THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No. 35211 of 1998 O R D E R: This Writ Petition is preferred by the Depot Manager, Andhra Pradesh State Road Transport Corporation (for short, ‘the Corporation’), a public-sector undertaking, calling in question the correctness and legality of the Award passed on 4th February 1998 in I.D.No.201 of 1993, which was raised by the 2nd respondent driver of the said Corporation. The 2nd respondent is working as a Driver with the Corporation. On 8th September 1991, he was driving the bus bearing Registration No. AAZ 5581 on Nizamabad-Kamareddy route. En route, an accident was caused by swerving the bus on to the rare portion of a truck, which was preceding it on the road. It has resulted in six of the passengers of the bus sustaining injuries and severe damage to the bus. The 2nd respondent was subjected to disciplinary action and at the domestic enquiry, he was charged for the rash and negligent driving and thus, causing accident of the bus, which resulted in injuries to the passengers of the bus and grave damage to the bus itself. Based upon the domestic Enquiry Officer’s findings, he has been inflicted with the punishment of removal from the service. The appeal preferred there against having failed, he raised the industrial dispute in question. By an order passed on 29th February 1996, the Labour Court has upheld the validity of the domestic enquiry. Therefore, the question that was required to be considered by the Labour Court was whether the findings arrived at by the Enquiry officer are based upon evidence, collected at the domestic enquiry or not and whether the punishment imposed is reasonably proportionate to the proven misconduct or not. The service Conductor who was examined during the domestic enquiry has stated that to avoid a major accident, with an on-coming truck on the opposite side, the driver of the bus swerved the bus to the left side and thus hit the rare portion of another truck, which is preceding ahead of it. The Deputy Superintendent, Traffic, who was immediately deputed, on coming to know of the accident, has inspected the accident site and prepared a rough sketch showing the accident spot. On the ground that the Conductor, who was an eye witness, has not deposed anything about the rashness or negligent driving of the 2nd respondent workman and since the Deputy Superintendent, Traffic was not an eye witness, to the accident in question, the Labour Court came to the conclusion that there is no negligence or rashness on the part of the 2nd respondent workman in driving the vehicle. Though it was shown to the Court that at least on three different occasions, preceding the present one, the 2nd respondent driver has caused accidents, while driving the bus of the Corporation, the Labour Court has ordered for reinstatement of the 2nd respondent workman into service as a driver with continuity of service and also awarded 40% of the back wages. It is this award, which is challenged before this Court in this Writ Petition. Sri C. Sunil Kumar Reddy, learned Standing Counsel for the Corporation submits that the findings recorded by the Enquiry Officer at the domestic enquiry are truly based upon evidence. The Labour Court having already found that the enquiry that was conducted by the domestic Enquiry Officer is in accordance with law and there is no violation of any principles of natural justice, ought not to have interfered with the findings without recording as to how they are either perverse or not based upon the material collected at the enquiry. The Labour Court virtually sat in judgment over the report of the Enquiry Officer, which is not its function. The learned Standing Counsel has further submitted that there was no finding recorded by the Labour Court that the punishment imposed to the respondent workman was either unreasonable or disproportionate to the proven misconduct. Without doing so, it mechanically ordered for the reinstatement of the workman driver with benefit of continuity of service and also awarded 40% of the back wages. Absolutely, no reasons are assigned for its conclusion by the Labour Court and hence, the Award deserves to be interfered with. The 2nd respondent workman, who has been reinstated pursuant to the Award in question, while working at Macherla, Armur Mandal, Nizamabad District, has been served with the notice in this case. However, he did not prefer to enter appearance in the matter through any counsel nor was he present to make any submissions. The Labour Court, by its order, dated 29th February 1996, has upheld the validity of the domestic enquiry conducted against the respondent-workman. For the purpose of discarding the evidence brought before it, the Labour Court is not liable to sit in judgment like an Appellate Court would have done exercising the jurisdiction of an Appellate Authority. In the instant case, the Deputy Superintendent, Traffic, who, by his very nature of duties require to be performed by him, had gone and inspected the accident site. It is obvious that he will not be present at the time when the accidents do take place involving the buses of the Corporation. He is bound to visit the accident spots only after receiving such an information/intimation in that regard. Therefore, merely on the count that he was not an eye witness, his evidence ought not to have been discarded by the Labour Court. What all he deposed was that he had inspected the accident spot immediately after receiving the information in that regard he has prepared a rough sketch, indicating the place where the accident has taken place and he has deposed as to the possible circumstances of the accident. The rough sketch, which has been prepared by him, is obviously based upon the physical inspection of the facts prevailing at the accident spot. The Labour Court has gravely erred in re- appreciating the entire evidence. It acted as if it was sitting and exercising the jurisdiction of the Appellate Court either on its civil or criminal side. This was a grave error. The plea that the service Conductor has not deposed during the course of domestic enquiry that the driver in question has not rashly or negligently driven the bus but with a view to avoid a major accident involving another truck which is coming in the opposite direction, he swerved the bus to the left, which ultimately resulted in the accident, does not take away the sting out of the allegations levelled by the Corporation against the 2nd respondent workman. The lack of anticipation on the part of the respondent-workman while driving the bus about the possible oncoming traffic is what constitutes negligence on his part. Every motor vehicle driver should be alive to the prospects that the other half of the road belongs to the vehicular traffic, which comes in the opposite direction and, therefore, every motor vehicle driver is required to be cautious and careful while seeking to overtake any other vehicle and they should anticipate the possibility of an oncoming traffic and only when one is fairly sure and confident of the safe distance, he can proceed to overtake. Without taking any of those facts into account or consideration, the Labour Court has arrived at an incorrect and inappropriate conclusion that the 2nd respondent workman cannot be said to be driving the vehicle in question in a rash and negligent manner. The accident has been caused while he was performing the duties as a driver. It is, therefore, this version, explaining as to how the accident had taken place is the most relevant explanation. That could not have been discarded completely. Therefore, the finding recorded by the Labour Court in this regard is clearly unsustainable. During the course of enquiry, the Enquiry Officer has noticed that the accident has taken place at about 06.30 a.m. It is, therefore, clear that the vehicular traffic on the road could be very sleek at that hour. In spite of the same, the driver has not taken adequate precautions. This apart, the bus of the Corporation has suffered extensive damage and six of the passengers have sustained injuries in the accident. These factors have been completely omitted from consideration by the Labour Court. The matter, in normal circumstances, deserves to be remanded to the Labour Court for fresh consideration by providing an opportunity to both sides to lead any evidence afresh, but however, the fact remains that the Corporation has accepted the Award of the Labour Court and reinstated the 2nd respondent workman. He has already been assigned duties as a driver and he is now continuing in service. The Labour Court has not taken into account or consideration as to the steps or measures taken by the driver to get re-employed and as to how he failed to get re-employed in the meantime. Therefore, without any proper assessment, it awarded payment of wages to the extent of 40%. The payment of back wages is not an automatic affair to follow upon ordering reinstatement of anyone. Therefore, I consider it appropriate to modify the Award by deleting the payment of back wages of 40% ordered by the Labour Court as that would be a proper way of balancing the interest of the Corporation also and will put an end to the litigation as well. Therefore, for the reasons stated supra, I allow this Writ Petition in part, by modifying the Award insofar as it awarded 40% of the back wages to be paid to the respondent-workman. Rest of the Award is retained. No costs. ---------------------------------- (NOOTY RAMAMOHANA RAO, J) 16th November 2009 ksld