M.Veluchamy v. Presiding Officer, Labour Court, Coimbatore

benefits thereafter.3.The case of the petitioner is that he was appointed asDriver in the second respondent Transport Corporation in the year1979 and he was terminated from service on 19.3.1988. Thereafter adispute was raised before the Assistant Commissioner of Labour,Coimbatore, who submitted failure report to the Government. TheGovernment of Tamil Nadu referred the dispute for adjudicationbefore the Labour Court. Petitioner filed Claim petition and raiseda preliminary objection with regard to the validity of the domesticenquiry. The said preliminary issue was upheld by the Labour Court.The second respondent challenged the said preliminary order made bythe Labour Court, in W.P.No.14775 of 1992 before this Court and thesaid writ petition was disposed of granting liberty to the secondrespondent management to adduce additional evidence before the firstrespondent to prove the charges. Thereafter, the second respondentmanagement examined the Junior Engineer, who was examined in thedepartmental enquiry and marked the very same documents. TheConductor of the bus, who was available in the bus while theaccident took place was not examined. The Labour Court found thatthe accident had taken place at 10.45 p.m. on 19.2.1987 while thepetitioner was driving the Transport Corporation bus bearingregistration No.TML 4113 due to the rash and negligent driving ofthe petitioner and dismissed I.D.No.168 of 1999.4.The said award is challenged in this writ petition on theground that the Conductor, who was on duty at the time of accident,who was the sole eye witness to the occurrence was not examined;that there was contributory negligence on the part of the driver ofthe lorry and the same was not considered; and that the Labour Courtwrongly assumed that the petitioner had attempted to overtake thebullock cart without sufficient space and the same is without propercare and therefore there is perversity in the order of the LabourCourt.5.The learned counsel for the petitioner argued that noindependent witness nor the Conductor of the Bus having beenexamined, the second respondent management failed to establish therash and negligent driving of the petitioner on 19.2.1987 at 10.45p.m. while he was driving the Transport Corporation bus and only aJunior Engineer, who was not present in the scene of occurrence wasexamined and through whom the documents were marked and thereforethe second respondent has not established the charges levelledagainst the petitioner even before the Labour Court, particularlywhen the preliminary issue raised by the petitioner with regard tothe conduct of domestic enquiry was upheld by the Labour Court. Thelearned counsel also argued that in the criminal case registeredagainst the petitioner in respect of the very same accident, thepetitioner was acquitted and therefore the dismissal of the https://hcservices.ecourts.gov.in/hcservices/ petitioner from his service is unsustainable.6.The learned counsel for the second respondent on the otherhand submitted that the petitioner drove the bus in a rash andnegligent manner and at the place called Pappanpatti Pirivu whileovertaking the bullock cart, the bus dashed against the lorry comingfrom the opposite direction and there was head on collisionresulting in the accident and death of the lorry driver. Thepetitioner's past record was also not satisfactory and therefore hewas dismissed from service. The learned counsel also submitted thatthe factum of the accident and the petitioner's involvement in theaccident having been admitted it is for the petitioner to establishhis innocence that he was driving the bus in a careful manner. Asper the practice followed in the Corporation, when an accident isreported, the Senior Officer of the Corporation visits the spot andcollects the details and on the basis of the same, responsibility ofthe accident is fixed and the said procedure was followed in thiscase also. Even hearsay evidence can be relied on to prove thecharge of rash and negligent driving. The learned counsel alsosubmitted that the petitioner having committed fatal accident, thedepartment considered the gravity of the offence and imposed thepunishment of dismissal as the petitioner cannot be entrusted withthe bus to drive, as the same will affect