Madras High Court
Tamilnadu State Transport Corporation ... vs The Presiding Officer
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED; 16.8.2012 CORAM: THE HONOURABLE MR.JUSTICE T.RAJA W.P.NO.21331 OF 2002 Tamilnadu State Transport Corporation (Villupuram Division -II) Limited,rep.by its General Manager Rangapuram, Vellore 9 ..Petitioner Vs. 1.The Presiding Officer Labour Court,Vellore 2.Ramalingam No.13, 2nd Street,Gandhi Nagar Arani ..Respondents Writ petition is filed under Article 226 of the Constitution of India praying for issuance of a writ of Certiorari calling for the records on the file of the 1st respondent in I.D.No.444 of 1994 and quash the impugned award dated 03.06.2001 made in I.D.No.444 of 1994. for petitioner: Mr.T.S.Vijayakumar for M/s King & Patridge for respondents: Mr.V.Ajoy khouse (for R2) R1-Court O R D E R
The present writ petition filed by the Tamil Nadu State Transport Corporation (Villupuram Division-II) Limited is challenging the correctness of the award passed by the learned Labour Court in I.D.No.444/1994 dated 03.06.2001, to quash the same and also to pass any suitable order as this Court deems fit.
2. The second respondent-Ramalingam who was appointed as a Driver in the services of the petitioner State Transport Corporation on 23.7.1986 said to have committed four accidents from 1986 to 1993 by driving rashly and negligently the Corporation bus. Though the second respondent was imposed with minor penalties by the petitioner State Transport Corporation on all these four occasions after proper enquiry, when he caused the accident on 10.4.1993 while driving the bus bearing Regn.No.TN-23-N-0359 from Arani to Madras, the second respondent unfortunately hit a lady who was standing on the extreme left end of the road and as a result, she died. For the abovesaid misconduct, a show cause notice was issued to the second respondent on 20.04.1993. After receipt of the said show cause notice, the second respondent submitted his explanation and after finding his explanation was not satisfactory, the domestic enquiry was conducted by an external enquiry officer by giving all reasonable opportunities to the petitioner and found him guilty and when a report was also submitted, a second show cause notice was also issued furnishing a copy of the report to the second respondent. Again, on the second show cause notice issued, the second respondent submitted his detailed representation. On receipt of the second respondent's representation, the disciplinary authority by considering the second respondent's past service records which mentioned that he had already suffered four other punishments for the accidents committed by him between 1986 and 1993, loosing complete confidence on the second respondent, issued the order of termination. In the meanwhile, a Criminal Case filed against the second respondent before the Judicial Magistrate, Arni in C.C.No.110/1993 was also pending. However, he was issued with the punishment of termination order. Finally, the second respondent after finding out the Labour Officer was unable to settle the matter by conciliation proceedings, raised an industrial dispute before the first respondent in I.D.No.444/1994. Even though the first respondent/Labour Court also after going through the records made available by both side came to the conclusion that the domestic enquiry was fair and proper and considering only one aspect that the criminal proceedings initiated by the petitioner State Transport Corporation against the second respondent had not established his guilt beyond all reasonable doubt and as a result finding that when the second respondent was acquitted of all the charges, the enquiry officer should have accepted the findings recorded by the criminal court and on that basis, allowed the Industrial Dispute No.444/1994 by order dated 03.06.2001 by giving a direction to the petitioner State Transport Corporation to reinstate the second respondent with continuity of service and also with the direction to pay full backwages. Aggrieved by the award passed in I.D.No.444/1994 dated 03.6.2001, the present writ petition is filed by the petitioner State Transport Corporation.
3.(i) Mr.T.S.Vijayakumar, the learned counsel appearing for the petitioner State Transport Corporation submitted that the petitioner Transport Corporation after finding the performance of the second respondent who frequently caused accidents, firstly, on 17.7.1987 he drove the bus carelessly by which he had caused left front wind screen glass completely broken, causing huge loss to the Corporation bus; secondly, when he was also found guilty of driving another bus on 8.9.1988 recklessly and carelessly and thereby caused damage to the Corporation bus; again, on the third occasion, on 1.7.1991, when he was driving another vehicle rashly and negligently and hit the motor-cycle coming in the opposite direction, he further caused damage to the petitioner Corporation bus for which also he was imposed with the punishment of postponement of increment for one year with cumulative effect; and again on the fourth occasion, namely, on 24.11.1991 when he was driving a bus bearing No.TN-23-N-0031 in route No.15, he was found rashly and negligently driving the vehicle and thereby caused damage to the petitioner Corporation bus to the tune of Rs.550/-, and again on 10.4.1993 caused fatal accident resulting in the death of the victim, only passed the order of punishment of termination. These repeated accidents caused by the second respondent though was brought on record before the Labour Court, Vellore, without even taking note of any of these evidences recorded by the enquiry officer, the Labour Court merely by looking into the findings of the Criminal Court in C.C.No.110/1993 erroneously came to the conclusion that the disciplinary authority has completely forgotten to comply the criminal court's order as it is binding upon them.
