1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Civil Writ Petition No.4517/2002 (Rajasthan State Road Transport Corporation Versus Abdul Hussain & Another) Date of Order :: 15th May, 2009 PRESENT HON'BLE SHRI JUSTICE NARENDRA KUMAR JAIN Shri Ashok Bansal for the petitioner Shri Manoj Pareek for the respondents BY THE COURT: Learned counsel for the respondent no.1 has moved an application under Section 17-B of the Industrial disputes Act, 1947, but at the request of learned counsel for both the parties, the arguments were heard in the writ petition itself and the same is being disposed of finally. The respondent no.1 Abdul Hussain is working on the post of Driver of petitioner- Corporation. The Motor Accident Claims Tribunal, Jhalawar vide its judgment and order dated 29th August, 1996 decided two claim applications filed on behalf of legal representatives of deceased persons, who died in motor accident took place on 26th April, 1995 and held that accident took place because of negligence on the part of non-claimant i.e. 2 driver of the corporation, which is the respondent no.1 herein. Soon after filing of the claim applications by the legal representatives of the deceased persons, the petitioner corporation suspended the respondent no.1 vide order dated 27th April, 1995 and served a charge sheet dated 19th May, 1995. The petitioner vide its order dated 13th May, 1997 passed an order for dismissal of the petitioner from service and moved an application for its approval under Section 33(2) (b) of the Industrial Disputes Act, 1947. The Industrial Tribunal vide its order dated 14th December, 1998 declared the enquiry held by corporation as illegal and unfair and granted time to petitioner-corporation to lead evidence in support of charge. Thereafter two witnesses Ramotar Solanki and Bheem Shankar Sharma, both were examined on behalf of the Corporation. The workman examined himself and also examined Nand Kishore Vyas in support of defence. The Industrial Tribunal vide its order dated 17th March, 2001, after considering the evidence available on record, came to a conclusion that both the witnesses of Corporation namely Ramotar Solanki and Bheem Shankar were not eye witness to the accident, whereas workman as 3 well as his witness both have stated that there was no negligence on the part of the driver and consequently recorded a finding that accident dated 26th April, 1995 was not due to rash and negligence driving on the part of the respondent no.1 Abdul Hussain. The Industrial Tribunal also considered the judgment dated 19th January, 1998 passed by the Civil Judge (Junior Division) and Judicial Magistrate, Chaumahala, whereby non petitioner-workman Abdul Hussain was acquitted from the charge under Section 304A and 279 IPC for the same incident. Consequently, the Tribunal did not accord the approval for dismissal order passed by the Corporation against respondent no.1. Being aggrieved with the said order of the Tribunal, the Corporation has preferred the present writ petition. The only submission of learned counsel for the petitioner is that Motor Accident Claims Tribunal passed an award against the Corporation on the basis of finding regarding rash and negligent driving of the respondent no.1, therefore, the services of the petitioner were rightly terminated and Industrial Tribunal committed an illegality in not granting the approval under Section 33(2) (b) of the I.D. 4 Act. Hence, the impugned order is liable to be set-aside. The learned counsel for the respondents defended the impugned order passed by the Industrial Tribunal and contended that a domestic enquiry held by the Corporation was found to be unreasonable and unfair and the same was set-aside by the Industrial Tribunal and thereafter an opportunity was granted to the petitioner-Corporation to adduce evidence in support of the charge and after holding the enquiry, the Tribunal recorded a finding of fact that there was no negligence on the part of the respondent no.1-workman in driving the vehicle resulting in accident and consequently a finding was recorded that charge against respondent no.1 is not proved and rejected the application under Section 33(2) (b) of the I.D. Act. The question of negligence is purely a question of fact and finding of fact recorded by the Industrial Tribunal cannot be interfered with by this Court under Article 227 of the Constitution. I have considered the submissions of learned counsel for the parties. The undisputed facts are that respondent no.1 was served with a charge sheet 5 in respect of accident dated 26th April, 1995. The enquiry officer of the petitioner corporation recorded a finding that charge is proved against him and disciplinary authority passed an order of his dismissal from the service and moved an application under Section 33(2) (b) of the I.D. Act for its approval. The Tribunal rejected the enquiry report of the corporation and granted an opportunity to prove the charge against the workman. Both the parties led their evidence before the Tribunal itself on the charge and after considering the evidence available on record, the Tribunal recorded a finding that there was no negligence on the part of the respondent no.1-workman and consequently rejected the application under Section 33(2)(b) of the I.D. Act filed by the petitioner. This Court in the case of D.M. Engineer, Rajasthan State Road Transport Corporation Versus The Judge, Industrial Tribunal, Jaipur and Another – S.B. Civil Writ Petition No. 9395/2005 considered the similar controversy regarding serving of charge sheet and dismissal of driver of Corporation on the basis of finding of Claims Tribunal and not granting the approval by Industrial Tribunal to 6 the order of dismissal under Section 33(2) (b) and vide its judgment dated 10th March, 2006 dismissed the writ petition filed by the petitioner-Corporation. A D.B. Civil Special Appeal (Writ) No. 489/2007 was preferred by the petitioner-Corporation before the Division Bench. The Division Bench while dismissing the special appeal vide its order dated 26.4.2007 observed that notwithstanding the finding of the Claims Tribunal, the employer was required to prove the charge by independent evidence before Industrial Tribunal that respondent was guilty of rash and negligent driving and further that it will not be proper to interfere with the finding of fact recorded by Tribunal that respondent was not negligent in driving the vehicle. The judgment of the Division Bench is reproduced as under:- “This special appeal against the order of the learned Single Judge, dismissing the writ petition of the appellant, arises from a proceeding under Section 33(2) (b) of the Industrial Disputes Act. The appellant filed application seeking approval of the order by which the respondent was dismissed from service on the charge that on 25.3.1988 he caused accident on account of rash and negligent driving. The foundation of the charge was the finding of the Motor Accident Claims Tribunal in a proceeding in a claim case wherein allowing compensation to the claimants it was held the accident had occurred on 7 account of rash and negligent driving. The finding of the Claims Tribunal notwithstanding, the employer was required to prove the charge by independent evidence, that the Respondent was guilty of rash and negligent driving. In any view, if on reinstatement pursuant to the decision of the Labour Court, conduct of the Respondent has not been found to be unsatisfactory, it may not be proper exercise of discretion to interfere in the matter. On evidence led by the parties before the labour Court, the labour court came to the conclusion that the appellant failed to prove its case on rash and negligent driving on the part of the Respondent. This is a finding of fact which cannot be interfered with in writ jurisdiction. We find no error in the order of the learned Single Judge dismissing the writ petition.” In view of above discussions, it is clear that question of negligence with regard to driving of the vehicle by respondent no.1 is purely a question of fact and the Tribunal has recorded a finding of fact that charge against him is not proved. The said finding of fact cannot be interfered with by this Court under Article 227 of the Constitution. The learned counsel for the petitioner is unable to point out any jurisdictional error or perversity in the finding of the Industrial Tribunal so as to interfere with the same. The learned Single Bench and Division Bench of this Court have considered the similar controversy in the cases referred above and rejected the 8 writ petition as well as special appeal filed by the petitioner-Corporation. In view of above discussions, I do not find any merit in this writ petition and the same is accordingly dismissed. In view of above, there is no need to pass any order on the application filed by the respondent no.1 under Section 17-B of the Industrial Disputes Act, 1947 and the same stands disposed of. Parties are directed to bear their own costs. (NARENDRA KUMAR JAIN), J. DK