* THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
+ Writ Petition No.1568 of 2002
%05.12.2014
Between:
G.D. Reddy. ....
Petitioner
AND
The Industrial Tribunal-OO. Rep. by its Chairman, II Floor, Chandravihar, M.J. Road, Hyd.
and another. ….
Respondents
! Counsel for Petitioner : Sri Mohd. Ghouseuddin
^ Counsel for Respondent No.2 : Sri N. Vasudeva Reddy
< Gist:
> Head Note:
? Cases referred:
1) (2011) 4 SCC 584
2) (2005) 7 SCC 338
3) (2013) 1 SCC 598
4) 1998 (4) ALD 619
HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
Writ Petition No.1568 of 2002 ORDER:
The Writ Petitioner seeks an order in the nature of Certiorari to quash the Award dated 18.06.2001 in I.D.No.261 of 2000 passed by Industrial Tribunal-II, Hyderabad whereunder the Industrial Tribunal dismissed the I.D. while upholding the domestic enquiry proceedings and consequent punishment of removing the petitioner from service imposed by the second respondent.
2) On factual side, the petitioner was appointed as driver in the respondent/ Corporation on 28.03.1970. On 04.11.1996 he was driver of the bus bearing No.AP 9 Z 9349 on route No.21 from Secunderabad to Venkatapuram. When the bus reached the Stadium, a motorcycle bearing No.AP 11 C 8490 came in the opposite direction and took a sudden turn towards its right side and thereby left side bumper of the bus hit the motorcycle. The motorcyclist fell down and suffered injuries and he was shifted to Military Hospital, where he breathed his last. A preliminary enquiry was conducted putting the petitioner under suspension. Having found the explanation submitted by the petitioner not satisfactory, a detailed enquiry was ordered and basing on the report, a final order was passed removing the petitioner from service vide proceedings dated 18.08.1997.
Aggrieved by the said order, the petitioner filed I.D.No.261 of 2000 and the same was dismissed by the Industrial Tribunal.
Hence the Writ Petition.
3) Heard arguments of Sri Mohd. Ghouseuddin, learned counsel for petitioner and Sri N.Vasudeva Reddy, learned Counsel for 2nd respondent.
4) Fulminating the award of the Industrial Tribunal, learned counsel submitted that the Tribunal failed to appreciate the facts and evidence emerged from the enquiry report in a proper perspective and simply swayed by the arbitrary and capricious findings of the final report and held as if the petitioner was guilty of rash and negligence in the accident and dismissed the I.D. Expatiating it, he submitted that the evidence of the independent witnesses like the bus passengers and also the evidence of the conductor would clearly show that the motorcyclist took a sudden turn towards his right side very few yards from the bus and thereby he came across the bus and seeing it, the bus driver though halted his bus to a stand-still position, still the motorcyclist went and hit the left side bumper of the bus and fell down and suffered grievous injuries and he was immediately shifted to Hospital and there he died. Thus their evidence clearly depict that but for sudden taking of turn to his right side by the motorcyclist, the accident would not have occurred and due to the said diversion by the deceased motorcyclist, the driver had absolutely no time to avert the accident and inspite of it he brought the bus to a grinding halt but unable to control the speed, the motorcyclist himself went and dashed the left side bumper in the turning posture. He argued that the finding in the final enquiry report to the effect that having seen the motorcyclist taking turn at a distance of 100 metres, the petitioner failed to anticipate the possible accident and thereby failed to halt the bus in time is an illogical conclusion by shutting the eyes on the evidence and the explanation of the driver that the motorcycle took a sudden turn only few yards from the bus. He would submit that lack of skid marks as observed in the final report cannot be treated as a consequence against the petitioner in view of the fact that having noticed the motorcyclist taking sudden turn from a short distance, the petitioner halted the bus and thereby there was no possibility of finding skid marks on the road. He submitted that without having regard to the above facts, circumstances and evidence, the final report was prepared only to see that the petitioner lost his job and unfortunately the Tribunal also endorsed the final report going by some past record of the petitioner. He submitted that in the resultant criminal case, the petitioner was acquitted and the past record if any will not have any bearing to decide the culpability of the petitioner in the present case. He thus prayed to allow the writ petition.
