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

respondent was employed as a driver by the appellant on 14.04.1986. While on duty on 15.01.2003, on vehicle TN-38-0702, during a trip from Kovai Ukkadam to Pollachi, near Vadakkipalayam he caused an accident with a car bearing No. TMA 4845 coming from the opposite direction resulting in fatal injuries to persons travelling in that car. Disciplinary enquiry was instituted against the respondent inter alia on the charge of driving the bus in a rash and negligent manner. The Enquiry Officer found the respondent guilty of the charges framed in Charge Memo dated 22.01.2003. The Disciplinary Authority after giving opportunity to the respondent passed order of dismissal on 13.10.2003. The appellant then submitted an application, being Approval Petition No. 480 of 2003, under Section 33(2)(b) of the Industrial Disputes Act, 1947, before the Joint Commissioner Labour (Conciliation), Chennai as an industrial dispute was pending for conciliation before him. The Labour Commissioner, after analysing the material placed before him in the said proceeding noted that the Department only examined two witnesses who were also cross-examined by the respondent. The respondent examined himself as defence witness, but was not cross-examined by the Department. The Commissioner, however, found that the enquiry against the respondent was conducted in accordance with the principles of natural justice and also in conformity with the Standing Orders. While dealing with the quality of evidence adduced by the Department, the Commissioner found that the same, by no standard would substantiate the charges framed against the respondent. The first witness was the Junior Engineer. He had submitted a site inspection report and stated in his evidence that the car came with speed to the left side from Vadakkipalayam branch road to the main road and then came to the centre of the road. His evidence about the occurrence of accident was on presumption. The second witness examined by the Department was the Assistant Manager. He stated that the bus driver as well as car driver had driven their vehicles speedily. He also stated that car was driven in the middle of the road with speed at the time of accident. The defence of the respondent was that when he was approaching Vadakkipalayam branch road, an ambassador car driven by a 17 year old boy named Sivakumar came on the wrong side of the road at a high speed and, after entering the main road went to the left side of the bus in wrong direction. The respondent, therefore, first thought of driving the bus to the left. But, as some pilgrims were going in a procession on the left side of the road and as the car was being driven rashly and had come to the left side of the bus, he was left with no option except to take the bus to the right side to avoid a head on collision. This averted a fatal accident to pedestrians and minimized the damage to the car coming from the opposite direction on the wrong side. This also ensured the safety of the bus passengers. In substance, the respondent pleaded that the accident was caused due to unavoidable circumstances and in spite of all precautions and applying his best judgment in maneuvering the vehicle.3. The Commissioner found that the respondent had deposed about these facts as defence witness, but was not cross-examined by the Department. No eye witness was examined by the Department nor the conductor of the bus or passengers travelling in the same bus were examined by the Department. The Commissioner, therefore, concluded that the finding reached by the Enquiry Officer by merely relying on the evidence of the Junior Engineer and the Assistant Manager (who were not eye witnesses), was perverse. In that, the charges were not proved against the respondent by independent legal evidence of eye witnesses. The Commissioner held that the Enquiryreport was vitiated being perverse. The Commissioner also relied on the decision of the Division Bench of Madras High Court in Writ Appeal No. 2238 of 2000 in the case of A. Mariasundararaj vs. Cheran Transport Corporation Ltd., which had deprecated the practice of not examining eye witness or other relevant evidence during the enquiry in respect of accident cases by the State Transport Corporation, and as it results in not confirming the charges and punishments awarded against its drivers involved in accidents. The Commissioner, therefore, refused to accord approval for dismissal of the respondent.4. Being aggrieved by this decision, the appellant-Management preferred Writ Petition No. 2425 of 2010. Even the respondent preferred Writ Petition No. 23155/2009 for issuing writ of mandamus against the Corporation to implement the order passed by the Joint Commissioner of Labour, Chennai dated 25.05.2009 in Approval Petition No. 480/2003; and to reinstate him with continuity of service, back-wages and all other attendant benefits. Both the writ petitions were heard analogously by the learned Single Judge. The Single Judge noted the seven reasons recorded by the Commissioner to disapprove the dismissal of the respondent, as follows:Except examining witnesses, who are employees of the petitioner Corporation, the petitioner has not examined any independent witness to prove that the accident took place because of the rash and negligent driving of the 2nd respondent resulting in the death of 9 persons.b) Thereport, which was marked as Ex. A2 shows that the car came fast from the branch road to the main and came to the centre of the road and the bus was coming on the right side of the road instead of the left side on high speed. The report fixed prime responsibility on the bus driver and part responsibility on the car driver. Though the Junior Engineer, who gave this report, deposed that the car and the bus came with speed, he was not an eye witness to the occurrence and he had described the occurrence only on presumption.c) P.W.1, the Assistant Manager of the petitioner Corporation, though deposed that the bus driver as well as the car driver had driven the vehicles in high speed, he was also not an eye witness to the occurrence and hence, his evidence also cannot be taken into consideration to fix the responsibility on the 2nd respondent.d) The conductor of the bus, who could have been examined on the side of the petitioner Corporation, had not been examined.e) Not even a single passenger of the bus was examined to prove or establish that the 2nd respondent, the driver of the bus, had driven the vehicle in a rash and negligent manner.f) The Enquiry Officer had relied on the evidence of the Engineer and the Assistant Manager, who were not eye witnesses to the occurrence and their evidence was uncorroborated by any independent witness.g) The 2nd respondent had denied that he was responsible for the accident and stated that the ambassador car, which took a left turn from the branch road and came driving to its right side, suddenly turned to the left and therefore, the accident had occurred. However, the 2nd respondent was not subjected to cross-examination.The Single Judge then opined that the view so taken by the Commissioner was well founded and did not warrant any interference. Reliance was also placed on an un-reported decision of Division Bench of the same High Court in Writ Appeal No. 2238 of 2000 in the case of A. Mariasundararaj (Supra). The relevant dictum in that decision has been reproduced in paragraph 7 by the Single Judge, ashave to point out that when we come across such accident case, where disciplinary actions are initiated by the State Transport Corporations, invariably except the statement of the inspecting official, the sketch and photographs, no other evidence is placed before the Inquiry Officer. It is also repeatedly being pointed out that in the absence of such independent evidence before the Court, it is difficult for the Court to confirm the punishment awarded as against such erring drivers.Accordingly, the Single Judge dismissed the writ petition preferred by the appellant and allowed the writ petition preferred by the respondent and issued direction to the appellant Corporation to reinstate the respondent with back-wages and continuity of service and all other attendant benefits.7. Being aggrieved, the appellant preferred Letters Patent Appeal bearing Writ Appeal Nos. 2082 and 2083 of 2013. The Division Bench affirmed the view taken by the Single Judge. The Division Bench distinguished the decision of this Court in the case of Cholan Roadways Ltd. Vs. G. Thirugnanasambandam (2005) 3 SCC 241 )which was pressed into service by the appellant, on the principle of res ipsa loquitur. The Division Bench held that merely on the basis of evidence of the Assistant Manager and the Engineer, who were not the eye witnesses, the charges against the respondent remained unsubstantiated. Hence, the writ appeals came to be dismissed. This decision is the subject matter of challenge in the present

Reasoning:
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.