* THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN + WRIT PETITION NO. 4346 OF 1998 % Dated 30-04-2007 # K.H.A. Swamy …. Petitioner Vs. $ The Depot Manager, APSRTC Bus Depot, Kukatpally, Hyderabad and another. …. Respondents ! Counsel for the Petitioner: Mr. V. Narasimha Goud. ^ Counsel for the Respondents: Mr. V.T.M. Prasad <GIST: > HEAD NOTE: ? Cases referred [1] 1995 SCC (L&S) 196 2 Judgment W.P. No. 15839 of 1997 dated 14.06.1996 3 2006 LAB. I.C. 2114 4 (2006) 5 SCC 446 5 2006(1) SCALE 691 6 1992 (4) SCC 711 7 1999(3) SCC 679 8 AIR 1964 SC 787 9 (1981) 2 SCC 714 10 (2004)8 SCC 200 11 (2005)7 SCC 764 12 (1997)2 SCC 699 13 (2001)1 ALD 180) 14 (2001)2 SCC 54 15 2006(5) SCC 173 16 AIR 1970 SC 645 17 AIR 1957 SC 227 18 (2003) 6 SCC 675 19 (1994) 2 SCC 481 THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NO. 4346 OF 1998 ORDER: Repeated proclamation of concern, and lofty statements of having taken adequate measures to ensure safe driving by its drivers, notwithstanding, the present case best illustrates the apathy and indifference of the A.P.S.R.T.C. to the plight of pedestrians. For rash and negligent driving, which resulted in the death of a pedestrian on the accident spot, a criminal case was instituted and disciplinary proceedings held against the petitioner. While he was found guilty of misconduct in the departmental enquiry, and imposed the punishment of removal from service, he was acquitted in the criminal case. The challenge to the order of removal from service resulted in the Additional Industrial Tribunal- cum-Additional Labour Court, Hyderabad directing his reinstatement with continuity of service but without back wages. Curiously, the Respondent A.P. State Road Transport Corporation has permitted the Award of the Additional Industrial Tribunal-cum- Additional labour Court to attain finality and has not chosen to challenge it by way of a writ petition before this Court. It is the petitioner-workman who has approached this Court questioning the said Award to the limited extent that he was denied back wages. Reference to the disciplinary proceedings, the order of the Criminal Court and the Award of the Additional Industrial Tribunal- cum-Additional Labour Court is necessary to show the inept handling of criminal cases by the prosecution and the casual manner in which industrial disputes are dealt with. DISCIPLINARY PROCEEDINGS: The petitioner, a driver at the R.T.C. bus depot, Kukatpally, Hyderabad, was charged of rash and negligent driving, lack of anticipation and failure to take precautionary measures to prevent the accident which resulted in the death of a pedestrian on the spot. The charges levelled against the petitioner were: Charge No.1: “For your gross negligence while driving the vehicle No AAZ 9909 on 22.08.1992 with lack of anticipation and judgment, which has resulted spot death of a pedestrian, which constitutes misconduct in terms of Regulation 28(ix)(a) and (b) of APSRTC Employees (Conduct) Reg. 1963.” Charge No.2: “For having failed to take precautionary measures while operating bus No. AAZ 9909 on 22.08.1992 when you observed the pedestrian fallen from the vision mirror, which constitute misconduct in terms of Regulations 28(xxxii) of A.P.S.R.T.C. Employees Regulations 1963.” The petitioner’s written explanation was called for and, not being satisfied therewith, a departmental enquiry was ordered. During the course of enquiry, the Assistant Manager (Traffic), Sri M. Satish Kumar, who was examined as a witness on behalf of the management, deposed that, on 22.08.1992, he had received a telephonic message from the depot at 22.00 hours informing him that bus No. AAZ 9909 had met with an accident at Lakdikapul resulting in the death of a pedestrian, that he had immediately rushed to the spot and found that the bus had been removed by the driver, from the scene of the accident, and was driven to the Saifabad police station, and the dead body was sent to the hospital for postmortem examination by the Saifabad police station. Sri M. Satish Kumar deposed that, on enquiry, the driver had informed him that he did not know how the accident had occurred and that, when he heard passengers shouting about an accident, he had noticed from the side mirror of the bus that a pedestrian had fallen down at the rear wheel of the bus. In his statement the conductor of the bus Sri M. Bheemaiah stated that the driver had not stopped the bus at Lakdikapul stage, had taken it to Saifabad police station and, when he enquired why he had not stopped at Lakdikapul, the driver had informed him that an accident had taken place. The enquiry officer held that when bus No. AAZ 9909, which was operating from Khairatabad