IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.06.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.18033 of 2001 D.H.Syed Kasim .. Petitioner Vs. 1. The Presiding Officer, Labour Court, Salem. 2. Tamilnadu State Transport Corporation Ltd., Dharmapuri. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India for the issue of a writ of certiorarified mandamus after calling for the records relating to the preliminary and final award passed in I.D.No.760/98 dated 15.11.2000 and 26.6.2001 by the first respondent, quash the same and to direct the second respondent to reinstate the petitioner with continuity of service and backwages and all other attendant benefits and award costs. For Petitioner : Mr.R.Krishnasamy For Respondents : Mr.Kamalanathan for R2 ORDER The petitioner is a workman. He has filed the present writ petition, seeking to challenge the preliminary Award, dated 15.11.2000 and final Award dated 26.6.2001 passed by the first respondent Labour Court, Salem in I.D.No.760 of 1998. After setting aside the same, he seeks for a direction to second respondent to reinstate the petitioner with continuity of service and backwages. 2.By the preliminary Award, dated 15.11.2000, the Labour Court held that the enquiry conducted against the workman was fair and proper and that findings recorded by the Enquiry Officer are supported by evidence. Thereafter, arguments were heard on the proportionality of punishment. The labour court found that the punishment given to the workman, i.e. dismissal was not disproportionate to the gravity of misconduct committed by him and https://hcservices.ecourts.gov.in/hcservices/ that there were no grounds to interfere with the penalty imposed on the petitioner. The writ petition was admitted on 28.9.2001. Notice was ordered to the second respondent management. 3.The facts leading to passing of the impugned Award are as follows: The petitioner joined as a Driver in the second respondent Transport Corporation with effect from 17.2.1989. While he was on duty on 23.10.1995 at about 15.00 hours, the bus met with an accident and collided against a lorry coming on the opposite direction. The petitioner as well as certain passengers sustained injuries. One of the passenger who got injured finally succumbed to the injuries while in the hospital. The petitioner was given a charge memo on 1.11.1995 for rash and negligent driving and causing loss to the Corporation. The petitioner gave his explanation on 6.11.1995. A domestic enquiry was conducted against the petitioner. In that enquiry, the second respondent examined the Conductor of the bus as M.W.1 and an Assistant Engineer K.C.Elangovan as M.W.2. The petitioner gave his statement as W.W.1. The enquiry officer found the petitioner guilty of charges vide his report, dated 6.1.1996. 4.A second show cause notice was served on the petitioner on 2.2.1996. Despite petitioner's explanation, dated 20.2.1996, he was dismissed by an order, dated 16.7.1996. The petitioner raised an industrial dispute before the Government Labour Officer. As the conciliation ended in a failure, on the strength of the failure report, he filed a claim statement before the first respondent Labour Court. The Labour court registered his case as I.D.No.760 of 1998 and ordered notice to the management. A counter statement was filed by the second respondent. Before the Labour Court, the workman marked one document which is a written statement filed by the management before the Motor Accident Claims Tribunal, Tiruppatthur in MCOP No.107 of 1996. On the side of the management, nine documents were filed, which were marked as Exs.M.1 to M.9. Since the petitioner challenged the validity of the enquiry, the same was tried as a preliminary issue. The labour court held that the workman never made any grievance about the non furnishing of records. Two witnesses who were examined in his presence were not cross examined by him. No letter was sent by the workman challenging the procedure adopted by the management. Even in his explanation to the second show cause notice, though he could have made complaint regarding the conduct of the enquiry, he did not raise any objection. For the first time, after two years that too only before the Labour Court in his claim statement, he made a grievance about the enquiry. 5.The labour court after going through the recorded proceedings found that the enquiry was fair and proper. The labour court also found that the charge of rash and negligent driving was proved and that the workman was guilty of causing the accident. It was the case of the petitioner that he was not given an opportunity to engage a lawyer. The conductor, who was in the bus, though was examined as a witness did not speak about the role of the https://hcservices.ecourts.gov.in/hcservices/ petitioner. The evidence of M.W.2, who was not an eyewitness, was based upon surmises and presumptions. No criminal case was filed against the petitioner. Even before the MACTOP, the stand of the Corporation was that the workman was not guilty and the bus was driven in a careful manner. He also submitted that the punishment of dismissal was grossly disproportionate. 