Daya Narayan Pandey vs Union Of India & Ors.
2014 Latest Caselaw 1091 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RSA No.34/2013

%                                                     28th February, 2014

DAYA NARAYAN PANDEY                                         ..... Appellant
                Through:                 Mr. J.K.Tripathi, Adv.

                          versus

UNION OF INDIA & ORS.                                      ..... Respondents
                   Through:              Mr. J.K.Singh, Adv.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA


To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.    This regular second appeal is filed against the judgment of the first

appellate court dated 24.11.2012 which has accepted the appeal of the

respondents herein and set aside the judgment of the trial court dated

20.5.2011. Trial court had decreed the suit filed by the appellant-plaintiff

challenging the termination of his service. The first appellate court has set

aside the judgment of the trial court only on the ground that the appellant-

plaintiff ought to have challenged the orders passed in appeal by the

appellate authority and the revision authority which dismissed the challenges

to the orders of the disciplinary authority and the appellate authority, and
RSA No.34/2013                                                   Page 1 of 3
 that since the orders in appeal and revision were not challenged in the suit,

the suit was hence liable to be dismissed.

2.    In my opinion, the orders which are passed by the departmental

authorities in appeals and by the authorities in revision, are not judgments of

a court of law for the doctrine of merger to come in. In case whereas the

right to file an appeal and revision is provided, at best that would be in

confirmation of the original order but it cannot be that by not challenging the

orders in appeal and revision, the suit itself has to be dismissed. Also, the

relief which is prayed in the suit has to be seen in substance and not in form

that really the substance of the relief in the suit was to set aside the dismissal

orders and which has to be by setting aside of the orders which would have

been passed to confirm the dismissal. This is so as per Order 7(7) CPC.

Therefore, the first appellate court has committed an illegality in dismissing

the suit on the technical ground that the orders of the appellate court and the

revising authority have not been challenged, and in my opinion, they need

not have been specifically challenged as stated above.

3.    Accordingly, the appeal is allowed, the judgment of the first appellate

court dated 24.11.2012 is set aside and the matter is remanded back to the

first appellate court to decide the appeal on merits. It is observed and

clarified that this court has not made any observations one way or the other
RSA No.34/2013                                                    Page 2 of 3
 on the merits of the appeal and the appeal will be decided in accordance with

law as per the stands of the respective parties as is argued before the

appellate court.

4.    The appeal is allowed by remanding the matter back to the first

appellate court to decide the appeal on merits, in accordance with law.

5.    Parties to appear before the District and Sessions Judge (Central) Tis

Hazari, Delhi on 23rd April, 2014. The District and Sessions Judge will mark

the first appeal for disposal to a competent court in accordance with law.




FEBRUARY 28, 2014                            VALMIKI J. MEHTA, J.

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