Madras High Court
Anna Transport Corporation Ltd. vs Presiding Officer, Labour Court And ... on 22 November, 1999
Equivalent citations: (2000)IILLJ902MAD
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
ORDER M. Karpagavinayagam, J.
1. Anna Transport Corporation Limited, Salem, is the petitioner herein.
2. Being aggrieved by the award dated July 5, 1991 made in I.D. No. 106 of 1986 on the file of the Principal Labour Court, Coimbatore, the first respondent herein, setting aside the order of dismissal of the second respondent herein, passed by the management and directing the management for reinstatement of the second respondent with continuity of service and backwages. The management, the petitioner herein, has filed this writ petition seeking for the issue of a writ of certiorari to call for the records relating to the award stated above and quash the same.
3. The short facts which are required for the disposal of this writ petition are as follows:
"(a) S.P. Manickam, the second respondent herein was employed in the petitioner-Corporation from September 1, 1973 as driver. During his employment as a driver, he was involved in two major accidents in 1975 and 1977 and was imposed substantial punishments and on three occasions he was given warning for various misconducts.
b) On December 30, 1983 at about 3.30 p.m., he was driving the vehicle TMN. 6375 belonging to the petitioner-Corporation, plying between Salem and Valapoor. At that time, a place called Poonthottam, the driver in a negligent manner dashed against the Tar Melting Machine parked on the right side of the road and swerved the bus to the left side and knocked down the stone wall, thereby the bus got rolled down into a pit and capsized. Due to this accident, the bus was extensively damaged and all the passengers numbering 33 and the driver and conductor received injuries of various degrees. The police registered a case with reference to the accident for the offences under Sections 337 and 338, I.P.C. in Crime No. 36 of 1983.
c) The Investigating Officer of the petitioner-Corporation inspected the area and sent his report to the management stating that the driver was solely responsible for the accident. Based on the said report, the charge memo dated January 11, 1984 was issued against the driver framing four charges. On receipt of the charge memo, the driver, the second respondent herein submitted an explanation on January 20, 1984 denying the charges. Not satisfied with his explanation, a domestic enquiry was conducted.
d) Before the Enquiry Officer appointed by the management, two witnesses were examined on behalf of the management and on behalf of the driver, two passengers were examined. After giving opportunity to the parties for examination and cross-examination, on March 12, 1984 the Enquiry Officer sent a report holding the second respondent guilty of all the four charges.
e) Based on the report of the Enquiry Officer, a second show cause notice was issued on June 13, 1984 to the second respondent calling upon him to show cause as to why he should not be dismissed from service. Then the second respondent submitted his explanation on July 7, 1984 reiterating that the accident was not due to his negligence. Having not satisfied with the said explanation and having regard to the gravity of the misconduct, the petitioner-Corporation issued an order dated September 11, 1984 dismissing the second respondent from service.
f) Thereafter, in pursuance of an industrial dispute raised by the second respondent, the Presiding Officer, Labour Court, Coimbatore the first respondent herein took the case on file in I.D. No. 106 of 1986. Though no witness was examined before the Labour Court, on behalf of the management, Exs. M-1 to M-26 were marked.
g) Though in the claim petition, the delinquent worker would raise several points challenging the domestic enquiry, he gave up those grounds and straightaway argued only with regard to the reasonings and findings of the enquiry report and the order of dismissal.
h) After hearing the Counsel for the parties, the first respondent, the Labour Court by its award dated July 5, 1991 held that the charges were not proved and directed the petitioner for the reinstatement of the second respondent with continuity of service and backwages.
i) Since the document Ex. M-26 would reveal that the delinquent worker joined as a driver and worked in different concerns from July 25, 1990 to August 5, 1990, the Labour Court held that the delinquent worker would not be entitled for backwages for the said period.
j) This Award is the subject-matter of challenge before this Court in this writ petition filed by the petitioner-Corporation seeking for the issue of writ of certiorari.
4. The learned Counsel for the petitioner, while attacking the award, would contend that the Labour Court by setting aside the order of dismissal, would exceed its jurisdiction by making improper reappreciation and directed for reinstatement without taking into consideration the fundamental principle relating to the appreciation of evidence in a domestic enquiry.
