IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.3.2010 C O R A M : THE HONOURABLE MR. JUSTICE K. CHANDRU W.P.No.8522 of 2001 Tamil Nadu State Transport Corporation (Villupuram – Division II) Ltd. rep. By its General Manager, Rangapuram, Vellore-632 009. .. Petitioner -vs- 1.The Presiding Officer, Labour Court, Vellore. 2. R.Deenadayalan .. Respondents PRAYER : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari to call for the records on the file of the first respondent and quash the Award, dated 25.9.2000 made in I.D.No.25 of 1996. For petitioner :: Ms.M.G.Rajeswari for Mr.King & Partridge For respondents :: Mr.V.Ajoy Khose for R2 ***** O R D E R Heard the learned counsel for both the parties. The petitioner is a State owned Transport Corporation. Aggrieved by the Award passed by the first respondent Labour Court, Vellore in I.D.No.25 of 1996, dated 25.9.2000, the present writ petition has been filed by the Transport Corporation. 2. By the impugned Award, the Labour Court granted the relief as prayed for by the second respondent - workman together with costs of Rs.4000/-. The second respondent in his claim statement had prayed for reinstatement with backwages and all other attendant benefits. The prayer of the second respondent was granted by the impugned Award. The writ petition was admitted on 26.4.2001. Even before https://hcservices.ecourts.gov.in/hcservices/ filing the writ petition, the Corporation reinstated the workman on 05.2.2001. The order reinstating the workman states that the reinstatement was done as a fresh entrant from the date of joining and without prejudice to the rights of the management to challenge the Award. It is now stated that the second respondent is working in the Corporation even till date. This Court granted an interim stay at the time of admission of the writ petition. Subsequently, the workman filed two applications, one for vacating the stay and the second for a direction to pay the wages on par with his colleagues/juniors from the date of his reinstatement. By a common order, dated 27.11.2001, this Court held that while the workman is entitled to get wages paid on par with other workmen, his request to vacate the stay cannot be granted. Hence, the stay was made absolute. 3. The brief facts leading to this case are as follows:- The second respondent was employed as a driver in the petitioner Corporation. He was driving the bus in Route No.102F from Arani to Chennai. While the bus was proceeding near Saidapet, it hit against a passenger on 19.2.1995. The said accident resulted in a criminal case against the petitioner. It transpires that in the criminal case, the petitioner was acquitted by the competent Criminal Court in C.C.No.1998/1995, dated 17.5.1996. However, in the meanwhile, the Department proceeded against the petitioner with a charge memo, dated 17.3.1995. Then after conducting an enquiry and issuing a show-cause notice, dated 17.6.1995, he was dismissed from service on 17.7.1995. The petitioner raised an Industrial Dispute before the Government Labour Officer and on the strength of the failure report, he moved the Labour Court and filed a claim statement, dated 23.1.1996. 4. On notice from the Labour Court, the petitioner Corporation filed a counter statement, dated 30.3.1996. The Labour Court, which heard the matter as I.D.No.25 of 1996, marked the documents by consent. On the side of the workman, a copy of the judgment of the Criminal Court was filed and marked as Ex.W.1. On the side of the petitioner Corporation, 11 documents were filed and they were marked as Exs.M.1 to M.11. The Labour Court has analysed the materials placed before it and came to the conclusion that the workman was not guilty of the charges and he was driving the bus carefully. In fact, the bus itself was stopped within 15 feet from the pedestrian crossing and merely because there was an accident, the workman cannot be blamed. Considering the chaotic state of affairs of the traffic situation and also the heavy rush during peak hours and the persons from all quarters walking on both sides of road, it was held that such accidents are inevitable and the driver cannot be blamed in the circumstances. 