Case: Cholan Roadways Ltd Vs. G. Thirugnanasambandam

who challenges this fact. This is both in accord with principles of natural justice as also according to the procedure under Order XIX, Civil Procedure Code and the Evidence Act both of which incorporate these general principles. Even if all technicalities of the Evidence Act are not strictly applicable except in so far as Section 11 of the Industrial Disputes Act, 1947 and the rules prescribed therein permit it, it is inconceivable that the Tribunal can act on what is not evidence such as hearsay, nor can it justify the Tribunal in basing its award on copies of documents when the originals which are in existence are not produced and proved by one of the methods either by affidavit or by witnesses who have executed them, if they are alive and can be produced. Again if a party wants an inspection, it is incumbent on the Tribunal to give inspection in so far as that is relevant to the enquiry. The applicability of these principles are well recognized and admit of no doubt." 27. The said decision, for the reasons stated hereinabove, cannot have any application to the fact of the present case. 28. The learned Counsel for the respondent also placed reliance upon a decision of this Court in Zunjarrao Bhikaji Nagarkar (supra). In that case, this court was concerned with the charge of misconduct against the appellant therein concerning an allegation that he favoured M/s Hari Vishnu Pakaging Ltd. Nagpur (assessee) by not imposing penalty on it under Rule 173-Q of the Central Excise Rules, 1944 when he had passed an order-in-Original No.20 of 1995 dated 2.3.1995 holding that the assesee had clandestinely manufactured and cleared the excisable goods willfully and evaded the excise duty and had ordered confiscation of the goods. The misconduct was said to have been committed by the appellant while exercising his judicial function. Having regard to the factual matrix obtaining therein, this court observed: "37. Penalty to be imposed has to be commensurate with the gravity of the offence and the extent of the evasion. In the present case, penalty could have been justified. The appellant was, however, of the view that imposition of penalty was not mandatory. He could have formed such a view....." It was further observed: "41. When penalty is not levied, the assessee certainly benefits. But it cannot be said that by not levying the penalty the officer has favoured the assessee or shown undue favour to him. There has to be some basis for the disciplinary authority to reach such a conclusion even prima facie. The record in the present case does not show if the disciplinary authority had any information within its possession from where it could form an opinion that the appellant showed "favour" to the assessee by not imposing the penalty. He may have wrongly exercised his jurisdiction. But that wrong can be corrected in appeal. That cannot always form a basis for initiating disciplinary proceedings against an officer while he is acting as a quasi-judicial authority. It must be kept in mind that being a quasi-judicial authority, he is always subject to judicial supervision in appeal. 42. Initiation of disciplinary proceedings against an officer cannot take place on information which is vague or indefinite. Suspicion has no role to play in such matter. There must exist reasonable basis for the disciplinary authority to proceed against the delinquent officer. Merely because penalty was not imposed and the Board in the exercise of its power directed filing of appeal against that order in the Appellate Tribunal could not be enough to proceed against the appellant. There is no other instance to show that in similar case the appellant invariably imposed penalty." 29. In the aforementioned factual matrix of the case it was held that every error of law would not constitute a charge of misconduct. 30. This decision also has no application to the facts of the present case. In the instant case the Presiding Officer, Industrial Tribunal as also the learned Single Judge and the Division Bench of the High Court misdirected themselves in law insofar as they failed to pose unto themselves correct questions. It is now well-settled that a quasi-judicial authority must pose unto itself a correct question so as to arrive at a correct finding of fact. A wrong question posed leads to a wrong answer. In this case, further more, the misdirection in law committed by the Industrial Tribunal was apparent insofar as it did not apply the principle of Res ipsa loquitur which was relevant for the purpose of this case and, thus, failed to take into consideration a relevant factor and furthermore took into consideration an irrelevant fact not garmane for determining the issue, namely, the passengers of the bus were mandatorily required to be examined. The Industrial Tribunal further failed to apply the correct standard of proof in relation to a domestic enquiry, which in "preponderance of probability" and applied the standard of proof required for a criminal trial. A case for judicial review was, thus, clearly made out. 31. Errors of fact can also be a subject-matter of judicial review. (See E. vs. Secretary of State for the Home Department (2004 Vol.2 Weekly Law Report page 1351). Reference in this connection may also be made to an interesting article by Paul P. Craig Q.C. titled Judicial Review, Appeal and Factual Error published in 2004 Public Law Page 788. 32. The impugned judgment, therefore, cannot be sustained and, thus, must be set aside. 33. Ordinarily, we would have remitted the matter back to Industrial Tribunal for its consideration afresh but as the matter is pending for a long time and as we are satisfied having regard to the materials placed before us that the Industrial Tribunal should have granted approval of the order of punishment passed by the Appellant herein against the Respondents, we direct accordingly. The Respondents may, however, take recourse to such remedy as is available to in law for questioning the said order of dismissal.