Central Administrative Tribunal - Delhi
Shri B.L.Sharma vs Municipal Corporation Of Delhi on 13 February, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 836/2012 New Delhi this the 13th day of February, 2014 Honble Mr. Sudhir Kumar, Member (A) Honble Mr. A.K.Bhardwaj, Member (J) Shri B.L.Sharma, S/o Late Shri Bhikeem Lal Sharma, R/o D-16, Mansarovar Park, Shahdara, Delhi. Applicant. (By Advocate : Shri Rajeev Sharma) VERSUS 1. Municipal Corporation of Delhi, Through its Commissioner, Dr. S.P.Mukherjee Civic Centre, J.L.Marg, New Delhi. 2. The Commissioner, Municipal Corporation of Delhi, Dr. S.P.Mukherjee Civic Centre, J.L.Marg, New Delhi. 3. Director (Personnel), Municipal Corporation of Delhi, Dr. S.P.Mukherjee Civic Centre, J.L.Marg, New Delhi. Respondents (By Advocate Shri Praveen Swarup) O R D E R Honble Mr. A.K.Bhardwaj, Member (J):
The applicant, Shri B.L.Sharma, could be dismissed from service in terms of the order dated 14.07.2006 issued and notified on 20.07.2006. He made an appeal to the Lt. Governor of Delhi on 6.10.2006 against the said order, wherein the appellate authority passed the order dated 14.05.2008 notified on 23.05.2008, reducing the penalty of dismissal imposed upon the applicant to that of reduction in time scale of pay by two stages for two years with cumulative effect. In view of the order passed by the appellate authority, the Commissioner, MCD issued order dated 18.06.2008 reinstating the applicant in service with immediate effect. The period between the date of dismissal from service and reinstatement of applicant was treated as deemed suspension and not spent on duty. In OA 1299/2009 filed by the applicant against the aforementioned orders passed by the disciplinary and appellate authorities, this Tribunal passed the following orders:-
Accordingly OA is allowed to the extent that office order passed by the respondent dated 27.10.2008 are set aside to the extent that the period w.e.f. 20.07.2006 has been treated as not spent on duty and deemed suspension. Respondents are directed to decide this period in accordance with rules by passing speaking orders withisn a period of three months from the date of receipt of a copy of this order. Writ Petition preferred against the said order was dismissed by Honble High Court with the following orders:-
And whereas the Commissioner, MCD after considering that Shri B.L.Sharma, Asstt. Engineer is squarely covered with the four corners of FR 54 and the orders passed by Honble High Court of Delhi in Writ Petition No.5114 titled as MCD Vs. S.B. Bhardwaj & Ors and proposed that Shri B.L.Sharma, Assistant Engineer be not paid any pay and allowances for the interregnum period i.e. from the date of dismissal upto reinstatement and the said period shall not be treated as period spent on duty for any purpose except for pensionary benefits vide orders dated 6.10.2010. After the aforementioned orders, Commissioner, MCD passed order dated 8.06.2011, operative portion of which reads as under:-
Now, therefore, Commissioner, MCD after having gone through the present matter in its entirety including reply to show cause memo furnished by Shri B.L.Sharma, Asstt. Engineer averments made by him during the course of personal hearing on 5.5.2011 and considering all facts and relevant record of the case, has finally, confirmed the order that Shri B.L.Sharma, Asstt. Engineer be not paid any pay and allowances for the interregnum period i.e. from the date of dismissal upto his reinstatement in service and the said period shall not be treated as period spent on duty for any purpose except for pensionary benefits, vide his orders dated 12.5.2011. Thereafter the applicant moved an application dated 28.06.2010 under Right to Information Act seeking the information regarding the date of effect of the reduced penalty. In response to said application, he was apprised that the reduced penalty will have effect from 23.05.2008 i.e. the copy of Notification of the order of appellate authority. In the circumstances, applicant filed the present OA, praying therein:-
to quash the impugned order dated 08.06.2011 and 18.8.2010 as illegal and unconstitutional;
to issue order to the respondents not to reduce the last drawn salary of the applicant;
to issue direction to respondents to implement order of CAT and decision of High Court;
the Honble Tribunal may pass any other order/direction as deemed fit and proper in the circumstances of the present case and in the interest of justice. During the course of arguments, Mr. Rajeev Sharma, counsel for applicant confined his relief only to the challenge made to the communication dated 18.08.2010 whereby he was apprised that the penalty of reduction in pay by two stages for two years would be effective from 23.05.2008 i.e. the date of notification of the order of appellate authority. In support of his said argument, he made reference to the order of this Tribunal dated 8.12.2009 in a batch of Original Applications, i.e. OA No. 1223, 1224, 1299 and 1380/2009 and the order dated 19.04.2010 passed by Delhi High Court in WP (C) 2523/2010 (Municipal Corporation of Delhi Vs. Sh. B.L.Sharma)
2. On the other hand, Mr. Praveen Swarup, learned counsel for the respondents submitted:-
(i) Before filing the present OA the applicant has not complied with Section 20 of the Administrative Tribunals Act, 1985.
(ii) Once the period between the date of dismissal to the date of reinstatement has been treated as not spent on duty, no salary will be payable to applicant for the period of two years after his dismissal, thus the pay of the applicant is liable to be reduced w.e.f 23.05.2008 only.
