THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION No.36514 of 1998 Dated 15-02-2008 Between: The Depot Manager, APSRTC, Narayankhed Depot, Medak District. ..... PETITIONER AND Sri Mohd. Ghouse, Ex.Driver, APSRTC, Indiranagar, Siddipet, Medak District and another. .....RESPONDENTS THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION No.36514 of 1998 O R D E R: Aggrieved by the award of the Labour Court-II, Hyderabad, in I.D.No.165 of 1993 dated 06-02-1997, whereby the first respondent was directed to be reinstated into service with all benefits, continuity of service and without back wages, the present writ petition is filed. The first respondent-workman was charged of having fatally injured a pedestrian and to have driven the bus in a rash and negligent manner with lack of anticipation. An enquiry was held and, vide proceedings dated 01-10-1992, the first respondent was removed from service. The appeal preferred thereagainst to the Divisional Manager was rejected. Thereafter, the first respondent invoked the jurisdiction of the Labour Court, under Section 2-A(2) of the Industrial Disputes Act, 1947 (for short ‘the Act’). With regards the validity of the domestic enquiry, a memo was filed by the first respondent-workman that it would suffice if the Court were to examine the dispute only to the limited extent as was required under Section 11-A of the Act. Section 11-A of the Act confers power on the Labour Court to reappreciate the evidence on record and arrive at an independent conclusion as to whether the charges levelled against the delinquent employee are established or not. Even in cases where the Labour Court is of the view that the charges levelled against the workman are held established, it still has the power to go into the question of proportionality of punishment and, if satisfied that the punishment imposed is shockingly disproportionate, to interfere with the order and substitute the punishment with another. While exercising jurisdiction under Section 11-A of the Act the Labour Court, in the present case, has merely relied on his acquittal in C.C.No.124 of 1991 dated 30-04-1992 on the file of the Judicial Magistrate of First Class, Narayankhed, to hold that the punishment of removal from service was disproportionate and not commensurate with the gravity of the charges. Except to rely on the judgment of the Criminal Court, the Labour Court has not examined any other evidence on record nor has it chosen to analyze the evidence and record its reasons on the question as to whether or not the charges levelled against the delinquent employee are established. In Sk.Ahmed v. Labour Court[1], B.Sudershan Reddy, J (as he then was), after referring to the earlier judgments of the Supreme Court, observed thus:- “……From the decisions referred to herein above, it is clear that an employer can proceed against its employee and initiate departmental enquiry as well as criminal prosecution on the same set of facts. In appropriate cases, even the civil proceedings could be initiated. There is no bar in law to initiate all the proceedings simultaneously. In appropriate proceedings, the Court may stay the departmental proceedings, if the Court comes to a conclusion that it may not be 'desirable', 'advisable' or 'appropriate' to proceed with the disciplinary enquiry when a criminal case is pending on identical charges. It is not a matter of course, but required to be taken having regard to the facts and circumstances in each case. One of the most important considerations that may have to be taken into account before stalling the departmental proceedings is that the defence of the employee in the criminal case may be prejudiced if the departmental enquiry is simultaneously held. This may be done in cases of grave nature involving complicated, questions of fact and law. It is well settled that acquittal in a criminal case by the competent court of criminal jurisdiction does not confer any automatic right upon the delinquent employee for his reinstatement into the service, even if the prosecution and the departmental enquiry is based on same set of facts. The distinction between the criminal proceeding and the departmental proceeding is clear. The nature of proof required in a criminal case for establishing the charges and the departmental proceedings for proving the misconduct is not one and the same. It cannot be said that the charges in a criminal case and departmental proceedings would be the same, merely because the same set of facts are involved. The question that falls for consideration in a criminal case is as to whether the charged person is guilty of offence punishable under Indian Penal Code or any penal statutes for the time being in force, whereas in a departmental enquiry what is required to establish is as to whether the employee is guilty of misconduct. The misconduct is invariably defined by the rules or regulations, as the case may be, by which an employee's conduct is regulated. The misconduct under rules or regulations is entirely different from that of an offence under Indian Penal Code or any penal statutes, as the case may be. On the same set of facts, the disciplinary authority and the criminal Court can come to different conclusions with regard to the allegations made against the delinquent officer. The conclusions so reached operate in different fields. The consequences that flow from such conclusions are also different. It may be true that acquittal of an employee of the charges in a criminal case may have some bearing in considering the proportionality of punishment by the Labour Court in exercise of its jurisdiction under section 11-A of the Act. But the judgment of the criminal Court cannot be held to be conclusive. The Labour Court is not bound by the judgment of the criminal Court. The Labour court is not bound to direct the reinstatement of an employee into service on the sole ground of employee's acquittal even on merits in the criminal case. It may be one of the factors to be taken into consideration in awarding appropriate punishment in exercise of its jurisdiction under Section 11-A of the Act. The same principle would apply to the proceedings before the disciplinary authorities. The Labour Court in the instant case, upon reappreciation of evidence and material available on record, came to the conclusion that the findings of the Enquiry Officer are based on evidence and any reasonable person would draw the same conclusions as drawn by the enquiry Officer. The Labour Court accordingly held that both the charges framed against the petitioner herein were proved. The Labour Court had