IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 5-11-2009 CORAM THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN W.P.Nos.6565 of 2003 and W.P.No.9964 of 2004 W.P.No.6565 of 2003 The Managing Director Tamil Nadu State Transport Corporation (Salem Division II)Ltd., Bharathipuram, Dharmapuri-5. ..Petitioner Versus 1.I.Basha 2.The Presiding Officer, Labour Court, Salem. ..Respondents W.P.No.9964 of 2004 1.I.Basha ..Petitioner Versus 1.The Presiding Officer, Labour Court, Salem. 2.The Managing Director Tamil Nadu State Transport Corporation (Salem Division-II)Ltd., Bharathipuram, Dharmapuri-5. ..Respondents W.P.No.6565 of 2003 Writ Petitions filed under Article 226 of Constitution of India praying for the issuance of Writ of Certiorarified Mandamus calling for the records dated 11.7.2002 and made in I.D.No.15 of 1998 on the https://hcservices.ecourts.gov.in/hcservices/ file of the Labour Court, Salem the second respondent herein and quash the same. W.P.No.9964 of 2004 Writ Petitions filed under Article 226 of Constitution of India praying for the issuance of Writ of Certiorarified Mandamus calling for the records relating to the Award dated 11.7.2002 passed by the first respondent in I.D.No.15 of 1998 and quash the same in so far as deprivation of the entire back wages and consequently direct the second respondent to pay the petitioner backwages for the period of non-employment together with interest at the rate of 10% per annum. For Petitioner : Mr.Ravibharathi in W.P.No.6565 of 2003 For Petitioner : Mr.R.Krishnaswamy for Mr.V.Ajoy Kohse in W.P.No.9964 of 2004 For Respondents : Mr.R.Krishnaswamy for Mr.V.Ajoy Kohse for R1 in W.P.No.6565 of 2003 For Respondents : Mr. Ravi Bharathi for R2 in W.P.No.9964 of 2004 COMMON ORDER Against the same award, both workman and the management filed writ petitions. 2. The writ petition W.P.No.9964 of 2004 has been filed by the workman and W.P.No.6565 of 2003 is by the management. 3. The first respondent hereinafter referred to as workman and the employer/petitioner is referred to as management. The workman was appointed as a Driver in the management on 18.2.1991 and he was issued with a charge memo dated 9.8.1996 for having driven the vehicle in a rash and negligent manner and caused loss of three human lives in the accident occurred on 2.8.1996. Workman was initially suspended and a charge memo was issued on 9.8.1996. A domestic enquiry was conducted and after enquiry second show cause notice was issued. Not satisfied with the reply filed by the workman, he was dismissed from service on 14.3.1997. 4. The workman filed I.D.No.15 of 1998 to set aside the dismissal order dated 14.3.1997. After appreciation of pleadings and evidence the labour court passed an award reinstating the workman with continuity of service and other legally admissible benefits https://hcservices.ecourts.gov.in/hcservices/ except back wages. The said award was passed on 11.7.2002, against which the present writ petition has been filed by the workman against denial of backwages and against the award of reinstatement with continuity of service, management filed writ petition. 5. Learned counsel for the management submitted that the labour court held in para 8 of the award that a domestic enquiry was conducted in a fair and proper manner and when the enquiry was held to be fair and proper there was no occasion for the labour court to interfere with the findings of the enquiry officer. He also submitted that when the management awarded punishment dismissing the workman, the labour court set aside the same without any valid ground and hence he pleaded for setting aside the award passed by the labour court. He relied upon a judgement in Karnataka Bank Limited versus A.L.Mohan Rao reported in (2006) 1 SCC 63, wherein it has been held that it is not for the courts to interfere in the case of gross misconduct of this nature with the decision of disciplinary authority on any mistaken notion of sympathy, so long as the inquiry has been fair and proper and the misconduct proved and on such ground, it is for the disciplinary authority to decide what is the punishment. Relying upon the said judgment, learned counsel for the management submitted that in this case also the enquiry was held to be fair and proper and hence the labour court order setting aside the dismissal order has to be set aside. 6. The learned counsel also relied upon a judgement of this court passed by the Division Bench in K.Ayyavu vs. Management, Thiruvalluvar Transport Corporation, Ltd., Chennai and another reported in 2003 (3) L.L.N 713, wherein in similar circumstances, the services of the driver of the Transport Corporation was terminated for causing death of a boy seven years old. The Labour Court held that the workman was not at fault and directed his reinstatement. Learned single judge of this court interfered with the order of the Labour Court and the same was confirmed by a Division Bench of this court applying the principles of res ipso loquitor. Relying upon the said judgement, learned counsel for the management submitted that the principles laid down therein would also be applicable to the present case and seeks interference with the labour court's award. 