5. On looking into the entire proceedings, the Labour Court held that since there was no eyewitness, the Department practically relied upon the evidence of the Officer, who went to the spot and recorded evidence of the Conductor and also prepared a topo plan of the area. https://hcservices.ecourts.gov.in/hcservices/ Therefore, the Labour Court did not believe the evidence of the management recorded in the departmental enquiry, but on the contrary, looking into the materials including the sketch in Ex.M.2 and the statement recorded from the Conductor, decided the matter in favour of the workman. Though the Corporation had pleaded that the petitioner, on an earlier occasion, had committed several misconducts, the Court held that as per Ex.M.9, the previous punishments imposed on the workman are flimsy and they cannot have any relevance. The Labour Court also held that unless the present charge is proved, the past conduct will not be relevant for imposing the punishment. Further the Labour Court also held that the punishment of dismissal is disproportionate and mere causing of little damage to the headlight assembly was also not due to the fault of the second respondent workman. It is in that view of the matter, it granted relief to the workman. 6. In the present case, even before filing of the writ petition, the petitioner management had reinstated the second respondent and perhaps it was due to paucity of drivers available at the relevant time. In any event, the contention raised in paragraph 9 of the affidavit that the past record of service of the workman was not satisfactory and he was punished on three earlier occasions for committing the accident cannot be taken into account for the simple reason that the petitioner management themselves have decided to reinstate the workman even before any order is passed. Though in the affidavit it is stated that the interim application was only for the purpose of backwages, in the actual prayer in the stay application, no such qualified statement was made. On the contrary, the Corporation has sought for an absolute stay of the operation of the Award, which stay order was also made absolute. Therefore, insofar as the decision of the management to reinstate the workman was concerned, the decision was entirely their own, and having allowed him to re-enter the service and retained him for the last 9 nears, the ground taken in paragraphs 8 and 9 will have to be accepted only with a pinch of salt. 7. In any event, the other contention raised that the principle of res ipsa loquitur will apply, so far as the standard of proof that is required in a matter of this nature is concerned and, therefore, the Labour Court was wrong in holding that there were no eyewitnesses. It can be an acceptable argument in the light of the decision relied on by the learned counsel for the petitioner. But not in every case, there should be a requirement of eyewitness. But, on the contrary, once the petitioner wants to contend that the accident will speak for itself, but in the present case, the Labour Court, after looking into Ex.M.1 and Ex.M.2 (sketch) produced before it, held that the accident could not have happened only because of the rash and negligent driving of the bus by the second respondent, but, it was the pedestrian who should have been blamed. The learned counsel also placed reliance upon an unreported judgment of this https://hcservices.ecourts.gov.in/hcservices/ Court in W.P.No.14946 of 1994 (The Mangement of Tiruvalluvar Transport Corporation Limited -vs- K.Ayyavu and others), dated 09.1.1999. In that case, the Court held that if a driver goes at a breakneck speed and it results in an accident, the principle of res ipsa loquitur comes into play. Further in that case, the driver had a previous history and he had caused fatal accidents earlier and even while during reinstatement, he caused another fatal accident, thereby having three accidents to his credit. Even that order came to be confirmed by a Division Bench of this Court in W.A.No.2525 of 1999 (K.Ayyavu -vs- The Management of Thiruvalluvar Transport Corporation Limited), dated 16.2.2000. Therefore, on the strength of these two judgments, the learned counsel for the petitioner sought for setting aside the Award. 8. Per contra, Mr.Ajay Ghosh, learned counsel appearing for the second respondent workman, brought to the notice of this Court another Division Bench judgment of this Court in Pandian Roadways Corporation -s- Presiding Officer, Additional Labour Court, Madurai and another reported in 2002 (1) LLN 348. In that case, before the Division Bench, the very same judgment cited by the learned counsel for the petitioner was also referred to. After referring to that decision, the Division Bench headed by P.Sathasivam, J. as he then was, in paragraph 11 held as follows:- ''11. Learned counsel appearing for the appellant has very much relied on a decision rendered by K.Sampath, J. in Management of Thiruvalluvar Transport Corporation Ltd. -vs- K.Ayyavu (Writ Petition No.14946of 1994, dated 9 March 1999), which is affirmed by the Division Bench in Writ Appeal No.2522 of 1999, dated 16 February 2000. A perusal of the judgment shows that due to the negligence of the driver of the bus a boy aged about 7 years has lost his life. It was in that context and on the