also taken into consideration the judgment rendered by the criminal Court in C. C. No. 67 of 1989 for the purpose of deciding the proportionality of punishment in exercise of its power under Section 11-A of the Act. It is under those circumstances, the Labour Court came to the conclusion that the petitioner is entitled for reinstatement into the service without back wages and without continuity of service. The judgment of the Labour Court in my considered opinion, does not suffer from any legal infirmity. The labour Court had not committed any irregularity whatsoever in passing the Award. The Award is not vitiated by any error apparent on the face of the record requiring any correction as such by this Court in exercise of its certiorari jurisdiction. This Court cannot interfere with the findings of the Labour Court by substituting its own opinion for that of the Labour Court. Such a course is not permissible in law. The charges held proved against the petitioner herein are very serious in nature. There is sufficient evidence available on record that the petitioner drove the vehicle in a rash and negligent manner culminating into a fatal accident involving two lady pedestrians, one of them succumbed to injuries in the Government General Hospital, Ponnur. In the circumstances, I am of the opinion that the petitioner is not entitled for any back wages and continuity of service……….” (emphasis supplied) From the aforesaid judgment, it is evident that the judgment of the Criminal Court is not conclusive and while it would also be a factor, the Labour Court is required to examine several other factors in deciding as to whether the charges levelled against the delinquent employee are established and whether the punishment imposed, for the proved acts of misconduct, is proportionate or not. Sri A.K.Jayaprakash Rao, learned counsel for the petitioner, would, however, rely on Capt. M. Paul Anthony v. Bharat Gold Mines Ltd.[2] and G.M.Tank v. State of Gujarat[3] to contend that on acquittal in a criminal case, no disciplinary proceedings can be instituted against an employee. Both in Capt. M. Paul Anthony1 and G.M.Tank2, the Supreme Court held that where the facts and evidence in the departmental enquiry as well as criminal proceedings were the same without there being an iota of difference, then acquittal in a criminal case would necessitate disciplinary proceedings not being continued thereafter. In the case on hand, the Labour Court has not even examined whether the charges in the criminal case and in the disciplinary proceedings are identical, whether the witnesses examined in both the criminal case and the disciplinary proceedings are same and whether the evidence adduced, in the criminal case and the disciplinary proceedings, is similar without there being an iota of difference, for it is only in such limited category of cases would an acquittal in a criminal case bind the disciplinary authority. The Labour Court, in addition to the judgment of the criminal Court in C.C.No.124 of 1991, ought to have examined the evidence adduced in the enquiry, the enquiry report, the order of the disciplinary authority etc and after exercising its jurisdiction under Section 11-A, of reappreciating the evidence on record, recorded a finding whether the charges levelled against the workman are established or not, for it is only if the charges are held established would the question, of examining whether the punishment imposed by the employer for the charge held established, arise for consideration. If the charges levelled against the first respondent of rash and negligent driving had been held established by the Labour Court, since such an act had resulted in loss of the life of a pedestrian, the punishment substituted by the Labour Court of reinstatement without back wages cannot be justified as a driver, whose rash and negligent driving has caused the death of a pedestrian, ought not to be permitted to continue to discharge the duties of a driver. The question, however, remains whether the charges of rash and negligent driving have been established, on the evidence on record, before the Labour Court. Sri A.K.Jayaprakash Rao, learned counsel for the petitioner, would make submissions on merits to contend that a perusal of the evidence on record would show that the first respondent-workman was not guilty of rash and negligent driving. The distinction between the jurisdiction conferred on the Labour Court under Section 11-A of the Act and the certiorari jurisdiction exercised by this Court under Article 226 of the Constitution of India cannot be lost sight of. While the Labour Court, under Section 11-A of the Act, has specifically been conferred the power to reappreciate the evidence on record, this Court, in exercise of its Certiorari jurisdiction, would not sit in appeal over findings of fact recorded by the Tribunal nor would it re- appreciate the evidence on record to come to a different conclusion than the one arrived at by the Tribunal. It is not for this Court to substitute its views for that of the Tribunal and it is only when there is an error apparent on the face of record would this Court interfere. In the present case, the Labour Court has failed to exercise its jurisdiction under Section 11-A of the Act to reappreciate the evidence on record and record a finding whether the first respondent- workman is guilty of the charges levelled against him. It is only after recording such a finding, can the Labour Court go into the quantum of punishment. Viewed from any angle, the award of the Labour Court suffers from a patent error of law apparent on the face of the record and is required to be quashed. Sri A.K.Jayaprakash Rao, learned counsel for the petitioner, would submit that the first respondent-workman was reinstated into duty immediately after the award of the Labour Court, in I.D.No.165 of 1993 dated 06-02-1997, in January, 1998 and that he has been continuing in service ever since. Since the dispute relates to the year 1993, and 15 years has elapsed since then, ends of justice would be met if the Labour Court is directed to consider the matter afresh, under Section 11-A of the Act, and pass a reasoned award in accordance with law, as expeditiously as possible, in any event not later than four months from the date of receipt of a copy of this order. In the interregnum, till an award is passed afresh, the petitioner shall continue the first respondent in service. The Writ Petition is, accordingly, allowed. However, in the circumstances without costs. _______________ 15-02-2008 usd [1] 2001(1) ALT 3 [2] 1999(3) SCC 679 [3] 2006(5) SCC 446