HON’BLE SHRI G.S. SINGHVI, THE CHIEF JUSTICE AND HON’BLE SHRI JUSTICE G.V. SEETHAPATHY WRIT APPEAL NO. 1076 OF 2005 Between: The Depot Manger,APSRTC, Parvathipuram, & others … Appellants And D. Vykuntarao & another … Respondents :: JUDGMENT:: Counsel for the Appellant : Shri V. Padmanabha Rao Counsel for Respondent No.1 : Shri B. Gajender Reddy Counsel for Respondent No.2 : Government Pleader for Labour Dated: 16.06.2006 Per G.S. SINGHVI, CJ This appeal by the Depot Manager, Andhra Pradesh State Road Transport Corporation (for short ‘the Corporation), Parvathipuram, Vizainagaram and three others is directed against order dated 31.12.2004 passed by the learned Single Judge in Writ Petition No.5959 of 1997, whereby he set aside award dated 25.09.1995 passed by the Chairman and Presiding Officer of Industrial Tribunal-cum-Labour Court, Visakhapatnam (hereinafter described as ‘the Tribunal’) in I.D.No.135 of 1993 as also the punishment imposed by the disciplinary authority on respondent No.1-D. Vykunta Rao (hereinafter described as ‘the workman’) and directed his reinstatement with continuity service and back wages along with other benefits. The Facts: The workman joined service of the Corporation as driver on 13.03.1981. While he was on duty on 30.11.1991, vehicle No.AEZ 1112 driven by him was involved in an accident at Chinabogili, which resulted in the death of a lady pedestrian. On receipt of the report of accident, Depot Manager, Parvathipuram (for short ‘the disciplinary authority’) placed the workman under suspension and ordered departmental enquiry on the charge that by driving the vehicle in a rash and negligent manner, he had caused death of a lady pedestrian. The enquiry officer submitted report with the finding that the charge levelled against the workman has been proved. The disciplinary authority accepted the enquiry report and passed order dated 10.04.1992, whereby he imposed the penalty of removal from the service on the workman. Appeal and review preferred by the workman against the order of punishment were dismissed by the Divisional Manager, Vizainagaram and Regional Manager, Vizainagaram respectively. The workman then filed an application under Section 2A(2) of the Industrial Disputes Act, 1947 (for short ‘the Act’), as amended by Andhra Pradesh amendment Act No. 32 of 1987). He pleaded that the finding recorded by the enquiry officer was erroneous, inasmuch as the officer concerned had failed to appreciate the evidence produced during the enquiry and that the disciplinary authority committed a grave error by ordering his removal from service. He further pleaded that the accident was not caused due to rash and negligent driving of the vehicle and, therefore, he could not have been held guilty of committing misconduct under Regulation 28(ix)(b) of the Andhra Pradesh State Road Transport Corporation Employees Conduct Regulations, 1993 and punished for the same. In the counter affidavit filed on behalf of the disciplinary authority, it was averred that the workman was punished after holding regular enquiry. He was given opportunity to defend himself. The enquiry officer considered the evidence produced by the parties and concluded that the accident had occurred due to rash and negligent driving of the vehicle by the workman. The disciplinary authority accepted the finding recorded by the enquiry officer and imposed the penalty of removal because the workman had committed a similar misconduct on an earlier occasion. On the pleadings of the parties, the Tribunal framed the following issues: (1) Whether the punishment of removal from service imposed on the petitioner is justified? (2) To what relief is the petitioner entitled? The Chairman-cum-Presiding Officer of the Tribunal noted that the counsel appearing for the workman did not challenge the validity of domestic enquiry and confined his argument in the context of Section 11-A of the Act. He then adverted to the argument of the counsel for the workman that the order of punishment should be set aside because Judicial Magistrate First Class, Bobbili had acquitted him in Criminal Case No.296 of 1991 registered under Section 304-A I.P.C. and observed that the standard of proof required for proving criminal liability of the accused is different than the one required for proving a charge in the departmental enquiry. He further observed that the judgment of the criminal court is not binding on the employer, though it can be considered at the time of evaluation of evidence produced before the enquiry officer. The Chairman and Presiding Officer then dealt with the evidence produced during the enquiry and held that the finding recorded by the enquiry officer, which was accepted by the disciplinary authority, does not suffer from any legal infirmity. This is evinced from the extracts (this portion has been taken from copy of award filed by the appellants) of the award of