Judgment :- 1. The prayer in the writ petition is for a writ of certiorari to call for the records in I.D. No. 374/91 on the file of the second respondent/Labour Court, Tirunelveli, and quash the award dated 10.5.1993 on the following allegations: The first respondent joined the petitioner Corporation, a Government of Tamil Nadu Undertaking registered under the Companies Act, 1956 as a driver on 9.7.1986 on daily wages and from 1.5.1987 on monthly wages. On 18.1.1990 while he was driving the petitioners bus T.O. No. 670 bearing registration No. TCB-6889 on route No 187 plying between Madras and Shenkottai at about 11.45 a.m., the first respondent dashed the vehicle against a boy aged about 7 years near North Pudur on the Puliankudi Main Road, causing the death of the boy on the spot. He failed to follow the traffic rules and the procedure contemplated under the Motor Vehicles Act and drove the bus in a rash and negligent manner without any road sense. If only he had taken due care, the accident would have been averted. The sketch marked as Ex. M-3 in the proceedings clearly established that the driver had driven the bus at a high speed and while it was proceeding from east to west, it went to the extreme right of the road to the mud portion leaving tyre marks to a distance of 101 feet. It was only the first respondent who was responsible for the accident. On an earlier occasion while driving the petitioners bus bearing registration No. TCB-6592 on route No. 185 the first respondent dashed against a pedestrian Muthu by name on 19.10.1988 at Singaperumal Koil near Chingleput and Muthu died on the spot. On that occasion the petitioner Corporation took a lenient view on humanitarian ground and after completion of the disciplinary proceedings, passed an order of postponement of increment for a period of two year with cumulative effect instead of dismissal from service. Within a short period of 3 1/2 years of his joining the Corporation the first respondent had been responsible for two fatal accidents and they were due to his rash and negligent driving. Disciplinary proceedings were initiated against him in respect of the accident on 18.1.1990. A charge memo was issued on 14.2.1990 and he was asked to submit his explanation. Disciplinary proceedings were initiated against him in respect of the accident on 18.1.1990. A charge memo was issued on 14.2.1990 and he was asked to submit his explanation. The explanation submitted by the first respondent on 10.4.1990 was found to be not satisfactory or convincing. On 19.4.1990 the first respondent gave a statement in writing about the accident to the Branch Manager of the petitioner Corporation at Shenkottai stating that on seeing the boy suddenly crossing from left to right, he stopped the bus and the boy dashed against the side of the bus and fell down and died. The Enquiry Officer submitted his findings on 19.4.1990 holding that the charges levelled against the first respondent had been proved beyond reasonable doubt. On the basis of the report of the Enquiry Officer a second show cause notice was issued to the first respondent bearing date 16.8.1990 as to why he should not be dismissed from service. The explanation sent by the first respondent was found to be not satisfactory and an order of dismissal was passed on 23.11.1990 against the first respondent. He raised an industrial dispute in I.D. No. 374/91 before the second respondent and the second respondent by his order dated 10.5.1993 held that the domestic enquiry conducted by the petitioner was fair and proper and sufficient opportunities were given to the first respondent following the principles of natural justice, but held that the order of dismissal of the first respondent under clause 16(k), (q) and (r) of the Model Standing Orders applicable to the employees of the Corporation was incorrect and further held that the misconduct of the first respondent had not been proved in accordance with the said Model Standing Orders. As against this decision of the second respondent the present writ petition has been filed. 2. A counter has been filed stating that the Labour Court has rightly held that the accident that took place on 18.1.1990 was not due to the rash and negligent act on the part of the first respondent, that the sudden crossing by the boy in utter carelessness was the cause for the accident and that in order to avoid dashing against the first respondent had to apply the brake to swerve the vehicle to the extreme right as the boy was coming from the left side and the vehicle met with the accident. The domestic enquiry had not been properly conducted and was vitiated for not having followed the principles of natural justice. The Enquiry Officer had relied on the evidence of one Bhavathy Permal, who had not seen the accident. The Traffic Inspector had prepared a sketch and a report and the Enquiry Officer had relied on that report and had given a finding as if the charges had been proved. The second respondent had rightly set aside the order of dismissal by the management. There were no grounds made out to impugn the award. 