Bombay High Court
Brihanmumbai Municipal Corporation, ... vs Anna Gyanaba Veer on 8 January, 2002
Equivalent citations: 2002(2)BOMCR431, [2002(93)FLR738], 2002(3)MHLJ64
Author: Nishita Mhatre
Bench: Nishita Mhatre
JUDGMENT Nishita Mhatre, J.
1. The writ petitioner has impugned the order of the Labour Court in a complaint filed under Section 28 read with Items 1(a), (b), (d), (f) and (g) of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 and the order of the Industrial Court in revision whereby the Courts below granted the respondent reinstatement without backwages but with continuity of service from 17-12-1996. The petitioner dismissed the respondent who was working as a Driver with them as he had committed an accident due to gross negligence on his part. On 19-6-1996 at about 1.45 p.m., the respondent was driving a bus from Wadala Depot to CBD Belapur. When the bus reached Yeshwantrao Chavan highway, a truck which was being driven infront of the bus halted suddenly. The respondent being unable to control the bus, mounted the road divider and went on to the opposite side of the road and knocked down a motor-cyclist, who was coming in the opposite direction. This resulted in the death of the motor-cyclist due to which the petitioner took action against the respondent for having committed misconduct under Standing Order 20(j) of the Model Standing Orders applicable to the petitioner establishment.
2. An enquiry was held against the respondent. The enquiry officer held the respondent to be guilty of the misconduct alleged against him. As a result, the respondent was dismissed from service on 17-12-1996. The respondent filed two departmental appeals which were decided against him. Being aggrieved by the result of the appeals, the respondent filed a complaint under Section 28 read with Items 1(a), (b), (d), (f) and (g) of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as "MRTU & PULP Act"). The parties relied on documentary evidence including the enquiry proceedings and no oral evidence was led before the Labour Court. The Labour Court came to the conclusion that the enquiry was fair and proper. It also came to the conclusion that the findings of the enquiry officer were not perverse. However, it held that the punishment of dismissal was shockingly disproportionate and that thereby the petitioner had indulged in unfair labour practice under Item 1(a) and (g) of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act. The Labour Court directed the petitioner to reinstate the respondent with continuity of service without backwages. Aggrieved by this order, the petitioner as well as the respondent filed revision applications which were heard together by the Industrial Court. The Industrial Court dismissed both the revision applications by an order dated 13-10-2001. The petitioner, therefore, filed the present writ petition impugning both the orders of the Courts below.
3. Mr. Talsania, learned counsel for the petitioner, submits that once the Labour Court had come to the conclusion that the findings of the enquiry officer were not perverse, the Labour Court ought not to have interfered with the punishment of dismissal imposed upon the respondent. He submits that Item l(g) is attracted only if the misconduct proved against the workman is of a minor or technical nature. He further submits that in the present case, the misconduct is so severe and gross that no reasonable person would take any other view of the matter and in no circumstances, could this misconduct of gross negligence, which resulted in a fatal accident, amount to misconduct of a minor or technical nature. He submits that in any event, the past service record of the respondent is not such as to warrant any interference with the punishment of dismissal.
4. Mr. Talsania relies on the judgment of the Division Bench of this Court in Appeal No. 1179 of 1984 (Coram M.L. Pendse and V.S. Kolwal, JJ.) delivered on November 13, 1987, where under similar circumstances, the Division Bench had not interfered with the punishment of dismissal imposed on the bus driver.
5. As against this; Mr. Peerzada, learned Counsel for the respondent bus driver, submits that although the respondent was driving at a speed of 30-35 Kms. per hour and it was because the bus skidded after the respondent applied brakes that the respondent knocked down a motor-cyclist fatally, on the other side of the road. He submits that the respondent lost control of the bus but this would not amount to gross negligence on his part, if at all, the accident which occurred is due to a lapse of mistake on the part of the respondent. He urges that negligence whether gross or minor could not be attributed to the respondent. He further submits that the punishment of dismissal imposed on the respondent is so severe that it would result in economic death of the respondent and the misconduct being a mere lapse, does not warrant the punishment of dismissal. He, therefore, submits that both the Courts below have rightly exercised their powers under Item 1(g) and interfered with the punishment and rightly granted the relief to the respondent of reinstatement with continuity of service. He further submits that denial of backwages to the respondent is sufficient punishment for him as the misconduct, if at all committed by the respondent No. 1 was of a minor or technical nature and, therefore, no interference is called for under Article 226 of the Constitution of India.
6. I have heard both the Counsel for the parties at length. They have taken me through the evidence which was available before the Enquiry Officer and the Courts below and the impugned orders. It appears that the respondent gave a declaration on 19-6-1996 immediately after the accident that he was plying the bus on the Yeshwantrao Chavan highway at an average speed of 30-35 kms. per hour when the lorry in front of his bus suddenly halted. The respondent as a result applied emergency brakes. However, as it was raining, the bus skidded, crossed the road divider and dashed against the motor-cyclist coming from the opposite direction and injured him fatally.
7. In the cross-examination before the Enquiry Officer, the respondent has stated that he was plying his bus in the second lane on the left of the road and that vehicles were passing by him on the right of the bus. He has stated that once the bus crossed the divider in order to avoid a pole on the left, he took a slight turn to the right as a result of which the bus went on to the opposite carriage way and knocked down the motor-cyclist fatally. The other evidence available before the Enquiry Officer shows that the distance of the road from the South to the road divider was about 50 ft., the distance of the road from the road divider to the accident site was 9 ft., the distance of the road from the corner of the bus to the motor cycle was 25 ft., the distance from the head of the deceased person to the motor cycle was about 12 ft. This obviously means that the impact was so great that the motor-cyclist was thrown far away from the vehicle he was riding and that the accident had occurred on account of the tremendous speed in which the respondent was driving. It is difficult to believe the version of the respondent that he was driving at a speed of 30-35 kms. per hour.