7. Another judgement was quoted in M/s. L & T Komatsu Ltd. Versus N.Udayakumar CDJ 2007 SC 1306 wherein interference by the High Court regarding the quantum of punishment under Section 11(A) of the Industrial Disputes Act was discussed. In that case, the workman was found to be a habitual absentee. On enquiry the workman was terminated, which was later set aside by the labour court and the same was modified by the High Court with reinstatement without backwages but with continuity of service; Setting aside the judgement of the High Court, the Supreme Court resorted the termination order passed by the authority. By relying upon the above judgement, learned counsel for the management submitted that the imposition of quantum https://hcservices.ecourts.gov.in/hcservices/ of punishment is with the management. Similar dictum was given by the Division Bench of this court in G.Vijayan vs. The Presiding Officer, Labour Court, Salem and another reported in CDJ 2007 MHC 3398. Similarly when the enquiry was conducted in a fair and proper manner, the court should not interfere with the punishment and that was laid down in M.Chella Thambi vs. Presiding Officer, Labour Court,Madurai and another reported in 2004 (1) LLN 572. Relying upon those judgements, learned counsel for the management submitted that when the enquiry was conducted in a fair and proper manner which was also found place in the order by the labour court, the reinstatement of the workman is liable to be set aside. 8. On the other hand, learned counsel for the workman submitted that the enquiry officer himself had given the finding that the accident had occurred because of the negligence of the workman as well as the rider of the Motor Cycle and the same is extracted from the enquiry officer's as hereunder: "gphpt[ rhiy ,ilapy; bkapd; rhiyf;Fr; brd;W nkhl;lhh; irf;fpnshl;o bkapd; rhiyapy; thfd';fs; VJk; tUfpd;wdth vd epd;W ftdpj;Jg;gpd; bkapd; rhiyapy; EiHe;jpUf;f ntz;Lk;/ nkhl;lhh; irf;fpnshl;oa[k; mJnghy; ,y;yhky; ftdf;Fiwthf neuhf gphpt[ rhiyapy; ,Ue;J bkapd; rhiyapy; EiHe;J ,lJg[wk; jpUg;gp ngUe;jpd; tyJgf;fj;jpy; nkhjpa[s;sJ bjhpatUfpwJ/ vdnt nkhl;lhh; irf;nshl;oapd; ftdf;Fiwt[k; fHf Xl;Lehpd; ftdf;Fiwt[k; mjpntfKnk tpgj;jpw;Ff; fhuzkhf ,Ue;JssJ vd;gJk; tpgj;jpw;F ,UtUnk bghWg;ghw;Wfpwhh;fs; vd;gJk; bjspt[.@? 9. The learned counsel for the workman submitted that firstly, when such is the finding of the enquiry officer, the blame regarding the accident could not be fastened on the workman and that alone warranted capital punishment of dismissal from service. Secondly learned counsel for the workman also attacked the labour court award on the ground that no eyewitness of the accident was examined either before the enquiry officer or before the labour court. Only the engineer was examined who deposed that the accident was only due to contributory negligence on the part of the Transport Corporation driver as well as the rider of the motor cycle. Thirdly, the motor cycle was carrying three persons, which was also one of the causes for the accident. 10. Learned counsel for the workman submitted that once it is proved that when there was no 100% negligence on the part of the workman, the work man cannot be held liable for the accident and hence the Tribunal rightly set aside the dismissal order. However he is aggrieved with regard to reinstatement without back wages. He relied upon a Division Bench judgement of this Court in Pandian Roadways Corporation Limited (represented by its Managing Director), Madurai vs. Presiding Officer, Additional Labour Court, Madurai and another reported in 2002 1 LLN 348. In that case also the workman was https://hcservices.ecourts.gov.in/hcservices/ terminated from services for rash and negligence driving of the bus based on the Assistant Engineer's evidence, who was not an eyewitness. The labour court reinstated the workman which was confirmed by the learned Single Judge and subsequently by the Division Bench of this court. Relying upon the said judgement, learned counsel for the workman submitted in this case also only the Assistant Engineer was examined, who was not an eyewitness and the conductor or no passenger was not examined. With regard to non- examination of eyewitness he relied upon a judgement in Jeeva Transport Corporation Limited vs. Industrial Tribunal and another reported in 1994 II LLJ 350. 11. Learned counsel for workman also referred to a judgement of a Division Bench of this court in Tamil Nadu State Transport Corporation, Tiruchirapalli rep. by its Managing Director and another vs.P.Kuppusamy reported in 2008-I-LLJ-460(Mad), wherein the accident occurred was head on collusion in which ten passengers of the bus died and seven others were injured. Hence departmental enquiry was conducted and the driver of the bus was dismissed, which was confirmed by the labour court. The writ petition filed by the workman was allowed against which an appeal was preferred. While disposing of the appeal, a Division Bench of this court held that the corporation took a plea before the disciplinary authority that the respondent driver was not responsible for the accident and later it could not turn around and say that he was responsible for the accident and dismissed him from service. Relying upon the said judgement, learned counsel for the workman submitted that the management did not produce the counter affidavit filed before the Motor Accidents Claims Tribunal, in the case filed by the victims of the accident. Non- production of the counter statement would lead to draw adverse inference against the management. 