IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.8.2011 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.15131 of 2009 The Management of Metropolitan Transport Corporation Ltd. (Formerly Pallavan Transport Corporation Ltd.) Pallavan Salai, Chennai – 600 002. .. Petitioner Vs. 1. P.Thanikachalam 2. The Presiding Officer Principal Labour Court Chennai – 600 104. .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of writ of Certiorari to call for the records relating to the award dated 11.12.2008 made in I.D.No.941 of 2001 on the file of the second respondent and quash the same. For Petitioner : Mr.M.Chidambaram For Respondents : Mr.V.Ajoy Khose for 1st respondent R2 Court ORDER The petitioner is the management of the State owned Transport Corporation having its head quarters at Chennai. In this writ petition, the petitioner has challenged the award passed by the second respondent/ Labour Court in I.D.No.941 of 2001, dated 11.12.2008. By the impugned award, the Labour Court directed the reinstatement of the first respondent with back-wages, continuity of service and other attendant benefits. 2. The writ petition was admitted on 3.8.2009. Pending the writ petition, this Court granted interim stay on condition that the petitioner deposits ` 25,000/- with the second respondent/Labour Court. Subsequently, the first respondent/workman took out two petitions, viz., M.P.Nos.2 and 3 of 2009, for grant of monthly wages https://hcservices.ecourts.gov.in/hcservices/ under Section 17-B of the Industrial Disputes Act and also for vacating the interim order. This Court, calculating the back-wages on the basis of the last drawn wage, directed the the amount of ` 6,12,168/- to be deposited after giving credit to the amount already deposited by virtue of the interim order and also made the stay absolute. In the petition for monthly wages under Section 17-B of the Industrial Disputes Act, by order dated 2.12.2009, the petitioner/Corporation was directed to pay the monthly wages in compliance with Section 17-B of the Industrial Disputes Act. 3.1. It is the case of the petitioner that the first respondent has been working in the petitioner/Corporation since 1977. He was placed under suspension by order dated 28.1.1993, pending enquiry into the charges. A charge memo dated 2.2.1993 was given to him stating that while he was driving the bus on 15.1.1993 in Route No.12B and proceeding in the Nageswara Rao Road in T.Nagar, he hit against a cyclist with the front side of the bus and as a result, the cyclist fell down and he was dragged for sometime and he got injured on the left shoulder and the first respondent took the injured cyclist in an auto rickshaw and admitted him to Royapettah Medical Hospital and after first aid was given, he was taken to Government General Hospital and the said cyclist succumbed to the injuries without responding to the treatment. 3.2. The police had registered a criminal case against the first respondent for rash and negligent driving and, therefore, the petitioner was accused of driving the bus in a rash and negligent manner and causing the death of the cyclist. The first respondent gave his explanation on 20.3.1993. Even before the explanation was submitted, the suspension was revoked on 6.3.1993. After one year and nine months, an enquiry was ordered. The Enquiry Officer gave his findings on 25.9.1995 and on the basis of the findings, a second show cause notice was given to the first respondent on 30.10.1995. The first respondent gave his explanation on 27.4.1996. Thereafter, the first respondent was also asked to appear before a Medical Board and the Medical Board also forwarded a report on the eye test conducted against the first respondent. By a final order dated 2.6.1997, the first respondent was dismissed from service. The first respondent preferred an appeal. The Appellate Authority, namely the Managing Director, by his order dated 30.6.1997, dismissed the departmental appeal. 3.3. It was thereafter the first respondent raised an industrial dispute before the Conciliation Officer. As the Conciliation Officer could not bring about any mediation, he gave a failure report. On the strength of the failure report, the first respondent filed a claim statement dated 14.12.2001 before the Labour Court. The Labour Court took up the dispute on its file as I.D.No.941 of 2001 and issued notice to the petitioner/ Corporation. The petitioner/Corporation filed a counter statement dated 7.5.2002. https://hcservices.ecourts.gov.in/hcservices/ 3.4. Before the Labour Court, no oral evidence was let in by the parties. However, on the side of the first respondent, 16 documents were filed and marked as Exx.W1 to W16 and on the side of the petitioner/ Corporation, 25 documents were filed and marked as Exx.M1 to M25. It must be noted that most of the documents were repetitive. Copies of some of the documents filed on the side of the workman/first respondent, were also marked as documents on the side of the management/ petitioner. 3.5. The Labour Court, based upon the said evidence, framed three issues. The first issue was whether the findings of the Enquiry Officer are correct or perverse. The second issue was whether the first respondent was entitled to reinstatement with back-wages, continuity of service and other attendant benefits. The third issue was if not, to what relief the first respondent is entitled to. 3.6. The Labour Court held that there was no dispute regarding the procedure adopted in the departmental enquiry and, therefore, it will have to examine the findings recorded by the Enquiry Officer. The Labour Court found that in the present case there was no eyewitness to the accident. The Conductor of the bus, who was present in the bus, was not examined as a witness and the defence of the first respondent/Driver was not considered and, therefore, the evidence gathered by the petitioner in the enquiry cannot be said to be legal evidence. 