the safety and life of thepassengers travelling in the Transport Corporation Bus.7.I have considered the rival submissions made by thelearned counsel for the petitioner as well as the respondents.8.The translated version of the charges levelled against thepetitioner are as follows:"On 19.2.1987, you had been working as theDriver of the night service bus bearingregistration No.TML 4113 belonging to Ondipudurbranch. It has been stated in the Accidentreport that when the bus left Appanaickenpattion that night at 9.45 hrs, and proceedingtowards Gandhipuram, you had been driving thebus in a rash and negligent manner at 10.45 hrsat night, near Pappampatti, and dashed the busagainst a lorry coming in the oppositedirection, that the lorry driver died on thespot and 3 other persons having sustainedgrievous injuries, had been admitted at theGovernment Hospital, Coimbatore for treatmentand that you had also suffered injuries and hadbeen admitted in the hospital and as a result ofthe said accident, the Corporation bus hadsuffered severe damages amounting to Rs.5175/- https://hcservices.ecourts.gov.in/hcservices/ and the private carrier lorry suffered severedamages to the tune of Rs.8900/-.Moreover, you have committed violation ofthe Motor Vehicles Act and had been instrumentalfor the damages caused to both the vehicles,death of a person and for the injuries sustainedby 3 other persons due to your rash andnegligent driving.Your action as stated above, is adelinquency under Order 14(a)(ad) of theCorporation Standing Orders." From the perusal of the above charges and from the pleadings it isevident that the petitioner drove the Transport Corporation busbearing TML 4113 on 19.2.1987 from Pappanaikkanpatti to Gandhipuram,Coimbatore, and at 10.45 p.m. near Pappanpatti the said bus dashedwith the lorry and the lorry driver died on the spot and threeothers got grievous injuries, who were admitted in the GovernmentHospital, Coimbatore. The case of the petitioner as per thepleadings is that he has not drove the bus in a rash and negligentmanner and due to the rash and negligent driving of the lorry driverthe accident had happened. Even though such a pleading is made bythe petitioner, he has not taken any steps to prove the said facteither before the Enquiry Officer or before the Labour Court. Theaccident having been admitted the maxim 'Res Ipso Loquitor' willapply and therefore it is the duty of the petitioner to prove thefact that he was not driving the vehicle in a rash and negligentmanner.9.(a)The burden of proof in the accident cases is on theside of the driver of the bus, was the view taken by the SupremeCourt in the decision reported in 2007 (2) SLR 441 (ManagingDirector, North East K.R.T.C. v. Devidas Manikrao Sadananda). Inparagraphs 10 and 11 it is held as follows:"10.In the case of Shyam Sunder and othersv. The State of Rajasthan, 1974 (1) SCC 690,this Court held that the maxim "res ipsaloquitur" does not embody any rule ofsubstantive law nor a rule of evidence. It isresorted to when the accident is shown to haveoccurred and and the cause of the accident isprimarily within the knowledge of the driver.It was held that the mere fact that the cause ofthe accident is unknown does not prevent theplaintiff from recovering damages from thedefendant if the proper inference to be drawnfrom the circumstances, which are known is thatthe accident was caused by the negligence of the https://hcservices.ecourts.gov.in/hcservices/ defendant. It was held that the fact of theaccident may constitute evidence of negligenceand in such cases the above maxim applies. Theprincipal function of the maxim is to preventinjustice which would result if the managementis compelled to prove the precise cause of theaccident, particularly, when the respondent-driver has knowledge of the cause of theaccident. This judgment has not been consideredby the Division Bench of the Karnataka HighCourt.11.In the case of Pushpabai PurshottamUdeshi and others v. M/s.Ranjit Ginning &Pressing Co (P) Ltd. And another, 1977 (2) SCC745, this Court held that where the evidenceshows dashing of the vehicle against the treewas so violent that it caused the death of thepassengers then the burden rests on the oppositeparty to show that the cause of the accidentcould not have been avoided by exercise ofordinary