1999 WRITWRIT PETITION NO.2685 OF 1999 ) The Brihan Mumbai Mahagagar Palika v. The BEST Workers’ Union

2d,2e & 2f having their address at Narahan ) Hudama, Post Kirakat, Dist.Jaunpur (U.P.) ) ) ) ) ) ) ) the Presiding Officer, VIIth Labour ) Court at Mumbai, having his Court and ) ) Office at New Administrative Bldg, ) Bandra (E), Mumbai - 400 051. ) ) Member, Industrial Court, Maharashtra, ) at Mumbai, having his Court and Office ) ) at New Administrative Bldg, Bandra ).Respondents (East), Mumbai - 400 051. (Orig.Respondents)

4. Shri Q.J. Shaikh, ....... Mr. S.K. Talsania, Sr.Counsel i/by M/s. M.V. Kini & Co. for appellant Mrs. Neeta P. Karnik for respondent No.2 ...... CORAM : SMT RANJANA DESAI & : SMT RANJANA DESAI & CORAM CORAM : SMT RANJANA DESAI & SHRI K.K.TATED, JJ. K.K.TATED, JJ. SHRISHRI K.K.TATED, JJ. DATE ON WHICH THE JUDGMENT IS RESERVED : 29/09/2008 ON WHICH THE JUDGMENT IS RESERVED : 29/09/2008 DATEDATE ON WHICH THE JUDGMENT IS RESERVED : 29/09/2008 DATE ON WHICH THE JUDGMENT IS PRONOUNCED: 06/10/2008 ON WHICH THE JUDGMENT IS PRONOUNCED: 06/10/2008 DATEDATE ON WHICH THE JUDGMENT IS PRONOUNCED: 06/10/2008 JUDGMENT : (PER K.K. TATED, J) : (PER K.K. TATED, J) JUDGMENT JUDGMENT : (PER K.K. TATED, J)

1. The General Manager, BEST undertaking preferred this appeal against the oral Judgment dated 24th August, 2001 passed by the learned Single Judge in Writ Petition No.2688 of 1999 dismissing the Writ Petition preferred against the order passed by the Member, Industrial Court, Mumbai dated 16th July, 1999 dismissing the : 3 : appeal preferred by the appellant against the order dated 22nd April, 1999 passed by the Presiding Officer, Labour Court, Mumbai reinstating respondent No.2 in service of the appellant by setting aside the order of the Enquiry Officer dismissing respondent No.2 from service on holding that the charge levied against him was proved.

2. The facts giving rise to this appeal, briefly stated, are that on 4th September, 1986, Bus No.3589 (MRL 6460) of route No.260 was being driven by respondent No.2 and while it was proceeding towards Jogeshwari Railway Station at about 17.40 hours, when it was opposite Mahatma Gandhi School near Behram Baug Naka, an accident took place and a boy aged about 13 years was knocked down by the bus and died on the spot. The bus stopped at a distance of about 300 ft. from the spot of the accident. The respondent No.2, employer of the appellant, the bus driver who was driving the bus involved in the accident was charged by the appellant of gross negligence in driving the bus at the time of the accident and he was served with a charge-sheet under SO 20 (J). The Enquiry Officer held that the charge levelled against the respondent No.2 was proved and respondent No.2 was dismissed w.e.f. 27th February, : 4 :

1987. The two internal appeals preferred by respondent No.2 were dismissed by the Assistant Traffic Superintendent, Goregaon Depo and the Chief Development Advisor respectively.

3. The first respondent union espousing the cause of respondent No.2 filed an application being Application (BIR) No.04 of 1988 under Section 78 and 79 of the Bombay Industrial Relations Act, 1946. The Labour Court by order dated 22nd April, 1992 allowed the application, holding that findings of the Enquiry Officer were perverse. He held that the charge levelled against the respondent No.2 was not proved and, therefore, the Labour Court set aside the dismissal of the respondent No.2 and ordered his reinstatement with full back wages.

