JUDGMENT

1. The plaintiff is a respondent in this appeal arising out of the judgment and decree dated August 31, 1982 passed by the Additional District Judge, Asansol in Trial Appeal No. 8 of 1980 affirming in part the judgment and decree passed by the Munsif, First Court, Asansol in Title Suit No. 141 of 1977. The plaintiff (for short respondent hereafter) instituted a suit for declaration and injunction.

2. The plaint case, in a nutshell, is that the plaintiff a clerk under the defendant (for short the appellant hereafter) was rendering spotless service. On January 11, 1977, the plaintiff was awarded punishment illegally. An order of suspension dated September 23, 1975 was issued but no disciplinary proceeding was commenced till October 9, 1975 when a chargesheet was served upon the respondent on false and frivolous grounds, respondent made representations dated November 1, 1975, November 13, 1975, November 25, 1975 and April 17, 1976 praying for supply of copies of documents for dealing with the allegations. By a letter dated November 13, 1975 appellant refused to supply the copies of documents as prayed for by respondent, as a result, he was prevented from giving an effective reply to the chargesheet. Despite the said refusal to supply the copies, respondent denied the allegations contained in the chargesheet. Thereafter, the disciplinary proceeding was commenced, continued and concluded.

3. During the course of disciplinary proceeding, one co-accused Sri Balaram Pal was asked to be present, to the prejudice of respondent. Respondent submitted representation to that effect but the said represention was not considered by the appellant. Respondent also made representation against the biased attitude of the Enquiry Committee, Respondent claimed that the findings of the Enquiry Committee was perverse. By an order dated September 7, 1976 defendant directed another enquiry to be conducted over the self-same matter against Sri Balaram Pal, Respondent was cited witness against Sri Balaram Pal. The appellant issued the second show cause notice calling upon respondent to show cause why the proposed punishment should not be imposed upon him. Respondent made a final defence statement but justice was not meted out to him. Order of punishment dated January 21, 1977 was issued. Respondent was illegally awarded penalty imposing the reduction of the lower stage of pay at Rs. 278/- in the scale of Rs. 260-400/- for a period of five years. Against the said order of punishment an appeal was preferred by respondent on February 21, 1977, but the appeal was turned down by an order dated May 21, 1977. Thereafter, notice of the suit was served upon the appellant and the suit was instituted for the declaration that the enquiry proceeding was illegal, wrongful and the order of punishment dated January 11, 1977 was illegal and wrongful and for permanent injunction to restrain the appellant from giving effect to the said order of punishment. The appellant contested the suit by filing a written statement by denying the plaint allegations and asserted, inter alia, that the documents, which were considered relevant were either allowed to be inspected or furnished and in respect of the order position was clarified to respondent.

4. Mr. Balaram Pal was similarly issued a separate charge and a separate enquiry was held in which Sri Balaram Pal's evidence was obtained. The disciplinary proceeding was held strictly in accordance with law. In course of his statement dated September 6, 1976, respondent expressed his entire satisfaction in the matter of providing all co-operation in allowing him to inspect the relevant document by the Enquiry Officer. The appellants further asserted punishment order imposed upon respondent was issued after observing all the formalities, that respondent was placed under suspension in terms of Rules. Respondent was given all the opportunities to defend his case was also given opportunity to cross-examine Balaram Pal whose evidence was taken in course of enquiry proceedings. The enquiry committee came to a proper finding after considering the evidence on record and imposed the punishment on respondent according to the existing rules.

5. The appellant also asserted that respondent's appeal was duly considered by the Appellate Authority and it was rightly rejected. There was no violation of rules nor any denial of justice. The notice under s. 80 of the Code was not served on the Appellant.

6. An order of punishment once having been implemented there cannot be order of permanent injunction. The appellant prayed for the dismissal of the suit.