5. It is further contended by the Counsel that the Labour Court has given the finding without adverting to the reasonings given in the enquiry report on the assumption that there is no direct evidence, and therefore this Court under Article 226 of the Constitution would certainly interfere with the award, particularly when the relevant material have been overlooked and the strict applicability of rules of evidence is not necessary in a domestic enquiry.
6. On the other hand, the learned Counsel for the second respondent, the delinquent worker, would submit that the Labour Court as provided under Section 11-A of the Industrial Disputes Act, went into the evidence independently let in before the Enquiry Officer and came to the correct conclusions that the charges are not proved and that when such a re-appreciation by the Labour Court is permissible under law, that too, after the introduction of Section 11-A of the Act, this Court under Article 226 cannot sit over the said Award as second appellate Court for re-appreciating the materials and as such, the writ petition is liable to be dismissed.
7. The Counsel for both have cited several authorities in support of their respective pleas.
8. Before going into the merits of the order of dismissal dated September 11, 1984 and the impugned award dated July 5, 1991, it would be appropriate to consider the question as to the scope of this Court under Article 226 and as to when this Court would interfere with the award passed by the Labour Court.
9. It is settled law that in a writ of certiorari under Article 226 of the Constitution for quashing an Award of an Industrial Tribunal, the jurisdiction of the High Court is limited. It can quash the Award only when the Tribunal has committed an error of law apparent on the face of the record or when the finding of facts of the Tribunal is perverse.
10. This Court in the exercise of writ jurisdiction under Article 226, where a petition is filed seeking a relief by way of quashing of award given by the Labour Court under Section 11-A of the Industrial Disputes Act, has limited jurisdiction to demolish the impugned award, where according to this Court, such award is palpably erroneous.
11. As a general rule, the High Court would not interfere unless the order of the Labour Court is perverse or not based on any evidence or grossly illegal or based on a complete misconception of law or that no reasonable man would come to the conclusion to which the Labour Court has arrived at.
12. There is no hard and fast rule that it has always to send the matter back to the Labour Court for appropriate adjudication and for passing appropriate order in accordance with law, but in order to avoid delayed justice and for vindication of speedy and appropriate relief, the High Court may in appropriate cases incorporate its own findings which may appear to be just and proper.
13. It cannot be an established rule that the High Court ought not to interfere, while exercising writ jurisdiction, with the discretion exercised by the Labour Court under Section 11-A of the Act and exercise that jurisdiction itself. What the Labour Court should do and when there is an omission on the part of it to do that, the Court, in exercise of the powers under Article 226 of the Constitution of India, can certainly do. What the Labour Court may in its discretion do, the High Court too can, under Article 226, if facts compel it to do so.
14. These are all the propositions laid down by the Courts including the Apex Court in the following judgments:
(1) J.D. Jain v. Management of State Bank of India (2) Rajasthan State Road Transport Corporation v. Gopal Singh (1999-III-LLJ (Supp)-810)(Raj-FB); (3) Management of Madras Fertilizers v. Presiding Officer, I Additional Labour Court, etc. (1990-I-LLJ-298) (Mad-DB); (4) Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, (5) Vasanti M. Shah v. All India Handloom Fabrics Co-operative Society Ltd. (1986-I-LLJ- 69)(Guj-DB); (6) National Carbon Company, Madras v. Labour Court, Madras, 1986 1 LLN 405.
15. In the light of the above principles it shall be my endeavour to go into the impugned order to find out as to whether the impugned order suffers from any illegality or the circumstances compelling this Court for interference by invoking Article 226 of the Constitution.
16. The impugned award dated July 5, 1991 passed by the first respondent would set aside the dismissal order of the management passed on the basis of the enquiry report, by directing the management to reinstate the second respondent. Therefore, let us now go into the finding of the Enquiry Officer contained in the enquiry report.
17. As detailed above, it is an admitted fact that on the date of the accident, the second respondent driver drove the bus and in the accident, all the passengers sustained injuries and after the charges were framed against the second respondent, the enquiry was conducted and opportunity was given to the delinquent worker to cross-examine the witnesses and thereafter, the Enquiry Officer sent a report finding that the second respondent was guilty of all the four charges.
