JUDGMENT Hon’ble Rakesh Tiwari, J.—Heard learned counsel for the petitioner, Standing counsel for respondent Nos. 1 and 2 and Sri K.P. Agarwal, learned senior counsel appearing for respondent No. 3 and perused the record. 2. The brief facts of the case are that respondent No. 3 workman was working on the post of driver in the petitioner U.P. State Road Transport Corporation. On the fateful day of 27.8.1986 when Bus No. UHN 1298 driven by the workman was plying on Delhi-Badaun route, it met with an accident and turned turtle. Several passengers were injured and the conductor of the bus Lakhan Singh died. 3. A charge-sheet dated 24.10.1986 was issued to respondent No. 3 in which a report dated 13.1.1987 was submitted by the Enquiry Officer inter alia that the bus driven by the workman-respondent No. 3 turned turtle tried to avoid the bullock carts that had come on the road; that on perusal of the Defects Register maintained by the Workshop, Khurja it was found that on 23rd, 24th, 25th and 27th August, 1986, drivers Sri Bhimsen, Sri Omvir Singh and Mohd. Rafiq had reported that the bus was bubbling and there was defects in the breaks linings and in the Kamani etc. of the bus and if the aforesaid defects could have been removed by the Workshop, the accident would not have taken place. On the basis of the report, the Appointing authority issued show cause notice dated 24.10.1986 which was served upon Om Veer Singh workman who submitted his reply thereto. Pursuant to thereof the workman concerned was removed from service vide order dated 11.7.1990. 4. An industrial dispute was raised by the workman challenging the order of removal dated 11.7.1990 from service which was referred by the State Government to the Labour Court (ll), U.P. Ghaziabad where it was registered as Adjudication Case No. 18 of 1992. On receipt of summons, the parties filed their respective written statements and also oral and documentary evidence before the Labour Court. 5. The Labour Court by the impugned award dated 2.9.1999 enforced by publication on the notice board on 24.4.2000 came to the conclusion that there was no evidence to show that the accident had taken place by alleged rash and negligent driving of the bus by the respondent workman. 5. The Labour Court by the impugned award dated 2.9.1999 enforced by publication on the notice board on 24.4.2000 came to the conclusion that there was no evidence to show that the accident had taken place by alleged rash and negligent driving of the bus by the respondent workman. The Labour Court has also noted the fact that a criminal case for rash and negligent driving instituted against him arising out of the aforesaid accident has resulted in acquittal of the workman. The petitioner has challenged the aforesaid award in the present writ petition. 6. At the time of admission the following ad-interim order was passed by this Court on 5.9.2000. “Heard learned counsel for the petitioner. The delay in filing the with petition has satisfactorily been explained in paragraph 10 of the writ petition. The delay is condoned and the petition is taken up. Notice for respondent Nos. 1 and 2 has been taken by the learned Standing Counsel. Issue notice to respondent No. 3 calling for counter affidavit within six weeks. In the meantime, enforcement of the award dated 2.9.1999 (Annexure-4 to the writ petition) shall remain stayed on the condition that (i) back wages to the extent of 50% payable under the award be deposited with the concerned Labour Court within two months from today; (ii) a sum equal to wages payable to respondent No. 3 from the date of award till 31.8.2000 be paid to him within 2 months from today; and (iii) wages at the rate admissible to the respondent No. 3 for the succeeding months be paid to him on month to month basis till further orders. The back wages so deposited shall be invested in a nationalized bank in some interest earning scheme, initially for one year subject to renewal. This deposit shall be subject to the ultimate decision of the present writ petition. In the event of any default in compliance of the above conditions, this stay order shall stand automatically vacated and the award in question shall become enforceable.” 7. Learned counsel for the petitioner has informed the Court that the aforesaid award has been complied with and Rs. 1,95,000/- has been deposited before the Labour Court which has been paid to the workman concerned in accordance with the principle enumerated in Section 17-B of the lndustrial Disputes Act, 1947 though no work was taken by the Corporation from the workman. 