Madras High Court
The Management vs The Presiding Officer on 2 February, 2011
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02/02/2011 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.P(MD)No.10407 of 2005 and W.P.M.P(MD)No.11123 of 2005 The Management represented by The Managing Director, Tamil Nadu State Transport Corporation, (Madurai Division - I) Ltd., [Now known as Tamil Nadu State Transport Corporation (Madurai) Ltd.], By-pass Road, Madurai - 10. ... Petitioner Vs. 1.The Presiding Officer, Labour Court, Court Buildings, Madurai - 20. 2.G.Gomathy ... Respondents Prayer Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorari calling for the records of the first respondent in his proceedings in I.D.No.64 of 1995 dated 28.10.2004 and quash the same. !For Petitioner ... Mr.S.Royce Emmanuel ^For Respondents ... Mr.S.Arunachalam for R.2 R1 - Court. * * * * * :ORDER
The petitioner/Tamil Nadu State Transport Corporation has filed this writ petition seeking a Writ of Certiorari to call for the records of the first respondent/Labour Court in his proceedings in I.D.No.64 of 1995 dated 28.10.2004 and quash the same.
2. The first respondent/Labour Court while passing the impugned award in I.D.No.64 of 1995, dated 28.10.2004, has among other things, observed that 'considering the entire pleadings and materials placed before this Court that the accident place has not been properly seen by the respondent/Management immediately. The place of accident and the sudden crossing of the cyclist and the standing of the bullock card in front of the bus driven by the first petitioner from north to south, revealed the background that the first petitioner had no other way except to drive the bus on the extreme left and thereby the driver of the bus dashed against the tamarind tree. Hence, this Court is inclined to invoke Section 11-A of the Industrial Disputes Act, 1947, to modify the punishment imposed by the respondent/Management under Ex.M.15, etc and directed the respondent/Management to grant all terminal benefits to the second petitioner (the legal representative of the deceased first petitioner) with backwages from 11.11.1994 to 18.06.1995 and set aside the order of termination dated 11.11.1994 passed by the respondent/Management against the deceased first petitioner and converted the dismissal order of the first petitioner into one of simple discharge.
3. The learned Counsel for the petitioner/Transport Corporation/Management submits that the impugned award passed by the first respondent/Labour Court dated 28.10.2004 in I.D.No.64 of 1995 is arbitrary one and contrary to law. It is the contention of the learned Counsel for the petitioner/Management that in a case of accident, the settled law is the principle of 'Res ipso loquitor' (the occurrence speaks for itself), will apply and therefore, the burden lies on the driver to prove that he has not been responsible for the accident.
4. Added further, the learned Counsel for the petitioner/Management contends that though the driver Gopalakrishnan (since deceased) has stated that because of the sudden crossing of a cyclist on the road, he has to drive the bus to the left extreme road side, no evidence has been adduced in the Domestic Enquiry to prove the same and as such, the first respondent/Labour Court has committed an error in accepting the version of the driver and has come to the conclusion that the driver hit the bus against the tamarind tree with no other way. In short, it is the contention of the learned Counsel for the petitioner/Management that the first respondent/Labour Court has failed to apply the settled principles of law and therefore, the impugned award passed by the first respondent/Labour Court in I.D.No.64 of 1995 dated 28.10.2004 is liable to be set aside by this Court exercising its power under writ jurisdiction and consequently, to allow the writ petition in the interest of justice.
5. Contending contra, it is the contention of the learned Counsel for the second respondent (legal heir of the deceased first petitioner/driver) that in the Domestic Enquiry, the Management witness, the Assistant Engineer, Tirumangalam Branch, (M.W.1) in his cross-examination has deposed that he has admitted to have changed the place of occurrence while adducing evidence and also that it is the evidence of M.W.1 that when he has seen the brake mark with the help of the torch light during dark night, at that time, there is no brake mark and the very fact that M.W.1 has come to the accident spot after three hours of the occurrence, he has not seen the brake mark in the dark tar road during night time and moreover, M.W.1 has not answered directly to many questions in his cross-examination and as such, one has to conclude that the charge levelled against the deceased driver Gopalakrishnan, must be a created one.