18. As noted above, there is no challenge either before the Labour Court or before this Court with reference to the procedure followed by the Enquiry Officer for conducting enquiry and also with regard to the nature of opportunity that was given to the delinquent worker.
19. Under these circumstances, let us now consider the relevant materials placed before the Enquiry Officer and the findings on analysis of the said materials given by the Enquiry Officer.
20. On behalf of the management, the Investigating Officer of the department and the conductor of the bus involved in the accident were examined. Two passengers were examined on the side of the driver.
21. On consideration of the statements of these witnesses, the Enquiry Officer concluded that all the four charges were proved.
22. Before dealing with the findings, it is relevant to quote the details of four charges, which are as follows:
(1) Driving the vehicle rashly and negligently, thereby causing an accident.
(2) Causing damage to the vehicle and injuries to passengers as well as crew members.
(3) Causing damage to the tune of Rs. 10,000 and bringing disrepute to the petitioner.
(4) Violating the Rules and Standing Orders under 19(i)(d) of the Corporation.
23. These details of the following holding that all charges were proved by the enquiry officer could be summarised as follows:
"(A) According to the Investigating Officer of the management, the second respondent, the driver, while driving the bus towards Salem near Poonthottam Village on December 30, 1983 at about 3.30 p.m., hit against the Tar Melting Machine, which was parked on the right side of the road and suddenly swerved the bus towards left and knocked down the stone wall erected on the left side and due to that, the bus rolled down in a pit and got capsized. The passengers numbering about 33 received injuries of various degrees. He has also given inspection report, which shows that the bumper of the bus is stained with tar patches.
(B) It is clear from the records that the total width of the road is 3 metres and the width of the tar Melting Machine is 0.50 metre and, so, the balance space in the road is 2.5 metres and also the width of the mud road is 0.75 metre and therefore, the driver would have safely crossed the road even without hitting upon the Melting Machine. The entire accident took place because of the rash driving of the driver by first hitting on the Tar Melting Machine with the bumper and thereafter, by swerving to the left knocking down the stone wall, which resulted in the vehicle getting rolled down in pit.
(C) Though it was contended by the delinquent worker that the accident had taken place due to the mechanical defect, the Motor Vehicles Inspector's report shows that there is no mechanical defect. Though it was raining on that day, the rain would not have been the reason for the accident, since the tyre marks were already found in the road indicating several buses crossed that road.
Further, the delinquent worker himself would admit that at 2.30 p.m., he came from Salem, through that way only and at that time, there was no accident.
(D) Under those circumstances, only due to the negligent driving, the bus hit against the Tar Melting Machine, which resulted in the accident by suddenly taking the turn to the left side and due to the impact, passengers sustained injuries and the bus got damaged. Thus, all the charges are proved."
24. These findings by the Enquiry Officer were based upon the materials in the form of oral and documentary evidence.
25. Before the Labour Court, Exs. M-1 to M-26 were marked on behalf of the management. The delinquent worker has not chosen to produce any fresh evidence before the Labour Court.
26. After hearing the arguments, the Labour Court set aside the dismissal order and ordered for reinstatement. The grounds for such a conclusion by the Labour Court are given below:
(1) The evidence of the Investigating Officer viz., the Checking Inspector of the management, cannot be accepted, as he is not an eye-witness to the accident.
(2) Though the conductor of the bus was examined on behalf of the management, he has not stated that the driver drove the bus speedily and negligently.
(3) The two passengers examined on behalf of the driver, who sustained injuries due to the accident, did not state that due to the negligence of the driver, the accident had taken place. They would simply state that the road was slippery due to rain.
(4) The management did not choose to examine any of the other passengers to show that the accident took place only due to the negligent driving of the driver.
(5) No witness would state that the bus hit against the Tar Melting Machine and when it swerved to left, it dashed the stone wall.
(6) The conductor, and two passengers would state that the accident took place, the driver gave a warning. Therefore, the charge of negligence cannot be said to be proved. Since other charges also are connected with the main charge, namely, negligence, they are also to be held not proved.
27. The above reasoning contained in the Award impugned would reveal that the Labour Court on an independent appraisal and appreciation of the evidence, without adverting to the reasonings and findings of the Enquiry Officer, has passed the Award.