7. On the rival pleadings of the parties, the trial Court framed the issues for decision.

8. The Issue No. 1 and 2 were answered in favour of the respondent.

9. The Issue No. 3 was decided against the appellant. The trial Court while reaching the said findings in respect of Issue No. 3 relied on the following decisions:

1. The Collector of Customs v. Md. Habibul Haque reported in 76 CWN 594;

2. State of Gujarat v. R.G Teredesai reported in AIR 1969 SC 1294; and

3. The State of Maharashtra v. B.L Joshi reported in AIR 1969 SC 1302.

10. The trial court recorded that respondent inspected some documents, took extract of those documents. Some other documents which were considered to be irrelevant were not supplied to the respondent. The item no. I and II of Exhibit B were considered “irrelevant”. After considering the pros and cons of the matter the trial court held that a reasonable opportunity was not given to respondent by reason of non-supply of the entire copy of the enquiry report. The entire disciplinary proceeding from the stage of the non-supply of the enquiry proceeding was held to be invalid. The trial court further held that the disciplinary authority could not be said to have not considered the explanation of respondent and that being so, the proceeding cannot be invalid on that ground. On the question of the examination of the witness not named in the chargesheet, the trial Court held that Exhibit B shows that respondent asked for examination for some witnesses besides the persons named in the chargesheet. Accordingly, they were examined and respondent also cross examined those witness. The trial Court accordingly held that the examination of such witnesses was not prejudicial to respondent and that there was no violation of the principles of natural justice.

11. The challenge of respondent that there was no evidence against him for the purpose of finding him guilty was also negatived by the trial court and the findings of the disciplinary authority was also not found perverse on the ground that there was no direct evidence against respondent.

12. Issue no. 4, i.e Was the appeal considered according to law? was also decided against respondent on the ground that the Appellate Authority disposed of the appeal with reasons and on merits and the findings of the Appellate Authority were not cryptic. The said suit was decreed.

13. Against the said judgment and decree by the trial Court, an appeal was preferred. The Appeal Court considered the following points for determination:—

1. Is the enquiry proceeding illegal?

2. Has the respondent been punished according to law?

3. To what relief, if any, is the appellant entitled?

14. The first appellate Court considered a catena of decisions as would appear from the judgment.

15. On a careful consideration of the entire matter, the first appellate Court considered the material on record and found that there was nothing to show the copy of the report of Mr. A.K Mukherjee relied on by the prosecution was given and there was a denial of reasonable opportunity. The first appellate Court also referred to evidence of D.W-1 Fatik Chandra Ghosh. He deposed that Sri A Chatterjee, APO who took statement of Sri Dey and other two persons was examined by the witness at the time of the enquiry. D.W 1 held the enquiry proceeding. He deposed that the copies of those statements were not supplied to respondent. While considering this aspect the first appellate Court also relied on the decisions in the cases of Dev Raj v. Union of India reported in AIR 1966 Himachal Pradesh 13; State of Maharastra v. B.L Joshi reported in AIR 1969 SC 1302.

16. The first appellate Court further held that in the manner following “but since there is nothing to show that copy of the report relied on by the prosecution was given to defence, I am of opinion that in terms of 76 CWN 593 there was denial of reasonable opportunity”.

17. On consideration of the material on record, the first appellate Court held the enquiry proceeding was illegal and therefore, point no. 1 was decided against the appellant. In view of his findings made in respect of the point no. 1, the first appellate Court held the respondent was not punished according to the law and accordingly, the point was decided in favour of respondent.

17a. Point no. 3 was decided against the appellant. Against the aforesaid judgment and decree, the present appeal was preferred.

18. Mr. Rathindra Nath Das, the learned Advocate duly assisted by Sri Shib Kumar Majumder, the learned Advocate appearing for the appellant claimed and contended that respondent did not ask for relief against the order of the Appellate Authority dated May 21, 1977 and hence the suit cannot be sustained in the absence of any relief by respondent. Mr. Das further claimed that the trial Court decided against respondent by holding that the Appellate Authority disposed of the appeal with reasoning and on merit and hence the finding of the appellate authority which went against the respondent cannot be challenged without any cross-objection being filed by the respondent.

