THE HON'BLE SRI JUSTICE G.CHANDRAIAH WRIT PETITION NO :5710 of 2001 2.12.2010 Between: The Depot Manager, APSRTC. .....PETITIONERs AND 1 K.V. Raghavulu and others. .....RESPONDENTs This Court made the following : THE HON'BLE SRI JUSTICE G.CHANDRAIAH WRIT PETITION NO :5710 of 2001 ORDER: This writ petition is filed challenging the order dated 21.8.2000 passed by the Labour Court, Guntur in I.D.No.29 of 1995. The 1st respondent herein is the applicant. On the reference made under Section 10-1 (c ) of I.D. Act on the issues that whether the Depot Manager, APSRTC Avanigadda is justified in awarding stoppage of one increment for a period of two years with cumulative effect to K.V. Raghavulu, E.531067-Driver; recovery of damages of Rs.1,000/- and treating the period of suspension as Not on duty, if not to what relief the workman is entitled to, the impugned award has been passed. The applicant was appointed as driver on 19.1.1988. While he was driving the vehicle on the route Tirupathi to Avanigadda, the accident took place near Kamaiahthopu at 4.45 hrs on 22.9.1992 and in that regard, he was issued a charge sheet for driving the vehicle A.P. 9Z 3884 in negligent manner in a high speed without noticing the stationed lorry a head and dashed same while operating the vehicle from Ongole to Avanigadda on the route Tirupathi-Avanigadda near Kamaiahthopu between 4.45 hrs on 22.9.1992 as a result of which, one person fell down from the lorry and died on the spot and also for causing damage to both the vehicles and causing loss to the earnings of the corporation. The applicant has submitted his explanation to the said charge sheet denying the charges. On that day, at the accident spot, a lorry was stationed with a load of heavy bundles covering the entire road. The driver tried to slowly overtake the lorry in the heavy rain. But when the opposite vehicles approached he slowed down the vehicle and gave way to the opposite vehicles and came to the left margin and slowly touched the rear portion of the lorry. But one of the persons unfortunately slipped from the top portion of the lorry and fell on the road and died on the spot. There is no evidence to prove that the said person slipped due to the touch of the back of the lorry. At that time about five persons were trying to spread the tarpllin on the heavy bundles of the lorry. So, the driver is in no way concerned for the death of the said person who accidentally fell from the top of the heavy stack loaded on the lorry. In the domestic enquiry none of the witnesses were examined to prove the charges and there is no material to prove the charges against him. Apart from that one of the passengers clearly deposed in the domestic enquiry that the driver saved their lives by avoiding major accident with due anticipation and swerved the bus to the left side and slowly touched the backside of the stationed lorry under unavoidable circumstances. So, there is no evidence to show that there was negligence and rashness on the part of the driver. Since the Depot Manager is one of the members of the Accident Enquiry Committee, he has no jurisdiction to pass any order of punishment. The STI, Avanigadda in his report mentioned that the driver swerved the vehicle towards left side duly applying breaks but the bus tyres were slipped on the slippery road due to rain and slowly touched the heavy loaded lorry. So, this itself proves that the driver is in no way responsible for the accident and for the death of a person. Basing on the erroneous findings of the enquiry officer, the depot Manager imposed the punishment. In the criminal case filed against him, he was acquitted and therefore, the punishment is liable to be set aside. A counter had been filed on behalf of the APSRTC stating that on 22.9.1992, while driving the bus on the route Tirupathi to Avanigadda at 4.45 hours, the workman dashed a stationed lorry from the backside resulting in falling of one person from the top of the lorry and died on the spot. On preliminary report, a charge sheet was issued and enquiy was conducted and the enquiry officer after giving full and fair opportunity held the charge as proved. The Depot Manager being the competent authority, based on the enquiry report issued a show cause notice and received the explanation and finally on considering the material available on record imposed the punishment of deferring of annual increments for a period of two years with cumulative effect and recovered Rs.1000/- towards damages and to treat the period of suspension as not on duty. The said order is fair and cannot be set aside. Basing on the above pleadings, the Labour Court framed the following points: 1.Whether the Depot Manager, A.P.S. R.T.C., Avanigedda is justified in awarding the following punishments of K.V.Raghavulu, Driver: (i)stoppage of one increment for a period of two years with cumulative effect, (ii)recovery of Rs.1,000/- towards damage (iii)treating the period of suspension as not on duty (iv)if not to what relief the workman is entitled to. No oral evidence was adduced on either side. The Labour Court passed the impugned order observing that the depot manager basing on the findings of the enquiry officer imposed the penalty of stoppage of one increment for a period of two years with cumulative effect. The Labour Court having observed that when the findings of the enquiry officer are perverse without any basis, the punishment imposed basing on such report is liable tobe set aside and that when once the punishment is set aside, treating the period of