3. The short question arises to be considered by us is, whether the order of appellate authority passed by it reducing the penalty imposed upon an employee would be effective from the date of the order of disciplinary authority (penalty ), or from the order of appellate authority. In view of the aforementioned question involved to be adjudicated in the present case, we may refer to the provisions pertaining to consideration of appeal. One of such provision is contained in Rule 27 of CCS (CCA) Rules. Sub- rule 2 of Rule 27 of the said Rules provided that in case of an appeal against an order imposing any of the penalties specified in Rule 11, the appellate authority shall pass orders- (i) confirming, enhancing, reducing, or setting aside the penalty or (ii) remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case. A similar provision is there in DMC Services (Control & Appeal) Regulations, 1959. For easy reference, the relevant rule is extracted hereinbelow:
15 Consideration of appeals-. In case of an appeal against an order imposing any of the penalties specified in Regulation 6, the appellate authority shall consider:
Where the procedure prescribed in these regulations has been complied with, and if not, whether such non-compliance has resulted in violation of any provisions of the Act or in failure of justice;
Whether the findings are justified; and Whether the penalty imposed is excessive, adequate or inadequate; and after consultation with the Commission if such consultation is necessary in the case, pass orders:
(i) setting aside, reducing, confirming or enhancing the penalty; or
(ii) remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case:
Provided that:
(i) the appellate authority shall not impose any enhanced penalty which neither such authority nor the authority which made the order appealed against, the competent in the case to impose;
(ii) no other imposing an enhanced penalty shall be passed unless the appellant is given an opportunity of making any representation which he may wish to make against such enhanced penalty.
4. In Union of India and Ors Vs. Ramesh Gandhi ( 2012) 1 SCC 476), Honble Supreme Court could refer to its earlier judgment in A.V.Papayya Sastry Vs. Govt. of A.P (2007 4) SCC 221) wherein it could be held that all orders passed by the courts/authorities below merge in the judgment of the Supreme Court. Para 26 of the judgment read as under:-
Again in A.V. Papayya Sastry and Ors. Vs. Government of A.P. and Ors., AIR 2007 SC 1546, this Court reviewed the law on this position and reiterated the principle. In paras 38 and 39 it was held as follows:
38. The matter can be looked at from a different angle as well. Suppose, a case is decided by a competent Court of Law after hearing the parties and an order is passed in favour of the applicant/plaintiff which is upheld by all the courts including the final Court. Let us also think of a case where this Court does not dismiss Special Leave Petition but after granting leave decides the appeal finally by recording reasons. Such order can truly be said to be a judgment to which Article 141 of the Constitution applies. Likewise, the doctrine of merger also gets attracted. All orders passed by the courts/authorities below, therefore, merge in the judgment of this Court and after such judgment, it is not open to any party to the judgment to approach any court or authority to review, recall or reconsider the order.
39. The above principle, however, is subject to exception of fraud. Once it is established that the order was obtained by a successful party by practising or playing fraud, it is vitiated. Such order cannot be held legal, valid or in consonance with law. It is non- existent and non est and cannot be allowed to stand. This is the fundamental principle of law and needs no further elaboration. Therefore, it has been said that a judgment, decree or order obtained by fraud has to be treated as nullity, whether by the court of first instance or by the final court. And it has to be treated as no nest by every Court, superior or inferior.
5. In Commissioner of Income-tax, Bombay v. M/s. Amritlal Bhogilal and Co (AIR 1958 SC 868), it could be viewed that if an appeal is provided against an order passed by Tribunal, the decision of the appellate authority is the operative decision in law and if the appellate authority modifies or reverse the decision of the Tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirms the decision of the Tribunal.
6. In State of Madras v. Madurai Mills Co. Ltd. ( AIR 1967 SC 681), Honble Supreme Court could held that the doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior authority and the other by superior authority passed in an appeal or revision there is a fusion or merger of two orders irrespective of the subject matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. The application of the doctrine depends on the nature of the appellate or revisional order in such case and the scope of the statutory provision conferring the appellate or revisional jurisdiction".
7. In M/s. Gojer Brothers Pvt. Ltd. Vs. Shri Ratanlal (AIR 1974 SC 1380), it could be held by Honble Supreme Court that so far as merger is concerned on principle there is no distinction between an order of reversal or modification or an order of confirmation passed by the appellate authority. Taking note of the aforementioned judgments, in Kunhayammed and Others Vs. State of Kerala and Another (2000 (6) SCC 359), it could be viewed as under:-
The doctrine of merger :
7. The doctrine of merger is neither a doctrine of constitutional law nor a doctrine statutorily recognised. It is a common law doctrine founded on principles of propriety in the hierarchy of justice delivery system. On more occasions than one this Court had an opportunity of dealing with the doctrine of merger. It would be advisable to trace and set out the judicial opinion of this Court as it has progressed through the times.
8. In Commissioner of Income-tax, Bombay v. M/s. Amritlal Bhogilal and Co., AIR 1958 SC 868 this Court held : (Para 10) "There can be no doubt that, if an appeal is provided against an order passed by a tribunal, the decision of the appellate authority is the operative decision in law. If the appellate authority modifies or reverses the decision of the tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirms the decision of the tribunal. As a result of the confirmation or affirmance of the decision of the tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement...................................."
9. However, in the facts and circumstances of the case this Court refused to apply the doctrine of merger. There, an order of registration of a firm was made by the Income-tax Officer. The firm was then assessed as a registered firm. The order of assessment of the assessee was subjected to appeal before the Appellate Commissioner. Later on the order passed by the Income-tax Officer in respect of registration of the firm was sought to be revised by the Commissioner of Income-tax. Question arose whether the Commissioner of Income-tax could have exercised the power of revision. This Court held that though the order of assessment made by the ITO was appealed against before the Appellate Commissioner, the order of registration was not appeallable at all and therefore the order granting registration of the firm cannot be said to have been merged in the appellate order of the Appellate Commissioner. While doing so this Court analysed several provisions of the Income-tax Act so as to determine the nature and scope of relevant appellate and revisional powers and held if the subject matter of the two proceedings is not identical, there can be no merger. In State of Madras v. Madurai Mills Co. Ltd., AIR 1967 SC 681 this Court held that the doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that where-ever there are two orders, one by the inferior authority and the other by a superior authority, passed in an appeal or revision there is a fusion or merger of two orders irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. The application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction.