19. The next contention of Mr. Das is that neither the enquiry report nor the enquiry proceeding, could be challenged Respondent duly participated in the enquiry proceeding, that ample opportunities were given to respondent for defending his case that the relevant documents sought for by respondent were furnished to him, that respondent was allowed to cross-examine the witnesses, that the enquiry report was not perverse, that the disciplinary authority duly considered the records of the case in terms of the Railway & Disciplinary Appeal Rules (for short the said Rules hereafter) and thereafter, issued the second show cause notice calling upon respondent to show cause as to why the proposed penalty should not be imposed upon him.

20. Thereafter, the disciplinary authority upon consideration of the representation of respondent on the proposed penalty imposed the punishment as mentioned above and the appellate authority, thereafter, rejected the appeal.

21. Mr. Das further claimed and contended that the findings of the Courts below cannot be sustained apart from the infirmity absence of any relief against the appellate order dated May 21, 1977. The Court below did not consider that the entire enquiry proceedings was commenced, continued and concluded in accordance with law and there was no warrant for such findings under challenge in the present appeal.

22. Mr. Sunit Krishna Dutt, the learned Advocate appearing for respondent claimed and contended that the contention of Mr. R.N Das that in absence of any relief sought for by respondent is without any factual or legal basis. As regards the plea of Mr. Das that when no relief as asked for against the appellate order dated May 21, 1977, the suit cannot but be dismissed is without any substance, inasmuch as in paragraph 14 of the plaint, respondent clearly averred that the appeal of respondent was turned down without meeting the argument put forward by the respondent and the said decision was cryptic which amounted to denial of justice and reasonable opportunity and the appellate order should be turned down by the Court. Mr. Dutt further referred to paragraph 16 of the written statement which reads thus:—

“Paragraph 16: With reference to paragraph 13 and 14 of the plaint, the defendant states that the plaintiff's appeal dated 21/2/77 was duly considered by the Appellate Authority who after applying his mind and on perusal of the records rightly rejected the same. The decision of the Appellate Authority was duly communicated to the plaintiff vide No. GMA/Genl/P/593 dated 21/5/77. There was never any denial of justice or violation of the Rules in disposing the appeal of the plaintiff.

23. Mr. Dutt further pin-pointed the issue no. 4 as mentioned above. Mr. Dutt further relied on Rule 7 and Order VII and Rule 2 Order VI of the Civil Procedure Code and referred to the following decisions:—

1. Kedarlal v. Harilal reported in AIR 1952 SC 41;

2. Bhagwati Prosad v. Chandramull reported in AIR 1966 SC 735; and

3. Hindustan Paper Corporation Ltd. v. Sudhir Kumar Chatterjee reported in 91 CWN 851;

24. The decision of the Supreme Court in case of Messrs. Trojan & Company v. Rm. N.N Nagappa Chettiar. reported in AIR 1953 SC 235 was also cited in support of his contentions that if a party asks for a relief on a clear and specific grounds, and in issues or at that trial, no other ground is covered either directly or by necessary implication it would not be open to the said party attempt to sustain the same claim on a ground which is entrily new, but in considering the application of this doctrine Court must bear in mind that considerations of form cannot over-ride the legitimate considerations of substance. If a plea is not specifically made yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleading would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The following decisions were also cited at the bar:—

Bhim Singh (dead) by SRs v. Kan Singh reported in AIR 1980 SC 787 at page 731;

25. Reference was made to the decisions of this Court in case of Kishorilal Nag v. Tinkari Chandra Chandra reported in 1980 Cal. 204 and Madan Gopal Kanodia v. Mamraj Maniram, reported in AIR 1976 SC 461 in support of the contention raised on behalf of respondent that pleadings should not be scrutinised with such meticulous care as to defeat genuine claim on trivial grounds. Next contention of Mr. Dutt is that the exceptions to the general rule for relief not founded on the pleadings should not be granted is also to be taken account in a case where substantial matters are touched in issue and have been fully put in evidence, the case on hand does not come within the sweep of general rule. It is also the contention of Mr. Dutt that in a given case, even if relief not having been claimed, the Court can grant the relief where the pleadings issue and evidence warrant relief may be made available. It is for the Court to look at the substance in the matter and not in its form. On this aspect, Mr. Dutt further submitted, inter alia, that absence of prayer as regards the real relief in the plaint is immaterial.

