IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:09.11.2010 CORAM: THE HON’BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NO.47086 OF 2002 The Management Pallavan Transport Corporation Now renamed as Metropolitan Transport Corporation (Chennai Division I) Ltd., Pallavan Salai Chennai 2. .. Petitioner Vs. 1.Moorthy 2.The Presiding Officer Ist Additional Labour Court Chennai. .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorari as stated therein. For petitioner : Mr.G.Muniratnam For respondents: Mr.V.Ajoy Khose for R.1 ORDER The writ petition is filed by the management of Pallavan Transport Corporation, which is now termed as ‘Metropolitan Transport Corporation, Chennai Division’, challenging the award of the Labour Court dated 15.4.2002 made in I.D.No.574 of 1997, by which the Labour Court in the dispute raised by the first respondent, by concluding that the Enquiry Officer’s report is perverse, directed the reinstatement of the first respondent in the petitioner Corporation with continuity of service and benefit of backwages and also all other service benefits. 2. According to the first respondent, he was appointed as a Driver in the petitioner Corporation on 14.4.1990 and when he was driving a bus belonging to the petitioner Corporation in the route No.54A from Saidapet to Thirunindravur, the bus involved in the accident with a car coming from the opposite direction, in which https://hcservices.ecourts.gov.in/hcservices/ three persons travelling in the car died. a) According to the first respondent, he was moving the vehicle on the left side when the ambassador car came on the opposite side rashly, of course, on its left side and on seeing the said car, the first respondent turned the bus towards left side further, but the car turning to its right side, dashed the bus on the right side and due to the accident, the bus without turning to left side, went to right side due to right pulling, causing the fatal accident. b) However, on the ground that it was due to the rash and negligent driving of the first respondent the accident took place, the petitioner management issued a charge memo on 2.5.1990, for which the first respondent submitted his explanation. The petitioner directed for a domestic enquiry and the Enquiry Officer submitted his report finding the petitioner as guilty, based on which a second show-cause notice was issued on 8.9.1990 to the first respondent and after considering the explanation submitted by the first respondent, the petitioner terminated the service of the first respondent in the order dated 26.10.1990. c) Since there were certain other disputes pending, the petitioner filed an approval petition under section 33(2)(b) of the Industrial Disputes Act,1948 in A.P.No.129 of 1990 and approval was granted on 22.8.1991 and thereafter, the first respondent raised industrial dispute in 1997, contending inter alia that the domestic enquiry was not properly conducted and the Enquiry Officer’s report was perverse. d) The said industrial dispute was contested by the petitioner by filing counter stating that the domestic enquiry was conducted by giving sufficient opportunity to the first respondent and all documents relied upon were furnished to the first respondent beforehand and opportunity was given to cross-examine the witnesses produced on the side of the management and therefore, the domestic enquiry was done in accordance with the principles of natural justice and based on the enquiry, the Enquiry Officer found that the charge framed against the first respondent came to be proved and it was thereafter, the second show-cause notice dated 8.9.1990 was given, for which the first respondent gave his explanation on 30.9.1990 and since the explanation was not satisfactory, the first respondent was terminated on 26.10.1990 and approval petition was also ordered and in the approval petition when notice was given to the first respondent/workman, he did not appear. e) It was also the case of the petitioner management before the Labour Court that even though the approval was granted on 22.8.1991, the first respondent has chose to raise industrial dispute after six years. It was also denied that the bus driven by the first respondent was not having road worthiness and on the other hand, the https://hcservices.ecourts.gov.in/hcservices/ bus was 100% fit to ply. It was stated that even during the domestic enquiry the first respondent did not raise the issue that the bus was not road worthy. It was also stated by the petitioner management that the accident itself proved the seriousness of it and therefore, on the basis of Res ipsa loquitur, the industrial dispute must be dismissed. 3. Before the Labour Court, on behalf of the workman, the first respondent/workman was examined as witness while the petitioner management did not examine any witness and on behalf of the first respondent workman, 15 documents were marked as Exs.W1 to W15 and on behalf of the petitioner management, 19 documents were marked as Exs.M1 to M19 and the counter filed in MCOP.No.520 of 1991 before Sub Court, Chengalpattu by the petitioner also marked as Court document, Ex.C1. 4. Having found that the first respondent/driver denied the charge and the explanation submitted by him was not satisfactory, the petitioner employer directed for domestic enquiry. The proceedings in the domestic enquiry were marked as Ex.W4 and Ex.M12 and the Enquiry Officer’s report submitted to the petitioner management was marked as Ex.W5 and Ex.M13. The order of termination dated 26.10.1990 was marked as Ex.W8 and Ex.M16 and the order passed by the appellate authority against the termination order was marked as Ex.M19. The accident report filed by the Transport Inspector was marked as Ex.M1 and according to the petitioner management, the report says clearly that the petitioner, while driving the bus, went to the right side beyond the centre line and that itself is sufficient to prove the negligence. The Motor Vehicles Inspector in his report marked as Ex.M4 dated 14.4.1990, stated that the accident was not due to the mechanical failure. The Labour Court found that the first respondent driver, during the domestic enquiry requested the Branch Manager of the petitioner management on 12.5.1990 (Ex.M7) to furnish certain documents. Even though it was the case of the petitioner management that such documents were furnished, the Labour Court found that there is no evidence to show that those documents were furnished to the first respondent. 