ORDER 1. Sri Shankaregowda is before me challenging the award dated 7-10-2002 passed by the Labour Court, Chikmagalur in I. D. R. No. 158/99, Annexure F in this petition. 2. The petitioner was a permanent employee of the respondent-Corporation. Accident Report was submitted by one Sri Nanjegowda, Asst. Traffic Inspector. Accepting the report, an articles of charge dated 22-9-1998 was issued to the petitioner. In the charge-sheet, it is stated that on 29-11-1997, when the petitioner was driving the vehicle bearing registration No. KA-13-F-299 on route Hassan to Kabbatti, near Channa-ganahalli, one of the passenger travelling on the roof of the bus fell down due to obstruction of electric wire tied to the electric pole and succumbed to the injuries. This accident was on account of the carelessness and neligent act on the part of the petitioner. Reply was submitted. Enquiry was held. Enquiry ended against the petitioner. The enquiry officer found the petitioner guilty of the charges. The said findings were accepted by the Corporation. Dismissal order was followed. Dismissal was challenged before the Labour Court by way of an application under S. 10(4-A) of the I. D. Act. The Labour Court ruled that the enquiry held by the management is unfair and unreasonable. Evidence was led by the Corporation so also by the workman. The Labour Court, after hearing has chosen to reject the reference. This rejection award is challenged in this petition. 3. Heard Sri S. B. Mukkannappa, learned Counsel appearing for the petitioner. He takes me through the material facts to say that the Labour Court is wrong in denying the backwages. He took me through the material documents and material facts to state that misconduct is not proved in the case on hand. He says that he cannot be held guilty for an accident that arose on account of a traveller sitting on the top of the bus as in the present case. He invites my attention to the various material facts in support of his submissions. 4. Per contra, learned counsel for the respondent supports the award by saying that the accident did occur and therefore, the driver is guilty of the charges. Learned counsel for the respondent strongly relies on various findings on facts in support of his submissions. 5. After hearing, I have carefully perused the material on record. 6. 4. Per contra, learned counsel for the respondent supports the award by saying that the accident did occur and therefore, the driver is guilty of the charges. Learned counsel for the respondent strongly relies on various findings on facts in support of his submissions. 5. After hearing, I have carefully perused the material on record. 6. It is seen from the material on record that one passenger was sitting on the top of the bus. When petitioner was driving the vehicle, he suffered an accident resulting in issuance of this articles of charge. The management has chosen to examine one witness in support of the charge. Three documents were marked on behalf of the workman in addition to examining himself. One Nanje-gowda was examined and he has produced 18 documents in support of justification. He states that the petitioner was working as a driver and he was driving the bus bearing No. KA-13-F-299 on route Hassan to Kabbatti near Channaganahalli. MW-1 has stated in his evidence that on 29-11-97, as per the directions of his superiors, he went to the place of occurrence which was situated near village Channagihalli in between Hassan-Kabbatti road. He saw the bus bearing No. KA-13/F-299 along with the first party workman as well as the conductor namely, Suresh. He inspected the spot and prepared the report. He also says that the deceased Subbe Gowda, a passenger was travelling from Hassan to Kabbatti by sitting on the top of the bus. He has also stated in the report that Subbe Gowda was thrown out from the top of the bus. He says that this is in violation of the provisions of the Motor Vehicles Act. He says that the Conductor has allowed the deceased passenger to climb the top of the bus to travel and even without seeing the security guard wire put across the road he drove the bus and made the passenger to fall from the top of the bus. The workman has stated that the deceased passenger Subbe Gowda did not climb the top of the bus in the Hassan bus station, but he had climbed on the top of the bus while the bus was moving without the notice of the driver and conductor with an intention to travel without obtaining any ticket in the matter. The workman has stated that the deceased passenger Subbe Gowda did not climb the top of the bus in the Hassan bus station, but he had climbed on the top of the bus while the bus was moving without the notice of the driver and conductor with an intention to travel without obtaining any ticket in the matter. The workman stated in his evidence that he was driving the bus from Hassan to Kabbatti on a mud road, the conditions were not good. He was driving carefully. 