JUDGMENT B.S. Chauhan, J.
1. This writ petition has been filed against the Award of the labour court dated 2nd September, 1995 by which the application of the respondent to make correction in the earlier Award dated 19.9.1994 has been allowed and the matter has been decided afresh reviewing its earlier award and substituting the punishment of dismissal vide order dated 24.6.1989 by withholding the two annual increments without cumulative effect.
2. Facts and circumstances giving rise to this case are that the respondent workman had been employed as a Conductor with the petitioner Corporation and he was served the charge-sheet for embezzlement of Rs. 9.70 as he had received the fare from the passenger and did not issue the tickets. After completing the departmental enquiry as he was found guilty, punishment of dismissal from service was awarded. The respondent workman raised the industrial dispute and the appropriate Government in exercise of its power under Section 4K of the Industrial Disputes Act, 1947 (hereinafter called the Act 1947), made a reference vide order dated 19.5.1992 as to whether the removal of respondent workman from his services was improper and not in accordance with law, if yes, to what relief he was entitled to? In pursuance to the said reference, the claim petition was filed by the workman contending that while he was working as conductor it was alleged that in the checking it was found that there were only 16 passengers travelling in the bus out of which 9 persons were not having the tickets but the fare had already been charged by the workman. In view of the above, the enquiry was held which was not in accordance with law. More so the embezzlement, if any, was of a petty amount of Rs. 9.70, and therefore, the punishment of removal from service was not commensurate to the delinquency.
3. The management corporation contested the claim submitting that the enquiry was held in accordance with law. Workman was given full opportunity to defend himself and as it was a case of embezzlement minimum punishment which could be imposed was dismissal. Therefore, the Court should not interfere. The labour court after considering the evidence led by the parties recorded the finding of fact that enquiry had been held in accordance with law and workman had been given full opportunity to defend himself. Neither there was violation of any statutory provision nor of the principles of natural justice. While considering the quantum of punishment, the Court held that it was commensurate to the delinquency and no claim award was made on 19.9.1994. Subsequently, the respondent workman filed application dated 14.11.1996 under Section 6(6) of the Act, 1947, for correction of the Award on various grounds, including that the finding of fact recorded by the labour court earlier that the enquiry had been held in accordance with law, was wrong. The said application was opposed by the management Corporation contending that under the garb of correction award cannot be reviewed. Once the Award stood published, the labour court becomes functus officio and such an application was not maintainable. However, vide order dated 2nd September, 1995, the Award has been reviewed and it has not been held that as no enquiry under Section 6(2A) of the Act 1947 had been held, the Award required review and the punishment given was too harsh, and thus, it was substituted by withholding two annual increments of the workman without cumulative effect, hence this petition.
4. None appeared for the petitioner corporation.
5. The grounds taken in the petition are that once the labour court had made the Award and it got published, the labour court becomes functus officio and could not review the Award under the garb of entertaining the application for correction. More so, in absence of any provisions for review, the Award so reviewed is nullity and in a case of embezzlement, no punishment lesser than dismissal be awarded.
6. Learned counsel for the respondent has submitted that as a petty amount of Rs. 9.70 has been embezzled, even if it is assumed that the charge against the workman stood proved, the punishment of dismissal should not have been made and the labour court has rightly substituted the said punishment of withholding two annual increments without cumulative effect. Thus, no interference is called for.
7. I have considered the submissions made and perused the record.
8. In this case, Award was made on 19.9.1994. It was published on 26.10.1994 and application under Section 6(6) of the Act 1947 for correction was filed on 14.11.1994. Under the garb thereof, the Award has been reviewed. The first question does arise as to whether labour court could review the Award in absence of any provision for review under the Act 1947.
9. In Patel Chunibhai Dajibha v. Narayanrao Khanderao Jambekar, AIR 1965 SC 1457, the Hon'ble Supreme Court had held that in absence of any power of review, the Tribunal could not have subsequently reconsidered its previous decision and the subsequent order re-opening the matter was illegal, ultra vires and without jurisdiction.
10. In Harbhajan Singh v. Karam Singh, AIR 1966 SC 641, the Hon'ble Apex Court has held that in absence of any provision in the Act granting express power of review, it is manifest that review could not be made and the order in review was ultra vires, illegal and without jurisdiction and the High Court has rightly quashed it by the grant of writ under Article 226 of the Constitution.