the Tribunal, which is reproduced below: “In the present case, the conduct of the workman stating in his explanation to the charge memo under Ex.M7 that no part of the bus even dashed the woman and that the deceased woman fell down because of her old age and fell down on the road and she might have died of the shock due to falling on the road, is reprehensible. In his statement before the enquiry officer, he makes a contradictory statement that the deceased lady fell on the right side front portion and her left shoulder was hit with the front right side portion of the bus and then she fell on the ground. Thus, the statement of the delinquent himself before the enquiry officer shows that the bus hit the deceased lady. The accident occurred at Chinabogili Junction which is cross roads shortly after the bus started from a bus stage and according to the version of the delinquents himself the deceased lady and another lady suddenly crossed the road from right side to the left side in order to board the bus. And he noticed them at the distance of 3 or 4 feet and suddenly applied brakes by which time the lady is already hit by the front right side portion of the bus and fell down. The delinquent himself states in his statement that he stopped the bus land got down and noted bleeding injury on the right side face and right side hand of the deceased. The passengers who were examined by the enquiry officer also stated that the two ladies suddenly crossed the road from right side direction to left side direction and they came to the left side of the road in order to board the bus when the accident occurred. Thus, both the delinquent driver and the passengers observed the two ladies crossing the road in order to board the bus. In the criminal Court judgment also, it is stated that the witness deposed that the two ladies came crying for stopping the bus. Thus, it is evident that the two ladies tried to stop the bus and board it at cross roads where there was no bus stop. Thus, they are not simply crossing the road but they were crossing the road in order to board the bus at a place where there was no stage by asking the driver to stop the bus and this fact was perceived by the delinquent driver and even though it was not the stage for stopping the bus, the driver should have stopped it as the ladies expected the driver to stop the bus as they were asking him to stop it. From these facts, it is evident that the driver did not want to stop the bus as it was not the stage inspite of the cries of the Indian to stop it, but proceeded further which resulted in the accident and this fact is stated by the delinquent himself before the enquiry officer. The learned Magistrate has given considerable importance under Ex.W1 to the fact that there were no skid marks on the road. But obviously the bus was at a slow speed at the cross roads as it started at the bus stage only shortly before. And therefore there could not be any skid marks and the bus was stopped applying the brakes. Further, it is held under Ex.W1 judgment that as the ladies crossed the road suddenly it was not possible for the driver to stop the bus at a short distance. But the driver in his statement before the enquiry officer admits that he noticed the ladies at a distance of 3 or 4 feet and he sounded the horn and slowed down the bus. According to him, the lady pedestrian thought that this is passenger service to board the bus but on there is no stage at that place he has not stopped the bus and driven the bus slowly. Thus, it is evident from his statement that he did not try to stop the bus immediately by applying the brakes but he merely slowed down and was running the bus thinking that there is no stage at that place and he need not stop the bus. It is observed by the enquiry officer in his enquiry report the distance between the bus and the deceased is 4 feet as per the rough sketch, and it shows that the driver stopped the bus only after hitting the deceased. A perusal of the enquiry report shows that the enquiry officer has carefully land meticulously considered the entire evidence on record before him including the statement of independent eye witnesses by name Sri V. Sanyasi Raju and came to the conclusion that the driver acted in a rash and negligent manner in not stopping the bus immediately though he observed the deceased and another lady crossing the road suddenly in order to board the bus and making the driver to stop the bus for boarding it. Though the delinquent was not under an obligation to stoop the bus where there was no bus stage, yet on humanitarian considerations and having regard to the fact that the two ladies were proceeding towards the bus hoping the bus would be stopped at the request, the driver should have foreseen the risk involved if he did not stop the bus. Thus, the enquiry officer rightly came to the conclusion that the driver caused the accident by