4. Being aggrieved, the appellant preferred an Appeal before the Industrial Court being Appeal (IC) No.79 of 1992 under Section 84 of the Bombay Industrial Relations Act, 1946. The Industrial Court dismissed the appeal and confirmed the order passed by the Labour Court. The Writ Petition No.2685 of 1999 preferred by the appellant against the said order of the Industrial Court was dismissed by the Single Judge of this Court on : 5 : 24th August, 2001.

5. Being aggrieved by the dismissal of the Writ Petition, the appellant preferred the present Appeal.

6. Learned senior counsel appearing for the appellant took us through the statement of respondent No.2 recorded in the enquiry. He also took us through the statement of Shri. Mohd.Ibrahim Khan Nawab Ali Khan, brother of the deceased boy. He also pointed out the submission of the Special Officer and also relied on the observations and findings recorded by the Senior Traffic Officer, Goregaon (Trying Officer) in his order dated 27th February, 1987. He also read to us paragraphs 32 and 33 of the order passed by the Presiding Officer, 7th Labour Court, Mumbai dated 22nd April, 1992, in which the Labour Court recorded that the assault on the driver had taken place prior to the accident.

7. We have gone through the statements of the witnesses recorded during the enquiry, order of the Enquiry Officer, order of the Labour Court, Order of the Industrial Court and also Judgment and order passed by the learned Single Judge of this Court in Writ Petition : 6 : No.2685 of 1999 and we find that the concurrent findings of the Laour Court, Industrial Court and learned Single Judge of this Court are fully supported by the evidence on record. The only witness examined in the enquiry is Shri Mohd. Ibrahim Khan, brother of the deceased boy, but he left while under cross-examination and was not thereafter available for the cross-examination by the respondents. Hence, his evidence has been rightly rejected by the Labour Court. The statement of respondent No.2 is that immediately prior to the accident the brother of the deceased boy and some other entered into the bus and assaulted him and thereafter he could not hear the bell rang by the Conductor. As he did not stop the bus, the Conductor approached him and he told him that a boy was knocked down and in the mean while the assailants heard the shouts that the Police had arrived, and they get down from the bus and ran away. According to the driver and the conductor, a boy was not knocked down by the left front wheel of the bus but he was knocked down by the rear side portion of the bus. The defence statement of the respondent No.2 is fully supported by the Conductor and the same has been accepted by the Labour Court, Industrial Court and learned Single Judge of this Court. We see no reason to differ with the concurrent findings of facts recorded by : 7 : the Courts below and confirmed by learned Single Judge. Hence, the Appeal is dismissed.

8. At the time of admission of the Appeal, this Hon’ble Court by order dated 30th April, 2002 directed the appellant to deposit 50% of back wages within a period of 8 weeks and allowed the respondent workman to withdraw the said amount on furnishing a written undertaking that he would bring back this amount with interest, if so directed by this Court. As we have dismissed the above mentioned appeal, we hereby direct the appellant to deposit remaining 50% of back wages payable to respondent No.2 within a period of 8 weeks from the date of communication of the present order to them. The written undertaking furnished by the respondent No.2 stands cancelled as the instant Appeal is dismissed by us. In view of the above mentioned facts, we pass the following order :- OOO R D E R R D E R R D E R (a) The Appeal preferred by Brihan Mumbai Mahanagar Palika against oral Judgment dated 24th August, 2001 in Writ Petition NO.2685 of 1999 is dismissed with costs. : 8 : (b) The Appellants are directed to deposit the remaining 50% back wages payable to the late respondent No.2 worker within a period of 8 weeks in this Hon’ble Court. (c) The legal heirs of the respondent No.2 are entitled to withdraw the amount deposited by the Appellant towards 50% back wages without furnishing any security. JUDGE JUDGE JUDGE JUDGE JUDGE JUDGE