IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24-07-2009 CORAM THE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMAR WRIT PETITION NO.2943 OF 2001 S. Arumainathan ... Petitioner Vs. 1. The Managing Director, Tamil Nadu State Transport Corporation (Villupuram Division-II) Ltd., Vellore – 632009. 2. The Presiding Officer, Labour Court, Vellore. ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified mandamus to call for the records of the Labour Court, Vellore, the second respondent herein passed in I.D.No.317 of 1998, dated 24.11.2000, and quash the same and direct the first respondent to pay the backwages and other attendant benefits from 31.5.1996, gratuity and provident fund till the petitioner attains superannuation on 31.7.2001. For Petitioner : Mr.S. Sathiamurthy For 1st Respondent : Mr.V.R.Kamalanathan 2nd Respondent : Labour Court O R D E R The prayer in this writ petition is to quash the award made in I.D.No.317 of 1998, dated 24.11.2000, on the file of the second respondent and for a direction to the first respondent to pay backwages and other attendant benefits from 31.5.1996, gratuity and provident fund till the petitioner attains superannuation on 31.7.2001. 2. The case of the petitioner is that he served in the Indian Army as driver and as an ex-serviceman, he got appointed as driver in https://hcservices.ecourts.gov.in/hcservices/ the Tamil Nadu State Transport Corporation on 6.7.1985. On 27.8.1995, while the petitioner was driving the bus bearing registration No.TCB.3486 in route No.T-15B from Ambur to Vaniambadi, one person tried to board the moving bus and fell down and later succumbed to injuries in the hospital. The petitioner was issued with charge memo dated 21.9.1995, containing three charges. The petitioner submitted explanation and denied the charges. The said explanation having been found not satisfactory, domestic enquiry was conducted and all the charges were found proved. Based on the enquiry report, the first respondent, by order dated 25.5.1996, dismissed the petitioner from service. Consequently petitioner raised an industrial dispute in I.D.No.317 of 1998 before the Labour Court, Vellore. The said industrial dispute was dismissed by the second respondent-Labour Court, against which this writ petition is filed. 3. The contentions raised in the writ petition are that there was a municipal lorry clearing debries and wastes at the entrance of the bus stand and therefore the bus could not enter into the bus stand; that the deceased was in a drunken state, when he boarded the bus through the front entrance and fell down, and due to the said act, he contributed to the accident; that the management failed to examine any eye witness, including the conductor to prove the charge and the only witness examined was the person who came to the accident spot half an hour after the occurrence and therefore his evidence can only be a hearsay evidence; that the Enquiry Officer has not considered the circumstance under which the bus was unable to enter the bus stand; that the petitioner was acquitted in the criminal case; and that, the discretion vested with the Labour Court under Section 11A of the Industrial Disputes Act, 1947, has not been exercised. 4. The first respondent filed counter affidavit by stating that while the petitioner was working as driver in the respondent Corporation, on 27.8.1995 he drove the bus bearing registration No.TCB 3486 in route No.T-15B from Vaniambadi to Ambur, rashly and negligently and caused the death of an intending passenger, who attempted to enter the bus through the front entrance and hence charge memo dated 21.9.1995 was issued. The explanation submitted by the petitioner having been found not satisfactory, domestic enquiry was conducted. The petitioner fully utilised the opportunity to cross-examine the management witnesses. The enquiry report was submitted on 7.3.1996 holding that all the three charges were proved. The enquiry report was furnished to the petitioner, who also submitted his remarks. The said remarks were considered and the enquiry report was accepted. Considering the fatal accidents committed by the petitioner earlier, the respondent passed the final order on 25.5.1996 and dismissed the petitioner from service. https://hcservices.ecourts.gov.in/hcservices/ 5. Before the Labour Court, the petitioner marked Exs.W-1 to W-3 and on behalf of the management, Exs.M-1 to M-9 were marked. After considering the said documentary evidence and oral evidence, the Labour Court confirmed the dismissal order. Labour Court found that insofar as the contention that the municipal lorry was parked at the entrance of the bus stand, the same was not proved by the petitioner side witness, who has not spoken about the alleged parking of the vehicle. The Labour Court observed that, had the petitioner observed the rules and regulations and parked the vehicle inside the bus stand, he could have avoided the fatal accident. The Labour Court also considered the criminal court judgment and by considering the previous fatal accidents committed by the petitioner, affirmed the order of dismissal, by taking note of the life of the passengers and public. 