5) Per contra, opposing the petition learned counsel for 2nd respondent/ Corporation submitted that the final enquiry report was prepared taking into consideration the findings of the preliminary enquiry report and also voluminous evidence. The Enquiry Officer observing that the petitioner having seen the motorcyclist taking turn towards right side from sufficiently long distance could not anticipate and avert the accident and on the other hand after hitting the motorcycle dragged it to 30 feet, has correctly held that the petitioner was guilty of rash and negligent driving and causing death of a person. Learned counsel argued that the Enquiry Officer thus correctly held that petitioner failed to take minimum precautionary measures to avert the fatal accident and there was no perversity in that finding and that was
why the Industrial Tribunal also accepted the said finding.
Learned counsel submitted that the petitioner after some stage did not participate in the final enquiry and therefore he has no right to impugne the findings of the final enquiry report. Learned counsel further argued that in view of petitioner being convincingly found guilty of committing fatal accident in the departmental enquiry, the finding of the criminal Court has no bearing. He further argued that having regard to the fact that the petitioner caused a fatal accident without taking minimum precautionary measures, the punishment of removal from service was just and proportionate to his guilt and hence needs no interference. He relied upon the following decisions and argued that unless the departmental enquiry suffers the vices of perversity, arbitrariness and capriciousness and also the punishment imposed by the organisation is so disproportionate to the guilt that shocks to the conscience of the Court / Tribunal, the Courts and Tribunals will generally do not interfere with the same in the judicial review.
1) State Bank of Bikaner and Jaipur vs.Nemi Chand
[1]
Nalwaya
[2]
2) V. Ramana vs. A.P.SRTC and others Further, he relied upon the following decisions to buttress his argument that acquittal by the criminal court has no bearing with the validity of departmental proceedings:
1) Deputy Inspector General of Police and another vs. S.
[3]
Samuthiram
2) Y.C. Rajwas vs. Commandant, Central Industrial Security Force, Ministry of Home Affairs, Singareni Colleries Company Limited, Bellampalli, Adilabad
[4]
District and others .
He thus prayed to dismiss the Writ Petition.
6 ) In the light of above rival arguments, the point for determination in this petition is:
“Whether the Award passed by the Industrial Tribunal is factually and legally sustainable?”
7) POINT: It should be noted that before Industrial Tribunal neither party adduced any oral or documentary evidence and hence the Tribunal rendered its award upon upholding the correctness of the findings in the domestic enquiry report. Therefore, it is now to be seen whether the findings in the domestic enquiry report (styled as Detailed Enquiry Report No.01/2(21)/96-HPT/EO. dated 06.06.1997) are reasonable and based on the facts and evidence or suffering the vices of perversity, arbitrariness and capriciousness. It should also be noted that unless the domestic enquiry report suffers from the above vices, the Courts/Tribunals shall in general not interfere with the departmental enquiry proceedings. I n State Bank of Bikaner and Jaipur’s case (1 supra), Hon’ble Apex Court held thus:
“Para 7: It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. Courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations, (vide B.C. Chaturvedi vs. Union of India (1995 (6) SCC 749)), Union of India vs. G. Gunayuthan (1997 (7) SCC 463), and Bank of India v. Degala Suryanarayana (1999 (5) SCC 762), High Court of Judicature at Bombay v. Shahsi Kant S Patil (2001 (1) SCC 416).”
a ) Sofaras effect of acquittal in criminal proceedings is concerned, in the cited decisions i.e, Deputy Inspector General of Police’s case (3 supra) and Y.C. Rajwas’s case (4 supra), it was held that the acquittal in criminal case does not effect the validity of departmental proceedings because the parameters for deciding the guilt in both the proceedings are different.
In view of the above precedential jurisprudence on the subject in issue, I intensely perused the detailed enquiry report.
