Madras High Court
The Management Of Tamil Nadu State ... vs S. Arulanandam And The Presiding ... on 31 October, 2003
Equivalent citations: (2004)IILLJ207MAD
ORDER K.P. Sivasubramaniam, J.
1. The above writ petition has been filed by the State Transport Corporation seeking to quash the award of the Labour Court, Cuddalore, dated 19.12.2000 in I.D.No.130 of 1992.
2. The first respondent employee, in his claim statement before the Labour Court, contended that he was employed as driver bearing Staff No.3158 in Cholan Roadways Corporation, Kumbakonam. On 14.2.1984 when he was on duty in bus bearing registration No.TMN 4749 plying from Tiruchy to Tanjavur, the bus met with an accident due to the negligence of a Motorcyclist in which the cyclist died and the girl who was pillion rider sustained injuries. A criminal case was filed and after investigation charge-sheet was filed before the Criminal Court. Finally he was acquitted by the Criminal Court on 6.3.1986. However, even wile the Criminal case was pending, the management initiated parallel departmental proceedings. A charge memo was given to the petitioner on 21.2.1984 for which the petitioner filed his explanation on 23.2.1984. An enquiry was held on 4.4.1984 and a second show-cause notice was issued on 25.4.1984. An explanation was filed by the petitioner on 14.5.1984 and the final order removing the first respondent/employee from service, was passed by the disciplinary authority on 30.5.1984.
3. The employee further contended that he was not responsible for the accident nor rash or negligent. The request of the petitioner not to proceed with the domestic enquiry pending the Criminal case was turned down by the management. Hence, the action of the management was not justified. The accident did not amount to a dereliction of duty as contemplated under the Standing Orders. In the case of the accident it is only the Court of law which is competent to decide the cause of the accident and the responsibility of the driver. The departmental action was initiated only on the basis of the wrong opinion of the Branch Manager, Tiruchy Unit, who was the only witness examined in the domestic enquiry. He was not an eye-witness to the accident and he was not at all present on the spot at the time of the accident. Nor did he inspect the spot. Therefore, the opinion of the said Officer and the acceptance of the same by the Enquiry Officer and Disciplinary Authority were vitiated. There was no proof of any carelessness or negligence on the part of the driver. The explanations of the driver/employee, dated 23.2.1984 and 14.5.1984 have not been properly considered. It is further stated that as per the settlement arrived at between the Union and the Management under Section 12(3) of the Industrial Disputes Act, the management was bound by the decision of the Criminal Court in accident cases. It is further stated that reference to past conduct was not justified as the same was not brought to his notice along with the second show-cause notice. Adverse past record if any, must be put to the notice of the delinquent and it is all the more necessary for assessing the quantum of punishment under Section 11-A of the Industrial Disputes Act.
4. In the counter filed by the management, the various contentions raised by the employee were denied. While he was driving the vehicle, the bus was driven by the driver recklessly near P.& T. Colony and hit against the cyclist with a pillion rider. Cyclist died instantaneously on the spot and the pillion rider suffered grievous injuries. The vehicle was driven not only carelessly, but also negligently. From the opposite direction, a bus was coming and the motor-cycle was in front of the bus. The driver was fully responsible for the accident while trying to overtake. The accident could have been averted if he had been careful. The driver's explanation was found not satisfactory and hence an enquiry was conducted in a fair and proper manner. The Enquiry Officer found the driver guilty of all charges.
5. It was found that the proved misconduct was serious in nature and the Disciplinary Authority came to the provisional conclusion of dismissing him from service and hence a second show-cause notice was served on him. The explanation offered by the employee was not satisfactory. While awarding punishment the respondent also took notice of several past misconduct and hence the order of dismissal was legal and binding. The dismissal was on the basis of very grave charges which have been properly proved. It is also significant to note that the Corporation had to pay heavy compensation of Rs.1,50,000/- to the family of the deceased on account of the accident. The contention that as the employee had been acquitted by the Criminal Court, the disciplinary action should also be dropped, is not sustainable. Neither is it necessary for the departmental proceeding to await for the conclusion of the Criminal case nor the departmental enquiry is bound by the verdict of the Criminal Court. The evidence is clear and sufficient for the domestic enquiry to hold the employee guilty of the charges. The enquiry was conducted by a retired Judicial Officer and the finding was based on satisfactory evidence. The enquiry was conducted by complying with all the requirements of principles of natural justice.