6. The learned counsel appearing for the petitioner submitted that the defence witness has clearly spoken about the accident that the deceased person was in drunken state while he tried to enter the bus through the front entrance and that the municipal lorry was parked at the entrance of thebus stand. Non-consideration of the above factors by the Enquiry Officer as well as the Labour Court has vitiated the proceedings. The learned counsel also submitted that the Labour Court shifted the burden on the petitioner to prove his innocence as it is the duty of the prosecution/department to prove the charges against the delinquent officer. The learned counsel further submitted that the failure to exercise the discretion given to the Labour Court under section 11A of the Industrial Disputes Act,1947, to consider whether the punishment is proportionate, has caused great prejudice to the petitioner. 7. The learned counsel cited the judgments of the Division Bench of this Court reported in 2007 (2) LLJ 285 (R.Santhanam v. Madura Coats Ltd., Tuticorin), Division Bench of Bombay High Court decision reported in 1992 (1) LLJ 110 (Krishna Gopal Vaity v. M/s.Collins & Co. and Others), Division Bench of Punjab & Haryana High Court reported in 1998 (2) LLJ 294 (Mangat Rai v. Punjab Road Transport Corporation & Another) and the decision of the learned single Judge of this Court reported in 1992 (1) LLJ 384 (Cork Industries, Madras v. I Additional Labour Court, Madras & Another) in support of his contentions and contended that Section 11A of the Industrial Disputes Act, 1947, empowers the Labour Court to interfere with the punishment awarded against the employee. 8. The learned counsel for the first respondent-Transport Corporation on the other hand submitted that the fatal accident committed by the petitioner while driving the Transport Corporation Bus was proved in the enquiry before the Enquiry Officer. The petitioner having taken a defence that the victim was intoxicated, https://hcservices.ecourts.gov.in/hcservices/ nothing prevented the petitioner to mark the post mortem report of the deceased to prove his stand. It is also contended by the learned counsel for the first respondent that the petitioner in his reply to the charge memo has not stated about the parking of lorry blocking the entrance of the bus stand, which prevented the entry of the bus inside the bus stand. 9. The learned counsel cited the Judgments of the Supreme Court reported in (2005) 3 SCC 241 (Cholan Roadways Ltd. v. G.Thirugnanasambandam); 2003 (3) LLN 713 (K.Ayyavu v. Management of Thiruvalluvar Transport Corporation Ltd.); 2007 (2) SLR 441 (Managing Director v. Devidas Manikrao Sadananda); (1999) 8 SCC 90 : 1999 (2) LLJ 1415 (R.S.Saini v. State of Punjab and Others); 2005 (1) CTC 625 (The Management of Thiruvalluvar Transport Corporation v. S.Anthonysamy), and the decision of the single Judge of this Court reported in 2004 (4) LLJ (Supp) 362 (M.Chella Thambi v. Presiding Officer, Labour Court, Madurai) and 2003 (3) LLN 705 (Tiruvalluvar Transport Corporation Ltd. v. K.Ayyavu) in support of his contentions. 10. I have considered the rival submissions made by the learned counsel for the petitioner as well as the standing Counsel for the first respondent. 11. The charges levelled against the petitioner are as follows: "1. Negligent in duty by not entering into Ambur bus stand and reversed the bus at the entrance itself and allowed the passengers to alight the bus and then drove the bus towards Vaniambadi. 2. Due to the negligence in duty, a person who tried to board the bus through the front entrance, fell down and the bus ran over, thereby caused fracture to the said person, who died at Hospital. 3. Failed to follow the rules of the Corporation by not stopping the bus for the passengers to board the bus and get down from the bus." The petitioner was directed to submit his explanation to the said charges and in the explanation the petitioner had stated that at about 9.30 a.m. on 27.8.1995, he drove the bus to the bus stand amd when it was taken out of the bus stand, one male passenger tried to enter into the bus through the front door, who was under the influence of alcohol and fell down and he was ran over by the front wheel of the bus. Immediately, the said injured person was taken to the hospital by engaging an auto and after two hours he died. 12. In the statement given by the petitioner about the accident on 27.8.1995, nowhere it is stated that the entrance of the bus stand https://hcservices.ecourts.gov.in/hcservices/ was blocked by the municipal lorry to collect the garbages. The only reason given was that the deceased was in drunken state and he tried to enter into the bus through the front door and he fell down. 13. The Conductor of the bus also gave a statement on 27.8.1995 about the said accident and stated that the bus entered into the bus stand and after alighting the passengers, it came out from the bus stand and at that time, the driver applied sudden brake and he noted that near the front left wheel one male person was lying and that immediately he arranged for one auto and he was taken to the hospital and there was smell of alcohol. 