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PETITIONER: THE STATE OF PUNJAB & ORS.

       Vs.

RESPONDENT: BAKSHISH SINGH

DATE OF JUDGMENT:       08/09/1998

BENCH: S.Saghir Ahmad, S. Rajendra Babu.

JUDGMENT:

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

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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

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       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,

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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.