suspension as not on duty is also liable to be set aside and that, however, in view of the damage caused to the bus in the accident, the same can be recovered from the workman who was driving the vehicle at the time of accident and therefore, the department is not justified in awarding the punishment of stoppage of one increment for a period of two years with cumulative effect and treating the suspension as not on duty, passed the award impugned herein. Aggrieved by the same, the Department filed the present writ petition. The material on record clearly goes to show that during the course of enquiry, one R.Malleswararao, Deputy Superintendent, J.A.P Kumar, Superintendent, B.G.K. Murty, Conductor, K.G.Raghavulu, claimant, Timma Subbarao, Passenger and BandaruNarayanarao another passenger were examined and that the Deputy Superintendent and the Superintendent were not the eye witnesses to the occurrence. The only eye witness available to speak about the accident is the conductor the said but and the said Conductor viz., B.G.K. Murthy has narrated the facts as stated by the driver and according to him, the accident occurred due to heavy rain and according to the passengers produced by the Driver viz., T.Subbarao and Narayanarao, the driver has stopped the vehicle by taking precaution and he has saved their lives by avoiding a major accident and the driver is not responsible for the accident and the accident is unavoidable. In this regard, the Labour Court has observed that there was no evidence before the enquiry office to hold that the driver was careless in driving the vehicle without noticing the stationed lorry and simply because there were skid marks on the road, it cannot be said that the driver drove the vehicle in an high speed and apart from that, the driver was also acquitted in the criminal case in C.C.No:86 of 1994 filed against him. The Labour Court having thus observed, held that the finding of the enquiry officer is found to be perverse. Heard the learned counsel. It is contended by the learned Standing Counsel for the Corporation that the Labour Court has erred in holding that there was no negligence on the part of the driver and the findings of the disciplinary authority are not sustainable. It is further contended that the Labour Court has failed to consider that there was contributory negligence on the part of the workman. The point that arises for consideration is whether the impugned award passed by the Labour Court needs to be interfered with ;by exercising the powers under Article 226 of the Constitution of India and whether it suffers from any illegality or irregularity. The case of the petitioner is that While he was driving the vehicle on the route Tirupathi to Avanigadda, the accident took place near Kamaiahthopu at 4.45 hrs on 22.9.1992 and in that regard, he was issued a charge sheet for driving the vehicle A.P. 9Z 3884 in negligent manner in a high speed without noticing the stationed lorry a head and dashed same while operating the vehicle from Ongole to Avanigadda on the route Tirupathi-Avanigadda near Kamaiahthopu between 4.45 hrs on 22.9.1992 as a result of which, one person fell down from the lorry and died on the spot and also for causing damage to both the vehicles and causing loss to the earnings of the corporation. The claimant has submitted his explanation to the said charge sheet denying the charges. On that day at the accident spot a lorry was stationed with load of heavy bundles covering the entire road. The driver tried to slowly overtake the lorry in the heavy rain. But when the opposite vehicles approached he slowed down the vehicle and gave way to the opposite vehicles and came to the left margin and slowly touched the rear portion of the lorry. But one of the persons unfortunately slipped from the top portion of the lorry and fell on the road and died on the spot. There is no evidence to prove that the said person slipped due to the touch of the back of the lorry. At that time about five persons trying to spread the tarpllin on the lorry. So, the driver is in no way concerned as to the death of the said person who accidentally fell from the top of the heavy stack loaded on the lorry. In the domestic enquiry none of the witnesses were examined to prove the charges and there is no material to prove the charges against him. Apart from that one of the passenger clearly deposed in the domestic enquiry that the driver saved their lives by avoiding major accident with due anticipation and swerved the bus to the left side and slowly touched the backside of the stationed lorry under unavoidable circumstances. So, there is no evidence to show that there was negligence and rashness on the part of the driver. In this regard, the Labour Court has also considered the material on record in proper perspective and came to the conclusion that there was no evidence to show that the applicant has driven the lorry in a rash and negligent manner. It is also apparent on the face of the record that the eye witness i.e., the conductor of the bus as well as the inmates of the bus in one tone stated that there was no negligence on the part of the application in driving the vehicle. In the facts and circumstances of the case, I do not find any illegality or infirmity in the order impugned herein. The writ petition is devoid of merits and as such, the same is liable to be dismissed. No order as to costs. ____________________ Justice G.Chandraiah Date:2.12.2010. gurc THE HON'BLE SRI JUSTICE G.CHANDRAIAH WRIT PETITION NO :5710 of 2001 2nd December, 2010