6.A perusal of the preliminary Award passed by the labour court also impugned in the writ petition shows that there are no infirmity or irregularity in the Award passed by the Labour Court. The labour court had correctly found that the enquiry conducted against the workman was fair and proper. The labour court's finding on the evidence of M.W.2 remained unimpeached as there was no cross examination of him by the workman. M.W.2 had stated that the accident had occurred because of speed in which the petitioner was driving the bus and that the bus dashed against the electric pole on the left side of the bus and thereafter, it dragged the electric pole till it hit against a Banyan tree. There were seven passengers including driver were injured. The loss caused to the bus was to the tune of Rs.65,000/- 7.Mr.R.Krishnasamy, learned counsel for the petitioner contended that the concept of res ipsa loquitur will not apply and there is no eye witness to the incident. He placed reliance upon the judgment of the Supreme Court in Mohammed Aynuddin alias Miyam Vs. State of A.P. reported in 2000 (7) SCC 72 and relied upon the following passage found in paragraph 8 of the said judgment, which is as follows: "8. The principle of res ipsa loquitur is only a rule of evidence to determine the onus of proof in actions relating to negligence. The said principle has application only when the nature of the accident and the attending circumstances would reasonably lead to the belief that in the absence of negligence the accident would not have occurred and that the thing which caused injury is shown to have been under the management and control of the alleged wrongdoer." 8.It is not clear as to how the said judgment will have any assistance to the case of the petitioner. In that case, the Supreme court found that there was no criminal negligence on the part of the driver in causing death of the passenger due to the sudden take off by the bus. In the present case, we are not concerned with any criminal act on the part of the petitioner. 9.The learned counsel for the petitioner thereafter relied upon a division bench judgment of this court in Pandian Roadways Corporation Ltd. Vs. Presiding Officer, Additional Labour Court, Madurai and another reported in 2002 (1) LLN 348. In that case, the division bench of this court held that placing reliance upon the sole evidence of the Assistant Engineer cannot be a legal evidence and hence the Award passed by the labour court in setting aside the termination of driver was valid. https://hcservices.ecourts.gov.in/hcservices/ 10.He also placed reliance upon the judgment of this court in Management of Cheran Transport Corporation Ltd., Coimbatore Vs. Presiding Officer, Industrial Tribunal, Madras and another reported in 2002 (1) LLN 388 for the very same proposition. 11.An unreported judgment of this court in W.A.No.2238 of 2000 in A.Mariasundararaj Vs. Cheran Transport Corporation Ltd. and another, dated 3.10.2007 was also pressed into service for the very same proposition. 12.The learned counsel also placed reliance upon the judgment of an another division bench of this court in Tamil Nadu State Transport Corporation (Kumbakonam Division II), Ltd. and another Vs. P.Karuppusamy reported in 2008 (1) LLN 922 for the purpose of holding that since the Corporation took the stand before the Motor Accident Claims Tribunal that the driver of the bus was not responsible, they cannot record a different finding in the domestic enquiry. 13.However, this court is not inclined to accept the contentions of the petitioner inasmuch as the petitioner did not cross examine the Assistant Engineer, who was examined as M.W.2 in the domestic enquiry. Further, the labour court in the preliminary Award uphold the validity of the enquiry as well as the findings recorded by the Enquiry Officer. 14.The Supreme Court in Cholan Roadways Ltd. Vs. G.Thirugnanasambandam reported in (2005) 3 SCC 241 = 2005 (1) LLN 633 has upheld the application of principles of res ipsa loquitur in deciding such matters even in a domestic enquiry. The labour court also had applied its mind and had refused to exercise the discretion under Section 11A of the ID Act. Hence no fault can be found with the refusal of discretionary power exercised by the labour court. 15.In the light of the above, it is not a fit case where any relief can be given to the petitioner. Hence the writ petition will stand dismissed. However, there will be no order as to costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. vvk To 1.The Presiding Officer, Labour Court, Salem. 2.Tamilnadu State Transport Corporation Ltd., Dharmapuri. + 1 CC TO Mr.V.Ajoy Khore, Advocate Sr 40252 ORDER IN W.P.NO.18033 OF 2001 MDR (CO) RH (16.6.10) https://hcservices.ecourts.gov.in/hcservices/