IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.06.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.8906 of 2001 1.K.Desikamani (Deceased) 2.Padmavathi 3.Kasthuri 4.Suseela 5.Kumar 6.Sumathi 7.Janagi ... Petitioners (P2 to P7 are proposed petitioners substituted as legal heirs of deceased petitioner as per order dated 11.03.2010 by KCJ in WPMP No.226 of 2010 in W.P.No.8906 of 2001) Vs 1.The Presiding Officer, Labour Court, Vellore. 2.The Management of Tamilnadu Transport Corporation Ltd (Division II) Rangapuram, Vellore. (Formerly known as Pattukottai Alagiri Transport Corporation Ltd.) ...Respondents PRAYER:-Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of certiorarified mandamus, calling for the records pertaining to the impugned Award passed by the first respondent in I.D.No.146/94 dated 20.11.2000 quash the same and consequently direct the second respondent to reinstate the petitioner with backwages and continuity of service. For petitioner : Mr.V.Ajay Khose For Respondents : Ms.Rajeswari for M/s.King and Partridge for R2 O R D E R The original petitioner was a workman in the second respondent state owned Transport Corporation. He has filed the present writ petition, seeking to challenge the Award passed by the first https://hcservices.ecourts.gov.in/hcservices/ respondent Labour Court, Vellore in I.D.No.146 of 1994 dated 20.11.2000. By the impugned Award, the Labour Court dismissed the Industrial Dispute raised by the workman and refused to grant any relief. 2. The writ petition was admitted on 27.04.2001. During the pendency of the writ petition, the original petitioner died and his legal representatives i.e. by his wife and children have come on record vide WPMP No.226 of 2010. 3. When the matter came up on 29.07.2009, the matter was referred for a settlement before the Lok Adalat. Since the matter could not be settled, once again it was re-posted before this Court. 4. Heard the arguments of Mr.V.Ajay Khose, learned counsel for the petitioner and Ms.Rajeswari, learned counsel representing M/s.King and Partridge for the second respondent. 5. The facts leading to the case are as follows: The original petitioner was appointed as a Driver in the second respondent Corporation on 24.05.1977 and his services were regularised on 25.02.1978. He was given a charge memo on 11.11.1992 alleging that he drove the bus in Route No.7V/A in a rash and negligent manner on 22.10.1992, which caused an accident resulting in the death of a woman pedestrian. On the basis of the report of an officer of the Corporation Sambandamoorthy, who had inspected the place after the accident, the original petitioner was placed under suspension. Though he was not an eye witness to the accident and did not record the statement of persons who witness the accident, his report was the basis for further action. 6. The petitioner gave an explanation dated 20.11.1992 stating that it was the woman pedestrian who suddenly crossed the road from left to right side and on seeing her, in order to avoid the accident, the original petitioner had to turn the bus to the right side with great difficulty and he managed to stop the bus by applying the brake. But however, the said woman dashed against the front exit of the bus and succumbed to injuries. Not satisfied with his explanation, an enquiry was conducted on 02.01.1993. On behalf of the Management, the officer who inspected the place of accident viz., Sambandamoorthy alone was examined as M.W.1 and Exs.M1 to M8 were marked through him. The original petitioner examined himself as W.W.1. However, the Enquiry Officer held that the charges levelled against the petitioner were proved. Thereafter, a second show cause notice dated 13.02.1993 was issued to him. The petitioner gave his further explanation dated 27.02.1993. The second respondent passed the final order dated 06.04.1993 dismissing him from service. 7. Thereafter, the original petitioner raised a dispute before the Labour Officer, Vellore. The conciliation ended in failure and on the strength of the failure report, he filed a claim statement https://hcservices.ecourts.gov.in/hcservices/ before the first respondent Labour Court. The Labour Court registered the dispute as I.D.No.146 of 1994 and issued notice to the second respondent. The second respondent filed a counter statement. On the side of the second respondent, 9 documents were filed and they were marked as Exs.M1 to M9. In the meanwhile, he criminal case filed against the original petitioner was ended in favour of the petitioner and he filed the judgment of the criminal Court as Ex.W1. 8. The Labour Court on an appreciation of the materials placed before it came to the conclusion that there was no error on the mode of conducting the enquiry. The Labour Court held that there was rash and negligent act on the part of the petitioner atleast to some extent and he had not exercised the required care and caution at the time of accident, which led to the death one person. After referring to EX.M7, the Labour Court observed that he was subjected to punishment, out of which four were for causing accidents, in driving the vehicles. Therefore, it held that the punishment was not excessive. 