The Managing Director, Metropolitan Transport Corporation Ltd., Pallavan Salai, Madras-2 v. K.Venugopal

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 17.04.2009CORAMTHE HON'BLE MR. JUSTICE N.PAUL VASANTHAKUMARANDTHE HON'BLE MR. JUSTICE N.KIRUBAKARANW.A.Nos.921 & 922 of 2002 andM.P.No.3784 of 2002The Managing Director,Metropolitan Transport Corporation Ltd.,Pallavan Salai,Madras-2. ..Appellant in both the appealsvsK.Venugopal ..Respondent in both appeals These Writ Appeals are filed under Clause 15 of Letters patentpraying this Court to set aside the impugned common order dated19.10.2001 passed by the learned Judge in W.P.M.P.No.26247 of 2001 inW.P.Nos.6737 and 6736 of 1991 respectively WPMP.No.26247/2001:Petition praying that in the circumstances stated therein and in theaffidavit filed therewith the High Court will be pleased to clarifythe order dated 15.02.2001 in WP.No.6736/1991 and WP.No.6737/1991presented to this Court under Article 226 of the Constitution ofIndia to issue writ of (1) Certiorarifed mandamus calling for therecords relating to the Impugned order in Proc.No.24490/PS(A)1/PTC/90dated 21.08.1990 of th respondent and quash the same and direct therespondent to promote the as Office Manager/Asst.Branch Manager from21.08.1990 with all the benefits of promotion (WP.No.6736/1991) and(2) Certiorari calling for the records from the respondent relatingto the order Proc.No.7464/PS/(E)/PTC/89 dated 07.02.1991 and quashthe same (WP.No.6737/1991)For Appellant : Mr.P.Ranganatha Reddy for King & Patridge.For Respondent : Mr. Ajaykhose,V https://hcservices.ecourts.gov.in/hcservices/ JUDGMENTN.KIRUBAKARAN,J.Heard the learned counsel for the parties.2. These writ appeals have been filed against the common orderW.P.M.P.No.26247 of 2001 in W.P.Nos.6736 and 6737 of 1991 which werefiled by the respondent herein to clarify the order dated 15.2.2001made in W.P.Nos.6736 and 6737 of 1991 in which the appellant wasdirected to consider the writ petitioner's claim for retrospectivepromotion sympathetically and consistent with the opinion asexpressed in the order after hearing all affected parties and settingaside the rejection order passed by the Appellant herein on11.7.2001 and to pass an order giving retrospective promotion to therespondent forthwith.3. The case of the respondent herein (hereinafter referred to as(writ petitioner) was that he joined the service of the appellant asWorks Clerk on 30.6.1965 and later he was promoted as Stenotypist/Junior Assistant in 1969. He was promoted as Assistant during1973 and again as Superintendent on 01.06.1984. He was working asSuperintendent in legal section from 1-6-1984 to 27-9-1989 and was incharge of Motor Accidents Claims O.Ps. While handling the motoraccident claims cases, there was an accident in route No.25J Petersroad on 12.8.1987 and as a result of the accident, one passenger byname Radhakrishnan suffered 25% disability shortening of his rightleg by 1 1/2 inches. The writ petitioner failed to produce a valuabledocument viz., copy of the statement of claimant Thiru. Radhakrishnanand copy of the accident register before the Court, as they wereclinching evidence of proof that the claimant was under the influenceof alcohol and that he himself was fully responsible for theaccident. As a result a sum of Rs.29,850/- was awarded against theappellant corporation as compensation. The writ petitioner was issuedcharge memo dated 31.12.1989 for negligence and carelessness in dutyon the part of the writ petitioner. 4. The writ petitioner submitted his explanation on 23.2.1990and enquiry was conducted in that case. During enquiry, the chargewas proved. Based on the charges proved, it was provisionallyconcluded to postpone his annual increment for two years withcumulative effect for the aforesaid misconduct. However onhumanitarian grounds, by order dated 07.02.1991, the said punishmentwas modified as postponement of increment for one year withcumulative effect. The aforesaid order dated 07.02.1991 waschallenged in W.P.No.6737 of 1991 by the writ petitioner. 5. During the pendency of the disciplinary proceedings againstthe writ petitioner, some of the juniors employees were promoted byorder dated 21.8.1990 by-passing the writ petitioner as enquiry waspending against him. The writ petitioner was denied promotion on the https://hcservices.ecourts.gov.in/hcservices/ ground that disciplinary proceedings were pending against him.Challenging the said order, W.P.No.6736 of 1991 was filed. 