28. In the light of this, the learned counsel for the petitioner would contend on the strength of the various authorities, that the reappreciation by the Labour Court is not permissible under law. According to the learned counsel if there is no defect in the domestic enquiry, the Labour Court would only go into the findings of the Enquiry Officer in order to decide whether those findings are correct or not, but the Labour Court would not be competent to reappraise or reappreciate the evidence.
29. The above submission, in my view, may not hold good, in view of the introduction of Section 11-A of the Industrial Disputes Act.
30. The words contained in the said section, "in the course of the adjudication proceeding", the Tribunal/Labour Court is satisfied that the order of discharge or dismissal was not justified clearly indicates that the Tribunal/Labour Court is now clothed with the power to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied on by the Enquiry Officer or the Management established the misconduct alleged against a workman.
31. Thus, the Labour Court, is now at liberty to consider not only whether the finding of misconduct recorded by the Enquiry Officer is correct, but also to differ from the said finding, if a proper case is made out.
32. These principles relating to the permissibility of the appreciation of the evidence after the introduction of Section 11-A of the Industrial Disputes Act have been clearly laid down in the following decisions:
(1) Workmen of Firestone Tyre and Rubber Co. v. Management, (2), Sri Ganesh Aluminum Factory v. Industrial Tribunal, Madras, (1982-I- LLJ-159) (Mad- DB), (3) Mangat Rai v. Punjab RTC and another (1998-II-LLJ- 294) (P&H-DB) (4) John D' Souza v. Karnataka State Road Transport Corporation and Anr. (1998-II-LLJ-385) (Kant-DB).
33. Thus, it is clear, on a reading of the above decisions, that there is no limitation placed upon the powers of the Labour Court to reappraise the evidence adduced before the Enquiry Officer and arrive at its own conclusion. But, in doing so, the Labour Court must give cogent and convincing reasons for the same.
34. Keeping those principles in mind, when the Award and other records have been carefully scrutinised, it is clear that the Labour Court has misdirected itself by adopting perverse approach in the matter of appreciation of the materials available and without following the guiding principles in regard to the appraisal and appreciation of the materials placed during the domestic enquiry, laid down by this Court and the Apex Court, concluded that the unemployment is not justified and directed the petitioner management for reinstatement of the second respondent.
35. The crux of the findings given by the Labour Court is that the management had not proved negligent driving of the delinquent driver by examining the eye witnesses and that the eye witnesses, the two passengers, who were examined on the side of the driver did not accuse the driver stating that he drove the vehicle negligently.
36. It is settled law that in these accident cases, especially in the domestic enquiry, for proving the negligence of the driver, the rules of evidence under the Evidence Act will not apply.
37. In the instant case, the Labour Court rejected the evidence of M.W. 2 Sadananda Menon, who is the Investigating Officer, mainly because he was not the eye witness and he deposed only hear-say evidence. Furthermore, the Labour Court did not consider the other documents, such as Ex. M-1, the F.I.R. which was given by M.W.2 the Investigating Officer, Ex. M-3, the Motor Vehicles Inspector's Report Ex. M-6, the sketch and Ex. M-9 series, the photos.
38. In short, the Labour Court completely ignored the evidence of M.W. 2 Sadananda Menon, who had collected the materials and produced before the Enquiry Officer to show that the accident took place only due to the negligence of the delinquent, mainly on the reason that he was not the eye-witness. In other words, the Labour Court has not discussed the materials found available in Ex. M-1, the F.I.R. Ex. M-2, the Motor Vehicles Inspector's Report, Ex. M-3, the detailed report by the Checking Inspector, Ex. M-6, the sketch and Ex. M-9 series, the photos. The Labour Court only relied upon the evidence of worker and two passengers.
39. The entire reading of the Award would reveal that the Labour Court indulged in the process of appreciating and evaluating the materials, as if it is a Criminal Court. As indicated above, the said appreciation also was not done in respect of the vital documents, which were produced by M.W. 2, the Investigating Officer of the management.
40. It is a well established Rule that the standard of proof in a domestic enquiry could not be a proof beyond reasonable doubt, but a conclusion could safely be arrived at on the basis of logical and probative evidence.
41. In this context, it would be appropriate to refer some of the decisions to highlight as to how the materials placed in the domestic enquiry have to be appreciated and as to how far the Evidence Act would apply for the evaluation of those materials.