14. A criminal case was registered against the petitioner under section 304 IPC in crime No.585 of 1995 and in the criminal case, petitioner was acquitted. Domestic enquiry was conducted and the Enquiry Officer found that the charges levelled against the petitioner are proved. The Enquiry Officer held that even if the passenger tried to enter through the front door in intoxicated state, the petitioner could have stopped the bus and taken the passenger inside the bus. Insofar as the contention that the municipal lorry was parked in front of the entrance for collecting garbages is concerned, the Enquiry Officer gave finding that no such plea was made in the statement given at the first instance. The statement given by the Conductor also do not contain such a statement. The Enquiry Officer disbelieved the statement of the defence witness and held that the petitioner ought to have filed post mortem report to prove that the deceased was under the influence of alcohol. Based on the said reasons the Enquiry Officer found that the charges are proved. 15. The Labour Court disbelieved the version of the petitioner about the contributory negligence on the part of the deceased, since the petitioner failed to prove that the deceased person was under the influence of alcohol. Insofar as the contention of the petitioner that there was a lorry parked in front of the gate of the bus stand, was also disbelieved on the ground that no such statement was made by the petitioner at the first instance. Taking note of the earlier fatal accidents committed by the petitioner the Labour Court refused to exercise its discretionary jurisdiction under Section 11A of the Industrial Disputes Act, 1947. 16. The plea that the deceased person was under the influence of alcohol, is stated by the petitioner as well as the conductor of the bus and also by the defence witness. When that being the case, the plea raised by the petitioner that there is contributory negligence on the part of the injured/deceased, could have been verified by producing the post mortem report of the deceased person. The report would have been filed before the Criminal Court when the petitioner was an accused. The management as well as the Labour https://hcservices.ecourts.gov.in/hcservices/ Court blamed the petitioner for not producing the post mortem certificate of the deceased. Since the petitioner had taken the plea of drunkenness of the deceased for his falling down from the bus, it is for the petitioner to prove the same to establish the same. 17. The Enquiry Officer has given a finding that due to the rash and negligent driving of the petitioner the accident had occurred. The petitioner also failed to note the movement of the deceased in getting into the bus through the front door, which was within the vicinity of the petitioner, if the petitioner was careful enough. Failure to prove the fact about the drunkenness of the deceased by the petitioner by producing the post mortem report or medical evidence, is stated as the reason to disbelieve the defence version of the petitioner. The management accepted the findings of the Enquiry Officer and also considered the past conduct, including the earlier punishment of withholding of increment for two years by order dated 2.8.1994 for having caused the death of another person on 14.4.1994. Before imposing the said punishment the petitioner was given show cause notice, namely the proposed penalty. 18. The Labour Court concurred with the findings of the Enquiry Officer with regard to the non-production of the medical opinion of the deceased to prove that he was under the influence of alcohol. The Labour Court also found that the petitioner could have produced the available record from the police viz., post mortem certificate and the report of the public analyst. The acquittal in the criminal Court cannot be given much credit as the proof required in the criminal case is beyond reasonable doubt. Considering the preponderance of evidence against the petitioner for his rash and negligent driving and the petitioner having failed to prove that the deceased contributed for the negligence, the Labour Court gave a finding and upheld the order of dismissal. 19. (a) In the decision reported in (1999) 8 SCC 90 : 1999 (2) LLJ 1415 (R.S.Saini v. State of Punjab) the Supreme Court considered the scope of the writ Court in interfering with the findings of the Enquiry Officer. It is held in that case that the High Court cannot review the evidence and arrive at its own independent finding. Paragraphs 16 and 17 of the Judgment (in SCC) read as follows: "16. .........we will have to bear in mind the rule that the court while exercising writ jurisdiction will not reverse a finding of the inquiring authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably support the conclusion of the inquiring authority, it is not the function of the court to review the evidence and to arrive at its own independent finding. The https://hcservices.ecourts.gov.in/hcservices/ inquiring authority is the sole judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the court in writ proceedings. 