to Nampally, (proceeding towards Charminar), passed Nirankari bridge, the petitioner had taken the vehicle to the extreme right side of the bridge resulting in a pedestrian falling down, the bus rear wheel running over him and his death on the spot. When questioned, during the course of enquiry, the petitioner herein stated that he had already submitted his explanation to the charge memo and that the same be treated as his explanation to the first charge. He denied charge No.2 and submitted that he had never driven the bus in a negligent manner, with lack of anticipation and judgment, as alleged and, since road widening work was going on at the bridge, he had driven the bus slowly with utmost care and proper judgment and that he was not guilty of charge No.2. The enquiry officer held that a keen observation of the rough sketch, of the accident site of bus bearing No. AAZ 9909, revealed that the driver had taken the bus to the extreme right leaving his left side and this might be because of two reasons either that he may have over taken some of the vehicles ahead of his bus or he may have taken a parallel line on a one way traffic, both of which were not warranted. The enquiry officer held that as the driver was passing through one way traffic, that too on a bridge where road widening work was in progress with several road obstacles, he should have driven the vehicle only after the vehicles on his left side and that, instead, he had taken the vehicle to the right, resulting in the accident. The enquiry officer noted that the petitioner himself had admitted that he had noticed, through the side vision mirror, that a pedestrian had fallen below the rear wheel of the bus and, instead of stopping the bus on the spot, he had driven the vehicle to the nearby police station. The enquiry officer held that the reasons put forth by the petitioner for such an act, that he was afraid that he may be assaulted and the vehicle may be damaged by the enraged mob, was not convincing and when he saw, from his side vision mirror, that a pedestrian had fallen down below the rear wheel of the bus if he had stopped the bus, then and there, the pedestrian may have escaped either with minor or major injuries but it would not have led to his spontaneous death. The enquiry officer held that charge No.1 was proved. With regards the second charge the enquiry officer noted that the prosecution witness Sri M. Satish Kumar had stated that the petitioner had seen, from the side vision mirror of the bus, that a pedestrian had fallen below the rear wheel of the bus and that the conductor had also reiterated this fact in his statement. The enquiry officer noted the statement of the petitioner, in his explanation, that he had not caused any accident, that the passengers travelling in his bus were far more than its capacity, that they had started shouting, perhaps on seeing that some person had fallen on the road, and, sensing this, he had taken the bus to the nearby Saifabad police station. The enquiry officer also noted the petitioner’s statement that the pedestrian may have been knocked down by some other vehicle since there were no marks or blood stains on the tyres of the rear wheel of the bus. The enquiry officer found this statement not convincing as the petitioner had, himself, admitted that he had seen through the side vision mirror of the bus that a pedestrian had fallen down below the rear portion of the bus. The enquiry officer noted that the petitioner, on being questioned regarding the approximate speed of his vehicle, had informed that it was about 5 kms per hour as the incident had occurred during peak traffic movement hour, construction work was going on at the bridge, several road girders were placed on the side of the road, several labourers were breaking stones for laying the road and no vehicle, either heavy or light, could go beyond 5 to 10 kmph speed. The enquiry officer held that, if this was true, no pedestrian would suffer spontaneous and immediate death at such low speed. The enquiry officer noted that when questioned about what precautionary measures he had taken to avert the accident, and save a person’s life on sighting a pedestrian falling below the rear portion of his bus, the petitioner had replied that only on hearing a loud noise from the passengers of his bus, had he seen through the vision mirror and noticed that a pedestrian had fallen down below the rear portion of the bus and, if only he had observed this from the front mirror, he would have definitely taken precautionary measures to avert the accident and save the life. He further stated that, as the accident had occurred in the rear portion of the bus, he was