*THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO +WRIT PETITION NO.14712 OF 2001 %Dated 30.12.2009 # Hyderabad Industries Limited, Hyderabad. ..... PETITIONER VERSUS $ The Additional IndustrialTribunal-cum-Additional Labour Court, Hyderabad and another. ...RESPONDENTS ! Counsel for Petitioner: A.K.JayaprakashRao ^ Counsel for Respondents : G.P. for Labour < GIST: > HEAD NOTE: ? Cases referred: 1. AIR 1974 SC 696 2. (2005)4 SCC 4 3. 2001(91) FLR 380 (SC) 4. 2001(5) ALT 65 (D.B) 5. 1994 L.A.B. I.C. 1331 6. (1995) 6 SCC 237 7. (2006) 6 SCC 366 8. 2008(3) SCC 729 9. (2008) 3 SCC 729 10. (2006) 4 SCC 265 11. (2009) 5 SCALE 447 THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No.14712 OF 2001 ORDER : This writ petition is directed against the award passed on 13.03.2001 by the Additional Industrial Tribunal-cum-Additional Labour Court, Hyderabad in I.D. No.22 of 1998 which was raised by the 2nd respondent- workman. The 2nd respondent-workman is employed as a driver in the petitioner company since 1982. On 09.03.1993, he was entrusted with the task of getting one of the trucks of the petitioner company attended to at the workshop near Kavadiguda, Secunderabad and while he was bringing the vehicle back from the said workshop, the workman was said to have caused an accident, on account of rash and negligent driving and hit a pedestrian by name R.Ilaiah, resident of Bholakpur and in the process seriously injured him. The said Ilaiah subsequently succumbed to the injuries while undergoing treatment at Gandhi Hospital at Secunderabad at about 21.30 hours on 09.03.1993. It was also alleged that the 2nd respondent has also hit the compound wall of the house of Mr.M.Muthu Kumar and the compound wall was badly damaged requiring the writ petitioner company to reconstruct the compound wall at its cost. In view of this conduct of the 2nd respondent, he was charge sheeted on 11.03.1993. In the meantime, the police have also registered against him a criminal case bearing C.C. No.667 of 1993 under Section 304-A of Indian Penal Code. Since the explanation offered by the 2nd respondent to the charge sheet was not satisfactory, an enquiry was ordered to be conducted. However, in view of the pendency of the criminal case, the 2nd respondent requested the petitioner company not to proceed simultaneously with the departmental enquiry and hence the writ petitioner company has deferred the said enquiry. On 05.08.1996, the Xth Metropolitan Magistrate, Secunderabad, has acquitted the 2nd respondent- workman of the charge laid against him. Thereafter, the petitioner company took up the issue of conducting the domestic enquiry and examined 2 witnesses on its behalf. Documentary evidence, Exs.M-1 to M-10 are got marked. The 2nd respondent-workman has been examined on his own behalf. He filed Ex.W-1. The Enquiry Officer has drawn up his report holding the 2nd respondent guilty of the two charges laid against him. Based upon the said report, a show-cause notice was issued by the petitioner-management on 10.07.1997 calling upon the 2nd respondent to submit his explanation as to the findings of guilt recorded by the Enquiry Officer. The 2nd respondent’s explanation was not found satisfactory and hence the writ petitioner-management concurred with the findings of the Enquiry Officer and passed orders on 12.01.1998 terminating the services of the 2nd respondent-workman. They have also enclosed a cheque drawn in a some of Rs.1,04,141/- towards final settlement of his account and another cheque drawn in a sum of Rs.29,304/- towards gratuity to this order. Calling in question, this order of termination, the 2nd respondent-workman has raised Industrial Dispute in I.D. No.22 of 1998. By an award on 13.03.2001, the Labour Court directed reinstatement of the 2nd respondent- workman with the benefit of continuity of service without attendant benefits and without backwages. Questioning the legality and validity of this award, the present writ petition has been instituted by the Management. I have heard Sri A.K.Jayaprakash Rao, learned counsel for the writ petitioner and Sri G.Ravi Mohan, learned counsel for the 2nd respondent-workman. Learned counsel for the writ petitioner Sri A.K.Jayaprakash Rao submits that the Labour Court has grossly erred in ordering for reinstatement into service of the 2nd respondent-workman without assigning any reasons muchless valid or tenable one as to why the 2nd respondent should be reinstated. It is contended that no reasons are assigned as to why the report of the domestic enquiry was not sustainable. The findings recorded at the domestic tribunal are not characterized as unsustainable or perverse findings either. It is not found that the domestic tribunal did not follow the procedure prescribed