(ii) According to the learned counsel appearing for the petitioner State Transport Corporation, the standard of proof required to be established before the criminal court is completely different from that of the standard of proof to be produced before the domestic enquiry. As the criminal court has to apply the standard of proof beyond reasonable doubt, the enquiry officer has to apply the standard of proof of preponderance of probabilities. While applying correctly the standard of proof the enquiry officer has properly considered the report submitted by the Inspector who visited the accident spot and after enquiring the relevant witnesses, namely, the owner of the petty shop and two other persons submitted his written report that the victim was standing far away from the road. But, only the second respondent had committed the serious fatal accident by driving the vehicle away from the main road. When this evidence was not even properly disproved by the second respondent, the Labour Court by holding that no eye-witness was examined by the petitioner State Transport Corporation, again wrongly came to a different conclusion by substituting its own view in the place of the finding recorded by the enquiry officer. As this approach is totally unknown to law, the impugned award passed by the first respondent-Labour Court, Vellore is liable to be set aside.
(iii) The learned counsel for the petitioner State Transport Corporation further pleaded that after the award was passed by the first respondent, when this Court directed the petitioner Transport Corporation to reinstate the second respondent, the petitioner Transport Corporation instead of paying 17(B) wages, thought it fit to reinstate the second respondent. As a result, the second respondent who was subsequently reinstated into the service of the petitioner Transport Corporation, reached the age of superannuation on 31.7.2005 and retired from the service of the petitioner Transport Corporation. Thereafter, when there was an order already passed by this Court to deposit the amount of Rs.1,30,000/- the same was also deposited by the petitioner Transport Corporation. Out of this Rs.1,30,000/-, the second respondent was allowed to withdraw Rs.50,000/-. The balance amount of Rs.80,000/- is still pending on the file of the first respondent-Labour Court. Therefore, the learned counsel for the petitioner prays before this Court that if this Court finally comes to the conclusion that the impugned award is liable to be interfered with, the entire amount deposited by the petitioner Transport Corporation, namely, Rs.1.30,000/- should be ordered to be withdrawn by the petitioner Transport Corporation.
(iv) The learned counsel for the petitioner Transport Corporation has relied on two of the judgments of this Court as well as Apex Court in support of his submissions. He also relied upon the judgment of the Apex Court in DIVISIONAL CONTROLLER, KSRTC (NWKRTC) V. A.T.MANE reported in JT 2004 8(SC) 103 to say that in a domestic enquiry all the strict and sophisticated rules of Evidence Act may not apply. Further, he submitted that fair play is the basis and if the perversity of arbitrariness, bias or surrender of independence of judgment, vitiate the conclusion reached, such a finding, even of a domestic tribunal, cannot be held to be good. His further argument shows that it is the duty of the Labour Court or Industrial Tribunal to see, was there some evidence or was there no evidence. For the reason sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny by court, while absence of any evidence in support of the finding is an error of law apparent on the record and the court can interfere with the finding. But in the present case, the evidence of Inspector is carrying more weightage which also has got relevant to the charge. But the Labour Court has completely misdirected itself in insisting upon the evidence of the ticketless passengers and also the other eye witnesses. Though the Inspector tried to get their statements, but the passengers declined to give any such statement. This was also properly recorded in the written report submitted by the Inspector. However, when the Inspector who visited the spot has given a clear cut evidence that the victim was fatally hit by the bus driven by the second respondent while she was standing away from the road and that evidence was also properly accepted in the domestic enquiry, it is not open to the Labour Court to differ from the statement unless it was satisfactorily disproved by the second respondent by producing any acceptable evidence. As the second respondent has not done so, the Labour Court has committed a serious mistake. On that basis, the learned counsel placed heavy reliance on the judgment of the Apex Court mentioned supra to allow the present writ petition by holding that the approach adopted by the Labour Court was totally unacceptable.