3. Miss. J. Jayalalitha, learned Counsel for the writ petitioner, submitted that this was a case where the principles of res ipsa loquitur would apply. The accident itself prima facie established the rash and negligent driving of the first respondent, particularly when the bus went from left to the extreme right leaving the tyre marks on the road to a distance of 101 feet. It was strange for the Labour Court to conclude that the bus did not hit the boy, but the boy only dashed against the bus. It was the duty of the driver to have kept proper vigilance for pedestrians and other users of the road. He ought to have used his skill carefully and avoided the consequences of negligence. The boy was aged about 7 years and despite seeing the boy cross the road, the first respondent had driven the vehicle in a rash and negligent manner resulting in the death of the boy. The Labour Court came to an erroneous conclusion that there was no evidence to show the rash and negligent driving of the first respondent. It ought to have held that the first respondent was guilty of misconduct as contemplated under the relevant provisions of the Model Standing Orders. Mr. D. Saravanan, learned Counsel for the contesting first respondent sought to sustain the award of the Labour Court contending that the petitioner management had not examined any eye witness and that if at all it was a case of only an error of judgment and the principles of res ipsa loquitur would not apply. The learned Counsel laid particular stress on the acquittal of the first respondent by the criminal court. The learned Counsel laid particular stress on the acquittal of the first respondent by the criminal court. The learned Counsel also relied on the judgment of the Supreme Court in Syad Akbar v. State of Karnataka ( AIR 1979 SC 1848 ) and a decision of a Bench of this Court in The Madras and Southern Mahratta Railway Company Ltd. v. Jayammal (ILR 48 Madras 417 = (1925) 25 L.W. 91). 4. The question is whether the principles of “res ipsa loquitur” would apply. What is res ipsa loquitur? Blacks Law Dictionary defines it as follows: “The thing speaks for itself. Rebuttable presumption or inference that defendant was negligent, which arises upon proof that instrumentality causing injury was in defendants exclusive control, and that the accident was one which ordinarily does not happen in absence of negligence. Res ipsa loquitur is rule of evidence whereby negligence of alleged wrongdoer may be inferred from mere fact that accident happened provided character of accident and circumstances attending it lead reasonably to belief that in absence of negligence it would not have occurred and that thing which caused injury is shown to have been under management and control of alleged wrongdoer. Hillen v. Hooker Const. Co. , Tex. Civ. App., 484 S.W. 2nd 113, 115. Under this doctrine, when a thing which causes injury, without fault of injured person, is shown to be under exclusive control of defendant, and injury is such as in ordinary course of things does not occur if the one having such control uses proper care, it affords reasonable evidence, in absence of an explanation, that injury arose from defendants want of care. Lux Art Van Service, Inc. v. Pollard, C.A. Ariz , 344 F. 2nd 883, 886,” 5. In Osborns Conscise Law Dictionary it is stated as follows. “The maxim applies whenever it is so improbable that such an accident would have happened without the negligence of the defendant, that a reasonable jury could find without further evidence that it was so caused.” 6. In Ramanatha Aiyar Law Lexicon it is stated as follows: “Res ipsa loquitur imports that the plaintiff has made out a prima facie case without any direct proof of actionable negligence.” 7. In Ramanatha Aiyar Law Lexicon it is stated as follows: “Res ipsa loquitur imports that the plaintiff has made out a prima facie case without any direct proof of actionable negligence.” 7. In Biswas Encyclopaedia Law Dictionary it is stated that, “this maxim applies in actions for negligence where the circumstances of an accident are such that it is so improbable that it could have occurred without the negligence of the defendant, that it can be presumed that it was so caused.. The onus is on the defendant to disprove the assumed negligence.” 