7. In the given circumstances, let me see as to whether the petitioner said to have committed any misconduct as such in terms of the charge-sheet. Admittedly, the enquiry is held to be not fair and proper. The Labour Court was therefore required to go into the evidence for the first time for the purpose of proving misconduct before it. The Labour Court, after noticing various aspects of the matter comes to a conclusion that the Labour Court can consider the probabilities for the purpose of finding the workman guilty of the charges. It is seen that admittedly, the passenger was on the top of the bus. Criminal proceedings were initiated and that ended with acquittal. Though this finding is not binding on the Tribunal, for the purpose of probabilities, the Judgment in favour of the workman has to be considered. When the deceased was sitting on the top of the bus and when he has suffered an incident, the driver cannot be held responsible since the driver is not the person to allow the passenger inside the vehicle in terms of the material available on record. It is only the conductor who is to conduct the bus for the purpose of collection of fare from the passengers. This Court also can take notice that in thickly populated country like ours and also in rural area, bus goes with full of passengers in the absence of proper bus facility. Many a time, the rural folk with a view to reach early, get into the top of the bus for the purpose of reaching early and some times, for the purpose of avoiding the charges to the Corporation. Many a time, the rural folk with a view to reach early, get into the top of the bus for the purpose of reaching early and some times, for the purpose of avoiding the charges to the Corporation. In the case on hand, the deceased has died while sitting on the top of the bus and that the driver could not have been expected to know that a passenger was sitting on the top of the bus and that he has likely to get in touch with electric pole as held by the Labour Court. There is an element of doubt in such cases. Negligence or carelessness has to be proved with acceptable evidence. No such acceptable evidence is available in the case. It is also seen that this driver unlike other drivers was provided with a reward on account of his honesty as noticed by the learned Judge. There is no past record made known to this Court. 8. On the facts and circumstances of this case, taking into consideration, an overall view of the matter, negligence or carelessness cannot held to have been proved to the satisfaction of the Court as in other cases. But however, an accident did occur. Therefore, justice has to be done to both the parties. In the absence of any acceptable proof with regard to negligence or carelessness, this Court is of the view that the workman has to be given one more opportunity to serve the Corporation but of course, without backwages and denial of backwages would be an eye opener to the drivers to notice as to whether any passengers are sitting on the top of the bus while they drive the bus. In these circumstances, I am of the view that the petitioner is to be provided with employment but without backwages. But however, he has to be paid the full backwages after one month of the award since the award comes into operation after one month. Therefore, the workman is entitled for full backwages from December 2002 onwards till he is reinstated by the Corporation. He is to be provided with continuity of service. The wages in terms of this order is subject to the petitioner filing an affidavit with regard to no gainful employment and the said grant of wages is after satisfaction of the Corporation with regard to gainful employment, continuity of service is allowed. 9. He is to be provided with continuity of service. The wages in terms of this order is subject to the petitioner filing an affidavit with regard to no gainful employment and the said grant of wages is after satisfaction of the Corporation with regard to gainful employment, continuity of service is allowed. 9. In fact, in somewhat identical circumstances, another learned Judge of this Court in W. P. No. 14188/2005 has chosen to interfere with an order of reinstatement and 50% backwages. I have denied the entire backwages since in that case, the enquiry was held to be fair and proper. 10. Before concluding, this Court deems it proper to observe that most of the buses in the rural areas are fully crowded and there are passengers who are seen on the top of the bus. Unless a proper check is made by the Corporation, unfortunate fatal accidents also occur. Travelling on the top of the bus is not in consonance with law. The Corporation has to take effective steps in removing this nuisance of top travelling by innocent passengers in the interest of safety and in the interest of fair name to the Corporation. This Court hopes that the Corporation would review its working in the matter of top travelling and take remedical action in their own interest and in the interest of road discipline after a study in the matter. 11. In the result, this petition is allowed. The award is set aside, so also the dismissal order. Instead, the workman is ordered to be reinstated with backwages from December 2002 onwards till he is reinstated by the Corporation with continuity of service in terms of the directions contained in the earlier portion of the order. 12. Ordered accordingly. No costs. 13. Petition allowed.