Karnataka High Court
North West Karnataka Road Transport ... vs S.D. Ghatage on 4 December, 2000
Equivalent citations: I(2001)ACC652, ILR2001KAR922, (2002)IVLLJ561KANT, 2001 AIR - KANT. H. C. R. 648, (2002) 4 LABLJ 561 2001 LABLR 384, 2001 LABLR 384
ORDER M.F. Saldanha, J.
1. I have heard the learned advocates on both sides. This case has necessitated certain further innovations in the type of reliefs which the Court should grant in cases of the present type. The petitioner is the North West Karnataka Road Transport Corporation, hereinafter referred to as the Corporation and has assailed the validity of an award of the Labour Court dated December 14, 1999. The respondent employee was a driver with the Corporation at the relevant time and it was alleged that he was driving Bus No. MYF 8731 which had entered the Hubli Bus-stand on September 9, 1989 and that an injury was caused to a passenger who was attempting to board the bus. The injury turned out to be fatal. The Corporation's version is that the driver was rash and negligent while manoeuvering the bus inside the bus-stand whereas the defence pleaded by the employee is of some significance. It was his version which was borne out by two defence witnesses that there was virtually a mad rush and a scramble as the bus was approaching from the potential passengers and that one of them attempted to put something on the seat of the bus ostensibly to reserve a place for himself while the bus was moving. It was in the process of doing this that he sustained an injury. He was removed to hospital where he died sometime later. The findings recorded in the enquiry were to the effect that since the incident took place inside the bus-stand that the responsibility for the same devolved entirely on the driver and that since the incident had fatal consequences that he was liable to be dismissed from service.
The disciplinary authority passed an order dated April 7, 1994 dismissing the driver from service against which he carried the case to the Labour Court at Hubli. The Labour Court after evaluating the evidence came to the conclusion that the culpability of the driver had not been established and that, therefore, he was liable to be reinstated with full back wages. It is against this order that the present petition has been directed.
2. Mr. Govindraj, learned counsel who represents the Corporation submitted before me that the crowds at the bus-stand, a normal feature, that scrambles to board the bus are nothing unusual and that over-enthusiasm on the part of passengers to either board the bus or to try and reserve places for themselves, howsoever risky and inadvisable it may be, is also something that regularly takes place. What the learned counsel was emphasising was that these are the factors that are known to every driver who brings a vehicle and that is the reason why the buses have to be manoeuvred with utmost care and caution, regard being had to the consequential safety of persons outside the vehicle and to see that nobody gets injured or killed. Learned counsel advanced an interesting submission when he contended that any driver negotiating a vehicle through a bazaar or through a crowded street or through a place where persons are moving about hurriedly in an excited manner is required to anticipate the dangers which undoubtedly are attributable to the persons outside the vehicle and that this does not mean that the vehicle should be driven in a manner impervious of these factors and regardless of consequences and safety. It is in this background that he submitted that even though the driver might have been acquitted in the criminal case for want of evidence that in the present proceeding there is enough material to establish his guilt and once the guilt is established no interference is called for with the order of dismissal. He has seriously attacked the findings of the Labour Court, and perhaps justifiably, because he has pointed out that the evidence does in terms indicate that the deceased sustained injuries from his very vehicle and that this is a case where the facts speak for themselves and the doctrine of res ipsa liquitor will apply. Learned counsel was also critical of the manner in which the Labour Courts are indiscriminately ordering reinstatement, and with regard to the order for payment of full back wages, what he submitted with considerable justification was, that if in a case of the present type where the driver has been responsible for the death and furthermore, the Corporation has had to pay compensation for the fatal accident, that the awarding of full back wages would tantamount to a situation of adding injury to insult and on the other hand would be almost as ridiculous as a Court directing that the errant employee should not only be rewarded that he should be given a citation on top of it.
