IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY SEVENTH DAY OF FEBRUARY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 8045 of 1999 Between: M.A. Gaffar S/o. Mohd. Hussain R/o. 10-5-391/5/2, 1st Lancer, Hyderabad, Andhra Pradesh. ..... PETITIONER AND 1 Labour Court-I Hyderabad, rep. by Presiding Officer, Labour Court-I, Hyderabad. 2 Andhra Pradesh State Road Transport Corporation Rep., by its Depot Manager, Musheerabad, Bus Depot, Hyderabad. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue an order or direction, more particularly in the nature of Writ of Certiorari calling for the records relating to I.D.No.45/98 on the file of 1st respondent herein and quash the Award dt.12.11.98 passed therein with a consequential direction to respondent No.2 herein to reinstate the petitioner into service with continuity of service and attendent benefits including backwages and pass such other orders or order as this Honourable Court deems fit in the circumstances of the case. Counsel for the Petitioner:MR.P.GOVINDA RAJULU Counsel for the Respondent No.: GP FOR LABOUR The Court made the following Order: Aggrieved by the award of the Labour Court-I, Hyderabad, in I.D.No.45 of 1998, dated 12-11-1998, the present writ petition is filed. Facts, in brief, are that the petitioner was appointed as Driver Grade-II, in the respondent-Corporation, on 30-04-1979. On 17-12- 1996, while he was driving bus No.AAZ 7499 on route from Mehdipatnam to Musheerabad X-Roads at about 10.50 hrs, and was negotiating the ‘U’ turn at the traffic Island abutting tankbund near Ambedkar statue, a fatal accident occurred resulting in the death of a lady pedestrian aged 70 years. The petitioner was proceeded against both departmentally and by way of criminal proceedings. The petitioner was issued charge sheet dated 31-01-1997 and was placed under suspension. A departmental enquiry was held, and on the enquiry officer submitting his report holding that the charges were established, he was issued a show cause notice dated 15-04-1997 proposing imposition of punishment of removal from service. On receipt of the petitioner’s representation dated 05-05-1997 forwarding his objections to the findings of the enquiry officer, the second respondent passed final orders on 26-05-1997 removing the petitioner from service. Aggrieved thereby, the petitioner invoked the jurisdiction of the Labour Court under Section 2-A(2) of the Industrial Disputes Act, 1947 (for short ‘the Act’). In the meanwhile, C.C.No.166 of 1997, on the file of the XV Metropolitan Magistrate, Hyderabad, wherein the petitioner was charged of an offence under Section 304-A IPC, ended in his acquittal, by order dated 06-10-1997. The Criminal Court held that the prosecution had failed to establish rash and negligent driving on the part of the petitioner endangering human life and though the identity of the accused, as driver of the bus, was established, rash or negligent driving on his part was not established beyond reasonable doubt. A copy of the judgment in C.C.No.166 of 1997, dated 16-10-1997, was also filed before the Labour Court and was marked as Ex.W.3. The Labour Court noted the petitioner’s contention that, while he was negotiating ‘U’ turn at traffic Island near Tank bund, another route bus No.6-C came in front of his bus, there was traffic behind his bus and also towards the left side, that there was no traffic towards his right and since there was no zebra crossing towards the right, no pedestrians were supposed to cross the road either to the left side of the road or vice-versa. The Labour Court noted that, while the petitioner was negotiating a ‘U’ turn, the driver, of an Ambassador car, which was behind the bus of the petitioner, was blowing the horn continuously and, therefore, he had turned his head towards the left side to observe the rear portion and, in a fraction of a second, he heard passengers shouting, that he had applied brakes immediately, and later found that an aged woman was lying between the front and rear tyres of the bus. The Labour Court noted that the injured was shifted to Gandhi Hospital where she succumbed to her leg injuries. The Labour Court took note of the admission of the petitioner that he was looking towards his left without observing other road users, and held that this had resulted in the accident. The Labour Court observed that the place of the accident was a junction, that traffic could be expected from all sides and, since the petitioner himself admitted that due to continuous blowing of the horn his attention was disturbed, he lacked proper judgment while negotiating the ‘U’ turn and his failure to pay attention to his right side, showed his negligent driving. The Labour Court observed that the petitioner seemed confident that no vehicle or human being would come from the right side and that he had noticed the accident only on hearing the cry of the passengers. The Labour Court held that the accident would reveal lack of anticipation coupled with negligent driving and lack of judgment of traffic movement, which had resulted in the accident and, if the petitioner had taken precautionary steps, the accident could have been averted. The Labour Court noted that the lady, who fell under the bus, was aged 70 years, that the Conductor had stated that while the bus was negotiating ‘U’ turn at the traffic Island near Tank bund at Ambedkar statue, the petitioner had suddenly stopped the bus on the passengers asking him to do so and, on stopping the bus, he found a lady, aged of 70 years, lying on the road, that her left leg was touching the front right side tyre and when the bus was taken slightly back from its position, the lady was dragged out by two or three passengers. The Labour Court also considered Ex.M.1, rough sketch of the accident spot and held that the bus was found to be