Appellate powers under CPC cannot justify an unwarranted remand where disciplinary charges and procedure have already failed.

An appellate court's wide powers under Order XLI Rule 33 and Section 107 CPC may be used to pass the order that ought to have been made, even without cross-objections, but that discretion must be exercised sparingly and not to sustain an unwarranted remand. Where concurrent findings showed that unauthorised absence had been regularised as leave without pay and the disciplinary process was vitiated by denial of proper hearing and coercion, a fresh punishment inquiry was unjustified. Article 142 could not be invoked to override substantive legal rights. The remand order was therefore unsustainable, and the decree restoring the respondent's position was upheld.

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Issues: Whether the appellate court could remand the matter for fresh punishment after concurrent findings that the charge of unauthorised absence no longer survived and the disciplinary process suffered from procedural defects.

Analysis: The lower courts had found that the period of absence had been regularised as leave without pay, that the charge of misconduct on the basis of unauthorised absence did not survive, and that the departmental proceedings were vitiated by want of proper hearing and by obtaining signatures under duress. In that situation, a remand for a fresh punishment order was held to be unwarranted. The appellate court's power under Order XLI Rule 33 of the Code of Civil Procedure, 1908 and Section 107 of the Code of Civil Procedure, 1908 was recognised as wide enough to pass the order that ought to have been passed, even in favour of a party that had not filed cross-objections, but that discretion must be used sparingly and cannot be used to sustain an inconsistent and unjustified remand. Article 142 of the Constitution of India also could not be invoked to ignore substantive legal rights.

Conclusion: The remand order was unsustainable and the trial court's decree restoring the respondent's position was upheld.

Final Conclusion: The appeal succeeded and the orders of remand and the High Court were set aside, while the decree in favour of the respondent was restored.

Ratio Decidendi: An appellate court may, in appropriate cases, exercise its wide powers to pass the order that ought to have been passed, but it cannot use those powers to uphold an unwarranted remand where the underlying charge and the disciplinary basis have already failed on concurrent findings.

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