care and caution (See para 5). In thepresent case no such attempt was made by thedriver to show the plea of inevitability,therefore, the Labour Court had erred inmisdirecting itself in not invoking the maxim"res ipsa loquitur." "(b)In 2005 (3) SCC 241 (Cholan Roadways Ltd. v. G.Thirugnanasambandam) in paragraphs 21 to 26, it is held as follows:"21. Res ipsa loquitur is a well-knownprinciple which is applicable in the instantcase. Once the said doctrine is found to beapplicable the burden of proof would shift onthe delinquent. As noticed hereinabove, theenquiry officer has categorically rejected thedefence of the respondent that the bus was beingdriven at a slow speed.22. In Pushpabai Purshottam Udeshi v.Ranjit Ginning & Pressing Co. (P) Ltd. thisCourt observed: (SCC pp.750-51, para 6)“6. The normal rule is that it is forthe plaintiff to prove negligence but as insome cases considerable hardship is causedto the plaintiff as the true cause of theaccident is not known to him but is solelywithin the knowledge of the defendant whocaused it, the plaintiff can prove theaccident but cannot prove how it happenedto establish negligence on the part of the https://hcservices.ecourts.gov.in/hcservices/ defendant. This hardship is sought to beavoided by applying the principle of resipsa loquitur. The general purport of thewords res ipsa loquitur is that theaccident ‘speaks for itself’ or tells itsown story. There are cases in which theaccident speaks for itself so that it issufficient for the plaintiff to prove theaccident and nothing more. It will then befor the defendant to establish that theaccident happened due to some other causethan his own negligence.”23. The said principle was applied in SarlaDixit v. Balwant Yadav.24. In A.T. Mane this Bench observed: (SCCp. 257, paras 5-6)“5. … Learned counsel relied on ajudgment of this Court in support of thiscontention of his in the case of KarnatakaSRTC v. B.S. Hullikatti. That was also acase where a conductor concerned hadcommitted similar misconduct 36 times priorto the time he was found guilty and bearingthat fact in mind this Court held thus:(SCC p. 576, para 5)‘Be that as it may, the principle of resipsa loquitur, namely, the facts speak forthemselves, is clearly applicable in theinstant case. Charging 50 paise per ticketmore from as many as 35 passengers couldonly be to get financial benefit, by theconductor. This act was either dishonest orwas so grossly negligent that therespondent was not fit to be retained as aconductor because such action or inactionof his is bound to result in financial lossto the appellant Corporation.’6. On the above basis, the Court cameto the conclusion that the order ofdismissal should have been set aside. Inour opinion, the facts of the above caseand the law laid down therein apply to thefacts of the present case also.”25. In Thakur Singh v. State of Punjab thisCourt observed: (SCC p.209, para 4)“4. It is admitted that the petitioner https://hcservices.ecourts.gov.in/hcservices/ himself was driving the vehicle at therelevant time. It is also admitted that buswas driven over a bridge and then it fellinto canal. In such a situation thedoctrine of res ipsa loquitur comes intoplay and the burden shifts on to the manwho was in control of the automobile toestablish that the accident did not happenon account of any negligence on his part.He did not succeed in showing that theaccident happened due to causes other thannegligence on his part.”26. The burden of proof was, therefore, onthe respondent to prove that the vehicle was notbeing driven by him rashly or negligently."(c)The same is the view taken by the Division Bench of thisCourt in the decision reported in 2003 (3) LLN 713 (K.Ayyavu v.Management of Thiruvalluvar Transport Corporation Ltd., Chennai).10.The contention of the learned counsel for the petitionerthat the management witness was not present in the scene of accidentand therefore his evidence cannot be relied upon by the EnquiryOfficer is also unsustainable. The Supreme Court in the decisionreported in 2008 AIR SCW 927 (Workmen of Balmadies Estatesv.Management, Balmadies Estate & Others) held that even hearsayevidence can be acted upon in the disciplinary proceeding, providedit has a reasonable nexus and credibility. Paragraphs 8 and 9 ofthe said judgment read as