1,95,000/- has been deposited before the Labour Court which has been paid to the workman concerned in accordance with the principle enumerated in Section 17-B of the lndustrial Disputes Act, 1947 though no work was taken by the Corporation from the workman. 8. It is submitted by the learned counsel for the petitioner that the Labour Court has not only failed to appreciate the findings in the enquiry report but also the evidence led on behalf of the Corporation by Sri N.K.S. Pundir which clearly proved that the accident was caused due to rash and negligent driving of the bus by respondent No. 3. It is stated that the finding of the Labour Court that there was no evidence on record to show that the accident was caused due to rash and negligent driving of bus by respondent No. 3 is absolutely perverse and against the material on record. 9. It is urged that in fact the Labour Court has failed to appreciate that there was ample evidence on record to prove that prior to the aforesaid accident the defect of bubbling had been rectified. In this regard he has placed reliance upon the statement of the workman appended as Annexure-CA-1 to the counter affidavit which is as under : "cl [kqtkZ ls fnYyh] fnYyh ls cqyUnkgj o cqyUnkgj ls cnk;wW tk jgh FkhA xkM+h esa ccfyax 27-8-1986 dks [kqtkZ ls pyus ij ugha dj jgh Fkh Lo;a dgk ccfyax ds kq: ls gh djrh Fkh fQj dHkh djrh Fkh fQj ugha djrh FkhA eSaus ccfyax ds ckjs esa cqyUnkgj esa dksbZ fjiksVZ ugha dhA xkM+h ds ccfyax ds dbZ dkj.k gksrs gSaA tSls Qzse Vs<+k gksuk] dekuh esa pky gksuk] vkbZ cksYV ywt gksuk] LiSf.My VsM+k gksuk vkfn gSA xkM+h esa ccfyax kq: ls gh gksrk FkkA ccfyax esa xkM+h FkjFkjkus vFkkZr dkaius yxrh gSA" 10. With regard to the speed of the bus driving by the workman learned counsel for the petitioner has relied upon the following extract of the enquiry report : "lsok izcU/kd xkft;kckn ds i=kad 751@lsiz@xk0ckn@nq?kZVuk@86@fnukad 6-9-1986 ds vk/kkj ij fnukad 28-8-1986 dks e/;ku esa mDr okgu dk rduhdh fujh{k.k lsok izcU/kd xkft;kckn us {ks=h; izcU/kd xkft;kckn dh mifLFkfr esa fd;kA gSMykbZV lgh Fkh] ,;j czsd izskj 7-5 dsth@oxZ ls0eh0 ik;k x;k fLVs;fjax flLVe lgh FkkA leLr Vk;j ,oa lLiSaku fllVe lgh FkkA ikiqyj kkQzV lgh Fkh] xs;jyhoj U;wVªy fLFkfr esa Fkk] LihMdUV~ksy fMokbZl fQV Fkh ijUrq lhy VwVh gqbZ Fkh] leLr okgu dh Nr tehu ij o ifg;s vkdkk dh rjQ FksA leLr ckMh {kfrxzLr Fkh blls ,slk izrhr gksrk gS fd mDr okgu dh nq?kZVuk fdlh ;akf=d vlQyrk ds dkj.k ugha gqbZ LihMdUVªksy fMokbZl dh lhy VwVh ikbZ xkbZ vr% LihMdUVªksy fMokbZl ds }kjk xfrlhek esa NsM+NkM dh xbZ ftlls ,slk izrhr gksrk gS fd okgu dks rst xfr ds lkFk pykus ds dkj.k pkyd us fu;a=.k [kks fn;k vkSj lM+d ls dPph iVjh ij rst xfr ls mrkjus ij okgu nq?kZVukxzLr gksdj iyV xbZA ------------------ Jh vkseohj flag pkyd iq= Jh fkoyky us yxk;s x;s vkjksiksa ds fo:) viuk fyf[kr Li"Vhdj.k mfpr ek/;e ls fnukad 11-11-1986 dks izsf"kr fd;k ftlesa Jh vkseohj flag pkyd us mYys[k fd;k gS fd fnukad 27-8-1986 dks okgu la0 1298 dk lapkyu nsgyh ls cnk;wW ds fy, 19-00 cts fd;kA fkdkjiqj ls yxHkx 3 fdeh vkxs Hkwls ls Hkjh cqfXx;ka tk jgh FkhaA flaxy lM+d gksus ds dkj.k okgu dks cqfXx;ksa ls cpkrs gq, dPph iVjh ij mrkjk rks cl vpkud ,dne ccfyax djrh gqbZ >ksd ekjdj iyV xbZA jkf= dk le; FkkA ;kf=;ksa us kksj epk;k fd pkyd dks ekjksA bl dkj.k pksVxzLr gkyr esa pkyd dqN nwj pys x;s vkSj csgksk gksdj x<+ ksd ekjuk o ccfyax djuk ;g nks"k iwoZ ls gh pys vk jgs Fks rFkk fM+iks deZkkyk }kjk tcjnLrh okgu dks ekxZ ij lapkyu djk;k tk jgk FkkA vUr esa mldk :i nq?kZVuk esa cny x;k blls iwoZ Hkh ;g okgu blh nks"k esa ,dckj iyV pqdh gSaA nq?kZVuk ds ipkr~ os bl gkyr esa Fks gh ugha fd cl ij jg ldrs vkSj u gh nq?kZVuk dh lwpuk gh ns ldrs Fks oju bykt djkuk etcwjh FkhA vr% mu ij okgu NksM+dj tkuk] rhoz xfr ls pykuk vkfn yxk;s x;s vkjksi xyr] eux<+ar ,oa fujk/kkj gSaA vUr esa O;fDrxr lquokbZ ,oa lk{kkRdkj dh ;kpuk dh rFkk izkFkZuk i= }kjk tqykbZ rFkk vxLr 1986 ds deZkkyk [kqtkZ dh nks"k iaftdk dk voyksdu djus ds fy, Hkh ;kpuk dh gSA" 11. Learned counsel for the petitioner has then placed reliance upon the statement of Senior Foreman, Sri N.K.S. Pundir made before the Labour Court, the relevant part of which is as under : "vkseohj flag dk ;g dguk xyr gS fd 27-8-1986 dks cl esa ccfyax dk fMQSDV FkkA fnukad 21-8-1986 o 23-8-1986 o 24-8-1986 rFkk 27-8-1986 ds fMQSDV jftLVj esa ntZ fMQSDV dh QksVks dkih eq>s fn[kkbZ xbZ ;s lHkh mijksDr fMQSDV bl cl esa Bhd dj fn;s FksA ;s fMQSDV fofHkUu pkydksa us bl cl ua0 1298 esa ntZ djk;s Fks] bl fMQSDV jftLVj ls fy;s x;s ,DlVsªDV ij Jh ,e0lh0 feJk fluh;j Qksj eSu ds [kqtkZ ds gLrk{kj gSa ftudks eSa igpkurk g¡wA ftl ij ,Xth bZ 20 vafdr fd;k x;kA tkap vf/kdkjh us tks jktiky flag fQV~Vj vkSj tksjsUl yky bySDVªhfl;u dk nks"k crk;k gS og esjs [;ky ls xyr gS esjs fopkj ls ;g nq?kZVuk pkyd vkseohj flag dh ykijokgh ds dkj.k gqbZ FkhA xkM+h esa ,slk dksbZ eSdsfudy fMQSDV ugha Fkk ftlds dkj.k nq?kZVuk gqbZ gksA" 12. In his cross-examination this witness has admitted that he has not brought the original Defects Register but has given his evidence on the basis of a Photostat copy as supplied to him by the Corporation. In his cross-examination he has also admitted that due to bubbling ‘I’ become loose and that the bus was checked twice and thrice on the report of the drivers and the defects were removed. 