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]12. It is neither in doubt nor in dispute that the jurisdiction of the Industrial Tribunal under Section 33(2)(b) of the Industrial Disputes Act is a limited one. The jurisdiction of the Industrial Tribunal under Section 33(2)(b) cannot be equated with that of Section 10 of the Industrial Disputes Act. In this case admittedly an enquiry has been held wherein the parties examined their witnesses. The Respondent was represented and assisted by three observers. Shri M. Venkatatesan was the Branch Manager, CRC Tanjore Town Branch, who had submitted his report and proved the same before the Inquiry Officer. He furnished a detailed account of the position of the buss the other bus after the collision took place. He found that there was no brake tyre mark of the bus on the road. All the two seaters seats on the entire left side of the bus were found totally damaged. The left side roof arch angle of the bus was found totally out. Not only 4 persons were found to be dead at the spot, the driver and conductor of the bus and 10 other passengers were also sustained injuries in this accident. Out of the said 10 passengers, 3 subsequently died in the hospital owing to the injuries sustained by them. He further found that on the left side of the road in the earthen margin, there was a tamarind trees protruding branch and which was found to have been already cut and the bottom stump of the branch was found protruding to a length of 3 inches. The bus was found to have been brought to a halt only at a distance of 81 ft. from the place of impact against the tree. He further noticed that even after the impact of the bus against the tree, the delinquent is said to have swerved the bus further to the right side from left side without applying brake and reducing speed and later only be brought the bus to a halt at some distance as a result of which the entire side roof angle of the bus got cut13. The learned Presiding Officer, Industrial Tribunal, as noticed hereinbefore, opined that the passengers of the bus should have been examined. It does not appear from the order dated 29.4.88 passed by the Presiding Officer, Industrial Tribunal that the Respondent herein made any prayer for cross examining the passengers who travelled in thed bus and who were examined by the said Shri M. Venkatesan. It is evident from the order of the learned Tribunal that only in the show cause filed by the Respondent in response to the second show cause notice, such a contention was raised. The learned Presiding Officer, Industrial Tribunal in his impugned judgment further failed to take into consideration that even if the statements of the said passengers are ignored, the misconduct allegedly committed by the Respondent would stand proved on the basis of the evidence adduced by Shri M. Venkatesan together with the circumstantial evidences brought on records. The learned Single Judge of the High Court although referred to the sketch drawn by1 on the site) and 4 photographs) but ignored the same observing that unless witnesses were examined in support of the two exhibits, it is not possible to draw any inference therefrom. The Division Bench of the High Court did not examine the materials on records independently but referred to the findings of the Industrial Tribunal as also the learned Single Judge to the effect that from their judgments it was apparent that the driver had not been driving the bus rashly and negligently14. It is now ad principle of law that the principle of Evidence Act have no application in a domestic enquiry16. There cannot, however, by any doubt whatsoever that the principle of natural justice are required to be complied with in a domestic enquiry. It is, however,n that the said principle cannot be stretched too far nor can be applied in a vacuum17. The jurisdiction of the Tribunal while considering an application for grant of approval has succinctly been stated by this Court in Martin Burn Ltd. vs. R.N. Banerjee (AIR 1958 SC 79 ). While exercising jurisdiction under Section 33(2)(b) of the Act, the Industrial Tribunal is required to see as to whether a prima facie case has been made out as regard the validity or otherwise of the domestic enquiry held against the delinquent, keeping in view the fact that if the permission or approval is granted, the order of discharge or dismissal which may be passed against the delinquent employee would be liable to be challenged in an appropriate proceeding before the Industrial Tribunal in terms of the provision of the Industrial Disputes Act18. It is further trite that the standard of proof required in a domestic enquirys a criminal trial is absolutely different. Whereas in the former preponderance of probability would suffice; in the latter, proof beyond all reasonable doubt is imperative19. The tribunal while exercising its jurisdiction under Section 33(2)(b) of the Industrial Disputes Act was required to bear in mind the aforementioned legal principles. Furthermore, in a case of this nature the probative value of the evidence showing the extensive damages caused to the entire left side of the bus; the fact that the bus first hit the branches of a tamarind tree and then stopped at a distance of 81 ft therefrom even after colliding with another bus coming from the front deserved serious consideration at the hands of the tribunal. The nature of impact clearly demonstrates that the vehicle was being driven rashly or negligently20. Res ipsa loquitur is an principle which is applicable in the instant case. Once the said doctrine is found to be applicable the burden of proof would shift on the delinquent. As noticed hereinabove, the enquiry officer has categorically rejected the defence of the Respondent that the bus was being driven at a slow speedIn the instant case the Presiding Officer, Industrial Tribunal as also the learned Single Judge and the Division Bench of the High Court misdirected themselves in law insofar as they failed to pose unto themselves correct questions. It is nowd that al authority must pose unto itself a correct question so as to arrive at a correct finding of fact. A wrong question posed leads to a wrong answer. In this case, further more, the misdirection in law committed by the Industrial Tribunal was apparent insofar as it did not apply the principle of Res ipsa loquitur which was relevant for the purpose of this case and, thus, failed to take into consideration a relevant factor and furthermore took into consideration an irrelevant fact not garmane for determining the issue, namely, the passengers of the bus were mandatorily required to be examined. The Industrial Tribunal further failed to apply the correct standard of proof in relation to a domestic enquiry, which in "preponderance of probability" and applied the standard of proof required for a criminal trial. A case for judicial review was, thus, clearly made out33. Ordinarily, we would have remitted the matter back to Industrial Tribunal for its consideration afresh but as the matter is pending for a long time and as we are satisfied having regard to the materials placed before us that the Industrial Tribunal should have granted approval of the order of punishment passed by the Appellant herein against the Respondents, we direct accordingly. The Respondents may, however, take recourse to such remedy as is available to in law for questioning the said order of dismissal.