stationed at a distance of 7 feet from the traffic Island fencing to the right front tyre of the bus. The Labour Court opined that, merely because there was no zebra crossing, it would not enable the petitioner to drive the vehicle in any manner which he wanted and, since the petitioner had himself admitted that he ignored the vehicle or human on the right side, it was clear that he was negligent. The Labour Court perused the judgment of the Criminal Court in C.C.No.166 of 1997 and noted that, among the five witnesses examined by the prosecution in the criminal case, there were no eye witnesses to the accident and the constable, who was controlling the traffic, on seeing a human gathering, had gone there and found the leg of the lady under the wheel of the bus, that the constable had asked the petitioner to move the bus a little and, on doing so, the injured lady was taken out. The Labour Court observed that, having regard to the fact that no eye witnesses had been examined and taking into account that there was no zebra crossing and flow of traffic could not be expected at that place, the Criminal Court had held that the petitioner had not driven the bus in a rash and negligent manner and, accordingly, had acquitted him. The Labour Court observed that the judgment of the Criminal Court was rendered on a scrutiny of the evidence viewed through the prism of strict proof whereunder there should be proof beyond all shadow of doubt. The Labour Court noted that, in a criminal case, the burden was upon the prosecution to prove the ingredients of the offence whereas, in the disciplinary enquiry, the version pleaded by the petitioner-driver and the charge framed against him that he drove the vehicle in a negligent manner with lack of anticipation while negotiating ‘U’ turn, was required to be established on preponderance of probabilities. The Labour Court noted that the petitioner had himself admitted that he was concentrating only on the left side. The Labour Court observed that he lacked anticipation that there could be traffic on the right side and had thereby caused the accident. The Labour Court expressed its disinclination to accept the observations of the learned Magistrate in the criminal case that, as there was no zebra crossing, the driver need not care for pedestrians crossing the road at that place. The Labour Court noted that the driver must be more cautious and careful to ensure that he did not cause any harm to the pedestrians as well as to the persons driving two wheelers or three wheelers. The Labour Court noted that the ill fated lady was aged 70 years and, as rightly found by the enquiry officer, she could not be expected to have normal senses as well as road traffic sense and, therefore, the person driving the vehicle should be more careful towards such fellow human beings. The Labour Court observed that the petitioner lacked anticipation of passengers crossing the road at such places and that it was established that the petitioner had driven the bus in a negligent manner and thereby a precious life was lost. The Labour Court observed that the findings of the enquiry officer as well as disciplinary authority were well founded, did not require interference and, having regard to the gravity of the misconduct, the order of removal was justified. Sri P.Govinda Rajulu, learned counsel for the petitioner, would contend that since the Criminal Court had acquitted the petitioner of rash and negligent driving under Section 304-A IPC, the order of the Criminal Court is binding on the Labour Court and that the Labour Court should also have held the charges not to have been established. I am afraid I cannot agree. In Sk.Ahmed v. Labour Court[1], B.Sudershan Reddy, J (as he then was), after referring to the earlier judgments of the Supreme Court, observed:- “……From the decisions referred to herein above, it is clear that an employer can proceed against its employee and initiate departmental enquiry as well as criminal prosecution on the same set of facts. In appropriate cases, even the civil proceedings could be initiated. There is no bar in law to initiate all the proceedings simultaneously. In appropriate proceedings, the Court may stay the departmental proceedings, if the Court comes to a conclusion that it may not be 'desirable', 'advisable' or 'appropriate' to proceed with the disciplinary enquiry when a criminal case is pending on identical charges. It is not a matter of course, but required to be taken having regard to the facts and circumstances in each case. One of the most important considerations that may have to be taken into account before stalling the departmental proceedings is that the defence of the employee in the criminal case may be prejudiced if the departmental enquiry is simultaneously held. This may be done in cases of grave nature involving complicated, questions of fact and law. It is well settled that acquittal in a criminal case by the competent court of criminal jurisdiction does not confer any automatic right upon the delinquent employee for his reinstatement into the service, even if the prosecution and the departmental enquiry is based on same set of facts. The distinction between the criminal proceeding and the departmental proceeding is clear. The nature of proof required in a criminal case for establishing the charges and the departmental proceedings for proving the misconduct is not one and the same. It cannot be said that the charges in a criminal case and departmental proceedings would be the same, merely because the same set of facts are involved. The question that falls for consideration in a criminal case is as to whether the charged person is guilty of offence punishable under Indian Penal Code or any penal statutes for the time being in force, whereas in a departmental enquiry what is required to establish is