26. Mr. Dutt urged that the failure of respondent to challenge the finding of the trial court upholding the validity of the appellate order dated May 21, 1977 is to be tested on the foundation of Order 41, rule 22 of the Code and further submitted that the appellant took up a specific ground in the Memorandum of Appeal to the effect that the Court below having been found there was no illegality committed by the Appellate Authority in dismissing the appeal preferred by respondent against the order of punishment, respondent was not entitled to any decree or relief without any challenge to the order of the Appellate Authority in which the order of disciplinary authority stood merged.

27. At this stage, Mr. Dutt further referred to the relevant portion of the judgment of the first appellate Court which only referred to the appellate order dated May 21, 1977 and there was no decision on this aspect by the first Appellate Court. The relevant portion is quoted below:—

“The plaintiff preferred an appeal against that order on 21/2/1977 but it was turned down then after service of notice of the suit the present suit was brought for declaration that the entire enquiry proceeding was illegal and wrongful and the punishment notice dated 11.1.87 was also illegal and wrongful and for permanent injunction to restrain the defendant from giving effect to that punishment notice”.

28. The contention of Mr. Dutt is to be examined in the light of legal perspective. The first appellate Court failed to come to a finding as regards the order of the Appellate Authority dated May 21, 1977, although specific grounds were taken in the memorandum of appeal to the effect. In these circumstances the Court, according to Mr. Dutt, is not powerless to consider the validity of the appellate order dated May 21, 1977, in as much as there was no determination of the first appellate court, in this regard. The appellate order, as seriously assailed by Mr. Dutt on the basis that it contravenes sub-rule 2(a), (b) and (c) of Rule 22 of the said Rules, inasmuch as the entire enquiry proceedings was vitiated by violation of principles of natural justice in as much as a previous statement of the witness not having been supplied to respondent the proceedings cannot be sustained.

29. Mr. Dutt relied on the decision of the Supreme Court in case of Stale of Punjab v. Bhagat Ram reported in AIR 1974 SC 2335. Thereafter, Mr. Dutt referred to and relied on the decision of this Court in case of Collector of Customs v. Biswanath Mukherjee reported in 1914 CLJ 251, in support of the contention, the disciplinary authority cannot reject the prayer of respondent for inspection of the documents on the grounds that the said documents are irrelevant. The order refusing the inspection of the documents being Annexure D4 according to Mr. Dutt contravenes proviso to sub-rule (6) of Rule 9 of the said Rules. Mr. Dutt also referred to the decision of this Court in Nripendra Nath Tarafdar v. Union of India reported in 1981 Lab IC 1268 in support of the aforesaid contention. The mere expression “the item are not relevant” does not conform to the requirements of proviso of sub-rule (6) of Rule 9 of the said Rules. The order of punishment dated January 11, 1977, which was found to be illegal, also suffered from serious infirmity on the ground of breach of Clause 2(ii)(b) of sub-rale (5) of rule 10 of the said Rules. The order of punishment, apart from being found illegal by the Courts below, is to be judged in terms of the aforesaid provisions. It is appropriate for this Court to consider how did the concerned disciplinary authority secure compliance of sub clause 2(b) of sub-rule (5) of Rule 10 of the said Rules. The order of punishment being Annexure G—1 is quoted below:—

“Shri Ashim (Achin?) Kumar Dey, Clerk, Grade-II GM's Office/CLW/Chittaranjan is reduced to a lower stage of pay at Rs. 278/- in the scale of Rs. 260-400/- (RS) for a period of five years. On the restoration, the period of reduction shall operate to postpone in future increment in the scale of Rs. 260-400/- (RS).”