9. During the pendency of the writ petition, the second petitioner, who was the wife of the first petitioner filed an additional affidavit dated 25.07.2009 stating that her husband, the original petitioner was the only source of income for their family and he died on 24.01.2006 leaving her, four daughters and one son. The son and the last daughter are yet to be married. She had stated that the Labour Court was totally wrong in denying any kind of relief. Since her husband is no more, at least there can be paper reinstatement with continuity of service and attendant benefits, which enables them to get some terminal benefits. This is an alternative plea taken, if this Court views that the termination does not require any reinstatement with backwages. 10. Mr.Ajay Khose, learned counsel for the petitioner contended that the approach of the Labour Court was totally erroneous. The Conductor of the bus who was present at the time of the accident was not examined though he gave a statement which was instrumental in registering the First Information Report and marked as Ex.M4 in the enquiry. While the sketch Ex.M3 drawn by M.W.1 and the F.I.R.(Ex.M4) was relied upon for the purpose of holding the petitioner guilty, the same was not proved through any legal evidence. The finding of the Enquiry Officer was erroneous since it relied upon unsubstantiated legal evidence. 11. In this context, reference was made to the judgment of this Court in Jeeva Transport Corporation Ltd., v. Industrial Tribunal and another reported in 1994 (2) LLJ 350. In that case, this Court held that Conductor of the bus who was present at the spot of the accident was not examined and even the person who gave the first information to the police was also not examined and dismissed the petition filed by the Corporation. Therefore, placing reliance upon the officer of the Corporation, who was not an eye witness who drew inference from the tyremark cannot be a sufficient evidence to dismiss the workman. https://hcservices.ecourts.gov.in/hcservices/ 12. The learned counsel also placed reliance upon a judgment of the Division Bench in A.Mariasundararaj v. Cheran Transport Corporation Ltd in W.A.No.2238 of 2000 dated 03.10.2007, wherein in paragraph 13, this Court gave several directions to the manner in which the accident cases are to be handled by a State Transport Corporation. In Paragraph 13(ii), it was stated that the statement of the Driver as well as the Conductor in their own handwriting as to the manner in which the accident had taken place with necessary details should be recorded. In paragraph 13.3, it was stated that they should also record the statement of passengers with their own handwriting and the department must also collect independent materials. In the present case, no such enquiry was made. Even though the directions issued therein may not directly apply to the case on hand, but the warning given by the Division Bench in respect of the method and mode of conducting an enquiry in case of an accident should have been kept in mind by the Corporation. 13. Per contra, Ms.Rajeswari, learned counsel for the second respondent Corporation relied upon the judgment of the Supreme Court in Delhi Cloth and General Mills Co. Ltd v. Ludh Budli Singh reported in 1972 (1) L.L.J. 180. Attention of this Court was drawn to Paragraph 61(3) which reads as follows: "61.3.When the management relies on the enquiry conducted by it, and also simultaeneously adduces evidence before the Tribunal, without prejudice to its plea that the enquiry proceedings are proper, it is the duty of the Tribunal, in the first instance, to consider whether the enquiry proceedings conducted by the management are valid and proper. If the Tribunal is satisfied that the enquiry proceedings have been held properly and are valid, the question of considering the evidence adduced before it on merits no longer survives. It is only when the Tribunal holds that the enquiry proceedings have not been properly held, that it derives jurisdiction to deal with the merits of the dispute and in such a case it has to consider the evidence adduced before it by the management and decide the matter on the basis of such evidence." 14. The learned counsel for the Corporation relied upon another judgment of the Supreme Court in Cholan Roadways Ltd. v. G.Thirugnanasambandam reported (2005) 3 SCC 241. In paragraphs 19 to 21, the Supreme Court held as follows: "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. 