nor was it said that the domestic tribunal did not observe the required principles of natural justice. Therefore, the findings recorded by the domestic tribunal so long as they are not perverse, cannot give authorization to the labour Court to interfere with the punishment imposed. It is further contended that if the 2nd respondent-workman is truly guilty of having caused a motor vehicle accident involving the motor vehicle belonging to the petitioner-company, and in the process, the victim has died and damage was also caused to the property of a private person, requiring the petitioner- company to get it repaired at its own expenses, such a person cannot possibly be retained in service as a driver. Learned counsel submits that the motor vehicles of the writ petitioner-company not only form part of its assets, but they are intended for purpose of serving the cause of the organization. The motor vehicles are therefore required to be driven carefully and skillfully too. Causing fatal accidents involving vehicles of the company would unnecessarily draw a wrong and bad impression about the callousness and lack of concern for human lives on the part of the petitioner-company. The petitioner-company has engaged the services of the 2nd respondent-workman requiring him to not only drive carefully the vehicles, but he was required to employ all the care and skill needed to avoid accidents. When sufficient material was brought before the enquiry officer to demonstrate that the 2nd respondent-workman is responsible for causing accident in question, the labour Court ought not have ordered light heartedly for his reinstatement. Per contra, learned counsel for the 2nd respondent- workman wound Sri Ravi Mohan contend that when a competent criminal Court has gone into the question as to whether the 2nd respondent-workman is the one who caused the accident or not and found that there is no material to arrive at such a conclusion that it is the 2nd respondent-workman, who caused the accident, the domestic tribunal cannot arrive at an exactly opposite of a conclusion upon appreciation of the very same material which was examined by the competent criminal court. If, this was permitted, according to the learned counsel for the respondent, it would amount to sitting in judgment over that of a competent criminal Court, which is impermissible in law. Further, it is contended that the witnesses who have been examined before the domestic tribunal have not witnessed the accident caused by the 2nd respondent-workman. Therefore, the evidence marshaled before the domestic tribunal lacks credibility. Merely because the standard of proof before the domestic tribunal is not the same as the one before the competent criminal Court, it would not enable the domestic tribunal to arrive at a conclusion that it is the workman who has caused the accident in question. According to the learned counsel for the respondent workman the material marshaled before the domestic tribunal by the management was hardly sufficient for a reasonable body of men to arrive at a conclusion that it is the workman who is responsible for causing the accident. I have considered the rival submissions. What emerges as undisputed facts are, that the 2nd respondent-workman was employed by the petitioner Company as a driver in its service. He has been assigned the duty on 09.03.1993 to take the vehicle in question for attending to its maintenance and repairs at one of the workshops situated at Kavadiguda area of Secunderabad. Some of the repair works have been attended to on the vehicle, but however, while the 2nd respondent was bringing the vehicle back, an accident was caused involving the said vehicle and the injured person has been removed to Gandhi Hospital by the 2nd respondent-workman for securing medical attention and treatment and that the injured person, later in the evening succumbed to his injuries. It is the respondent-workman, who got the injured person admitted to the Gandhi Hospital and also informed the police outpost at Gandhi Hospital, about the accident. Therefore, the local police have not only apprehended the writ petitioner, but they have also seized the accident causing motor vehicle. During the course of investigation the vehicle in question was got inspected by the Motor Vehicle Inspector who tendered an opinion that the vehicle in question has not suffered any mechanical failure, for it to be the causative factor of the accident. Further, the police have recorded the statement of the victim at the Gandhi Hospital, as to how, the truck in question has hit him from behind an caused the accident. The F.I.R lodged by the police has been brought before the Domestic Enquiry Tribunal and was also got marked before the labour Court by the writ petitioner as Ex.M-1. Further the case diary of the police was also got exhibited as Ex.M-2. The post mortem examination report of the deceased, which revealed that the death has been caused due to multiple injuries has also been exhibited as Ex.M-3. Hence, the question that is required to be answered at the first instance was whether there is reasonable material before the domestic Tribunal to conclude that it is the 2nd respondent-workman who has caused the accident in question or not. The charge sheet dated 11.03.1993 issued to the workman has clearly alleged that the truck bearing registered No.AET 8831 has been taken out by the respondent-workman for getting certain maintenance and repair works attended to it by M/s.Deccan Engineering Enterprises, Kavadiguda on 09.03.1993. It was further alleged that the said vehicle has been taken out by the 2nd respondent workman from the factory premises of the writ petitioner-company at about 11.50 hours in the morning. It was subsequently informed by the Gandhi Nagar Police Station, Secunderabad that the said vehicle was involved in an accident at about 17.00 hours and that one R.Ilaiah, S/o.Balaiah was seriously injured at Zeera locality in Secunderabad and that the said Ilaiah was admitted to Gandhi Hospital, Secunderabad, where he succumbed to his injuries at about 21.35 hours. Therefore, C.C.No.52 of 1993 was registered by the police against the 2nd respondent-workman. There is a specific allegation made that the conduct of the respondent-workman is in violation of clause 19(1)(k) of the Standing Orders of the company. It is also appropriate to notice, right at this stage, the explanation offered by the 2nd respondent-workman on 15.03.1993 to the said charge sheet. He admits that on 09.03.1993 he was driving lorry No.AET 8831 and that he has taken the said vehicle for some repairs to be undertaken at Deccan Engineering Enterprises, Kavadiguda. After some of the important repair works were undertaken, he was bringing the vehicle back to the factory via Zeera locality and that he was not aware of the factum of “no entry for heavy vehicles” there and hence, he was required to take a diversion to come on to the main road and as there was no rearview mirror and no helper in the vehicle, he himself got down from the lorry, checked behind the vehicle and started to take a turn to come on to the main road. Suddenly, he had heard some shouts and hence, stopped the vehicle. He also states that some passers- by jumped on to the vehicle and started manhandling him and hence he lost control over the vehicle. What has been stated by him next is of some importance and hence, it would be appropriate to quote it: “When I came out of the vehicle, I came to know that a cyclist was injured with the rear portion left side of the vehicle. I immediately engaged an auto rickshaw and took the cyclist to the Gandhi Hospital, Secunderabad for immediate treatment and reported to the Outpost Police Station of Gandhi Hospital”. It therefore emerges that the 2nd respondent-workman does not dispute the fact that he was on duty driving the truck bearing No.AET 8831 on 09.03.1993 and that it is that vehicle which was involved in the accident. The 2nd respondent-workman also does not dispute the fact that the injured has been removed by him and got admitted to the Gandhi Hospital, Secunderabad for receiving necessary medical attention and treatment. However, before the domestic Tribunal, an altogether new plea is raised by him that it is not the vehicle of the company which was involved in the accident in question, but some other white coloured fiat car which sped away from the scene of the accident site that caused the accident. For the first time, the workman has introduced the theory that it is not the vehicle of the company which is involved in the accident, but some other motor vehicle. This theory has not been accepted in view of the explanation submitted by the respondent workman to the charge sheet where he has categorically stated that due to commotion created while he was trying to reverse the truck, he alighted from the vehicle and then came to know that a cyclist was hit by the left hand side rear portion of the truck and as a result of which, the cyclist has received several injuries. He has also admitted that he has removed the injured-cyclist to Gandhi Hospital for medical attention and treatment and more importantly the workman who had lodged a complaint about the accident in question with the Police Outpost at the Gandhi Hospital and nowhere, this theory of “hit and run” by a white Fiat Car was set out. Thus, if the vehicle in question belonged to the company is not the one, which is involved in the accident, the question about lodging a police complaint by the