6. The learned Counsel for the second respondent submits that in the Domestic Enquiry, the passenger who has witnessed the accident or the person who has served as a Conductor in the said bus, will have to be examined as an immediate requirement and inasmuch as M.W.1has not been an eyewitness to the occurrence, but when he has gone to the spot and when has stated in his evidence about his assumption and presumption, then the same is against the principle of natural justice.
7. Added further, in the Domestic Enquiry, on behalf of the delinquent driver, one Palanisamy has been examined as a witness and that he has clarified in his evidence that the deceased driver (since deceased) has quarrelled that the cyclist who has driven his cycle across the bus. In short, the contention of the learned Counsel for the second respondent is that the dismissal of the deceased driver namely the husband of the second respondent, is against the principles of natural justice and also against the Standing Orders and since the Enquiry Officer has come to a wrong conclusion, the dismissal order passed against the deceased driver Gopalakrishnan, is not sustainable in the eye of law.
8. The learned Counsel for the second respondent cites the decision of this Court in Jeeva Transport Corporation, Ltd. v. Industrial Tribunal, Madras, and another reported in 1993-1 L.L.N.870, at page 871, in paragraph 6, wherein it is held as follows:
"6.Reliance is placed on the judgment in Bharat Iron Works., -Vs- Bhagubhain Bahubhai Patel and others (1976-I.L.L.N(19). The Supreme Court held that there is no defect in procedure in a domestic enquiry against an employee, the Tribunal, while granting or withholding permission under S.33 does not sit as a Court of Appeal, weighing or reappreciating the evidence for itself but only examines the finding of the enquiry officer on the evidence in the domestic enquiry as it is, in order to find out either whether there is a prima facie case or if the findings are perverse. Thus, the Supreme Court has held that the Tribunal is entitled to consider whether the finding of the domestic enquiry officer is perverse or not. The judgment really does not in any way support the petitioner herein. In this case, the Tribunal has further taken into account ail the relevant facts and come to the conclusion that the finding of the domestic enquiry officer is perverse.
9. He also relies on the decision of the Division Bench of this Court in Pandian Roadways Corporation Ltd., v. Presiding Officer, Additional Labour Court, Madurai and another reported in 2002 (1) L.L.N. 348, wherein it is held that 'in the absence of any explanation for not examining the eyewitnesses no reliance can be given to the uncorroborated evidence of the Assistant Engineer.'
10. Yet another decision of this Court is cited on the side of the second respondent in Cheran Transport Corporation Ltd., V. Presiding Officer, Industrial Tribunal, Madras, and another reported in 2002 (1) L.L.N. 388, wherein it is observed that 'if the punishment was based on the evidence of only one witness who had not seen the accident and no other eyewitness was examined, the findings of the enquiry officer is perverse and cannot be sustained, etc.'
11. The learned Counsel for the second respondent seeks in aid the decision of this Court in Management of Pallavan Transport Corporation, Chennai v. Presiding Officer reported in 2004-III-LLJ-355, wherein it is laid down that 'the principle of res ipsa loquitur would not apply to the instant case. The principle would apply to consider the occurrence of the accident and it cannot be applied to find out who was responsible for the accident or whether the workman was responsible for rash and negligent driving.'
12. Further, the learned Counsel for the second respondent relies on the following decision:
(i) In Tamil Nadu State Transport Corporation (Villupuram) Ltd., v.
Presiding Officer, Labour Court, Cuddalore and another reported in 2005 (4) L.L.N.900 wherein it is held that 'the finding of Labour Court is a finding of fact and hence the High Court cannot interfere with the same in writ jurisdiction.'
(ii) In Workmen v. Firestone Tyre and Rubber Co., reported in 1973 Supreme Court Cases (L&S) 341, at page 367, wherein it is observed that 'Section 11-A has the effect of altering the law by abridging the rights of the employer inasmuch as it gives power to Tribunal for the first time to differ both on a finding of misconduct arrived at by an employer as well as the punishment imposed by him, etc.'
13. The Domestic Enquiry Officer in his findings Ex.M.12, dated 11.06.1994, has stated that a perusal of Ex.M.2, sketch of the accident spot, filed on behalf of the Management shows that the bus has left from the road and has hit the tamarind tree situated on the left side of the mud road and that in the accident spot, there is no brake mark.
