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2012 DIGILAW 4464 (MAD)

E. Rajendran v. Presiding Officer

2012-10-30

T.RAJA

body2012
Judgment :- 1. The petitioner seeks for issuance of writ of certiorari to quash the award passed by the first respondent-Presiding Officer, I Additional Labour Court, High Court Compound, Chennai, in I.D.No.45 of 1997, dated 19.04.1999, by calling for the records connected thereto, insofar as negativing the claim of the petitioner for reinstatement in service, with continuity of service and backwages. 2. The petitioner joined the service of the second respondent Corporation on 12.12.1986 as Driver. On 17.01.1993, he was on duty in the bus bearing registration No.MD31/10180 in Route No.D60/L and while the bus was proceeding to Chinglepet from Tambaram, due to rash and negligent driving, an accident had occurred at 10.40 hours, in which the bus had collided with a Car and caused death of 2 persons and injuries to 22 persons. After two hours of the accident, the Traffic Inspector of the second respondent Corporation inspected the accident spot and thereby gave a report to the Management. On the basis of the report, the petitioner was issued with a charge memo dated 04.02.1993 seeking explanation. Thereafter, on receipt of the charge memo, the petitioner had submitted his explanations on 10.02.1993, denying all the charges. The second respondent Corporation, being not satisfied with the explanations offered by the petitioner, ordered for an enquiry. In the enquiry proceedings, one Madasamy, Traffic Inspector, who visited the accident spot, deposed that the accident had occurred only due to the fault of both drivers, namely, car driver and the petitioner. However, in his expert opinion, it was deposed that the accident had happened only due to the rash and negligent driving of the bus driver. Finally, the Enquiry Officer, after completion of the enquiry proceedings, submitted his report finding the petitioner guilty of all the charges levelled against him. Thereafter, the second respondent Corporation issued a second show cause notice dated 13.05.1994 proposing the punishment of dismissal from service. On receipt of the second show cause notice, the petitioner also had submitted his explanations stating that the findings of the Enquiry Officer are perverse and bad in law. However, the second respondent Corporation, by its order dated 28.11.1995, dismissed the petitioner from service. Aggrieved by the dismissal order, he preferred an Industrial Disputes before the Labour Court/first respondent in I.D.No.45 of 1997. However, the second respondent Corporation, by its order dated 28.11.1995, dismissed the petitioner from service. Aggrieved by the dismissal order, he preferred an Industrial Disputes before the Labour Court/first respondent in I.D.No.45 of 1997. Upon hearing both sides as well as perusing documents, the learned Labour Court passed the impugned award dated 19.04.1999, rejecting the the claim of the petitioner. As against the same, the present writ petition has been filed by the petitioner with the aforesaid prayer. 3. Mr.K.M.Ramesh, learned counsel appearing for the petitioner submitted that the Labour Court committed an illegality in shifting the onus of proof on the petitioner, when it was the bounden duty of the second respondent Corporation to prove the charges against the petitioner. Further, when the second respondent did not prove the charges as alleged, the learned Labour Court miserably failed to re-appreciate the evidence available on record, while exercising its power conferred under Section 11-A of the Industrial Disputes Act, 1947. Thus, there has been abdication of jurisdiction on the part of the Labour Court, which vitiates the entire impugned award. Again, it was contended that apart from the departmental proceedings, criminal case was also foisted against the petitioner before the Criminal Court, whereby the Criminal Court also after analysing all the evidences available on record, acquitted the petitioner, therefore, it is settled law that once the criminal Court quashed the charges, the department, for the same set of charges, cannot proceed against the delinquent (petitioner). Moreover, in the enquiry proceedings, except one Madasamy, Traffic Inspector, no other person was examined, such as passengers, conductor, users of the road. Even though, the said Traffic Inspector, in his expert opinion, stated that the petitioner was responsible for the accident for his rash and negligent driving, the same cannot be the only basis to reach a conclusion that the petitioner alone was responsible for the accident. The Labour Court also, without noting the above said aspects, erroneously accepted the order of dismissal passed by the second respondent Corporation. 4. In support of his submission, he has also relied upon a judgment of this Court inJeeva Transport Corporation v. Industrial Tribunal and another ( 1994 (2) LLJ 350 ), wherein it is held thus in para 3: "3. The conductor of the bus was not examined as a witness. 