CWP No. 19283 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH CWP No. 19283 of 2008 Date of decision October 23, 2009 The General Manager, Haryana Roadways, Fatehabad Depot, Fatehabad. ....... Petitioner Versus Partap Singh and another ........ Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. D. S. Nalwa, Additional Advocate General Haryana for the petitioner. Mr. S. K. Sharma, Advocate for respondent No.1. **** 1. Whether reporters of local newspapers may be allowed to see the judgment ? 2. To be referred to the reporters or not? 3. Whether the judgment should be reported in the digest? **** K. Kannan, J (oral). 1. The award in challenge is a direction for reinstatement with 50% back wages for a driver who was alleged to have committed the misconduct of handing over the vehicle of which he was Incharge to a private person on 5.12.1997. It was an admitted fact that when a private person by name Prithvi Singh was driving the vehicle there was an accident and the said driver Prithvi Singh and five other persons died. Claims were made at the instance of the legal representatives and injured persons before a Motor Accident Claims Tribunal and the Corporation was slapped with compensation of over 29 lacs to be paid to the claimants. 2. It was an admitted fact that at the relevant time on CWP No. 19283 of 2008 2 5.12.1997 the workmen had taken responsibility as a driver and had taken the vouchers. It was again an admitted fact that when the accident took place the workman had not been at the wheel some other private person was driving the vehicle. To a charge sheet issued to him for the misconduct of handing over the responsibility to drive the vehicle to a private person, the driver stated in defence that at that relevant time during the course of transit he fell ill and he had informed one Mahabir Singh the Adda Conductor that he was not able to drive and the Adda Conductor had entrusted the vehicle to the private driver Prithvi Singh. The statement in defence was therefore explaining the presence of a private person and what was required to be done therefore was a proof whether the Adda Conductor had permitted yet another person to drive the vehicle. The domestic enquiry led to the finding of guilt and the workman had been terminated from service. This was challenged before the Labour Court on a reference when the Labour Court on a preliminary enquiry found that the enquiry had not been fair and proper. The Management chose to prove the misconduct by examination of witnesses before the Labour Court. The Labour Court found on the basis of evidence led that the Management had not proved that the workman had handed over the bus for its driving to a private unauthorized person. In other words it expected the defence of the workman to have been disproved, viz. not authorized the private person to take charge of the vehicle that culminated in the accident. 3. The Haryana Roadways which is aggrieved against the award has challenged it before this Court. Learned counsel for the State took me through the evidence of the witnesses who had been examined and how it had been dealt with by the Labour Court. The most crucial witness who was the Conductor Gurdial Singh gave evidence to the effect that on 5.12.1997, bus No.HR-39/041 was driven by the workman Partap Singh was the driver. His statement was also that the vehicle was CWP No. 19283 of 2008 3 taken at 3.20 from Hisar and at that time also the workman Partap Singh was the driver. He had also admitted to have taken the vouchers M-10, and M-11 from Hisar and M-12 and M-13 from Bhattu. There again it was Partap who was the driver. His evidence, went on a different trajectory from there on when he said at the time when the accident took place, he did not see whether the Partap Singh was the driver since he was busy in issuing tickets. This statement of the Conductor was taken to be an evidence in support of the driver. 4. The manner of interpretation of this evidence by the Labour Court, is in my view wrong. It becomes clear from the evidence of the Conductor that he did not say that the driver complained of any illness to the Adda Conductor and that the Adda Conductor had allowed a private unauthorized driver to take charge. If the conductor did not see if workman Partap Singh was the driver, it did not mean much, for even without his evidence it was an admitted fact that Partap Singh was not the driver and yet another person Prithvi Singh had been the driver when the accident took place. I have observed already that the driver also had died. If the defence was true that yet another person had been authorized to drive by the Adda Conductor the most competent who would have known it would be the conductor himself. In this case, the onus of proof was very light on the Management. From the facts enumerated, a person who was not an employee of the Corporation but a private person was admittedly driver of the vehicle at the time of accident. He had no business to be there. The driver who was workman under the Corporation was