The State of Punjab & Ors Vs. Bakshish Singh [1998] INSC 468 (8 September 1998)

S.Saghir Ahmad, S. Rajendra Babu.S. Saghir Ahmad, J.

The respondent who was a police constable 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 12.5.1993 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 period of respondent's absence from duty as the "period of leave without pay", could not legally say that he was guilty of misconduct for unathourised 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 departmental proceedings was not controverted by the appellant as no evidence was produced by the appellant in defence.

The decision of the trial court was challenged in appeal before the District Judge which was disposed of by the Addl.District Judge, Jalandhar on 15.1.1995 with the following findings :

"In view of the above brief discussion, I am of the considered opinion that once period of absence is treated as leave of the kind whatsoever, the fact that the delinquent remained absent form duty cannot be sustained after the person has been treated on whatsoever kind it may be.

Thus the findings of the learned lower court upon this matter are hereby confirmed." 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 form duty was a misconduct of the gravest kind so as to warrant the maximum penalty of "dismissal from service" or it was a mer "misconduct" for which lesser punishment would 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 summarily.

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 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 with have 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 nay cross appeal and, therefore, the order of remand passed by the lower appellate court for a fresh order of punishment need not be interfered 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 without jurisdiction.

This contention cannot be accepted.

A Constitution Bench of this Court in Supreme Court Bar Association vs. Union of India & Anr. 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 before it. The power cannot be used to "supplant" substantive law applicable 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.

In this case, what we propose to do would be fully in consonance with the provisions of order XLI Rule 33 which provides as under :

"ORDER XLI - APPEAL FROM ORIGINAL DECREES:

33. Power of Court of Appeal –

The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or make and to pass or made 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 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 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 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 to make such order." This provision gives very wide power 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 power is sought to be exercised has not filed any appeal or cross-objections.

The direction, 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 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 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 vs. Virendra Goyal & Ors. AIR 1969 SC 1349, it was held 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, 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 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 absence as leave without pay, the charge of misconduct did not survive.

It was with this finding that the suit was decreed. The lower appellate court confirmed 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 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. 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 the appeal summarily, which indirectly reflects that it allowed an inconsistent to pass through its scrutiny.

It is in 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 :

(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.

(c) The judgment and decree passed by the trial court is upheld.

There will be no order as to costs.

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