4. In support of his submission, he has also relied upon a judgment of this Court inJeeva Transport Corporation v. Industrial Tribunal and another ( 1994 (2) LLJ 350 ), wherein it is held thus in para 3: "3. The conductor of the bus was not examined as a witness. He was the person present at the spot of the accident and he could have give a direct evidence as to how the accident happened. Apart from the conductor, there was another person who had witnessed the accident as is evidence from the First Information Report given to the police. One Vijayagopal son of Viswanathan Konar claimed to have come driving a TVS 50 and he was going from West to East to some distance behind the scooter and the motor cycle and witnessed the accident. He gave information to the police even before the petitioner's people went there. He could have been examined as a witness. Instead of doing so, the management relied only on the evidence of the Engineer, who was not an eye witness. The engineer was only drawing inferences from the tyre marks on the road and other physical features." From perusing the above said judgment, it was contended that even though the conductor of the bus and the passengers, who were there at the time of accident, could have given a direct evidence as to how the accident was happened, they were not examined, but only the said Traffic Inspector was examined, who visited the accident spot only after two hours of the accident. Therefore, he pleaded, non-examination of the conductor as well as passengers of the bus were fatal to the case of the second respondent Corporation. 5. He has also relied upon yet another judgment inManagement, Pallavan Transport Corporation, Chennai, v. Moorthy and another (2011 (II) LLJ 87 (Mad)) to say that when punishment of dismissal was awarded only on the basis of one witness who has not seen the accident and no eye-witness has been examined in the domestic enquiry, it should be held that the Enquiry Officer's finding is perverse and cannot be sustained. With the aforesaid submissions, he prayed for setting aside the impugned award passed by the Labour Court. 6. With the aforesaid submissions, he prayed for setting aside the impugned award passed by the Labour Court. 6. Per contra, Mr.V.R.Kamalanathan, learned counsel appearing for the second respondent submitted that the domestic tribunal has to apply the rule of preponderance of probabilities, which is sufficient, but not the rule of proof beyond all reasonable doubts. But, in this case, the Enquiry Officer, by accepting the evidence of Traffic Inspector, who deposed that the accident had occurred only due to the rash and negligent driving of the petitioner, has rightly applied the principle ofres ipsa loquitur, which means 'situation speaks for itself'. The said principle was also properly explained in Ratcliffe v. Plymouth and Torbay Health Authority ((1998) 1 Lloyd's Rep Med 162 at 172, wherein it is held that Res ipsa loquitur is not a principle of law. It is merely a guide to help to identify when a prima facie case is being made out. Therefore, it was submitted that the Enquiry Officer as well as Labour Court have rightly relied upon the evidence of the Traffic Inspector, who visited the accident spot and obtained direct statement from the Conductor of the bus. Moreover, the said Traffic Inspector, after getting the statement from the bus conductor, deposed that, from the information given by the bus conductor, the accident had happened only because of rash and negligent driving of the bus driver, therefore, the findings of the Enquiry Officer reaching a conclusion that the charge of rash and negligent driving has been proved cannot be normally interfered, more particularly, when the same finding was also accepted by the Labour Court. On that basis, he prayed for dismissal of the present writ petition. 7. Heard the learned counsel appearing on either side and perused the materials available on record. 8. As seen from the records available, the accident that happened on 17.01.1993 is not in dispute and the manner in which it took place is also not disputed and for the said accident, the petitioner was issued with a charge memo dated 04.02.1993 also is not in dispute. Therefore, the only question was whether the petitioner had driven the vehicle in a rash and negligent manner, which ultimately caused the death of two persons and injuries to 22 persons. Therefore, the only question was whether the petitioner had driven the vehicle in a rash and negligent manner, which ultimately caused the death of two persons and injuries to 22 persons. It is seen that, in the enquiry proceedings, the Traffic Inspector, who visited the accident spot, deposed that, from the statement of the bus conductor as well as passengers, the accident had occurred only due to the rash and negligent driving of the bus driver/petitioner. It was also deposed by the said Traffic Inspector that had the driver of the bus driven slowly, the accident could not have happened, even if the Car coming from the opposite direction comes in a high speed. But, in contra, the bus driver, who is getting down from high slope, driven the bus in a high speed, whereas the Car coming from opposite direction is claiming up to the high slope, therefore, from this, it is clear that the Car could not have come in a high speed, as it claiming up in the high slope. In such circumstances, when the Labour Court, by accepting the deposition of the said Traffic Inspector, reached a conclusion that the petitioner drove the vehicle in a high speed and thereby caused the accident, as he was unable to control the vehicle in that high speed, it cannot be held to be a perverse finding. I am, therefore, convinced that the award of the Labour Court was fully justified and it was based on the acceptable material evidence before it and the conclusions were also reached based on cogent and convincing reasoning. 