6. Both the writ petitions were heard by the learned singleJudge on 15.2.2001 and a common order was passed. The learned Judgedisposed of the writ petitions (W.P.No.6737 of 1991) challenging theorder of punishment holding that the punishment so imposed cannot besaid to be shockingly disproportionate, warranting interference bythis Court in exercise of the extra ordinary jurisdiction underArticle 226 of the Constitution of India. The learned Judge furtherheld as follows: " on a consideration of materials placed before me, Iam not in a position to hold that the proceedings conductedagainst the petitioner has resulted in violation of any oneof the above mentioned settled principles of law.Accordingly, I am inclined to uphold the punishment ofwithholding of one increment with cumulative effect imposedon the petitioner by respondent. However, this does notmean that the respondent is prevented from having a freshlook of the whole matter and to consider the petitioner'sclaim for promotion to the post of office Manager withretrospective effect."7. As far as the other writ petition (W.P.No.6736 of 2001)regarding promotion is concerned, the learned Judge has held asfollows:"Considering all the above facts this Court feels that thepetitioner has made out a case for retrospective promotion anddeserves sympathetic consideration at the hands of the respondentfor promotion. Accordingly, I direct the respondent to considerthe petitioner's claim for retrospective promotionsympathetically and consistent with this opinion, after hearingall affected parties. Provided a representation in that behalf ispreferred by the petitioner within two months from today. Theorders on the representations shall be passed within three monthsfrom the date of receipt of the said representation."Thus, both the writ petitions were disposed of.8. Pursuant to the orders passed by the learned single Judge,the writ petitioner gave a representation on 13.4.2001 claimingretrospective promotion and consequential benefits there on based onthe order of the learned single Judge and the appellant herein passedan order dated 11.7.2001 rejecting the writ petitioner's claim forretrospective promotion and other benefits. Thus, the appellant haspassed an order in compliance with the learned single Judge's order. https://hcservices.ecourts.gov.in/hcservices/

9. Subsequently, the writ petitioner filed a contempt petitionNo.567 of 2001 and the learned single Judge disposed of the contemptpetition with liberty to file an appropriate application.Accordingly, the writ petitioner filed W.P.M.P.No.26247 of 2001 toclarify the order dated 15.2.2001 in W.P.Nos.6736 and 6737 of 1991particularly as to the promotion of the writ petitioner. The learnedsingle Judge heard the matter and passed the common order on19.10.2001. The learned Judge in paragraph 3 of the order directedthe appellant herein as follows : " In view of the observations contained in paragraph 5of the order directing the respondent to consider thepetitioner's claim for retrospective promotionsympathetically and consistent with the opinion as expressedin the order (dated 15.2.2001) after hearing all affectedparties, the aforesaid order of the respondent, rejectingthe petitioner's claim for retrospective promotion, cannotbe legally sustained. Accordingly, I direct the respondentto pass an order giving retrospective promotion to thepetitioner forthwith, at any rate, not later than one monthfrom today."10. Aggrieved by the clarification order passed inW.P.M.P.No.26247 of 2001 dated 19.10.2001, the appellant preferredthe above appeal contending that,a) the clarification order is diametrically opposite to thedismissal order passed by the learned single Judge on 15.2.2001.b) The writ petitioner failed to implead the promotees as partyto the writ petition and as a result the promotees' rights wereaffected and it is contrary to the principles of natural justice.c) The prayer for quashing the impugned order of punishment andpromotion order were unambiguously upheld by the learned single Judgein the final order dated 15.2.2001. However, the final orders werereversed by the clarification order dated 10.10.2001.d) There was no positive direction to the appellant to grantpromotion retrospectively.e) The writ petitioners filed the contempt application allegingthat the appellant violated the the common order dated 15.2.2001 andthe same was not accepted by the learned single Judge. f) The Judgment cannot be reviewed unless the error is apparenton the face of the record or the order was obtained by fraud ordeceit. https://hcservices.ecourts.gov.in/hcservices/ g) If the retrospective promotion to the writ petitioner isgranted that will upset the seniority list and will cause seriousAdministrative disturbances apart from affecting others who are notparties to the writ petition.11. On the other hand, the counsel for writ petitioner contendedthat the impugned order is only clarificatory in nature and is inconsonance with the main order; A mandamus has been issued to promotethe writ petitioner setting aside the order of rejection dated11.7.2001 passed by the Appellant; without filing appeal against mainorder dated 15.2.2001 passed in main writ petitioner, the appeal isnot maintainable against the clarification order.12. It is an admitted fact that W.P.No.6736 of 1991 filed forwrit of certiorarified mandamus to quash the order dated 21.1.1980and direct the appellant to promote the writ petitioner as OfficeManager/Assistant Branch Manager from 21.8.1990 with all the benefitsof promotion was disposed by learned Judge with a direction toconsider the petitioner's claim for retrospective promotionsympathetically and consistent with the opinion after hearing all theaffected parties. As far as the second writ petition W.P.No.6737 of1991 is concerned, which was filed to quash the punishment orderdated 07.02.1991 was dismissed in unequivocal terms as follows:"Accordingly, I am inclined to uphold the punishment ofwithholding