8. In Halsburys Laws of England Volume 23 @ p. 671 the principle is restated as follows: “An exception to the general rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference arising from them is that the injury complained of was caused by the defendants negligence, where the event charged as negligence “tells its own story” of negligence on the part of the defendant, the story so told being clear and unambiguous. To these cases the maxim res ipsa loquitur applies. Where the doctrine applies, a presumption of fault is raised against the defendant, which, if he is to succeed in his defence, must be overcome by contrary evidence, the burden on the defendant being to show how the act complained of could reasonably happen without negligence on his part. Where, therefore, there is a duty on the defendant to exercise care and the circumstances in which the injury complained of happened are such that with the exercise of requisite care no risk would in the ordinary course of events ensue, the burden is in the first instance on the defendant to disprove his liability. In such a case, if the injurious agency itself and the surrounding circumstances are entirely within the defendants control, the inference is that the defendant is liable and this inference is strengthened if the injurious agency is inanimate.” 9. In such a case, if the injurious agency itself and the surrounding circumstances are entirely within the defendants control, the inference is that the defendant is liable and this inference is strengthened if the injurious agency is inanimate.” 9. In Clerk& Lindsell, Fifteenth Edition, Chapter 10-112 page 485 on the Law of Torts it is stated as follows: “It is only a convenient liable to a set of circumstances in which a plaintiff proves a case so as to call for a rebuttal from the defendant, without having to allege and prove any specific act or omission on the part of the defendant. He merely proves a result, not any particular act or omission producing the result. If the result, in the circumstances in which he proves it, makes it more probable than not that it was caused by the negligence of the defendant, the doctrine res ipsa loquitur is said to apply, and the plaintiff will be entitled to succeed unless the defendant by evidence rebuts that probability. Two positive conditions and one negative condition must exist for the doctrine to apply: (1) When the thing that inflicted the damage was under the sole management and control of the defendant, or of someone for whom he is responsible or whom he has a right to control; (2) The occurrence is such that it would not have happened without negligence. Negative condition — (3) there must be no evidence as to why or how the occurrence took place.” 10. In British ColumbiaElectric Rail Co. Ltd. v. Loach (1914-1915 All England Law Reporter 426) the law on the subject has been succinctly stated as follows: “The inquiry is a judicial inquiry. It does not always follow the historical method, and begins at the beginning. Very often it is more convenient to begin at the end, that is at the accident, and work back along the line of events which led up to it. The object of the inquiry is to fix upon some wrongdoer the responsibility for the wrongful act which has caused the damage. It is in search not merely of a causal agency but of the responsible agent. When that has been done, it is not necessary to pursue the matter into its origin; for judicial purpose they are remote.” 11. The object of the inquiry is to fix upon some wrongdoer the responsibility for the wrongful act which has caused the damage. It is in search not merely of a causal agency but of the responsible agent. When that has been done, it is not necessary to pursue the matter into its origin; for judicial purpose they are remote.” 11. “The maxim res ipsa loquitur is a principle which aids the court in deciding as to the stage at which the onus shifts from one side to the other. Section 114 of the Evidence Act, 1872 gives a wide discretion to the courts to draw presumptions of facts based on different situations and circumstances. This is in a way a recognition of the principle embodied in the maxim res ipsa loquitur.” (Law of Torts by P.M. Bakshi — Annual Survey of Indian Law. Volume 23.) 12. In Barkway v. South Wales Transport Co. Ltd. (1948 2 All England Reporter 460) Asquith, L.J. on the principles applicable as to onus of proof, it is stated as follows: “(i) If the defendants omnibus leaves the road and falls down an embankment, and this without more is proved, then res ipsa loquitur, there is a presumption that the event is caused by negligence on the part of the defendants, and the plaintiff succeeds unless the defendants can rebut this presumption. (ii) It is no rebuttal for the defendants to show, again without more, that the immediate cause of the omni bus leaving the road is a tyre-burst, since a tyre-burst per se is a neutral event consistent, and equally consistent, with negligence or due diligence on the part of the defendants. When a balance has been tilted one way, you cannot redress it by adding an equal weight to each scale. The depressed scale will remain down. This is the effect of the decision in Laurie v. Raglan Building Co. Ltd. (1941 1 K.B. 152) where not a tyre-burst but a skid was involved. When a balance has been tilted one way, you cannot redress it by adding an equal weight to each scale. The depressed scale will remain down. This is the effect of the decision in Laurie v. Raglan Building Co. Ltd. (1941 1 K.B. 152) where not a tyre-burst but a skid was involved. (iii) To displace the presumption, the defendants must go further and prove (or it must emerge from the evidence as a whole) either (a) that the burst itself was due to a specific cause which does not connote negligence on their part but points to its absence as more probable, or (b) if they can point to no such specific cause, that they used all reasonable care in and about the management of their tyres.” 