Tamil Nadu State Transport Corporation (Salem Division II) v. I. Basha

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 5-11-2009CORAMTHE HONOURABLE MR.JUSTICE N.KIRUBAKARANW.P.Nos.6565 of 2003and W.P.No.9964 of 2004W.P.No.6565 of 2003The Managing DirectorTamil Nadu State Transport Corporation(Salem Division II)Ltd.,Bharathipuram,Dharmapuri-5. ..PetitionerVersus1.I.Basha2.The Presiding Officer, Labour Court, Salem. ..RespondentsW.P.No.9964 of 20041.I.Basha ..PetitionerVersus1.The Presiding Officer, Labour Court, Salem.2.The Managing Director Tamil Nadu State Transport Corporation (Salem Division-II)Ltd., Bharathipuram, Dharmapuri-5. ..RespondentsW.P.No.6565 of 2003Writ Petitions filed under Article 226 of Constitution of Indiapraying for the issuance of Writ of Certiorarified Mandamus callingfor the records dated 11.7.2002 and made in I.D.No.15 of 1998 on the https://hcservices.ecourts.gov.in/hcservices/ file of the Labour Court, Salem the second respondent herein andquash the same.W.P.No.9964 of 2004Writ Petitions filed under Article 226 of Constitution of Indiapraying for the issuance of Writ of Certiorarified Mandamus callingfor the records relating to the Award dated 11.7.2002 passed by thefirst respondent in I.D.No.15 of 1998 and quash the same in so far asdeprivation of the entire back wages and consequently direct thesecond respondent to pay the petitioner backwages for the period ofnon-employment together with interest at the rate of 10% per annum. For Petitioner : Mr.Ravibharathi in W.P.No.6565 of 2003For Petitioner : Mr.R.Krishnaswamy for Mr.V.Ajoy Kohse in W.P.No.9964 of 2004 For Respondents : Mr.R.Krishnaswamy for Mr.V.Ajoy Kohse for R1 in W.P.No.6565 of 2003 For Respondents : Mr. Ravi Bharathi for R2 in W.P.No.9964 of 2004COMMON ORDERAgainst the same award, both workman and the management filedwrit petitions.2.The writ petition W.P.No.9964 of 2004 has been filed by theworkman and W.P.No.6565 of 2003 is by the management.3.The first respondent hereinafter referred to as workman andthe employer/petitioner is referred to as management. The workman wasappointed as a Driver in the management on 18.2.1991 and he wasissued with a charge memo dated 9.8.1996 for having driven thevehicle in a rash and negligent manner and caused loss of three humanlives in the accident occurred on 2.8.1996. Workman was initiallysuspended and a charge memo was issued on 9.8.1996. A domesticenquiry was conducted and after enquiry second show cause notice wasissued. Not satisfied with the reply filed by the workman, he wasdismissed from service on 14.3.1997. 4.The workman filed I.D.No.15 of 1998 to set aside thedismissal order dated 14.3.1997. After appreciation of pleadings andevidence the labour court passed an award reinstating the workmanwith continuity of service and other legally admissible benefits https://hcservices.ecourts.gov.in/hcservices/ except back wages. The said award was passed on 11.7.2002, againstwhich the present writ petition has been filed by the workman againstdenial of backwages and against the award of reinstatement withcontinuity of service, management filed writ petition.5.Learned counsel for the management submitted that thelabour court held in para 8 of the award that a domestic enquiry wasconducted in a fair and proper manner and when the enquiry was heldto be fair and proper there was no occasion for the labour court tointerfere with the findings of the enquiry officer. He also submittedthat when the management awarded punishment dismissing the workman,the labour court set aside the same without any valid ground andhence he pleaded for setting aside the award passed by the labourcourt. He relied upon a judgement in Karnataka Bank Limited versusA.L.Mohan Rao reported in (2006) 1 SCC 63, wherein it has been heldthat it is not for the courts to interfere in the case of grossmisconduct of this nature with the decision of disciplinary authorityon any mistaken notion of sympathy, so long as the inquiry has beenfair and proper and the misconduct proved and on such ground, it isfor the disciplinary authority to decide what is the punishment.Relying upon the said judgment, learned counsel for the managementsubmitted that in this case also the enquiry was held to be fair andproper and hence the labour court order setting aside the dismissalorder has to be set aside.6.The learned counsel also relied upon a judgement of thiscourt passed by the Division Bench in K.Ayyavu vs. Management,Thiruvalluvar Transport Corporation, Ltd., Chennai and anotherreported in 2003 (3) L.L.N 713, wherein in similar circumstances, theservices of the driver of the Transport Corporation was terminatedfor causing death of a boy seven years old. The Labour Court heldthat the workman was not at fault and directed his reinstatement.Learned single judge of this court interfered with the order of theLabour Court and the same was confirmed by a Division Bench of thiscourt applying the principles of res ipso loquitor. Relying upon thesaid judgement, learned counsel for the management submitted that theprinciples laid down therein would also be applicable to the presentcase and seeks interference with the labour court's award.7.Another judgement was quoted in M/s. L & T Komatsu Ltd.Versus N.Udayakumar CDJ 2007 SC 1306 wherein interference by the HighCourt regarding