5. In the claim petition filed by the driver of the ambassador car for compensation in MCOP No.520 of 1991, the petitioner in the counter affidavit filed before the Motor Accidents Claims Tribunal marked as Ex.C1, has stated that the accident did not take place due to the negligence of the first respondent driver and that the first respondent driver followed the rules, while the driver of ambassador car ought to have avoided the accident. It was also denied therein that the driver of car was having any licence. Therefore, the Labour Court found that the petitioner management having taken a stand before the Tribunal that the first respondent driver was not negligent in driving, attempted to take a different stand in the disciplinary proceedings to the effect that the first respondent was https://hcservices.ecourts.gov.in/hcservices/ negligent, rejected the case of the petitioner. 6. It was also found that in the domestic enquiry one Section Officer, Thiru Govindarajan was examined as witness on behalf of the employer, who was not an eye witness for the accident and further, no public or passenger was examined as witnesses in the domestic enquiry or no statement was obtained from such persons except a statement obtained from the accident section Inspector. The Labour Court accepted the contention raised on behalf of the first respondent driver that he was not responsible for the accident, especially when the claim of the first respondent has not been disproved by any eye witness and also taking note of the fact that the complaint given by the accident section Inspector along with his report and sketch and also his oral evidence are all not legally acceptable and his evidence was only based on his own assumptions and presumptions. 7. The Labour Court held that the evidence of the said management witness before the Enquiry Officer in the domestic enquiry can only be taken for the purpose of deciding that there was an accident and the same cannot be used to decide as to whether the first respondent driver was negligent. The Labour Court has also found that in the domestic enquiry the first respondent driver examined one of the passengers of the bus who has stated that in spite of the brake applied by the first respondent driver, the bus was pulled on the right side. The said passenger has also stated that even though the ambassador car on the other side was coming on its left side with great speed, it turned to its right side while reaching near the bus and caused the accident and the Labour Court therefore found that the driver of the car was only responsible for causing the accident. 8. The Labour Court has also found that in the domestic enquiry, the first respondent driver was not cross-examined and therefore, it should be taken that his evidence is uncontroverted evidence and in spite of these, the Enquiry Officer found that the first respondent was responsible for the accident which was found to be perverse. The Labour Court has also found that even though the charge against the first respondent driver itself was not that he was driving with rash speed, when the charge states that the first respondent has violated the Motor Vehicles Rules, there is no specific conduct imputed on him. However, the Enquiry Officer has raised an issue by himself as to whether the first respondent driver has driven the bus with great speed and found that he has driven the bus with great speed, which is also found to be a perverse by the Labour Court. 9. The Labour Court has further found that as per the judgment of criminal Court marked as Ex.W10, the first respondent driver was acquitted on the basis that the charge framed against him was not proved and if really the petitioner management found that there are https://hcservices.ecourts.gov.in/hcservices/ sufficient evidence to show that the first respondent driver committed the offence, it should have taken appropriate steps to prove the same, but, the criminal Court found that there was no evidence against the first respondent and inasmuch as the version of the first respondent driver remained uncontroverted, since he was not cross-examined by the petitioner management, the evidence of the first respondent has to be taken as such and on that basis, the Labour Court found that there can be no other option but to say that the report of the Enquiry Officer is perverse. 10. The Labour Court has further found that even in the order of removal passed by the petitioner management marked as Ex.W8 dated 26.10.1990, the management admitted that the first respondent had never involved in any accident previously. However, the petitioner management chose to state in the counter filed before the Labour Court that the first respondent had involved in many accidents and he was punished, without filing any proof or particulars. It was, considering the entire situation as stated above, the Labour Court found that there was no basis for the Enquiry Officer’s report and the same was found to be perverse and the order of termination passed by the petitioner management based on such report of the Enquiry Officer was set aside and award passed, as stated above. 