THE STATE OF PUNJAB AND ORS.versusBAKSHISH SINGH

A                     THE STATE OF PUNJAB AND ORS.
                                            v.
                                 BAKSHISH SINGH

                                SEPTEMBER 8, 1998

B           rs. SAGHIR AHMAD AND s. RAJENDRA BABU, JJ.)
         Civil Procedure Code, 1908-0rder XU Rule ]~Appellate court-Ex-
  ercise of power under--To pass decree or order in favour of tl1e party who has
  not filed appeal or cross objectio11-Held, ca11 be erercised in order to do
C complete justice between the parties.
          Constitution of India, 195(}-Artic/e 142-:lwisdiction under--Scope
    of-Held, tile court can11ot ig11ore tl1e substantive rirjzts of a litiga11t wllile
    dealing with a cause before il

D         Judicial Process-R.ema11d of case-Propriety of-field, ill tl1e facts of
    the present case, not proper.

         SeTVice Law-Dismissal from Sell'ice treating absence of leave as 111is-
    co11d11ct-Validity of
E          Respondent, a police constable, was dismissed from service on the
    charge of unauthorised absence from duty, holding him to be guilty of
    misconduct. The suit filed against the dismissal order was decreed on the
    grounds that the period of absence having been regularised as period of
    leave without pay the charge of unauthorised absence did not survive. TI1e
F   trial court also found that the respondent was not given an opportunity of
    personal hearing during departmental proceeding and the allegation that
    his signature on certain papers were taken under duress, was not con-
    troverted by the appellant.

           In appeal the lower appellate court confirmed the finding of the trial
G court that the charge of misconduct did not survive, but it further decided
  that absence from duty would not amount to grave misconduct and
  remanded back the case to the punishing autho~ity for fresh order of
  punishment. It also did not set aside other findings of the trial court. The
  appellant fited an appeal before the High Court which was dismissed
H summarily. The respondent did not file any cross appeal against the order
                                           478
                            STATE v. B. SINGH                             479
of remand.                                                                       A
      In appeal to this court the appellant - State contended that the order
of remand having been upheld by High Court and the respondent not
having filed a cross appeal against the order, the intervention of this court,
even in exercise of its power under Article 142 of the Constitution, would
be without jurisdiction.                                                         B

      Allowing the appeal, this Court

       HELD : 1. Once it was found as a fact that the charge of unauthorised
absence from duty did not survive, the lower appellate court could not have      C
remanded the matter back to the punishing authority for passing a fresh
order of punishment. In the face of the findings, specially the findings of
the trial court that proper opportunity of hearing was not given and the
signatures of the respondents were obtained under duress during
departmental proceedings, which have not been set aside by the lower
appellate court, there was no occasion to remand the case to the punishing       D
authority merely for passing a fresh order of punishment. [481-F; G]

       2.1. The contention of the appellant - State that this Court cannot
intervene in this matter even while exercising its power under Article 142
of the Constitution, since the respondent had not filed a cross appeal
against the remand order, cannot be accepted. While exercising power             E
under Article 142 of the Constitution, the court cannot ignore the substan-
tive rights of a litigant while dealing with a cause pending before it. The
power cannot be used to "supplant" substantive law applicable to a case.
Article 142 even with the width of its amplitude, cannot be used to build a
new edifice where none existed earlier, by ignoring express statutory            F
provisions dealing with a subject and thereby achieve something indirectly
which cannot be achieved directly. (482-A; CJ

      Supreme Coult Bar Association v. U11io11 of India & Anr., AIR (1998)
SC 1895, relied on.
                                                                                 G
      2.2. Order XLI Rule 33 Civil Procedure Code gives very wide powers
to the appellate court to do complete justice between the parties and
enables it to pass such decree or order as ought to have been passed or as
the nature of the case may require notwithstanding that the party in whose
favour the ,l!ower is sought to be exercised has not filed any appeal or H
    480                    SUPREME COURT REPORTS (1998) SUPP.1 S.C.R.
                                                                  '
A cross-objections. The discretion, however, has to be exercised with care and
    caution and that too in rare cases where there bas been inconsistent
    finding and an order or decree has been passed which is wholly uncalled
    for in the circumstances of the case. The appellate court cannot in the garb
    of exercising power under Order XLI Rule 33, enlarge the scope of the
B   appeal. Whether this power would be exercised or not would depend upon
    the nature and facts of each case. (483-A; B; CJ

            2.3. The appellate court shall have the same powers as are conferred
    on the original court. H the trial court could dispose of a case finally, the
    appellate court could also, by virtue of clause (a) of sub-section (1) of
C   section 107 of Civil Procedure Code, determine a case finally. (483-D]

            R.S. Lala Pradwnan Kumar v. V11e11dra Goyal & Or.;., AIR (1969) SC
    1349, relied on.

