Central Administrative Tribunal - Madras
Kavati Prasannakumari vs M/O Railways on 24 June, 2021
sare OME ay eee aoe we $9 Central Administrative Trihung! Medras Bench GAS INTAS 2019 Dated 2S day of June Two Thonsand Twenty One PRESENT Hon'ble Mr Tdaceb, Member{A)} Kavati Prasannalaimad, Wis late K Joyarac, Ch Office Sundt., Shop-20/Shell, ICP.
Emp. No J8520).
Kavati Alavakumar, S'o late K Jayara, Ch. OMice Supa, Shop-20/Shell, ROP, Emp. No. 788201, By Advocate DABS. Vijayakumar View.
bad < The General Manager.
integral Coach Factory, LCE, Chennal:
The Principal Chief Personnel Civicer, integral Integral Coach Factory, LCE, Chennai:
The Chief Works Engineer(Shell), Integral Coach Factory, LCLE, Chennai.
By Advocate Ms. BR. Sathyabama Applicants QA PSO TS » Respondents
2 OA PASTAS QRDER {Pronounced by Hon'ble Me Ty Jacob, Member Ay} The applicant has filed this OA sesking the following rel _ sae by the respondents under dated [FOLSG8 3 ¥ SSOF SOLS, Gy Le No. PR S/DARITE 291 baad o8 22018 ad oe DO. PRISDARISSI9 LUA dived 20.04 2019, thershy release all the terminal banefite of late K, Jnyarno, husband and father of the } and aps applicants respectively with inferest (D128 per annum inchating fandly pension with effect fom 14.05, 218 8 &© the first applicans as lute KJeyurao died In harness, keeping in view of Rally: ay Board Circular RUB LRP 1 S200, de [06 2000 and < comsequently direct the respondents 10 gppcint the second applicant on compasalonate grounds in 8 ouitable post at lmegral Coach Factory as the applicants are ving under penurious circumatances,
b) To allow the CIA with couts and e} Te pass such Ruther or other onlere as may be deemed Ae and proper im the facts and clreumstances of the case and thus fender fustios.* &. The theta of the case as stated by the spplienns ure that the first angficant is the wilt and the second applicant is the son of K. Jayaran, who died an 165. 3018 in harness while working as Chief QMice Superintendent in LCE. Chennai. While working In the sakl capacity, the decsesed absented himself fom daty during the periad from 10.5.2617 to 2B.6.2017 unauthorisedly, for which a major charge mero al R47 BOTY was issued. Subsequently, the Diseiplisary Authority imposed penalty of "Removel fom Service" wef 17.0018, Aggrieved by the gaid aiid af the Discinfinary Authority, the deseased prefivred an Appeal to the Appellate Authority sh OLA 2OE, De wring the pendency of the seid Appeal, be Bee in har THESE cH ISS 201.
ee er agidee ns eeannae ' S <a 3 we bill age < § $ og 3 2k et .
NS ut < wl c IEE 3 HA FARQOS
3. Thereafter, the Appellate Authority by order dt. 25.7.2018 moditied the 'penalty of removal' to that of 'sompulsory retirement' from services. Agerieved by the ssid order of 'compulsory retirement', the fret applicant made a representation dk.
16.8.2018 to the respondents for dropping of disciplinary proceedings and for grant af terminal benefits ete. Yhe same was refected by the respondents by onder ds. OS IL2018. Agarieved by the said rejection onder the Sew apoligant Gled OA 80/2019 and MA 47/2019 seeking to quash/set-aside the order dt. IS 73018 and US. 12.2018 and to release all the terminal benefits of the deceased with daterest @ 12% including fhmily pension wes [65.2018 and te consequently appoint the second applicant on compassionate grounds in a suitable post al ICE, Chennai. This Trihunal, by order dt. 28.1 2019 directed the firet apelinant to submit a representation within two weeks and the same to he disnosed of by the regpomints within feo months, Thereafler, the first applicant made a detailed representation dt. 17.2. 2019 alongwith judicial precedente to the [* respondent. But, the 1° respondent by mmpnened order di. 20,4.2019 rejected the same. Agerieved hy the said rejection onder, the applicant has fled this OA seeking the aforementioned relief,
4. . The apmlicante seek the relief on the following grounds:-
(1) As per REE No.) 1S/2000 and Rathwauy Servants (Discipline & Appeal) Rules, 1968, if the charged employee expired during the pendenay of the disciplinary procsedings, the disciplinary proceadings atand abated and § should be closed Immediately on the death of the charged naibway servant. But the respondests failed ta do se and Mie statement of the respondents the the disciplinary emey of % fudgment of Non'ble Allahahsd High Court in CMWP the appeal before the Appellate Authority is anaccentable and violative of rules, {H) The respondents onghe to heave released the terminal benefits including family pension of the deceased to the first ee and compassionate appointment to the second applicant on humanitariaa grounds ay the family hes lost the bread-winner and are ving in penorious guy If the Appeal kad been disposed of In Gime as enunciated in the Rallway Servants (Discipline & Appeal) Rules, 1968, when the deceased was alive, the deceased would have preferred a Revision and Review Petition befbns the General Monayer ond President as per Special Provisions Rule 23 and 25.4. Burt belstedly after a period af five months and that too afler the death of the deceased the Appeal was disposed of which isnot malnteinable.