42. In State of Haryana v. Rattan Singh, :
"It is well settled 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. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. However, the Courts below misdirected themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the Tribunal before a valid finding could be recorded. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny."
43. In J.D. Jain v. Management of State Bank of India, (supra), it is held thus (1982-I-LLJ-54 at 56):
7. "In an application for a writ of certiorari under Article 226 of the Constitution for quashing an award of an Industrial Tribunal, the jurisdiction of the High Court is limited. It can quash the award, inter alia, when the Tribunal has committed an error of law apparent on the face of the record or when the finding of facts of the Tribunal is perverse. In the case before us, according to the tribunal, as Kansal was not examined, the evidence before it was hearsay and as such on the basis thereof the appellant could not be legally found guilty."
44. In D. C. and G. Mitts Co. Ltd. v. Dil Bahadur, 1982-I-LLN-78, the Delhi High Court would hold as follows:
"It would be very unreaslistic to insist in a domestic enquiry like this that the company should have produced either the police officer of the person who made the statement as a witness and that the respondent-employee should have been given an opportunity to cross-examine him."
45. In T.C. U. Bank Ltd. v. Assistant Commissioner of Labour, (1992-II-LLJ-886) this Court would observe as follows at p 887:
"In a domestic enquiry, what is necessary is a preponderance of probabilities for holding the charges proved against delinquent workman. It is not necessary that the evidence should be as fool proof as in the case of a criminal trial."
46. In the light of the above decisions, it is clear that the reasons given by the Labour Court in the award holding that the charges are not proved and that the witness examined was not the eye witness, who speaks about the hearsay evidence and other passengers have not been examined on behalf of the management, are clearly wrong and perverse.
47. Yet another infirmity is noticed in the award. The Labour Court has not only ignored the vital documents produced by the Investigating Officer of the management, but also chosen not to advert to any of the reasonings given by the Enquiry Officer in the enquiry report holding that the charges are proved.
48. In fact, the Labour Court has clearly overlooked the conclusion of the Enquiry Officer that there was sufficient space to drive the bus safely in spite of the presence of the Tar Melting Machines at the right side, considering the fact that the bus knocked down the stone wall at the left side of the road and capsized into the pit, which was not too steep, the accident would not have occurred, if the employee had been careful.
49. The Labour Court has proceeded entirely on the assumption that there should be a direct testimony of incidents which may not be possible in all the accident cases. When the materials were available in the form of investigating report to show that the bumper of the bus was stained with tar due to the impact by bus hitting on the Tar Melting Machine, resulting which the bus took a turn to the left and knocked down the stone wall and ultimately rolled down into the pit, in the absence of challenge of the said materials found in the report, the Labour Court cannot conclude that the bus did not hit the Tar Melting Machine.
50. As a matter of fact, when the Checking Inspector of the Department was examined referring about the tar stains in the bumper, it was not denied in the cross- examination by the delinquent worker. Moreover, the sketch and photos marked before the Enquiry Officer would clearly show that there was sufficient space to drive the bus on the left side. This vital factor had not at all been taken into consideration by the Labour Court.
51. In fact, all the passengers numbering about 33 sustained serious injuries in the accident. The driver and conductor also sustained injuries. Out of the said injured persons numbering about 35, one Chelladurai sustained a fracture on his leg and ladies numbering about 10 sustained serious injuries all over the body. All the injured persons were taken to hospital and hospitalised for a number of days.
52. Though it is the contention of the delinquent worker that mere was a mechanical defect, the Motor Vehicles Inspector's report shows that the accident was not due to the mechanical defect. Admittedly, the delinquent worker at 2.30 p.m. crossed that way, while coming from Salem and even at that time, the Tar Melting Machine was parked in the road. Had there been loose mud due to rain in the road, the accident could have taken place at that time itself.
53. It is the case of the delinquent worker that when he came from Salem, the bus contained only 10 persons and when he went back to Salem through that way at 3.00 p.m., the total passengers were 33 and therefore, the accident took place.
54. This is a new version put by the delinquent worker only during the course of enquiry. This is not supported either by the conductor examined on behalf of the management or by the two passengers examined on behalf of the driver.