respondent- workman itself would not arise and the Police will not seize the vehicle of the Company either. It is, therefore, clear that the accident was caused involving the vehicle in question belonging to the company. The Enquiry Officer has also dealt with Ex.W-1 the judgment in C.C. No.667 of 1993 by the learned Metropolitan Magistrate, Secunderabad. The learned Metropolitan Magistrate found that there is no material in the prosecution evidence to establish that the accused before him was the driver of the crime van that caused the accident. The learned Metropolitan Magistrate has come to the conclusion that there is no direct or circumstantial evidence before the Court to show that the driver of the said crime van was rash and negligent in driving the said van and caused this accident. The Enquiry Officer, therefore, noticed that these findings are recorded by the Criminal Court in C.C.No.667 of 1993 because there was no direct evidence available before it to establish that the accused before the Criminal Court was the one who drove the vehicle, whereas before the Domestic Tribunal there is no such crisis of identity or difficulty whatsoever. The van in question was seized by the police at Gandhi Nagar, immediately after the accident was caused. That vehicle undoubtedly belonged to the company. It is the company which got the vehicle released subsequently from the custody of the police after the inspection by the Motor Vehicle Inspector was completed. Therefore, there is no crisis of identity before the domestic tribunal with regard to the ownership of the vehicle or about the person who has been assigned the duty to drive the said vehicle on the date when the accident was caused. Therefore, the enquiry officer has rationally deduced that it is the respondent-workman who drove the vehicle in question, that caused the accident. For the purpose of handing down a conviction to a person for causing death carelessly, there should be an element of rashness proved on the part of such a person. In the absence of any direct evidence in that respect, the Criminal Court, perhaps, could not have hand down a conviction to any person, whereas before the Domestic Tribunal, the charge was entirely different. It is not the question of rashness or negligence while driving the vehicle alone, what mattered, but lack of devotion while performing duties and failure to employ necessary degree of skill and care that counts. Hence, the charge is rightly held proved by the domestic tribunal in so far as the respondent-workman is concerned. Such an exercise, to my mind, does not amount to sitting in appeal over the judgment rendered by the Criminal Court. Labour Court never characterized the findings recorded by the Industrial Tribunal as perverse findings. Perversity of conclusions on the part of a Domestic Tribunal was a fatal ground for the subsequent action based thereon. The standard for determining whether a particular conclusion is perverse or not, one has to employ the standard of a reasonable prudent body of men, whether, would have reached the same conclusion as was done by the Domestic Tribunal or not. In other words if the conclusion reached by the Domestic Tribunal is a reasonable one, then the labour Court is not supposed to substitute its opinion to that of the Domestic Tribunal. Where two views are possible on the material gathered by the Domestic Tribunal and if one of them is taken by the enquiry officer, then, it will be improper to call any such finding as irrational finding. The possible view, if taken is liable to be sustained, as in the instant case, it is possible to conclude that the vehicle which caused the accident being the one belonging to the company and being one which is assigned for the 2nd respondent-workman to drive on the fateful day, he can be legitimately held responsible for causing the accident. When a person dies in a motor vehicle accident involving the vehicle of a company, such circumstances will also bring forth certain consequences involving necessity to pay compensation to the victims. This apart, it may even cause loss of reputation or esteem to the organization. Therefore, the exercise of power of disciplinary control over the 2nd respondent- workman has been rightly exercised by the petitioner- company herein. While dealing with the question as to how far the Labour Court or Industrial Tribunal can travel in the matter of exercise of the power available to it under Section 11(A) of the Industrial Disputes Act, the Supreme Court in EAST INDIA HOTELS V. THEIR WORKMAN[1], in para-5, set out clearly the legal principles in this regard as under. “In the undoubted exercise of the right of the employer to take disciplinary action, and to decide upon the quantum of punishment, both