fis) The applicants also relicd on various fadicial prec eoede SiS is Support of their claim. But the respondents were silent uid have not considersd the same.
3, Judgment dt. 24.07 TORS of the Hon'ble Madras High Court in ALP. Marimuth (deceased) Vs. Superintendent of Police, i, Judgment of Hon'ble Apes Count in Gurpanandine V's. Buendra Nando, i. Judgment of Hon'ble Tharkhand High Court in WP (S) No. S987 of 2008 in the case of Prema Marand: Ve. State of
-- dharkhand & Ors, i. Judgement of Baadev Tieary Vs Sido Kanha University and athers (1998) SCC 188, QA TAS IOI Learned counsel for the applicants hes relisd upon the following judgmente:-
Aspmemewrrenastsphredeoedeceeed ee ie a SS x sn Xue $ OA TESTS Mo. 33394 of 2009 in the case of Union of India & Ors Ve. Ram Pal & Gra, vii Order of Central Administrative THhunal, Madras Bench dt. 8.01. 201] In OA No. 1128 of 2011, vi. Order di [QOS 2018 of the Central Administrative Tyihunal, Alishabad Bench In GA No. 488 af 2010 in the vase of Tokhani Devi & anr Vs. Uol & Ors.
VA. Order di 2UIQUO of Central Administrative Tribunal, Principal Bench in OP 212 of (09 in GA 157 of 1992.
% The respondents have fled a detailed reply comiestiing the claim af the applicant. ff is stated that im the appeal dt. O12 2078, the deceased bad stated that he was uneuthorisedly absent fam duty for 30 deys due to his deteriorating health conditinos, The ex-employee was a hebling! shaesics even in the past and heed hoon imposed with many minor ara major penalties right fam the year JNM) {uitielly, daring the year 2000, a major charge memo was issued for his cumulative absence trom duty for 45 days and, however, the same wes dropped. In 2001, he was imposed with a minor penalty of Censure' for 42 days of continnous absence fom dhity. Later, for 26 days of cumulative sheence during the year 2004. In the year 2006, his pay wus reduced to lower stage for a periad of 2 years without recurring effect, as penalty for his cumulative unauthorised absence af 135 days. Again in 2018, one ast of Pass was withheld as he remained absent for 92 days cumulatively. Lastly, in the year 2018, he was imposed with the malar penalty of 'Removal from Service' wef iV L2U18 tor 30 days of continuous unauthorised absence Goo duty darting the year 2017. Therefore, though the ex-cmployes was a repeated offender seith his habitual files the years fram oNNM) befare finally imeasing the terminal pensity of 'removed fom service', However, considering the demise of the employes on 165.2018, the Aposilte Authority bad disposed of the sppeal on humanitarian grounds by modiying. the penalty of 'Removal fom Service' imposed on 172018 into 'Cernpulsory Retirement' by onfer di 25.7. 2018. Subsequently, the fest appbicant submitted ¢ representation dt. 16.8.18 requesting to drop the disciplinary proceedings since the deceased expired during the pendency of bis agpesl and extend all the seMiement benelits, by treating the case as death while in service. In response to the same, the respondent by letter di BYS.I2 had replisd that the disciplinary Mop proceadigs agaist the deceased had slready reached finality with the inpeaition of the penalty of "Removal trom Service' and he died on 16.5.18 Le, only during the pandency af his appeal, Hence, the request of the applicant for grant of terminal benefits and compaasionate appointment could not be considered. Is terms of extant onders of Railway Board, pending eppealirevisien petition has to be ascesserily dleposed off on merits by the concemed authorities, although the petitioner cancemed may have died in the meanwhile. Accordingly, the Appellate Authority hed disposed off the sppes] on humanitarian grounds afer the death of the delinguent ex-employee on IGS.2018 by modifying the penalty of 'Removal fiom Service' Imposed on 2 V7.8 into Conusulsary Retiremem!,) Henoe, the daposal of appeal is very much legal and sustainable and not anlawiul as baselessly alleged by the applicant.
