IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:19.12.2011 Coram The Hon'ble Mr. Justice M.M.SUNDRESH W.P.No.29596 of 2010 T.Selvaraj .. Petitioner Vs 1.The Presiding Officer, Labour Court, Coimbatore. 2.The General Manager, Tamil Nadu State Transport Corporation , Coimbatore Division 1, No.137, Mettupalayam Road, Coimbatore – 641 043. .. Respondents Petition filed under Article 226 of the Constitution of India praying to issue a writ of certiorarified mandamus to call for the records connected with the Award dated 07.10.2009 of the first respondent made in I.D.No.286 of 2003, quash the same and also direct the second respondent to reinstate the petitioner with continuity of service and other attendant benefits. For Petitioner .. Mr.S.Arunachalam for Ms.S.Girija For Respondents .. R1 – Court Mr.D.Gopinathan for M/s.M.Ravi Bharathi for R2 ORDER The petitioner, challenging the award of the Labour Court, Coimbatore made in I.D.No.286 of 2003, by which the order of dismissal passed against him was confirmed, has come forward to file this writ petition. https://hcservices.ecourts.gov.in/hcservices/ 2.The facts in brief are as follows: (i)The petitioner was working as a Driver in the second respondent Transport Corporation. On 10.05.1997, the petitioner drove the vehicle bearing Registration No.TN 37 N 0449. The vehicle crossed Ukkadam bus stand, which is 7kms from the place of occurrence and dashed against a tamarind tree. Consequent on the accident, seven people including two children have died, 15 passengers sustained injuries and the tamarind tree was uprooted. (ii)Charges have been framed against the petitioner for the occurrence happened on 10.05.1997. A report was filed by the Assistant Engineer on 10.05.1997 indicating that the accident had occurred due to the fault of the petitioner as he was driving the vehicle at a very high speed. Since the petitioner has tried to overtake the vehicle and there was another vehicle coming from the opposite direction, the petitioner took an evasive step, resulting in losing the balance, thereby causing the accident. After considering the explanation of the petitioner, an enquiry officer was appointed to conduct the enquiry. (iii)Before the enquiry officer, the petitioner sought for certain documents. The enquiry officer furnished the petitioner copies of some of the documents and permitted the petitioner to peruse the other documents. The petitioner was allowed to cross- examine the witnesses on three occasions. Thereafter, the enquiry officer found that the charges levelled against the petitioner were proved. Accepting the report of the enquiry officer, notice was given to the petitioner, proposing to remove him from service. An explanation was given by the petitioner stating that the accident has occurred due to the mistake in the vehicle. Since the spring over the right wheel broken down, the petitioner lost his balance, which resulted in the vehicle hitting against the tamarind tree. Considering the explanation of the petitioner vis-a-vis the enquiry officer's report, the second respondent dismissed the petitioner from service by taking into consideration the gravity of the charges as well as the past conduct of the petitioner. The petitioner raised a dispute in I.D.No.286 of 2003 before the Labour Court, Coimbatore, which was dismissed and therefore, the present writ petition has been filed. 3.Learned counsel for the petitioner submitted that there is no preponderance of probabilities involved in this case. The log sheet entries would show the condition of the vehicle and the written statement given by the petitioner has not been controverted. He would submit that the enquiry officer, disciplinary authority and the Labour Court have merely relied upon the report of the Assistant Engineer and the evidence produced by the petitioner was not considered properly. The material documents sought for by the https://hcservices.ecourts.gov.in/hcservices/ petitioner have not been given. The decision has been made based upon the surmises and conjectures, without any basis. The evidence available on record would show that there was a sound prior to the accident. The witnesses shown in the accident report and the additional report dated 10.05.1997 and 13.05.1997 respectively have not been examined, thereby preventing the petitioner from cross- examining them. Learned counsel also submitted that considering the overall situation, this Court will have to merge the relief by modifying the award passed by the Labour Court. In support of his contention, learned counsel relied upon the following judgments: 1.Indian Airlines and Others Vs. W.B.Correya (1978 II LLJ 437) 2.Assistant Security Officer, Railway Protection Force, Jolarpettai and Others Vs. S.Sivagnanam (1995 II LLJ 195) 3.Tamil Nadu State Transport Corporation (Kumbakonam) Limited rep. By its General Manager, Trichy Vs. Presiding Officer, Labour Court, Trichy (2011 II LLJ 254(Mad)) 4.Per contra, learned counsel for the second respondent submitted that there is a material contradiction between the evidence produced by the petitioner and the statement given by him on 10.05.1997. A mere acquittal in a criminal case does not have a bearing in the departmental proceedings. It is not necessary that the persons examined by the investigating officer will have to be examined in a departmental proceeding. Considering the facts of the case, it is for the petitioner to disprove the charges levelled against him. As the enquiry officer, disciplinary authority and the Labour Court have gone into the materials available on record, this Court shall not interfere with the same in a discretionary jurisdiction. Therefore, the learned counsel submitted that the writ petition will have to be dismissed. 