IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE NINETEENTH DAY OF MARCH TWO THOUSAND AND NINE PRESENT HON'BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION No.27211 of 1999 Between: The Depot Manager, APSRTC, Bhadrachalam Bus Depot, Khammam District. ... PETITIONER AND 1 P. Pullaiah, S/o Buchaiah (died) as per L.Rs. APSRTC , Bhadrachalam Depot . R/o Kothagudem, C/o Sri S.Venkateswar Rao, Advocate, H.No.5-11-1193, Pochammakunta, Hanmakonda. 2 Smt. P.Yesamma, W/o Late. Pullaiah, R/o Kothagudem, Co Sri G.Venkateswar Rao Advocate, H.No.5-11-1193, Pochammakunta, Hanmakonda. 3 P. Shantha Kumar, S/o Late Pullaiah, R/o Kothagudem, Co Sri G.Venkateswar Rao Advocate, H.No.5-11-1193, Pochammakunta, Hanmakonda. 4 Smt. Jaya, D/o Late. Pullaiah R/o Kothagudem, Co Sri G.Venkateswar Rao Advocate, H.No.5-11-1193, Pochammakunta, Hanmakonda. 5 P. Nani (Joseph), S/o Late Pullaiah R/o Kothagudem Co Sri G.Venkateswar Rao Advocate, H.No.5-11-1193, Pochammakunta, Hanmakonda. ...RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue any appropriate writ, direction or orders particularly one in the nature of writ of Certiorari, calling for the records pertaining to the award in I.D No.82/95 on the file of the Industrial Tribunal cum Labour Court, Warangal dt. 17-4-99 and published on 16- 8-99 and quash the same as being illegal , arbitrary and unjust. Counsel for the petitioner: Smt. P. Rajani Reddy (SC FOR APSRTC) Counsel for the respondents: Mr. A.K. Jayaprakash Rao The Court made the following Order: This writ petition is filed by the A.P. State Road Transport Corporation, represented by its Depot Manager, Bhadrachalam, Khammam District, challenging the award dated 17-04-1999, passed by the Industrial Tribunal-cum-Labour Court, Warangal, in I.D.No.82 of 1995. 2. The first respondent herein was working as driver in APSRTC at Bhadrachalam Depot in Khammam District. On 31-05-1992, when he was on duty driving the bus bearing No.AP-9-Z-1218 on the route Macherla – Bhadrachalam, the said bus met with an accident at Narasimharaopet in between Thallada and Enkur at about 13.20 hours. In the said accident, a boy aged about 10 years came under the left rear wheel of the bus, got crushed and succumbed to injuries. With reference to the aforesaid accident, disciplinary proceedings were initiated against the first respondent and charge-sheet dated 06-07- 1992 was issued to him framing the following charge: “For having driven the vehicle No.AP.9Z.1218 on 31.5.92 in a rash and negligently with lack of anticipation, a boy aged 10 years, near Narasimharaopet at about 13.20 hours was run-over by the bus and instantaneously died while operating the vehicle No.AP.9Z.1218 on route, Macherla- Bhadrachalam, which constitution misconduct under Reg.28(ix)(b) of APSRTC Employees (Conduct) Regulations, 1963.” 3. The first respondent filed explanation denying the said charge. Having not satisfied with the explanation, a regular enquiry was ordered by appointing an enquiry officer. Based on the findings recorded by the enquiry officer in his report, by issuing further show cause notice and considering the explanation offered by the first respondent, order dated 03-11-1992 was passed by the disciplinary authority removing him from service. Challenging the said order of removal, the first respondent, during his lifetime, filed an application under Section 2-A (2) of the Industrial Disputes Act, 1947 before the Industrial Tribunal-cum-Labour Court, Warangal. The Tribunal, by award dated 17-04-1999, recording a finding that the findings of the enquiry officer are contrary to the evidence on record and illegal, set aside the order of removal of the first respondent dated 03-11-1992 and ordered for payment of back-wages from the date of suspension, i.e. 06-07-1992 to 21-11-1997 (the date of death of the first respondent). The Tribunal has also observed that if the first respondent was alive, as a consequence of setting aside the order of removal, he would have been entitled for reinstatement with continuity of service. While stating so, the Tribunal has directed the petitioner-corporation to consider and appoint one eligible member of the family of the first respondent in any suitable job on compassionate grounds. Aggrieved by the award of the Tribunal, the present writ petition by the APSRTC. 4. Heard Smt. P. Rajani Reddy, learned Standing Counsel appearing for the petitioner-APSRTC and the Sri A.K. Jayaprakash Rao, learned counsel appearing for the legal representatives of the first respondent. 5. It is contended by the learned Standing Counsel for the petitioner-APSRTC that, in this case, though the first respondent was negligent in driving the bus, which resulted in a fatal accident and instantaneous death of a boy aged about 10 years, the Tribunal interfered with the findings recorded by the enquiry officer and set aside the order removing the first respondent from service. It is submitted that as the first respondent had driven the vehicle without any anticipation and in a negligent manner, he was rightly removed from service based on the findings recorded by the enquiry officer and the Tribunal without any authority or jurisdiction issued directions for employing one eligible member of the family of the first respondent in the corporation, on compassionate grounds. 