9. Insofar as such conduct of the drivers of a public transport corporation are concerned, time and again, it has been repeatedly held that the doctrine ofres ipsa loquitur would apply, namely, the accident speaks for itself. In other words, when it is in the exclusive knowledge of the driver, who caused the accident, it is but proper that he discharges the onus, namely, that the accident did not happen due to his rash and negligent driving, but due to various other reasons not attributable to him. In other words, when it is in the exclusive knowledge of the driver, who caused the accident, it is but proper that he discharges the onus, namely, that the accident did not happen due to his rash and negligent driving, but due to various other reasons not attributable to him. In fact, in the judgment reported in AIR 1987 SC 861 (State of Karnataka v. Krishna), the Hon'ble Supreme Court has cautioned to the effect that where a driver of a public transport Corporation is found to have caused a fatal accident, the same has to be looked at with certain amount of seriousness, since the public safety and convenience is paramount and therefore, the Court should not fall a prey to the plea of misplaced sympathy. The Hon'ble Supreme Court has also held that award of punishment has to be weighed keeping in view the interest of the public at large and the travelling passengers and the disciplinary actions are taken more as preventive measure so that it may work as an effective warning against other drivers to behave befitting their duties and maintaining due discipline in the establishment. 10. Further, the Apex Court in State of Haryana and another v. Rattan Singh ( (1977) 2 SCC 491 ) has held that in a domestic enquiry, the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible and there is no allergy to hearsay evidence provided it has reasonable nexus and credibility. Whileso, the essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice are more important. In this context, while dealing with the examination of passengers, the Apex Court unambiguously has held that it is not proper to insist upon the passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. It is also pertinent to extract the relevant portion of para 5 of the Rattan Singh's case (cited supra): "5. Reliance was placed, as earlier stated, on the non-compliance with the departmental instruction that statements of passengers should be recorded by inspectors. These are instructions of prudence, not rules that bind or vitiate in the violation. It is also pertinent to extract the relevant portion of para 5 of the Rattan Singh's case (cited supra): "5. Reliance was placed, as earlier stated, on the non-compliance with the departmental instruction that statements of passengers should be recorded by inspectors. These are instructions of prudence, not rules that bind or vitiate in the violation. In this case, the Inspector tried to get the statements but the passengers declined, the psychology of the latter in such circumstances being understandable, although may not be approved. We cannot hold that merely because statements of passengers were not recorded the order that followed was invalid." In view of the settled legal position, non-examination of passengers or the co-employee, namely, Conductor, in this case, cannot be held to be fatal. 11. With regard to the plea of criminal case foisted against the petitioner ended in acquittal, it is useful to refer to a judgment of the Hon'ble Supreme Court in Secretary, Ministry of Home Affairs and Another v. Tahir Ali Khan Tyagi (JT 2002 (Supp.1) SC 520), wherein it was observed thus: "Departmental proceeding and criminal proceeding can run simultaneously and departmental proceeding can also be initiated even after acquittal in a criminal proceeding particularly when the standard of proof in a criminal proceeding is completely different from the standard of proof that is required to prove the delinquency of a government servant in a departmental proceeding, the former being one of proof beyond reasonable doubt, whereas the latter being one of preponderance of probability" From the above, it is clear that on the same charges when there is a criminal proceeding as well as a domestic enquiry, merely because the workman is found innocent in the criminal case, it does not mean that he cannot be found guilty in the departmental proceedings, therefore, the plea of the learned counsel for the petitioner that the departmental proceedings has to be quashed, since the criminal Court quashed the charges levelled against him, cannot be accepted. 12. 12. Keeping that caution made by the Hon'ble Supreme Court in mind, if the case of the petitioner is analysed, there can be no two opinion that the petitioner was responsible for causing accident and as concluded by the first respondent/Labour Court that such accident was caused due to the rash and negligent driving of the petitioner, it would be highly unsafe for the second respondent Corporation to continue to employ the petitioner in service as a driver, as the same would be detrimental to the interest of the public at large, namely, the road users. Therefore, I find no illegality in the award of the first respondent in order to interfere with the same in this writ petition. The writ petition, therefore, fails and the same is dismissed. No Costs.