10. In M/s. Gojer Brothers Pvt. Ltd. v. Shri Ratanlal, AIR 1974 SC 1380 this Court made it clear that so far as merger is concerned on principle there is no distinction between an order of reversal or modification or an order of confirmation passed by the appellate authority; in all the three cases the order passed by the lower authority shall merge in the order passed by the appellate authority whatsoever be its decision - whether of reversal or modification or only confirmation. Their Lordships referred to an earlier decision of this Court in U.J.S. Chopra v. State of Bombay, AIR 1955 SC 633 : (1955 Cri LJ 410) wherein it was held (Para 25) -
"A judgment pronounced by a High Court in exercise of its appellate or revisional jurisdiction after issue of a notice and a full hearing in the presence of both the parties would replace the judgment of the lower Court, thus constituting the judgment of the High Court the only final judgment to be executed in accordance with law by the Courts below."
11. In S. S. Rathore v. State of Madhya Pradesh, AIR 1990 SC 10 : (1990 Lab IC 398) a larger Bench of this Court (Seven-Judges) having reviewed the available decisions of the Supreme Court on the doctrine of merger, held that the distinction made between Courts and tribunals as regards the applicability of doctrine of merger is without any legal justification; where a statutory remedy was provided against an adverse order in a service dispute and that remedy was availed, the limitation for filing a suit challenging the adverse order would commence not from the date of the original adverse order but on the date when the order of the higher authority disposing of the statutory remedy was passed. Support was taken from doctrine of merger by referring to C.I.T. v. Amritlal Bhogilal and Co., (AIR 1958 SC 868) (supra) and several other decisions of this Court.
12. The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When decree or order passed by inferior Court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior Court has disposed of the lis before it either way - whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior Court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the Court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view.
Stage of SLP and post-leave stage
13. The appellate jurisdiction exercised by the Supreme Court is conferred by Articles 132 to 136 of the Constitution. Articles 132, 133 and 134 provide when an appeal thereunder would lie and when not. Article 136 of the Constitution is a special jurisdiction conferred on the Supreme Court which is sweeping in its nature. It is a residuary power in the sense that it confers an appellate jurisdiction on the Supreme Court subject to the special leave being granted in such matters as may not be covered by the preceding articles. It is an overriding provision conferring a special jurisdiction providing for invoking of the appellate jurisdiction of Supreme Court not fettered by the sweep of preceding articles. Article 136 opens with a non-obstante clause and conveys a message that even in the field covered by the preceding articles, jurisdiction conferred by Article 136 is available to be exercised in an appropriate case. It is an untrammeled reservoir of power incapable of being confined to definitional bounds; the discretion conferred on the Supreme Court being subjected to only one limitation, that is, the wisdom and good sense or sense of justice of the Judges. No right of appeal is conferred upon any party, only a discretion is vested in Supreme Court to interfere by granting leave to an applicant to enter in its appellate jurisdiction not open otherwise and as of right.
14. The exercise of jurisdiction conferred on this Court by Article 136 of the Constitution consists of two steps : (i) granting special leave to appeal; and (ii) hearing the appeal. This distinction is clearly demonstrated by the provisions of Order XVI of the Supreme Court Rules framed in exercise of the power conferred by Article 145 of the Constitution. Under Rule 4, the petition seeking special leave to appeal filed before the Supreme Court under Article 136 of the Constitution shall be in form No. 28. No separate application for interim relief need be filed, which can be incorporated in the petition itself. If notice is ordered on the special leave petition, the petitioner should take steps to serve the notice on the respondent. The petition shall be accompanied by a certified copy of the judgment or order appealed from and an affidavit in support of the statement of facts contained in the petition. Under Rule 10 the petition for grant of special leave shall be put up for hearing ex-parte unless there be a caveat. The Court if it thinks fit, may direct issue of notice to the respondent and adjourn the hearing of the petition. Under Rule 13, the respondent to whom a notice in special leave petition is issued or who had filed a caveat, shall be entitled to oppose the grant of leave of interim orders without filing any written objections. He shall also be at liberty to file his objections only by setting out the grounds in opposition to the questions of law or grounds set out in the S.L.P.. On hearing the Court may refuse the leave and dismiss the petition for seeking special leave to appeal either ex-parte or after issuing notice to the opposite party. Under Rule 11, on the grant of special leave, the petition for special leave shall, subject to the payment of additional Court fee, if any, be treated as the petition of appeal and it shall be registered and numbered as such. The appeal shall then be set down for hearing in accordance with the procedure laid down thereafter. Thus, a petition seeking grant of special leave to appeal and the appeal itself, though both dealt with by Article 136 of the Constitution, are two clearly distinct stages. In our opinion, the legal position which emerges is as under :-
1. While hearing the petition for special leave to appeal, the Court is called upon to see whether the petitioner should be granted such leave or not. While hearing such petition, the Court is not exercising its appellate jurisdiction; it is merely exercising its discretionary jurisdiction to grant or not to grant leave to appeal. The petitioner is still outside the gate of entry though aspiring to enter the appellate arena of Supreme Court. Whether he enters or not would depend on the fate of his petition for special leave;
2. If the petition seeking grant of leave to appeal is dismissed, it is an expression of opinion by the Court that a case for invoking appellate jurisdiction of the Court was not made out ;
3. If leave to appeal is granted the appellate jurisdiction of the Court stands invoked; the gate for entry in appellate arena is opened. The petitioner is in and the respondent may also be called upon to face him, though in an appropriate case, in spite of having granted leave to appeal, the Court may dismiss the appeal without nothing the respondent.
