Power Under Order 41 Rule 33 CPC Is To Be Invoked By Appellate Court Only In Rare Cases : Supreme Court

Order 41 Rule 33 of CPC deals with the power of the Court of Appeal to pass an appropriate order in a case regardless of the fact that the appeal is only with respect to a part of the decree or that the appeal is filed only by some of the parties. In other words, the Appellate Court can pass an order as it deems it fit regardless of the scope of the appeal.

The provision reads as follows :

"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 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 decrees: Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order."

The bench of Justices KM Joseph and Hrishikesh Roy rendered this observation while considering an SLP assailing High Court's order by which the High Court had stayed the final order of dismissal of an employee till the disposal of the criminal case. Although the order of dismissal was not specifically before challenge before the division bench of the High Court, it stayed the dismissal order invoking powers under Order 41 Rule 33.

Disapproving this approach, the Supreme Court said :,

"Order 41 Rule 33 no doubt clothes the appellate court with an extraordinary power, which however is a rare jurisdiction. It is to reach justice in the special facts of a case. It is not an ordinary rule to be applied across the board in all the appeals. In fact, the principle is interalia no doubt that even if there is no appeal by any of the parties in the proceedings, an order can be passed in his favour in the appeal carried by the other side. Any order which ought to have been passed can be passed. In this case, there is no order against the appellant(s) by the learned Single Judge. The order of dismissal was not specifically the subject matter of challenge as noticed. We do not think in the facts of this case, that it is a fit case where the High Court could have supported the directions with reference to Order 41 Rule 33."

In this case, Eastern Coalfields Limited & Ors v Rabindra Kumar Bhart, the respondent ("Rabindra Kumar Bharti") who was employed as a clerk with Eastern Coalfields Limited & Ors was arrested by CBI on August 31, 2015 on the basis of a criminal complaint lodged for demanding bribe to clear retirement formalities.

A case was lodged against the respondent under Section 7 (12) & (13), sub-section 2 read with Section 13(i)(d) of the Prevention of Corruption Act, 1988. The appellant also passed an order of suspension against the respondent on 3rd August, 2015 which was revoked on 15th September, 2015. On March 20, 2017, the appellant served notice of departmental enquiry which prompted the respondent to move a writ petition.

The High Court on June 29, 2017 granted the appellant liberty to proceed with the departmental enquiry but restrained them from passing any final order without the leave of the Court.

Since the departmental enquiry ended, the appellant approached the High Court seeking leave to pass final orders which resulted in an order being passed by Single Judge on February 10, 2021.

The Single Bench permitted the disciplinary proceedings to attain finality at the hands of the disciplinary authority which resulted in the authority passing an order of dismissing the respondent from service.

Aggrieved, the respondent approached the Division Bench and the Division Bench in the impugned Judgement proceeded to direct for staying the final order of dismissal till the disposal of the criminal case. It was further ordered that the order of the dismissal against the respondent would become operative on the criminal proceeding culminating in an order of conviction. The Division Bench said that it was exercising power of the Court of Appeal provided in Order 41 Rule 33 which deals with Power of Court of Appeal.

Submission Of Counsel

Appearing for the appellant, Advocate Parijat Kishore for Eastern Coalfields contended that Division Bench of the High Court erred in not noticing that principally it was not desirable to delay the departmental proceeding on account of pendency of a criminal case.

Counsel had further argued that the respondent participated in the enquiry and thereafter on the culmination of the enquiry in keeping with the order passed on 29.06.2017 after the judgment of the Single Judge dated 10.02.2021 the order of dismissal came to be passed. The counsel further argued that the order of dismissal was not the subject matter of appeal and that dismissal of the respondent was not challenged before the Division Bench.

It was also contended that a verdict of acquittal in the trial which may occur in the future would not affect the disciplinary proceedings as these proceedings have purport different from the disciplinary proceedings.

Appearing for the respondent, Advocate Mahesh Prasad pointed out that the impugned order does not call for any interference and that the disciplinary proceedings were not conducted in a proper manner.

Reliance was placed by the counsel on Capt. M. Paul Anthony Versus Bharat Gold Mines Limited & Another (1999) 3 SCC 679 to contend that the charges, the witnesses and evidence in the Criminal case and also in the departmental proceedings were the same.

Supreme Court's Analysis

The bench in the judgement authored by Justice KM Joseph to adjudicate on the issue relied on the precedents in State of Rajasthan v. B.K.Meena and Ors (1996) 6 SCC 417, Pandiyan Roadways Corpn. Ltd. v. N. Balakrishnan (2007) 9 SCC 755 and Karnataka Power Transmission Corpn. Ltd. v. C. Nagaraju and Another (2019) 10 SCC 367.

Referring to the judgements and considering that despite of being a criminal case against the respondent, the appellant had also initiated disciplinary proceedings, the bench said,

"It is undoubtedly true that this Court has taken the view that when the charges are identical and gives rise to complicated issues of the fact and law and evidence is the same, it may not be appropriate to proceed simultaneously in disciplinary proceedings, along with the criminal case. The rationale behind the principle largely is that the employee who is facing the disciplinary proceeding would necessarily have to take a stand. This in turn would amount to revealing his defense and therefore prejudice the employee in the criminal proceedings. No doubt, this Court has laid down that it is not an absolute embargo and the principle is one to be applied based on the facts of each case."

The bench while setting aside the High Court's order said,

"we think that High Court may not have been justified in passing the impugned order the result of which is that though the appellant(s) conducted the disciplinary proceeding as permitted by the learned Single Judge and the respondent allegedly participated in it and all that remained was passing of an order by the disciplinary authority and what is more during the pendency of the appeal no doubt the order of the dismissal has been passed, the appellant is forced to retain the respondent and the order is to remain in suspended animation to attain finality only if the criminal case is decided in the future and it ends in the conviction of the respondent. We do not think that the High Court was justified in passing such an order in the facts of this case."

Case Title: Eastern Coalfields Limited & Ors v Rabindra Kumar Bharti | CIVIL APPEAL NO.2794 OF 2022

Coram: Justices KM Joseph and Hrishikesh Roy

Citation: 2022 LiveLaw (SC) 374