Case: The Management of TNSTC (Coimbatore) Ltd Vs. M. Chandrasekaran

to ascertain whether prima facie case is made out for grant or non-grant of approval to the order of punishment. In doing so, the Commissioner could not substitute his own judgment but must only consider whether the view taken by the Disciplinary Authority is a possible view on the evidence on record. 10. In the present case, the sole reason which weighed with the Commissioner was that no independent witness was produced - not even a single passenger of the bus was examined by the Department. The decision relied by the appellant squarely deals even with this reasoning. It has been held that, in the case of State of Haryana & Others Vs. Rattan Singh (1977) 2 SCC 491 )the Court held that mere non-examination of passenger does not render the finding of guilt and punishment imposed by the Disciplinary Authority invalid. Similar view has been taken in the case of Divisional Controller KSRTC (NWKRTC) vs. A.T. Mane (2005) 3 SCC 254 ). Both these decisions have been noticed in the reported decision relied by the appellant. The burden to prove that the accident happened due to some other cause than his own negligence, is on the employee, as expounded in the case of Thakur Singh vs. State of Punjab (2003) 9 SCC 208 )referred to in the reported decision. In the reported case relied by the appellant, it has been noted as under: “34. ……………………………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, furthermore, 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 germane 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.” 11. Applying the principle stated in Cholan Roadways Ltd. (Supra), what needs to be considered is about the probative value of the evidence showing the extensive damage caused to the bus as well as motorcar; the fatal injuries caused to several persons resulting in death; and that the nature of impact raises an inference that the bus was driven by the respondent rashly or negligently. The material relied by the Department during the enquiry supported the fact that the respondent was driving the vehicle at the relevant time and because of the high speed of his vehicle the impact was so severe that the two vehicles were extensively damaged and the passengers travelling in the vehicle suffered fatal injuries resulting in death of five persons on the spot and four persons in the hospital besides the injuries to nine persons. These facts stood established from the material relied by the Department, as a result of which the doctrine of Res ipsa loquitur came into play and the burden shifted on the respondent who was in control of the bus to establish that the accident did not happen on account of any negligence on his part. Neither the Commissioner nor the High Court considered the matter on that basis nor posed unto themselves the correct question which was relevant for deciding the application under Section 33(2)(b). On the other hand, the order of punishment dated 13th October, 2003, ex facie, reveals that the report of the Enquiry Officer referring to the relevant material established the factum and the nature of accident warranting an inference that the respondent had driven the bus rashly and negligently. Further, the observation in the unreported decision of the Division Bench of the same High Court was not relevant for deciding the application under Section 33(2)(b). Significantly, the order of punishment also adverts to the past history of the respondent indicative of respondent having faced similar departmental action on thirty two occasions, including for having committed minor as well as fatal accidents while performing his duty. 12. In our opinion, the Commissioner exceeded his jurisdiction in reappreciating the evidence adduced before the Enquiry Officer and in substituting his own judgment to that of the Disciplinary Authority. It was not a case of no legal evidence produced during the enquiry by the Department, in relation to the charges framed against the respondent. Whether the decision of the Disciplinary Authority of dismissing the respondent is just and proper, could be assailed by the respondent in appropriate proceedings. Considering the fact that there was adequate material produced in the Departmental enquiry evidencing that fatal accident was caused by the respondent while driving the vehicle on duty, the burden to prove that the accident happened due to some other cause than his own negligence was on the respondent. The doctrine of Res ipsa loquitur squarely applies to the fact situation in the present case.13. Ordinarily, we would have remitted the matter back to the Commissioner for consideration afresh, but as the matter is pending for a long time and as we are satisfied that in the fact situation of the present case approval to the order of punishment passed by the appellant against the respondent should have been granted, we allow the application under Section 33(2)(b) preferred by the appellant but with liberty to the respondent to take recourse to appropriate remedy as may be available in law to question the said order of dismissal dated 13th October, 2003.

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

Explanation:
1[ds]12. In our opinion, the Commissioner exceeded his jurisdiction in reappreciating the evidence adduced before the Enquiry Officer and in substituting his own judgment to that of the Disciplinary Authority. It was not a case of no legal evidence produced during the enquiry by the Department, in relation to the charges framed against the respondent. Whether the decision of the Disciplinary Authority of dismissing the respondent is just and proper, could be assailed by the respondent in appropriate proceedings. Considering the fact that there was adequate material produced in the Departmental enquiry evidencing that fatal accident was caused by the respondent while driving the vehicle on duty, the burden to prove that the accident happened due to some other cause than his own negligence was on the respondent. The doctrine of Res ipsa loquitur squarely applies to the fact situation in the present case.13. Ordinarily, we would have remitted the matter back to the Commissioner for consideration afresh, but as the matter is pending for a long time and as we are satisfied that in the fact situation of the present case approval to the order of punishment passed by the appellant against the respondent should have been granted, we allow the application under Section 33(2)(b) preferred by the appellant but with liberty to the respondent to take recourse to appropriate remedy as may be available in law to question the said order of dismissal dated 13th October, 2003.