6. At an earlier stage, a preliminary issue relating to the validity of the enquiry had been taken up for consideration and by order dated 22.4.1998, the Labour Court found that the enquiry was fair and proper and done in accordance with the principles of natural justice. Therefore, before the Labour Court, the only issue which arose for consideration was as to whether the management had substantiated their contentions and whether the dismissal was justifiable. A perusal of the impugned order shows that the main or only ground on which the order of termination was set aside was that while issuing second show-cause notice no opportunity was given to the employee to put forth his explanation as regards past misconduct the details of which were not supplied to him, nor was any evidence produced to prove that the petitioner was given notice of the past misconduct. On that ground the Labour Court came to the conclusion that the punishment of termination of service was without following the principles of natural justice and as such the employee was entitled to the relief of reinstatement. Hence, the above writ petition.
7. Learned counsel for the petitioner/management contends that the only ground on which the award of reinstatement with backwages, was granted in favour of the first respondent is that he was not furnished with the information relating to the past misconduct along with the second show-cause notice. Learned counsel refers to the counter filed before the Labour Court in which the list of past misconduct had been furnished and it is also stated that the same was furnished to the employee along with the second show-cause notice. Hence the ground on which the award was ordered was not sustainable. The accident was a fatal accident necessitating the Corporation to pay compensation of Rs.1,07,944/-. Towards interim relief in this writ petition, the Corporation has also paid Rs.50,000/- which was paid to the employee. He has also retired from service on 23.11.1991. This is not a case in which any sympathy is warranted in favour of a person who was habitually accustomed to rash and negligent driving as could be seen from the past misconduct and that in spite of several earlier punishments, he has been repeatedly indulging in such grave misconduct resulting in a fatal accident.
8. Mr.N.G.R.Prasad, learned counsel for the first respondent contends that the employee was acquitted by the Criminal Court on the same charge of negligent driving and in terms of the settlement between the management and the Union, if on the same charges the proceedings before the Criminal Court end in acquittal, no departmental proceedings shall be taken on the same charges. Learned counsel also denied the delinquent having been furnished with the list of past misconduct along with the show-cause notice. It is further contended that past punishments were minor and the charges which led even to such minor punishments were trivial in nature and if only the delinquent had been furnished with the details of past punishment, he would have been enabled him to explain the same. Further the employee has also retired from service and therefore, there was no point in penalising him at this stage.
9. I have considered the submissions of both sides. The Labour Court after having found that the enquiry had been properly and validly conducted, however, ordered reinstatement of the employee with full backwages only on the ground that the details of the past misconduct were not furnished to the employee along with the second show-cause notice. Though an attempt was made by learned counsel for the management to deny the same, a perusal of the records discloses that in fact the delinquent was not furnished with the said details along with the second show-cause notice. The details of past misconduct had been furnished only in the counter before the Labour Court. In fact, in the counter before the Labour Court, the management did not specifically deny the positive allegation by the employee in the said context. On the other hand, the management had taken the stand that it was not necessary to supply past record of service. Even in the affidavit filed before this Court, the management has not specifically pleaded that details regarding past misconduct were furnished along with the second show-cause notice, even though the Labour Court had passed award only on that ground. Therefore, I am inclined to confirm the finding of the Labour Court that the details of the past conduct have not been furnished along with the second show-cause notice.
10. However, the issue which arises for consideration is as to whether on that ground alone, should the Labour Court set aside the order of dismissal and direct reinstatement with full backwages, unmindful of the gravity of the proved misconduct. Past misconduct is relevant only for the purpose of assessing the quantum of punishment and in terms of Section 11-A of the Industrial Disputes Act. But if the proved misconduct by itself is so grave so as to warrant dismissal from service, the mere failure to supply the details of past misconduct, cannot be a reason for setting aside the dismissal. It is certainly open to the Labour Court to independently assess the gravity of the proved misconduct and whether the punishment commensurate with the nature of the delinquency or to give opportunity to both sides to adduce evidence in the context of past misconduct. The failure of furnishing a copy of the list of past misconduct alone cannot result in automatic invalidation of the order of punishment. More so in a case of this type where the employee/driver is found guilty of having caused the accident due to his rashness and negligence resulting in the death of a person and the huge compensation being decreed against the management. None of these two alternatives had been complied with by the Labour Court.
