T P KUMARAN Vs. R KOTHANDARAMAN CIT GUJARAT

JUDGEMENT

(1.) The learned Advocate General raised three preliminary contentions: (1) that this Court has no jurisdiction to issue a writ of certiorari as against the Union of India; (2) that the order of the Commissioner merged in the final order of the President as the appellate authority and therefore the order of the President rejecting the appeal of the petitioner and thereby confirming the order of the authority of the first instance was the only effective and outstanding order and that being so no writ can be issued even against the Commissioner or against his order of removal and (3) that assuming that there was no merger there would be two out standing orders and this Court would not issue a writ against the Commissioner as that would be putting the Commissioner in an embarrassing situation in that he would have to commit a breach of either the order of this Court or that of the appellate authority.

(2.) Mr. Vakil on the other hand urged that there was no merger of the order of the authority of the first instance into the order of the appellate authority and that the only effective order was the order of the Commisisioner the appellate order being merely one of dismissal of the appeal and confirming the order of the Commissioner. He also urged that the order of the Commissioner was a nullity as it contravened the principles of natural justice that there could be no effective order of an appellate tribunal over an order which was a nullity and therefore the order of the Commissioner being a nullity this Court would have jurisdiction to set aside that original order.

(3.) There has been considerable controversy on the question as to the effect of an appellate order upon the order passed by the authority of the first instance in a departmental inquiry. It was urged that when an appellate authority passes its order in an appeal against the order of the authority of the first instance dismissing the appeal and thereby confirming the original order the original order merges or becomes incorporated in the order of the appellate authority and in that event it is the order of the appellate authority alone which is the effective and outstanding order. Unlike a tribunal exercising Revisional jurisdiction an appellate court or authority has no discretion not to admit an appeal if an appeal lies nor has it a discretion not to grant relief if the appellant is entitled to a relief in law. That would not be the position in the case of a revisional court An appeal besides is a continuation of the suit or the original proceeding. An appellate court can do any of the following three things :