IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE SEVENTEENTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT HON'BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION No : 21657 of 1999 Between: The APSRTC, Rep. by its Depot Manager, Dilsukhnagar Depot, Hyderabad. ..... PETITIONER AND Sri B. Chandraiah S/o. B. Rajaiah R/o 1-15, Kuntloor village, Hayathnagar Mandal, Ranga Reddy District. .....RESPONDENT 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 issue a writ, order or direction more particularly in the nature of Writ of Certiorari by calling for the records from the 1st respondent in I.D.No.54 of 1997 dt. 19-11-1998 published in G.O.Rt.No. 2163 dt. 11-12-98 and quash the Order. Counsel for the Petitioner :MR.K.MADHAVA REDDY Counsel for the Respondent : MR.A.K.JAYAPRAKASH RAO The Court made the following : HON'BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION No : 21657 of 1999 ORDER : This writ petition is ﬁled by the Andhra Pradesh State Road Transport Corporation (APSRTC), through its Depot Manager, Dilsukhnagar Depot, Hyderabad, challenging the validity of the award, dated 19th November 1998, passed by Labour Court-I, Hyderabad, in I.D.No.54 of 1997. By the aforesaid award, the Tribunal has allowed the application ﬁled by the respondent/workman and directed for his reinstatement with full backwages, continuity of service and attendant benefits. Now, it is submitted by the learned counsel for the parties that during the pendency of this writ petition, the petitioner was retired from service on medical disability. 2. While the respondent-Driver was in service, on 09.07.1994, he was posted to drive the bus bearing No.AEZ-5488 on route No.72-L from L.B.Nagar to Charminar. When the bus was reaching NTR Nagar bus stage, there was an accident, in which, a lady, while crossing the road from right to left side, was hit by the bus being driven by the respondent. She suﬀered fatal injury and died on the spot. With reference to the above said incident, attributing negligence on the part of the respondent-Driver, disciplinary proceedings were initiated by framing a charge to the following effect : “For having driven the bus No.AEZ-5488 on Rt.No.72’L (LB Nagar to Charminar) in rash and negligent manner on 9-7-94 at 22.00 hours, while operating from L.B.Nagar to Dilsukhnagar last trip near NTR Nagar bus stage caused the death of a lady while crossing the road hit by the above bus, which constitutes misconduct in terms of Reg.29(ix) (b) of APSRTC Employees (Conduct) Reg.1963.” 3. The respondent/workman has ﬁled his explanation to the charge memo, but however, on the ground that the explanation oﬀered was not convincing, the disciplinary authority has ordered for domestic inquiry. In the domestic inquiry conducted on 23rd November 1994 and 9th May 1995, the inquiry oﬃcer has recorded a ﬁnding that the respondent- Driver was found guilty for the charge levelled against him, and based on the said report, by issuing further show cause notice and calling for his explanation, the respondent was removed from service, by order dated 28th July 1995. Though the respondent has availed the remedies of appeal and review before the departmental authorities, he was unsuccessful, and ultimately, he has questioned the order of removal by ﬁling an application under Section 2(A)(2) of the Industrial Disputes Act, 1947, which is numbered as I.D.No.54 of 1997. Before the Labour Court, no oral evidence was let in on behalf of the parties, but however, documentary evidence was marked on behalf of the management in Exs.M-1 to M- 25. The Labour Court, while re-appreciating the evidence on record, had come to the conclusion that the charge of negligence on the part of the respondent/workman was not proved, and therefore, it ordered for his reinstatement with continuity of service, full backwages and attendant benefits. 4. Heard learned Standing Counsel for the petitioner and the learned counsel Sri A.K.Jayaprakash Rao, appearing for the respondent/workman. 5. In this writ petition, it is the case of the petitioner-Corporation that, as the inquiry oﬃcer has recorded ﬁndings on appreciating the oral and documentary evidence on record, it is not open for the Tribunal to come to a diﬀerent conclusion than the one arrived at in the domestic inquiry proceedings. It is submitted that even in the inquiry proceedings, it is categorically found that the respondent/Driver has not taken timely steps by driving the vehicle to the extreme left side of the road to avoid the accident, and as such, in the inquiry proceedings, the inquiry oﬃcer has categorically found that the respondent-Driver was guilty of the charge. It is submitted that in that view of the matter, the Tribunal has erred in ordering for reinstatement of the respondent. It is further submitted that in any event, the Tribunal has erred in awarding full backwages as much as the respondent was removed by following due procedure as contemplated under the law. 6. On the other hand, it is the case of the respondent-Driver that inspite of the fact that the evidence collected during the inquiry was not suﬃcient to prove the guilt of the charge levelled against him, however, the inquiry oﬃcer has misconstrued the evidence on record and recorded an erroneous ﬁnding against him. It is the case of the respondent that he has taken extreme care and was driving the vehicle at the relevant time at the speed of 25 kms per hour, as he was reaching the bus stage at NTR Nagar, and as such, it could not be said that he was rash and negligent in driving the bus, and was responsible