11. On the issue of details relating to the past misconduct and applying Section 11-A of the Industrial Disputes Act, it cannot be disputed that this Court can certainly look into the details of the past misconduct. Principles of natural justice cannot be extended to a breaking point where the employee does not make any attempt to repudiate the details of punishments which are known to him and which had been furnished to him at least before the Labour Court. No attempt has been made by the employee to file any reply/objections relating to the details of the past misconduct given in the counter by the management. Even before this Court no such attempt has been made by the employee explaining the past conduct. A counter affidavit dated 20.11.2001 has been filed by the employee on 20.10.2001 and another affidavit has been filed by the employee on 4.1.2003 in support of his petition to vacate the order of interim stay. In both the affidavits, the employee had not made any attempt to deny the correctness or otherwise of the list of punishments indicated as past misconduct. Nor was any attempt made to explain them. Apparently, he has nothing to say. It is settled proposition of law that the management will be entitled to lead in evidence before the Labour Court on the merits of the charges even in a case where not even an enquiry had been conducted. It is pertinent to note that the Labour Court had in fact found that the disciplinary proceedings have been conducted properly. That being so, the Labour Court ought to have considered as to whether the proved misconduct alone was sufficient to dismiss the employee from service, and if not should have given opportunity to both sides to deal with the past misconduct. The employee cannot be allowed to take shelter behind the technical failure to furnish a copy of the same along with the second show-cause notice and expect the Labour Court or the High Court to ignore the same in spite of the details having been furnished in the counter before the Labour Court and notwithstanding the gravity and nature of the charges for which the employee has been found guilty not less than 13 occasions as stated below. As stated earlier, the purpose for which the past misconduct is analysed is to arrive at a proper quantum of punishment. It does not help the petitioner in any manner as regards the proof or the proper punishment which requires to be imposed on the instant charge. When the details are furnished at least at a later stage, the employee has a duty to explain the same. He cannot keep his eyes and ears closed and mouth shut when they are placed before him and expect the Court to ignore repeated instances of rash and negligent driving as enlisted below. If he had any bona fide defence he would not have kept quite before the Labour Court and this Court.
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S.No. Date Nature of misconduct
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1. 08.09.1978 Dashing against a bullock cart Warning.
2. 03.05.1976 Dashing against a cycle Severe warning.
3. 25.08.1976 Not completing full trip. Severe warning.
4. 18.07.1979 Causing brake-down Severe warning.
5. 30.03.1979 Dashing against an ox Severe warning.
6. 25.05.1978 Dashing against another vehicle. Reduction of Rs.150/- from the salary for a period of six months.
7. 16.12.1980 Driving in excess speed of
70 K.M. per hour . Condoned.
8. 15.11.1980 Rash and negligent driving
and causing loss to the
Corporation. Fined.
9. 15.01.1981 Rash and negligent driving. Warning.
10. 20.01.1981 Rash and negligent driving Warning.
11. 17.02.1981 Rash and negligent driving Warning.
12. 01.05.1981 Rash and negligent driving Severe warning.
13. 05.05.1981 Rash and negligent driving and Warning.
causing loss to the Corporation.
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12. A perusal of the above list will show that the employee appears to be guilty of chronic misconduct of dangerous and reckless driving. Out of 13 punishments, 11 punishments relate to reckless and negligent driving resulting in loss to the Corporation. There is no justification to retain such a person in service and letting him off each time with a warning which had absolutely no effect and had ultimately resulted in a fatal accident. Far from sympathising with the employee, this Court has to sympathise with the victims/public and the Corporation for the frequent loss sustained due to his rashness. If only he had been removed from service at least on the third or fourth occasion, a life would have been saved. This sort of letting off with a warning could not have happened in the private sector and a driver employed by the State Transport Corporation does not have the fundamental right to repeatedly cause loss to the Corporation as well as to the general public including loss of life. The manner in which such drivers are dealt with by the Corporation allowing them to remain in service in spite of repeated instances of reckless driving explains the alarming rate of accidents by Corporation buses. That the Labour Court should have ignored the said features and ordered reinstatement by also gifting all backwages, is very unfortunate.
13. Even ignoring the past misconduct, the specific instance which had led to the dismissal, viz., fatal accident has to be viewed seriously and that alone is sufficient to justify the order of dismissal. The Corporation also had to pay a huge amount as compensation. It is very pertinent to note that the Labour Court had not disagreed with the finding in the enquiry regarding rashness and negligence. Therefore, I am inclined to hold that the proof of the instant charge alone is sufficient to sustain the order of dismissal without any reference to the past misconduct.