. 8 Je eed the averment of the applioamts Ghat aa per RBE [12000 di 19.86.2000 issued by Railway Hoard the disciplinary proceedings should be closed) immediately ap the death of the chuvged railway servant, ( is stated that in the laste ¢ CASE, ue ge OS a" a ERE (EB ee = " QA MAIR "y decensed received the penalty of 'Removal from Service' imposed by orders : nggeraee™ dt 7.12018 by the Disciplinary Authority on 19118 at his avork spat as well as at = his vealdence by RPAD on 26,118 After that, he anbmitted an Appeal di. 61.218 sud during the pendeney of the Appesl, he passed gemy on (6.5.18. The Apnellere Authority has already inken the death of the deceased inte account and modifled the pipe gece penalty as 'Compulsory Retirement' by taking a lenfent wiew an humanitarian grounds. Further, the Appellate Anthority has also sanctloned Adi pension and fall gratuity on his compulsory ntirement, The submission af NOC by the first applicant in favour of the second applicant for claiming compassionate grounds appciniment . has no relevance since the respondent hed already replica that this case could not be © treated as death while in service, S. Further, i is submitied thar the first applicant, in spite af explaining the rule position by the Stall and Welfare Inepector of the Administration for claiming the setilement benefits, she has nat submited the required documents to process the euttiement dues. Later, she refised to submit the required settlement forms stating that she has taken steps to seek remedy in dhe court af law which clearly goes to prove that the Ramily is not in real Snancial distress. Hence, it is submited hat the OA is devoid of meriis and prayed for dismissal of the OA, %. 'The applicant has Hed rejoinder relterating the stand taken in the GA.
10. Heard the learned counsel for the rival parties, perused the pleadings and documents on recon', i. Asnuttedly, this is the second round of ligation. OA 80/2019 and MA ATHOOLD was fled by the applicants seeking to quash/setaside the onder di 2S. 72018 donee.
2) oo "Sedge AAD g OA PHS O09 and OR.12 2018 and to release eff the terminal benefits of the deceased adth Imierest oN @ 1250 Including family pension wel [445.2018 amd to consequently appoint the second applicant on compassionate grounds ine suitable post é ICE, Chennai This Vnbunal, by order di. 28,1 2019 directed the Grat applicant to submit a representation within fwo weeks and the same te be disposed of by the respondents within two onthe 'Thereafier, the first applicant made a detailed represeneation dt (7.2.0016 wong with judicial precedents te the 1* respondent. Bul the 1° meaparvicnt by impegned omer dt 20.4 2019 rejected the same. Agerieved by the aud rejection order, the gupdicants have filed this O4.
ig. The dleciplinary authority had imposed a penalty of 'removal fone eevee' with effect from [7.012018 on the Railwey servant, late K. Jayaren, whe preferred an appeal to the appellate authority on 12.2018. During the pendency of the appeal, the Railway Servant died on 16.05.2018. However, by an order dated 35.07.2601 8 the competent authority modified the penalyy of 'removal from service' inte one of 'eeuppulaoyy retirement from service'.
13. Leumed counsel for the applicants would ereue that since the appeal Sled hy § :
x the deceased government employes was pending ai the Gime of his death, the order af the disciplinary authority removing him fom service would not be deemed to have attained finality and, as such, he should have been deemed to be in service and disd in harness an 16.05.2018. Accordingly, bis family should be held to be entitled te terminal bene sof a person who died in hamos as also the benefit of xempassionste appointment to a dependant member of the fimily, id. PT have gone through the judements rediwred fa above end also pereeed Railyy ae eo %.
oe AG .. 2 Rg pe mee BM gg : ae < woe, : ee ef :
$ ICE ce cnaaauive sont el viaines Linnie taenen og % OX PANS ey Board Circular dated 19.96.2000, which reads as under -
Subject : Status of the disciplinary case in the event of death of the charged official. Ne. ED & A? 28 RGS-26 dated 19.08 2000) The queation whether the disciplinary case initiated against & Railway servant under the Railway Servants ({Msciptine and Appeal} Rules, 1888 could be closed is the event af death of the charged official during the pendency of the proceedings, has come up for considerstion of this Ministry on quite a fw occasions in the recent past, [tis clared that the disciplinary proceedings should be closed immediately on the death of the charged Reiiway servant."
