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CASE NO.: Appeal (civil)  8479-8480 of 2003

PETITIONER: State of Punjab                                          

RESPONDENT: Darshan Singh                                            

DATE OF JUDGMENT: 29/10/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT: J U D G M E N T (Arising out of SLP(C) Nos. 22777-22778/2002)

ARIJIT PASAYAT, J

       Leave granted.

       Both the appeals are taken up together for disposal. The State of Punjab questions correctness of  judgment rendered by  learned Single Judge of Punjab and Haryana High Court in Second Appeals  Nos. 3618/1987 and 1472/1988 affirming the judgment and decree passed in  appeal by the learned Additional District Judge, Patiala. The First  Appellate court had reversed the judgment and decree passed by learned  Senior Subordinate Judge, Patiala dismissing the suit filed by the  respondent-employee.  

Factual background giving rise to these appeals in a nutshell is  as follows:

       Respondent as plaintiff filed a suit in the Court of Senior  Subordinate Judge, Patiala for a declaration that the order dated  13.3.1977 passed by the State through the Collector, Patiala removing  him from service is unconstitutional, illegal, null and void, mala fide,  ineffective, inoperative, improper and discriminatory. A further prayer  was for a declaration that he was entitled to have his pay fixed in the  appropriate scale by counting the period of his alleged forced absence.  Averments in the plaint were to the following effect: He was employed as  a Senior Compositor in the Government Press, Printing and Stationary  Department, Patiala. He was appointed in 1970 and was removed from  service by order dated 13.3.1977. He made several representations to the  Government and by order dated 14.2.1979 the Government passed an order  for appointing him as a Junior Compositor and consequentially  the  Additional Controller, Patiala issued fresh order of appointment  appointing him as a Junior Compositor on temporary basis as a new  appointee. Three issues were framed which read as follows:

       "1. Whether the plaintiff is entitled to the  declaration prayed for?

       2.      Whether suit is not maintainable?         3.      Whether the suit is bad for non-joinder and  mis-joinder of necessary parties?"

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       After considering the evidence on record the suit was dismissed.  An appeal was preferred before the Additional District Judge who held  that the dismissal was bad. Though it was the stand of the State that  the work of the respondent-employee was not up to the required mark, the  first Appellate Court held that the review of performance should have  been done every year, and since it was done after several years, the  order of termination was bad and when the plaintiff was taken back in  service it could not have been ordered that he will be taken back as  fresh recruit. The order being whimsical in nature, no reason was  forthcoming as to why his representations were not rejected altogether  and why he was allowed to be taken back as fresh recruit. While granting  this relief the following order was also passed:

               "It is made clear that it is up to the  department to grant him or not to grant him  increments for the past service rendered by him. It  will be again for the department to decide whether he  is or he is not fit to be promoted after taking his  past service into account".

       The respondent-employee filed an application purported to be made  under Section 152 of the Code of Criminal Procedure, 1973 (in short the  ’Code’) claiming that the afore-quoted directions were not in order and  deserve to be deleted. By order dated 3.2.1988 learned Additional  District Judge, Patiala deleted the afore-quoted portion on the ground  that if the said portion remains, it would have the effect of  neutralizing the relief granted to the plaintiff-appellant before it.   In the aforesaid manner, the judgment and decree passed on 4.6.1987 in  appeal was reviewed. The State filed Second Appeals Nos. 3618/87 and  1472/1988 under Section 100 of the Code before the High Court which by  the impugned judgment dismissed the same. It is relevant to note that  first appeal related to original judgment of the first appellate Court  while second one related to the order dated 3.2.1988 passed under  Section 152 of the Code modifying the judgment.  

       The High Court by the impugned consolidated judgment in the two  appeals came to hold that the decision of this Court in Central Inland  Water Transport Corporation Ltd. and Anr. v. Brojo Nath Ganguly and Anr.  (AIR 1986 SC 1571) was clearly applicable. When the employee was taken  back to service it could not have been ordered that he will be taken  back as fresh recruit. The plaintiff-employee’s services should not have  been terminated without assigning any reason after six to seven years of  service.  

       In support of the appeals, learned counsel for the State of Punjab  submitted that the respondent-employee did not approach the Court with  clean hands. He was appointed on 22.12.1970 and was terminated by order  dated 18.3.1977. He went on making representations and finally an order  was passed by the Government on 14.2.1979 for taking him back as a fresh  recruit on temporary basis. The consequential order was issued on  23.2.1979. The suit was filed more than five years of the fresh  appointment on 8.12.1984, with a prayer to declare the termination in  1977 to be bad. Specific stand of the department had not been taken note  of that there was no challenge in fact to the fresh order of  appointment. It was not open to the First Appellate Court or the High  Court to make out a new case for interference. The period of limitation  prescribed under the Limitation Act, 1963(in short the ’Limitation Act’)  for filing a declaratory suit is 3 years and admittedly a suit was filed  after seven years. In any event, there was no scope for amending the  order in the manner done in purported exercise of power under Section  152 of the Code.

       In response, learned counsel for the respondent-employee submitted  that the decision in Central Water Transport’s case (supra) is clearly

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applicable in view of the unblemished conduct of the employee. There was  scope for applying Section 152 of the Code when the original  order did  not reflect the true intention of the Court passing the order.  

We shall first deal with the case relating to the suit being  belated.        It appears that no specific issue was framed in that regard  though the Government in its written statement specifically took the  plea.   Learned counsel for the State submitted that issue No.(2) was wide  enough to take note of the plea relating to limitation. If the issue was  not framed specifically a different course was available to be adopted  by the respondent which does not appear to have been done. In Second  Appeals preferred before the High Court also there was no specific plea  regarding the question of limitation. That being so, we are not inclined  to go into the question as to belated filing of the suit.  

But learned counsel for the appellant is on terra firma so far as  the submission relating to the scope of exercising power under Section  152 is concerned.  

       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 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

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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.  

Above being the position, the first Appellate Court was not  justified in exercising power under Section 152 of the Code and the High  Court was equally in error by putting its seal of approval thereon.  Therefore, the appeal relatable to the judgment in Second Appeal  No.3618/1987 is dismissed while the one relating to Second Appeal  No.1472/1988 is allowed. There shall be no order as to costs.