13. It is urged that the bus had turned turtle or the bus was being driven at a high speed, therefore, the findings recorded by the Tribunal are perverse and against the evidence on record as such the award is liable to be quashed. He has then urged that the ration of the judgment of the Apex Court in (1999) 3 SCC 679 , Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and another which has been relied upon by the Labour Court was not applicable to the facts of the present case; that the Court below has failed to appreciate that there was no bar to departmental proceedings and awarding punishment to a delinquent employee, even if he had been acquitted in the criminal case on the same charges, giving benefit of doubt. In this regard he has placed reliance upon the decisions reported in 1998 SCC (L&S) 124; 1998 SCC (L&S) 148. In this regard he has placed reliance upon the decisions reported in 1998 SCC (L&S) 124; 1998 SCC (L&S) 148. He has also relied upon paragraph 12 of the case of Allahabad District Cooperative Bank Ltd., Allahabad v. Vidhya Varidha Mishra, (2004) 6 SCC 482 which is as under : “Mr. Rao submitted that the respondent had been exonerated by the criminal Court. He submitted that the termination was only on the basis of his conviction. He submitted that as his conviction is set aside, the Courts below were right in reinstating the respondent. We are unable to accede to this submission. The termination was pursuant to a disciplinary inquiry. It is settled law that in a disciplinary inquiry a conclusion different from that arrived at by a criminal court, may be arrived at. The strict burden of proof required to establish guilt in a criminal court is not required in disciplinary proceeding. The respondent had not claimed that the disciplinary proceedings were not conducted fairly. As the termination was based on findings of the Disciplinary Committee, the fact that the appellate Court exonerated the respondent was of no consequence.” 14. Then he has relied upon paragraph 11 of the judgment of Cholan Roadways Ltd. v. G. Thirugnanasambandam, (2005) 3 SCC 241 , Paragraph 11 of the aforesaid judgment is as under : “Mr. J. Buther, learned counsel on behalf of the respondents, on the other hand, would submit that in the domestic enquiry the alleged misconduct of the respondent cannot be said to have been proved inasmuch as no finding has been recorded as regards the culpability of the respondent vis-a-vis commission of the said misconduct. It was further contended that only because an accident had taken place, the same by itself in absence of the strict proof and having regard to the fact that the respondent had been acquitted of the criminal trial, cannot be held to be a ground to infer that the misconduct on the part of the respondent stood proved. The learned counsel in support of his argument has placed reliance upon a decision of this Court in Bareilly Electricity Supply Co. Ltd. v. Workmen and Zunjarrao Bhikaji Nagarkar v. Union of India.” 15. The learned counsel in support of his argument has placed reliance upon a decision of this Court in Bareilly Electricity Supply Co. Ltd. v. Workmen and Zunjarrao Bhikaji Nagarkar v. Union of India.” 15. He has also placed reliance upon paragraphs 19, 20, 21, 22 and 26 of the aforesaid judgment in which it has been reiterated by the Court that standard of proof required in a domestic enquiry vis-a-vis a criminal trial is absolutely different whereas in the former “preponderance of probability” would suffice; in the latter, “proof beyond all reasonable doubt” is imperative. Therefore, the nature of impact clearly demonstrates that the vehicle was being driven rashly or negligently. The Court has considered the principle of res ipsa loquitur and has held that once the said doctrine is found to be applicable the burden of proof would shift on the delinquent. In paragraphs 21 and 22 the Court has considered the case of Pushpabai Purshottam Udeshi v. Ranjit Ginning & Pressing Co. (P) Ltd., (1977) 2 SCC 745 : AIR 1977 SC 1735 in which it was held that : “The normal rule is that it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident ‘speaks for itself’ or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence.” 16. It is submitted that therefore the burden of proof was on the respondent to prove that the vehicle was not being driven by him rashly or negligently. 17. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence.” 16. It is submitted that therefore the burden of proof was on the respondent to prove that the vehicle was not being driven by him rashly or negligently. 17. In so far as payment of back wages to the workman is concerned, he has relied upon the judgment rendered by the Apex Court in U.P. State Brassware Corporation Ltd. and another v. Uday Narain Pandey, (2006) 1 SCC 479 in which it has been held that : “no precise formula can be laid down as to when full back wages should be allowed. It depends on facts and circumstances of each case. However, full back wages cannot be allowed automatically or mechanically only because an order of termination is found to be unsustainable. While granting relief, application of mind on part of Industrial Court is imperative. Payment of full back wages cannot be the natural consequence.” 18. From the enquiry report quoted above it is apparent that the Enquiry Officer has found that the speed control device was found broken. No finding at all has come in the enquiry report who was responsible for broken seal and as to whether the seal was broken before or after the accident had taken place. Mere finding without any basis that the seal of the speed control device was broken would not ipso facto make the workman guilty for rash and negligent driving. In so far as the factum of accident is concerned, it has clearly come in the enquiry report as well as in evidence before the Labour Court that the workman concerned had tried to avoid the bullock cart for which he had to take the bus on the unmetalled or Kachchi Patri, when the bus suddenly started bubbling and turned turtle; that the conductor died in the accident and the workman also lost his conscious. It also appears that the said bus had earlier also met with an accident for developing some defects. Not only this three drivers had reported that the bus was bubbling and there proper attention was not given towards the report. It also appears that the said bus had earlier also met with an accident for developing some defects. Not only this three drivers had reported that the bus was bubbling and there proper attention was not given towards the report. It may be that defects have been removed in the workshop but how had they been removed is the question i.e. whether the ‘I’ bolt was repaired and re-threaded or changed by a new one or was only tightened. Once the ‘I’ bolt comes loose the bubbling can start at any moment. It has specifically come on the record that in order to avoid the accident the bus had come on the Kachchi Patri of the road on account of which the defect of bubbling might have started as it has come on record that ‘I’ bolt was repaired twice or thrice. It was not only the defect of the ‘I’ bolt defects in steering and breaks linings or spring leaves which were said to have been removed could also cause bubbling in the bus. The Enquiry Officer has also recorded a categorical finding of fact that the accident has taken place on account of the defects in the bus, therefore, it can safely be concluded that even if defect of bubbling etc. might have been removed in the workshop for the time being they might either not have been properly removed or had developed again for using ‘I’ bolt where threads had work out enroute to destination. In so far as the conclusion of the enquiry report that the driver was running the bus at a high speed is concerned, it does not appear to be correct as from the statement of the workman made in the departmental enquiry. He had stated that before the Enquiry officer that he was taking the bus on its normal speed. The Punishing officer appears to have come to the conclusion that the bus was being run at a high speed only on inspired circumstantial evidence against the workman that the seal in the speed control device was found to be defective. 19. One of the allegations of the employer is that the workman had not reported the accident to the police station concerned immediately after the accident. 