of which are part of the managerial functions, what has to be seen is whether the employer before imposing the punishment had conducted a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. When a proper enquiry has been held by an employer and the finding of misconduct has support from the evidence adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the mployer will be justified when the enquiry is unfair or the findings arrived at in the enquiry are perverse or have no basis in evidence or the management is guilty of victimization, unfair labour practice or mala fide or the punishment is harsh and oppressive. The Tribunal cannot, therefore, reappraise the evidence and arrive at a conclusion different from that arrived at by the domestic Tribunal. Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, has to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action; and it is open to the employee to adduce evidence contra. Once misconduct is proved, either in the enquiry conducted by the employer or by the evidence placed before the Tribunal for the first time, the punishment imposed cannot be interfered with by the Tribunal except in case where the punishment is harsh and oppressive. This is not a case where no enquiry has been held nor is it a case where either side had not adduced evidence before the Tribunal. What the Tribunal had to see is whether the enquiry is vitiated by any of the grounds referred to by us. Admittedly, no such grounds exist in this case. Nothing was stated as to in what respects the enquiry was defective. On the other hand, the Tribunal proceeded on the basis that the enquiry was not vitiated, but it had power under S.11A to arrive at a different conclusion and award a different conclusion and award a different punishment. That apart, even the evidence justified the conclusion arrived at by the Enquiry Officer. Applying the above legal principle to the present fact situation, what emerges is that the labour Court has reappraised the entire evidence and without characterizing the findings recorded by the domestic enquiry officer as perverse, it has substituted a different punishment, which is wholly impermissible. It has, literally, exercised the disciplinary power. Learned counsel for the 2nd respondent Sri Ravi Mohan strenuously contended that imposing an excessively harsh punishment itself reflects the anxiety of the employer to get rid of the workman in question. He further submits that the charge in the instant case leveled against the workman was based upon the statement of a police officer and the said police officer was neither examined nor summoned to appear before the domestic Tribunal. No opportunity was ever accorded to the workman to verify the veracity of the statements made by such a police officer and it is a salutary principle under criminal law that statements made or recorded by police officers are inadmissible in evidence. But, in the instant case, the respondent-workman was sought to be penalized only on that score. With regard to the two witnesses who have been examined, Sri Ravi Mohan contends that they are not the direct eye-witnesses to the incident. They were not present near the accident site. Therefore, their statements at best are hear-say. They have ascertained some facts from the source of the police and on that basis the respondent-workman was sought to be victimized. Learned counsel Sri Ravi Mohan, therefore contends that the evidence of M.W-2 is all hear- say evidence and hence, it is inadmissible evidence in domestic enquiry. He has placed reliance on the following judgments. (1) K.C.SHARMA V. DELHI STOCK EXCHANGE AND OTHERS[2] (2) KANHAIYALAL AGRAWAL AND OTHERS V. THE FACTORY MANAGER, GWALIOR SUGAR COMPANY LTD[3] (3) K.DAVID WILSON V. SECRETARY TO GOVERNMENT, LAW DEPARTMENT (LEGISLATIVE AFFAIRS AND JUSTICE), HYDERABAD AND ANOTHER[4] (4) PREM PRAKASH MISHRA V. U.P. STATE TRANSPORT CORPORATION[5] (5) PALGHAT BPL & PSP THOZHILALI UNION V. BPL INDIA LIMITED & ANOTHER[6] Learned counsel would also submit that the standard of proof required before the domestic Tribunal, particularly when the criminal Court has already acquitted, should be a reasonable one not merely based upon preponderance of probabilities. Per contra, Sri A.K.Jayaprakash, learned counsel relied upon the following judgments in support of his plea: (1) UTTARANCHAL ROAD TRANSPORT CORPORATION AND OTHERS v. MANSARAM NAINWAL[7] (2) EMPLOYERS MANAGEMENT WEST BOKARO COLLIERY OF TISCO LTD., V. CONCERNED WORKMAN, RAM PRAVESH SINGH[8]. I n K.C.SHARMA’s case (cited 2 supra), the Supreme Court dealt with the question of payment of compensation in lieu of reinstatement. Wherever the normal relief of reinstatement with full back wages is considered as not feasible to be ordered,