13. In Roe v. Minister of Health and another (1954 2 Q.B. 66) Morris, L.J. observed as follows: “This convenient and succinct formula possesses no magic qualities nor has it any added virtue, other than that brevity merely because it is expressed in Latin.” 14. In Gobald Motor Service Ltd. v. Veluswami and others ( AIR 1962 SC 1 = 1958-65 ACJ 179) the accident took place not on the main road, but on the off-side uprooting the stone at the drain and attacking a tamarind tree 25 feet away from the said stone with such a velocity that its bark was peeled off and the bus could stop only after travelling some more distance from the said tree. The said facts give rise to a presumption that the accident was caused by the negligence of the driver. 15. Bearing the above principles in mind let us examine the case on hand. The first respondent was exonerated by the criminal court. It gave him the benefit of doubt. Let us have a look at the reasoning of the Labour Court. The Labour Court has reasoned as follows in para 8 of its award: “There is no document filed to show that because of the very hit against him the boy died. Whether there was any damage caused to the vehicle because of the impact has not been established by the management. No report from the Motor Vehicles Inspector has been filed nor has any postmortem certificate produced to show the cause of death of the boy. Whether there was any damage caused to the vehicle because of the impact has not been established by the management. No report from the Motor Vehicles Inspector has been filed nor has any postmortem certificate produced to show the cause of death of the boy. If it had been filed, it could have been known as to how he died and where all he had injuries. From the evidence produced regarding the accident it could be seen that the vehicle was going along the east west road and the boy darted across and the accident occurred. The driver on seeing the boy coming across, with a view to preventing the vehicle from hitting against the boy, drove the vehicle on the right side and brought the vehicle to a stop. It is not the case of the management that because the vehicle hit against him the boy died. There is neither pleading nor evidence. The Enquiry Officer has relied on the existence of tyre marks for about 103 feet by reason of the application of brakes by the first respondent and found him guilty. Ordinarily if a person gets hit in some place on the head, he could die without any bleeding injury. Such a thing had happened in this case also. The management has also not informed about the fate of the criminal case and no eye witness has been examined in the case.” What follows in the ward is more interesting: “The bus had to travel a long distance to reach the destination on time. The vehicle was therefore being driven in high speed on the road without traffic and only the persons crossing the road should have been more careful. The charge has been held to have been proved wrongly by the Enquiry Officer.” 16. The sum and substance of the decision of the Labour Court is that the first respondent was perfectly justified in going at a high speed and it was only the boy who was at fault. The Labour Court has completely overlooked that the first respondent had not produced any material to show that he had driven the vehicle at a reasonable speed. It has to be noted that no oral evidence was let in on either side. The Labour Court has completely overlooked that the first respondent had not produced any material to show that he had driven the vehicle at a reasonable speed. It has to be noted that no oral evidence was let in on either side. The Labour Court clearly erred in holding that it was the pedestrian who had to be careful when vehicles run amuck on the roads ignoring all speed rules. Nobody can claim a licence to kill. The Labour Court also did not bear in mind the principles evolved in the Supreme Court decision in Gobald Motor Service Ltd.s case where after referring to the entire case law on the point, the Supreme Court raised a presumption that the accident in that case was caused by the negligence of the driver. 