11. Mr.G.Muniratnam, learned counsel appearing for the petitioner management would vehemently contend that when the Motor Vehicles Inspector’s report along with the sketch marked as Ex.M5 was before the Labour Court and the contents of the same also show that the first respondent, while driving the bus, drove the bus on the right side of the road beyond yellow line which is against the Rules and therefore, on the principle of res ipsa loquitur, the contents are to be taken as such and therefore, according to him, the management had no further obligation to provide any other document. He would rely upon the judgments in Anna Transport Corporation Ltd., Salem vs. The Presiding Officer, Labour Court, Coimbatore and another [2000 (1) MLJ 664] and Tamil Nadu State Transport Corporation (Coimbatore Division I) Ltd., 37, Mettupalayam Road, Coimbatore vs. V.K.Murugan and another [2010 (1) MLJ 749], apart from two unreported judgments to substantiate his contention in this regard. a) He would also submit that the Labour Court has not discussed anything about the documents filed in the domestic enquiry in the proper manner, especially when it exceeded its jurisdiction by holding that the Enquiry Officer’s findings are perverse. He would rely upon the judgment in Lalla Ram vs. Management of D.C.M. Chemical Works Ltd., [1978 (1) LLJ 507]. It is his further submission that when prima facie it was found against the first respondent in the approval petition filed before the Labour Court under section 33(2) (b) by the petitioner management and that has become final, having not been challenged by the first respondent driver, the same is binding on the first respondent. He would rely upon the judgment in https://hcservices.ecourts.gov.in/hcservices/ Cholan Roadway Ltd., vs. G.Thirugnanasambandam [2005 (1) LLJ 569]. b) It is his submission that what was given by the first respondent driver before the Enquiry Officer was only a statement and that cannot be treated as evidence and therefore, it is not proper for the Labour Court to comment that the statement of the first respondent driver is uncontroverted holding that the finding of the Enquiry Officer is perverse. He would rely upon the judgment in Neeta Kaplish vs. Presiding Officer, Labour Court and another [1991 (1) LLJ 275 (SC)]. c) His submission is that in the absence of any finding by the Labour Court regarding the fairness of enquiry, it is improper on the part of the Labour Court to set aside the enquiry report based on the documents filed by the workman. It is his further submission that by setting aside the order of termination, there can be no automatic reinstatement and the Labour Court should have given a finding as to why the first respondent driver kept quiet for a period of six years for raising the industrial dispute. 12. On the other hand, it is the contention of Mr.V.Ajoy Khose, learned counsel appearing for the first respondent driver that it is not correct to state that the approval granted under section 33(2)(b) of the I.D.Act has not been challenged and the workman has got a right to challenge the same in the Industrial Dispute raised by him and in fact, he has challenged the same. a) As far as the delay of six years is concerned, the learned counsel would submit that originally the approval petition under section 33(2)(b) was decided ex parte on 27.1.1992 and thereafter, the application was restored and decided on merit on 27.1.1997 and immediately in February, 1997, the first respondent raised the industrial dispute and there was absolutely no delay. b) It is his submission that the principle of res ipso loquitur would apply only in cases where a party relying upon a document pleads and proves the same and on the facts of the present case, the petitioner management never pleaded or proved the correctness of the Motor Vehicles Inspector’s report and sketch. d) It is his submission that inasmuch as it is the duty of the employer to prove the case against the first respondent driver in the disciplinary proceedings and the same has not been proved, it is not merely the prima facie case which is the requirement under section 33(2)(b) of the Industrial Disputes Act. e) It is his submission that whatever documents the first respondent workman called for were the documents of the employer. It is his submission that when eye witnesses were examined in the domestic enquiry, they were not considered by the Enquiry Officer and https://hcservices.ecourts.gov.in/hcservices/ therefore, the Labour Court held that the finding of the Enquiry Officer as perverse. On the other hand, the management witness M.W.1 was not an eye-witness who has been relied upon by the Enquiry Officer in the domestic enquiry for concluding against the first respondent driver and therefore, according to the learned counsel for the workman, the finding of the Labour Court that the Enquiry Officer’s finding is perverse is within its jurisdiction. The Labour Court has passed the award only based on the domestic enquiry and the Labour Court has not traversed beyond that. f) It is his submission that when the charge framed by the employer against the workman itself is negligence, the Enquiry Officer’s finding of rashness against the first respondent driver is beyond the charge memo and that is why, the Labour Court found that the said finding is perverse. In the absence of eye-witness in the domestic enquiry, there was absolutely no reason for the Enquiry Officer to give the finding of rashness, especially when that was not the charge framed by the employer and therefore, according to the learned counsel, the Enquiry Officer has given unwarranted finding of rashness only to bring the issue within the folder of res ipsa loquitur. g) It is his submission that the evidence given by the first respondent before the Enquiry Officer cannot be stated as a mere statement as if it was given