5.The facts involved in the present case are not in dispute. Admittedly, there was an accident on 10.05.1997. Therefore, by applying the principle of res ipsa loquitur, it is for the petitioner to substantiate the charges levelled against him. The enquiry officer, by taking into consideration the report of the investigating officer, has held that the petitioner was driving the vehicle at a very high speed. It is not the case that two vehicles are colliding with each other. It is the finding of the enquiry officer that the vehicle was proceeding from Ukkadam bus stand and reached the place of accident in 18 minutes, covering the distance of 7 kms. The enquiry officer, on facts, also found that there is no basis for accepting the case of the petitioner. It is the specific case of the petitioner that the spring attached to the wheel of the vehicle got damaged, resulting in huge sound whereas in the report of the enquiry officer, he has held that the damage was caused due to the accident and there was no prior breaking up of the spring. In fact, only one spring has been replaced. As rightly found by the enquiry officer, there was absolutely no indication about the brake said to have been https://hcservices.ecourts.gov.in/hcservices/ applied by the petitioner, as seen from the report. It is not the case of the petitioner that the officer, who filed the report, is inimically disposed towards him. 6.Admittedly, the accident has taken seven lives, who were travelling in the bus driven by the petitioner. Apart from them, scores of passengers got injured. Yet another important factor to be seen is that the tamarind tree, against which the bus got dashed, was totally uprooted. Therefore, taking into consideration this fact, the enquiry officer has held that the charges levelled against the petitioner are proved. 7.The entries in the log sheet relied upon by the petitioner before this Court for the first time cannot be accepted. The power of this Court under Article 226 of the Constitution of India over inferior Court is rather limited. This Court is concerned with the decision making process of the inferior Court and not the decision by itself. Be that as it may, as submitted by the learned counsel for the second respondent, the log sheet entries would show that the deficiencies pointed out therein have been rectified on the very same day. There is nothing on record to show that the deficiencies, as alleged by the petitioner, were available at the time of the accident. Insofar as the witness produced by the petitioner is concerned, there is contradiction in the statement given by the said witness as against the petitioner's earlier statement. Moreover, since the enquiry officer has taken into consideration the other material witnesses available both oral and documentary, this Court is of the view that merely because one of the witnesses produced by the petitioner has not been considered properly, the same would not be fatal to the case of the petitioner. As discussed above, by applying the principle of res ipsa loquitur, it is for the petitioner to substantiate his case that the accident has been caused not due to his negligence. Improper consideration of the witness produced by the petitioner has not been raised neither before the disciplinary authority nor before the Labour Court. The petitioner was given ample opportunities to substantiate his case and copies of the documents have also been furnished to him. It is settled principle of law that unless and until prejudice is shown, a mere non-production of the document sought for by the delinquent employee by itself would not vitiate the proceedings. It is not the case of the petitioner that the regulations permit him to have copies of the documents sought for. There is nothing on record to show the relevancy of the documents sought for. The petitioner was also permitted to peruse the other documents apart from those documents of which copies were given. The petitioner was allowed to cross-examine the witnesses on three occasions. There is no mandate of law that the parties enquired in the accident report will have to be produced before the departmental enquiry. https://hcservices.ecourts.gov.in/hcservices/ 8.Therefore, taking into consideration the above said facts and after going through the award passed by the Labour Court, this Court does not find any perversity in the same. The Labour Court has also taken into consideration the statement given by one of the witnesses by way of the first information report. 9.The judgments relied upon by the learned counsel for the petitioner are not applicable to the facts of the case on hand. In Indian Airlines and Others Vs. W.B.Correya (1978 II LLJ 437), the delinquent employee was not allowed to cross-examine a witness whose statement was recorded by the enquiry officer. In the said case, the witnesses were not allowed to make their statements as against the earlier statement given by them. The facts involved in the present case are totally different. In Assistant Security Officer, Railway Protection Force, Jolarpettai and Others Vs. S.Sivagnanam (1995 II LLJ 195), the enquiry officer placed reliance upon a report, which has not been marked in the enquiry. Therefore, this Court was pleased hold that such a procedure adopted would violate the principles of natural justice. Similarly in Tamil Nadu State Transport Corporation (Kumbakonam) Limited rep. By its General Manager, Trichy Vs. Presiding Officer, Labour Court, Trichy (2011 II LLJ 254(Mad)), the Division Bench was concerned with the exercise of the power under Section 11 A of the Industrial Disputes Act by the Labour Court. There is no difficulty in appreciating the said position of law that in a case where the Labour Court has exercised the discretion under Section 11 A of the Industrial Disputes Act, this Court cannot substitute its views over the same. In the said case, the Labour Court has exercised its power under Section 11 A of the Industrial Disputes Act by taking into consideration the fact involved viz., there was a negligence not only on the part of the delinquent employee but also on the auto driver, who contributed to the accident, which is not the case on hand. 10.Therefore, in the light of the discussion made above, this Court does not find any reason to interfere with the award of the Labour Court. Accordingly, the writ petition is dismissed. No costs. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar. mmi https://hcservices.ecourts.gov.in/hcservices/ To 1.The Presiding Officer, Labour Court, Coimbatore. 2.The General Manager, Tamil Nadu State Transport Corporation , Coimbatore Division 1, No.137, Mettupalayam Road, Coimbatore – 641 043. 1 cc To Mr.Ravi Bharathi, Advocate Sr 77932 W.P.No.29596 of 2010 ug[co] gp/10.1 https://hcservices.ecourts.gov.in/hcservices/