not responsible. The enquiry officer held that the petitioner had not taken precautionary measures either before or after noticing from the side vision mirror that a pedestrian had fallen down below the rear portion of the bus even though the passengers in the bus had shouted that an accident had occurred. The enquiry officer held the petitioner responsible for commission of the offence. The petitioner was issued notice dated 28.01.1993 asking him to show cause why the proposed punishment of removal from service should not be imposed on him. In the said show cause notice the disciplinary authority held that, after observing that a pedestrians had fallen down, the petitioner should have stopped the bus, applying sudden break, instead of which he had driven the vehicle to Saifabad police station. The disciplinary authority held that, if the petitioner had stopped the bus, the pedestrian may have sustained minor or even major injuries but the fatal accident could have been averted. After going through the entire case, the joint accident committee report, the sketch of the accident spot and the enquiry officer’s findings, the disciplinary authority held the petitioner guilty of the first charge. On the second charge, the disciplinary authority held that the petitioner did not take any precautionary measures and if he had done so, on noticing that a pedestrian had fallen down from the bus, the fatal accident could have been averted. On receipt of the petitioner’s explanation the disciplinary authority, vide proceedings dated 24.02.1993, came to the conclusion that the proposed punishment of removal from service was the fit and proper punishment to be imposed on the petitioner and ordered that he be removed from service with immediate effect and the suspension period be treated as not on duty. Aggrieved thereby, the petitioner approached the Additional Industrial Tribunal-cum- Additional Labour Court, Hyderabad in I.D. No. 24 of 1996. CRIMINAL PROCEEDINGS: Based on a complaint filed by the head constable of Saifabad police station that, while he was on patrol duty along with another constable, he saw an RTC bus, bearing No. AAZ 9909 belonging to Kukatpally bus depot, coming from Khairatabad being driven in a rash and negligent manner and, on reaching Shyam Talkies, Lakdikapul, it had dashed against a pedestrian who fell down on the road and died on the spot. The complainant stated that he had shifted the deceased to Osmania General Hospital and, thereafter, had lodged a complaint in Saifabad police station. During the course of investigation witnesses were examined and their statements recorded. A panchanama was conducted at the scene of the offence and a sketch was drawn thereof. Since the deceased was unknown, information was conveyed to all newspapers after which the wife of the deceased, and his relatives, came and identified the deceased as Khasim Ali, S/o Mastan Sahab, aged 45 years. On behalf of the prosecution, P.Ws-1 to 9 were examined and Exs.P-1 to P-6 were marked. The XV Metropolitan Magistrate, Hyderabad, in C.C. No. 40 of 1993 dated 10.04.1995, noted that, in order to establish that the accused had caused the death of the deceased, the prosecution had placed reliance on the oral evidence of P.Ws-1 and 8, who were direct eye witnesses, and that the other witnesses P.Ws- 2 to 5 had only identified the deceased as the person involved in the accident, that P.W-6 was the panch witness for the inquest panchanama, that P.W-7 was the doctor who conducted the autopsy over the dead body of the deceased and had furnished the postmortem examination report and that P.W-9 was the investigating Officer. The Criminal Court noted the evidence of P.W-1 that on 22.08.1992, while he was on patrol duty along with another constable, at about 6.30 p.m bus bearing No. 9909, while coming from Khairatabad, had dashed against a person in front of Shyam talkies when the person was crossing the road from Shyam Talkies to Nirankari building, that the bus ran over his right side thigh resulting in his death on the spot, that he, and another constable, had taken the dead body of the deceased to Osmania General Hospital and that he saw the driver of the bus and identified him as the accused. During cross-examination P.W-1 deposed that he did not actually witness the incident and, by the time he reached the spot, public had gathered there. He admitted that he did not state, in Ex.P-1, that he saw the driver of the RTC bus and had identified him. He also deposed that he did not state whether the front tyre or back tyre of the bus had run over the deceased, that he did not see when the bus actually ran over the deceased and that he found the dead