IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.02.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.11484 of 2000 Tamil Nadu State Transport Corporation, (Coimbatore Division I) Ltd., 37, Mettupalayam Road, Coimbatore. ... Petitioner Vs 1.M.Govindaraj 2.The Presiding Officer, Industrial Tribunal, Chennai. ... Respondents Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of certiorari, calling for the records of the second respondent in Petition No.11/98 and quash the order dated 9.2.2000. For petitioner : Mrs.Rita Chandrasekaran for Mr.Jayesh Dolia For Respondents : Mr.S.Arunachalam for R1 O R D E R Heard both sides. 2. This writ petition is filed by the Management against the order dated 09.02.2000 passed by the second respondent/Industrial Tribunal made in Approval Petition No.11/98 in I.D.No.3/1990. 3. The brief facts leading to the filing of the writ petition are as follows: The petitioner Management filed the petition under Section 33(2)(b) of the Industrial Disputes Act seeking approval of their action of dismissing the first respondent from service by an order dated 20.02.1998. The first respondent filed a counter statement refuting the stand of the petitioner. Before the Tribunal, the petitioner had filed 17 documents, which were marked as Exs.M1 to M17. On the side of the first respondent, no documents were filed. All the exhibits were marked by consent. https://hcservices.ecourts.gov.in/hcservices/ 4. It is the case of the petitioner that the first respondent joined the service of the Corporation on 30.05.1986 as Conductor. While he was on duty in a bus plying from Coimbatore to Madurai, he went to the front portion of the bus and offered betel nut (Roja Supari) to the Driver of the bus. The Driver of the bus took out his hand from holding the steering wheel to receive the betel nut. In that process, he had lost control of the bus and dashed the bus onto a tamarind tree on the left side of the road. Due to this sudden accident, 30 passengers inside the bus have sustained injuries ranging from simple to grievous one. The bus also sustained damage worth Rs.1,10,355/-. 5. Therefore, the first respondent was charge sheeted and was suspended from service with effect from 22.01.1997. He was also issued with a charge memo. The first respondent submitted his explanation. Since the explanation submitted by the first respondent was not satisfactory, a domestic enquiry was conducted after observing principles of natural justice. The Enquiry Officer held that the charges were proved. After considering the report of the Enquiry Officer and on the basis of his previous record, the Corporation came to the conclusion that the first respondent should be dismissed from service. After the issuance of a second show cause notice dated 14.11.1997, the first respondent was dismissed from service. He was also offered one months' wages in lieu of notice pay. 6. Since a dispute was pending before the Tribunal in I.D.No.3/90, an approval petition was filed under Section 33(2)(b) of the I.D.Act. The second respondent took the same on its file as Approval petition No.11/98 and notice was issued to the first respondent. The Tribunal held that the charges against the first respondent was not proved with legal evidence. No eye witnesses were examined to prove the allegation against the first respondent. The Enquiry Officer's report was based on conjectures and not by any legally acceptable evidence. It is this order refusing the grant of approval, the writ petition was filed. 7. The writ petition was admitted on 10.07.2000 and an order of interim stay was granted. Subsequently, the interim application was dismissed by this Court on 07.01.2003. 8. Mrs.Rita Chandrasekaran appearing for Mr.Jayesh Dolia, learned counsel for the petitioner contended that the order passed by the Tribunal suffers from material irregularity. In support of her contention, she relied upon a judgment of the Supreme Court in Cholan Roadways Ltd. v. G.Thirugnanasambandam,(2005) 3 SCC 241. In that case, the Supreme court dealt with the case of an approval petition passed by the Tribunal which was upheld by the Division Bench was set aside by the Supreme Court. https://hcservices.ecourts.gov.in/hcservices/ 9. In paragraphs 17 to 21 of the judgment, it was observed as follows: "17. There cannot, however, be any doubt whatsoever that the principles of natural justice are required to be complied with in a domestic enquiry. It is, however, well known that the said principle cannot be stretched too far nor can it be applied in a vacuum. 18. The jurisdiction of the Tribunal while considering an application for grant of approval has succinctly been stated by this Court in Martin Burn Ltd. v. R.N. Banerjee. While exercising jurisdiction under Section 33(2)(b) of the Act, the Industrial Tribunal is required to see as to whether a prima facie case has been made out as regards the validity or otherwise of the domestic enquiry held against the delinquent, keeping in view the fact that if the permission or approval is granted, the order of discharge or dismissal which may be passed against the delinquent employee would be liable to be challenged in an appropriate proceeding before the Industrial Tribunal in terms of the provision of the Industrial Disputes Act. In Martin Burn case this Court stated: (AIR p.85, para 27) “A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. It may be that the Tribunal considering this question may itself have arrived at a different conclusion. It has, however, not to substitute its own judgment for the judgment in question. It has only got to consider whether the view taken is a possible view on the evidence on the record. (See Buckingham & Carnatic Co. Ltd. v. Workers of the Company.)” 19. It is further trite that the standard of proof required in a domestic enquiry vis-à-vis a criminal trial is absolutely different. Whereas in the former “preponderance of probability” would suffice; in the latter, “proof beyond all reasonable doubt” is imperative. https://hcservices.ecourts.gov.in/hcservices/ 20. The Tribunal while exercising its jurisdiction under Section 33(2)(b) of the Industrial Disputes Act was required to bear in mind the aforementioned legal principles. Furthermore, in a case of this nature the probative value of the evidence showing the extensive damages caused to the entire left side of the bus; the fact that the bus first hit the branches of a tamarind tree and then stopped at a distance of 81 ft therefrom even after colliding with another bus coming from the front deserved serious consideration at the hands of the Tribunal. The nature of impact clearly demonstrates that the vehicle was being driven rashly or negligently. 