admittedly the person who was Incharge of the vehicle. If the vehicle had not been in his hands and it had gone to other person it was the responsibility of the driver to explain. The onus shifted on a mere statement from the Management that no such permission had been given by the Adda Conductor. In this case, the Adda Conductor had deposed that on the CWP No. 19283 of 2008 4 particular day Partap Singh was the driver and Gurdayal Singh was the Conductor on duty. Yet another witness MW-3 who was on duty on 5.12.1997 at advance booking counter No. 8 & 9 has given evidence that vouchers were issued by him and when M-11 pertaining to bus No. 411 had been issued he had seen Partap Singh was the driver of the vehicle and Gurdayal Singh was the Conductor. The other witness MW-4 and MW-5 had also given evidence that it was Partap Singh who was Incharge of the vehicle at that time. 5. The workman sought to prove that he took ill and he went to the doctor and he produced proof of some prescription slips which have been given by the doctor. It could still be true that Partap Singh had taken ill and that he had gone to a doctor. That probably explains also the reason how yet another person namely private driver took charge of the vehicle. If a driver is seen as having been cast to the duty of driving the vehicle and it ultimately transpired that vehicle has gone out of his hands to yet another person, it will be of no defence for such a person to contend that because of illness he could not drive and that another private driver took charge of the vehicle. If defence was that Adda Conductor had given such an authority as was the usual practice, it cannot be a practice which can help him in any way. If it was an usual practice it was a practice to be deprecated and a person who had been a privy to such an unauthorized practice has to lie low and take consequences of his own wrong. The Labour Court was wholly in error in stating, after eliciting the evidence of the witnesses, that no witness proved that Partap Singh handed over bus for driving to a private person. I have observed the nature of onus of proof on the Management was very light since it was an admitted fact the workman had been assigned the duty of driving vehicle at that time. If the driver were to contend that he handed over the vehicle at the instance of the Adda Conductor Mahabir Singh it would not exculpate CWP No. 19283 of 2008 5 him from the initial misconduct. The only option for the workman at the time when he fell ill and when he could not perform the duty, was to walk out from the place in the manner that he could lawfully disown responsibility. That would be by applying for leave and getting away. He cannot treat himself to be on duty and not to take responsibility for the consequences that ultimately ensued by the private unauthorized driver taking charge of the vehicle and putting the vehicle at risk that gave place to a gory incident with unfortunate deaths of several persons and financial loss to the Corporation. The misconduct of the Conductor ought to have been seen as proof by the only fact that even the Conductor who had given evidence did not state that the workman had reported illness to the Adda Conductor and yet another driver was assigned duty only at the instance of the Adda Conductor. The Labour Court could have seen the evidence of the Conductor was sufficient to find the misconduct of the driver. If the defence was true, the Conductor ought to have supported his case. The prevarication and the unwillingness on the part of the Conductor to reveal the whole truth by stating that he knew that the workman was the driver but he did not know who was driving the vehicle at the time when the accident took place because he was busy in issuing the tickets was not a proof of innocence of the workman. There was no need for proof that some other person was driving the vehicle for it was the ultimate truth that the other person who was driving the vehicle also died. The proof which the Labour Court was looking for, that the Conductor did not know who was driving the vehicle was wholly unnecessary for determination of a fact which was as clear as a crystal. 6. A pure finding of fact by Labour Court shall hardly been an instance for a Court's intervention in exercise of jurisdiction under Article 226 of the Constitution. There are, however, hard cases where there is a failure of a Court to make the appropriate inferences from the CWP No. 19283 of 2008 6 evidence tendered before it. Here there is complete lack of judicial approach to understand what was in evidence; a blighted, egregious error to get at the truth by the forensic skill that a Judge shall posses. In each one of the counts, I am afraid, the Labour Court has floundered. 7. The award of the Labour Court under the circumstances is set aside and the order of dismissal made by the Management is restored. The writ petition under the circumstances is allowed. There shall, however, be no direction as to costs. (K. KANNAN) JUDGE October 23, 2009 archana