14. However, the delinquent driver in his explanation, has stated that in the direction in which the bus has proceeded, in front of it, a bullock cart with bullocks locked has been standing and when the driver of the bus endeavoured to overtake the same, at that time, a cyclist has crossed the road and that when the driver has turned the bus on the left side, the accident has taken place, but this aspect has not been made mention of either in his statement or at the time when the Management witness has been cross-examined and there is no mentioning of the standing bullock cart. Also, the person who has been examined on the side of the delinquent driver, in his evidence has stated that during the time of his travel, he has slept in the bus and under what circumstances, the accident has taken place, he does not know about it. In these circumstances, the plea on the side of the delinquent driver that the bullock cart is standing and he made an endeavour to overtake the same and at that time, a cyclist has come across the road and therefore, the accident has taken place, is only an imaginary one, as stated by the Management representative, which is an acceptable one, etc.
15. Admittedly, the Management witness has gone three hours later to the accident spot. It is true that the cyclist who has crossed the road suddenly has not been identified and further, he has not been examined as a witness in the Domestic Enquiry.
16. The delinquent driver (since deceased) in his explanation dated 07.05.1993, for the charge memo dated 24.12.1992, has among other things stated that 'on 08.12.1992, when he has served as a driver in the bus bearing Registration No.TN-59-N-0094, the bus has proceeded from Madurai at 07.30 p.m and when it has been proceeding to Rajapalayam, at T.Pudupatti outer road, a bullock cart with two bullocks has been standing on the left side of the road in the direction where his bus has been proceeding and further, when he has been proceeding on the right side with a view to overtake the bullock cart by sounding horn, at that time, a cyclist keeping one boy at the front bar of the cycle and another boy on the backside carrier of the cycle, has crossed the road from left side to right side. In these circumstances, if the bus is turned to the right side, then it will dash against the boys and if the bus is turned to the left side, then there is a danger to the bullock cart and to the lives of the persons in the bullock cart and therefore, he has no option but to swerve the bus to the extreme left side of the road and accordingly, he has driven the bus to the left side of the road and applied the brake and the bus has dashed against the tamarind tree and stopped and among the injured, one person died in the hospital, etc. and also that he has not driven his vehicle in a fast speed and negligent manner.
17. In the charge memo issued to the second respondent's husband (since deceased driver) dated 24.12.1992, it is mentioned that 'on 08.12.1992, the delinquent deceased driver, when he has been serving as a driver in the bus bearing Registration No.TN-59-N-0094, he has taken the bus at about 07.30 p.m, from Madurai and when he has been proceeding to Rajapalayam, at T.Pudupatti, dashed the bus against the tamarind tree standing at the left side of the road and caused damage and that he has driven the bus in a fast speed and negligently and the bus has left from the road side and dashed against the tamarind tree, as a result of which, out of 27 passengers, one died for which he has been responsible for causing damage to the bus and the injuries being sustained by the passengers, giving room for complaints as per the Standing Order 16(14)(18) of the Transport Corporation.
18. In the Domestic Enquiry, the F.I.R copy has been marked as Ex.M.4. A perusal of Ex.M.4, F.I.R shows that the second respondent's husband (deceased delinquent driver) has been shown as an accused. The complainant is one Karuppiah. Based on the said complaint of Karuppiah, in Cr.No.317 of 1992, a criminal case has been registered under Sections 279, 337 and 338 I.P.C by the T.Kallupatti Police Station. It transpires from the F.I.R (Ex.M.4) that the complainant Karuppiah has travelled in the bus bearing Registration No.TN-59-N- 0094 on 08.12.1992 at about 08.00 p.m, in the Madurai - Rajapalayam bus and purchased the ticket for proceeding to Subbulapuram and in the said bus, there were many passengers and in between the place namely Pudupatti (South) and Kunnathur, when the bus has been proceeding, the bus driver has driven the vehicle speedily and also in a careless manner and dashed against the tamarind tree on the left side of the road at about 08.45 p.m, as a result of which, he sustained injury on his left palm and right side head, right side leg. One person has sustained serious injury on his head and he appeared in an unconscious condition. All of them got into the bus which has come from Rajapalayam to Madurai and has come to Madurai and has taken treatment at the General Hospital.