as to whether the employee is guilty of misconduct. The misconduct is invariably defined by the rules or regulations, as the case may be, by which an employee's conduct is regulated. The misconduct under rules or regulations is entirely different from that of an offence under Indian Penal Code or any penal statutes, as the case may be. On the same set of facts, the disciplinary authority and the criminal Court can come to different conclusions with regard to the allegations made against the delinquent officer. The conclusions so reached operate in different fields. The consequences that flow from such conclusions are also different. It may be true that acquittal of an employee of the charges in a criminal case may have some bearing in considering the proportionality of punishment by the Labour Court in exercise of its jurisdiction under section 11-A of the Act. But the judgment of the criminal Court cannot be held to be conclusive. The Labour Court is not bound by the judgment of the criminal Court. The Labour court is not bound to direct the reinstatement of an employee into service on the sole ground of employee's acquittal even on merits in the criminal case. It may be one of the factors to be taken into consideration in awarding appropriate punishment in exercise of its jurisdiction under Section 11-A of the Act. The same principle would apply to the proceedings before the disciplinary authorities. The Labour Court in the instant case, upon reappreciation of evidence and material available on record, came to the conclusion that the findings of the Enquiry Officer are based on evidence and any reasonable person would draw the same conclusions as drawn by the enquiry Officer. The Labour Court accordingly held that both the charges framed against the petitioner herein were proved. The Labour Court had also taken into consideration the judgment rendered by the criminal Court in C. C. No. 67 of 1989 for the purpose of deciding the proportionality of punishment in exercise of its power under Section 11-A of the Act. It is under those circumstances, the Labour Court came to the conclusion that the petitioner is entitled for reinstatement into the service without back wages and without continuity of service. The judgment of the Labour Court in my considered opinion, does not suffer from any legal infirmity. The labour Court had not committed any irregularity whatsoever in passing the Award. The Award is not vitiated by any error apparent on the face of the record requiring any correction as such by this Court in exercise of its certiorari jurisdiction. This Court cannot interfere with the findings of the Labour Court by substituting its own opinion for that of the Labour Court. Such a course is not permissible in law. The charges held proved against the petitioner herein are very serious in nature. There is sufficient evidence available on record that the petitioner drove the vehicle in a rash and negligent manner culminating into a fatal accident involving two lady pedestrians, one of them succumbed to injuries in the Government General Hospital, Ponnur. In the circumstances, I am of the opinion that the petitioner is not entitled for any back wages and continuity of service……….” (emphasis supplied) The order of the Criminal Court is but a factor which is required to take into consideration by the Labour Court in examining whether the charges levelled against the delinquent are established or not. In the case on hand, the Labour Court has taken into consideration the judgment of the Criminal Court, and has, on a detailed analysis of the said judgment, observed that while the degree of proof in a criminal case was proof beyond reasonable doubt, in departmental proceedings it is preponderance of probabilities. The Labour Court also noted that the Criminal Court had acquitted the petitioner on the ground that there were no eye witnesses to the accident, whereas in the disciplinary enquiry, the petitioner had himself admitted that he had concentrated on the left rear portion of the bus which was sufficient to establish that he had not taken the care and caution necessary to ensure safety of the pedestrians. The award of the Labour Court is a well considered award. The contention of Sri P.Govinda Rajulu, learned counsel for the petitioner, that the Labour Court has failed to reappreciate the evidence on record does not merit acceptance. A perusal of the award would show that the Labour Court has appreciated the evidence on record in detail and has, thereafter, concurred with the findings of the enquiry officer as well as the disciplinary authority. A feeble submission is made by Sri P.Govinda Rajulu, learned counsel for the petitioner, that even if the charges are held established, the punishment imposed is disproportionate. It is well to remember that the accident caused by the bus had resulted in the death of a 70 year old lady pedestrian and, for such grave and serious acts of misconduct, it cannot be said that the punishment of removal from service imposed by the employer, as confirmed by the Labour Court, is excessive or that it necessitates interference in certiorari proceedings under Article 226 of the Constitution of India. Learned counsel would place reliance on a circular issued by the Corporation which was not even marked as an exhibit before the Labour Court. I am not inclined to look into any document, which was not been marked before the Labour Court, since it is well settled that in certiorari proceedings it is only the award of the Labour Court which necessitates examination and not matters extraneous thereto. Viewed from any angle, the award of the Labour Court does not necessitate interference. The Writ Petition fails and is, accordingly, dismissed. However, in the circumstances, without costs. ______________ 27-02-2008 usd [1] 2001(1) ALT 3