his rash and negligent driving and held the charge proved against the delinquent.” On the issue of quantum of punishment, the Chairman and Presiding Officer noted that in the opinion of disciplinary authority, appellate authority and reviewing authority, the act of causing fatal accident constituted a serious misconduct. He then noted that on an earlier occasion, the workman had caused major accident for which a penalty of stoppage of annual increment for a period of one year had been imposed on him and held that the penalty imposed by the employer was proper and justified. The Presiding Officer concluded that the workman was not a fit person to be continued as driver in the services of the Corporation. The workman challenged the award of the Tribunal in Writ Petition No.5959 of 1997. He relied on the judgment of acquittal passed by Judicial Magistrate First Class, Bobbili and the written statement filed on behalf of the employer in O.P.No.62 of 1992 filed by the legal representatives of the deceased before the Motor Accidents Claims Tribunal-cum-District Judge, Visakhapatnam and pleaded that in the face of the stand taken by the employer that the accident had not been caused due to rash and negligent driving, the order of punishment is liable to be annulled. In the counter affidavit filed on behalf of the appellants, it was pleaded that the award passed by the Tribunal was based on a correct appreciation of evidence and there was no valid ground to annul the order of punishment simply because the workman was acquitted in criminal case. The learned Single Judge briefly adverted to the facts leading to the passing of order of removal, the rejection of appeal and revision filed by the workman and the award passed by the Tribunal. He then noted the argument of the learned counsel appearing for the workman that in the face of his acquittal in the criminal case, the Corporation could not have imposed the penalty of removal from service. The learned Single Judge also noticed counter argument of the learned counsel for the appellants that the workman was removed from service because he was found guilty of grave misconduct and then observed: “However, on a reading of the above, it is seen that several aspects have not been properly taken into account, especially in view of the fact that the petitioner was acquitted in a criminal case vide C.C.No.296 of 1991, on the file of the Judicial First Class Magistrate, Bobbili as per judgment dated 14.02.1995. Though it may not be binding or has a conclusive force, it should be taken as a whole as one of the relevant circumstances, with persuasive value. Further, it is also to be seen that normally in respect of such accidents, the respondent- Corporation is not taking any departmental action against the persons. On the face of it, the imposition of punishment of removal of the petitioner from service is unjust and has no nexus to the gravity of the offence as alleged. In the circumstances, it cannot be said that the respondent-Corporation is justified in imposing such punishment” We have heard learned counsel for the parties and carefully examined the record. In our opinion, the order under challenge is legally unsustainable and the same is liable to be set aside because while nullifying the award of the Tribunal and the order of punishment passed by the disciplinary authority, the learned Single Judge completely overlooked the parameters laid down by the Supreme Court for exercise of jurisdiction by the High Court under Article 226 of the Constitution of India. It is settled law that a writ of certiorari can be issued against an order passed by the Subordinate Court or Tribunal or a quasi- judicial authority if the same is without jurisdiction or is in excess of the jurisdiction or is violative of the rules of natural justice or is vitiated by an error of law apparent on the face of the record. To put it differently, the High Court can issue a writ of certiorari if it is found that the order under challenge has been made by the Court or Tribunal or quasi-judicial which did not have the jurisdiction to pass such order or where such Court, Tribunal or Authority has failed to exercise the jurisdiction vested in it or where the action complained of has been taken in disregard of rules of natural justice. A writ of certiorari can also be issued if it is shown that while passing the order under challenge the Subordinate Court, Tribunal or quasi- judicial authority ignored legally admissible evidence or took into consideration inadmissible evidence or overlooked relevant material or the order is based on extraneous consideration/factors. However, a writ Court cannot sit in appeal over the orders of the Subordinate Court, Tribunal or quasi-judicial authority and interfere with the findings and conclusions recorded by such Court, Tribunal or Authority merely because on a re-appreciation of evidence