HON'BLE SHRI G.S.SINGHVI, THE CHIEF JUSTICE WRIT PETITION No.30580 OF 1998 Between: P.Emanuel .... Petitioner And The Presiding Officer, Additional Labour Court, Hyderabad and another. ....Respondents :: O R D E R :: Counsel for the Petitioner : SriV.Mallik Counsel for Respondent No.2 : Sri K.Madhava Reddy Standing Counsel for APSRTC. 19th September, 2007 In this petition, the petitioner has prayed for quashing award dated 24.2.1996 passed by the Presiding Officer of Additional Industrial Tribunal-cum-Labour Court, Hyderabad (hereinafter described as the Labour Court) in I.D.No.102 of 1994. The petitioner joined the service of the Andhra Pradesh State Road Transportation Corporation (for short, ‘the Corporation’) as Driver in 1986. On 29.10.1989, the vehicle bearing No. AAZ 7643 driven by the petitioner met with an accident, which resulted in death of a pedestrian. The Enquiry Committee comprising of Depot Managers of Secunderabad and Ranigunj Depots, which conducted an inquiry into the cause of accident took cognizance of the fact that Crime No.344 of 1989 was registered by the police under Section 337 IPC and opined that the evidence available on record indicated rash and negligent driving of the vehicle by the petitioner. Thereafter, a regular departmental enquiry was instituted against the petitioner on the following charges. “Charge-1: For having caused accident to the vehicle No. AAZ 7634 due to lack of anticipation and negligent driving while performing duty on route No.10 near ESI Hospital on 29.10.1989 resulting in one pedestrian sustained serious injuries to his head which constitutes misconduct under Regulation 28(ix)(a) of APSRTC Employees Conduction Regulations 1963. Charge-2: For having driven the vehicle without observing road sense due to which the accident occurred resulting 44 kms were cancelled thereby loss of revenue to the corporation which constitutes misconduct under Regulation 28(i) of APSRTC Employees Conduct Regulations, 1963. Charge-3: For causing this sort of accident due to rash & negligent driving while performing duty the image of the Corporation is badly tarnished among the public besides causing inconvenience to the traveling public which constitutes misconduct under Regulation 28(xxxi) of APSRTC Employees (conduct) Regulations, 1963”. The Enquiry Officer considered the oral as well as documentary evidence and submitted report dated 10.11.1989 with the finding that charge Nos.1 and 2 have been proved against the delinquent. The disciplinary authority i.e. the Depot Manager, Secunderabad accepted the enquiry report and passed order dated 29.6.1990 whereby the petitioner was removed from service. The petitioner challenged his removal from service by filing an application under Section 2-A(2) of the Industrial Disputes Act, 1947 (for short ‘the Act’ as amended by Andhra Pradesh Act No.32 of 1987). In the statement of claim filed before the Labour Court, the petitioner pleaded that the order of punishment is vitiated due to bias inasmuch as the disciplinary authority had already formed an adverse opinion against him but at the hearing of the case, counsel appearing on his behalf filed a memo dated 6.1.1996 and gave up the challenge to the fairness of the domestic enquiry. The learned Presiding Officer considered the factual matrix of the entire case and concluded that the finding recorded by the Enquiry Officer that the accident was due to rash and negligent driving of the vehicle by the petitioner is based on correct appreciation of evidence and that the doctrine of proportionality enshrined in Section 11-A of the Act cannot be invoked for modifying the punishment imposed by the disciplinary authority. Accordingly, he passed award dated 24.2.1996 and rejected the petitioner’s prayer for reinstatement. Sri V.Mallik, learned counsel for the petitioner relied on the judgments of the Supreme Court in U.P.State v. Mohd.Nooh[1], Basheshar Nath v. I.T.Commissioner[2], Olga Telis v. Greater Bombay Municipal Corporation[3] and of the learned Single Judge of this Court in Md. Hasson v. Presiding Officer, Labour Court-1 Hyderabad[4] and argued that even though the counsel appearing on behalf of his client before the Labour Court gave up challenge to the fairness of the enquiry, the petitioner cannot be estopped from challenging the award on the ground that the punishment of removal from service is vitiated due to departmental bias. Learned counsel submitted that as a member of Accident Enquiry Committee, the disciplinary authority has pre-judged the petitioner’s guilt and, therefore, he could not have exercised the power of the disciplinary authority. Sri Mallik then submitted that even though the Enquiry Officer did not rely on the report of the Accident Enquiry Committee, this Court should draw an inference of bias because the fact finding recorded by the Accident Enquiry Committee must have influenced the consideration made by the disciplinary