From the aforesaid REE No. 115 ef 2000, i is clear Ghat isciptinary proovadings should be closed inunediately after the death of the charged Railway servant that Ralway Board hee clarified to the position to the effect that "disegplingry proceedings should bs closed". Since appeal ie a contivumis disciplinary proceedings, 2 ought ta have been closed at the stage of death of deceased, Mr Jayaraa, {3. Such @ provision dees exist even in respect of other Ministries, for which, the Nodal Ministry is the Ministry of Personnel which authors die policy statutory provisions and is the custodian of all the service Rules and regulations, And, in -
respect of the subject matter as herein, the DloPT has passed the inllowing onder vide Gevemment of Indin Ingtructions under Rule 35 of the CCS (CA) Rages 1968 | &
03) Procedure regarding clasing of disciplinary cases in the event of death of the charged official _ This Department hes been reogiving references seeking clanifieation whether disciplinsry cases initiated agaiset the Government servant under CCS (CCA) Rules, 1965, would be clogzed in the event af death or the charged officer during ae es OA FASQOEY all the aspects ft has been decided that where a Government servant dies curing the pendency of the ingiury Le. withoat charges being proved againet him, imposition of aay of the penalties prosoribed under the CC'S (QCA) Rules 1965, would not be justifiable. Therefore, disciplinary proceedings should be closed Immediately on the death of the alleged OovEernment servant.
(Dene, OF Personnel & Training OM No. P12 700-Rae e (A) dated 20" October, 1999]
18. The spinal question for consiigration fe what is the logic of this provision ae alse ~ x the provisions as in RBE 11S/2000, which is posterior to the DePT OM andl what is the corect biterpretation of the term, "during the pendency of the proceedings". The sald order was referred to in the judgment of the Patna High Court in the case of 7 Covil Writ Jurisdiction Case No 8484 af 2017 ( Rima Dew Wile of Late Uday Pratap singh Versus The State of Bihar through the Chef Seersiery, Governnuant of Bihar, Paina and others } wherein, tie Hon'ble High Court hes held in ite kudgment dated PS-OS-201 8 as under: eS The Respondent No. 4, in the couter aflidewlt, has glen annexed the clariivetion dated LS.O7.2017 issued by the Additional Secretary to the Government, General Administretion Departmem, Bihar, Pema, addressed to the relevant authorities whereunder OM No. 11012 6.0o-Bsn.
(A) dated 20.10. T988 has been referred to and the relevant portion thereof has been reproduced, which is us follows:
Pathe High Coon CWC NoSdkS of S017 G18.
2098 4/10 "Aer carefd) consideration of all the aspects, i has been decided that where Goverment Servant dies during the pendency of the inguiry Ce. withe being proved acainst him, imposition af any of the penalties = reeseribed under the CCATCCA) Rules, 1665, would ne be jesiiiable. Therefore, disciplinary proceedings should be . clased immedintely on the death of the allezed Government Servant, (Dept. OF Fersonnel & 'Training LOLA 80-Ben, (A) dated 20th Ootober, gpg apatite cone gi agg Shee ceeiggathte ight se saat EES epee epee EEE AISEE.
pie Riderneiest In the ssid letter dated LSO7.2017, & has been thas conchated thet in case, the delinquent Government servant dies during the course of pendency of the departmental proceeding, the aaid departmental proceeding shall stand abaied automatically.
The learned counsel for the petitioner has argued that even according to the etend af the respondent and the OM dared SR TOTSNS, ance a Government servant dies during the pendency of the inquiry, the departmental procesdings should be closed inwnediately upon the death of the allesed Govemment servant and the proceedings would stnd abated, It is eubmitted that the husband of the petitioner had died in the intervening night of 4/8. G3.Q012 wheress the impugned order of punishment, dismissing the petitioner from services wath effect from the date of his death, has been passed on 22.04.2017 Le. much afler the death of the hushand of the petitioner, hence, the said order of punishoment io mall and voll in view of the feet that the departmental proceeding stead abated immediately upon the death of the petitioner on OS.00.2012. Te has also been pointed ont thet the Superintendent of Pollce, Kshnur iBhabhus), realizing bis mistake, has passed an order subsequently on 29.07.2017 stating thet thoush the departmental proceeding bas stood abated and the deparimental proceeding is being consigned, the husband of the petitioner would get nothing else other than what hes been paid to him during his service period.