8) Bus No.AP 9 Z 9349 (Metro Express) belongs to Hakimpet Depot. On 04.11.1996 the petitioner was the driver and one G.V.S. Pavan Kumar was conducing the same. The bus was plied on the Route No.21 i.e, from Secunderabad to Venkatapuram and the accident took place near Docca Stadium. At that place, a person by name Sri S.M.S.K. Bhople, coming on the motorcycle bearing No.AP 11 C 8490 in the opposite direction of the bus suddenly took turn to his right side and in that process the left side bumper of the bus hit his motorcycle and he fell under the bus. The injured was taken to Hospital where he breathed his last.
9) In connection with the above fatal accident, STI/HPT depot submitted preliminary enquiry report to the Depot Manager. Basing on which a charge sheet was issued and the petitioner submitted his explanation and later detailed enquiry was conducted. The following two charges were framed against him and enquired.
Charge No.1: For having driven the vehicle No.AP 9 Z 9349 in rash and negligent manner with lack of anticipation on 04.11.1996 at about 19:25 hours near Docca Stadium while proceeding from Secunderabad to Venkatapuram and caused a fatal accident with motorcyclist Sri S.M.S.K. Bhople, who succumbed to injuries which constitutes misconduct under Reg.28(ix) (a & b) of APSRTC Employees (Conduct) Regulation, 1963.
Charge No.2: For having failed to take minimum precautionary measures while driving the bus AP 9 Z 9349 on route 21 and caused fatal accident with a Motor Cyclist at 19.25 hours near Docca Stadium, MC EME Colony which constitutes misconduct under Reg.28(xxxi) of APSRTC Employees (Conduct) Reg.1963.
i) Charge No.1 is concerned, the available evidence of different persons before the Enquiry Officer is to the following effect:
a) In the passengers statement one J. Lalitha and others stated that after passing EME College, motorcyclist came in opposite direction and suddenly came to right side and the driver applied brakes and bus stopped (Emphasis supplied). The motorcyclist dashed to the bus and fell down they alighted and found the motorcycle fell in front of left side bumper and the motorcyclist on the Katcha road.
b) The petitioner as driver of the bus during the preliminary enquiry stated that when the bus reached Docca Stadium one motorcyclist came in the opposite direction in high speed and without giving any caution, the motorcyclist suddenly took right turn and on seeing this he applied brakes and stopped the bus but the motorcyclist came in same speed and took right turn and hit the bus at left side bumper and fell down on Katcha road and motorcycle fell on the B.T road under the left side bumper (Emphasis supplied). He further stated that the motorcyclist has not applied any indicator lights for taking right turn and the speed of the bus at that time was 20 to 25 kmph. No skid marks of the tyres were there on the road. The petitioner further stated that he observed the motorcyclist at a distance of 100 metres. The petitioner in his explanation to charge-sheet stated that the deceased motorcyclist came in the opposite direction and suddenly turned his motorcycle towards his right side when the bus was just few yards to the motorcycle and hit the bus at the front left side bumper and at that moment he saw the movement of the motorcyclist and stopped the bus. The motorcyclist came in high speed without following the traffic rules and suddenly turned the motorcycle towards his right side and accident was occurred due to his negligence.
c) In his detailed enquiry statement, the conductor stated that at about 19.25 hours the bus reached Docca Stadium and one motorcyclist came from Lothukunta and took right turn suddenly in front of the bus (Emphasis supplied). The driver applied sudden brakes and the bus stopped but the motorcyclist came in same speed and took right turn and hit the stabled bus bumper at left side and fell down.
d) In the detailed enquiry statement, one K.M. Reddy, Controller stated that on 04.11.1996 he attended the accident spot near Docca Stadium and found the bus on the left side of the road facing towards Lothukunta and the motorcycle fell under the left side bumper of the bus and the indicator lights of the motorcycle were damaged and there were no other damages to the motorcycle and to the bus. At the accident spot, the motorcycle was pushed for a distance of about 2 feet (Emphasis supplied).