17. A narration of the charges and the reasons of the inquiring authority for accepting the charges, as seen from the records, shows that the inquiring authority has based its conclusions on materials available on record after considering the defence put forth by the appellant and these decisions, in our opinion, have been taken in a reasonable manner and objectively. The conclusion arrived at by the inquiring authority cannot be termed as either being perverse or not based on any material nor is it a case where there has been any non- application of mind on the part of the inquiring authority. Likewise, the High Court has looked into the material based on which the enquiry officer has come to the conclusion, within the limited scope available to it under Article 226 of the Constitution and we do not find any fault with the findings of the High Court in this regard." (Emphasis Supplied) (b) Similar issue as to whether it is the duty of the driver of the Transport Corporation to prove, if the accident not happened due to the rash and negligent driving, was considered by this Court in the judgment reported in 2004 (4) LLJ Supp 362 (M.Chella Thambi v. Presiding Officer, Labour Court, Madurai and Another) and in paragraph 8 it is held thus, "8. In so far as such conduct of the drivers of a public transport corporation are concerned, time and again, it has been repeatedly held that the doctrine of res ipsa loquitur would apply, that is, the accident speaks for itself. In other words, when it is in the exclusive knowledge of the driver, who caused the accident, it is but proper that he discharges the onus, namely, that the accident did not happen due to his rash and negligent driving, but due to various other reasons not attributable to him. In fact, in the Division Bench judgment cited by the learned counsel for the second respondent, reference has been made to three decisions of https://hcservices.ecourts.gov.in/hcservices/ Hon'ble Supreme Court reported in Pushpabai Parshottam Udesh v. Ranjit Ginning and Pressing Company Private Ltd., AIR 1977 SC 1735 : 1977 (2) SCC 745; State of Karnataka v. Krishna, AIR 1987 SC 861; 1987 (1) SCC 538 and Balbir Singh v. State of Haryana, AIR 2000 SC 1677 : 2000 (5) SCC 82. In the judgment reported in State of Karnataka v. Krishna (supra), the Hon'ble Supreme Court has cautioned to the effect that where a driver of a public transport Corporation is found to have caused a fatal accident, the same has to be looked at with certain amount of seriousness, since the public safety and convenience is paramount, the Court should not fall a prey to the plea of misplaced sympathy. The Hon'ble Supreme Court has also held that award of punishment has to be weighed keeping in view the interest of the public at large and the travelling passengers and the disciplinary actions are taken more as preventive measure so that it may work as an effective warning against other drivers to behave befitting their duties and maintaining due discipline in the establishment." (Emphasis Supplied) (c) The scope of interference in the domestic enquiry findings and the Labour Court decision and the effect of acquittal in the criminal case was again considerd by the Honourable Supreme Court in the decision reported in (2003) 3 SCC 583 (Popli v. Canara Bank), wherein in paragraphs 16 to 19 it is held thus: "16. It is fairly well settled that the approach and objective in criminal proceedings and the disciplinary proceedings are altogether distinct and different. In the disciplinary proceedings the preliminary question is whether the employee is guilty of such conduct as would merit action against him, whereas in criminal proceedings the question is whether the offences registered against him are established and if established what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial are conceptually different. (See State of Rajasthan v. B.K. Meena) In case of disciplinary enquiry the technical rules of evidence have no application. The doctrine of “proof beyond doubt” has no application. Preponderance of probabilities and some material on record are necessary to arrive at the conclusion whether or not the delinquent has committed misconduct. https://hcservices.ecourts.gov.in/hcservices/ 17. While exercising jurisdiction under Article 226 of the Constitution the High Court does not act as an appellate authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. Judicial review is not akin to adjudication of the case on merits as an appellate authority. 18. In B.C. Chaturvedi v. Union of India the scope of judicial review was indicated by stating that review by the court is of decision-making process and where the findings of the disciplinary authority are based on some evidence, the court or the tribunal cannot reappreciate the evidence and substitute its own finding. 19. As observed in R.S. Saini v. State of Punjab in paras 16 and 17 the scope of interference is rather limited and has to be exercised within the circumscribed limits." (d) In (1995) 6 SCC 749 (B.C.Chaturvedi v. Union of India) in paragraph 18, it is held as follows: "18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof." (e) In (2005) 7 SCC 764 (Ajit Kumar Nag v. G.M.(PJ), Indian Oil Corporation Ltd.) in paragraph 11, the Supreme Court held as follows: "11. As far as acquittal of the appellant by a criminal court is concerned, in our opinion, https://hcservices.ecourts.gov.in/hcservices/ the said order does not preclude the Corporation from taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused “beyond reasonable doubt”, he cannot be convicted by a court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of “preponderance of probability”. Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned order dismissing him from service deserves to be quashed and set aside." (f) The Division Bench of this Court in the decision reported in 2005 (1) CTC 625 (The Management of Thiruvalluvar Transport Corporation v. S.Anthonysamy). In paragraphs 8 to 13 it is held as follows: "8. It is well settled that on the same charges when there is a criminal