11. While deciding the said case, the Hon'ble Supreme Court placed reliance on a large number of judgments, particularly in Drew v. Mills, 1891 (1) QB 450 ; Hession v. Johns, 1914 (2) KB 421 ; In re ; St. Nazaire Company, (1879) 12 Ch D 88 and Baijnath Ram Goyanka v. Nand Kumar Singh, 14 IA 54 (PC), wherein it had categorically been held that the power of setting aside an order, which has been made after hearing the arguments, does not lie unless it is given by the Statute. The Court, under the Statute, cannot review an order deliberately made after argument and entertain a fresh argument upon it with a view to ultimately confirming or reversing it. The Courts may have limited power only to make a necessary correction if the order, as drawn up, did not express the intention of the Court. A party is entitled to assail the judgment only by the mode as indicated in the Statute and in absence of express provision of review, it cannot be entertained for the reason that review is practically the hearing of an appeal by the same officer who decided the case.
12. In Patel Narshi Thakershi and Ors. v. Pradyumansinghji Arjunstnghji. AIR 1970 SC 1273, the Hon'ble Apex Court held that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication and in absence of any provision in the Act, review of an earlier order is impermissible.
13. In Maj. Chandra Bhan Singh v. Latafat Ullah Khan and Ors., AIR 1978 SC 1814, the Apex Court followed the earlier referred two judgments in Chunnibhai and Harbhajan Singh (supra), and observed that it is well-settled that review is a creature of Statute and cannot be entertained in absence of a provision therefor.
16. Therefore, in view of the aforesaid settled legal proposition, it can be summarised that in absence of any statutory provision providing for review, entertaining an application for review or under the garb of clarification/modification/correction is not permissible. In Grindlays Bank Ltd. v. Central Government Industrial Tribunal and Ors. AIR 1981 SC 606 and Satnam Verma v. Union of India and Ors., AIR 1985 SC 294, the Hon'ble Apex Court distinguished the power of setting aside of an ex parte Award from review and held that even after publication of the Award, labour court is competent to set aside the same if other requisite conditions are fulfilled.
17. In the Instant case, no such issue was involved as the earlier Award was not made ex parte. Application was filed under Section 6(6) of the Act 1947 which reads as "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 error arising therein from any accidental slip or omission..........."
Language used in the aforesaid section is verbatim to Section 152 of the Code of Civil Procedure (hereinafter called the C.P.C.) and in exercise of that power, correction is permissible only when it is necessary to give effect to the judgment, decree or order so that the manifest rights of the parties intended to be effectuated by the earlier decision of the Court may not be defeated. When decree is not clear as to what was decided and what the Court intended, the Court may amend it so as to carry out its meaning. (Vide Rai Jatindra Nath Chowdhury v. Uday Kumar Das and Ors., AIR 1931 PC 104 and Seth Manakchand v. Chaube Manoharlal and Anr. AIR 1944 PC 46). This provision cannot be resorted to in order to annul the degree, or where there is no clerical or arithmetical mistake or error arising from accidental slip or omission or the power can be used to re-determine the rights of parties already adjudicated upon. In Dwarka Das v. State of Madhya Pradesh, 1999 (3) SCC 500, the Hon'ble Apex Court held that powers cannot be used to grant some thing which had not been granted earlier as it would not amount to accidental omission or mistake. In I. L. Janakirama Iyer and Ors. v. P. M. Nilakanta Iyer and Ors., AIR 1962 SC 633, the Apex Court held that as in the decree the mesne profit had been typed as a net profit and it was merely a typographical error in exercise of power under Section 152, C.P.C. the word "net" must be substituted by "mesne", The powers of the Court are limited only to correct this kind of typographical mistakes. In K. Rajamouli v. A. V. K. N. Swamy, 2001 (5) SCC 37, the Hon'ble Supreme Court held that if while deciding a case interest pendente lite had not been granted it cannot be granted while allowing the application under Section 152, C.P.C. In Plasto Pack Mumbai v. Ratnakar Bank Limited, 2001 AIR SCW 3426, a similar view has been reiterated observing that power to amend a degree cannot be exercised so as to add to or substract therefrom any relief granted earlier.