authority at the time of imposing the punishment of removal from service. Sri Mallik then argued that the punishment of removal from service was extremely harsh and palpably unjust and the learned Presiding Officer gravely erred by declining to exercise power vested in him under Section 11-A of the Act. Sri K.Madhava Reddy supported the award and argued that after having expressly given up his challenge to the fairness of the enquiry, the petitioner cannot turn around and resurrect the plea of bias and seek its adjudication for the first time in the writ petition filed under Article 226 of the Constitution of India. The learned counsel further argued that the Enquiry Officer had independently examined the oral as well as the documentary evidence produced during the enquiry and found the petitioner guilty and as the findings and conclusions recorded in the enquiry report are not based on the report of the Accident Enquiry Committee, the order of punishment cannot be quashed on the ground of violation of the rules of natural justice. I have considered the respective submissions. The High Court’s power of judicial review of disciplinary action taken by the public authorities against the delinquent employee is extremely limited. The Court can nullify the punishment if the enquiry is found to be vitiated due to violation of the rules of natural justice or rules regulating the enquiry and such violation is shown to have prejudiced the cause of delinquent. Another ground on which the Court can annul the action taken by the employer is the perversity of finding recorded by the Enquiry Officer. The Court can also interfere with the discretion exercised by the employer in the matter of imposition of penalty if it is found that the punishment is shockingly disproportionate to the misconduct found proved or is palpably arbitrary or unjust. However, a writ of certiorari cannot be issued for correcting an error of fact or even an error of law unless it is shown that the order or award impugned in the writ petition is vitiated by an error of law apparent on the face of the record – Syed Yakoob v. K.S. Radhakrishnan and others[5], Shaik Mahammad Umarsaheb v. Kadalaskar Hasham Karimsab and others[6], R.S. Saini v. State of Punjab and others[7], Mohd. Shahnawaz Akhtar and another v. I ADJ Varanasi & ors.[8] and Surya Dev Rai v. Ram Chander Rai [9]. In the light of the above principles, I shall now consider whether the Presiding Officer of the Labour Court committed an error by declining to entertain the appellant’s challenge to the order of punishment. However, before dealing with the arguments of the learned counsel for the petitioner, I consider it appropriate to notice that Section 11-A was added with effect from 14.10.1971 in the backdrop of the judgment of the Supreme Court in M/s. Indian Iron and Steel Company v. Their workmen[10]. The Parliament felt that the adjudicatory forums constituted under the Act should be invested with the statutory power not only to examine the merits of the action taken by the employer against the employee but also interfere with the employer’s prerogative to impose the punishment on an employee found guilty of misconduct. The newly added section was considered by the Supreme Court in The Workmen of M/s. Fire Stone Tyre & Rubber Co. of India Private Limited v. The Management and others[11] after extensive reference to the historical background in which Section 11-A was insulted, a Division Bench of the Supreme Court held: “(i) The position before the introduction of Section 11-A in the Industrial Disputes Act was that the right to take disciplinary action and to decide the quantum of punishment was regarded as managerial function but the employees were expected to conduct proper enquiries in accordance with the standing orders and if in that case the finding was plausible conclusion from the evidence, the Tribunal had no jurisdiction to interfere. Even if no enquiry was held, the parties could adduce evidence before the Industrial Tribunal but in that case the Industrial Tribunal had to decide on the evidence adduced before it whether the misconduct had been established and the point regarding the exercise of managerial function did not arise. In view of this, the Industrial Tribunal had no power to straight-away order reinstatement if the enquiry is held to be improper or no enquiry was held but in that case the employer should ask for an opportunity to lead evidence at an appropriate stage. If the misconduct is established either by managerial enquiry or by evidence before Industrial Tribunal, the punishment cannot be interfered with except when it is so harsh as to suggest victimisation. If the dismissal order is set aside, then whether workers should be reinstated or paid compensation was within the discretion of the Industrial Tribunal. (ii) In construing the provisions of a welfare legislation, courts should adopt beneficent rule of construction