of one increment with cumulative effect imposed onthe petitioner by respondent."13. The common orders passed by the learned single Judge on15.2.2001 are final orders which are self explanatory in nature andthey did not warrant any subsequent clarification. By virtue ofclarification order, the learned single Judge has completely reversedthe final orders passed on 15.2.2001 by giving a direction to therespondent to consider the writ petitioner's claim for retrospectivepromotion and set aside the order dated 11.7.2001 passed by theappellant. The appellant's order dated 11.7.2001 was quashed withouta petition for review by the writ petitioner. More over the orderdated 11.7.2001 is a separate cause of action and that should bechallenged by the writ petitioner in a separate writ proceedings andthe same cannot be set aside. While complying with the order if newcause of action arises, then the party has to get redressal inappropriate forum. The above said proposition of law was held by theHon'ble Supreme Court in J.S. Parihar Vs. Ganpat Duggar and othersreported in AIR 1997 SC 113 and State of Haryana and others Vs.M.P.Mohla reported in (2007) 1 SCC 457. 14. The clarification order cannot be used to set aside an orderwhich was passed in compliance of the direction given by the learnedsingle Judge on 15.2.2001. https://hcservices.ecourts.gov.in/hcservices/ According to The American Heritage Dictionary of the EnglishLanguage, "clarify" means, "To clear of confusion or uncertainty; clarify the mind." As per, "Webster's Encyclopedia unabridged Dictionary of the EnglishLanguage", "CLARIFY" means, " To make (an idea, statement etc) clear or intelligible; to free from ambiguity; to fee from confusion". According to "OXFORD ENGLISH DICTIONARY" clarify means, " make more comprehensible".Only when there is a confusion or ambiguity clarification is needed.This is similar to the re-examination of witnesses during trial.When there is a ambiguity or confusion in the evidence of witnessafter the cross examination, re-examination of the witness is beingsought to clarify the doubt. In the re-examination, the witness isnot allowed to go beyond clarification as is not allowed to add anything new, as the purpose is limited and restricted one. Similar isthe case of clarification. Clarification is only intended to clearthe ambiguity if any or to make the point very clear. No doubt,Court has got ample power to correct/modify or amend the orderdepending upon the facts and the order already passed. However, onlyin rare cases, the Court can materially modify the earlier to renderjustice. However, in this case, in the name of clarification, anorder which was passed in compliance with the Court order was setaside and the same cannot be sustained.15. With regard to filing of petition for clarification and directionin the main case which was finally disposed of, the Hon'ble SupremeCourt in the case of Narpat Singh Vs. Rajasthan Financial Corporationreported in 2008 (1) CTC 73 has held as follows," Ordinarily no Interlocutory Application lies aftercase is finally disposed of. Ordinarily an InterlocutoryApplication is maintainable only in a pending case. Oncecase is finally disposed of the Court becomes functusOfficio and thereafter Interlocutory Application liesordinarily only for correcting clerical or accidentalmistakes." When that is the settled principle of law, the clarification orderdated 19.10.2001 cannot be sustained. Moreover the clarificationorder which is impugned in the appeal is not an order to correctclerical or accidental mistakes whereas it goes to the root of thematter and thereby the earlier final order has been completely https://hcservices.ecourts.gov.in/hcservices/ revised in the clarification order, without even a review petition bythe writ petitioner. 16. In another case viz.,State of Haryana and others Vs. Babusingh reported in AIR 2009 Supreme Court 472, the Supreme Courtfollowing its earlier Judgment in State of Uttar Pradesh V. BrahmDuttSharma & Anr. reported in AIR 1987 SC 943 has held that whenproceedings under 226 of Constitution of India has been terminated byfinal disposal of the writ petition, it is not open to the Court tore-open the proceedings by means of miscellaneous application.Paragraph 10 of the above Judgment is as follows:"The High Court's order is not sustainable for yet anotherreason. Respondents' writ petition challenging the order ofdismissal had been finally disposed of on August 10, 1984,thereafter nothing remained pending before the High Court. Nomiscellaneous application could be filed in the writ petition torevive proceedings in respect of subsequent events after twoyears. If the respondent was aggrieved by the notice datedJanuary 29, 1986 he could have filed a separate petition underArticle 226 of the Constitution challenging the validity of thenotice as it provided as separate cause of action to him. Therespondent was not entitled to assail validity of the noticebefore the High Court by means of a miscellaneous application inthe writ petition which had already been decided. The High Courthad no jurisdiction to entertain the application as noproceedings were pending before it. The High Court committederror in entertaining the respondent's application which wasfounded on a separate cause of action. When proceedings standterminated by final disposal of writ petition it is not open tothe Court to reopen the proceedings by means of a miscellaneousapplication in respect of a matter which provided a fresh causeof action. If this principle is not followed there would beconfusion and chaos and the finality of proceedings would ceaseto have any meaning"In view of the law laid by Hon'ble Supreme Court, the order passed inclarification petition No.W.P.M.P.No.26247 of 2001 dated 19.10.2001cannot be sustained. 