follows:"8.It is fairly well settled now that inview of the wide power of the Labour Court itcan, in an appropriate case, consider theevidence which has been considered by thedomestic Tribunal and in a given case on suchconsideration arrive at a conclusion differentfrom the one arrived at by the DomesticTribunal. The assessment of evidence in adomestic enquiry is not required to be made byapplying the same yardstick as a Civil Courtcould do when a lis is brought before it. TheIndian Evidence Act, 1872 (in short the EvidenceAct) is not applicable to the proceeding in adomestic enquiry so far as the domesticenquiries are concerned, though principles offairness are to apply. It is also fairly wellsettled that in a domestic enquiry guilt may notbe established beyond reasonable doubt and theproof of misconduct would be sufficient. In a https://hcservices.ecourts.gov.in/hcservices/ domestic enquiry all materials which arelogically probative including hearsay evidencecan be acted upon provided it has a reasonablenexus and credibility.9.In J.D.Jain v. Management of StateBank of India and Anr. (1982) 1 SCC 143 it washeld, almost in a similar factual background,that confessional evidence and circumstantialevidence, despite lack of any direct evidence,was sufficient to hold the delinquent guilty ofmisconduct and to ustify the order oftermination that had been passed."11.The effect of acquittal in the criminal case whileconsidering the validity of the departmental proceedings wasconsidered by the Supreme Court and this Court in the followingcases.(a)The scope of interference in the domestic enquiry findingsand the Labour Court decision and the effect of acquittal in thecriminal case was considerd by the Honourable Supreme Court in thedecision reported in (2003) 3 SCC 583 (Popli v. Canara Bank),wherein in paragraphs 16 to 19 it is held thus:"16. It is fairly well settled that theapproach and objective in criminal proceedingsand the disciplinary proceedings are altogetherdistinct and different. In the disciplinaryproceedings the preliminary question is whetherthe employee is guilty of such conduct as wouldmerit action against him, whereas in criminalproceedings the question is whether the offencesregistered against him are established and ifestablished what sentence should be imposed uponhim. The standard of proof, the mode of enquiryand the rules governing the enquiry and trialare conceptually different. (See State ofRajasthan v. B.K. Meena) In case of disciplinaryenquiry the technical rules of evidence have noapplication. The doctrine of “proof beyonddoubt” has no application. Preponderance ofprobabilities and some material on record arenecessary to arrive at the conclusion whether ornot the delinquent has committed misconduct.17. While exercising jurisdiction underArticle 226 of the Constitution the High Courtdoes not act as an appellate authority. Its https://hcservices.ecourts.gov.in/hcservices/ jurisdiction is circumscribed by limits ofjudicial review to correct errors of law orprocedural errors leading to manifest injusticeor violation of principles of natural justice.Judicial review is not akin to adjudication ofthe case on merits as an appellate authority.18. In B.C. Chaturvedi v. Union of Indiathe scope of judicial review was indicated bystating that review by the court is of decision-making process and where the findings of thedisciplinary authority are based on someevidence, the court or the tribunal cannotreappreciate the evidence and substitute its ownfinding.19. As observed in R.S. Saini v. State ofPunjab in paras 16 and 17 the scope ofinterference is rather limited and has to beexercised within the circumscribed limits."(b)In (1995) 6 SCC 749 (B.C.Chaturvedi v. Union of India) inparagraph 18, it is held as follows:"18. A review of the above legal positionwould establish that the disciplinary authority,and on appeal the appellate authority, beingfact-finding authorities have exclusive power toconsider the evidence with a view to maintaindiscipline. They are invested with thediscretion to impose appropriate punishmentkeeping in view the magnitude or gravity of themisconduct. The High Court/Tribunal, whileexercising the power of judicial review, cannotnormally substitute its own conclusion onpenalty and impose some other penalty. If thepunishment imposed by the disciplinary authorityor the appellate authority shocks the conscienceof the High Court/Tribunal, it wouldappropriately mould the relief, either directingthe disciplinary/appellate authority toreconsider the penalty imposed, or to shortenthe litigation, it may itself, in exceptionaland rare cases, impose appropriate punishmentwith cogent reasons in support thereof."