I have heard the learned counsel for the parties and gone LES through the materials on record, fois a trite law that if a departmental proceeding is pending against a delingnent and the said delinquent dies dering the course of the pendency of such departmental pracesding, the departmental proceeding stands abated and no onder of punishment can be passed against a dead person. In this regard, it would be relevant to refer to fadement reported
- in 1988 LAR. LC. 248 (Hirabat Deshmukh and another Ve.
State of Muharaxltral, rendered by the Hon'ble Bombay Nish Court (Nagpur Benelli} pamgraph No. @ wheres! is reproduced hereinbelow:
sions with peparl te dismissal, sion of the civil serwant do sot peran civil servant afer his death. Sach proceadings are amended to impose departmental penal i abate at x OA ra 3 € Ft Bs t sy de B18 iS GA MaRS by reason af the death of civil servant. The purposes of proceadings is to inpese penalty, af misconduct ja established against the chi! servant. That can only be anhieved if the cll servant continues to be in service. Unon broader view the proceedings are quasi- crinwnal | the sae Hogan result in Gaull Andine and futher impoaition af yanalty, The character of such proceedings has to be treated as quasi-judicial for this purpase. In the Hult ofthe character of the pracesdings and the natare of penalty hike diamisaal or removal, or any other penalties, mueN oF maior, i has nexes to the cantract of serine. Therefore, Uithe person who has undertaken thet contract ig not available, & should follow chat no procesdings oan santinuc. Thus when the procaadings are quite personal iS relation {0 such 8 contract of service, ihe same should temminats upon death of the delinquent. By reason of death, such proceedings would terminate and abate. We tink that ash a resulf is also inferable from the provisions of Rule 1S2-B af the Bombay Chl Services Rudes".
The DaPeT has to some extent explained the term in the above orders La.
without chorges being prowd agate An, deposition of ave of ge penalties prese bed wader He COS (COA) Rules, (988, whereas, the RAK olreular extracted in: peragragh 14 above, witch wae issued posterior to ths shove DoheT anders, the term "during the pemdeney of the proeecdingn" hag not been described. Ag such, iis appropriste that judicial pronouncements on the subject matter have to be relled apon io arrive mt the correct ivterpreiation.
if. In the Order dt. 10S. 2018 of the Central Adnuinistrntive Twhunal, Allahabad 'Bench in OA No, 468 of S010 in the case of Jokhoni Devi & anr Ve. Dol & Ors. it hasbeen held that if the charged employee dies during the pendency of appeal or revision, the entire prooseding inchading the punishment or appeal order will meet a ¥ legal death and ail) not canais alive aral R would be deemed that agther any i ORE £2 us 3 Bo & .
= e nt 3 OA TERSOT :
"y disciplinary proceedings was pending nor any punishment wee avantod against che deceased employes.