30. The last contention of Mr. Dutt is that the order of punishment and the enquiry proceeding having been infected with the violation of rules of natural justice cannot but be treated as null and void. In support of the aforesaid contention, the reference was made to the decision of the Supreme Court in case of Central Inland Transport Corporation v. Brojonath Ganguly reported in 1986 SCC (L & S) 429. The orders being nullity the appellate order itself cannot cure the incurable defects. The appellate order dated May 21, 1977 cannot cure all the orders which by reason of violation of principles of natural justice are rendered null and void. The aforesaid orders being wholly null and void also suffer from breach of sub-rule 2(a), (b) and (c) of Rule 22 of the said Rules. The appellate order does not at all spell out:

a) Whether the procedure laid down in these rules has been complied with, and if not, whether such non-compliance has resulted in the violation of any provision of the Constitution of India or in the failure of justice;

b) Whether the findings of the disciplinary authority are warranted by the evidence on the record; and

c) Whether the penalty of the enhanced penalty imposed is adequate, indadequate or severe;

Plain reading of the appellate order dated May 21, 1977 would show none of the provisions as contained in sub-rule 2(a), (b) and (c) of Rule 22 of the said Rules were complied with

31. Reference was made to the decisions of the Supreme Court in case of R.P Bhatt v. Union of India reported in (1986) SCC (L & S) 333. Mr. Dutt pointed out that sub-rule 2(a), (b) and (c) of Rule 22 of the said Rules was considered by the Supreme Court in case of Ram Chander v. Union of India reported in (1986) SCC (L & S) 383.

32. Now let us consider the rival contention of the parties. The contention of Mr. Das that there being no relief asked for, nor any challenge against the appellate order dated May 21, 1977 having been made, both the Courts below fell info grave error in granting reliefs not asked for. The learned Judges of the Supreme Court in case of Bhagwati Prasad v. Chandramaul (supra) held in the manner following:—

“What the Court has to consider in dealing with such an objection is did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice and in doing justice to one party, the Court cannot do injustice to another”.

33. The other plea raised by Mr. Das that the Court cannot grant relief not asked for by respondent, in my view, has no substance in it. Relief was rightly given to respondent although such relief was not asked. The substance of the entire matter is to be looked into. Respondent challenged the appellate order passed on May 21, 1977. The said challenge as would appear from paragraph 16 quoted above and issue no. 4 was duly resisted by the appellant. In such circumstances, the Court is not debarred from granting relief on mere untenable pleas taken by Mr. Das before this Court.

34. I am of the view that respondent was rightly given such relief as is entitled to on the facts established upon the evidence even if the plaint does not contain a specific prayer for the relief now on the debate in as much as respondent could not be refused relief merely on the ground that there was no prayer for declaration that the appellate order dated May 21, 1977 is illegal.

35. On a careful analysis of rule 2 of Order VI as also rule 7 of Order VII, I am of the view that the appellate order dated May 21, 1977 rejecting the appeal in clearest breach of sub-rule 2(a), (b) and (c) of Rule 22 of the said Rules was challenged by respondent.

