IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05-01-2010 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN W.P.No.15 of 2006 Tamilnadu State Transport Corporation (Salem) Ltd., Rep. by its Managing Director, Salem. .. Petitioner. Versus 1. The Presiding officer, Labour Court, Salem. 2. S.Pannerselvam .. Respondents. Prayer: Petition filed under Article 226 of the Constitution of India, praying for a Writ of Certiorari to call for the records of the 1st respondent in I.D.No.64 of 2003, dated 9.2.2005, and quash the same. For Petitioner: Mr.L.G.Sahadevan For Respondents: Mr.Ajay Khose (R2) O R D E R This writ petition has been filed challenging the award of the first respondent Labour Court, dated 9.2.2005, made in I.D.No.64 of 2003. By the said award, the first respondent Labour Court had directed the petitioner Corporation to reinstate the second respondent in service, with continuity of service and other benefits, without backwages. 2. It has been stated that the second respondent, while he was in service, as a Driver in the petitioner Corporation, had been issued with a charge memo for causing an accident, by rash and negligent driving. The second respondent is said to have dashed the bus bearing No.TN-27-N-1360, against a lorry, on 17.7.2001. As a result of the accident heavy damage is said to have been caused to the bus belonging to the petitioner Corporation and resulting in the death of eight passengers and injuries having been caused to sixteen of them. Pursuant to the enquiry, a report had been submitted and the second respondent had been asked to give his explanation. However, without considering the explanation, the second respondent had been https://hcservices.ecourts.gov.in/hcservices/ dismissed from service. Therefore, the second respondent had raised an industrial dispute before the first respondent Labour Court in I.D.No.64 of 2003. 3. By an award, dated 9.2.2005, the first respondent Labour Court had directed the petitioner Corporation to reinstate the second respondent in service, with continuity of service and other attendant benefits, without backwages. While holding that the domestic enquiry had been conducted in a fair and proper manner, the first respondent Labour Court had come to the conclusion that the punishment of dismissal from service, imposed on the second respondent, was disproportionate in nature. The first respondent Labour Court had found that no eye witness had been examined during the domestic enquiry. There was nothing to show that the accident had occurred only due to the rash and negligent driving of the bus, by the second respondent. It had also held that the principle of res ipsa loquitur cannot be applied in the present case. If at all, the accident could have occurred due to the contributory negligence of the second respondent. In such circumstances, the first respondent Labour Court had passed the award, dated 9.2.2005, directing the reinstatement of the second respondent in service, with continuity of service and other attendant benefits. However, it had been held that the second respondent would not be eligible for the backwages. 4. The learned counsel for the petitioner Corporation had submitted that the first respondent Labour Court had erred in holding that the findings in the domestic enquiry were not right and that the principle of res ipsa loquitur would not apply to the present case. He had also submitted that the first respondent Labour Court ought to have seen that the accident had occurred only due to the rash and negligent driving of the second respondent. He had also submitted that the first respondent Labour Court ought to have considered the past record of service of the second respondent, before exercising its discretion, under Section 11-A of the Industrial Disputes Act, 1947, to reduce the punishment imposed on the second respondent, by the petitioner Corporation. 5. The learned counsel appearing on behalf of the petitioner had relied on the following decisions in support of his contentions: 1) K.Ayyavu V. Tiruvalluvar Transport Corpn. Ltd (2003(3) L.L.N. 713); 2) Divisional Controller, KSRTC (NWKRTC) Vs. A.T.Mane (2004 STPL (LE 34188 SC); 3) M.Chella Thambi V. P.O.Labour Court (2004(1) L.L.N. 572); 4) North East KRTC Vs. Devidas Manikrao Sadananda (2006 STPL (LE) 37362 SC); 5) Karnataka Bank Ltd. V. A.L.Mohan Rao (2006) 1 SCC 63) ; 6) U.P.SRTC Vs. Mitthu Singh (2006 STPL(LE) 37281 SC); 7) Divisional Manager, Rajasthan S.R.T.C. Vs. Kamruddin (2009 STPL (LE) 42104 SC) and https://hcservices.ecourts.gov.in/hcservices/ 8) S.Arumainathan Vs. The Managing Director and another (W.P.No.2943 of 2001) 6. The learned counsel appearing on behalf of the second respondent had submitted that the first respondent Labour Court was right in coming to the conclusion that the punishment of dismissal from service imposed on the second respondent, by the petitioner Corporation, was disproportionate in nature. He had also submitted that the principle of res ipsa loquitur cannot be applied in this case, as held by the first respondent Labour Court. Further, there was no eye witness to the accident that had occurred on 17.7.2001. It cannot be said that the accident had occurred only due to the rash and negligent driving of the second respondent. The first respondent Labour Court had rightly exercised its discretionary power, under Section 11-A of the Industrial Disputes Act 1947, directing the petitioner Corporation to reinstate the second respondent in service, with continuity of service and other attendant benefits. The first respondent Labour Court has rightly directed that, if the second respondent was not fit to drive the buses belonging to the petitioner Corporation, he should be provided with alternative employment. 7. The learned counsel appearing on behalf of the second respondent had further submitted that the petitioner Corporation, having taken a stand before the concerned Motor Accident Claims Tribunal that the accident had not occurred due to the rash and negligent driving of the vehicle by the second respondent, cannot be permitted to plead before the first respondent Labour Court that the accident had occurred only due to the rash and negligent driving of the second respondent. The learned counsel appearing on behalf of the second respondent had relied on the decision, reported in T.N.State Transport Corpn. V. P.Karuppusamy (2008-I-LLJ-460 (Mad)), in support of his contention. 8. In view of the submissions made by the learned counsels appearing on behalf of the petitioner, as well as the second respondent and on a perusal of the records available, this Court is of the considered view that the petitioner has not shown sufficient cause or reason to set aside the award of the first respondent Labour Court, dated 9.2.2005, made in I.D.No.64 of 2003. It cannot be said that the first respondent Labour Court had erred in directing the petitioner Corporation to reinstate the second respondent in service, with continuity of service and other attendant benefits, using its discretion, under Section 11-A of the Industrial Disputes Act 1947. 9. Once it had been held that the accident had not occurred only due to the rash and negligent driving of the second respondent it is only logical for the first respondent Labour Court to impose a reduced punishment on the second respondent. Even though the first respondent Labour had directed the reinstatement of the second respondent in service, with continuity of service and other attendant https://hcservices.ecourts.gov.in/hcservices/ benefits, it had not directed the petitioner Corporation to pay the backwages. 10. The discretionary power exercised by the first respondent Labour Court, under Section 11-A of the Industrial Disputes Act, 1947, cannot be held to be arbitrary in nature. The first respondent labour Court had found that there was no eye witness to the accident that had occurred on 17.7.2001. Further, it had also been found that the principle of res ipsa loquitur cannot be applied in the present case. Once it has been found that the second respondent had made a sincere attempt to avoid the collision with the oncoming vehicle, it cannot be said that the accident had occurred, solely, due to the rash and negligent driving of the second respondent. 11. For the reasons stated above the award of the first respondent Labour Court, dated 9.2.2005, made in I.D.No.64 of 2003, stands confirmed. Accordingly, the writ petition is dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar csh To The Presiding Officer, Labour Court,Salem 1 cc To Mr.V.Ajay Khose, Advocate, SR.1020 W.P.No.15 of 2006 KSJ(CO) sra 18.01.2010 https://hcservices.ecourts.gov.in/hcservices/