body of the deceased on the back side tyre of the bus. P.W-8, an Auto driver, deposed that, while he was waiting for passengers, an RTC bus came from Khairatabad at great speed and hit a pedestrian who came under the wheels of the bus and that the bus driver got down and ran away. In his cross-examination, P.W-8 admitted that the road at Lakdikapul was under repair at the time of the accident, that construction material and stones were lying on the road, that all vehicles, including buses, cars, cycles and pedestrians, used to come only in one way and that the accident occurred on the road towards Nirankari nagar on the right side of the road. He also admitted that he could not say where the deceased received injuries or what clothes he wore. The learned Judge held that P.W-1 did not actually witness the accident and was not definite as to the person who drove the bus. The Trial Judge noted that P.W-8 was also a witness to Ex.P-4, a sketch of the scene of offence, according to which the accident had occurred on the road towards post office side. The Trial Judge held that the evidence of P.W-8 was not definite as to the person who drove the bus, that none of the eye witnesses P.Ws-1, 8 and 9 were definite about the involvement of the accused in the crime and that no other evidence was placed to show that the accused was the driver of the bus involved in the accident. The learned XV Metropolitan Magistrate also noted the evidence of P.W-7, the doctor, that the injuries could not have occurred when a vehicle ran over the person and that the prosecution had failed to prove the nexus between the accused and the accident. The petitioner was acquitted of the charge of having committed an offence under Section 304-A IPC, was set at liberty and his bail bonds cancelled. It is necessary to note that the evidence in the disciplinary enquiry is not the same as in the Criminal Case. While in the Criminal Case the driver, who drove the bus bearing No. AAZ 9909 on the fateful day, was not identified, in the disciplinary enquiry the petitioner himself admitted that he was the driver of the bus and that, from his side vision mirror, he had seen a pedestrian fall down on the rear side of the bus. That the petitioner was acquitted in the criminal case, on the ground that he was not identified as the driver of the bus involved in the accident, is a sad reflection of the manner in which Criminal Cases are being prosecuted. AWARD OF THE ADDITIONAL INDUSTRIAL TRIBUNAL-CUM- ADDITIONAL LABOUR COURT: The Additional Industrial Tribunal-cum-labour Court, in its order in I.D.No.24 of 1996 dated 27.09.1996, upheld the validity of the domestic enquiry. The Additional Industrial Tribunal was required, thereafter, to exercise its jurisdiction under Section 11-A, re-appreciate the evidence on record and determine whether the punishment imposed on the petitioner was proportionate to the charge held established and, if it was not, to decide on the nature and extent of punishment to be imposed. The Additional Industrial Tribunal, in its Award in I.D. No. 24 of 1996 dated 16.10.1996, noted that, in his appeal filed before the Senior Manager, Operations, the petitioner had informed that he was acquitted in the Criminal Case of the charge of rash and negligent driving, that the charges in the disciplinary proceedings and in the Criminal Case were one and the same and that the judgment rendered in the Criminal Case should have been considered for evaluating the disciplinary proceedings. The Tribunal held that, though the petitioner in his appeal had stated that the enquiry report showed that the deceased pedestrian must have touched the rear side body of the bus, the fact that there was road widening work under progress and the road was very congested was not given due weight by the appellate authority who simply held that the petitioner should have stopped the bus. The Tribunal held that the material on record showed that the driver had stopped the bus immediately after observing the pedestrian from the side mirror and it could not, therefore, be held that the petitioner had not taken precautionary measures to avert the accident. The Tribunal held that the vehicle could not be driven at high speed in view of the congested busy road and as road widening work was in progress. The Tribunal also noted that the judgment rendered by the Criminal Court revealed that injuries were not possible on a bus running over a person and that an inference could be drawn that the driver was not at fault. The Tribunal noted that the two eye witnesses in the Criminal Case had stated that the accident spot was under repair, it was filled with construction material, that both of