3. As against this position, the respondent's learned counsel submitted before me that it has unfortunately become customary to jump to the conclusion wherever an injury or a death takes place that ipso facto the driver is to be held responsible. He pointed out that with the indiscipline levels that are current and the unruly behaviour of people vis-a-vis vehicles that are in motion, that there are numerous times when despite due care and caution it is because of the reckless and negligent act of the victim that the injury takes place. The learned counsel was at pains to point out to me that in a crowded bus-stand where it is difficult to manoeuvre a vehicle that if on top of it the problems are aggravated by people crowding around the bus from every conceivable direction that there are limits beyond which the driver cannot be expected to perform. In other words, what he was alluding to was that while the driver can be expected to look in several conceivable directions that it is physically impossible for him to watch every area of a large bus all the time. Secondly, what he is placing heavy reliance on is the fact that the management witness himself has more or less admitted to the fact that this was a case in which the responsibility devolves heavily on the deceased who tried to do something very reckless and almost suicidal by attempting to place something inside the bus before it had stopped. He has also relied on the defence evidence which lends credibility to the version of the driver and lastly he banks on the fact that the prosecution ended in an acquittal which according to him is an important factor because the competent criminal Court has cleared the driver of two important factors namely rashness and negligence. It was his submission that on the facts of the present case the adverse finding in the disciplinary enquiry was unjustified and he has supported the findings of the Labour Court which are to the effect that the charges against the driver are not proved and as a necessary consequence he must be reinstated with full back wages and continuity of service.
4. It is necessary to carefully balance the two divergent positions that have been presented by the two learned counsel. While there can be no two opinions about the fact that the driver has to, as of necessity, observe extra special care and caution while manoeuvering the bus in a crowded bus-stand, one cannot lose sight of the angle projected by the respondent's learned counsel when he demonstrates that unfortunately, there are occasions when persons throw caution to the winds and do acts. That are nothing short of suicidal ventures. The familiar practice of boarding running buses and jumping out of them when the bus is still in motion or of clinging on to different parts of the vehicle when it is moving and the like are instances when people are playing with their lives and if under such circumstances an injury or a death takes place, it would be wrong to hold the driver of the bus responsible. Criminal law lays emphasis in such situations and recognises the doctrine of contributory negligence and what was emphasised on behalf of the driver was that there is nothing on record to show that he was operating the bus with disregard for human safety or that he was operating it in a rash and negligent manner and in the absence of this positive evidence, merely because the victim has sustained a fatal injury that jumping to an adverse conclusion against the driver may not be justified. This is a very delicate situation and it was, therefore, necessary to sift the evidence virtually with a fine tooth comb. On doing so, what I find is that even though it would be impossible to give the driver a clean chit having regard to the circumstances of the case and the manner in which the incident took place that it would also not be fair or proper to hold him entirely responsible. There is no conclusive evidence that would establish the latter factor and the highest that can be said is that there are several grey areas and to this extent, the benefit will have to go to the employee.
5. This is one more instance in which this Court needs to emphasise that the disciplinary authorities in the Corporation should be a little more circumspect while awarding punishment because there are several graded penalties which can be awarded depending on the gravity of the misconduct, dismissal being the ultimate one and in cases where a careful and correct appraisal would indicate that there are extenuating factors in favour of the employee an order of dismissal would be unjustified. Under these circumstances, the order for reinstatement must necessarily follow but there again, I need to qualify it by specifying that reinstatement would mean in the present case return to service with the Corporation but not necessarily in the capacity as a passenger bus driver. The reason for this is because it has been pointed out that this driver has been involved in two other instances which have been categorised as major accidents, one before the present one and another after it. Specific details of those instances are not available but this is a factor which is relevant and which the Court needs to take into consideration. On the basis of the aforesaid findings, therefore, even though the respondent would be eligible for reinstatement in service, he would not be permitted to work as a passenger bus driver for a period of twelve months from the date of reinstatement and he shall be given whatever equivalent duties the Corporation can place him in depending upon the availability of the post in other suitable position but it is made clear that it shall not affect his overall emoluments. Also, having regard to the fact that this is a case where there are extenuating factors in favour of the employee, he shall be entitled to the continuity of service.