36. Careful reading of the sub-rule 5(ii)(b) of Rule 10 of the said Rules is warranted. The disciplinary authority acting under the said rules is bound by the provisions of the said rules. The order of punishment dated January 11, 1977 passed by the disciplinary authority in exercise of its quasi-judicial functions in my view must be supported by reasons in support of its conclusion. The speaking order will at its best be reasonable and at its worst be at least plausible one, Disciplinary Authority in the instant case did not act in terms of the aforesaid rules in as much as the order of punishment did not assign any reason for accepting the enquiry report. The representation of respondent to the second show cause notice ought to have been considered by the authority by application of objective tests. What prevented the disciplinary authority while imposing penalty from giving reasons? The requirement of sub-rule 5(ii)(b) of Rule 10 of the said Rules, in the instant case, was not fulfilled. The situation went from bad to worse as would be evident from the record that the disciplinary authority while imposing the punishment did not assign any reason. Had the disciplinary authority applied its mind to the materials on record, the incurable infirmities as are idicated above would not have been allowed to be infiltrated. The disciplinary authority while deciding the case of respondent was required to act fairly and should have considered as to whether the entire enquiry proceeding was commenced, continued and concluded in terms of the said Rules.

37. Illegality, irrationality and procedural impropriety were allowed to be crept in the enquiry proceedings. The order of punishment which was found illegal by both the Courts below in my view, suffered from incurable infection of non-application of mind by the disciplinary authority and the said order is, thus, vitiated. The prayer of respondent for inspection of the documents or the supply thereof was allowed in part. Some of the documents as mentioned above were not considered to be relevant.

38. The authority concerned while exercising its powers under sub-rule (6) of Rule 9 of the said Rules shall, for reasons to be recorded by it in writing, refuse permission to inspect all or any such documents as are, in its opinion, not relevant to the case Even Adjudicator is obliged to give reasons for his conclusion it will make necessary for him to consider the matter carefully. The condition to give reasons introduces clarity and minimises arbitrariness for “compulsion of disclosure guarantees consideration”. The adjudicator will have to give such reasons for decisions as may be regarded fair and legitimate by a reasonable man and thus it will minimise chance of irrelevant or extraneous consideration from entering the decisional process and it will minimise chance of unconscious infiltration of unfairness in the conclusion. The giving of reasons also gives satisfaction to the party against whom the decision is made. A reasonable decision, on the other hand, presents the presence of justice.

39. In the instant case, proviso of sub-rule (6) of Rule 9 of the said Rules requiring the authority to give reasons in the manner indicated above remains consciously breached. The proviso to sub-rule (6) of Rule 9 of the said Rules cannot but be, treated as mandatory and the failure to give reasons would be fatal to the action taken. The expression that the document “not consider or not relevant” does not conform to the requirement of sub-rule (6) of Rule 9 of the said Rules. The decision of this Court in Nripendra Nath Tarafder v. Union of India (supra) and the Collector of Customs v. Biswanath Mukherjee (supra) apply squarely to the present case on hand.

40. Apart from above, disciplinary authority did not make any attempt either to marshal the evidence on record with a view to decide whether the findings arrived at the disciplinary authority could be sustained or not. There is no indication that the disciplinary authority applied its mind as to whether the act of misconduct with which respondent was charged together with the attendant circumstances and his past record of respondent were such that he should have been visited with a penalty. The learned Judges of the Supreme Court while dealing with sub-rule 2(a), (b) and (c) of Rule 22 of the said Rules referred to the celebrated treatise on Administrative Law by Professor H.W.R Wade, Fifth Edition at page 487:—

“If” natural justice is violated at the first stage, the right of appeal is not so much a true right of appeal as a corrected initial hearing; instead of fair trial followed by appeal, the procedure is reduced to unfair trial followed by the fair trial. After referring to Megarry, J.'s decision in a trade union expulsion case holding that, as a general rule, a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in the appellate body”.

41. The very challenge of the appellant, in my view, has no legal basis nor does it call for interference with the concurrent findings of fact by the Courts below by the Court sitting in the second appellate jurisdiction.

42. Let me first examine the contention of Mr. R.N Das the learned Advocate for appellant as regards the plea taken by respondent against the appellate order dated May 21, 1977. Before delving into these aspects it is required to be recorded the appellant herein by incorporating Ground B and C in the Memorandum of Appeal sought to support the aforesaid appellate order dated May 21, 1977 as indicated above. All the enquiry proceedings being in utter breach of principles of natural justice, all the orders as mentioned above including the order of punishment became a nullity. The appellate authority cannot cure the incurable infirmity by upholding the order of punishment dated January 11, 1977 being a nullity.

