1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.281 OF 1997 Pune Municipal Transport ..Petitioner. Vs. Babulal A. Dhotre and another ..Respondents. ..... Mr. R.G. Ketkar for the Petitioner. Mr. M.S.Karnik with Mr. Sachin Coite for Respondent No.1. .... CORAM: DR. D.Y. CHANDRACHUD, J. 1st April, 2008. ORAL JUDGMENT : 1. The First Respondent was working as a driver with the Pune Municipal Transport Undertaking. On 3rd November, 1986 he was on duty in the morning shift and was assigned to a bus plying on Route No.61 from the City Post to Pune Station. While the bus was being taken in the reverse gear, and was being driven by the First Respondent it dashed against a pedestrian, Smt. Sagunabai Shamrao Jagdhane. The pedestrian died as a result of the injuries sustained in the accident. The First Respondent was charge- sheeted in a disciplinary proceeding for misconduct falling under 2 Standing Orders 25(g) and 25(y). Under Standing Order 25(g) misconduct consists of a habitual neglect of work or gross or habitual negligence. Under Standing Order 25(y) misconduct consists of a willful insubordination or disobedience of any lawful and reasonable order of a superior. A disciplinary enquiry was held during the course of which the First Respondent participated. Ultimately, upon the conclusion of the proceedings a penalty of a stoppage of five increments with permanent effect was imposed on the First Respondent. The First Respondent filed a complaint of unfair labour practices under items 5 and 9 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The complaint was disposed of by the Industrial Court by its order dated 30th September, 1996. 2. The Industrial Court has come to the conclusion that the Petitioner had indulged in an unfair labour practice in awarding punishment to the First Respondent of a stoppage of five annual increments with permanent effect. The punishment which has been imposed on the First Respondent has been set aside. The 3 order passed by the Industrial Court principally relies upon a report submitted by an employee of the Petitioner Mr. Dattatraya M. Hole, who at the material time was working as an incharge of the Accident Section. The aforesaid employee had submitted a report after he had visited the site on receipt of information at 2.45 p.m. on 3rd November, 1986 about the accident. The report was to the effect that while the bus was being taken in the reverse gear, all the passengers had not yet alighted. The conductor had not ascertained as to whether any person was immediately behind the bus. According to the report, the accident took place because the conductor had not taken necessary steps to ascertain whether the path of the bus in the reverse gear was free of any human obstruction. Relying on this report, the Industrial Court held that it was the duty of the conductor to see that all the passengers in the bus had alighted before the bus was taken in reverse gear and to observe whether anyone was in the path of the bus. According to the Industrial Court it was only thereafter that the conductor should have used the bell situated within the bus for guiding the bus driver. It is on this basis that the Industrial Court came to the 4 conclusion that the First Respondent was guilty of misconduct. 3. On behalf of the Petitioner it has been urged that the order passed by the Industrial Court suffers from a clear perversity since it was primarily the duty of the First Respondent who was driving the bus to ensure the safety of all persons in the vicinity of the bus while it was being taken in the reverse gear. Reliance was also sought to be placed on the preliminary statement of the First Respondent dated 3rd November, 1986 which shows that the First Respondent had entirely relied upon the ringing tone of the bell of the bus implying thereby that the First Respondent has not used his own discretion. Referring to the examination of the First Respondent in the course of evidence, learned counsel submitted that a clear effort was made by the First Respondent to improve his case. On the other hand, counsel appearing for the First Respondent has supported the reasoning of the Industrial Court. 4. There is merit in the submission which has been urged on behalf of the Petitioner that the entire approach of the Industrial 5 Court in the present case is flawed. The First Respondent was the driver of the bus and it was he who was taking the bus in the reverse gear. It was the duty and obligation of the First Respondent to take all reasonable precautions for ensuring the safety of passersby and the passengers while the bus was being so driven. The conductor may assist the First Respondent in the discharge of his task. That does not obviate the primary responsibility of the First Respondent as a driver of the bus. No driver of a vehicle can possibly contend that he has relied on the judgment or discretion of any other person situated in the motor vehicle, for it is primarily and exclusively the duty of the driver to ensure safety. Moreover in a case such as the present, the principles of res ipsa loquitur must apply and it was the duty of the First Respondent to explain what steps he had taken to ensure the safety of all persons in the vicinity of the bus. In his preliminary statement dated 3rd November, 1986 the First Respondent stated that he was relying upon the guidance of the conductor who was ringing the bell. In the course of the cross examination, the First Respondent stated that there are two mirrors fixed on the sides of 6 the bus and while taking the bus in reverse gear, he is required to make use of both the mirrors. The First Respondent however, volunteered to state that there was no mirror on the left side of the bus. This is, in my view, no explanation at all for the fact that the First Respondent has caused a death of a person arising out of a failure to take due and proper steps to ensure the safety of persons in the vicinity of the bus. The entire approach of the Industrial Court was erroneous and the order of the Industrial Court holding that the Petitioner is guilty of an unfair labour practice suffers from a clear error apparent on the face of the record. The service record of the First Respondent shows that on 13 previous occasions, punishments have been awarded to him for committing misconduct. The eventual penalty which has been imposed upon the First Respondent is a stoppage of five increments which to say the least, cannot be regarded as disproportionate to the serious misconduct which has been committed by the First Respondent. In such cases, it is only necessary and proper that the Industrial Court exercises restraint in the exercise of the jurisdiction arising out of a complaint of unfair labour practices under the Maharashtra 7 Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. Interfering with the disciplinary jurisdiction of the employer is only liable to encourage drivers of public undertakings to be negligent in the performance of their duties. The employer is entitled to take a serious view of such misconduct in order to ensure that a sufficient degree of deterrence is provided against improper driving. 5. In these circumstances, the Petition will have to be allowed and is accordingly allowed. The judgment and order dated 30th September, 1996 of the Industrial Court, Pune in Complaint (ULP) 1051 of 1991 is quashed and set aside. The complaint shall, in the circumstances, stand dismissed. However, in the facts of the case, there shall be no order as to costs. *****