(v) Finally, the learned counsel for the petitioner submitted that when the petitioner State Transport Corporation has taken a different stand before the MCOP Tribunal by deposing before the said Tribunal that the victim was crossing the road, the said evidence given by the petitioner State Transport Corporation was rejected by the Tribunal. Ultimately, the Motor Accidents Claims Tribunal, Arni, in M.C.O.P.No.112/97 has found against the petitioner Corporation and ordered to pay the suitable compensation. Therefore, the argument advanced by the learned counsel for the second respondent that the petitioner Transport Corporation has taken double stand regarding the place of victim at the time when the accident took place, need not be given any more importance to disbelieve the case of the petitioner State Transport Corporation. On these basis, the learned counsel for the petitioner State Transport Corporation prayed for interference.
4.(i) In reply, Mr.V.Ajoy Khouse, the learned counsel appearing for the second respondent heavily submitted that it has been the consistent view of this Court as well as the Apex Court that wherever accident takes place the Court is of the view when there is no eye-witness supporting the case of the management, it is not proper to find fault with the innocent driver on any surmises. But, in the present case, according to him, when the accident took place on 10.04.1993 though the petitioner State Transport Corporation bus driven by the second respondent badly hit the victim, it was the stand before the enquiry officer as well as the Labour Court that the victim only crossed the road. But, disproving the case of the second respondent, the petitioner State Transport Corporation has neither produced any evidence before the enquiry officer nor before the Labour Court, atleast by bringing the Conductor who was also the person in the bus at the time of accident. Further, the Inspector who also subsequently visited the accident spot has also not thought fit to examine the Conductor or any of the passengers. Therefore, when the criminal case filed by the petitioner State Transport Corporation against the second respondent was disbelieved by the criminal court, the benefit of the said finding and conclusion reached by the criminal court in C.C.No.110/1993 should have been accepted by the enquiry officer, if not, atleast by the disciplinary authority. But when the disciplinary authority has wrongly accepted the findings recorded by the enquiry officer, as a result, the second respondent was visited with the major punishment of termination from service ignoring his 25 years of service, the Labour Court rightly pointed out the mistake and infirmity committed by the enquiry officer that he has miserably failed to examine atleast the Conductor, if not any of the passengers, hence it finally concluded that the case of the petitioner Transport Corporation cannot be accepted. Therefore, the second respondent though had admitted the fact that the victim died on 10.4.1993 due to accident caused by the bus driven by the second respondent, there was no specific finding given by the enquiry officer, on this issue. Therefore, the Labour Court-first respondent has rightly come to the conclusion that the second respondent was not responsible for the fatal accident.
(ii) In support of his submissions, he relied upon the judgment of this Court in PANDIAN ROADWAYS CORPORATION, LTD. (REPRESENTED BY ITS MANAGING DIRECTOR), MADURAI, v. PRESIDING OFFICER, ADDITIONAL LABOUR COURT, MADURAI AND ANOTHER (2002 (1) LLN 348) to say that in the absence of any explanation for not examining the eye-witnesses no reliance can be given to the uncorroborated evidence of the Assistant Engineer.
(ii) The learned counsel for the second respondent further relied on another judgment of this Court rendered in KALYANASUNDARAM V. MANAGEMENT OF TAMIL NADU STATE TRANSPORT CORPORATION, KUMBAKONAM 612 001 AND ANOTHER reported in 2012 II LLJ 698 to say that when the criminal court has given a finding in favour of the driver, the domestic officer has no other option except to exonerate the same driver by accepting the findings of the criminal court by dismissing the charge of negligence driving.
(iii)In his further submission the learned counsel for the second respondent also pleaded that when the judgment of the criminal court was also passed during the pendency of the industrial dispute before the Labour Court, unfortunately, the domestic enquiry was not having the benefit of receiving the findings of the criminal court. However, when it was brought to the notice of the Labour court, the Labour Court accepting the findings and the stand taken by the both side when the petitioner Corporation was unable to explain any proof and the charge of negligent driving that unfortunately caused the fatal accident, has passed the award disagreeing with the findings of the enquiry officer and therefore, taking a different view may not be justifiable. On that basis, the learned counsel appearing for the second respondent sought to uphold the award passed by the Labour Court.