17. It would be appropriate to refer to Halsburys Laws of England, III Edition, Volume 28 pages 93 and 94 and paragraph 98: “A distinction must be drawn between children and adults, for an act which would constitute contributory negligence on the part of an adult may fail to do so in the case of a child or young person, the reason being that a child cannot be expected to be as careful for his own safety as an adult. Where a child is of such an age as to be naturally ignorant of danger or to be unable to fend for himself at all, he cannot be said to be guilty of contributory negligence with regard to a matter beyond his appreciation, but quite young children are held responsible for not exercising that care which may reasonably be expected of them. Where a child in doing an act which contributed to the accident was only following the instincts natural to his age and the circumstances, he is not guilty of contributory negligence, but the taking of reasonable precautions by the defendant to protect a child against his own propensities may afford evidence that the defendant was not negligent, and is therefore not liable.” 18. It has been held in Amul Ramesh Gandhi v. Abbasbha Kasambhai Diwan (1978-19 Gujarat Law Reporter 721) that “it is idle to suppose that a normal boy aged 12 who is not expected to be a paragon of prudence has the road sense or the experience of the hazards of the road traffic to the same extent as his elders.. It has been held in Amul Ramesh Gandhi v. Abbasbha Kasambhai Diwan (1978-19 Gujarat Law Reporter 721) that “it is idle to suppose that a normal boy aged 12 who is not expected to be a paragon of prudence has the road sense or the experience of the hazards of the road traffic to the same extent as his elders.. It appears in the overall conduct of all the circumstances of the case that this is not a case in which a boy aged about 12 could reasonably be expected to take precautions for his own safety and that the only inference which could be drawn is negligence was that of the driver and his alone.” 19. In the English case of Jones v. Lawrence(1969 3 All E.R. 267) a boy of seven years and three months ran across the road from behind a parked van and there was a collision between the motor cycle and the infant plaintiff. It was held that the behaviour of the plaintiff was nothing other than that of a normal child, who was regretfully, momentarily forgetful of the perils of crossing a road; contributory negligence was negatived. 20. It has been held in Sardar Mohendra Pal Singh v. Prakash Chand Goyal (1988-27 Reports (MP) 65) as follows: “Normally it is for the claimants to prove the negligence on the part of the driver, but as in some cases considerable hardship is caused to the claimants as the true cause of the accident is not known to them, but is solely within the knowledge of the driver who caused it, the claimants can prove it, but cannot prove how it happened to establish negligence on the part of the known claimants/driver. This hardship is sought to be avoided by applying the principles of res ipsa loquitur.” 21. In Madhya Pradesh State Road Transport Corporation v. Kantidevi and others (1987 SCJ 383) it has been observed as follows: “In numerous cases it has been held that the driver of the vehicle is required to take notice of children or disabled persons who are using the road so as to ensure their safety within reasonable limits. All persons have right to walk on the road and are entitled to the exercise of reasonable care on the part of the person driving the vehicle. All persons have right to walk on the road and are entitled to the exercise of reasonable care on the part of the person driving the vehicle. Therefore, it cannot be said that the persons who are using the road for walking etc. they use the road at their own risk. On the other hand, it is the duty of the driver to keep a proper look out for pedestrian and other users of the road. It is his duty, whenever he feels expedient, to give warning to the pedestrian and other road users by mechanical or electrical horn. In such circumstances even if other road users are found negligent it is for the driver of the bus to use his skill carefully and by exercising his due skill in driving the bus avoid the consequences of that negligence so that it may not result in any fatal accident.” In that case, the bus was driven at a very high speed in a busy locality, hit a cyclist from behind causing his death. The bus stopped at a distance of 50 feet from the place of accident. It was held that the accident was caused due to the rash and negligent driving of the bus driver. 22. In the Supreme Court decision in Syed Akbar v. State of Karnataka ( AIR 1979 SC 1848 ) relied on by the learned Counsel for the contesting first respondent it was held that the accident was due to error of judgment and in spite of the driver adopting best course according to his knowledge and belief, the accident occurred and the presumptions or inferences based on res ipsa loquitur could no longer be sustained. In that case it was held that, “as a rule, mere proof that an event has happened or an accident has occurred, the cause of which is unknown, is not evidence of negligence. But the peculiar circumstances constituting the event or accident, in a particular case, may themselves proclaim in concordant, clear and unambiguous voices the negligence of somebody as the cause of the event or accident. It is to such cases that the maxim res ipsa loquitur’ may apply, if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. It is