Daya Narayan Padney vs Union Of India & Ors
2015 Latest Caselaw 497 Del

*              HIGH COURT OF DELHI AT NEW DELHI

+                          RSA No.22/2015


                                    Decided on : 19th January, 2015


    DAYA NARAYAN PADNEY                                    ..... Appellant

                         Through:      Mr.J.K.Tripathi, Adv.

                         versus


    UNION OF INDIA & ORS                               .... Respondent

                         Through:      Mr.Rajan Sabharwal, Adv

    CORAM:
    HON'BLE MR. JUSTICE V.K. SHALI

    V.K. SHALI, J. (ORAL)

CM No.941/2015

1. For the reasons stated in the application, the delay of 30 days

in filing the instant appeal is condoned and the application is

allowed.

RSA No.22/2015

1. This is a regular second appeal filed by the appellant against the

order of the first appellate court dated 12.09.2014.

2. I have heard the learned counsel for the appellant.

3. The contention of the learned counsel for the appellant is that the

principles of natural justice have not been observed by the respondents

while entertaining the departmental revision.

4. It has also been contended since he was feeling aggrieved by the

order of imposition of punishment of termination, he had assailed the

same by filing a suit for declaration and mandatory injunction wherein

the relief with regard to assailing the order of termination and all

subsequent orders was prayed for till the date of filing of the suit.

5. The suit was decreed by the learned Civil Judge. However,

on appeal being filed by the respondents, the said decree and

judgment passed by the trial court was set aside on the technical

ground that appellant ought to have challenged the orders of the

appellate authority and the revision authority which dismissed the

challenges to the orders of the disciplinary authority and suit of the

appellant/plaintiff was dismissed. It is contended that by passing

the order dated 24.11.2012, the first appellate court had fallen into

a grave error.

6. The appellant challenged the said order by filing RSA

No.34/2013 before this court which allowed the same remanding the matter back to the first appellate court to decide the same on

merits. After hearing the parties, the first appellate court passed a

detailed order dated 12.09.2014 and allowed the appeal of the

respondents setting aside the order dated 20.05.2011 passed by the

trial court.

7. I have heard considered the submissions made by the learned

counsel for the appellant and have also gone through the record.

8. The sum and substance of the case is that the present

appellant was a member of a para military force who was visited

with the punishment of termination from service as a consequence

of departmental proceedings. The said punishment of termination

from service was assailed by him in appeal and then subsequently

in revision before respondents themselves in terms of the statutory

provisions. However, no relief was granted to the appellant by the

appellate or the revision authority which led the appellant to filing

a suit for declaration and mandatory injunction. In the suit, the

plaintiff did not assail the order of appellate or the revision

authority which ought to have been done. The order of termination from service passed by the disciplinary authority gets merged into

the order passed by appellate or revision authority.

9. Be that as it may, the appellant was erroneously granted the

relief by setting aside the order of termination from service by the

trial court. However, appeal filed by the respondents against the

said judgment and decree passed by the trial court was allowed and

the suit was dismissed. The appellant filed a regular second appeal

before this court which allowed the same and remanded the matter

back to the first appellate court to decide the same on merits.

10. The first appellate court vide order date 12.09.2014 has

passed a reasoned judgment elaborating the doctrine of merger

also. I do not find any infirmity in the order of the first appellate

court. The question which had been raised by the present appellant

in the second appeal with regard to non compliance of the

principles of natural justice or the fact that he had claimed setting

aside of the orders passed by the respondents till the time of filing

of the suit are essentially questions of fact and not questions of law

much less substantial questions of law.

11. Since the present appeal does not involve any substantial

question of law nor has been shown to be involving one, therefore,

the appeal itself is dismissed.

V.K. SHALI, J.

JANUARY 19, 2015 dm