6. I fully disagree with the arguments made by the second respondent for more than three reasons.
(i) Firstly, the second respondent while he was appointed as Driver in the petitioner Corporation admittedly caused repeated accidents from 1986 to 1993. In fact on 17.7.1987 when he drove the bus he was found guilty of the charges levelled against him. As a result, he was made to pay a fine of Rs.50/- from his salary by order dated 17.10.1989. Again, on the second occasion, on 08.9.98 he was again driving the bus bearing No.TML 2730 and caused second accident by dashing against another bus TMA 3060 which was coming in the opposite direction and caused heavy damage to the vehicle. In view of this accident by another order dated 19.12.1989 he was fined with another fine of Rs.500/-that was also recovered from his salary in 10 instalments. Thereafter, again he suffered another punishment of postponement of increment for one year with cumulative effect for having driven another vehicle rashly and carelessly overtaking a bullock cart recklessly and hit a motor cycle coming on the opposite direction and thereby causing fatal accident. Fourthly, by order dated 1.7.1992 for having driven carelessly on 24.11.91 the bus bearing No.TN-23-N-0031 in route No.15, he was also found guilty of rash and negligent driving for which also he paid Rs.100/- recovered from his salary in 4 instalments.
(ii)That apart, when the present dispute which is also relating to the fatal accident took place on 10.4.1993, the Inspector from the petitioner Transport Corporation inspected the accident spot on 10.4.1993. After visiting the accident spot he had enquired with the nearby shop owners and one of the shop owners has given a detailed explanation about how the accident took place in that site in which the victim died due to accident. Further, the written report submitted by the Inspector also shows that when he requested the shop owner one Sulaiman to give a written letter informing the exact location at which the victim was standing at the time of the accident, he refused to accede to the request, that was also recorded. Therefore, it is not known on what basis the learned Labour Court has completely lost sight of all these evidences.
(iii)Though the past records of the second respondent were also brought to the notice of the Labour Court-the first respondent along with the report submitted by the Inspecting Officer, in my considered opinion, the learned Labour Court should have accepted the case of the petitioner Corporation. In this context it is necessary to refer to the judgment of the Apex Court in AMRIT VANASPATI CO.LTD. KHEM CHAND AND ANOTHER(AIR 2006 (SC) 2739) in which the Apex Court has held that the High Court is justified in its writ jurisdiction to interfere with the factual findings of the Labour Court based on appreciation of facts and evidence when the Labour Court commits error of loosing its judicious site to the material evidence on record and also repeated fatal accidents for which the employee was given various punishments as a matter of opportunity to improve his work performance.
(iv) Similarly, the Apex court in one another judgment in DIVISIONAL CONTROLLER, KSRTC (NWKRTC) v. A.T.MANE (JT 2004(8) SC 103) has again held that once a domestic tribunal based on evidence comes to a particular conclusion holding that the employee is guilty of the charges levelled against him by the management, such a conclusion normally should not be disturbed by substituting its own view in the place of the one arrived at by the domestic Tribunal, more particularly, when the evidence of the Inspector who after visiting the accident spot submitted a report indicating that the employee is found guilty of rash and negligent driving. In the present case, when there were sufficient evidence produced by the petitioner management before the domestic Tribunal along with past records of the second respondent which also show that the second respondent has committed repeated fatal accidents and thereupon when the domestic tribunal came to a particular conclusion, normally it is not open to the appellate tribunals, namely, the Labour Court to substitute its subjective opinion.
(v) In view of that, this Court fully disagrees with the reasoning given by the Labour Court, inasmuch as the Labour Court wrongly lost site of the repeated accidents committed by the second respondent, hence, this court is inclined to set aside the same and accordingly, set aside.
8. It is also made clear that the second respondent having been reinstated in service during the pendency of the writ petition, by the order passed by this Court at the time of entertaining the writ petition he has also withdrawn a sum of Rs.50,000/- leaving Rs.80,000/- on the file of the first respondent. Therefore, by taking into account the peculiar circumstances in which the present case is placed before this Court, this Court finding that it will be difficult to the petitioner State Transport Corporation to recover the money from the second respondent, thought it fit to direct the petitioner not to recover Rs.50,000/-, from the second respondent, but to take steps to withdraw the balance amount, namely, Rs.80,000/- which is lying on the file of the first respondent.
9. With this observation, this writ petition is allowed. No costs.
index:yes 16.08.2012
internet:yes
sal
To
1.The Presiding Officer
Labour Court,Vellore
2.Ramalingam
No.13, 2nd Street,Gandhi Nagar
Arani
T.RAJA,J.
(sal)
W.P.NO.21331/2002
16.08.2012