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2003 DIGILAW 299 (KAR)

MANAGING DIRECTOR, KSRTC v. S. NAGARAJ

2003-03-25

G.C.BHARUKA, S.B.MAJAGE

body2003
MAJAGE,J. ( 1 ) THIS appeal is filed by the appellant/corporation, challenging the order passed by the learned Single Judge and also the award passed by the Tribunal. ( 2 ) THOUGH the matter was listed for admission, with consent of both sides, taken for final hearing and heard. It is submitted for the Corporation that when the domestic enquiry was held to be fair and proper, the Labour Court was required to consider the records of enquiry besides the finding arrived at in the domestic enquiry but, without doing so, mainly on the ground that MW-1 was not offered for cross-examination, the Labour Court wrongly proceeded to hold charge as not proved observing that no oral or documentary evidence was adduced by the Corporation to prove the misconduct and so also the learned Single Judge and as such, interference by this Court is required. On the other hand, it is submitted for the respondent that when the Labour Court has recorded its finding on the basis of evidence available before it, it cannot be said to be perverse so as to call for interference by this Court and rightly, the learned Single Judge did not interfere with it. Perused the records carefully. ( 3 ) IN the present matter, the respondent was admittedly working as driver under the Corporation. On 16. 11. 1993, the bus driven by the respondent caused an accident, in which 8 years boy died. So, he was subjected to domestic enquiry on the charge of misconduct namely, driving the bus in a rash and negligent manner and thereby causing death of a minor boy. On proof of the said charge in that enquiry, the Disciplinary Authority passed an order of his dismissal from service. So, he raised an industrial dispute before the Labour Court by filing an application under Section 10 (4- a) of the Industrial Disputes Act. The Labour Court found that domestic enquiry conducted against him was fair and proper. However, a witness namely, Ashok Kumar, who was examined as mw-1 with 14 documents marked during his evidence on issue no. 1 namely, whether the domestic enquiry was fair and proper, did not appear for cross-examination. The Labour Court found that domestic enquiry conducted against him was fair and proper. However, a witness namely, Ashok Kumar, who was examined as mw-1 with 14 documents marked during his evidence on issue no. 1 namely, whether the domestic enquiry was fair and proper, did not appear for cross-examination. So, the Labour Court, observing that no oral or documentary evidence was adduced by the Corporation for the charge, held that charge has not been proved and ordered for reinstatement of the respondent into service with 50% of back wages besides continuity of service. Aggrieved by it, the Corporation filed writ petition before this Court. The learned single Judge dismissed it. Hence, this intra-Court appeal by the corporation. ( 4 ) IT need not be said that in such proceedings, the strict and sophisticated rules of evidence under the Evidence Act do not apply and all materials, which are logically probative for a prudent mind are permissible and even there is no allergy to hearsay evidence provided it has reasonable nexus and credibility as held by the supreme Court in the case of STATE OF HARYANA vs RATTAN singh1 ( 5 ) NOW it may be noted that both the Tribunal and the learned single Judge proceeded to observe that the Corporation did not adduce any evidence to prove the charge, though it was not necessary for the Corporation to adduce any further evidence, when the domestic enquiry was held fair and proper and it relied on the domestic enquiry evidence. So, in the present matter, the Labour court was required to consider enquiry record. It is not that the enquiry record did not contain the report of the ATI (who visited the place of accident, prepared sketch, recorded statement of respondent and conductor), besides sketch, statements of respondent, conductor and other material. It is true that MW-1 examined on issue No. 1 (whether the domestic enquiry conducted was fair and proper) was not offered for cross-examination and as such, that evidence could not have been considered, but that does not mean that there was no evidence before the Tribunal to consider the charge levelled against the respondent, when evidence adduced in the domestic enquiry was very much available. ( 6 ) INSPITE of that, without considering the evidence adduced in the domestic enquiry, only on the grounds the MW-1 was not offered for cross-examination and that passengers were not examined before the Enquiry Officer and that there was lack of evidence for the charge, the Tribunal, without considering domestic enquiry records, held that the Corporation failed to prove the charge levelled against the respondent. ( 7 ) THE said approach of the Tribunal was not at all correct since it could not have said that there was no evidence adduced in the case to consider the charge though, of course, it was right to the extent of not considering the evidence of MW-1, who was not offered for cross-examination. If the domestic enquiry conducted against the respondent had been held as not fair and not proper, the matter would have been different, but not when the domestic enquiry was held as fair and proper and as such, not offering MW-1 for crossexamination (who was examined for the purpose of proving that domestic enquiry was fair and proper) did not matter much so far as the proof of charge is concerned. So also non-examination of passengers before the Enquiry Officer as held in the case of Rattan singh (supra ). ( 8 ) NOW incidentally it may not be out place to note that the standard of proof required in criminal case is different from what is required in domestic enquiry. In the case of NELSON MOTIS vs union OF INDIA AND ANOTHER2, the Supreme Court observed that nature and scope of criminal case as different from departmental/disciplinary proceedings and an order of acquittal therefore, cannot conclude the departmental proceedings. Same view was taken by this Court also in the case of M/s MYSORE paper MILLS LIMITED vs G. SHEKAR3. So, the acquittal of the respondent-driver in the criminal case had no such bearing on the proof of charge before the Domestic Tribunal, which aspect of the matter also cannot be forgotten. ( 9 ) SINCE the Tribunal has not considered the domestic enquiry record, the finding recorded by it was a perverse finding and cannot be sustained. The learned Single Judge did not hold so and wrongly recorded that Corporation has not adduced any evidence to prove the charge. ( 9 ) SINCE the Tribunal has not considered the domestic enquiry record, the finding recorded by it was a perverse finding and cannot be sustained. The learned Single Judge did not hold so and wrongly recorded that Corporation has not adduced any evidence to prove the charge. So, this matter requires to be remitted to the Tribunal to record a finding afresh about charge, bearing in mind the observations made in the course of this order as to how the evidence in such proceedings require to be appreciated, etc. , 2. 1992-II LLN - 1059 3. ILR 2002 KAR 1069 1. AIR 1977 SC 1512 in the result, the appeal is allowed. The impugned award and order are set aside. The matter is remitted to the Labour Court, bangalore to record a finding afresh in accordance with law based on the evidence adduced in domestic enquiry. In the circumstances, parties to bear their respective cost. --- *** --- .