4. In spite of a petition for special leave to appeal having been filed, the judgment, decree or order against which leave to appeal has been sought for, continues to be final, effective and binding as between the parties. Once leave to appeal has been granted, the finality of the judgment, decree or order appealed against is put in jeopardy though it continues to be binding and effective between the parties unless it is a nullity or unless the Court may pass a specific order staying or suspending the operation or execution of the judgment, decree or order under challenge.
dismissal at stage of special leave - without reasons - no res judicata, no merger
15. Having so analysed and defined the two stages of the jurisdiction conferred by Article 136, now we proceed to deal with a number of decisions cited at the Bar during the course of hearing and dealing with the legal tenor of an order of Supreme Court dismissing a special leave petition. In Workmen of Cochin Port Trust v. Board of Trustees of the Cochin Port Trust, (1978) 3 SCC 119 : (AIR 1978 SC 1283) : (1978 Lab IC 1111), a Three-Judges Bench of this Court has held that dismissal of special leave petition by the Supreme Court by a non-speaking order of dismissal where no reasons were given does not constitute res judicata. All that can be said to have been decided by the Court is that it was not a fit case where special leave should be granted. That may be due to various reasons. During the course of the judgment, their Lordships have observed that dismissal of a special leave petition under Article 136 against the order of a Tribunal did not necessarily bar the entertainment of a writ petition under Article 226 against the order of the Tribunal. The decision of Madras High Court in the Management of W. India Match Co. Ltd. v. Industrial Tribunal, AIR 1958 Mad 398, 403 was cited before their Lordships. The High Court had taken the view that the right to apply for leave to appeal to Supreme Court under Article 136, if it could be called a "right" at all, cannot be equated to a right to appeal and that a High Court could not refuse to entertain an application under Article 226 of the Constitution on the ground that the aggrieved party could move Supreme Court under Article 136 of the Constitution. Their Lordships observed that such a broad statement of law is not quite accurate, although substantially it is correct.
16. In Indian Oil Corporation Ltd. v. State of Bihar, AIR 1986 SC 1780 there was a labour dispute adjudicated upon by an award made by the Labour Court. The employer moved the Supreme Court by filing special leave petition against the award which was dismissed by a non-speaking order in the following terms :-
"The special leave petition is dismissed."
17. Thereafter the employer approached the High Court by preferring a petition under Article 226 of the Constitution seeking quashing of the award of the Labour Court. On behalf of the employee the principal contention raised was that in view of the order of the Supreme Court dismissing the special leave petition preferred against the award of the Labour Court it was not legally open to the employer to approach the High Court under Article 226 of the Constitution challenging the very same award. The plea prevailed with the High Court forming an opinion that the doctrine of election was applicable and the employer having chosen the remedy of approaching a superior Court and having failed therein he could not thereafter resort to the alternative remedy of approaching the High Court. This decision of the High Court was put in issue before the Supreme Court. This Court held that the view taken by the High Court was not right and that the High Court should have gone into the merits of the writ petition.
Referring to two earlier decisions of this Court, it was further held (para 6 and 8 of AIR 1986 SC 1780) :-
"the effect of a non-speaking order of dismissal of a special leave petition, without anything more indicating the grounds or reasons of its dismissal must, by necessary implication, be taken to be that this Court had decided only that it was not a fit case where special leave should be granted. This conclusion may have been reached by this Court due to several reasons. When the order passed by this Court was not a speaking one, it is not correct to assume that this Court had necessarily decided implicitly all the questions in relation to the merits of the award, which was under challenge before this Court in the special leave petition. A writ proceeding is a wholly different and distinct proceeding. Questions which can be said to have been decided by this Court expressly, implicitly or even constructively while dismissing the special leave petition cannot, of course, be re-opened in a subsequent writ proceeding before the High Court. But neither on the principle of res judicata nor on any principle of public policy analogous thereto, would the order of this Court dismissing the special leave petition operate to bar the trial of identical issues in a separate proceeding namely, the writ proceeding before the High Court merely on the basis of an uncertain assumption that the issues must have been decided by this Court at least by implication. It is not correct or safe to extend the principle of res judicata or constructive res judicata to such an extent so as to found it on mere quesswork."
"It is not the policy of this Court to entertain special leave petitions and grant leave under Article 136 of the Constitution save in those cases where some substantial question of law of general or public importance is involved or there is manifest injustice resulting from the impugned order or judgment. The dismissal of a special leave petition in limine by a non-speaking order does not therefore justify any inference that by necessary implication the contentions raised in the special leave petition on the merits of the case have been rejected by this Court. It may also be observed that having regard to the very heavy backlog of work in this Court and the necessity to restrict the intake of fresh cases by strictly following the criteria aforementioned, it has very often been the practice of this Court to grant special leave in cases where the party cannot claim effective relief by approaching the concerned High Court under Article 226 of the Constitution. In such cases also the special leave petitions are quite often dismissed only by passing a non-speaking order especially in view of the rullings already given by this Court in the two decisions afore-cited, that such dismissal of the special leave petition will not preclude the party from moving the High Court for seeking relief under Article 226 of the Constitution. In such cases it would work extreme hardship and injustice if the High Court were to close its doors to the petitioner and refuse him relief under Article 226 of the Constitution on the sole ground of dismissal of the special leave petition."
