M. Thirunavukkarasu v. 0 307 Sivagangai District2. The Managing Director Tamilnadu State Transport Corporation (Kumbakonam

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 01-10-2007CORAM :THE HONOURABLE MR.JUSTICE A. KULASEKARANW.P. No. 20319 of 2004M. Thirunavukkarasu.. Petitioner Versus1. The General Manager Tamilnadu State Transport Corporation (Kumbakonam Division III) Ltd Maruthupathy, Managiri Road Karaikudi – 630 307 Sivagangai District2. The Managing Director Tamilnadu State Transport Corporation (Kumbakonam Division III) Ltd Maruthupathy, Managiri Road Karaikudi – 630 307 Sivagangai District.. RespondentsPetition filed under Article 226 of The Constitution of Indiapraying for a Writ of Certiorarified Mandamus as stated therein.For Petitioner :Mr. M. Thirunavukarasu Party-in-PersonFor Respondents:Mr. Rajnish PathiyalORDERThe petitioner has come forward with this writ petition praying fora Writ of Certiorarified Mandamus calling for the records relating to theorder passed by the first respondent in TNSTC/TS/D6/32 dated 22.12.2003and confirmed by the second respondent in Ref.No. TNSTC/Kumb/ Thovoo/95dated 26.04.2004, quash the same and consequently direct the respondentsto reinstate the petitioner with all backwages and other servicebenefits. https://hcservices.ecourts.gov.in/hcservices/

2.The petitioner appeared party in person and he submitted asfollows:-The petitioner was appointed as driver in the respondentscorporation on 17.10.1991 and he received several accident free awards.On 04.05.2002 when he was driving the bus bearing No. TN-63-0675 fromSivagangai to Karaikudi, at about 7.55 p.m. while nearing Kundrakudi, inorder to avoid head on collision with the vehicle coming in the oppositedirection, he applied sudden brake, however, the bus dashed thestationary jeep and a private bus parked on the other side of the road.In the said accident, two persons died on the spot and four persons wereinjured, but none of the passengers boarded on the bus driven by thepetitioner were affected or suffered any injuries. Thereafter, the firstrespondent placed the petitioner under suspension from 07.05.2002 and acharge memo was issued on 13.05.2002, for which the petitioner hassubmitted a reply dated 18.05.2002 denying the charges. Not satisfiedwith the reply submitted by the petitioner, an enquiry officer wasappointed, who delayed in completing the enquiry, however submitted hisreport on 29.06.2002. In the meantime, the first respondent has revokedthe order of suspension on 10.06.2002. On receipt of the enquiry report,the first respondent issued second show cause notice dated 16.07.2002calling upon the petitioner to submit as to why he should not bedismissed from service, for which the petitioner has submitted his replyon 28.07.2002 denying all the charges and submitted that the accidentoccurred due to mechanical defect, however, the first respondent haserroneously passed the order dated 22.12.2003 dismissing the petitionerfrom service. Aggrieved by the said order of dismissal, the petitionerhas filed an appeal before the second respondent on 17.01.2004, who,without properly considering the case of the petitioner rejected theappeal by its order dated 26.04.2004. The respondents also filedApproval Petition No.404 of 2003 before the Joint Commissioner of Labour(Conciliation) Chennai under Section 33 (2) (b) of the IndustrialDisputes Act, 1947 and the said authority has passed an order dated22.12.2006 erroneously according approval for the dismissal. The chargeslevelled against the petitioner was that he driven the vehicle in a rashand negligent manner, but the enquiry officer, in his report gave afinding that he drove the bus in a sleepy mood, hence, the accidentoccurred. The respondents failed to note that the petitioner hasreported certain defects in the gear box of the bus and written it in theday to day maintenance register but the authorities without carrying outthe repairs directed the petitioner to ply the vehicle. Thus, theaccident occurred due to the mechanical defect for which the petitionernot to be held responsible, which facts were not at all considered by theenquiry officer or the respondents. The stationary jeep was on the otherside of the road without light when the petitioner applied sudden braketo avoid head on collision with the vehicle came in opposite direction,but his bus was dragged to the other side due to mechanical defect andhit against the stationary jeep and bus, however no one in the bus drivenby the petitioner affected or sustained injuries, which itself show thatthe bus was driven with due care and diligence by the