them did not actually witness the accident and they were not certain as to the person who drove the bus. The Tribunal observed that the identity of the accused was in dispute after full trial in the Criminal Case wherein it was held that the prosecution had failed to prove the guilt of the accused for the offence under Section 304-A IPC. The Tribunal noted that the accused was found not guilty of the offence and was acquitted after a detailed trial on the merits of the case. The Tribunal, after referring to the judgment of the Supreme Court in Sulekhchand and Salekhchand Vs. Commissioner of Police[1] and the order of this Court in C. Chenna Reddy Vs. A.P.S.R.T.C[2], noted the statement of the bus conductor that the bus was running at a speed of 5 to 10 kms per hour and found sufficient legal force in the arguments of the learned Counsel for the petitioner that, since the Criminal Case had ended in an acquittal on merits, and the petitioner was held not guilty of the charge, the departmental proceedings should have been dropped. The Tribunal held that the petitioner was entitled for reinstatement with continuity of service but without back wages and that withholding of back wages was adequate punishment in the facts and circumstances of the case. An Award was accordingly passed directing the respondent to reinstate the petitioner with continuity of service but without back wages. It is necessary to note that while 14 documents were marked as exhibits on behalf of the respondent, including the accident sketch as Ex.M-1, the evidence of Sri M. Satish Kumar, Assistant Manager (Traffic) as Ex.M-8 and the findings of the enquiry officer as Ex.M-11, the Tribunal ignored the evidence adduced in the departmental enquiry that the petitioner was the driver of the bus and that, on hearing a commotion from the passengers of the bus, he noticed, from the side vision mirror, that a person had fallen on the rear side of the bus. It is also necessary, in this context, to note that while the doctor, who was examined in the Criminal Case, had deposed that the death of the deceased could not have been caused by the bus running over him, the cause of the death of the deceased, and whether such death could have occurred on his being hit by the bus and falling down below the rear wheel, were among the several questions which, remained unexamined and unanswered. Sri V. Narasimha Goud, learned Counsel for the petitioner, would fairly concede that the order, of the Additional Industrial Tribunal-cum-Additional labour Court, dated 27.09.1996, upholding the validity of the domestic enquiry, is not under challenge in the present writ petition. Learned Counsel would submit that the only question which necessitates examination in this writ petition is whether the Tribunal could have denied back wages without assigning reasons therefor. Learned Counsel would contend that, since the Criminal Court had acquitted the petitioner on merits, the findings in the Criminal Case are binding in disciplinary enquiry proceedings and, as the petitioner had brought this fact of his having been acquitted in the Criminal Case to the notice of the appellate authority, the disciplinary proceedings should have ended in his favour and he should have been reinstated with full back wages. Learned Counsel would rely on Narinder Mohan Arya Vs. United India Insurance Co. Ltd[3], G.M. Tank Vs. State of Gujarat[4], and U.P. State Road Transport Corporation Vs. Shivaji[5]. Learned Counsel would contend that, since the Tribunal has not assigned any reasons for denying back wages to the petitioner, this Court should either mould the relief and grant back wages to the petitioner or remand the matter back to the Labour Court to examine only this question of denial of back wages and that, in a writ petition filed by the petitioner-workman challenging the Award of the Addl. Industrial Tribunal-cum-Addl Labour Court, and as the respondent A.P.S.R.T.C has permitted the said Award to attain finality, this Court should not quash the Award in its entirety, for that would result in a situation where, even in the absence of a challenge to the Award by the respondent–Corporation, the Award, on its now being set aside and remanded, may well be examined by the Addl. Industrial Tribunal-cum-Addl. Labour Court in its entirety including whether the petitioner was or was not guilty of the charge. On the question whether acquittal in a criminal case would, by itself, and without anything more, require the Industrial Tribunal/Labour Court to set aside the punishment imposed in a disciplinary enquiry, the Tribunal placed reliance on Sulekh Chand1 and C. Chenna Reddy2. In Sulekh Chand1, a two judge bench