(Emphasis supplied)
18. In our opinion what has been stated by this Court applies also to a case where a special leave petition having been dismissed by a non-speaking order the applicant approaches the High Court by moving a petition for review. May be that the Supreme Court was not inclined to exercise its discretionary jurisdiction under Article 136 probably because it felt that it was open to the applicant to move the High Court itself. As nothing has been said specifically in the order dismissing the special leave petition one is left merely guessing. We do not think it would be just to deprive the aggrieved person of the statutory right of seeking relief in review jurisdiction of the High Court if a case for relief in that jurisdiction could be made out merely because a special leave petition under Article 136 of the Constitution had already stood rejected by the Supreme Court by a non-speaking order.
19. In M/s. Rup Diamonds v. Union of India, AIR 1989 SC 674, the law declared by this Court is that it cannot be said that the mere rejection of secial leave petition could, by itself, be construed as the imprimatur of this Court on the correctness of the decision sought to be appealed against.
20. In Wilson v. Colchester Justices (1985) 2 All ER 97, the House of Lords stated;
"There are a multitude of reasons why, in a particular case, leave to appeal may be refused by an Appeal Committee. I shall not attempt to embark on an exhaustive list for it would be impossible to do so. One reason may be that the particular case raises no question of general principle but turns on its own facts. Another may be that the facts of the particular case are not suitable as a foundation for determining some question of general principle. ........................ Conversely the fact that leave to appeal is given is not of itself an indication that the judgments below are thought to be wrong. It may well be that leave is given in order that the relevant law may be authoritatively restated in clearer terms."
21. In Supreme Court Employees' Welfare Association v. Union of India, (1989) 4 SCC 187 : (AIR 1990 SC 334) : (1990 Lab IC 324), and Yogendra Narayan Chowdhury v. Union of India, 1996 (7) SCC 1 : (1996 AIR SCW 57) : (AIR 1996 SC 57) : (1996 Lab IC 759), both decisions by Two-judges Benches, this Court has held that a non-speaking order of dismissal of a special leave petition cannot lead to assumption that it had necessarily decided by implication the correctness of the decision under challenge.
8. Again in Omprakash Verma and Ors Vs. State of Andhra Pradesh and Ors (2010 (10) Scale 707), a reference could be made to aforementioned judgment in para 21 of the judgment and the doctrine of merger could be analyzed as under:-
21. In M/s Gojer Bros. (Pvt.) Ltd. vs. Shri Ratan Lal Singh, (1974) 2 SCC 453, the following conclusion was pressed into service.
"11. The juristic justification of the doctrine of merger may be sought in the principle that there cannot be, at one and the same time, more than one operative order governing the same subject-matter. Therefore the judgment of an inferior court, if subjected to an examination by the superior court, ceases to have existence in the eye of law and is treated as being superseded by the judgment of the superior court. In other words, the judgment of the inferior court loses its identity by its merger with the judgment of the superior court."
22. In Kunhayammed and Others vs. State of Kerala and Another, (2000) 6 SCC 359, this Court held:
"12. The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When a decree or order passed by an inferior court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior court has disposed of the lis before it either way -- whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below."
However, Mr. Chowdhary very much emphasized the subsequent passage in the same paragraph which reads thus:
"However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view."
By pointing out, Mr. Chowdhary submitted that the reliance placed on the doctrine of merger and the aforesaid judgment in Kunhayammed and Others (supra) cannot be sustained. He further pointed out that the last portion in the said paragraph shows that what this Court laid down was that the principle contained in the doctrine of merger is not of universal application. Whatever may be, it is clear that once special leave has been granted, any order passed by this Court thereafter, would be an appellate order and would attract the applicability of the doctrine of merger. The above view is supported in the very same Kunhayammed and Others (supra) which reads:
"41. Once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. The order impugned before the Supreme Court becomes an order appealed against. Any order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. It would not make a difference whether the order is one of reversal or of modification or of dismissal affirming the order appealed against. It would also not make any difference if the order is a speaking or non-speaking one. Whenever this Court has felt inclined to apply its mind to the merits of the order put in issue before it though it may be inclined to affirm the same, it is customary with this Court to grant leave to appeal and thereafter dismiss the appeal itself (and not merely the petition for special leave) though at times the orders granting leave to appeal and dismissing the appeal are contained in the same order and at times the orders are quite brief. Nevertheless, the order shows the exercise of appellate jurisdiction and therein the merits of the order impugned having been subjected to judicial scrutiny of this Court.
42. "To merge" means to sink or disappear in something else; to become absorbed or extinguished; to be combined or be swallowed up. Merger in law is defined as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; an absorption or swallowing up so as to involve a loss of identity and individuality. (See Corpus Juris Secundum, Vol. LVII, pp. 1067-68.)" In the same decision, their Lordships have summarized their conclusion as under: "44. To sum up, our conclusions are:
(i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law.
(ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. The first stage is upto the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and the special leave petition is converted into an appeal.
(iii) The doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter.
(iv) An order refusing special leave to appeal may be a non- speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.
(v) If the order refusing leave to appeal is a speaking order, i.e., gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.
(vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.
(vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before the Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Rule 1 of Order 47 CPC."
