State of Punjab & Ors Vs. Bakshish Singh 
INSC 468 (8 September
Ahmad, S. Rajendra Babu.S. Saghir Ahmad, J.
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.
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 :
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.
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
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.
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.
contention cannot be accepted.
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
this case, what we propose to do would be fully in consonance with the
provisions of order XLI Rule 33 which provides as under :
XLI - APPEAL FROM ORIGINAL DECREES:
Power of Court of Appeal –
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
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
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.
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
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
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.
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 :
The appeal is allowed.
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.
The judgment and decree passed by the trial court is upheld.
will be no order as to costs.