IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24.02.2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE T.MATHIVANAN W.A.Nos. 1937 of 2009 in M.P.No.1 of 2009 V.K.Murugan ..Appellant Vs. 1. Tamil Nadu State Transport Corporation (Coimbatore Division-I)Ltd., rep. by its Managing Director, No.37, Mettupalayam Road, Coimbatore. 2. The Presiding Officer, Industrial Tribunal, Chennai. .. Respondents. Appeal filed under Clause 15 of the Letters Patents against the order made in W.P.No.11487 of 2000 dated 10.11.2009 by the learned single Judge of this Court. WP.No.11487 of 2000: Writ Petition filed under Article 226 of the Constitution of India praying for a writ of certiorari calling for the records of the second respondent in petition No.8/98 by its order dated.09.02.2000 and quash the same. For Appellants : Mr.C.Manohar For Respondents : Mrs.Malarvizhi Udayakumar for R1 R2- Tribunal O R D E R (Order of the Court was made by M.CHOCKALINGAM, J.) This writ appeal challenges the order of the learned single Judge of this Court made in W.P.No.11487 of 2000 whereby the request of the first respondent herein viz., Tamil Nadu State Transport Corporation(Coimbatore Division-I) Limited, for approval under section 33(2)(b) of the Industrial Disputes Act, 1947, was allowed. https://hcservices.ecourts.gov.in/hcservices/ 2. The Court heard the learned counsel for the appellant and also for the respondent Transport Corporation. 3. The appeal has arisen in the following manner. The appellant joined the service in the respondent Corporation as a Driver in the year 1980. On 31.12.1996, when he was driving a bus of the Corporation, it met with an accident. The bus dashed against a horse cart, as a result of which, the horse died on the spot and the cart rider died subsequently. A criminal case was registered against the appellant for rash and negligent driving and causing death. Simultaneously, the departmental proceedings were also initiated. A show cause notice was served upon him calling for explanation. He submitted his explanation. Since it was found not satisfactory, the charges were framed against him. A retired Tahsildar was appointed as an Enquiry Officer. He conducted enquiry. After giving opportunity to the appellant herein, he gave his findings that the charges levelled against the appellant were proved. A copy of the enquiry officer's report was served upon the appellant herein and the appellant putforth his reply. Not satisfied with the reply submitted by the appellant, the first respondent herein passed an order of removal from service against the appellant. In order to get the order of dismissal approved, the matter was placed before the Presiding Officer, Industrial Tribunal. On enquiry, the Industrial Tribunal took the view that there was no legal evidence in support of the findings recorded by the Enquiry officer and one month wage had not been paid to the appellant herein and there was violation of section 33(2)(b) of the Industrial Disputes Act, hence, dismissed the approval application. Aggrieved over the same, Transport Corporation preferred the above writ petition which was taken up for enquiry by the learned single Judge. After hearing both sides, the learned single Judge has set aside the order passed by the Industrial Tribunal and remitted the matter back to Industrial Tribunal for fresh consideration. Against the said order of the learned single Judge, the individual driver/first respondent in the writ petition, has brought forth this writ appeal before this Court. 4. The Court heard the learned counsel for the appellant and also for the respondent Corporationand looked into the materials available including the order under challenge. 5. Advancing the arguments on behalf of the appellant the learned counsel would submit that it is not in dispute that there was an accident on 31.12.1996, as a result of which, the horse and horse cart rider, died. A criminal case was registered against the appellant and on trial, he was acquitted. Simultaneously, there was departmental proceedings initiated against the appellant. At the time of Department enquiry, the only witness examined on the side of the department was the https://hcservices.ecourts.gov.in/hcservices/ Investigating Officer and none else. It is an admitted fact that the officials of the Transport Corporation went to the spot and made inspection and prepared the report, but no one of them was examined on the side of the Corporation. 6. The learned counsel for the appellant, pointing to the report given by the Investigating Officer to the Corporation about the accident would submit that the report itself would clearly indicate that it was based on surmises and there is no evidence available. There was no evidence on the side of the department to accept the said statement. On the contrary, the Enquiry Officer has held that the appellant was rash and negligent and the charges were actually proved. 