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35. In A.V. Papayya Sastry and Others vs. Govt. of A.P. and Others, (2007) 4 SCC 221, this Court observed as under:
"38. The matter can be looked at from a different angle as well. Suppose, a case is decided by a competent court of law after hearing the parties and an order is passed in favour of the plaintiff applicant which is upheld by all the courts including the final court. Let us also think of a case where this Court does not dismiss special leave petition but after granting leave decides the appeal finally by recording reasons. Such order can truly be said to be a judgment to which Article 141 of the Constitution applies. Likewise, the doctrine of merger also gets attracted. All orders passed by the courts/authorities below, therefore, merge in the judgment of this Court and after such judgment, it is not open to any party to the judgment to approach any court or authority to review, recall or reconsider the order."
36. Regarding the doctrine of merger, once the appeal of the State was allowed in Audikeshava Reddy's case the net result was that the High Court judgment which held that the proceedings under the ULC Act were vitiated stood merged in the decision of this Court in Audikeshava Reddy. The logical sequitor of this is that the writ petitions filed by the appellants are deemed to be dismissed. In Kunhayahmed (supra), a three Judge Bench of this Court while elucidating the doctrine of merger held that once `leave' is granted while exercising jurisdiction under Article 136 of the Constitution of India, the doors of the appellate jurisdiction are opened. It does not matter whether reasons are given or not. The doctrine of merger is attracted as soon as `leave' has been granted in a special leave petition.
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42. Mr. Chowdhary, learned senior counsel contended that when a doubt arises about what the Court intended then the same must be resolved by construing the expressions inconsistent with the law. He placed reliance on the following judgment of this Court:
1. Gajraj Singh & Ors. vs. State of U.P. & Ors (2001) 5 SCC 762
2. Sarat Chandra Mishra & Ors. vs. State of Orissa & Ors. (2006) 1 SCC 638, 643 and
3. State of Haryana & Ors. vs. M.P. Mohla, (2007) 1 SCC 457, 464 On going through those decisions, we have no quarrel over the ratio laid down, however, there is no scope of applying them to the present case. As pointed out earlier, the expression `civil appeals are allowed' carry only one meaning, i.e., the judgment of the High Court is set aside and the writ petitions are dismissed. Moreover, the determination of surplus land based on the declaration of owners has become final long back. The notifications issued under Section 10 of the Act and the panchanama taken possession are also final. On behalf of the State, it was asserted that the possession of surplus land was taken on 20.07.1993 and the Panchanama was executed showing that the possession has been taken. It is signed by witnesses. We have perused the details which are available in the paper book. It is settled law that where possession is to be taken of a large tract of land then it is permissible to take possession by a properly executed Panchanama. [vide Sita Ram Bhandar Society, New Delhi vs. Lieutenant Governor, Govt. of NCT, Delhi, (2009) 10 SCC 501]. From the aforementioned judgment of the Honble Supreme Court, it is apparent that though the doctrine of merger is not a doctrine of universal or unlimited application and will depend upon the nature of jurisdiction exercised by the superior forum and content or subject matter of challenge laid or capable of being laid, but generally where an appeal or revision is provided against the order of an authority before superior authority and the superior authority reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior form and it is the latter which subsists. The logic behind the doctrine of merger is that there cannot be two independent orders or decrees operative at the same time. The order of disciplinary authority operates from the date it is passed and the concerned employee is subjected to the penalty imposed in terms of the said order with immediate effect. Thus, if in terms of the order of the appellate authority, the penalty imposed upon an employee by the disciplinary authority is enhanced/reduced/modified, he cannot be subjected to the penalty again from the date of order of the appellate authority. In sum and substance if the order passed by the disciplinary authority is such which can be absorbed in the order of appellate authority, the effect of the penalty will be from the date of order of disciplinary authority only. Only in such cases, where the order of the disciplinary authority or certain portion of it is not capable of being fused in order of the appellate authority or the order of the appellate authority if implemented from the date of order of the disciplinary authority would lead to analogous position, then a view need to be taken in accordance with the requirement of the circumstances. A situation may arise where the disciplinary authority impose some minor penalty like withholding of increment or reduction in pay upon an employee and the appellate authority pass an order of his compulsory retirement. In such a situation it may not be proper to take a view that the concerned employee would be deemed compulsory retired from the date of order of the disciplinary authority as the period during which an employee remained in service may not be set at naught. But general principle would be that the order of disciplinary authority would stand merged in the order of appellate authority and the order passed by the Appellate Authority modifying /enhancing /reducing/ confirming the penalty would be operative from the date of order of the disciplinary authority. There may also be situation where the disciplinary authority impose the minor penalty and the appellate authority may enhance the penalty to that of dismissal or removed from service. In such cases, though the date of effect of the order would not make any difference for the reason that the dismissal or removal result in forfeiture of the service rendered by an employee, still it may not be apt to treat an employees dismissed or removed from service for the period during which actually performed the duty. In the present case, it is not so that modified penalty cannot be implemented from the date of order of the disciplinary authority.