different finding or conclusion is possible. The writ Court cannot go into sufficiency and adequacy of evidence which may have been relied by the Subordinate Court, Tribunal or quasi-judicial authority for reaching a particular finding or conclusion. In Syed Yakoob v. K.S. Radhakrishnan[1] the Supreme Court considered the scope of the High Courts’ power to issue a writ of certiorari and laid down the following propositions: i) A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or properly, as for instance, it decides a question without giving an opportunity, be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. ii) The jurisdiction of High Court to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. iii) A finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. In Shaikh Mahammad Umarsaheb v. Kadalaskar Hasham Karimsab and others[2] their Lordships of the Supreme Court, while dealing with the scope of High Court’s power under Article 226 to re-appreciate the evidence produced before the trial Judge, held as under: “Where the evidence adduced before the trial Judge was not so immaculate that another Judge might not have taken a different view, it cannot be said that there was no evidence on which the trial Judge could have come to the conclusion he did. When the trial Court accepts the evidence, the High Court which is not hearing an appeal cannot be expected to take a different view in exercising jurisdiction under Articles 226 and 227.” I n Jitendra Singh Rathor v. Shri Baidyanath Ayurve Bhawan Ltd.[3], the Supreme Court considered the question wheth in exercise of power under Article 227, the High Court can interfere wi the discretion exercised by the Tribunal under Section 11-A of the A and observed : “Under Section 11-A wide discretion has been vested in the Tribunal in the matter of awarding relief according to the circumstances of the case. The High Court under Article 227 of the Constitution does not enjoy such power though as a superior Court, it is vested with the right of superintendence. It is entitled to scrutinize the orders of the subordinate tribunals within the well-accepted limitations and, therefore, it can in an appropriate case quash the award of the Tribunal and thereupon remit the matter to it for fresh disposal in accordance with law and directions, if any. But it is not entitled to exercise the powers of the Tribunal and substitute an award in place of the one made by the Tribunal or substitute one finding for another and similarly one punishment for another, as in the case of an appeal where it lies to it.” In R.S. Saini v. State of Punjab and others[4] the Supreme Court upheld the order passed by the High Court dismissing the writ petition filed against the order of the petitioner’s removal from the office of the President of Municipal Committee. Some of the observations made in that decision, which are worth noticing read as under: “The court while exercising writ jurisdiction will not reverse a finding of the inquiring authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably support the conclusion of the inquiring authority, it is not the function of the court to review the evidence and to arrive at its own independent finding. The inquiring authority is the sole judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the court in writ proceedings.” The proposition laid down in Sayed Yakoob1 (supra) has been reiterated in a recent judgment in Mohd. Shahnawaz Akhtar & Anr. v. Ist ADJ Varanasi & ors.[5] In Surya Dev Rai v. Ram Chander Rai[6], the Supreme Court noted the history of the development of High Court’s jurisdiction to issue writs, orders or directions under Articles 226 and 227 of the Constitution of India and laid down the following propositions: i) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred thereagainst and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. ii) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. iii) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari, the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case. iv) The parameters for exercise of jurisdiction under Articles 226 or 227 of the Constitution cannot be tied down in a strait-jacket formula or rigid rules. Not less than often, the High Court would be faced with a dilemma. If it intervenes in pending proceedings there is bound to be delay in termination of proceedings. If it does not intervene, the error of the moment may earn immunity from correction. The facts and circumstances of a given case may make it more appropriate for the High Court to exercise self- restraint and not to intervene because the error of jurisdiction though committed is yet capable of being taken care of and corrected at a later stage and the wrong done, if any, would be set right and rights and equities adjusted in appeal or revision preferred at the conclusion of the proceedings. But there may be cases