19. The Management witness, one K.R.Ramasamy, Assistant Engineer, Tirumangalam Branch, in the Domestic Enquiry, in his evidence has stated that the driver of the bus has driven the bus on the left hand side of the tar road in the same direction where he has proceeded and driven the bus to the mud road and dashed against the tamarind tree heavily on the left hand side of the road, as a result of which, the body of the bus has sustained the damage and there has been no sign of brake mark and from this, it is evident that the bus driver has driven the bus speedily and in a negligent fashion and therefore, he is responsible for the accident and that the delinquent driver has not given a statement and the damage to the bus body is assessed at Rs.40,000/- (Rupees Forty Thousand only).
20. In the cross-examination of M.W.1, he has deposed that he has inspected the place at about 12.00 midnight and further that he has enquired the passengers about the accident, but has not obtained the statement from them. It is also the evidence of M.W.1 (in his cross-examination) that when he has inspected the accident spot, no cyclist has crossed at the time of the accident on 08.12.1992. Significantly, it is the evidence of M.W.1 (in his cross- examination) that he has inspected the accident spot with the help of the torch light and jeep light and there is no brake mark.
21. Although on the side of the delinquent driver (since deceased) one K.Palanisamy has been examined as a witness, he has deposed that the bus driver has informed him that with the cyclist, he has picked up a quarrel for the cyclist coming across the road suddenly and that the passengers have shouted against the boy. Interestingly, the witness, K.Palanisamy, on behalf of the delinquent driver, in his cross-examination, has stated that on 08.12.1992 at about 07.00 p.m, he has boarded the bus bearing Registration No.TN-59-N-0094 and on that day, for him, there is a night shift and after getting into the bus at about 08.00 p.m in the night, he has slept. In between, the accident took place at T.Pudupatti outer place and he did not know as to how the accident has taken place.
22. In the Domestic Enquiry, the burden is not on the employer to prove the charges levelled by it against the delinquent employee/workman. In the instant case on hand, the second respondent's husband (delinquent driver - later died) has not been examined himself as a witness. However, he has examined one Palanisamy on his side, but his evidence is not helpful because of the simple fact that he himself deposed in his cross-examination that since on the date of occurrence, i.e on 08.12.1992, after getting into the bus at about 07.00 p.m., in the bus, he has slept and in between T.Pudupatti (South) and Kunnathur, the accident had occurred and he did not know about the occurrence. In short, the evidence of K.Palanisamy is not in any way helpful to the case of the second respondent's husband (delinquent driver - later died). As a matter of fact, the evidence referred to above as tendered by the witness Palanisamy examined on the side of the delinquent employee, will not heighten the case of the second respondent's husband (delinquent deceased driver).
23. Admittedly, the complainant in the F.I.R, Karuppiah has not been examined either by the petitioner/Transport Corporation or on behalf of the second respondent's husband (delinquent driver). A perusal of the contents of Ex.M.4, F.I.R (complaint given by one Karuppiah) nowhere indicates about the crossing of a cyclist at the time of the accident on 08.12.1992 as projected by the delinquent driver in his explanation dated 07.05.1993 submitted to the petitioner/Management.
24. In the present on hand, except the version put forward on the side of the delinquent driver (second respondent's husband) to the effect that the cyclist has crossed the road from the left side to the right side on 08.12.1992, there is no independent or any corroborative evidence supporting the version of the delinquent driver. Therefore, at best, the version projected by the delinquent driver (since deceased) in his explanation dated 07.05.1993 to the effect that the cyclist has crossed the road speedily coming from left side of the road to the right side by keeping one boy at the front bar of the cycle and another boy on the backside carrier of the cycle, can only be construed to be a case of unilateral, uncorroborated and self-serving one projected with a view to escape from the predicament that he is in and in short, the version projected by the second respondent's husband (since deceased) is unworthy of acceptance inasmuch as the same lacks any credence, as opined by this Court.