            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4212 of
D   1997.

         From the Judgment and Order dated 21.8.96 of the Punjab &
    Haryana High Court in R.S. A No. 1555 of 1996.     '

            R.S. Sodhi for the Appellants.
E
            Shakeel Aluned for the Respondent.

            The Judgment of the Court was delivered by

          S. SAGHIR AHMAD, J. The respondent who was a police constable
F   in Punjab was dismissed from service on 1.6.1998 after a regular
    departmental.enquiry on the charge of unauthorised absence from duty.
    This order was challenged by the respondent_ in a suit filed in the trial court
    on 16.7.1990 which was decreed on 125.1993 and the order of dismissal
    was set aside as it was found by the trial court that the defendants having
    themselves regularised and treated the per_iod of respondent's absence
G   from duty as the "period of leave without pay", could not legally say that
    he was guilty of misconduct for unauthorised absence from duty. The trial
    court also recorded a finding that the respondent's statement that he was
    not given an opportunity of personal hearing and that his signatures were
    obtained under duress in the department3I proceedings was not con-
H   troverted by the appellant as no evidence was produced by the appellant
               STATE v. B.SINGH [S.SAGHIRAHMAD,J.]                     481

in defence.                                                                   A
      The decision of the trial court was chal~enged in appeal before the
District Judge which was disposed of by the Adell.District Judge, Jalandhar
on 15.1.1996 with the following findings :

        "In view of the above brief discussion, I am of the considered        B
        opinion that once period of absence is treated as leave of the kind
        whatsoever, the fact that the delinquent remained absent from duty
        cannot be sustained after the person has been treated on what-
        soever kind it may be. Thus the findings of the learned lower court
        upon this matter are hereby confirmed."                               C

      Having affirmed the findings of the trial court that the charge of
absence from duty did not survive, the lower appellate court proceeded to
consider the question whether absence from duty was a misconduct cif the
gravest kind so as to warrant the maximum penalty of "dismissal from
service" or it was a mere "misconduct" for which lesser punishment would      D
be appropriate. Having found that it was not a case of misconduct of the
gravest kind, the .lower appellate court remanded the case back to the
punishing authority for passing a fresh order of punishment. The appellant
then filed a second appeal in the High Court which was dismissed sum-
marily.
                                                                              E
      It will thus be seen that the trial court as also the lower appellate
court has both recorded the findings that the period of absence from duty
having been regularised and converted into leave without pay, the charge
of absence from duty did not survive. Once it was found as a fact that the
charge of unauthorised absence from duty did not survive, we fail to F
understand how the lower appellate court could remand the matter back
to the punishing authority for passing a fresh order of punishment. In the
face of these findings, specially the finding of the trial court that proper
opportunity of hearing was not given and the signatures of the respondents
were obtained under duress during departmental proceedings which have G
not been set aside by the lower appellate court, we are of the view that.
there was no occasion to remand the case to the punishing authority merely
for passing a fresh order of punishment.

       Learned counsel for the appellant contended that respondent has not
filed any cross appeal and, therefore, the order of remand passed by the      H
    482                   SUPREME COURT REPORTS (1998) SUPP.1 S.C.R.

A lower appellate court for a fresh order of punishment need not be inter-
  fered with, particularly as that order has been upheld by the High Court
  which had summarily dismissed ·the second appeal filed by the State of
  Punjab. If, therefore, this Court intervenes in the matter even in exercise
  of its power under Article 142 of the Constitution, the same would be
B without jurisdiction. This contention cannot be accepted.
           A Constitution Bench of this Court in Supreme Coult Bar Association
    v. U11io11 of India & A11r., AIR (1998) SC 1895 has already held that while
    exercising power under Article 142 of the Constitution, the court cannot
    ignore the substantive rights of a litigant while dealing with a cause pending
C   before it. The power cannot be used to "supplant" substantive law ap-
    plicable to a case. The court further observed that Article 142, even with
    the width of its amplitude, cannot be used to build a new edifice where
    none existed earlier, by ignoring express statutory provisions dealing with
    a subject and thereby achieve something indirectly which cannot be
    achieved directly.
D
          In this case, what we propose to do would be fully in consonance
    with the pn;ivisions of order XLI Rule 33 which provides as under :