(c)In (2005) 7 SCC 764 (Ajit Kumar Nag v. G.M.(PJ), IndianOil Corporation Ltd.) in paragraph 11, the Supreme Court held asfollows:"11. As far as acquittal of the appellant https://hcservices.ecourts.gov.in/hcservices/ by a criminal court is concerned, in ouropinion, the said order does not preclude theCorporation from taking an action if it isotherwise permissible. In our judgment, the lawis fairly well settled. Acquittal by a criminalcourt would not debar an employer fromexercising power in accordance with the Rulesand Regulations in force. The two proceedings,criminal and departmental, are entirelydifferent. They operate in different fields andhave different objectives. Whereas the object ofcriminal trial is to inflict appropriatepunishment on the offender, the purpose ofenquiry proceedings is to deal with thedelinquent departmentally and to impose penaltyin accordance with the service rules. In acriminal trial, incriminating statement made bythe accused in certain circumstances or beforecertain officers is totally inadmissible inevidence. Such strict rules of evidence andprocedure would not apply to departmentalproceedings. The degree of proof which isnecessary to order a conviction is differentfrom the degree of proof necessary to record thecommission of delinquency. The rule relating toappreciation of evidence in the two proceedingsis also not similar. In criminal law, burden ofproof is on the prosecution and unless theprosecution is able to prove the guilt of theaccused “beyond reasonable doubt”, he cannot beconvicted by a court of law. In a departmentalenquiry, on the other hand, penalty can beimposed on the delinquent officer on a findingrecorded on the basis of “preponderance ofprobability”. Acquittal of the appellant by aJudicial Magistrate, therefore, does not ipsofacto absolve him from the liability under thedisciplinary jurisdiction of the Corporation. Weare, therefore, unable to uphold the contentionof the appellant that since he was acquitted bya criminal court, the impugned order dismissinghim from service deserves to be quashed and setaside."(d)The Division Bench of this Court in the decision reportedin 2005 (1) CTC 625 (The Management of Thiruvalluvar TransportCorporation v. S.Anthonysamy). In paragraphs 8 to 13 it is held asfollows:"8.It is well settled that on the same https://hcservices.ecourts.gov.in/hcservices/ charges when there is a criminal proceeding aswell as a domestic enquiry, merely because theworkman is found innocent in the criminal case,it does not mean that he cannot be found guiltyin the departmental/domestic enquiry videThenmozhi v. The Chairman & Managing Director,Neyveli Lignite Corporation in W.A.Nos.202 and203 of 2005 dated 8.2.2005.9.In the aforesaid Division Benchdecision reliance had been placed on the SupremeCourt decisions in Allahabad District Co-Operative Bank Ltd., v. Vidhya Varidh Mishra,2004 (6) SCC 482 and Secretary, Ministry of HomeAffairs and Another v. Tahir Ali Khan Tyagi, JT2002 (Supp.1) SC 520.10.In paragraph 12 of the decision inAllahabad District Co-Op. Bank Ltd. v. VidhyaVaridh Mishra (supra) the Supreme Courtobserved:-"Mr.Rao submitted that the respondent hadbeen exonerated by the criminal Court. Hesubmitted that the termination was only onthe basis of his conviction. He submittedthat as his conviction is set aside, theCourts below were right in reinstating therespondent. We are unable to accede to thissubmission. The termination was pursuantto a disciplinary inquiry. It is settledlaw that in a disciplinary inquiry aconclusion different from that arrived atby a criminal Court, may be arrived at.The strict burden of proof required toestablish guilt in a criminal Court is notrequired in disciplinary proceeding. Therespondent has not claimed that thedisciplinary proceedings were not conductedfairly. As the termination was based onfindings of the Disciplinary Committee, thefact that the appellate Court