25. In the domestic enquiry, the second respondent's late husband (since deceased - delinquent driver) has given a typed statement dated 04.02.1994 and when he has been cross-examined on the side of the Management representative, the delinquent driver during his life time, has stated that it is true that he has not mentioned in his typed statement dated 04.02.1994 about the standing of the bullock cart at the scene of accident. Further, he has also stated that even when the delinquent driver has cross-examined the Management witness, at that time also, no mention has been made about the standing of the bullock cart at the accident spot. Though one K.Palanisamy who has been examined as a witness on the side of the delinquent driver in the Domestic Enquiry, has not produced the ticket to prove that he has travelled on the date of accident in the bus involved in the accident on 08.12.1992.
26. In this connection, it is relevant for this Court to point out that the specific charges levelled against the delinquent driver (since deceased) are, (i) that he has driven the bus bearing Registration No.TN-59-N-0094 on 08.12.1992 in a fast speed and negligently leaving the bus from the road to the mud road and dashed against the tamarind tree as a result of which, he has been responsible for causing the death of one of the passengers; (ii) that he has been responsible for causing damages to the bus and for the injuries sustained by the passengers; (iii) that he has given room for complaints as per the Standing Orders 16(14)(18) of the Transport Corporation. Also, the delinquent driver has been called upon to state as to why the damages sustained by the bus need not be recovered from him. Because of the accident, the bus body has been damaged to an extent of Rs.40,000/- (Rupees Forty Thousand only). It is true that in a domestic enquiry, strict rules of Indian Evidence Act will not apply, but the principles enunciated under the Act will certainly apply, as opined by this Court.
27. In the instant case on hand, the delinquent driver has not made any endeavour to stop the bus when the cyclist has crossed the road as per the version projected by him. Furthermore, there is no brake mark or indication for stopping the bus at the accident spot. The delinquent driver has stated that when he has swerved the bus to the left side, at that time, he has dashed heavily against the tamarind tree. Therefore, the fact that the bus involved in the accident has left the road to the mud road and dashed against the tamarind tree resulting in the death of one passenger and causing injuries to many passengers without more, is a clear presumptive case that the same is caused by the rash and negligent driving on the part of the delinquent driver and unfortunately, this has not been rebutted on the side of the delinquent driver to the judicial satisfaction of this Court. Moreover, it is a clear case of Res ipsa loquitor namely, the occurrence speaks for itself.
28. In the decision in Saifullan Khan v. Doongar Ram reported in AIR 2001 Raj 334, at page 336, it is observed that 'Where a bus hit the deceased on a Katcchapatri which was 6-7 feet away from the main road, applying the maxim 'res ipsa loquitur', it was held that the accident took place due to negligence of the driver.'
29. In Thakur Singh v. State of Punjab reported in (2003) 9 SCC 208, the Honourable Supreme Court has held that 'In a situation the driver who was in control of the bus at the time of driving of vehicle over a bridge and then fell into canal, the doctrine of 'res ipsa loquitur' comes into play and the burden shifts on the driver to establish that accident did not take place due to his negligence.'
30. This Court aptly points out that "the phrase 'res ipsa loquitur' is a symbol for the rule that the fact of the occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintiff's prima facie case, and present a question of fact for defendant to meet with an explanation. It is merely a short way of saying that the circumstances attendant on the accident are of such a nature as to justify a jury, in light of common sense and past experience, in inferring that the accident was probably the result of the defendant's negligence, in the absence of explanation or other evidence which the jury believes.' as per STUART M. SPEISER, The Negligence Case: Res ipsa loquitur S.1:2, at 5-6 (1972).'
31. Moreover, 'Res ipsa loquitur is an appropriate form of circumstantial evidence enabling the plaintiff in particular cases to establish the defendant's likely negligence. Hence the res ipsa loquitur doctrine, properly applied, does not entail any covert form of strict liability.... The doctrine implies that the Court does not know, and cannot find out, what actually happened in the individual case. Instead, the finding of likely negligence is derived from knowledge of the causes of the type or category of accidents involved.' as per the Restatement (Third) or Torts S.15 cmt. a (Discussion Draft 1999).