19. One of the allegations of the employer is that the workman had not reported the accident to the police station concerned immediately after the accident. In this regard it has specifically come in defence that the workman had fallen unconscious and was informed that he was brought by some truck drivers to his residence; that when he gained conscious in the hospital, therefore, he was not in a position to lodge any FIR immediately after the accident. He does not remember how even as to and by who has been brought to home, hence this contention of the learned counsel for the petitioner that he has not lodged any FIR immediately after the accident does not appear to have substance. 20. Emphasis has been laid by the learned counsel for the petitioner on the fact that the workman in his statement has stated that there was no defects in the bus when he had taken the bus from the workshop but thereafter some defects have been developed and it may be that some times there was no defects. This appears to be explanation of the workman that even if the defects of bubbling were removed and some times defects used to develop suddenly. No tempering could be done by the person while the bus enroute. The bus may not be bubbling when it came out of the workshop but it must have developed the defect when it went on the single track road to avoid accident with the bullock carts. 21. The case of the workman before the Labour Court was that the Senior Foreman was not the person competent who had submitted the technical report and neither the technical examination report of the bus whatsoever was on record by any competent person nor such report has been filed. Once the workman had based his burden of proof to the effect that there were earlier reports of bubbling and breaks linings etc. in the bus, the onus shifted on the Corporation to prove that it was not so in the facts and circumstances of the case. The Labour Court has rightly come to the conclusion that there is no evidence on record on the basis of which it could be said that the bus was not bubbling or that inspite of defects being removed it could not have developed defects again. The Labour Court has rightly come to the conclusion that there is no evidence on record on the basis of which it could be said that the bus was not bubbling or that inspite of defects being removed it could not have developed defects again. The Labour Court has also rightly emphasized that not even a single passenger of the bus has been examined by the Corporation either in the domestic enquiry or before the Labour Court that the driver was in fact driving the bus at a speed or more than normal speed due to which the accident had taken place. 22. Admittedly, the accident had taken place while the driver tried to avoid the bullock carts on the road when all of a sudden defects of bubbling developed in the bus. Even from the enquiry report it is apparent that the bus has developed defects of bubbling and the bus met with the accident due to technical faults. It might be that the workman concerned was not able to control the bus due to these faults which suddenly developed. 23. In so far as acquittal in criminal case of the workman and the case laws cited by the learned counsel for the petitioner are concerned and having regard to the fact that the workman had been acquitted in the criminal trial can be punished in the enquiry, suffice it to say that the workman has been acquitted of the charge of rash and negligent driving in the criminal case. 24. In domestic enquiry it has been found from the record that one of the major factors of the accident was that the bus had developed some technical faults. The Corporation has also failed to prove their case also before the Labour Court which in my opinion, has rightly concluded that case laws cited by the learned counsel for the petitioner in support of its case are not applicable to the facts and circumstances of the case for the reason that the workman has been acquitted by the Criminal Court. 25. For all the reasons stated above, the writ petition is dismissed. The amount of 50% back wages deposited by the Corporation shall be released in favour of the workman concerned by the Labour Court within 15 days from the date of moving of the application before it in this regard. 25. For all the reasons stated above, the writ petition is dismissed. The amount of 50% back wages deposited by the Corporation shall be released in favour of the workman concerned by the Labour Court within 15 days from the date of moving of the application before it in this regard. The remaining 50% back wages shall also be paid by the Corporation to the workman concerned within a period of 2 months from today. 26. No order as to costs. ————