i.e., if two constructions are reasonably possible then the construction which furthers the policy and object of the Act and is more beneficial to the employees has to be preferred to achieve the legislative purpose provided it is possible to do so without doing violence to the language used by the Legislature and also keeping in view as to what was the previous position of law and to what extent the section exhibits intention to change the same. (iii) Under Section 11-A of the Industrial Disputes Act, the Tribunal is now clothed with the power to reappraise the evidence and satisfy itself whether the evidence establishes the misconduct.” The propositions, which can be culled out from the above noted judgment, are that the Labour Court, Tribunal or National Tribunal can examine the fairness of the domestic enquiry in the context of the workmen’s plea of violation of the different facets of the rules of natural justice. Even if the domestic enquiry is found to be fair and proper, the Labour Court, Tribunal etc., can examine the correctness of the findings recorded by the Enquiry Officer and upset the same if it is found that the conclusion reached by the Enquiry Officer is based on no evidence or is vitiated due to the influence of extraneous consideration or factors. If the finding on those issues is in favour of the employer, then too the adjudicating authority can tinker with the discretion exercised by the employer in the matter of imposition of punishment if it is convinced that the punishment is totally arbitrary, unreasonable or disproportionate to the misconduct found proved against the delinquent. In the present case, I find that the petitioner was punished for a proved act of misconduct viz., rash and negligent driving of the vehicle of the Corporation on account of which the accident occurred and a pedestrian was killed. Admittedly, the accident occurred within three years of the petitioner’s joining the service. The Enquiry Officer evaluated the evidence produced before him and held that charges No.1 and 2 are proved. The learned Presiding Officer of the Labour Court independently analysed the evidence and held that the finding recorded by the Enquiry Officer that the accident was caused due to rash and negligent driving of the bus by the petitioner is correct. Paragraphs 6, 7 and 8 of the award, which contain the discussion on the subject, read as under: “6. POINT:- The admitted facts, as revealed from the evidence on record, are as follows: The petitioner P. Emanuel is a Driver in Andhra Pradesh State Road Transport Corporation, Hyderabad. During October, 1989, the petitioner was working in Ranigunj-II Depot. On 29-10-1989 the petitioner was driving the bus bearing No. AAZ 7634 on Route 98/2 proceeding towards Sanathnagar from Secunderabad. At about 18.25 hours, while the bus was proceeding near E.S.I. Traffic Police Station, the bumper of the bus hit the pedestrian by name Durgappa who was crossing the road with his wife and other family members. The pedestrian Durgappa, due to impact of the bus, fell down on the road and sustained injuries. He was immediately shifted to Gandhi Hospital for treatment. The petitioner stopped the bus at the place of accident and went to the Police Station. Crime No.344/89 under Section 337 Cr.P.C. was registered in Sanjeevareddynagar Police Station with regard to the said accident and it was investigated upon. The injured Durgappa succumbed to the injuries in the hospital on 10-11- 1989. Thereafter, the section of law has been altered to Section 304-A in the First Information Report. The police also charge sheeted the petitioner in the Court of Vth Metropolitan Magistrate, Hyderabad in C.C.no.134/91 and it culminated in acquittal. Ex.W-1 is the xerox copy of the judgment in C.C.no.134/91 on the file of V Metropolitan Magistrate, Hyderabad. The Traffic Inspector M.A. Qurashi on receiving the information with regard to the accident, visited the place of accident. He also visited the Gandhi Hospital where the injured was admitted. He also drafted a sketch of the scene of accident (Ex.M1) on 10-10-1989 in the presence of the service conductor of the bus and the driver. He also recorded the statement of the wife of the injured and also the statement of the service conductor and submitted his report with regard to the accident to the Depot Manager. Ex.M.2 is the statement of Narayanamma wife of the deceased. Ex.M.3 is the statement of the service conductor M. Venkateswarlu. Ex.M.4 is the statement of the petitioner with regard to the accident. The Senior Inspector P. Prabhakar also visited the scene of accident and conducted preliminary enquiry and submitted his enquiry report (Ex.M5) to the respondent. As there was prima facie evidence that the petitioner has caused the accident by his rash and negligent driving of the bus AAZ 7634, the respondent placed the petitioner under suspension by his order dt. 10-11-1989 (Ex.M.7) against