9. From the aforementioned, it is clear that the order passed by the appellate authority is not a fresh or independent order of punishment but is an order whereby the fate of the order of disciplinary authority is determined and decided. Whatever is the fate of the order of penalty, as determined by the appellate authority, would be operative and effective from the date of original order of disciplinary authority only. If we agree with the arguments put forth by the learned counsel for respondents, then in a case where even the dismissal order is set asided by the appellate authority, for the intervening period, the employee would still be treated out of service and only from the date of order of appellate authority, he would be treated in service. In such situation there could be no requirement of the provision of FR 54 (1) which provides that when a Government servant dismissed, removed or compulsorily retired is reinstated as a result of appeal, the authority competent to order reinstatement should consider and make a specific order regarding the pay and allowances to be paid to him for the period of his absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be and whether or not the said period should be treated as period spent on duty. FR 54 (2) specifically provides where the authority competent to order reinstatement is of the opinion that the Government servant who had been dismissed, removed or compulsorily retired has been fully exonerated, the Government servant shall, subject to the provisions of sub-rule (6), be paid the full pay and allowances to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be. Like wise FR 54 (4) provide as under:-
4. In cases other than those covered by sub-rule (2) (including cases where the order of dismissal, removal or compulsory retirement from service is set aside by the appellate or reviewing authority solely on the ground of non-compliance with the requirements of Clause (I) or Clause (2) of Article 311 of the Constitution and no further inquiry is proposed to be held) the Government servant shall, subject to the provisions of sub-rules (5) and (7), be paid such amount (Not being the whole) of the pay and allowances to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case my be, as the competent authority may determine, after giving, notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period ( which is no case shall exceed sixty days from the date on which the notice has been served) as may be specified in the notice. Thus, it is clear that when an employee is reinstated as a result of order of the appellate authority passed by it dealing with the order of disciplinary authority in any manner, it would be the disciplinary authoritys order which would be substituted. We also do not find any substance in the plea put forth by learned counsel for respondents that since the intervening period was treated as not spent on duty and no salary was payable to applicant it could be difficult to implement the penalty of reduction in the time scale of pay by two stages for two years. If a person is made to undergo the penalty when another penalty order is in currency and in he is already suffering the consequence of the earlier penalty order, the penalty would be deemed running for the said period. For guidance we may rely upon DoP&Ts letter No.154/5/78-Disc.II dated 30.07.1981 which reads as under:-
9. Implementation of second penalty imposed during the currency of first penalty:- A question has been raised as to how the penalties imposed on a Government servant are to be implemented when the punishment awarded to him against the earlier proceedings is already current. In other words, when the first penalty imposed against the Government servant is of a lower grade and the second penalty of higher grade is imposed against him during the currency of the first penalty, the normal procedure should be that when any disciplinary case crops up during the currency of an earlier penalty, the disciplinary authority should clearly indicate in the punishment order whether the two penalties should run concurrently or the subsequent penalty should be implemented only after the expiry of the first penalty. It has been decided that where, however, such a specific mention has not been made, the two punishments should run concurrently and the higher penalty, even though ordered later, should be implemented immediately and after the expiry of its period, if the currency of the period of earlier punishment, i.e. lower punishment, still continues, then the same may be implemented for the balance period. In this context, an example may bring the point home.
Supposing an official was punished vide order, dated the Ist December, 1977, with reduction to the minimum of the stage of Rs.425 in the scale of pay of Rs.425-640 for a period of four years with effect from Ist January, 1978. Another punishment order against him was issued on 28th June, 1978, inflicting the penalty of reduction from LSG scale ( Rs.425-640) to time-scale ( Rs.260-480) at the stage of Rs.396 for a period of three years with effect from Ist July, 1978. In this case, it would be observed that the currency of the first penalty is from 1-1-1978 to 31-12-1981 and that of the second penalty (higher one) from 1-7-1978 to 30-6-1981. With the imposition of higher penalty during the currency of the first punishment, the second punishment, i.e, higher one, would become effective from 1-7-1978 and would last up to 30-6-1981. For the balance period, i.e. from 1-7-1981 to 31-12-1981, the first penalty which is deemed to be running concurrently would be implemented. Though during the course of hearing, learned counsel for applicant did not press his challenge to the decision of the respondents treating the period from the date of dismissal upto reinstatement in service as not spent on duty, but since a prayer in this regard has been made in the Original Application, we would examine the same. It is found that the penalty of reduction of pay by two stages for two years with cumulative effect is major penalty. Thus, in view of the provisions of G.I. Dept. of Per. & Trg. O.M.No. 11012/15/85-Estt. (A) dated 3.12.1985, the disciplinary authority is justified to treat the intervening period of service of the applicant as not spent on duty. Besides as has been provided in FR 54 (1) and (4), it is for the concerned authority to take a view regarding intervening period and such view has already been taken by the disciplinary authority. Moreover, the Honble High Court could already take a view regarding the entitlement of the applicant during the intervening period as under:-
Admittedly, though the order of dismissal had been set aside, however, the petitioner, Appellate Authority decided not to hold any further enquiry against the respondent on the allegations on which penalty of dismissal was imposed. If that be so there could be no occasion to place the respondent under deemed suspension under Regular 5 (5) of DMC Services (Control & Appeal) Regulations, 1959. In the circumstances, the petitioner cannot impugn the order of the Tribunal, on the ground that it is in violation of Regulation 5 (5) of DMC Services (Control & Appeal) Regulations, 1959 and the petitioner was entitled to place the respondent under deemed suspension. The petitioner cannot justify its order of deemed suspension even on the basis of FR No.54 of Fundamental Rules. In any case the Appellate Authority while modifying the order of dismissal imposed by the Disciplinary Authority has not passed any such order and consequently, the Disciplinary Authority could not pass the order placing the respondent under deemed suspension and holding that during the said period, the respondent shall be entitled only for suspension allowance already drawn by him though the respondent was not placed under suspension and had not drawn any suspension allowance. There may be a question whether the period during which the Government servant is paid subsistence allowance can be treated as period spent on duty or not. In G.I.M.F.O.M.No.15(14)E.IV dated 25.05.1962 and 9.08.1962 read with the provisions of FRs 54-A and 54-B), it is specifically provided that the entitlement of an employee for pay and allowances during the period of dismissal/removal from suspension does not depend upon the decision to treat the absence period i.e. whether the same is treated as spent on duty or not. For easy reference, the said OM is reproduced hereinbelow:-
3. Treatment of period of absence and payment thereof.- The Government of India have conveyed the following clarifications in regard to certain points which have been raised in connection with the application of FRs 54, 54-A and 54-B:-
(I) The decision of the competent authority under FRs 54, 54-A and 54-B is in respect of two separate and independent matters, viz., (a) pay and allowances for the period of absence, and (b) whether or not the period of absence should be treated as duty.