55. Even in criminal cases in relation to the charges of rash and negligent driving, the well known maxim 'res ipso loquitur' is being invoked.
56. By the applicability of doctrine of res ipso loquitur, negligence could be inferred. If the accident by its very nature is more consistent with its being caused by negligence of the driver, than by the other causes, then the mere fact of the accident is prima facie evidence of such negligence.
57. The manner and circumstances in which the accident took place in the present case clearly would attract the principle of res ipso loquitur, especially when the tar patches are found on the bumper of the bus, the mere assertion of the witnesses examined on behalf of the driver that the bus did not hit on the Tar Melting Machine would not be a ground to hold that the report of the Investigating Officer is false more particularly when there is no motive for giving such a report against the delinquent driver.
58. Under those circumstances, none of the reasoning given by the Labour Court is tenable, as the entire approach of the Labour Court in making an improper evaluation of the materials, by having overlooked the vital factors as indicated above, is quite perverse and so, the award would justify the interference of this Court by invoking the Article 226 of the Constitution.
59. In this view of the matter, I cannot say that the Labour Court has exercised the jurisdiction strictly in accordance with Section 11-A of the Industrial Disputes Act and in line with the guidelines by the Apex Court with regard to the appreciation over the materials placed in the domestic enquiry.
60. It is lastly contended by the learned counsel for the second respondent that even assuming that the charges were proved, the second show cause notice issued by the management to the delinquent worker does not contain the particulars of the past records and therefore, the management should not have referred about the past conduct of the employee in the dismissal order and that therefore, the punishment of dismissal was not in accordance with law.
61. In order to substantiate the said plea, he has cited the decision in Management of Madras Fertilisers Limited v. Presiding Officer, I Additional Labour Court, etc., (supra).
62. The above contention also, in my view, lacks substance. The records would show that even from the beginning, in all the correspondence, the management indicated about the past records. As a matter of fact, he was earlier involved in fatal accident case and suffered punishment imposed by the department.
63. Though it is true that there is no reference about the past conduct of the delinquent worker in the second show cause notice, that would not, in any way, affect the validity of the dismissal order, inasmuch as the management took decision to dismiss him not on the basis of the past record. Though it is referred to in the dismissal order that past record is not satisfactory, the entire reading of the order dismissing the delinquent would not show that the past conduct has very much weighed with the management.
64. Furthermore, the second show cause notice was issued by the management with a proposed punishment of removal or dismissal not on the basis of the past conduct, but only on the basis of misconduct proved.
65. The decision reported in Management of Madras Fertilisers Limited v. Presiding Officer, I Additional Labour Court, etc., (supra), cited by the learned counsel for the delinquent worker would not be of any use for this case because in the said decision, on facts, the Division Bench came to the conclusion that the past record which is not put on notice in the second show cause notice had very much weighted with the management on the question of imposition of the extreme penalty. When the consideration of the past record of service has very much gone into the mind of the management on the question of punishment, it can be said that the employee had been denied the opportunity to make his say.
66. But, that is not the case here. Though the past record of service is not good, the very fact that the details of the past records have not been mentioned in the dismissal order would show that the past record of service of the delinquent had not weighed with the management.
67. The counsel for the second respondent would further submit that at any rate the dismissal would be disproportionate to the misconduct proved in the case.
68. In this context, he would cite the decision in Depot Manager A.P.S.R.T.C. Medak v. Mohd. Ismail and Anr.
69. On going through the said decision, it is clear that the case in question in that decision would relate to the similar facts of the present case.
70. In the said case, the driver was dismissed from service for his negligent driving of the bus, resulting in the injuries to 35 passengers. The Disciplinary Authority on the basis of the report of Enquiring Authority, dismissed him from service. However, the Labour Court set aside the dismissal order and directed for reinstatement holding that the charges are not proved. When the Management took up the matter before the High Court of Andhra Pradesh, the Division Bench held that the delinquent was guilty of charges. However, it did not disturb the order of reinstatement passed by the Labour Court, but held that the delinquent would not be entitled to backwages.
71. On the strength of this judgment, which would deal with the similar facts of the present case, where 35 persons including the driver and conductor sustained injuries, the learned counsel for the second respondent, the driver requests this Court for reinstatement with the lesser punishment of denying the backwages.