43. It is, therefore, appropriate for the Court to reach a finding as to why the order dated January 11, 1977 can be said to be null and void. The appellate order, apart from being infected with conscious violation of sub-rule 2(a), (b) and (c) of Rule 22 of the said Rules cannot be sustained as the said order is to be tested on the touchstone of the wellsettled principles as laid down by the Privy Council in the case of Nazir Ahmed v. Emperor which was relied on by the Supreme Court in the case of Ram Chandra Keshab Adke v. Govindo Jyoti Chovere reported in AIR 1975 SC 915. The Supreme Court also relied on more than a century old decision in Taylor v. Taylor reported in (1875) 1 Ch. D 426. The learned Judges of the Supreme Court, while embarking on the interpretation of the statute held in the manner following:—

“No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope”.

44. The Supreme Court further held that “the imperative language, the beneficient purpose and importance of s. 5(3)(b) and Rule 2-A for efficacious implementation of general scheme of the Act all unerringly lead to the conclusion that those provisions were intended to be mandatory and not directory”.

45. The Supreme Court also held “failure to comply with the mandatory provisions as to verification of the surrender vitiates the surrender and renders it non est for the purpose of s. 5(3)(b)”

46. The learned Judges of the Supreme Court also held “a century ago in Taylor v. Taylor adopted a Rule that where a power is given to do certain things in a certain way, the things must be done in that way or not at all and that other methods of performance are strictly forbidden this rule has ??? that test of time. Failure to comply with the mandatory provisions ??? sub-s. 2(a), (b) and (c) of Rule 22 of the said Rules render the order non est; even assuming that the cross objection was not filed by respondent. The Court is not powerless to take note of an invalid order which was passed ??? violation of sub-rule 2(a),(b) and (c) of Rule 22 of the said Rules”.

47. It is, therefore, fit and proper to reject the contention of Mr. Das that the order of disciplinary authority having merged with the appellate order, the challenge, thus thrown against the appellate order cannot be sustained by reason of the failure of respondent to file cross-objection. The appellant by incorporation of grounds invited the Court to test the correctness of the validity or propriety of the appellate order dated May 21, 1977. How an order being wholly nullity can be merged with an order of appellate authority? The order of punishment dated January 11, 1977 being null and void the appellate order cannot cure the same. Mr. Dutt rightly invoked the aid of Rule 22 of Order 41 of the Code, which permits respondent without ??? cross-objection may support the decree on grounds decided against him.

48. The order challenge of the appellant is that no relief was asked for by respondent against the appellate order dated May 21, 1977, I have already indicated the appellate order stands impeached in paragraph 14 of the plaint and the plaint and the appellant duly dealt with the said paragraph in paragraph 16 of the written statement.

49. Issue No. 4 is also dealt with by the trial court and answered in favour of the appellant. In such situation, the contention of Mr. Das that when the relief was not asked for the Court should not grant any relief, in my view, should fail for the reasons stated above.

50. Here, the appellant was not taken by surprise nor any prejudice was worked out Respondent effectively set out the facts as regards the appellate order, the objection of the appellant in this regard is founded upon mere technicality but that objection should not preclude the Court from granting the relief, of course, in granting the relief which has not been specifically asked for the power of the Court in appropriate cases can be exercised for the purpose of effectuating justice.

51. Since Mr. R.N Das raised the fundamental objection to the orders passed by the Court below on different grounds the Court considers it fit and proper to deal with and dispose of and decree of both the Courts below, in my view, are merited to be affirmed.

52. In the result, the appeal for the reasons stated above stands dismissed. Dismissal of this appeal shall not prevent the appellant from acting in terms of the order passed by the Trial Court.

There will be no order as to costs.

Appeal dismissed.