for the accident occurred on the fateful day. 7. Though the copy of the inquiry report was not ﬁled originally, but it is ﬁled today by the learned Standing Counsel appearing for the petitioner- Corporation. Right from the beginning, it is the case of the respondent-Driver that he was not negligent in driving the bus and he had already slowed down the vehicle as he was reaching the NTR Nagar stage, to stop the bus. It is further stated that at that point of time, it was drizzling and number of lorries were coming from opposite direction and the deceased lady, without taking any precautions, has suddenly tried to pass from behind a lorry, from right to left side of the road, and inspite of applying sudden brakes by him, she has suﬀered injury due to hit of the right side bumper of the bus. It is further stated that the said lady had fallen about 3 to 4 feet away from the vehicle and in view of the care taken by him, the bus could not run over her. As such, it was his case that there was no negligence on his part. 8. Coming to the domestic inquiry proceedings, on behalf of the respondent-Driver, a passenger by name Srisailam Reddy, was examined apart from examining the respondent himself. On behalf of the management, one Mr.N. Ram Prakash, who was on duty as Chief Inspector, was examined. Even in the inquiry proceedings, having discussed the depositions of various witnesses, the inquiry oﬃcer has recorded the finding to the following effect : “Further, though there was suﬃcient place at the left side of the bus on the road the driver has not taken the bus to extreme left side immediately after coming of her in front of the bus to avert the accident. Had the driver has taken the bus towards his left side while applying the break the accident would have averted. Similarly the said woman also has not taken any precautions in her attempt to cross the road like observing the vehicles movements on the National High Way road and waiting till the vehicles pass away and road becomes clear as such the said woman was also responsible for the accident for her attempt to cross the road in a negligent and careless manner without any precautions.” But however, the Tribunal, while re-appreciating the evidence, merely stated that the eﬀect of documentary evidence, was not properly discussed by the inquiry officer. There was no additional evidence before the Tribunal, other than the evidence, which was before the inquiry officer in the domestic inquiry proceedings. 9. From the material on record, it is evident that the deceased lady came infront of the bus while she was trying to cross the road from right to left side. But however, at the same time, it was the case of the respondent that he was moving the bus slowly at a speed between 25 and 30 km per hour and at that time, a convoy of lorries was coming in the opposite direction. It was his speciﬁc case that after one of the lorries crossed the bus, the deceased lady came from behind a lorry and tried to cross the road negligently, but at the same time, it is to be noted that asmuch as it was the case of the respondent/Driver that he was driving the bus slowly and there was suﬃcient place on the left side of the road, there was possibility for him to avoid the accident by taking the bus to the extreme left side. From the evidence on record, it is clear that the respondent has not taken timely action by taking the vehicle to the extreme left of the road inspite of availability of space, which amounts to part-negligence on his part also. Though he cannot solely be made responsible for the accident, but from the material on record, and upon reading the ﬁndings recorded by the inquiry oﬃcer, as extracted above, it is a case of contributory negligence on the part of the respondent/Driver as well as the deceased lady, who died in the unfortunate accident. Merely because there was a fatal accident, by itself, ipso facto, cannot be the reason to remove a person by attributing negligence. But from the evidence collected in the inquiry proceedings and the ﬁndings recorded by the Tribunal, it is clear that it is the case of contributory negligence. Though in normal course the matter is to be remitted back for fresh consideration, but as much as the accident was occurred on 09.07.1994, and the writ petition is pending before this Court for the last nine years, to put a quietus to the litigation, even the learned counsel appearing for the respondent-Driver has submitted that his client is ready to forego 50% of backwages. Even on merits, I am of the opinion that as there was contributory negligence on the part of the respondent-Driver which resulted in the fatal accident, there is no reason to award full backwages. The ﬁnding of the Labour Court to the eﬀect that the respondent was not at all responsible for the accident, runs contrary to the evidence on record. While holding that there is contributory negligence from the side of the respondent-Driver as well as from the side of the deceased lady, I deem it appropriate that the ends of justice would be met if only 50% of backwages are awarded to the respondent-Driver. 10. For the aforesaid reasons, while conﬁrming the reinstatement with continuity of service and attendant benefits as awarded by the Tribunal, I hold that the respondent-Driver is entitled only to half of the backwages from the date of removal to the date of reinstatement. 11. Writ petition is allowed in part, and the award of the Tribunal stands modiﬁed to the extent indicated above. No order as to costs. ______________________ R. SUBHASH REDDY, J 17th September 2008 ajr