petitioner. Thefirst respondent imposed only lesser punishment to the drivers whoinvolved in similar accidents as mentioned below:- https://hcservices.ecourts.gov.in/hcservices/ S.No. Name of the Persons diedPunishment Driverimposed1)A. Maria JosephTwo cyclistsNo punishmentNo.86228died at the spotKaraikudi Branchat Amaravathi Pudhur2)S. Prem SahibThree persons diedStoppage ofNo.86036while travellingincrement forKaraikudi Branchin Maruthi Car atthree yearsMathur near Trichy3)ThavasiTwo Motor CyclistsStoppage ofDriver No.83116died in the spotincrement forSivaganga Branchat Manamaduraitwo years4)S. DurairajTwo Constables died - do -No.96078while travelling inKaraikudi Brancha car at Melur,Madurai5)K. KandasamyTwo pedestrians - do -No.94046belonging to MDMKKaraikudi BranchPolitical partydied at MaduraiThe above said facts prove that the petitioner alone wasdiscriminated by the respondents and inflicted with major punishment ofdismissal from service for extraneous reasons. The order of dismissalpassed by the first respondent is not based on the enquiry reportrelating to the present charge memo but only based on the previouspunishments imposed on the petitioner and if the first respondent want torely on the said previous punishments, he should have been given anopportunity to explain his case, but no such opportunity was given tohim, hence, the order of dismissal passed by the first respondent isviolative of principles of natural justice. The first respondent haspassed a non-speaking order by relying upon the earlier punishmentswithout discussion about the present charges or the evidence adduced byboth sides and the second respondent/appellate authority also, in theabsence of any valid evidence erroneously confirmed the order passed bythe first respondent and prayed for quashing of both the orders.3.The learned standing counsel appearing for therespondents/corporation submitted as follows:-The petitioner, while driving the bus bearing No. TN-63-0675 causedfatal accident on 04.05.2002 in a trip from Sivagangai to Karaikudi atKundrakudi. The said accident occurred due to the rash and negligentdriving of the petitioner in which two persons died on the spot and fourpersons sustained injuries and all the vehicles involved were damaged.The petitioner was placed under suspension immediately, a charge memo wasissued for which he submitted his explanation, which was notsatisfactory, hence, a domestic enquiry was ordered. The enquiry officerappointed by the corporation conducted detailed enquiry and submitted his https://hcservices.ecourts.gov.in/hcservices/ report that charges against the petitioner were proved. The firstrespondent, considering the report of the enquiry officer and theevidence on record found that the charges against the petitioner isproved. Thereafter, the first respondent has issued second show causenotice for which the petitioner also submitted his explanation andthereafter, the order of dismissal from service was passed by the firstrespondent. Prior to the said accident, the petitioner visitedpunishments of warning on four occasion; recovery order was passed onthree occasion; suspended for misbehaviour on one occasion and incrementcut for misbehaviour. Considering the past records of the petitioner andthe gravity of the offence committed by him, the first respondent hasrightly passed the order of dismissal dated 22.12.2003 and the same wasconfirmed by the second respondent. The respondents have also filedApproval Petition No. 404 of 2003 before the Joint Commissioner of Labour(Conciliation) Chennai, who after careful consideration of the evidenceon record accorded approval by order dated 22.12.2006 stating that properdomestic enquiry was conducted by the respondents in accordance with therelevant standing order after following the principles of naturaljustice; that prima facie case for dismissal based on legal evidenceadduced in the domestic enquiry, rejected the plea that respondentsadopted unfair labour practice and one month wage was paid to thepetitioner and the respondents have applied for approval within sevendays. It is incorrect to state that the petitioner has received severalaccident free awards, the fact remains that during the year 2001-2004, hehas received only one accident free award. 