18. In Jayalakshmi Coelho v. Oswald Joseph Coelho, AIR 2001 SC 1084, the Hon'ble Supreme Court placed reliance upon its earlier judgment in State of Bihar v. Neelmani Sahu, 1996 (11) SCC 528 and Bai Shakriben v. Special Land Acquisition Officer, 1996 (4) SCC 533, and held that the inherent powers as exemplified in Section 152, C.P.C. generally be available to all Courts and authorities irrespective of the fact whether the provisions contained under Section 152, C.P.C. may or may not strictly apply to any particular proceeding.
19. But the power to rectification of clerical and arithmetical errors or accidental slips does not empower the Court to have a second thought over the matter and to find a better order or degree could or should be passed. There cannot be reconsideration of merits of the matter to come to a conclusion that it would have been better and in the fitness of things to have passed an order as sought to be passed on rectification. On a second thought, the Court may find that it may have committed a mistake in passing an order in certain terms but every such mistake cannot be rectified in exercise of the Court's inherent powers as contained under Section 152, C.P.C. It is to be confined to something initially intended to left out or added against such intendment.
20. Similar view has been reiterated in Lakshmi Ram Bhuyan v. Hari Prasad Bhuyan and Ors., 2002 AIR SCW 4843, issue as the Apex Court held that such powers can be used limited to the extent that a clerical or arithmetical mistake occurred in the judgment, decree or order or error arising therein from any accidental slip or omission can be corrected subsequently by the Court either on its own motion or on the application of any of the parties. While deciding the said case, the Court placed reliance upon the judgment in re Swire ; Mellor v. Swire, (1885) 30 Ch D 239, wherein it had been held that the said provisions enabled the Court to vary its judgment so as to give effect to its meaning and intention, when the order was passed.
21. Thus, in view of the above, it is held that under the garb of entertaining the application for correction under Section 6(6) of the Act 1947, it was not permissible for the labour court to review its earlier award. The power under the said provision was limited only to the extent of correcting the typographical or clerical error or error arising from the accidental slip or omission. Thus, subsequent award, being without jurisdiction, remains inexecutable and unenforceable in law.
22. Even otherwise, when the charge of embezzlement stands proved, no punishment other than dismissal can be awarded.
23. In Ruston and Hornsby (I) Ltd. v. T. B. Kadam, AIR 1975 SC 2025, the workman faced the charge of suspected dishonesty in connection with company's property. The Hon'ble Supreme Court held that the workman 'being a Watchman, the charge is serious one and if it was held proved he deserves nothing short of dismissal.'
24. Dealing with a similar situation, the Apex Court in Municipal Corporation, Bahadurgarh v. Krishnan Bihari and Ors., AIR 1996 SC 1249 ; held as under :
"In a case of such nature, indeed, in cases involving corruption, there can be no other punishment than dismissal. Any sympathy shown in such cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large ; it is the act of misappropriation that is relevant. The Director had interfered in the punishment under a total misapprehension of relevant factors to be borne in mind in such a case."
25. Similar view has been taken by the Hon'ble Supreme Court in U. P. State Road Transport Corporation v. Vasu Deo Chaudhary and Anr., (1997) 11 SCC 370, wherein the Court held that in a case of misappropriation, dismissal from service was justified by the Corporation. Placing reliance upon the said judgment in Krishnan Bihari (supra) and Vasu Deo Chaudhary (supra), the Supreme Court in Janatha Bazar South Kanara Central Cooperative Wholesale Stores Ltd. and Ors. v. Secretary, Sahakari Noukarara Sangha and Ors. (2000) 7 SCC 517, reiterated the same view, observing that in case of breach of trust and misappropriation of funds, once the charge stood proved, interference by Courts, showing uncalled for sympathy, is totally unwarranted as it is a case of loss of confidence of the employer that the employee would truthfully and faithfully carry on his duty in future.
26. In Karnataka State Road Transport Corporation v. B.S. Hullikatty, JT 2001 (2) SC 72, the Hon'ble Supreme Court considered a case where the bus Conductor had charged a fare of Rs. 2.25 and issued the ticket of Rs. 1.75 and misappropriate fifty paise, the Apex Court held that the appropriate punishment in that case should be dismissal from service.
Similar view has been reiterated by the Hon'ble Supreme Court in Regional Manager, R.S.R.T.C. v. Ghanshyam Sharma, 2002 (1) AWC 237 (SC) : JT 2001 (10) SC 12.
27. Thus, it is not the quantum involved in embezzlement but it is the essence of mens rea involved therein which is a determining factor for imposing the punishment. In a case of this nature, no punishment other than dismissal from service could be imposed.