the quantum of punishment under Section 11(A) of theIndustrial Disputes Act was discussed. In that case, the workman wasfound to be a habitual absentee. On enquiry the workman wasterminated, which was later set aside by the labour court and thesame was modified by the High Court with reinstatement withoutbackwages but with continuity of service; Setting aside the judgementof the High Court, the Supreme Court resorted the termination orderpassed by the authority. By relying upon the above judgement, learnedcounsel for the management submitted that the imposition of quantum https://hcservices.ecourts.gov.in/hcservices/ of punishment is with the management. Similar dictum was given by theDivision Bench of this court in G.Vijayan vs. The Presiding Officer,Labour Court, Salem and another reported in CDJ 2007 MHC 3398.Similarly when the enquiry was conducted in a fair and proper manner,the court should not interfere with the punishment and that was laiddown in M.Chella Thambi vs. Presiding Officer, Labour Court,Maduraiand another reported in 2004 (1) LLN 572. Relying upon thosejudgements, learned counsel for the management submitted that whenthe enquiry was conducted in a fair and proper manner which was alsofound place in the order by the labour court, the reinstatement ofthe workman is liable to be set aside.8.On the other hand, learned counsel for the workmansubmitted that the enquiry officer himself had given the finding thatthe accident had occurred because of the negligence of the workman aswell as the rider of the Motor Cycle and the same is extracted fromthe enquiry officer's as hereunder:"gphpt[ rhiy ,ilapy; bkapd; rhiyf;Fr; brd;W nkhl;lhh;irf;fpnshl;o bkapd; rhiyapy; thfd';fs; VJk; tUfpd;wdth vdepd;W ftdpj;Jg;gpd; bkapd; rhiyapy; EiHe;jpUf;f ntz;Lk;/nkhl;lhh; irf;fpnshl;oa[k; mJnghy; ,y;yhky; ftdf;Fiwthf neuhfgphpt[ rhiyapy; ,Ue;J bkapd; rhiyapy; EiHe;J ,lJg[wk; jpUg;gpngUe;jpd; tyJgf;fj;jpy; nkhjpa[s;sJ bjhpatUfpwJ/ vdntnkhl;lhh; irf;nshl;oapd; ftdf;Fiwt[k; fHf Xl;Lehpd;ftdf;Fiwt[k; mjpntfKnk tpgj;jpw;Ff; fhuzkhf ,Ue;JssJvd;gJk; tpgj;jpw;F ,UtUnk bghWg;ghw;Wfpwhh;fs; vd;gJk; bjspt[.@?9.The learned counsel for the workman submitted that firstly,when such is the finding of the enquiry officer, the blame regardingthe accident could not be fastened on the workman and that alonewarranted capital punishment of dismissal from service. Secondlylearned counsel for the workman also attacked the labour court awardon the ground that no eyewitness of the accident was examined eitherbefore the enquiry officer or before the labour court. Only theengineer was examined who deposed that the accident was only due tocontributory negligence on the part of the Transport Corporationdriver as well as the rider of the motor cycle. Thirdly, the motorcycle was carrying three persons, which was also one of the causesfor the accident.10.Learned counsel for the workman submitted that once it isproved that when there was no 100% negligence on the part of theworkman, the work man cannot be held liable for the accident andhence the Tribunal rightly set aside the dismissal order. However heis aggrieved with regard to reinstatement without back wages. Herelied upon a Division Bench judgement of this Court in PandianRoadways Corporation Limited (represented by its Managing Director),Madurai vs. Presiding Officer, Additional Labour Court, Madurai andanother reported in 2002 1 LLN 348. In that case also the workman was https://hcservices.ecourts.gov.in/hcservices/ terminated from services for rash and negligence driving of the busbased on the Assistant Engineer's evidence, who was not aneyewitness. The labour court reinstated the workman which wasconfirmed by the learned Single Judge and subsequently by theDivision Bench of this court. Relying upon the said judgement,learned counsel for the workman submitted in this case also only theAssistant Engineer was examined, who was not an eyewitness and theconductor or no passenger was not examined. With regard to non-examination of eyewitness he relied upon a judgement in JeevaTransport Corporation Limited vs. Industrial Tribunal and anotherreported in 1994 II LLJ 350.11.Learned counsel for workman also referred to a judgement ofa Division Bench of this court in Tamil Nadu State TransportCorporation, Tiruchirapalli rep. by its Managing Director and anothervs.P.Kuppusamy reported in 2008-I-LLJ-460(Mad), wherein the accidentoccurred was head on collusion in which ten passengers of the busdied and seven others were injured. Hence departmental enquiry wasconducted and the driver of the bus was dismissed, which wasconfirmed by the labour court. The writ petition filed by the workmanwas allowed against which an appeal was preferred. While disposing ofthe appeal, a Division Bench of this court held that the corporationtook a plea before the disciplinary authority that the respondentdriver was not responsible for the accident and later it could notturn around and say that he was responsible for the accident anddismissed him from service. Relying upon the said judgement, learnedcounsel for the workman submitted that the management did not producethe counter affidavit filed before the Motor Accidents ClaimsTribunal, in the case filed by the victims of the accident. Non-production of the counter statement would lead to draw adverseinference