20. The Tribunal while exercising its jurisdiction under Section 33(2)(b) of the Industrial Disputes https://hcservices.ecourts.gov.in/hcservices/ 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." After applying the principles of res ipsa loquitor, the Supreme Court in paragraph 26 held that in such cases burden of proof is on the respondent to prove that the vehicle was not being driven by him rashly or negligently. But however both the decisions arose out of decisions rendered on applying the law relating to Section 33(2) (b) of the I.D.Act. 15. In the light of the rival contention, it must be seen whether the impugned Award calls for any interference. 16. It must be noted that the original petitioner himself gave evidence before the enquiry regarding the manner in which the accident had taken place and the Enquiry Officer rejected the evidence on the ground that the original petitioner cannot absolve himself of the liabilities and he alone has to prove. The Labour Court based on the materials placed observed that the left rear wheel ran over the woman pedestrian which shows the careless and rash act on the part of the petitioner. It observed that a child in the day time and in a playful mode can be crushed to death, by the rear-wheels directly but not an adult especially an old one. Therefore, applying the preponderance of probabilities and going by evidence of M.W.1, the Labour Court held that the charge against the petitioner was proved. But with reference to the evidence let in by W.W.1, the original petitioner, the Labour Court did not even taken note of the substance of the evidence. It is true that there need not be any direct evidence, but in the present case, the author of the FIR and the Conductor who gave statement were marked and relied upon by the domestic enquiry officer, but they were not examined for reasons best known to the corporation. 17. In Delhi Cloth and General Mills Co. Ltd.'s case (cited supra), though the Supreme Court has held that the Court must go by the materials available on record. But that is not an authority, to hold in such circumstances, there need not be legal evidence. The https://hcservices.ecourts.gov.in/hcservices/ Labour Court may be right in stating that it cannot rely upon Ex.W1 , the judgment of the Criminal Court regarding the subsequent acquittal, but at the same time, it is not as if every statement of an officer of the Corporation has to be believed only on the principle of 'res ipsa loquitor'. If material evidence which are not proved was acted as a substantive evidence, the Court can still reject such evidence and decide independently whether the charges have been proved or not. 18. But at the same time, in the present case, nothing prevented the workman to summon the Conductor to examine on his behalf. Under the circumstances though the charge could have been said to be proved whether the original petitioner could have been granted some relief, if not reinstatement could have been considered by the Labour Court having regard to the fact that the workman had put in more than 15 years of service at the time of the accident. No doubt, the materials on record was looked into but nothing prevented the Labour Court to have modified the punishment into another punishment. 19. Alternatively, the wife of the petitioner, namely the second petitioner had stated that her husband could have been granted atleast paper reinstatement without monetary benefits so that they can get certain terminal benefits including pension, provident fund and gratuity. 20. Therefore, considering the overall circumstances of the case, this Court is of the opinion that the dismissal of the original petitioner was excessive and he should have been directed to be reinstated without any monetary benefits. In view of his death during the pendency of the writ petition, there can only be an order of paper re-instatement from the date of his dismissal till the date of his death viz., 24.01.2006. But for that period, he will not be entitled to get any monetary benefits and the period will only be treated as a notional service with due pay fitments in his pay in terms of revision of pay scales which must have occurred during the period. Treating it as a reinstatement up to the date of his death, the second respondent shall pay all the terminal benefits due to the workman including gratuity, provident fund along with the employer's contribution and also other terminal benefits including pension, if any, within a period of 12 weeks from the date of receipt of a copy of this order. 21. The Award of the Labour Court stands modified to the extent indicated above. The writ petition is partly allowed. However, there will be no order as to costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. svki https://hcservices.ecourts.gov.in/hcservices/ To 1.The Presiding Officer, Labour Court, Vellore. 2.The Management of Tamilnadu Transport Corporation Ltd (Division II) Rangapuram, Vellore. (Formerly known as Pattukottai Alagiri Transport Corporation Ltd.) + 1 CC TO Mr.V.Ajay Khose, Advocate Sr 40250 + 1 cc to M/S.King & Partridge, Advocate SR 40622 order in W.P.No.8906 of 2001 MG (CO) RH (17.6.10) https://hcservices.ecourts.gov.in/hcservices/