8. It is impossible that a bus being driven at only a speed of 30-35 kms. per hour would after applying emergency brakes skid in such a manner as to cross 2 lanes of the road it was plying on, mount the road divider and fatally knock down a motor-cyclist on the opposite carriage way. Assuming that the accident had occurred because the bus skidded on the road, it is improfilable that if the respondent was driving at the speed stated above, the resultant accident would have been so severe.
Mr. Peerzada relies on the judgment of the Gujarat High Court in the case of Navinchandra Shakerchand Shah v. Ahmedabad Co-operative Department Stores Ltd. reported in 1979 I LLJ High Court, Guj. 60 for the proposition that every incident or every error could not be styled as negligence and, therefore, a mere lapse on the part of the respondent could not be considered as gross negligence. In the said decision of the Gujarat High Court, the Standing Order which was construed is Standing Order 22(m) of the Model Standing Orders which provides for misconduct, of "habitual neglect of work, or gross or habitual negligence". The learned Judges in that case were of the view that the misconduct which was alleged against the workman was not established as to become habitual and which could lead to dismissal. In fact they have observed that where there is a duty to take care or to exercise certain skill, failure to take care or exercise skill may indicate negligence. I am unable to accept Mr. Peerzada'a submission that the accident was a result of mere lapse or mistake on the part of the respondent. It is obvious that the respondent is guilty of gross negligence while performing his duty. There is no question of there being a mere lapse on his part. The accident would probably not have occurred had the respondent been careful and not been negligent in the discharge of his duty. The action of the respondent cannot be termed as an honest mistake committed in a day to day working but is an act of gross negligence and, therefore, does not deserve any sympathy.
9. The judgment in the case of Ramdas Kisan Navi v. The Divisional Controller, MSRTC reported in 1990(2) CLR 238 which was relied upon by the respondent in both the Courts below does not take respondent's case any further as the nature of the accident is not mentioned. There is no indication in the said judgment as to the past service record of the concerned workmen and, therefore, reliance placed on that judgment is of no avail to the respondent.
10. In reply to Mr. Talsania's contention that it was not within the power or the jurisdiction of either the Labour Court or the Industrial Court to interfere with the punishment imposed upon the respondent as it was imposed for the misconduct which was not of a minor or a technical nature, Mr. Peerzada placed reliance on the judgment of the Supreme Court in the case of Colour Chem Ltd. v. A.L Alaspurkar and Ors. reported in 1998 (78) FLR 625. This judgment does not support the case of the respondent in any manner. In fact, the Apex Court has considered the construction and interpretation of Item 1(g) of Schedule IV of the MRTU & PULP Act and has observed thus :
"In our view, Clause (g) of item 1 of Schedule IV of the Act is not reasonably capable of two constructions. Only one reasonable construction is possible on the express language of Clause (g), namely, that it seeks to cover only those types of unfair labour practices where minor misconducts or technical misconducts have resulted in dismissal or discharge of delinquent workmen and such punishment in the light of the nature of misconduct or part record of the delinquent is found to be shockingly disproportionate to the charges of minor misconduct or charges of technical misconduct held proved against the delinquent. One and only subject-matter of Clause (g) is the misconduct of minor or technical character. The remaining parts of the clause do not indicate any separate subject-matter like the major misconduct. But they are all adjuncts and corollaries or appendages of the principal subject, namely, minor or technical misconduct which in given set of cases may amount to resulting in shockingly disproportionate punishment if they are followed by discharge or dismissal of the delinquent. The first point, therefore, will have to be answered in the negative in favour of the appellant and against the respondent-delinquents."
Further, Mr. Peerzada's submission that since the Apex Court has moulded the relief in the case before it, a similar indulgence should be shown and the respondent should be given some other punishment than that of dismissal as this would lead to economic death of the respondent also cannot be accepted. Given the nature of the misconduct committed by the respondent and the accident arising due to gross negligence on his part, no sympathy can be shown for the respondent. Reinstating him would in fact be a potential danger to the public at large. The past service record of the respondent is also not such that is of any avail to him to mitigate the punishment. In view of this, the punishment of dismissal must be upheld.
11. The learned Counsel for the respondent then submitted that no circumstances have been indicated by the petitioner to show that reinstatement of the respondent is not possible. He places reliance on the judgment of the Apex Court in the case of Surendra Kumar Verma and Ors. v. Central Government Industrial Tribunal reported in 1981 (1) LLJ 386. In this case the workman had been retrenched without following the provisions of Section 25-F of the Industrial Disputes Act. The Supreme Court has therefore observed that ordinarily it would lead to reinstatement with back wages till exceptional circumstances have been made out by the employer for not granting reinstatement. I have already observed that respondent No. 1 does not deserve to be reinstated for proved misconduct in this case. Therefore, there is no need for the petitioner to show any exceptional circumstances why the respondent should not be reinstated. In any event, the punishment of dismissal for the misconduct committed by the respondent is proper.
12. In the present case, what is to be seen is whether the misconduct which the respondent has committed is so severe as to warrant the punishment of dismissal. In my view, the petitioner have acted rightly in dismissing the respondent and the Labour Court and the Industrial Court should not have interfered with this punishment as the misconduct alleged against the respondent was not of a minor or technical nature.
13. In view of this, Rule made absolute with no order as to costs. Writ petition is disposed of accordingly.