against the management.12.Apart from that, the learned counsel also produced a copyof the judgement passed in a criminal case in which workman wasprosecuted for rash and negligence driving in C.C.No.59 of 1997, inwhich he was acquitted by a judgement dated 18.1.2007. Relying uponthe above judgement, learned counsel for the workman submitted thatthe management has not proved anything against the workman and soughtfor setting aside the award with regard to back wages.13.A perusal of the award would show that the enquiry itselfwas conducted in a fair and proper manner. Secondly the enquiryofficer himself gave a finding that the accident occurred because ofrash and negligence driving of the workman as well as the rider ofthe motor vehicle and hence if at all anything could be inferred, itcould be only on contributory negligence and the workman cannot beheld solely responsible for the accident. Thirdly the only managementwitness the Assistant Engineer also deposed that the accidentoccurred only because of contributory negligence. It is needless tosay that no eyewitness was examined on the side of the management https://hcservices.ecourts.gov.in/hcservices/ neither the conductor nor any passenger of the bus to prove thenegligence on the part of the workman. Though the findings given inthe criminal court may not be a binding on the civil court, thiscourt can consider the findings to arrive at a correct conclusion.14.The tribunal in paragraph 9 of the award rightly invokedthe principles of "res ipso loquitur". The Tribunal had also takeninto consideration the evidence of the management witness that thedriver of the bus could have averted the accident at the time ofaccident and also found that merely there was an accident it couldnot be presumed that the driver was driving the vehicle in a rash andnegligent manner. Hence the tribunal held that the driver of theCorporation was not fully responsible for the accident and found thatthe punishment imposed by the management is disproportionate to thecharges and set aside the dismissal order.15.The Tribunal on appreciation of the pleadings and evidencerightly came to the conclusion that the accident was not solely dueto negligence of the driver of the Corporation alone, which wasbased on the evidence of Engineer and there was no other clinchingevidence to prove that the workman alone was responsible for theaccident, especially when the accident proved to occur because ofcontributory negligence.16.The Labour Court is the final forum for giving finding offacts and the same can not be interfered or set aside. The LabourCourt award is based on evidence only. The management could not pinpoint the material evidence overlooked by the labour court. The scopeof judicial review is very limited and this court cannot act like anappellate court and re-appreciate or re-evaluate the evidence whileexercising the writ jurisdiction under Article 226 of theConstitution of India. Aforesaid dictum has been laid down in RanjidSingh vs.Ravi Prakash reported in 2004 3 SCC 682. In Sanga Ahamed andothers vs. Thilag Bajaj (deceased) rep. by LRs reported in 2008 9SCC, the Apex Court held that though the powers of High Court underArticle 226 and 227 of Constitution of India is very wide andextensive to control over the courts and Tribunals through outterritories and in relation excess jurisdiction. Such power must beexercised within limits of law. The High Court does not act as acourt of appeal or a court of error and take neither review or re-appreciate nor reweigh the evidence upon which the determination ofthe Subordinate Court or inferior Tribunal, or correct the error offacts or even the law and to substitute its own decision as that ofinferior tribunal or court.17.This court, unless there was miscarriage of justice orfragrant violation of law calling for intervention, cannot interfereunder Article 226 or 227 of the Constitution of India. The aforesaidratio residendi was laid down in D.N.Bajaj vs. Madyapradesh reportedin AIR 1953 SC 58 and the said judgement was relied on and approved https://hcservices.ecourts.gov.in/hcservices/ by the Apex Court in Chandrasekar vs. L.N.. reported in 1986 4 SCC447.18.Relying upon the aforesaid judgements of the Supreme Court,this court cannot interfere with the award of the Tribunal as therewas no miscarriage of justice or the award has been passed on noevidence or the findings are perverse. Moreover to invoke Articles226 and 227 of the Constitution of India, the parties have to makeout extraordinary case pointing out error apparent on the face of therecord. In this case, no such case has been made out either by theworkman or by the corporation. The award passed by the labour courtis based on evidence and balanced one. Hence the award of the labourcourt is confirmed and the order of the appellate court is set aside.Accordingly both writ petitions are dismissed. No costs.W.P.M.P.No.626 of 2008 is closed. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarvkTo1. The Presiding Officer, Labour Court, Salem.2. The Managing Director Tamil Nadu State Transport Corporation (Salem Division II)Ltd., Bharathipuram, Dharmapuri-5.+ 1 c.c. to Mr. V. Ajay Khose, Advocate. S.R.No.59564.+ 2 c.cs. to Mr. M. Ravibharathi, Advocate. S.R.Nos.59161 & 59162.W.P.No.6565 of 2003 andW.P.No.9964 of 2004BVR (CO)GSK 29.01.2010.