in accordance with the law in force at the time of institution of proceedings, is abolished by a subsequent law which also establishes a Court of like status, the question as to how far the right of appeal vesting on the institution of appeals is taken away altered, modified or preserved will have to be answered on a careful analysis of the subsequent law to find out as to what extent the new Court has been endowed with the jurisdiction and power of Court abolished."
44. It would be clear from the above decisions that a later general law can repeal a prior special law specifically or by implication. Whether the right of appeal is modified, altered or preserved will have to be answered having regard to provisions of the new law.
45. We find that CCS (CCA) Rules framed in exercise of powers under Article 309 is a special law as far as disciplinary proceedings are concerned. A.T. Act is a later general law providing for abatement of proceedings. It also does not create an alternative forum for deciding the appeal. We are accordingly of the view that in such cases the entire proceedings from the stage of suspension pending issuance of charge sheet abates.
46. The O.A. is allowed and the orders of Disciplinary and Appellate Authority arc set aside. The applicant will be treated as having been on duty from the date of suspension preceding his termination. The applicant will be entitled to all consequential benefits. The same should be paid to him in three months otherwise the same will carry an present of 9% beyond this period. No costs.