IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18/01/2011 CORAM THE HON'BLE MR. JUSTICE T.RAJA M.P.No.1 of 2010 in W.P.No.21368 of 2009 ORDER
The present clarification application has been filed by the the Deputy Commissioner (CT) and the Assistant Commissioner (CT), who are the petitioners 1 and 2 herein respectively, to clarify the order dated 23.12.2009 made in W.P.No.21368 of 2009.
2. Heard the parties on both sides.
3. The stand taken by the petitioners herein is that the writ petitioner/G.D.Nazeer Ahmed, after his dismissal from service, on filing appeal, his discharged order dated 06.01.2006 was also confirmed by an order dated 22.03.2006. Subsequently, his further appeal was also dismissed by G.O.Ms.No.301, Commercial Taxes and Registration (A2) Department, dated 14.07.2008. As against that, his review petition was also dismissed by the Government vide G.O.(D).No.417, dated 14.09.2009. Without challenging the said order dated 14.09.2009, the writ petitioner has wrongly filed the writ petition only against order dated 22.03.2006 leaving the subsequent order passed by the Government in G.O.Ms.No.301 and G.O.(D).No.417, dated 14.07.2008 and 14.09.2009 respectively, which was not legally maintainable. Had the writ petitioner properly placed all these facts before this Court, without suppressing them, this Court would not have allowed the writ petition.
4. Further, it was submitted that the order discharging the 1st respondent herein from service was in accordance with law, for the reason that Rule 26(b) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules, has been properly followed by the petitioners herein. Though the 1st respondent herein was recruited through TNPSC and joined duty on 20.01.1997 as Junior Assistant, he was instructed to pass the District Office Manual Test within two years. But, the 1st respondent herein failed to pass the said test. Therefore, the 2nd petitioner herein had passed an order discharging the 1s respondent herein from his service after affording sufficient opportunity to him. Aggrieved by the order dated 06.01.2006, when the 1st respondent herein had filed appeal before the 1st petitioner/the Deputy Commissioner (CT), the same was also dismissed by order dated 22.03.2006, confirming the order dated 06.01.2006 passed by the Assistant Commissioner (CT)/the 1st petitioner herein. Thereafter, 1st respondent herein had also filed further appeal before the Government under Rule 19 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules.
5. During the pendency of the appeal, the petitioner has also filed W.P.No.23746 of 2007 before this Court under Article 226 of the Constitution of India seeking a direction to dispose of the pending appeal and this Court, by order dated 13.07.2007, had directed the respondent to dispose of the pending appeal and only thereafter, the appeal filed by the petitioner under Rule 19 of the Tamil Nadu Civil Services (Discipline & Appeal) Rules was dismissed. As against that, the 1st respondent herein once again filed review petition under Rule 20 of the Tamil Nadu Civil Services (Discipline & Appeal) Rules and the said review petition also came to be disposed of by an order dated 14.09.2009. Apart from that, during the service period, the 1st respondent herein was also absented without any leave application or authorization for more than 3 years and 2 months and even this factual aspect was also not brought to the notice of the Court at the time of hearing the writ petition.
6. In this context, it is relevant to refer a judgment of the Apex Court in the case of M.M.Thomas Vs. State of Kerala (2000 1 SCC 666), wherein it has been held that there is no doubt that the High Courts possess all the powers in order to correct the errors apparent on the face of record. High Courts are not only invested with inherent power, but a duty to correct any apparent error in respect of any order passed by it. This is the plenary powers of the High Courts.
7. Similarly, the Apex Court in another judgment in the case of Commissioner of Customs and Central Excise Vs. Hongo India Private Limited (2009 5 SCC 791), has further held that High Courts in India being a Superior Courts of record, have Original and Appellate jurisdiction and they exercise inherent and plenary power. Unless expressly or impliedly barred and subject to the Appellate or discretionary jurisdiction of this Court, they also have unlimited jurisdiction, including the one to determine their own powers. While exercising plenary powers under Article 226, High Courts can correct any apparent error in respect of any order passed by it. In the light of the judgments of the Apex Court, I am of the view that the writ petitioner has obtained an order wrongly by suppressing subsequent orders passed by the Government, therefore, the order dated 23.12.2009 passed in W.P.No.21368 of 2009 is required to be recalled.
8. In any event, since the impugned order challenged before this Court in W.P.No.21368 of 2009, namely, the order dated 06.01.2006 passed by the 2nd petitioner herein as confirmed by the 1st petitioner vide order dated 22.03.2006, came to be merged with order passed by the Appellate Authority by way of G.O.Ms.No.301, dated 14.07.2008 as well as another review order passed by the Government in G.O.(D).No.417, dated 14.09.2009, this Court, by taking note of the fact that the writ petitioner had concealed two other important orders passed by the Government in G.O.Ms.No.301 and review order in G.O.(D).417, dated 14.07.2008 and 14.09.2009 respectively, has no hesitation to hold that the writ petitioner had approached this Court with uncleaned hands by suppressing the subsequent orders passed by the Government confirming the order of dismissal from service, and therefore, by exercising extraordinary power conferred under Article 226 of the Constitution of India, is inclined to recall its earlier order in W.P.No.21368 of 2009, dated 23.12.2009. Accordingly, the writ petition is dismissed as devoid of merits. However, there shall be no order as to costs. MP.No.1 of 2010 is ordered by clarifying the matter in issue as above.
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