17. It is very clear that the order dated 19.10.2001 does notsuffer from any defect warranting any clarification. Assuming for amoment that the petition filed is only to review the earlier order,the review can be resorted only in the exceptional cases asenumerated in order XLVII of the CPC. It has been held by the SupremeCourt in State of Haryana and others Vs.M.P.Mohla reported in (2007)1 SCC 457, " an application for clarification cannot be takenrecourse to achieve the result of a review application; what cannotbe done directly cannot be done indirectly". In the guise ofclarification petition, the writ petitioner cannot resort to review https://hcservices.ecourts.gov.in/hcservices/ the earlier. The Court cannot review the subsequent cause of action,as the Court becomes functus officio after the passing of final orderin the proceedings.18. Mr.P.Ranganath Reddy, counsel for appellant relied upon theSpecial Rules of Appellant Corporatiion, the term Promotion which isdefined as follows:"Promotion: All promotion shall be made on grounds of merit,ability, seniority and regularity in attendance. No person shallbe eligible for promotion unless he has completed the prescribedperiod of probation."19. The post of Manager is a selection post where merit andseniority could be considered for promotion. At the time ofconsidering for promotion to the post of Office Manager, thedisciplinary proceedings were pending against Mr.K.Venugopal (thewrit petitioner). Hence, he could not be promoted as Office Managerwith effect from 01.09.1990. More over the rights have been accruedto the promoted candidates by virtue of the promotion and theseniority and the position were settled by passage of more than 10years. It was further contended by relying on appellants order dated11.7.2001 that by making retrospective promotion of the writpetitioner, three other candidates who were seniors to the writpetitioner should be made as juniors and it would causeadministrative difficulties.20. Learned counsel for the appellant quoted a citation reportedin 1997 (4) SCC 424 (STATE OF BIHAR AND OTHERS VS. BATESHWAR SHARMA)in which it has been held by the Hon'ble Apex Court that, once thedepartmental promotion committee duly constituted by the Governmentand found that the respondent was unfit for promotion upto the date,the only course that requires to be adopted by the High Court was toremit the matter to the Government for constitution of the DPC toconsider the respondent's fitness for promotion in the later period.In that event, the DPC would go into the merits afresh and find outwhether the respondent could be fit for promotion. If the DPCrecommends him fit for promotion, the Government would appoint himon regular basis and he would get seniority only from the date of hispromotion and not from the earlier date when he was working on adhocbasis. When taken into consideration, the above Supreme CourtJudgment, the direction given in the clarification petition thatgiving retrospective promotion to the writ petitioner forthwith ispalpably wrong. 21. The other contention of the appellant that the promotees byvirtue of order dated 21.8.1990 were not added as parties to the writpetition. By order dated 21.8.1990 which was impugned in W.P.No.6736of 1991, about 8 employees were promoted and they were all not madeas parties to the said writ petition. Any order with regard to the https://hcservices.ecourts.gov.in/hcservices/ order dated 21.8.1990 definitely would affect the promotees and theyare necessary parties in the writ petition. 22. The rights of other officers, who are not parties before theCourt cannot be infringed and any order passed behind their backwould violate the principles of natural justice. The elementaryprinciple of natural justice is that a party should be heard, beforepassing any order which would affect them. Further the otherofficers were promoted as early as in 1990 and further promotion wasalso given. Hence, the contention of the counsel for the appellantthat in the absence of necessary parties in the writ petition, thewrit petition has to be dismissed, has to be accepted. 23. For the reasons stated above, the clarification orderdated 19.10.2001 passed in W.P.M.P.No.26247 of 2001 in W.P.No.6736and 6737 of 1991 is set aside and the writ appeals are allowed.However, there will be no order as to costs.sd/-Asst.Registrar/true copy/Sub Asst.Registrar kua To The Managing Director, Metropolitan Transport Corporation Ltd., Pallavan Salai, Madras-2.+ 1 c.c. to M/s. King & Partridge, Advocate. S.R.No.15228.+ 1 c.c. to Mr. V. Ajay Khose, Advocate. S.R.No.15182. Judgment inW.A.Nos.921 & 922 of 2002 NTK (CO)GSK 22.04.2009.