the petitioner. The charges that are framed against the petitioner are as follows:- CHARGE – 1 For having caused accident to the vehicle No. AAZ 7634 due to lack of anticipation and negligent driving while performing duty on route No.10 near ESI Hospital on 29-10-1989 resulting in one pedestrian sustaining serious injuries to his head which constitutes misconduct under Regulation 28 (ix)(a) of APSRTC Employees Conduct Regulations 1963. CHARGE - 2 For having driven the vehicle without observing road sense due to which the accident occurred resulting 44 Kms. were cancelled thereby loss of revenue to the Corporation which constitutes misconduct under Regulation 28(xii) of APSRTC Employees Conduct Regulations 1963. CHARGE – 3 For causing this sort of accident due to rash and negligent driving while performing duty the image of the Corporation is badly tarnished among the public besides causing inconvenience to the travelling public which constitutes misconduct under Regulation 28(xxxi) of APSRTC Employees (Conduct) Regulations, 1963. The petitioner was asked to submit explanation to the said charge sheet within 7 days from the date of receipt of the charge sheet. Under Ex.M8 dt.11-12-1989 the petitioner submitted his explanation denying the charges. The respondent, having not been satisfied with the explanation offered by the petitioner, ordered for a detailed enquiry and appointed enquiry officer to conduct the enquiry. The enquiry officer during the course of enquiry, examined M.A. Qureshi, Traffic Inspector, P. Prabhakar, Senior Traffic Inspector, Service Conductor, M. Venkateswarlu in the presence of the petitioner and they are cross examined by the petitioner. Exs.M9, M10 and M11 are the statements of the said witnesses recorded by the enquiry officer. The petitioner got himself examined on his behalf and his statement (Ex.M12) was also recorded. The enquiry officer on a consideration of the oral and documentary evidence placed before him, submitted the report (Ex.M13) dt.30-4-1990 holding all the three charges as proved. On a consideration of the enquiry report and other material on record, the respondent Depot Manager issued a show cause notice of removal from service, original of Ex.M.14 dt.24-5-1990. The petitioner submitted his explanation under Ex.M15 dt.4-6-1990 to the said show cause notice. The respondent after considering the said explanation of the petitioner, passed the order in his proceedings dt.29-6-1990 (Ex.M16) imposing the punishment of removal from service. Aggrieved by that order of removal, the petitioner preferred an appeal. The Divisional Manager, Secunderabad by his proceeding dt.13-12-1990 (Ex.M17) dismissed the said appeal. Now the petitioner has come up with this petition to set aside the said order of removal from service passed against him by the respondent under Ex.M16. 7. As seen from the records, the petitioner-workman has not challenged the validity of the domestic enquiry held against him in this case. The learned counsel for the petitioner-workman also filed a Memo dt.6-1-96 to decide the matter under section 11-A of the I.D.Act. Thus the counsel for the petitioner-workman has categorically conceded that he is not challenging the domestic enquiry proceedings. When once the validity of the domestic enquiry is not challenged by the workman, the jurisdiction of this Tribunal is limited and normally it cannot interfere with the findings of the enquiry officer in the domestic enquiry. But it is well settled that Industrial Tribunal can interfere with findings of the enquiry officer only when the findings are nor based on legal evidence such as no reasonable person could have arrived at on the basis of material before it i.e., in the words, when the findings is treated as perverse vide M/s Bharat Iron Works v. Bagubai Ballubhai Patel (1976 (1) S.C.Cases page 518). Under Section 11-A of the Act even in a case where the Tribunal upholds the findings of misconduct recorded by the Management at the domestic enquiry. The Tribunal can interfere with the punishment awarded by the Management and alter the same. It is appears to the Industrial Tribunal that the ultimate order of punishment passed against the workman is so disproportionate, severe in relation to the misconduct proved, and that it may lead to inference of victimization, the Industrial Tribunal would be justified in interfering with that order of punishment. In the case of victimization of an unfair labour practice. It is open to the Industrial Tribunal to go into the merits of the case and to investigate whether the order of punishment is justified. But in exercising the discretionary power conferred on the Tribunal by Section 11-A to interfere with the punishment, the discretion should not be exercised in an arbitrary manner and it should be exercised in a judiciary manner. Before interfering with the punishment imposed by the Management, the Tribunal must take into consideration