It is not necessary that the decision on (a) above should depend upon the decision on (b) above.
The competent authority has the discretion to pay the proportionate pay and allowances and treat the period as duty for any specified purpose (s) or only to pay the proportionate pay and allowance. It has no discretion to pay full pay and allowances when the period is treated as non-duty.
If no order is passed directing that the period of absence be treated as duty for any specified purpose, the period of absence should be treated as non-duty. In such event, the past service ( i.e.,) service rendered before dismissal, removal, compulsory retirement or suspension will not be forfeited.
(2) As Fundamental Rule 54 is absolute, the law of limitation restricting payment of arrears of subsistence allowance only for a period of three years in certain circumstances need not be invoked at the time of paying the arrears of pay and allowances for the period from the date of dismissal/removal/compulsory retirement/suspension to the date of reinstatement in respect of all cases where the pay and allowances are regulated on reinstatement in accordance with the provisions contained in FR 54, FR 54- A and FR 54-B. Also in batch of petitions, i.e. Original Applications No.1223, 1224, 1299 and 1380/2009 (ibid), the Tribunal could take the following view:-
4. A similar controversy has arisen before this Tribunal in S.B.Bhardwaj v. Lt. Governor through Chief Secretary and another (OA No.1738/2009) decided on 17.11.2009, where the following order has been passed:
Heard the learned counsel for the parties.
2. Applicant impugns respondents orders dated 26.6.2008 and 27.10.2008 whereby on appeal quashing of the penalty of dismissal and modifying it by a reduction, has resulted in treating the period as deemed suspension and as not spent on duty. The subsistence allowance already given has been held to be good.
3. For this, Municipal Corporation of Delhi has relied upon Regulation 5 (5) of DMC Services (Control & Appeal) Regulations, 1959 and the learned counsel appearing for MCD has also relied the decision of Apex Court in U.P. State Textile Corporation Ltd. v. P.C. Chaturvedi & others, AIR 2006 SC 87 to contend that in the event the dismissal is set aside, it is open for the disciplinary authority to treat the period as not spent on duty, which has been rightly done in the present case in accordance with rules.
4. Learned counsel for applicant, on the other hand, vehemently opposed the contentions and states that the conditions precedent of reinstatement on a judicial order having not been met with, Regulation 5 (5) of Regulations 1959 cannot be invoked.
5. On carefully considering the rival contentions of the parties, we find that here the punishment has been set aside by the appellate authority without ordering further inquiry. In such an event, neither Regulation 5 (4) nor Regulation 5 (5) of Regulations 1959 would have any application. In such view of the matter, when the applicant was never placed under suspension earlier, he cannot be placed under deemed suspension. The case law cited by learned counsel for respondent MCD is distinguishable on the ground that on reinstatement in the case before the Apex Court further inquiry has been ordered, which is not in the instant case.
6. As the penalty has been substituted, the effect of penalty would go back from the date the penalty of dismissal has been substituted, i.e., 20.7.2006 and in such an event, the applicant has a right to be reinstated and the period of his absence from 20.7.2006 till he is reinstated on 26.6.2008 has now to be reconsidered and decided in the light of the order passed by the Lt. Governor where no further inquiry has been ordered.
7. Accordingly, OA is disposed of. Orders passed by the respondents are set aside to the extent that the period from 20.7.2006 has been treated as not spent on duty and deemed suspension. Respondents are directed to decide this period in accordance with rules by passing a speaking order within a period of three months from the date of receipt of a copy of this order. It goes without saying that on a decision to be taken by the respondents, the consequences would ensue upon the applicant in accordance with rules. No costs.
5. In our considered view, on all fours, after still opposition by the learned counsel of respondents, the claim of applicants is covered by the aforesaid ratio, which we respectfully agree and follow. Accordingly, OAs ae disposed of by setting aside the impugned orders. Respondents are directed to decide this period in accordance with Rules by passing a speaking order, within a period of three months from the date of receipt of a copy of this order. It goes without saying that on a decision to be taken by the respondents, consequences in law would ensure upon applicants in accordance with rules. No costs. In Hukum Singh Vs. Commissioner of Police (2012 (132) DRJ 826), Honble Delhi High Court while modified the order of penalty passed the following orders:-
15. Consequently, we modify the order of penalty by setting aside that part of the penalty order which pertains to deferment of increment of pay. In other words, the penalty order of the petitioner would read as amounting to forfeiture of five years approved service entailing a reduction by five stages from Rs.3965/- to Rs.3540/- in the time scale of pay for a period of five years w.e.f. the date of the Disciplinary Authoritys order, that is, 6th November, 2000. Consequential benefits be given to the petitioner within eight weeks. As the applicant has already spent enough time before this Tribunal and Honble High Court, we are not inclined to accept the plea of Section 20 of the Administrative Tribunals Act, 1985 raised by the respondents.
10. In view of the aforementioned, the OA is disposed of with direction to respondents to treat the penalty of reduction in the time scale of pay by two stages for two years imposed upon the applicant effective from the date of order of the disciplinary authority and act accordingly.
OA stands disposed of accordingly. No costs.
( A.K.Bhardwaj ) (Sudhir Kumar) Member (J) Member (A) sk