12. Apart from that, the learned counsel also produced a copy of the judgement passed in a criminal case in which workman was prosecuted for rash and negligence driving in C.C.No.59 of 1997, in which he was acquitted by a judgement dated 18.1.2007. Relying upon the above judgement, learned counsel for the workman submitted that the management has not proved anything against the workman and sought for setting aside the award with regard to back wages. 13. A perusal of the award would show that the enquiry itself was conducted in a fair and proper manner. Secondly the enquiry officer himself gave a finding that the accident occurred because of rash and negligence driving of the workman as well as the rider of the motor vehicle and hence if at all anything could be inferred, it could be only on contributory negligence and the workman cannot be held solely responsible for the accident. Thirdly the only management witness the Assistant Engineer also deposed that the accident occurred only because of contributory negligence. It is needless to say that no eyewitness was examined on the side of the management https://hcservices.ecourts.gov.in/hcservices/ neither the conductor nor any passenger of the bus to prove the negligence on the part of the workman. Though the findings given in the criminal court may not be a binding on the civil court, this court can consider the findings to arrive at a correct conclusion. 14. The tribunal in paragraph 9 of the award rightly invoked the principles of "res ipso loquitur". The Tribunal had also taken into consideration the evidence of the management witness that the driver of the bus could have averted the accident at the time of accident and also found that merely there was an accident it could not be presumed that the driver was driving the vehicle in a rash and negligent manner. Hence the tribunal held that the driver of the Corporation was not fully responsible for the accident and found that the punishment imposed by the management is disproportionate to the charges and set aside the dismissal order. 15. The Tribunal on appreciation of the pleadings and evidence rightly came to the conclusion that the accident was not solely due to negligence of the driver of the Corporation alone, which was based on the evidence of Engineer and there was no other clinching evidence to prove that the workman alone was responsible for the accident, especially when the accident proved to occur because of contributory negligence. 16. The Labour Court is the final forum for giving finding of facts and the same can not be interfered or set aside. The Labour Court award is based on evidence only. The management could not pin point the material evidence overlooked by the labour court. The scope of judicial review is very limited and this court cannot act like an appellate court and re-appreciate or re-evaluate the evidence while exercising the writ jurisdiction under Article 226 of the Constitution of India. Aforesaid dictum has been laid down in Ranjid Singh vs.Ravi Prakash reported in 2004 3 SCC 682. In Sanga Ahamed and others vs. Thilag Bajaj (deceased) rep. by LRs reported in 2008 9 SCC, the Apex Court held that though the powers of High Court under Article 226 and 227 of Constitution of India is very wide and extensive to control over the courts and Tribunals through out territories and in relation excess jurisdiction. Such power must be exercised within limits of law. The High Court does not act as a court of appeal or a court of error and take neither review or re- appreciate nor reweigh the evidence upon which the determination of the Subordinate Court or inferior Tribunal, or correct the error of facts or even the law and to substitute its own decision as that of inferior tribunal or court. 17. This court, unless there was miscarriage of justice or fragrant violation of law calling for intervention, cannot interfere under Article 226 or 227 of the Constitution of India. The aforesaid ratio residendi was laid down in D.N.Bajaj vs. Madyapradesh reported in AIR 1953 SC 58 and the said judgement was relied on and approved https://hcservices.ecourts.gov.in/hcservices/ by the Apex Court in Chandrasekar vs. L.N.. reported in 1986 4 SCC 447. 18. Relying upon the aforesaid judgements of the Supreme Court, this court cannot interfere with the award of the Tribunal as there was no miscarriage of justice or the award has been passed on no evidence or the findings are perverse. Moreover to invoke Articles 226 and 227 of the Constitution of India, the parties have to make out extraordinary case pointing out error apparent on the face of the record. In this case, no such case has been made out either by the workman or by the corporation. The award passed by the labour court is based on evidence and balanced one. Hence the award of the labour court is confirmed and the order of the appellate court is set aside. Accordingly both writ petitions are dismissed. No costs. W.P.M.P.No.626 of 2008 is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vk To 1. The Presiding Officer, Labour Court, Salem. 2. The Managing Director Tamil Nadu State Transport Corporation (Salem Division II)Ltd., Bharathipuram, Dharmapuri-5. + 1 c.c. to Mr. V. Ajay Khose, Advocate. S.R.No.59564. + 2 c.cs. to Mr. M. Ravibharathi, Advocate. S.R.Nos.59161 & 59162. W.P.No.6565 of 2003 and W.P.No.9964 of 2004 BVR (CO) GSK 29.01.2010. https://hcservices.ecourts.gov.in/hcservices/