             "ORDER XLI - APPEAL FROM ORIGINAL DECREES: .
E            33. Power of Coult of Appeal - The Appellate Court shall have
             power to pass any decree and make any order which ought to have
             been passed or made and to pass or make such further or other
             decree or order as the case may require, and this power may be
             exercised by the Court notwithstanding that the appeal is as to part
F            only of the decree and may be exercised in favour of all or 'any of
             the respondents or parties, although such respondents or parties
             may not have filed any appeal or objection and may, where there
             have been decrees in cross-suits or where two or more decrees are
             passed in one suit, be exercised in respect of all or any of the
             decrees, although an appeal may not have been filed against such
G
             decrees.

             Provided that the Appellate Court shall not make any order under
             Section 35-A, in pursuance of any objection on which the Court
             from whose decree the appeal is preferred has omitted or refused
H            to make such order."
               STATE v. B. SINGH [S. SAGHIR AHMAD, J.)                  483

      This provision gives very wide power to the appellate court to do        A
complete justice between the parties and enables it to pass such decree or
order as ought to have been passed or as the nature of the case may require
notwithstanding that the party in whose favour the power is sought to be
exercised has not filed any appeal or cross-objections.

                                                                               B
      The discretion, however, has to be exercised with care and caution
and that too in rare cases where there has been inconsistent findings and
an order or decree has been passed which is wholly uncalled for in the
circumstances of the case. The appellate court cannot, in the garb of
exercising power under Order XLI Rule 33, enlarge the scope of the
appeal. Whether this power would be exercised or not would depend upon         c
the nature and facts of each case.

       The powers of the appellate court are also indicated in Section 107
of the Code of Civil Procedure which provides that the appellate court shall
have the same powers as are conferred on the original court. If the trial
                                                                               D
court could dispose of a case finally, the appellate court could also, by
virtue of clause (a) of sub-section (1) of Section 107, determine a case
finally. In R.S. Lala Praduman Kumar v. Virendra Goyal & Ors., AIR (1969)
SC 1349, it was hdd that the appellate court could even relieve against
forfeiture in a case under the Transfer of Property Act. This too was based
on the principle that the power which was available to the original court,     E
could be exercised by the appellate court also.

       Applying the above principles to the instant case, it will be noticed
that the trial court recorded a categorical finding of fact that a proper
opportunity of hearing was not afforded to the respondent in the               F
departmental proceedings and that his allegation that his signatures on
certain papers during those proceedings were obtained under duress, was
not controverted as the State of Punjab had lead no evidence in defence.
The trial court also recorded a finding that unauthorised absence from duty
having been regularised by treating the period of ab~ence as leave without
pay, the charge of misconduct did not survive. It was with this finding that   G
the suit was decreed. The lower appellate court confrrmed ·the finding that
since the period of unauthorised absence from duty was regularised, the
charge did not survive but it did not say a word about the finding relating
to the opportunity of hearing in the departmental proceedings. Since those
findings were not specifically set aside and the lower appellate court was     H
    484                   SUPREME COURT REPORTS (1998] SUPP. l S.C.R.

A silent about them, the same shall be treated to have been affirmed. In the
  face of these findings, it was not open to the lower appellate court to
  remand the case to the punishing authority for passing a fresh order of
  punishment. The High Court, before which the second appeal was filed by
  the State of Punjab, did not advert itself to this inconsistency as it dismissed
B the appeal summarily, which indirectly reflect~ that it allowed an inconsis-
  tent judgment to pass through its scrutiny.

         It is in these circumstances that we, in exercise of our power of doing
    complete justice between the parties, finally decide this appeal and the
    whole case by providing as under :
c            (a) The appeal is allowed.

             (b) The judgment dated 15.1.1996 passed by the lower appellate
                 court in so far as it purports to remand the case to the
                 punishing authority as also the judgment of the High Court
                 dated 21.8.1996 are set aside.
D
             (c) The judgment and decree passed by the trial court is upheld.

          There will be no order as to costs.

    K.K.T.                                                       Appeal allowed.