3.7. The Labour Court also held that though the first respondent was suspended on the basis of first information report in Ex.W1, he was also sent for eye test. Though the eye test proved that he had defect in vision, that has not been made as a charge in the enquiry. Therefore, on the ground of defect in his eyesight, the first respondent cannot be terminated and even the concept of res ipsa loquitur (facts speak for themselves) will not apply to this case. It is under such circumstances, the Labour Court held that there is no legal evidence and hence, the findings of the Enquiry Officer are perverse. 4.1. Mr.M.Chidambaram, learned counsel for the petitioner stated that the findings of the Enquiry Officer as well as the first information report clearly prove that it was the first respondent who was at fault and the Labour Court did not take into account that the first respondent was a habitual offender and on many an occasion warning letters were given even prior to the accident. 4.2. He further submitted that the finding that no eyewitness was examined also cannot be a legal ground. Even if the management had not examined the conductor, nothing prevented the first respondent to examine the conductor to prove his innocence. The records subsequent to the medical examination clearly proved that the https://hcservices.ecourts.gov.in/hcservices/ first respondent is having eye defect and, therefore, his reinstatement will jeopardize the interest of the traveling public. 5. Per contra, Mr.Ajoy Khose, learned counsel appearing for the first respondent submitted that the question of eye defect cannot be brought in, since that was not an issue at the time of the department enquiry and he was sent for medical examination only thereafter. 6. In the present case, the accident cannot speak for itself, as there is no material to describe the accident and even if there was any adverse past record, that will assume importance only when the present misconduct alleged against the first respondent is proved to the satisfaction of the Labour Court. 7. In the case on hand, at the time of issuing second show cause notice the criminal case had not ended, but when the first respondent gave an explanation to the second show cause notice, the criminal court judgment was very much available and this fact was also stated in his explanation to the show cause notice made on 27.4.1996 and a copy of the criminal court judgment was also enclosed. But notwithstanding the same, before passing the order, the petitioner/Corporation sent the first respondent for a medical checkup regarding his eyesight. The Regional Medical Board attached to the Institute of Ophthalmology, Egmore, by report dated 8.3.1997, found that the first respondent's eyes are unfit for holding the post of driver. 8. If on the basis of the said report the petitioner/Corporation wanted to dispense with the service of the first respondent, then under Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 such a termination was not possible. Therefore, the petitioner, by order dated 2.6.1997, did not even refer to the report of the Medical Board, but chose to dismiss the service. It is only for the first time before the Conciliation Officer, the petitioner/ Corporation stated that the first respondent's eyesight was unfit for the work of a driver. The first respondent protested against the same and stated that the said cause was not found either in the second show cause notice or in the final order. When this issue was raised in the claim statement filed by the first respondent, it was stated by them that the eyesight of the first respondent was found to be unfit for the work of a driver. Therefore, the Labour Court did not go into the issue of unsuitability of the first respondent. 9. Though in the accident report prepared by the petitioner/ Corporation an allegation was made against the first respondent, nothing prevented the petitioner/Corporation to examine an appropriate witness to speak about the accident. On the contrary, the first respondent stated that while he was driving in Pangal park area, a car, the number of which is unknown, came on the right side https://hcservices.ecourts.gov.in/hcservices/ and hit against the cyclist and he fell directly on the rear wheel of the bus and when the passengers shouted, the first respondent applied brakes and took the injured person to the hospital for first aid treatment and he only gave report to the Accident Branch and to the police. A same version was also mentioned by the conductor – Velmurugan, who also gave a report to the Accident Branch. But, curiously, the said Velmurugan was not examined by the petitioner/Corporation and rightly the Labour Court took exception to his non examination. The Criminal Court also gave a categorical finding that the first respondent was not guilty of the charge. 10. In that view of the matter, it is not a fit case where any interference is called for with the impugned award of the Labour Court and the writ petition is liable to be rejected. However, with reference to the unfitness report given by the Regional Medical Board attached to the Institute of Ophthalmology, Egmore, no action was taken by the petitioner/Corporation. Therefore, the petitioner/Corporation is at liberty to communicate the report of the Medical Board to the first respondent before deciding the question of reinstating him in the post of driver and if the first respondent has no clear defence on the said report, then the first respondent can be disqualified from being a driver of the Corporation and he may be given alternative post in the light of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Upholding the award does not mean that this Court directs the reinstatement of the first respondent only in the post of driver and certainly discretion is available to the petitioner/Corporation to grant him any other alternative employment without detriment to the status and emoluments. With these observations, the writ petition stands dismissed. No costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar sasi To: The Presiding Officer Principal Labour Court, Chennai – 600 104. Copy to: The Section Officer, V.R. Section, High Court, Madras. + 1 cc to Mr.M.Chidambaram, SR.51414 + 1 cc to Mr. Ajoy khose, SR.51140 W.P.No.15131 of 2009 SSK(CO) Eu 30.8.11 https://hcservices.ecourts.gov.in/hcservices/