4.This Court carefully considered the argument of both sides andperused the records. The charge against the petitioner was on04.05.2002, while he was driving the vehicle bearing No. TN-63-0675 fromSivagangai to Karaikudi, at about 7.57 p.m. when the bus was in betweenKundrakudi and Padharakudi, driven in a rash and negligent manner,crossed the central line of the road, run over the stones which were kept25 feet away from the place where a stationary jeep and bus were parked,as a mark to show that they were parked for carrying out repairs anddashed against both. In the said accident, two persons who were carryingout the repairs of the bus died on the spot and four others accompaniedthem were injured and damages were caused to the private bus to the tuneof Rs.5,000/- and also to the bus belonging to therespondents/corporation thereby committed the offence mentioned in clause16 (k) and (q) of the standing orders of the corporation. After the saidaccident, one Murugan, Branch Manager, who was later examined as PW1,inspected the scene of occurrence at 12.00 Noon on 05.05.2002 andsubmitted his report stating that the accident took place due to the rashand negligent driving of the petitioner. Pursuant to the said report,charge memo dated 13.05.2002 was issued to the petitioner calling uponhim to submit his explanation and the petitioner also submitted hisexplanation dated 18.05.2002.5.In the explanation, the petitioner has denied all the chargesand stated that a vehicle which came in the opposite direction was drivenrashly and negligently, in a zig zag manner with bright headlights, inorder to avoid head on collision, he drove the bus to the right side ofthe road, slowed down it for a while so that the said vehicle proceedingfrom opposide side be allowed to cross, but the brake efficiency was inpoor condition, it dashed against the jeep and the bus; that seven daysprior to the occurrence, the petitioner has written in the day-to-day https://hcservices.ecourts.gov.in/hcservices/ register maintained by the respondents corporation about the mechanicaldefect and that one Premsa Sahib, another driver of the said bus alsoreported mechanical defect, but the Corporation Assistant EngineerSelvaraj neither taken steps to repair it nor gave spare bus andrequested the petitioner to ply the same by adjusting it. Even on thedate of accident, the brake condition was not good, hence, the petitionerwas constrained to approach a mechanic, who adjusted it, however, it wasnot corrected fully, thus, the said mechanical defect was the reason forthe accident; that within half an hour of the accident, one Bothalingam,who was incharge of night duty of the corporation workshop came to thespot and inspected, who was the correct person to submit the basicreport, but the respondents/management deliberately sent the saidMurugan, Branch Manager, who was enemical to him to submit basic reportwhich was relied on for issuing the charges. 6.It is true that in the explanation submitted by the petitionerthe above mentioned averments are found mentioned, but during theenquiry, he has not chosen to examine the said Bothalingam or Co-driverPremsa Sahib nor summoned the documents relied on by him namely day-to-day maintenance register etc., Even though the petitioner was allowed tohave an Assistant to represent him, he strangely refused to avail thesame. The defence taken by the petitioner was that the bus was not in onroad condition, which was the reason for the accident, if so, it is notknown as to how he has chosen to ply it or continued the trip. It isalleged by the petitioner that he saw a vehicle coming in the oppositedirection with bright headlights in a zig zag manner, to avoid head oncollision, he crossed the central line, went to the right side of theroad to slow down near the jeep which was parked on the right side of theroad and to allow the said vehicle to cross. No driver take such anerroneous decision, if at all, to avoid accident, the vehicle could betaken to the left extreme.7.One another adverse factor found in the explanation submittedby the petitioner was the brake mark of the bus found in the road was instraight line upto the place where the jeep was parked. The enquiryofficer pointed out the said brake mark, coupled with the evidence ofMurugan and came to a conclusion that the brake efficiency of the bus wasgood, hence, this Court is unable to accept the said contentions of thepetitioner that the vehicle was not driven in a rash and negligent manner.8.The enquiry officer gave opportunity to the petitioner tocross-examine the witnesses on the side of the respondents/corporationand based on their evidence gave a finding that the charges against thepetitioner are proved, hence, this Court is of the view that the enquirywas proper and valid.9.It is not in dispute that the petitioner was served withenquiry report along with second show cause notice and called upon togive his explanation. In the said second show cause notice, the