7. The learned counsel would further add that it is not a case of res ipsa loquitur. In a given case, the evidence available was not considered. It is further pointed out that though the witnesses were examined before the criminal court, the criminal court was not ready to accept their evidence. The criminal court has come to a conclusion that the charges were not proved and acquitted the appellant. In the instant case, there was violation of section 33 (2)(b) of the Industrial Tribunal by not giving him one month salary. It was also brought to the notice of the Enquiry Officer, but the same was not taken into account. At the time of approval before the Presiding Officer, it was noticed by the Presiding Officer and he has accepted the same and found that it was a mandatory provision and since there was violation of mandatory provision, he denied approval. The learned single Judge has not taken into consideration all the above aspects but allowed the writ petition. Hence, the order of the learned single Judge has got to be set aside. 8. The learned counsel for the respondent Corporation would submit that the order of the learned single Judge was elaborate and he has also considered all the aspects of the matter both factually and legally. Hence, the order of the learned single Judge has got to be affirmed. 9. The Court paid its anxious consideration on the submissions made. 10. It is not in controversy that while the appellant was working as a driver of the respondent corporation dashed against a horse cart on 31.12.1996, as a result of which, the horse died on the spot and the horse cart rider died subsequently. A criminal case came to be registered by the police under section 304-A of I.P.C. On trial, the appellant was acquitted. It is also admitted that simultaneously departmental proceedings were initiated. A show cause notice was issued calling for explanation. The appellant submitted his explanation. Not satisfied with the explanation submitted by the appellant herein, the charges were framed against him. A retired Tahsildar was https://hcservices.ecourts.gov.in/hcservices/ appointed as the Enquiry Officer. As rightly pointed out by the learned counsel for the appellant, the only witness examined on the side of the Corporation was the Investigating Officer. As pointed out by the learned counsel for the appellant, at page No. 1 of the typed set of paper, the report given by the Investigating Officer, reads as follows. "I examined the spot of accident and enquired the Driver and Conductor about the details and accordingly, I think that the accident might have occurred as given below:" emphasis applied The above would indicate the fact that the report of the Investigating officer was only based on surmises. 11. It is also pertinent to point out that the Investigating officer was a witness before the criminal court where the case ended in acquittal. It is pointed out that he was the only witness examined before the Enquiry Officer. It is not in dispute that when the Officials of the Corporation were informed about the accident, they went to the spot and prepared the report, but none of the officers were examined before the Enquiry Officer, for the reason best known to the Corporation. It is well settled principles of law that when there is no witness to prove the material facts pointing to the rash and negligent driving of the driver, the principal of res ipsa loquitur can be applied. The learned counsel for the appellant has pointed out that even though there was evidence available on the side of the Corporation, no one was examined. This contention has got to be accepted. The Presiding Officer, Industrial Tribunal has denied the approval pointing out the same. He has also pointed out that there was violation of mandatory provision of section 33 (2)(b) of the Industrial Disputes Act. When the above was urged before the learned Single Judge, the learned single Judge was not ready to agree with the reason as to the non-payment of salary, as the same was based on a certificate which was not marked. But in answer to the above, the learned counsel for the appellant would submit that the last drawn salary certificate was amounting to Rs.4887.07, however, the respondent Corporation has sent a draft for Rs.4607.25 and admittedly, it was less. It is true that the salary certificate was not marked but on scrutiny, it is seen that the salary slip which was given earlier was actually annexed to the counter. Under such circumstances, the appellant cannot be found fault with. 12. In the instant case, it is true that the matter was placed before Presiding Officer for approval to look into whether there is a prima facie case or not. The Court is of the opinion that the appellant was not only acquitted by the criminal court but though there is evidence available, it was not placed before the Enquiry Officer in order to hold that the appellant had committed rash and negligent act and caused death. It was pointed https://hcservices.ecourts.gov.in/hcservices/ out by the Enquiry Officer that the antecedents of the appellant were also taken note of but regarding the antecedents, nothing was placed before him. Under such circumstances, the Court is of the opinion that the order passed by the Presiding Officer, Industrial Tribunal, in not approving the request sought for by the first respondent Corporation, is correct. 13. Under such circumstances, the order passed by the learned single judge is set aside. The writ appeal is allowed. No costs. Consequently, connected miscellaneous petition is closed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar vsi To 1. The Managing Director, Tamil Nadu State Transport Corporation (Coimbatore Division-I)Ltd., No.37, Mettupalayam Road, Coimbatore. 2. The Presiding Officer, Industrial Tribunal, Chennai. + 1 cc to Mr.C.Manohar,Advocate,SR.12260 + 1 cc to Government Pleader,SR.12836 W.A.No. 1937 of 2009 AKR(CO) EM/26.2.10 https://hcservices.ecourts.gov.in/hcservices/