exoneratedthe respondent was no consequence."11.Similarly, in Secretary, Ministry ofHomes Affairs and Another v. Tahir Ali KhanTyagi (supra) the Supreme Court observed (videparagraph -6):"Departmental proceeding and criminalproceeding can run simultaneously anddepartmental proceeding can also beinitiated even after acquittal in a https://hcservices.ecourts.gov.in/hcservices/ criminal proceeding particularly when thestandard of proof in a criminal proceedingis completely different from the standardof proof that is required to prove thedelinquency of a government servant in adepartmental proceeding, the former beingone of proof beyond reasonable doubt,whereas the latter being one ofpreponderance of probability."12.In view of the above, we are clearlyof the opinion that the Labour Court proceededon a wrong legal basis and wrongly orderedreinstatement of the workman concerned afterfinding that he was guilty of negligence.13.In Divisional Controller, KSRTC(NWKRTC) v. A.T.Mane, JT 2004 (8) SC 103 theSupreme Court observed that "once a domestictribunal based on evidence comes to a particularconclusion normally it is not open to theappellate tribunal or Courts to substitute theirsubjective opinion in the place of the onearrived at by the domestic tribunal". "(Emphasis Supplied)12.The Labour Court gave a finding that at the time of theaccident the bullock cart was coming in front of the bus in the samedirection towards Coimbatore and while the lorry was coming from theopposite direction, the petitioner tried to overtake the bullockcart. Had there was no overtaking of the bus by the petitioner, thelorry would have hit the bullockcart and not dashed with the bus.The said fact having not been denied viz., the bullock cart comingin front of the bus and the bullock cart was not hit by the lorry,the petitioner's attempt to overtake the bullock cart in a narrowspace is clearly established. The said finding given by the LabourCourt based on the evidence adduced by the management, particularlyEx.M-3, cannot be found to be a perverse finding.13.The Labour Court also found that if proper care was takenby the petitioner before overtaking the bullock cart, the collisionwith the lorry could have been averted. Thus, the petitioner hasviolated the provisions of the Motor Vehicle Rules with regard tothe overtaking and due to the said accident, not only the lorrydriver died, but also three other persons got serious injuries andalso the property of the Transport Corporation was damaged. Thus,the violation of Clause 14(a) and 14(a)(d) of the certified StandingOrder of the Corporation is clearly established.14.The World Health Organisation in its report states that https://hcservices.ecourts.gov.in/hcservices/ India has the maximum number of accidental deaths in the World.Speed is the main reason behind accidents. An increase in averagespeed is directly related to both likelihood of a crash occurringand to the severity of crash consequences. The World HealthOrganisation also suggested, driving licence should be given andrenewed only after stringent tests, so that the road accidents canbe minimised.15.Bearing the above facts in mind as well as the pastconduct of the petitioner as he suffered punishment of suspension, Iam of the firm view that the orders passed by the disciplinaryauthority as well as the Labour Court are just and proper. Asrightly held by the Labour Court, the Transport bus drivers are notonly entrusted with the property of the Corporation, but alsoentrusted with the safety of the life of the passengers and they areexpected to have utmost care and caution in their discharge ofduties. Due to the rash and negligent driving of the vehicle numberof accidents are taking place and therefore no leniency could beshown to the drivers, who are driving their vehicles in a rash andnegligent manner.No case is made out to interfere with the impugned award ofthe Labour court and the writ petition is dismissed. No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarvrTo1.The Presiding Officer, Labour Court, Coimbatore.2.The Officer in charge, State Transport Corporation ,Formerly known as Cheran Transport Corporation,Mettupalayam Road,Coimbatore.+1cc to Mr.M.Ravibharathi,Advocate Sr39821+1cc to Mr.K.V.Shanmuganathan, Advocate Sr 39815GG(CO)km/9.9.W.P.No.8376 of 2001