firstrespondent has also pointed out the previous punishments visited by thepetitioner and proposed the punishment of dismissal. It is incumbentupon the authority to give the delinquent at the second stage reasonableopportunity to show cause against the proposed punishment and if theproposed punishment is also based on his previous punishment or his badrecord, it should be included in the second show cause notice so that hemay be able to give his explanation. A delinquent must be given a https://hcservices.ecourts.gov.in/hcservices/ reasonable opportunity not only to prove that he is not guilty of thecharges levelled against him but also that the proposed punishment to beimposed is either not called for or is excessive. Therefore, it isnecessary that the delinquent must be told of the ground on which it isproposed to take such action. If the grounds are not mentioned in thenotice, it is impossible for him to predicate what is operating in themind of the authority concerned in proposing a particular punishment, hewould not be in a position to explain why he does not deserve anypunishment at all or such punishment proposed is excessive. If theproposed punishment was based on the previous record of the delinquentand that was not disclosed in the notice, it would mean that main reasonfor proposed punishment was withheld from the knowledge of thedelinquent. It would be no answer to suggest that delinquent must havehad knowledge of the fact that his previous record would necessarily tobe taken for consideration by the authorities in inflicting thepunishment on him nor it would be a adequate answer to show that he knowas a matter of fact that the earlier punishments were imposed on him orthat he knew of his past record. AIR 1964 SC 506 (State of Mysore vs.Mache Gowda) In this case, as mentined above, in the second show causenotice, the previous punishments visited by the petitioner were indicatedand explanation was called for from him, which is also in accordance withlaw.10.The averment that other drivers involved in similar accidentswere awarded with lesser punishment but the petitioner was awardedcapital punishment of dismissal, which amounts to discrimination isconcerned, each case has to be decided on its own merits, hence, the saidcomparison is also untenable in law. 11.The argument of the petitioner was that the first respondenthas not passed a speaking order. In departmental proceedings, theDisciplinary authority is the sold Judge of facts and in case an appealis presented to the Appellate Authority, the Appellate Authority has alsothe power/and jurisdiction to re-appreciate the evidence and come to itsown conclusion, on facts, being the sole fact finding authorities. Oncefindings of fact, based on appreciation of evidence are recorded, theHigh Court in Writ Jurisdiction need not normally interfere with thosefactual findings unless it finds that the recorded findings were basedeither or no evidence or that the findings were wholly perverse and/orlegally untenable. The adequacy or inadequacy of the evidence is notpermitted to be canvassed before the High Court. Since the High Courtdoes not sit as an Appellate Authority over the factual findings recordedduring the departmental proceedings, while exercising the power ofjudicial review, the High Court cannot normally speaking substitute itsown conclusion, with regard to the guilt of the delinquent, for that ofthe departmental authorities. Even insofar as imposition of penalty orpunishment is concerned, unless the punishment or penalty imposed by theDisciplinary or the Departmental Appellate Authority, is eitherimpermissible or such that it shocks the conscience of the High Court, itshould not normally substitute its own opinion and impose some otherpunishment or penalty. Followed (Apparel Export Promotion Council vs.A.K. Chopra) AIR 1999 SC 625. This Court finds no such elements in thiscase. https://hcservices.ecourts.gov.in/hcservices/

12.In view of the above discussion, this Court is of the view thatinterference of this Court is not warranted in the well considered orderpassed by the respondents, hence, the writ petition is dismissed. Nocosts. rshSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo1. The General Manager Tamilnadu State Transport Corporation (Kumbakonam Division III) Ltd Maruthupathy, Managiri Road Karaikudi – 630 307 Sivagangai District2. The Managing Director Tamilnadu State Transport Corporation (Kumbakonam Division III) Ltd Maruthupathy, Managiri Road Karaikudi – 630 307 Sivagangai District+1 cc to Mr.Rajnish Pathiyil, Advocate Sr.No.61183.RA(CO)dcp/5.10WP No. 20319 of 2004