14. Reference to acquittal by Criminal Court is irrelevant. Apart from the accepted proposition of law that in a departmental proceeding strict Rules of evidence are not applicable, the verdict before the Criminal Court is conditional and occassioned by several factors inclusive of proof beyond reasonable doubt. In contrast, it is noteworthy that in the claim petition, the Motor Accident Claims Tribunal had passed an award of Rs.1,07,944/- against the Corporation which is possible only after establishing negligence on the part of the driver. It is not the case of the employee that compensation by Motor Accidents Claims Tribunal was awarded due to no-fault liability. Proceedings before different fora have to be adjudicated on the basis of the evidence before the respective forum and the nature of the proceedings and proof which is required before each of the forum. No reference has been made to any statutory provision or binding judgment that on acquittal by the Criminal Court, the delinquent should be automatically relieved from the Departmental proceeding. This is also not a case of the Departmental enquiry having been conducted ex parte which may justify this Court to prefer the finding of the Criminal Court. The judgment of the Supreme Court to which frequent reference is made viz., PAUL ANTHONY v. BHARAT GOLD MINES LTD. is a case of ex parte departmental enquiry. In fact in the very same judgment, the Supreme Court had pointed out that proceedings in a Criminal case and the departmental proceedings operate in distinct and different jurisdictional areas and that the standard of proof required in the departmental proceedings is different than as required in a Criminal case and that while in the departmental proceedings the standard of proof is one of preponderance of the probabilities, in a Criminal case, the charge has to be proved beyond reasonable doubt. Therefore, it is not possible to accept the contention that the departmental proceedings should be automatically dropped on the acquittal by the Criminal Court.
15. Reference to the alleged settlement under Section 12(3) of the Industrial Disputes Act, to the effect that the departmental proceedings shall not be proceeded with in the event of acquittal by the Criminal Court is also of no help to the employee. To establish that such a settlement was prevailing, reference is made to the counter filed by the management in one of the interim applications before the Labour Court, Cuddalore. In the counter, it is admitted that there was a settlement before the Joint Commissioner of Labour. But it is also clearly stated that it was false to say that the persons acquitted in the Criminal case should be reinstated automatically and that the employee in this case was not honourably acquitted by the Criminal Court as required under the settlement and that therefore, the employee had no locus standi to invoke the provisions under the settlement. I would now consider whether the acquittal of the employee was honourable acquittal.
16. The following is the observation of the Criminal Court while acquitting the employee of charges under Sections 304 and 307 I.P.C. in C.C.No.299 of 1984 dated 6.3.1986, on the file of the Judicial First Class Magistrate, Tiruchy.
"nkw;fz;litfisa[k; kUj;Jt rhd;Wfisa[k; v/rh/1?d; Tw;W Mfpaitfis ftdpf;Fkplj;J ,we;jth; ngU:e;jpd; gpd;rf;fuk; Vwp jiy eRf;fg;gl;L ,we;Js;shh; vd;gJ bjspthf ,Ue;jhYk; vjphp ntfkhf ngU:e;ij Xl;o te;jjhnyh my;yJ ftdf;Fiwthf m$hf;fpuijahf ngU:e;ij Xl;oajhnyhjhd; rk;gtk; ele;Js;sJ vd;gJ epU:gpf;f ek;gj; jFe;j rhl;rpa';fspy;iy vd;gJ bjspthfpwJ/@
17. The above extract shows that the employee was acquitted only due to want of sufficient evidence and the acquittal was not a honourable one. There is much difference between a person being found "not guilty" or holding "charges not proved". The latter verdict as given in this case cannot be described as honourable acquittal. The finding is not to the effect either that the employee did not drive the vehicle or that he was totally not responsible for the accident, which can be treated as honourable acquittal. As already held proof of negligence before a Criminal Court and a Departmental proceeding is bound to vary and would depend on the evidence adduced before the respective forum and in fact negligence had been established before the Motor Accidents Claims Tribunal. Hence the employee is not entitled to rely upon the terms of settlement under Section 12(3) of the Industrial Disputes Act.
18. Therefore, in the result, the management is entitled to succeed and the order of the Labour Court directing reinstatement of the employee with backwages cannot be sustained. It is represented that a sum of Rs.50,000/- has already been paid to the employee. Considering the fact that the petitioner has already retired from service, while allowing the above writ petition, it is made clear that the amount received by the employee need not be repaid to the management. Even assuming that the order of dismissal is tainted with the technical defect of non-supply of the list of past punishments, he would be at best entitled to only some compensation and not for reinstatement having regard to the nature of the proved misconduct and the antecedents. In such an event, the employee may not be entitled to more than Rs.25,000/- as compensation, even ignoring the monetary loss caused to the Corporation. Yet taking into account that the employee had already retired from service, I am inclined to hold that the amount already received by him need not be repaid to the management.
19. Subject to the above observation, the writ petition is allowed. No costs. Connected miscellaneous petitions are closed as unnecessary.