32. Res ipsa loquitur test is a method for determining whether a defendant has gone beyond preparation and has actually committed an attempt, based on whether the defendant's act itself would have indicated to an observer what the defendant intended to do - Also termed equivocality test. (Black, 8th Edn., 2004).
33. In Jai Singh v. Garhwal Motor Owners reported in AIR 1982 All 480, at page 487, it is observed that 'the maxim res ipsa loquitur (the thing speak for itself) applies to a motor accident caused by the breaking down of the spindle of front wheel of a bus.'
34. In Mela Ram v. Mohan Singh reported in AIR 1978 P&H 323, at page 326, it is laid down that 'the maxim 'res ipsa loquitur' means that an accident by its nature be more consistent with its being caused by negligence. In such a case, the mere fact of the accident is prima facie of the negligence.'
35. The manifest circumstances in the present case clearly prove that the accident has been caused by rash and negligent driving of the deceased delinquent driver. Even the non-examination of Karuppiah, the complainant in Ex.M.4, the F.I.R, on the part of the delinquent driver is clearly an adverse circumstance. Because of the simple fact that the said Karuppiah has spoken about the manner of accident in a cogent, convincing and in a clear cut fashion. Suffice it for this Court to point out that the contents of Ex.M.4, the complaint, are inspiring the confidence of this Court.
36. Added further, in the Domestic Enquiry, the charges will have to be proved against the delinquent by means of a preponderance of probability and the proof beyond reasonable doubt as in criminal case is not required to be proved. Inasmuch as the charges levelled against the delinquent driver have been proved to the satisfaction of this Court and taking note of the fact that one unidentified person died in the accident which took place on 08.12.1992 and further, several passengers have sustained the injuries and also damage to the bus because of the accident that has been caused by the delinquent driver works out to Rs.40,000/- (Rupees Forty Thousand only) as per the version of the petitioner/Management, this is not a fit case where leniency can be shown to set aside the order of dismissal for the charges levelled against the delinquent driver are serious in nature. Furthermore, if any sympathy or leniency is shown in the subject matter in issue by setting aside the order of dismissal, then it will encourage the wrong doers.
37. Even though the Management witness has visited the accident spot three hours after the occurrence, he has seen in the torch light during the night time on 08.12.1992 that there is no indication for applying the brakes at the accident spot by the driver and it is a clear circumstance against the delinquent driver. Since the place of accident is on the State Highways between T.Puduppati and Kunnathur, at milestone No.31 and the very fact that the Management witness, the Assistant Engineer has visited the place of accident three hours after the occurrence, certainly there is no possibility for him to verify the version of the delinquent driver that a cyclist has suddenly crossed the road from left side to right side.
38. On going through the award passed by the first respondent/Labour Court, the view taken by it that 'the Enquiry Officer has come to the conclusion without analysing the special features available at the place of accident namely the sudden crossing of the cyclist and the standing of the tied bullock cart in front of the bus and further that the true things have come to the picture about the accident and hence, under these circumstances, the resultant conclusion arrived at to the effect that the order of termination dated 11.11.1994 passed by the petitioner/Management/Transport Corporation against the delinquent driver (since deceased) is converted into a simple discharge and that the second respondent being the legal heir is entitled to claim the terminal benefits with backwages from 11.11.1994 to 18.06.1995 and with further direction that the petitioner/Transport Corporation is directed to grant all terminal benefits to her, are not valid and correct one, in the eye of law and as a matter of fact, the first respondent/Labour Court has misdirected itself by interfering with the order of dismissal passed by the petitioner/Transport Corporation against the delinquent driver and a case of rash, reckless and negligent driving will have to be viewed seriously by a Court of law.
39. Therefore, this Court is constrained to interfere with the award passed by the first respondent/Labour Court in I.D.No.64 of 1995 dated 28.10.2004 and accordingly, this Court sets aside the same in furtherance of substantial cause of justice.
40. In the result, this Writ Petition is allowed leaving the parties to bear their own costs and resultantly, the the award passed by the first respondent/Labour Court in I.D.No.64 of 1995 dated 28.10.2004 is set aside. Consequently, the connected Miscellaneous Petition is closed.
rsb To
1.The Presiding Officer, Labour Court, Court Buildings, Madurai - 20.