SUPREME COURT OF INDIA
U.P.S.R.T.C.
Vs
Imtiaz Hussain
Civil Appeal No. 24 of 2005
(Arijit Pasayat and Tarun Chatterjee)
12/12/2005
ARIJIT PASAYAT, J.
1. Challenge in this appeal is to the order passed by a learned Single Judge of
the Allahabad High Court in a review application.
2. Factual background in a nutshell was as follows:
3. The respondent who was appointed as a conductor of the appellant-Corporation
during inspection on 5.6.1989 he was found not have issued tickets to the
passengers. He was placed under suspension on 20.6.1989. The reply submitted by
him was found to be unsatisfactorily and it was decided to conduct disciplinary
enquiry. After conducting the enquiry, the officer submitted his report wherein
charges were held to have been proved against the respondent. A show cause
notice was issued to the respondent proposing to award the punishment of
removal from service and after considering the reply submitted to the show
cause notice and other relevant record, the appointing authority passed an
order removing him from service. An industrial dispute was raised by him
questioning the legality of the order dated 31.12.1990. The labour court held
that the enquiry was not conduct in a fair manner. However, being of the view
that the respondent was not in the list of permanent conductors, it was held
that he was not entitled to get any back wages. Therefore, only an order of
reinstatement was passed. An application purported to be under Section 6(6) of
the Uttar Pradesh Industrial Disputes Act, 1947 (in
short the 'U.P. Act') was filed stating that the conclusion of the labour court
that he was not in the permanent list was not correct and, therefore, he was
entitled to the benefit of back wages. The labour court held that though from
the pleadings of the parties it was not clear that the employee concerned was
not in the waiting list of the permanent candidates yet the award was to be
modified. Certain directions about the payment of salary, allowances etc. from
31.12.1992 till reinstatement with continuity of service was directed. This was
questioned by the appellant before the Allahabad High Court. A learned Single
Judge held that though payment of back wages was not the normal rule yet on the
facts of the case the respondent was entitled to 50% of the back wages with 9%
interest. Said order is challenged in this appeal.
4. Learned counsel for the appellants submitted that the order passed by the
labour court in purported exercise of Section 6(6) of the U.P. Act was clearly
untenable. The same only permitted correction of clerical or arithmetical
mistakes in the award or errors arising in the award from any accidental slip
or omission. The order passed by the labour court modifying the original award
was clearly beyond the scope and ambit of Section 6(6) of the U.P. Act. The
High Court unfortunately did not address itself of this vital question and
directed payment of back wages with interest.
5. In response learned counsel for the respondent submitted that the labour
court's order modifying the award was correct and no interference is called for
particularly when the High Court has reduced the back wages to 50% with only 9%
interest.
6. In order to appreciate rival submissions Section 6(6) of the U.P. Act needs
to be extracted. The same reads as follows:
Section 6(6)
"A Labour Court, Tribunal or Arbitrator may either of its own motion or
on the application of any party to the dispute, correct any clerical or
arithmetical mistakes in the award, or errors arising therein from any
accidental slip or omission; whenever any correction is made as aforesaid, a
copy of the order shall be sent to the State Government and the provision of
this Act; relating to the publication of an award shall mutatis mutandis apply
thereto." *
7. It is to be noted that there is no similar provision in the Industrial Disputes Act, 1947 (in short the 'Act'). The
provision is similar to Section 152 of the Code of Civil
Procedure, 1908 (in short the 'CPC').
8. Section 152 provides for correction of clerical or arithmetical mistakes in
judgments, decrees or orders or errors arising therein from any accidental slip
or omission. The exercise of this power contemplates the correction of mistakes
by the Court of its ministerial actions and does not contemplate of passing
effective judicial orders after the judgment, decree or order. The settled
position of law is that after the passing of the judgment, decree or order, the
same becomes final subject to any further avenues of remedies provides in
respect of the same and the very Court or the tribunal cannot, on mere change
of view, is not entitled to vary the terms of the judgments, decrees and orders
earlier passed except by means of review, if statutorily provided specifically
therefor and subject to the conditions or limitations provided therein. The
powers under Section 152 of the Code are neither to be equated with the power
of review nor can be said to be akin to review or even said to clothe the Court
concerned under the guise of invoking after the result of the judgment earlier
rendered, in its entirety or any portion or part of it. The corrections
contemplated are of correcting only accidental omissions or mistakes and not
all omissions and mistakes which might have been committed by the Court while
passing the judgment, decree or order. The omission sought to be corrected
which goes to the merits of the case is beyond the scope of Section 152 as if
it is looking into it for the first time, for which the proper remedy for the
aggrieved party if at all is to file appeal or revision before the higher forum
or review application before the very forum, subject to the limitations in
respect of such review. # It implies that the Section cannot be pressed
into service to correct an omission which is intentional, however erroneous
that may be. It has been noticed that the courts below have been liberally
construing and applying the provisions of Sections 151 and 152 of Code even
after passing of effective orders in the lis pending before them. No Court can,
under the cover of the aforesaid sections, modify, alter or add to the terms of
its original judgment, decree or order. Similar view was expressed by this
Court in Dwaraka Das vs. State of Madhya Pradesh and another and
Jayalakshmi Coelho vs. Oswald Joseph Coelho 50.
9. The basis of the provision under Section 152 of the Code is founded on the
maxim 'actus curiae neminem gravabit' i.e. an act of Court shall prejudice no
man. The maxim "is founded upon justice and good sense, and efforts a safe
and certain guide for the administration of the law", said Cresswell
mistake of the Court which may prejudice the cause of any party must and alone
could be rectified. In Master Construction Co. (p) Ltd. vs. State of Orissa
it was observed that the arithmetical mistake is a mistake of
calculation, a clerical mistake is a mistake in writing or typing whereas an
error arising out of or occurring from accidental slip or omission is an error
due to careless mistake on the part of the Court liable to be corrected. To
illustrate this point it was said that in a case where the order contains
something which is not mentioned in the decree, it would be a case of
unintentional omission or mistake as the mistake or omission is attributable to
the Court which may say something or omit to say something which it did not
intend to say or omit. No new arguments or re-arguments on merits can be
entertained to facilitate such rectification of mistakes. The provision cannot
be invoked to modify, alter or add to the terms of the original order or decree
so as to, in effect, pass an effective judicial order after the judgment in the
case.
10. The maxim of equity, namely, actus curiae neminem gravabit- an act of court
shall prejudice no man, shall be applicable. This maxim is founded upon justice
and good sense which serves a safe and certain guide for the administration of
law. The other maxim is, lex non cogit ad impossibilia - the law does not
compel a man to do what he cannot possibly perform. The law itself and its
administration is understood to disclaim as it does in its general aphorisms,
all intention of compelling impossibilities, and the administration of law must
adopt that general exception in the consideration of particular cases. The
applicability of the aforesaid maxims has been approved by this Court in Raj
Kumar Dev vs. Tarapada Dey 1, Gursharan Singh
vs. New Delhi Municipal Committee 3 and
Mohammod Gazi vs. State of M.P. and others The principles as applicable
to Section 152 CPC are clearly applicable to Section 6(6) of the U.P. Act. In
the aforesaid background the Labour Court was not justified in modifying the
award as was originally made. The High Court also had not considered this
aspect and decided the writ petition filed by the present appellant on issues
other than this vital issue.
11. Looked at from any angle the order of the labour court modifying the award
and the impugned judgment of the High Court are indefensible and are set aside.
The appeal is allowed. Costs made easy