72. To decide the issue, it is proper to refer to the relevant observation of the said decision, which is this:
"The next question to be considered under Section 11-A of the Industrial Disputes Act is whether the penalty imposed by the Disciplinary Authority is proportionate to the gravity of the misconduct proved against the delinquent. The Disciplinary Authority has pointed out that the misconduct proved against the delinquent is quite serious in nature resulting in injuries to 35 passengers and the conductor, and heavy damage to the vehicle. If we were to decide this case in the year 1987 or 1988, probably, we would not have interfered with the punishment imposed by the Disciplinary Authority. The delinquent was reinstated into service by virtue of the impugned award passed by the Labour Court more than eight years back, and it is not brought to our notice that after reinstatement, the delinquent caused any accident on account of his negligence or committed any other misconduct. In that view of the matter and taking into account the totality of the facts and circumstances of the case, we think it is just and proper not to disturb the reinstatement awarded by the Labour Court. But, we do not find any justification to award backwages to the delinquent.
73. The above observation would make it clear that the Division Bench of Andhra Pradesh High Court concluded that the punishment of dismissal imposed by the Disciplinary Authority for the misconduct proved against the delinquent which is quite serious in nature resulting in injuries to 35 persons and heavy damage to the vehicle is correct and cannot be said to be disproportionate.
74. However, the factor which made the Division Bench not to disturb the award of reinstatement is that after the award was passed on December 31, 1987, the delinquent was reinstated and he was continuously working in the Management and there was no subsequent accident reported in his tenure and when the writ petition came up for disposal on January 18, 1996, already 9 years had elapsed.
75. But in the present case, subsequent to the award dated July 5, 1991, the management, the petitioner immediately filed the writ petition before this Court and obtained the stay. Therefore, he was not reinstated.
76. Hence, the decision arrived at by the Division Bench, in the light of the subsequent development, not to disturb the reinstatement made 9 years ago, would not, in any way, be helpful because the subsequent development taken place in the other case would not be available in the instant case.
77. It cannot also be stated that the punishment of dismissal would not commensurate with the act committed by the delinquent, in the light of the above observation made by the High Court of Andhra Pradesh.
78. As stated above, if the delinquent worker had driven the vehicle carefully, while proceeding to Salem and crossing the Tar Melting Machine parked on the right side, as he had done one hour earlier when he was coming from Salem, the accident could have been averted.
79. As correctly pointed out by the Enquiry Officer in his enquiry report on the basis of the materials in the form of the evidence of the Checking Inspector, inspection report, the vehicle driven by the delinquent hit against the Tar Melting Machine and thereafter swerved to the left side and fell into the pit of 10 feet depth after knocking down the stone wall.
80. Due to accident, all the persons including driver and conductor sustained serious injuries all over the body. They were also taken to the hospital where they took treatment as in-patient for long number of days. Though the passengers escaped from death, most of them sustained serious injuries on the vital parts of the body. One of them sustained a fracture on his leg.
81. When there is a factual finding, in the light of the materials available on record, that the delinquent driver was responsible for the accident, then the misconduct of the delinquent would be treated as a very serious one which warrants appropriate punishment.
82. In the instant case, on the proved charges, I have no doubt whatsoever in my mind, that the management is justified in imposing the punishment of dismissal. Therefore, the contention urged by the counsel for the second respondent, the delinquent would fail.
83. No doubt, it is true that a writ Court is not an appellate Court, where the correctness of the award under review is to be canvassed, as it has no jurisdiction to substitute its own opinion in the Labour Court. It is also true that the writ Court will not probe into the merits of exercise of jurisdiction of the Labour Court, unless the exercise of discretion is perverse.
84. However, if the discretion is not exercised by Labour Court in accordance with the principles recognised by law in this behalf, for instance, where the power has been abused by exercising it capriciously, arbitrarily or improperly, the writ Court will certainly quash the resulting award.
85. Under those circumstances, when the Labour Court, as noted above, adopted a perverse approach in the analysis and appreciation of the materials, contrary to the guidelines given by the Apex Court in the matter of appreciation of the materials placed in the domestic enquiry, there is no other alternative for this Court except to invoke Article 226 to quash the award.
86. In the result, the writ petition is allowed. The impugned award of the Labour Court is quashed. No costs.