all the relevant facts and can interfere with the punishment imposed by the Management only it would come to the conclusion that the punishment imposed is extremely harsh and unjust and wholly disproportion to the misconduct proved. The arbitrary punishment impose by the Tribunal, however, should not amount to absolving the employees of misconduct or make the punishment merely illusory and allow the employee to got scot-free particularly when the charges are found to be grave in nature. Vide APSRTC v. Additional Industrial Tribunal-cum–Labour Court (1983 –63 FJR page 230). It is also a well recognized principle of jurisprudence which permits penalty to be imposed for misconduct that the penalty imposed be commensurate with the gravity of the charge. The Tribunal may award lesser punishment if it is of the opinion that the proved misconduct does not merit punishment by way of discharge or dismissal. It is also well settled that leniency can only depend upon the nature of the misconduct alleged against the workman and not on the question as to whether the workman is married or that he has put in a particular length of service. 8. In the instant case, the proved misconduct on the part of the Driver-petitioner is that he caused the accident for the Bus AAZ 7634 on 29- 10-1989 at 18.25 hours near the E.S.I. Traffic Control and caused injuries to the pedestrian Durgappa who was crossing the road along with his family members. The injured Durgappa who was admitted in Gandhi Hospital for treatment succumbed to the injuries on 10-11-1989 A case in Crime No.344/89 was registered in Police Station, Sanjiva- reddynagar under Section 337 IPC and that section of law has been altered to Section 304-IPC subsequent to the death of the injured on 10-11-1989. Ex.M2 is the statement of Narayannamma, the wife of the deceased Durgappa. Ex.M1 is the sketch of the scene of accident drawn by the Traffic Inspector Qureshi. Senior Traffic Inspector also conducted the preliminary enquiry and submitted his report Ex.M5. During the enquiry, the enquiry officer examined the service conductor M.Venkateswarlu, Qureshi, Senior Traffic Inspector and also marked the documents. On a consideration of the evidence on record, the enquiry officer came to the conclusion that the charges levelled against the petitioner as proved. The witnesses examined during the course of enquiry were also cross examined by the petitioner. The petitioner-Driver also gave evidence before the enquiry officer and his statement was also recorded. All the charges have been held proved by the enquiry officer. A perusal of the findings recorded at the time of enquiry officer are perfectly correct. The enquiry officer has rightly held the charges as proved. There is nothing on record to show that the said findings of the enquiry officer are mala fide or perverse. Ex.M1 is the sketch of the scene of accident and it is proof positive for the rash and negligent driving of the bus by the petitioner. The skid marks are found for a distance of 12 feet. If really the petitioner was driving the bus at low speed on seeing the pedestrian crossing the road as contended by him, there would not have been skid marks of the bus for such a distance of 12 feet. Moreover, in his statement Ex.M4 he admits that the bumper of his bus dashed against the pedestrian Durgappa and on account of it he fell down. But in his statement before the Enquiry Officer (Ex.M12) he deposed that his bus did not touch the pedestrian Durgappa and that Durgappa sustained injury due to falling on an uneven metal road. The explanation submitted by the petitioner that the accident had taken place as the pedestrian moved backward suddenly in response to the shout of his wife and it resulted in the accident cannot be accepted in view of the statement of the wife of the deceased under Ex.M2. The reasoning given by the enquiry officer for the conclusions drawn by him is perfectly correct and the enquiry officer has rightly held that the charges are proved. The respondent Depot Manager also rightly held the petitioner as guilty of the charges levelled against him.” Sri Mallik could not show that the concurrent findings recorded by the Enquiry Officer and the Presiding Officer of the Labour Court on the charges framed against the petitioner are perverse or are such that no person of reasonable prudence could have recorded on the basis of evidence produced during the enquiry. The plea of bias, which was given up before the Labour Court and is now sought to be resurrected is liable to be rejected because, 1. The petitioner, through his counsel, filed memo dated 6.1.1996 before the Labour Court and expressly gave up his challenge to the fairness of the domestic enquiry. Therefore, it is not open to him to resurrect the plea of bias and seek the nullification of the award passed by the Labour Court on the premise that it did not consider the validity of domestic enquiry with reference to