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                                                                              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.  

1. 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.   

2. Employer filed another Misc.  Application No.37 of 1997  

praying  to  set  aside  the  ex-parte  award  in  the  said  case.

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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

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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.

3. 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

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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.

4. 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.

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5. 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.

6. 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

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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.

7. 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;

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November 24, 2014.