Case: Cholan Roadways Ltd Vs. G. Thirugnanasambandam

2. The factual matrix of the matter is not much in dispute3. The Respondent herein was a driver of a bus bearing No.8 plying between Tanjore and Nagapattinam. On 18.5.1985 while the said bus was driven by the Respondent herein it met with an accident resulting in death of 7 passengers. According to the Appellant the said bus was being driven in a rash and negligent manner. The road at the place of the accident was 300 ft wide and straight one. The Respondent allegedly despite noticing that another bus was coming from the opposite direction did not slow down the vehicle in order to avoid collision therewith. It is said that the Bus was being driven at a speed of 80 k.m.p.h. The bus driven by the Respondent herein is said to have swerved suddenly to the extreme left side of the road which was lined with tamarind trees on both sides. The impact of the said collusion was so severe that the bus dashed against the protruding branches and stumps of the tamarind trees, then dashed against the bus resulting the left side of the bus completely damaged as a result whereof 7 passengers died and several persons were seriously injured4. The Motor Vehicles Claims Tribunal Madras awarded a sum of Rs.9 lakhs to the dependants of the victims as compensation for loss of life. It is not in dispute that the Branch Manage of the Appellant, Mr. Venkatesan visited the scene of the accident at about 4 p.m. on the same day and conducted an investigation. During the said inspection some passengers were examined. He submitted a detailed report. In furtherance of the said report, a disciplinary proceeding was initiated against the Respondent on the following charges:1. On 18.5.85 while you served as the driver in the bus bearing No.TMN 4148 you have been very careless in your duty and around 3.00 p.m. near Poondi dashed against a tamarind tree which was at the edge of the road and thereby caused a very big accident2. While you were on duty as aforesaid, even though it was a straight road and was visible to a distance of about 300 ft. In respect of the buses which come from the opposite direction, you have been very negligent and in a careless and irresponsible manner move the bus very fast and dashed the front left side of the bus against the branch of the tamarind tree which was cut and found at the left side of the road and after that turned the bus towards the right side and thereby caused heavy damage to the bus. On account of your aforesaid act the entire left side of the bus dashed against the tamarind tree branch which resulted in the passengers at the left side of the bus to sustain grievous injuries and that seven passengers died in the aforesaid accident and about 10 passengers sustained grievous injuries and that you were responsible for the same3. Further, you were responsible for the loss of accessories of the bus to the tune of Rs.30,000/and also you were responsible for the loss of revenue for the Corporation4. Further, you were responsible for tarnishing the fair name of the Corporation amongst general public."5. In the domestic inquiry that followed the said, two witnesses were examined on behalf of the Appellant6. The Inquiry Officer upon consideration of the materials brought on records by the parties therein found the Respondent guilty of misconduct in relation to the charges framed against him. The Inquiry Officer rejected the contention of the Respondent herein that the bus was being driven at a slow speed and the accident took place to save a boy who suddenly crossed the road holding:"Thus it has been proved beyond doubt by the evidence adduced by the managements side that the delinquent was careless, negligent and rash in driving the bus at the time of the occurrence resulting in this accident and he is responsible for this accident and consequences thereof and the defence evidence by way of two statements adduced by the delinquent in proof of his defence cannot be given any credit or credence for reasons already expatiated. The delinquent has not alleged any brake failure in his earlier statement in9 or in his written explanation to charge memo, in which he has stated that he effectively used brake and halted the bus after impact."7. The Respondent was, thereafter, dismissed from the services by the Disciplinary Authority8. As an industrial dispute was pending before the Industrial Tribunal the Appellant herein filed an application under Section 33(2)(b) of the Industrial Disputes Act for grant of approval of the said order of dismissal. The learned Presiding Officer, Industrial Tribunal by an order dated 29.4.88 despite holding that the scope of adjudication in a proceeding under Section 33(2)(b) of the Industrial Disputes Act is limited and while granting approval it does not sit as a court of appealg the evidence for itself but has to examine the findings of the Enquiry Officer on the evidence adduced in the domestic enquiry to ascertain whether a prima facie case had been made out on the charges leveled or if the findings are perverse, came to the following findings:"In the instant case, the domestic enquiry conducted cannot be considered as fair and proper and is vitiated on account of the failure of the Enquiry officer to observe the principles of natural justice by not examining the passengers who had given the statements."9. On such finding the approval sought for by the Appellant herein was rejected. A writ petition was filed by the Appellant questioning the correctness or otherwise of the said order dated 1.12.1992 before the High Court. A learned Single Judge of the High Court upheld the said order. A writ appeal No.46/1993 filed by the Appellant against the order passed by the learned Single Judge was dismissed opining:"Though the learned counsel for the Appellant placed reliance upon the judgment of the Apex Court in State of Haryana & Another vs. Rattan Singh reported in AIR 1977 SC 1512 , we hold that the said pronouncement of the Apex Court will not have any application to the present case as it was a converse case where the finding are based upon some evidence, namely, eye witness, and therefore, in that context, the Supreme Court held thatn of the passenger will not vitiate the enquiry. The said pronouncement will not have any application to the facts of the present case and it is clearly distinguishable."

Reasoning:
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.