6. On the other hand, it is contended by Sri A.K. Jayaprakash Rao, learned counsel for the respondents that, there was no evidence at all to prove negligence on the part of the first respondent and in spite of the fact the findings recorded by the enquiry officer are contradictory, the order of removal was passed. It is submitted that it is always open for the Tribunal to re-appreciate the evidence on record to come to a correct conclusion. It is further submitted that as much as the order of removal was passed in absence of any evidence and supporting material in respect of the charge framed against the first respondent, the Tribunal has set aside the order of removal of the first respondent dated 03-11-1992 and ordered for payment of back-wages from the date of suspension, i.e. 06-07-1992 to 21-11-1997 (the date of death of the first respondent). It is further submitted that the Tribunal while observing that, had the first respondent been alive, as a consequence of setting aside the order of removal, he would have been entitled for reinstatement with continuity of service, rightly directed the petitioner-corporation to consider and appoint one eligible member of the family of the first respondent in any suitable job on compassionate grounds in the existing scheme. 7. Though a copy of the enquiry report is not filed along with the writ petition, the learned Standing Counsel for the APSRTC has placed before this court the file which contains the enquiry report and the findings recorded therein by the enquiry officer. In the departmental proceedings initiated against the first respondent, except the statements of the service conductor and the driver, there is no other evidence on record. The charge framed against the first respondent is that the accident occurred due to his negligence and a boy aged 10 years was run-over by the bus as he came under its left rear wheel. Though negligence is attributed to the first respondent, but it was the specific case of the first respondent that the deceased boy was crossing the road from right to left and on seeing the boy, he slowed down the bus and thereafter when he was moving the bus, the boy immediately tried to cross the road from left to right, without noticing the bus, and, as such, came under the left rear wheel of the bus. It is interesting to note the following findings recorded by the enquiry officer, which are self-contradictory. “In normal course there is no possibility to run-over the left rear tyre when he crossed the road from right to left. The reasons for this were not discussed or obtained. The service driver argues that the boy who crossed the road from right to left turned back again and contacted the body of the bus. Basing on the above discussions I feel this argument is genuine. In spite of recording the aforesaid finding, a further finding is recorded which is as under: “Had the driver driven the bus carefully, the bus would have been stopped for some more time till the boy crossed the road completely. Since this was not done, the present accident. But, since the boy was runover by the left rear tyre, the entire argument that the boy crossed the road from right to left and against turned back, this argument is unbelievable. No boy will do like that.” 8. From a reading of the aforesaid findings, it is clear that they are quite contradictory to one another and do not cohere. It was the specific case of the first respondent that the boy moved from right to left and noticing the same, he slowed down the bus and when he started moving the bus, the boy, again, without noticing the bus, tried to run from left to right, hit the bus and came under the left rear wheel of the bus. In view of the same, it is clear that there is no negligence on the part of the first respondent in driving the bus. Moreover, in the enquiry proceedings, there is no evidence or supporting material before the enquiry officer to attribute negligence on the part of the first respondent for causing the accident. It is to be seen that, with reference to the accident, criminal proceedings were initiated against the first respondent and he faced trial in C.C.No.98/92 on the file of the Judicial Magistrate of First Class, Madhira, for the alleged offence under Section 304-A of Indian Penal Code and he was acquitted on the ground that there was no evidence at all on record proving that he was rash and negligent and contributed for the death of the boy. Taking into account the findings recorded by the competent criminal court and also in absence of any evidence and supporting material to prove that the first respondent was negligent, the Tribunal has come to a correct conclusion that the charge framed against the first respondent was not proved. Moreover, the findings recorded by the enquiry officer in the departmental proceedings are contradictory to one another and based on no evidence. As much as the reasons recorded by the Tribunal are valid and sound, I do not find any valid ground to interfere with the impugned award of the Tribunal, to the extent of setting aside the order of removal. But, at the same time, in the impugned award, the Tribunal has directed the corporation to extend the benefit of compassionate appointment to one of the members of the family of the first respondent. The said direction cannot be sustained for the reason that, so far as appointments on compassionate grounds are concerned, it all depends on the conditions notified under the scheme. The availability of the scheme and the eligibility of the applicants is the criterion for considering the claim for appointment on compassionate grounds. Therefore, I am of the view that the Tribunal has exceeded its jurisdiction by issuing directions for appointment of one of the family members of the first respondent on compassionate grounds. 9. For the foregoing reasons, the impugned award of the Tribunal is set aside only to the extent of issuing directions to consider and appoint one of the eligible members of the family of the first respondent in the service of the corporation on compassionate grounds. The award of the Tribunal is confirmed in all other respects. 10. The writ petition is allowed to the extent indicated above. No order as to costs. _____________________ R. SUBHASH REDDY, J. March 19, 2009 MRR