1 5095.2005 WP IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 5095 OF 2005 [ENTITY], Age 55 years, Occu : Ex-Driver, Batch No. 17991, R/o. Telikhunt, At Post. Tq. & Dist. Ahmednagar Petitioner VERSUS [ENTITY], Through its Divisional Controller, S.T. Divisional Office, Ahmednagar, At Post. Tq. & Dist. Ahmednagar. Respondent Mr. [ENTITY], Advocate for petitioner Mr. [ENTITY] , Advocate for respondent CORAM : [ENTITY], J. Date of Reserving Judgment :- 21 st August, 2014. Date of pronouncing judgment :- 11 th September, 2014. JUDGMENT :
1. By an order dated 04-09-2007, this petition was admitted.
No interim relief was granted to the petitioner.
2. The contention of the petitioner in brief is as follows :-
a] The petitioner joined in 1975 as a driver.
5095.2005 WP b] On 15-02-1981, the petitioner was manning the bus which collided with two cyclists riding one bicycle.
c] One of the cyclist suffered serious injuries.
d] The petitioner was initially convicted by the Criminal Court in [CASE NUMBER], and was sentenced to suffer Simple Imprisonment till rising of the Court and to pay a fine of Rs. 1,000/-, in default of which he was to suffer Rigorous Imprisonment for three months.
e] In [CASE NUMBER] filed by the petitioner against his conviction dated 24-09-1987, he was acquitted and his conviction was set aside by order dated 14-12-1990.
f] A charge sheet cum show cause notice was issued on 02-05-1981 to the petitioner by the respondent.
g] After concluding the disciplinary proceedings, the petitioner was held to be guilty of the charges levelled upon him and was dismissed from service on 15-10-1981.
h] The two cyclists were not examined in the enquiry.
i] The reporter alone was examined. j] No compensation was required to be paid by
the respondent- M.S.R.T.C. to the cyclists owing to the acquittal of the petitioner from the Criminal Case.
k] The petitioner preferred [CASE NUMBER] before the First Labour Court at Ahmednagar for challenging his dismissal.
l] By part-I Award dated 28-09-2000, the Labour Court held that the enquiry was conducted in a fair and proper manner. The findings were not interfered with.
m] By judgment and award 03-10-2002, the reference was dismissed. 5095.2005 WP n] The past service record of the petitioner is clean and unblemished. o] Punishment awarded is shockingly
disproportionate to the gravity and seriousness of the mis-conduct.
p] The petitioner has passed the age of superannuation as he is sixty five years old today.
q] Evidence recorded in the enquiry has been relied upon to suggest that the charges are not proved against the petitioner.
r] It is prayed that compensation may be granted to the petitioner in lieu of reinstatement, continuity and back wages by setting aside the order of dismissal and the judgment of the Labour Court.
3. The learned Advocate appearing on behalf of the respondent has vehemently opposed the petition. His submissions in brief are as follows :-
a] The petitioner joined duties with the respondent as a driver on 16-08-1977 and not in 1975 as is claimed.
b] His appointment was for one year as a temporary.
c] His past service record is highly blemished.
d] During the proceedings in the domestic enquiry, he caused another major accident on the Kopergaon- Pune duty while driving bus No. MTB- 5507 near Chinchola phata.
e] A second disciplinary proceeding was not commenced since by that time, the petitioner was dismissed from employment on 15-10-1981.
5095.2005 WP f] In 1979 the petitioner was subjected to a fine of Rs. 50/-.
g] The petitioner has admitted his past service record in his cross-examination at Exhibit O-4.
h] In Service Jurisprudence, a charge is to be proved on the basis of preponderance on the principle of probabilities by considering the evidence on record.
i] One of the cyclist came under the front wheel of the S.T. bus and his leg was seriously injured resulting subsequently into amputation. His name is Shri [ENTITY].
j] The pillion rider [ENTITY] also received injuries.
k] The punishments awarded to the petitioner prior to the major accident caused on 15-02-1981, both relate to accidents.
l] The Writ and supervisory jurisdiction of this Court is limited and there cannot be re-appreciation of the evidence recorded in the domestic enquiry as well as before the Labour Court.
m] The Labour Court has arrived at findings on the facts of the case and this Court should not interfere with such conclusions.
n] Acquittal from criminal proceedings would not ipso-facto mean that the petitioner should be exonerated from the disciplinary proceedings.
o] Petition deserves to be dismissed. 4. Having considered the submissions of the learned
Advocates and having gone through the petition paper book, I am in agreement with the respondent as regards his contention that the Writ and supervisory jurisdiction of this Court is limited.