18. In CWMP No, 33394 of 2000 (Uol & Ors, V's, Ram Pal and Che) owes held by Hon'ble High Court of Jinlicature at Allahabad in pare 7 that : "Phus in ary andeion the order of removal against Shri Baboo Lel way not fralted in the whence oF disposal of tds stators appeal and therefore, He is engilesd! to the benetits of Ralheay Bounds Circular dated 12.06.2000 ecconding to which any imewuplete O48 Proceeding against a Rathvay Eniplovee showla he dropped af the ame of death of the ralhvay employee". In the same para, Howes alae held thet: "From she atmesuia ABE. No, U5 of 2000 it is clear thas the disciplinary proceedines should be closed immediately on ihe death of de charged railway servant they Rathway Beard Aes clarflad ihe position to the efleot shat the dbciplinary proceedings should be closed Since appeal is a continuous disciplinary proceedings, i ong to Reve been closed at the stage an the death of the deceased Baby Lal"
{8 In the case of Beenie Marandi Vs. State of Therkhand & Ors, WPS) No. $087 of 2008, the Hon'ble Jharkhand Nigh Court said on 19 Auguat, 2011 as follows:
"in the innant case the right of anneal wide is substarnive right & leken meay ond uaforteiately the dushune' of the pedionendelingson) died without availing reaesce of appeal proceedings. In AIR 1063 SC 398 Bachhinar Senet ¥s. State of Punjob and Another), i Aas been held by the Hon'ble dpex Conrt thar the "Departmental proceedings taken against ¢ Goverment servant are nor divisible In phe sense in which the Nich Cows seuderstunes Grom go be. dhere i Just one continous proceeding Moweh diere are feo stages In Yo fhe fest & comlnc io a conclusion ar Ae evidence ay to whether te charges alleged againy the Government serve' are established ar nor and the second is reached only Wil is nan ther rep are so established" OF course this is in content with inquiry re he Ingdry oot ESS officer and order psesed by ihe UNeciplinary Authority regarding imposition of penalty, Sit the same analogy will apoly nll the appellate proceedings concle appellate procesdings directed in the case of Basudea Tiwary Vs. Side Ranta University and Others reported in (POO8)8 SCX 194 thet "Stove the appellant bas expired daring pendency of these dings, no frther Wlrection either as to further inquiry or reuistaiement can be given. 4 is therefore declared thet the appellant's termination is invalid. Consequently, it would be deemed that the appellant had dled in harness. The appellant would become entitled t6 payment of grease of salary Grom the date of termination of his services up to the date af his death on the basis of last pay drasen by his. The payment is ie be made to the appellants legal representative'. Under the clreumstances, thie is a ft case wherein the Sinte Government aught io have considered the case of the petitioner In Uuht of the factual scenario emerged out af iis petition and ought to take a decision whether the proceeding abgies in view of the statutary provisiang of appeal provided under Rules 1995, as the departmental proceedings are considered fo he continuous procesdings till _ the ont come of gppeal, Bin i appesrs that the respondent "State Government failed to take such decision. hersfore, considering the facts and circumstances emerged cant of this ation and considering the provesition of law and sales applicable in the instant case and slso considering the ratie jad dawn by the Non'ble Apex Coort referred in the above cases, the order of dismissal dated 3.11 2008 requires io be declared invelld mainiy on two counts; () thet the order of dismissal dated 2112006 passed by the Secretary, Coopennive Department, Government of Jharkhand, which Wg an sppellete authority, under the relevant rules and thereby, the right fo appeal which is valnable and substantive right of delinguent is then aveay, and GD) the fastum of death of the deceased. employee and is consequential effect, Having regards to the afirementioned position of Law and looking to the peculiar facets ond circumstances of the case and mere particularly locking to the plight of the widow and children of the decessed, the oner of dismissal of the husband of the petitioner dated 211 2008 declared Invalid. Consequently, & goculd be faust ent of duss available te tis deceased employee on the iy pension b and proper te direct the respondents outharides to make Ww Mes:
ee Se Tirees RB SRR AMG Seng See 4 Sy ee ner! a ee A Boos cyt Vand $7 of mee EE £8 Kei"
QA 78 also Gixed the sarllest and the same shall be paid regularly ic the widow. The payment be made in fiveur of the widow palitioner" = <0. inthe instant case, it has been adovitied that appeal of late Jayame wes per proceedings shall abate and if adi be deemed that ac gunishment wea awarded against fete Jeyarna.
21. The following decisions of the High Court' Apex Court also would manifest the settled law that appeal is continuation of the proceedings Ofihe High Court: vide Bindanath ve State of Assam (AIR 1259 Assam 112) 8 has been held that the proceedings before sn appeliate sutherily are a somtinuatian of the proceedings before the enquiry offier and both these proceedings taken together point to the conclusion. That the guarantee under Article 311 is satisfied and the Glare to give a personal hearing to the petitioner in appeal by itself will not render procesdings egal.
