The Appellate Court Can Only Use Order 41 Rule 33 CPC in Extremely Rare Cases: Supreme Court

    District Judge

    Although order 41 Rule 33 of the CPC vests appellate courts with extraordinary powers, the Supreme Court has stated that they should be used only in rare circumstances.

    The power of the Court of Appeal to pass an appropriate decision in a matter is addressed in Order 41 Rule 33 of the CPC, regardless of whether the appeal is limited to a portion of the decree or is submitted by only some of the parties. In other words, regardless of the scope of the appeal, the Appellate Court has the authority to issue whatever order it sees fit.

    The following is the text of the provision:

    “The Appellate Court shall have the power to pass any decree and make any order that ought to have been passed or made, as well as 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 favor of all or any of the respondents or parties, even if such respondents or parties have not filed any appeal or objection, and may, 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: Provided, however, 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.”

    This statement was made by a bench of Justices KM Joseph and Hrishikesh Roy while reviewing an SLP challenging a High Court ruling that stayed a final order of dismissal of an employee pending the outcome of a criminal case. The dismissal order was stayed using powers under Order 41 Rule 33, notwithstanding the fact that it was not specifically challenged before the division bench of the High Court.


    The Supreme Court, in rejecting this approach, stated:

    “Order 41 Rule 33 undoubtedly vests the appellate court with remarkable authority, but it is an uncommon jurisdiction.” It is to achieve justice in the unique circumstances of a case. It is not an ordinary norm that should be followed uniformly in all appeals. In reality, the principle is without a doubt that even if none of the parties to the proceedings have filed an appeal, an order can be made in his favor in the appeal filed by the other side. Any order that should have been passed can be carried out. The learned Single Judge has made no order against the appellant(s) in this instance.

    As you may have seen, the order of dismissal was not the subject of the challenge. We do not believe that the facts of this case are such that the High Court could have upheld the directives based on Order 41 Rule 33.”

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

    The respondent was charged under Section 7 (12) & (13) of the Prevention of Corruption Act, 1988, sub-section 2 read with Section 13(I) (d). On the 3rd of August, 2015, the appellant issued a suspension order against the respondent, which was later revoked on the 15th of September, 2015. The appellant served notice of departmental inquiry on March 20, 2017, prompting the respondent to file a writ petition.

    On June 29, 2017, the High Court allowed the appellant to continue with the departmental investigation but barred them from making any final decisions without the permission of the Court. Since the departmental investigation was completed, the appellant petitioned the High Court for leave to issue final orders, which was granted by a Single Judge on February 10, 2021.

    The Single Bench allowed the disciplinary processes to be completed by the disciplinary authority, which ended in the disciplinary authority issuing an order discharging the respondent from service.

    The respondent, enraged, moved the Division Bench, which, in the challenged Judgment, directed that the final order of dismissal be stayed until the criminal case was resolved. It was further ordered that the dismissal decision against the respondent would apply to any criminal proceedings that resulted in a conviction order. The Division Bench stated that it was using the Court of Appeal’s power under Order 41 Rule 33, which governs the Court of Appeal’s power.

    Counsel’s Submission

    Advocate Parijat Kishore for Eastern Coalfields, who appeared on behalf of the appellant, argued that the Division Bench of the High Court erred in failing to notice that it was not desirable to delay the departmental process due to the pendency of a criminal matter.

    Counsel had also claimed that the respondent took part in the investigation, and that once the investigation was completed, the order of dismissal was issued in accordance with the order issued on June 29, 2017, following the judgment of the Single Judge dated February 10, 2021. The attorney also claimed that the dismissal decision was not the subject of the appeal and that the respondent’s dismissal had not been contested before the Division Bench.

    It was also argued that an acquittal in a future trial would have no bearing on the disciplinary procedures because these proceedings have a purpose that is distinct from the disciplinary processes.

    Advocate Mahesh Prasad, appearing for the respondent, stated that the impugned order does not warrant any interference and that the disciplinary proceedings were not conducted properly.

    The lawyer relied on Capt. M. Paul Anthony Versus Bharat Gold Mines Limited & Others (1999) 3 SCC 679 to argue that the charges, witnesses, and evidence in both the criminal and departmental processes were the same.

    The Supreme Court’s Opinion

    The bench relied on 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 Others (2019) 10 SCC 367 to reach a decision on the issue.

    Referring to the judgments and noting that, despite the fact that the respondent was the subject of a criminal prosecution, the appellant had also begun disciplinary procedures against him, the bench stated,

    “It is undoubtedly true that this Court has taken the view that when the charges are identical and give 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.”

    While overturning the High Court’s decision, the bench stated,

    “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

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