to such cases that the maxim res ipsa loquitur’ may apply, if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. In such cases (a) the event or accident must be of a kind which does not happen in the ordinary course of things, if those who have the management and control use due care and (b) it has to be further satisfied that the event which caused the accident was within the defendants control. The reason for the second requirement is that where the defendant has control of the thing which caused the injury, he is in a better position than the plaintiff to explain how the accident occurred. Thus, for the application of the maxim res ipsa loquitur’ no less important a requirement is that the res must not only be speak negligence, but pin it on the defendant.” There is absolutely no quarrel over the proposition of law laid down by the Supreme Court. But, what has to be seen in the present case is whether the ratio of the Supreme Court decision would apply. 23. In Mangilal v. Parasram and others (1970) ACJ 86 FB) in paragraph 39) it is stated as follows: “(1) The standard to determine whether a person has been guilty of negligence is the standard of care which, in the given circumstances, a reasonable man could have foreseen. (2) The test is foreseeability, not probability. (3) The more serious the consequence if care is not taken, the greater is the degree of care which must be exercised. (4) While the initial burden of proof of negligence is on the claimant, barring exceptional cases, the principle res ipsa loquitur’ comes into play. It is a rule of evidence and does no more than cast a provisional burden on the defendant. (5) Having regard to the local conditions prevailing in this country, when ‘res ipsa loquitur’ is attracted, it should be given as wide an amplitude and as long a rope as possible in its application to the case of a motor accident. (6) The defendant cannot escape liability merely by preferring hypothetical explanations, however plausible, of the accident.” 24. As already noticed the first respondent was exonerated by the criminal court, benefit of doubt being given to him. (6) The defendant cannot escape liability merely by preferring hypothetical explanations, however plausible, of the accident.” 24. As already noticed the first respondent was exonerated by the criminal court, benefit of doubt being given to him. It is worthwhile to refer to the basis on which the learned Judicial Magistrate acquitted him. In the copy of the judgment rendered by the learned Judicial Magistrate, Sankarankoil, in C.C. No. 44/90 and made available by the learned Counsel for the first respondent, it is stated in paragraph 7 as follows: Tamil 25. Thus from a comparison of the reasoning of the criminal court with the reasoning of the Labour Court it could be seen that it is not possible to pinpoint as to how the accident happened. There are differing versions. But the fact remains that the vehicle was being driven by the 1st respondent at breakneck speed. This is a clear case where the principle of ‘res ipsa loquitur’ comes into play. The first respondent has had a previous history. He had caused a fatal accident earlier and we are informed that after reinstatement now he had again caused yet another fatal accident. His score is now three. So far as the earlier fatal accident is concerned, the first respondent had been punished with loss of increment. In my view, that was wholly inadequate. No doubt, I am not sitting in judgment over what had happened on the earlier occasion. So far as the present award is concerned, the Labour Court had totally misapplied the principles of law. It had not made out any plausible reason for disturbing the finding reached by the authorities with regard to the cause of accident. 26. This is a pathetic case where the life of a seven year old boy has been nipped in the bud. Drivers of the first respondents ilk are a menace to the society. By persons like the first respondent being allowed to continue to play with the lives of innocent pedestrians, cyclists, etc., the society is the ultimate sufferer. Some serious introspection has be done by the powers that be and courts also have to take a proper perspective of things which involved the lives of innocent road users. 27. In the instant case the negligence of the bus driver is apparent from the manner of the occurrence of the accident. Some serious introspection has be done by the powers that be and courts also have to take a proper perspective of things which involved the lives of innocent road users. 27. In the instant case the negligence of the bus driver is apparent from the manner of the occurrence of the accident. The presumption arising has not been rebutted by the first respondent. 28. For all the reasons stated above the award of the Labour Court cannot stand. The writ petitioner is entitled to succeed and the Rule NISI already issued is made absolute. The order of dismissal of the first respondent will stand restored. There will be no order as to costs.