6. On the question of back wages, under normal circumstances this Court would have straightway set aside the order for payment of back wages and I am wholly in agreement with the Corporation's counsel when he points out that except in a few appropriate cases misconduct is not to be rewarded. There may, however, be a few instances such as the present one where the back wages become necessary because the order of dismissal itself was unwarranted. However, while considering whether the whole or part of the back wages should be awarded, the Courts are required to mould the relief depending on the special facts and circumstances of each case and on the facts of the present case to my mind the Corporation shall compute and pay only the balance of the back wages after deducting the amount of compensation which the Corporation has had to defray for the claim that was preferred relating to the deceased victim. The Corporation's learned counsel submitted that even if there is any balance that the respondent should not be entitled to it but I am not agreeable to that formula because on the facts of the present case, I have already indicated that there are grounds to hold that the driver was not wholly responsible.
7. Now that the case is finally decided the Corporation shall give effect to the order for reinstatement as expeditiously as possible but in any event before December 31, 2000. This Court has found that on all sorts of procedural grounds the Corporation has been delaying the implementation of Court orders and to this extent I uphold the grievance of the respondent's learned counsel that the employee should not be made to suffer in such a situation and it is, therefore, made clear that as a disincentive to the Corporation in the matter of delaying the implementation that the respondent would be entitled to his current emoluments not only from the date of his physically joining service but if the delay has occurred because of the Corporation not implementing this Court's order in time that in that event he shall be deemed to have been reinstated with effect from January 1, 2001. It is not known as to how much is the quantum of back wages and what is the compensation that it is to be adjusted against, but it does appear on a rough computation that there would be some amount payable to the respondent. The Corporation shall compute this amount and pay the same to the respondent not later than January 15, 2001 failing which, the amount shall carry interest at the rate of 18% per annum from the date of the Award. The writ petition partially succeeds and stands disposed of. No order as to costs.
8. Before parting with this judgment, it is necessary to reiterate that the law very definitely recognises the legal concept of contributory negligence and the doctrine postulates that the more the negligence on the part of the offender, the less will be the liability of the driver. With the instances of rank indiscipline, bordering almost on insanity at times, that is displayed by road users, it is wrong to start with the premise that because the victim is either dead or injured that ipso facto the driver is liable. While there may be many instances where the driver is wholly and completely liable because of rashness and negligence, the Courts have to discriminate between these cases and the large number of other ones where the incident has occurred to a very large extent or entirely due to the victim. Significant are cases of pedestrians who insist on jay- walking, cyclists who either carry heavy loads or additional persons and keep veering from side to side, two-wheeler drivers who virtually zig-zag on the roads and are incapable of observing the lane system or moving in a straight line but more importantly, who carry more number of persons on the vehicle than what the Motor Vehicles Act permits. The law very definitely prescribes that not more than two individuals irrespective of age can travel on a two-wheeler despite which entire families are carried on these vehicles with total and complete disregard for safety. Where there is flagrant breach of the law and total disregard of the provisions of the Motor Vehicles Act, these persons would even disqualify themselves from the right to receive compensation. Since these instances arc virtually rampant in the State of Karnataka where the traffic police instead of observing the law and managing the traffic, lazily hang around on the roads doing nothing of any consequence and hoping that people will kill themselves and reduce the population of this country; it is highly desirable that the Insurance Companies specifically bring it to the notice of every vehicle owner particularly two- wheelers that they will disqualify themselves from insurance claims if they breach the law particularly with regard to the number of persons that are permitted to travel on the vehicle. In sum and substance, the laxy very clearly postulates that if it is demonstrated that the victim has done something very suicidal such as shooting out directly from a side road or on a main road into the path of another vehicle, then the law would totally exonerate the driver of the vehicle which found it impossible to avoid an accident. Undoubtedly the law enjoins upon the driver of the vehicle to take due care and caution, to look out for the aspect of the other person's fault and more importantly to take not only anticipatory but even defensive action, but all of these will be totally useless if the victim behaves in a downright suicidal manner. Undoubtedly the Courts have almost totally overlooked this last aspect of the law which is why it is necessary to restate it. (The Registrar General to circulate a copy of this judgment to all the Magistrates and Tribunals dealing with motor accident cases.)