28. Even otherwise the labour court cannot generally interfere with the quantum of punishment, if it comes to the conclusion that domestic enquiry had been held fairly in accordance with law.
29. In view of the provisions of Section 6(2A) of the Act 1947, labour court is competent to set aside the discharge or dismissal and reinstated the workman and competent also to substitute any of lesser punishment for discharge or dismissal, as the circumstances of the case may require. The issue of jurisdiction of the Industrial Tribunal/Labour Court to interfere with the quantum of punishment has been considered by the Hon'ble Apex Court time and again and it has categorically been held that generally Tribunal should not interfere with the same but in exceptional circumstances where the punishment is so harsh as to suggest victimization and found not to be commensurate with the decree of guilt, interference is permissible. For such interference, the Industrial Tribunal must record reasons as the award is subject to judicial review in writ jurisdiction. (Vide The Workmen of Firestone Tyre and Rubber Co. of India P. Ltd. v. Management and Ors., AIR 1973 SC 1227; Rama Kant Misra v. State of U. P. and Ors., AIR 1982 SC 1552 : Management of Hindustan Machine Tools Ltd. v. Mohd. Usman and Anr., (1984) 1 SCC 152 ; Ved Prakash Gupta a M/s. Delton Cable India (P.) Ltd., AIR 1984 SC 914 ; Christian Medical College. Hospital Employees' Union and Anr. v. Christian Medical College, Veelore Association and Ors., (1987) 4 SCC 691 and Workmen v. Bharat Fritz Werner (P.) Ltd. and Anr., (1990) 3 SCC 565).
30. In Llyods Bank Ltd. v. Panna Lal Gupta, AIR 1967 SC 428, the Supreme Court held that Tribunal should interfere with the punishment only if the conduct of the employer shows lack of bona fides or victimization of employee or unfair labour practice. In Hind Construction and Engineering Company Ltd. v. Their Workmen, AIR 1965 SC 917 the Hon'ble Apex Court held as under :
"The Tribunal may in a strong case interfere with a basic error on a point of fact or a perverse finding but it cannot substitute its own appraisal of the evidence for that of the officer conducting the domestic enquiry though it may interfere where the principles of natural justice or fair play have not been followed or where the enquiry is so perverted in its procedure as to amount to no enquiry at all...............The tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or too severe. But where the punishment is shockingly disproportionate regard being had to the particular conduct and the past record or is such as no reasonable employer would ever impose in like circumstances, the tribunal may treat the imposition of such punishment as itself showing victimization or unfair labour practice................."
31. In Janatha Bazar etc. v. the Secretary, Sahakari Noukarara Sangha etc., 2000 (87) FLR 483, the Hon'ble Supreme Court held that where the labour court comes to the specific finding of fact that charges of breach of trust and misappropriation of goods had been clearly proved, the labour court cannot set aside the order of removal of workman and pass the order of reinstatement.
32. In the instant case, there was no scope for the labour court to substitute the punishment of dismissal by withholding two annual grade increments and that too without cumulative effect.
33. Thus, in view of the above, the law can be summarized to the extent that once the labour court came to the conclusion that the domestic enquiry held by the management did not stand vitiated as it had been held in accordance with law, the labour court even at the initial stage could not have generally interfered with the quantum of punishment unless it reached the conclusion that it was shockingly disproportionate to the delinquency. In a case of embezzlement like this it is not the petty amount involved but intention to commit embezzlement is the determining factor for deciding the quantum of punishment and once the Court comes to the conclusion that a workman is guilty of misconduct of embezzlement, no punishment other than dismissal can be awarded. In absence of any statutory provision for review, the labour court has no competence to interfere with the Award after its publication. More so, under the garb of making correction, the Award could not be reviewed on merit.
34. Thus, in view of the above in the instant case, the labour court had no competence to deal with an application under Section 6(6) of the Act 1947 as there had been no mistake of typographical nature nor there was any omission or accidental slip, etc. warranting the application of those provisions. The question of reviewing the earlier order did not arise under the garb of correction of mistakes.
35. Thus, in view of the above, petition succeeds and is allowed impugned Award/order purported to have been passed on application under Order VI, Rule 6, C.P.C., dated 18.10.1995 (Annexure-4) is hereby set aside. As a result, the Award dated 19.9.1994 remains intact.
36. In the facts and circumstances of the case, there shall be no order as to costs.