5095.2005 WP
5. In [PRECEDENT], while dealing with the scope and ambit of this Court's jurisdiction, the Apex Court has held in paragraph 7 & 8 as under :-
7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under [SECTION] has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or Tribunals; these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or in excess of it, or as a result of failure to exercise jurisdictions. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had 5095.2005 WP erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under [SECTION] to issue a writ of certiorari can be legitimately exercised (vide [PRECEDENT] ), [PRECEDENT].), and [PRECEDENT] .
8. It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious misinterpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases, the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover 5095.2005 WP the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of a the legal provision which is alleged to have been misconstrued or contravened.
6. The Apex Court in the case of [PRECEDENT], has held in paragraph Nos. 38 (1 to 9) and 39, as under :-
38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder:- (1) Amendment by [ACT] with effect from 01.07.2002 in [SECTION] of [ACT] cannot and does not affect in any manner the jurisdiction of the High Court under [SECTION] and [SECTION] of the [ACT].
(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the [ACT] are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court. (3) Certiorari, under [SECTION] of the [ACT], is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction
- by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction " by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under [SECTION] of the [ACT] is exercised for keeping the subordinate courts 5095.2005 WP within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. (8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, 5095.2005 WP order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case.
39. Though we have tried to lay down broad principles and working rules, the fact remains that the parameters for exercise of jurisdiction under [SECTION] or [SECTION] of the [ACT] cannot be tied down in a straitjacket formula or rigid rules. Not less than often the High Court would be faced with dilemma. If it intervenes in pending proceedings there is bound to be delay in termination of proceedings. If it does not intervene, the error of the moment may earn immunity from correction. The facts and circumstances of a given case may make it more appropriate for the High Court to exercise self-restraint and not to intervene because the error of jurisdiction though committed is yet capable of being taken care of and corrected at a later stage and the wrong done, if any, would be set right and rights and equities adjusted in appeal or revision preferred at the conclusion of the proceedings. But there may be cases where 'a stitch in time would save nine'. At the end, we may sum up by saying that the power is there but the exercise is discretionary which will be governed solely by the dictates of judicial conscience enriched by judicial experience and practical wisdom of the Judge.
7. As such, this Court ordinarily ought not to enter into the exercise of re-appreciation of evidence and consider the evidence threadbare.
8. The appointment of the petitioner is dated 16-08-1977 and he has caused an accident on 15-02-1981. Prior thereto, there are two punishments awarded to him. Acquittal in criminal 5095.2005 WP proceedings shall not ipso-facto validate or justify exoneration from disciplinary proceedings, is trite law. This issue is no longer 'res-integra'. In catena of judgments, the Apex Court has concluded that criminal proceedings are conceptually distinct and different from disciplinary proceedings. In disciplinary proceedings, based on evidence recorded, the guilt can be proved on the basis of preponderance on the principles of probabilities, unlike in criminal proceedings where the guilt has to be proved beyond reasonable doubt.
9. In the instant case, two persons riding a bicycle have been injured on account of the accident proved in the enquiry. It is not the case of the petitioner that there was no accident at all. It is claimed by him that the cyclists had dashed the bus sideways and he could not be held at fault. The petitioner is out of employment for the last thirty three years.
10. In the facts of this case and in the absence of malafides being attributed to the management, there appears to be no animosity or antipathy between the management and the petitioner. The job of a driver is accompanied with a high degree of responsibility. The lives of the passengers as well as those on 5095.2005 WP the streets / roads hang in balance on the manner in which the bus driver would drive his bus.
11. The Apex Court in the case of [PRECEDENT] has observed in paragraph 23 as follows :-
" In [PRECEDENT], it has been laid down that once an Industrial tribunal is satisfied that the conclusion arrived at by the Enquiry Officer, on the evidence led before it, is a possible one, the tribunal has no jurisdiction to substitute its own judgment for the judgment of the Enquiry Officer, though the tribunal may itself have arrived at a different conclusions on the same materials."
12. In view of these facts, I find that the impugned Award passed by the Labour Court is neither perverse nor erroneous. No interference is, therefore, called for. The Writ Petition is devoid of merit and is, hence, dismissed. Rule is discharged with no order as to costs.
( [ENTITY], J. ) SDM* September-2014