Of the Amex Court:
ge} Shiv Shakti Coop. Housing Sectety . Swaraj Developers, QOG3) & SCC 639, An appeal is continuation of the proceedings: in effect the entire proceedings are before the Appellate Authority and & has the power to review the evidence subject to statutory {imitations presoribed,
(i) Chandi Prasad y. Jagdish Prasad, G008) § SCC 724,
18. Where 8 statutory appeal is provided for, sublect, of course to the restrictione whish may be imposed, U is a contimustion af sult. ft is also aot in dispute that when a higher fonun entertains an appeal and passes an order an SERRE 16 a8. However, when an gppeal ie dismissed on che ground that delay in fling the same is mot condoned, the dk merger shall not gpply, WCE] ic) She af ALP pn Guferat Ambuja Cement Lid, QG08) & SCC 499, In @ piven case even the declaration faems can be Aled before the Appellate Authority as an seneal is continuation i proceedings. In a given cas sity is sisted that the privented Gy masonabls and sadficient co:
Visenabled him to fle the forms in time, Hf can be accepted. ican alse be accepted as additional evidence in support of ihe claim fir deduction.
(i) Nantnder Mohan Arya x Untied Radia Insurance Co.
Lidl, 2000) 3 SCO P78, 46, The matter may be considered fram another angle. order of the disciplinary authority, in view of the siatutory provisions, merged with the order of the Appellate Authority ag also that of the Chairman-oum-Maneging Tirector as the appellate proceedings are in continuation of the original proceedings and, thus, the doctrine of merger shall anny.
(2) Aaahavommed v. State af Kerala, QE08) 6 SOC 389,
9. The doctvine of merger is neither @ dockins of consttational law nor a doctrine statutorily recognised. [tis a common lew doctrine Reineded oo principles of propriety in the blerarchy of justice delivery system. Gb more oovasions than one this Court had an eppomunity of dealing with Use doctrine of merger. 1! would be advisable to trace and set out the judicial opinion of this Court ws it has progressed through the mes.
i) Ande Devi vy Nustal Kanwar, CMOS) 19 SCC 298, at page 200 :
An appeal is continuation of the proceedings; in offeet the entire proceadings are before the Appellate Authority and has the power to review the evidence sublect to statutory himitations preserihed.
x (Ses Rafa Mechanien! Co. o8) Lid! Ae (7) Rengrisaon Refinery & Perrockemicals Lid. ¥ Girish Chandra Sarma, 22007) 7 SCC 206, af page 114 :
Since the writ appeal is in continuation of the original onder passed in the writ jurisdiction by the learned Single Judes, it CRHNOL Operate gs sn eetappe! avainst learned counsel for the vespondent to prose the game. Hf the finding rcanded hy the 7 OA PSQ019 inquiring afflcer is not sound and H relates to perversity then the appellate court In writ appeal cannot estan the counsel from raising the same.
(i) BLA, Palanisamy uN. Aranwebem, (2009) 9 SOC HSS ¢ 2009) 3 SCCTCIY 649, ht may be ao, but it ie well known that the gppeal {fs continuation of the aul DYajender Singh Ghambhir » Gurpreet Singh, G0I4) 10 SOC 7A2 in this regard, the High Court, overlooked the well-hnown legal pasion that an appeal is continuation of the suit and ihe power of the anpellate court is coextensive whth that of ihe trial court. It faded to bear fn mind that whet could he done by the inal court in the proceeding of the sult, can abways be done by the appellate court in the interest af * Jestice,
i) Mindustan Petroleum Carpa. Lal wv iNibohar Staph, (2018) 8 SOC 78 2 EE) € SOC Ci) Fas An appeal is continustion of salt or onginal pracesding, as the sese may be. The power of the appellate court is toextensive with that of the trial court, Ondarily, eppellate farisdiction involves rehearing on facets and law but such furisdiction mey be Himited by the statute fiself thet provides . forthe appellate jurisdiction:
2s. fn view of the above, OA succeeds and impugned arders dated 17.01 S018, es.O7. 208, ON I23018 and 20.08.2019 are hereby quashed aad set sside. It is declared thet the applicant is entitled to the entire retiral benefits as ales the family pension. The respondents are directad to consider fe release the retiral benefits as well as fhouly pension treating the disciplinary prooseding abated and no punishment wis ever waunied to the deceased amployes. The said exercise should be completed within « period of 3 months from the date of receipt of this orden The applicant shall not, however, be entitled to get any interest on the delayed payment of retinal dues and family pension, WH it is mvade within the stipulated perind of three months u ME a QA FAN AOS rest G® Sih per annans from the date of order dil the actual payment is made. Respondents are alao directed to consider and dispose of the application for commassionate appointment as per the existing rules and guidelines, if dis same ix led by the applicurds withia ane month from the date of receipt of s copy of this order.
RN ae ASR NEN ERS 2 ONS, SENET cele aa et Ta