THE STATE OF PUNJAB AND ORS. versus BAKSHISH SINGH

Citation: [1998] SUPP. 1 S.C.R. 478 · Decided: 08-09-1998 · Supreme Court of India · Bench: S. SAGHIR AHMAD · Disposal: Case Allowed

Judgment (excerpt)

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 
E 
the present case, not proper. 
SeTVice Law-Dismissal from Sell'ice treating absence of leave as 111is-
co11d11ct-Validity of 
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. 
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. 
Allowing the appeal, this Court 
A 
B 
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 
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 
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. 
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 
E 
F 
G 
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 circumstanc

Excerpt shown. Read the full judgment & AI analysis in Lexace.