HIGH COURT OF GUJARAT Vs. HITENDRA VRAJLAL ASHARA & ANR.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 10304 of 2014, Judgment Date: Nov 24, 2014
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10304 OF 2014
High Court of Gujarat .. Appellant
-vs-
Hitendra Vrajlal Ashara & Anr .. Respondents
J U D G M E N T
C. NAGAPPAN, J.
This appeal is preferred against the judgment and final Order dated
30.8.2013 passed by the High Court Gujarat at Ahmedabad in Special Civil
Application No.15449 of 2008. The respondent was working as a Judicial
Officer under the administrative control of the High Court namely the
appellant herein. Labour Court of Bhavnagar had passed ex-parte award
dated 17.7.1993 in Reference (LCB) No.490 of 1990 in favour of workman,
wherein his termination was set aside with a direction to grant
consequential benefits. The employer filed Misc. Application No.92 of 1993
on 21.11.1993 to set aside the ex-parte award in the said case and the
Labour Court dismissed the application on 28.4.1997.
Employer filed another Misc. Application No.37 of 1997 praying to set
aside the ex-parte award in the said case. Meanwhile workman filed
Recovery Application No.279 of 1997 and the Labour Court directed recovery
in pursuance to order passed in Reference LCB No.490 of 1990. Challenging
the original award and the order passed in recovery application the
employer preferred Special Civil Application Nos. 446 and 520 of 1998 and
the High Court dismissed the same. Respondent as In-charge Judge of the
Labour Court of Bhavnagar allowed the employer's Misc. Application No.37 of
1997 on 8.5.1998. The workman filed complaint dated 13.5.1998 before the
President, Industrial Tribunal. The workman challenged the said order by
filing Civil Application No. 4460 of 1998 on 15.9.1999 and the High Court
dismissed the same. Two Members of the Industrial Court on 28.12.1999
conducted preliminary inquiry on the complaint of the workman against the
respondent and concluded against him. Aggrieved by the Order in Special
Civil Application No.4460 of 1998 both the workman and employer preferred
independent Letters Patent Appeal Nos.1362 of 1999 and 1412 of 1999. They
came to be disposed of by common order dated 27.3.2000 in terms of
settlement arrived at between the parties. The Inquiry Officer on 4.4.2002
passed the final order. The High Court on 3.8.2002 recorded tentative
decision accepting the Inquiry Report. The respondent was dismissed from
service on 19.11.2007. Challenging the same the respondent-officer
preferred the Special Civil Application No.15449 of 2008 before the High
Court, it has allowed the application and set aside the Inquiry Report and
order of dismissal passed against the Appellant. Aggrieved by the same on
the administrative side, the High Court has preferred the present appeal.
The employer filed first Misc. Application No.92 of 1993 to set aside the
ex-parte award in Reference No. LCB 490 of 1990 and that was dismissed on
28.4.1997. The employer filed another Misc. Application No.37 of 1997
praying to set aside the same ex-parte award and that was allowed by the
delinquent officer on 8.5.1998. On the complaint of workman inquiry was
conducted and the Enquiry Officer found that the order passed by the
delinquent officer amounts to review of the order passed by his predecessor
in dismissing the miscellaneous application of the employer. Moreover, the
employer in his second application did not refer to the filing and
dismissal of his earlier application seeking for the same relief and
further did not allege that his second application was beyond time and
there was no discussion and finding in the order passed by the delinquent
officer as to the ground on which the delay was condoned. In the
conclusion, the Enquiry Officer held that the delinquent officer had
allowed Misc. Application No.37 of 1997 in the execution proceedings going
out of the way to help the employer and to favour him brushing aside the
legal contentions and objections raised by the workman to the said
Miscellaneous application.
The Division Bench observed that though the employer had not disclosed
about his earlier application, the workman in his reply filed to the second
application had disclosed the same and also produced copies of the earlier
proceedings as evidence and the omission to mention about the earlier
application would not amount to suppression, since facts were known to
both the parties. The Division Bench further held that the finding of the
Enquiry Officer that the delinquent officer had reviewed the earlier order
is erroneous since the order passed by the delinquent officer was not in
exercise of review jurisdiction and he never treated it so and rejected the
conclusion of the Enquiry Officer that the delinquent officer did not
properly appreciate the objection raised by the workman.
Insofar as the finding of the Enquiry Officer with regard to entertaining
of time-barred second miscellaneous application of the employer in the
execution proceedings and condonation of delay, the Division Bench held
that the power to extend the period for setting aside ex-parte award is
conferred on the labour court under Rule 26-A(ii) and though the delinquent
officer has not stated so in his order, the appeal preferred against the
said order was summarily dismissed by the High Court and in the further
appeal the parties have arrived at settlement and it renders the issue of
limitation and condonation of delay more or less academic. The Division
Bench was of the opinion that prima facie the delinquent officer did try to
be judicious and it is sufficient to absolve him from charge of undue
favour/help to the employer and on that premise set aside the report of the
Enquiry Officer and order of dismissal.
It is a well accepted principle of law that the High Court while exercising
powers under Articles 226 and 227 of the Constitution does not act as an
appellate court and its jurisdiction is circumscribed and confined to
correct an error of law or procedural error, if any, resulting in manifest
miscarriage of justice or violation of the principles of natural justice.
As already seen in the present case, the Division Bench has reappreciated
the evidence acting as a court of appeal and we find it difficult to
support the judgment of the Division Bench. We have, on facts, found that
no procedural irregularity has been committed by the Enquiry Officer in the
disciplinary proceedings as the same was conducted in accordance with
Gujarat Civil Services (Conduct) Rules, 1971, and principles of natural
justice. We noticed that the enquiring authority had elaborately
considered the charges leveled against the delinquent officer and rightly
held to be proved. In our view, the Enquiry Officer has rightly rendered
the finding against the delinquent and same was accepted by the High Court
and on its recommendation the order of dismissal was passed by the
appointing authority and it is legally justified.
Consequently, the appeal is allowed and the impugned judgment is set aside
with no orders as to costs.
..................................J.
(V.Gopala Gowda)
.................................J.
(C. Nagappan)
New Delhi;
November 24, 2014.