outside and such statement having been made before the Enquiry Officer, if the same remains uncontroverted by cross-examination, the statement is a relevant one to be considered. Therefore, according to him, the Labour Court has correctly found that the evidence of workman before the Enquiry Officer remains uncontroverted and that has to be taken as an acceptable evidence. h) It is also his submission that the approval granted under section 33(2)(b) of the I.D.Act is on different footing, where permission is granted on prima facie case and the nature of proof being prima facie which is required in such case under section 33(2) (b) cannot be equated with the nature of proof required in the disciplinary proceedings resulting in major punishment. He would rely upon the judgments in Tamil Nadu State Transport Corporation (Kumbakonam Division II) Ltd., rep. By its Managing Director, Tiruchirappalli and another vs. P.Karuppusamy [2008 (1) LLN 922 (DB)], Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd., vs. Ram Gopal Sharma and others [(2002) 2 SCC 244] and Cholan Roadway Ltd., vs. G.Thirugnanasambandam [2005 (1) LLJ 569]. i) It is his submission that the first respondent has attained the age of superannuation on 24.11.2002 and by virtue of the order of termination of the year 1990, which stood set aside by the Labour Court, the first respondent suffered without employment for nearly 12 years and therefore, the award of the Labour Court https://hcservices.ecourts.gov.in/hcservices/ directing reinstatement with backwages is perfectly in order. 13. I have heard the learned counsel for the petitioner as well as the first respondent and given my anxious thought to the issues involved in this case. 14. A reference to the petition filed by the first respondent driver raising industrial dispute, no doubt, shows that the employee has taken a stand that the domestic enquiry was not conducted in a fair and proper manner. In fact, he has also taken the stand that some of the documents have not been furnished and the principles of natural justice have not been complied with. In the counter filed by the petitioner management before the Labour Court, the petitioner has taken a categorical stand that the enquiry was conducted by giving adequate opportunity to the parties by complying with the principles of natural justice, however, the petitioner has, no doubt, raised a point that the petitioner may be allowed to substantiate the action taken against the first respondent by adducing fresh evidence in the event of Labour Court holding that the Enquiry Officer has not conducted the enquiry in a fair and proper manner. 15. Section 11A of the Industrial Disputes Act, which is as follows: " 11A. Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen.- Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require: Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter.]" enables the Labour Court to give relief to the workman like, reinstatement, modification of punishment, etc., however, as per the proviso, the Labour Court shall only rely on the materials available on record which means the enquiry report and not any other fresh https://hcservices.ecourts.gov.in/hcservices/ evidence. 16. It is the settled law that, in cases where the Labour Court or the Industrial Tribunal relies upon the Enquiry Officer’s report exclusively for the purpose of giving relief to the workman as per the proviso, there is no question of reliance on any other fresh evidence. It is only on specific finding by the Labour Court that the domestic enquiry was not conducted in a fair and proper manner and there has been a violation of the principles of natural justice, then the Labour Court has to ignore the Enquiry Officer’s report in which event it is certainly the duty of the Labour Court to call upon the employer to prove that the enquiry has been conducted in a proper manner by adducing fresh evidence. 17. Therefore, section 11A of the I.D.Act, which has made a great inroad into the concept of Labour legislation which was originally the domain of the employer to decide the punishment in the enquiry, by shifting the same to the Court to decide otherwise regarding the punishment even while accepting the Enquiry Officer’s report. Therefore, it is an extension of the beneficial legislation given in favour of the workmen by transferring the power to the judicial authority for giving relief to workmen, of course, based on the Enquiry Officer’s report. In such event, as it is stated in the proviso, no fresh evidence shall be adduced. But, on the other hand, if the Labour Court comes to a conclusion that the Enquiry Officer’s report is not fair and proper in the sense that opportunity has not been given, etc., the Labour Court gives one more opportunity to the employer to prove that the enquiry was conducted in a proper manner and thereafter, decides the matter. In those circumstances, fresh evidence is adduced. This has been an established law throughout in India, as the Courts have held as above, while deciding about the term, ‘material on record’ found in section 11A of the Industrial Disputes Act. That was the view expressed by the Hon’ble Apex Court in Neeta Kaplish vs. Presiding Officer, Labour Court and another [1999 (1) LLJ 275], where it was held as under: " 27. The record pertaining to the domestic enquiry would not constitute “fresh evidence” as those proceedings have already been found by the Labour Court to be defective. Such record would also not constitute “material on record”, as contended by the counsel for the respondent, within the meaning of Section 11-A as the enquiry proceedings on being found to be bad, have to be ignored altogether. The proceedings of the domestic enquiry could be, and were in fact, relied upon by the Management for the limited purpose of showing at the preliminary stage