http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

CASE NO.: Appeal (civil)  24 of 2005

PETITIONER: M/s. U.P.S.R.T.C.                                                

RESPONDENT: Imtiaz Hussain                                                   

DATE OF JUDGMENT: 12/12/2005

BENCH: ARIJIT PASAYAT & TARUN CHATTERJEE

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.                   Challenge in this appeal is to the order passed by a  learned Single Judge of the Allahabad High Court in a review  application.

       Factual background in a nutshell was as follows:

       The respondent who was appointed as a conductor of the  appellant\026Corporation during inspection on 5.6.1989 he was  found not to 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 enquiry 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 conducted 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 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.

       Learned counsel for the appellants submitted that the  order passed by the labour court in purported exercise of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

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 to this  vital question and directed payment of back wages with  interest.

       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.

       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."                  

       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’).

       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 provided 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

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 v. State of Madhya Pradesh and Anr. (1999 (3)  SCC 500) and Jayalakshmi Coelho v. Oswald Joseph Coelho  (2001 (4) SCC 181).

       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 affords  a safe and certain guide for the administration of the  law", said Cresswell J. in Freeman v. Tranah (12 C.B.  406). An unintentional mistake of the Court which may  prejudice the cause of any party must and alone could be  rectified. In Master Construction Co. (P) Ltd. v. State of  Orissa (AIR 1966 SC 1047) 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.                     The maxim of equity, namely, actus curiae neminem  gravabit \026 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 \026 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 Dey v. Tarapada Dey  (1987 (4) SCC 398), Gursharan Singh v. New Delhi Municipal  Committee (1996 (2) SCC 459) and Mohammod Gazi v. State of  M.P. and others (2000(4) SCC 342). 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

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.

       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.