21. Res ipsa loquitur is a well-known principle which is applicable in the instant case. Once the said doctrine is found to be applicable the burden of proof would shift on the delinquent. As noticed hereinabove, the enquiry officer has categorically rejected the defence of the respondent that the bus was being driven at a slow speed." (Emphasis added) Therefore, in the light of the same, the learned counsel prayed for setting aside the order. 10. The learned counsel also referred to a subsequent judgment of this Court in Tamil Nadu State Transport Corporation (Coimbatore Division I) Ltd., v. V.K.Murugan reported in (2010) 1 MLJ 749, wherein this Court set aside the order passed by the Tribunal and remanded the matter for fresh disposal. 11. It must be stated that in the case of Cholan Roadways Ltd. (cited supra), wherein, the Supreme Court took exception to the view taken by the Tribunal as recorded in paragraph 8, which is as follows:- "8. As an industrial dispute was pending before the Industrial Tribunal the appellant herein filed an application under Section 33(2)(b) of the Industrial Disputes Act for grant of approval of the said order of dismissal. The learned Presiding Officer, Industrial Tribunal by an order dated 29-4-1988 despite holding that “the scope of adjudication in a proceeding under Section 33(2)(b) of the Industrial Disputes Act is limited and while granting approval it does not sit as a court of appeal reappreciating the evidence for itself but has to examine the findings of https://hcservices.ecourts.gov.in/hcservices/ the enquiry officer on the evidence adduced in the domestic enquiry to ascertain whether a prima facie case had been made out on the charges levelled or if the findings are perverse”, came to the following findings: “In the instant case, the domestic enquiry conducted cannot be considered as fair and proper and is vitiated on account of the failure of the enquiry officer to observe the principles of natural justice by not examining the passengers who had given the statements.” 12. The concept of res ipsa loquitur may have some relevance in dealing with a case of an accident which by itself can throw some light on the negligence of a Driver. Even such conclusion will have to be based upon several facts including the tyre mark, nature of injury and the topo plan etc. 13. In the present case, the allegation was that the bus conductor gave Roja supari to the Driver, while he was driving and that caused the accident. It is the specific act of misconduct, which has been denied both by the Driver and the Conductor. May be in the case of the Driver, the circumstantial evidence including the topo plan, the motor vehicle inspector's subsequent report can throw some light invoking the principle of res ipsa loquitur. But in the case of the conductor, since both of them have denyied the charges, it cannot be concluded that only because of his handing over Roja supari to the Driver, the accident had taken place and therefore, he had also contributed to the cause of accident. If it is viewed in this angle, then no exception can be taken to the order passed by the Tribunal impugned in the writ petition. 14. In paragraph 7 of the impugned order, the Tribunal had observed as follows:- "In none of the earlier documents, such kind of an allegation against the respondent is mentioned. Only 13 days later, in Ex.M11 the branch manager has introduced such allegations against the conductor, respondent herein and therefore such allegations is not only an after thought but also the brain child of the branch manager as suggested by the respondent in the domestic enquiry. A perusal of daily Notes regarding the condition of the bus would show that various drivers and conductors have written on 21.5.96, 20.5.96, 19.5.96, 18.5.96, 17.5.96 that the streeing of the bus is very tight and it is very difficult to turn the streeing." https://hcservices.ecourts.gov.in/hcservices/ 15. Further in paragraph 8, it had observed as follows:- "8. The fact remains that except the Junior Engineer and the Branch Manager who arrived at the seen long after the occurrence, no other eye witness including the passengers of the bus have been examined as a witness. It is admitted that there were 72 passengers in the bus at the time of accident and about 30 of them were injured. Therefore, the absence of the enquiry officer rests on the evidence of Thiru Iyyasamy, Junior Engineer and Thiru C.Rathinam, Branch manager who are not eye witnesses." With these findings, the Tribunal held that there was no legal acceptable evidence and that no eye witness have been examined to prove the allegation. 16. The counsel for the petitioner contended that hearsay evidence was also acceptable in a domestic enquiry. She placed reliance upon the judgement of the Supreme Court in State of Haryana v. Rattan Singh reported in (1977) 2 SCC 491, wherein the Supreme Court in paragraph 4 held as follows:- : "4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case- law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good...." (Emphasis added) 17. Further, the Supreme Court in Lalla Ram v. D.C.M.Chemical Works Ltd., reported in (1978) 3 SCC 1 laid down the parameters for interfering with an order passed under Section 33(2)(b), which is as follows:- "i)whether a proper domestic enquiry in accordance with the relevant rules/Standing Orders and principles of natural justice has been held; https://hcservices.ecourts.gov.in/hcservices/ ii)whether a prima facie case for dismissal based on legal evidence adduced before the domestic Tribunal is made out;" 18. If it is seen from the parameters pointed out by the Supreme Court, the order impugned in the writ petition does not suffer from any legal infirmity or illegality. Hence, the writ petition stands dismissed. No costs. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar svki To The Presiding Officer, Industrial Tribunal, Chennai. +One CC to MR.Jayesh B.Dolia, Advocate SR.8208 +One CC to Mr.S.Arunachalam Associates, Advocate SR.8236 W.P.No.11484 of 2000 KSK(CO) https://hcservices.ecourts.gov.in/hcservices/