basis of the proved evidence, the learned Judge came to the conclusion that it was the duty of the driver to keep proper vigilant on the users of the road and he ought to have used his skill to avoid accident. In that case, there is ample evidence to show that despite seeing the boy, who is aged about 7 years crossing the road, the driver proved to have driven the vehicle resulting in the death of the boy. In our case, we have already referred to the claim of the driver wherein he explained how the unfortunate accident had occurred and the stand taken by the management. Considering the materials and the factual position in both the cases, we are of the view that the said decision of Sampath, J. is not applicable to and cannot be compared to our case. All relevant aspects have been considered by the learned Judge in our case and correctly arrived at a conclusion that the award of the Labour Court does not suffer from any illegality or infirmity warranting interference by this Court. We are in agreement with the view expressed by the learned Judge and https://hcservices.ecourts.gov.in/hcservices/ we find no merits in the writ appeal". Therefore, in the light of these facts, the Award reinstating the petitioner with service continuity does not call for any interference. 9. On the question of backwages, the learned counsel for the petitioner seriously contended that the Labour Court, while ordering reinstatement, in the impugned Award did not discuss as to how the workman was entitled for full wages. In fact, without any discussion, the Labour Court straightaway allowed the claim of the workman and atleast on that score, the impugned Award is liable to be interfered with. In this context, the judgment of the Supreme Court in General Manager, Haryana Roadways, Rohtak -vs- Dilbagh Singh reported in (2009) 11 SCC 447 was pressed into service. In that case, there is no discussion by the Supreme Court and merely in the interest of justice, the Supreme Court directed 30% of the wages to be paid. 10. Mr.Ajay Ghosh, learned counsel for the second respondent submitted that once the Labour Court has held that the charges are not proved, normally, the relief of reinstatement should be ordered. However, in this context, it is necessary to refer to the judgment of the Supreme Court in Laxmi Rattan Cotton Mills Ltd. v. State of U.P., reported in 2009 (1) SCC 695. The Supreme Court in that case, though held that the Labour Court has a wide discretion to order backwages, the said power must be exercised judiciously and an attempt must be made to strike a balance. The similar view was also expressed by the Supreme Court in Rajasthan Lalit Kala Academy v. Radhey Shyam reported in 2008 (3) SCC 248. In that case, the Supreme Court held that in case of invalid termination, the relief of reinstatement and backwages was a normal rule, but at the same time, several factors will have to be taken into account by the Labour Court before ordering full wages. In the present case, there is no discussion by the Labour Court as to why it is ordering for the backwages and in the absence of the said discussion, normally the matter should have been remanded back for fresh decision by the Labour Court. But considering the fact that the dispute was of the year 1996 and 14 years have lapsed, this Court is not inclined to refer the matter back to the Labour Court and also considering the fact that immediately after the passing of the Award, the management, even before filing the writ petition, had reinstated the second respondent workman, though as a new entrant, which has also been corrected by this Court by an interim order dated 27.11.2001. The workman had not substantially suffered. Considering all these factors, this Court is of the view that 50% of the backwages will be suffice. However, the workman will have the right to have the reinstatement with continuity of service and all other attendant benefits accrued in implementing such an Award. 11. In the light of the above, the writ petition is partly allowed. The impugned Award stands revived to the extent that while https://hcservices.ecourts.gov.in/hcservices/ the second respondent is entitled for reinstatement with service continuity and attendant benefits, the quantum of backwages payable be reduced to 50%. The petitioner Corporation is directed to implement the Award within a period of eight weeks from the date of receipt of a copy of this order. No costs. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar js To The Presiding Officer Labour Court, Vellore +1 C.C. to Mr.King & Partridge Advocate, Sr.No.17436 +1 +1 C.C. to Mr.V. Ajay Kumar Advocate, Sr.No.17208 W.P.No.8522 of 2001 12.3.2010 BV- CO kv-26/03/2010 https://hcservices.ecourts.gov.in/hcservices/