e) In the detailed enquiry statement, Sri E.M. Rajeshwar, (E.76152 MF/HPT) stated that after the accident the vehicle arrived at his depot and he checked and found no defects in the mechanical functions of the bus and there was no brake rolling defect to the vehicle.
ii) Basing on the above main evidence and also the rough sketch and photos, the enquiry officer has given his finding on Charge No.1 to the effect that the version of bus driver and the conductor that the driver applied sudden brakes and stopped the bus but the motorcycle came and dashed the bus is not acceptable for the reason that if the bus was really stopped and the motorcycle dashed the bus, then the motorcycle would have thrown back due to the impact of the hit but the motorcycle will not come under the bumper. It was further observed that though the motorcyclist suddenly tried to cross the road in front of the bus, the driver of the bus had not taken adequate precautions to stop the bus immediately to avoid the accident. There was no sudden application of the brakes of the bus as there were no skid marks of the tyres of the bus. Thus the bus driver was rash and negligent in driving the bus with lack of anticipation.
iii) Sofaras Charge No.2 is concerned, in view of the findings in Charge No.1, Charge No.2 was also held proved against the driver.
10) On careful perusal of the evidence and the findings of the enquiry officer, I am unable to accept his findings because they are not based on the evidence and there was perversity in appreciation of the evidence.
a ) When the evidence of independent persons like passengers and the conductor is viewed, it is crystal clear that the motorcyclist while coming in the opposite direction of the bus has taken a sudden turn to his right side. This fact was spoken by almost all the persons and in fact the enquiry officer has also accepted this fact. Ofcourse his finding is that the bus driver having seen the motorcyclist taking turn towards right side from a sufficient distance of 100 metres, not stopped the bus in anticipation of the accident and thereby he was rash and negligent in driving the bus. Be that it may, the admitted fact is that the motorcyclist while coming in the opposite direction of the bus took a sudden turn towards his right side. If we accept this fact, the next important question that would arise in determining the guilt or innocence of the bus driver is, at what distance of the bus, the motorcyclist took turn to his right side. If the motorcyclist took the turn at a sufficiently long distance from the bus, generally bus driver will not have any problem in controlling the speed of his bus to bring it to halt to avert the accident. On the other hand if the motorcyclist took the turn suddenly at a short distance of the bus, then it would become difficult for the bus driver to bring the bus to a halt to avoid the accident. So the distance at which the motorcyclist took the turn is a key factor.
b) In this context in my view, the evidence of the independent witnesses i.e, passengers is very important. The version of J. Lalitha is to the effect that after passing EME College, the motorcycle came in the opposite direction of the bus and suddenly came to right side and the bus driver applied brakes and the bus stopped and motorcyclist dashed to the bus and fell down. The expression “suddenly” in the evidence of the witness gives an indication that the motorcyclist took the turn to his right side in the close proximity of the bus. Had he taken the turn when the bus was still at a distance of 100 metres which is sufficiently a long distance, the witness would not have stated that the motorcyclist suddenly took turn on the right side rather she would have told that motorcyclist took turn. Therefore, her evidence corroborates the explanation of the petitioner/ driver to the effect that the motorcyclist took a sudden turn to his right side when the bus was just few yards to the motorcycle. There were none others who have deposed in a contrary fashion.
Therefore, it is very much clear that a motorcyclist came in the opposite direction of the bus and suddenly took the right side turn when the bus was just few yards away from him.
c) In the light of above facts, the next point that would come for consideration is whether the petitioner/bus driver could be in a position to anticipate that the motorcyclist would take turn to his right side and avert the accident. Since the motorcyclist took the turn in the last moment and that too in close proximity to the bus, the question of bus driver anticipating that the motorcyclist would take a turn does not arise. Ofcourse since the motorcyclist took turn all of a sudden at a very close distance of the bus, the bus driver might anticipate that there is a danger of bus and motorcycle dashing together. What all he did to avoid the accident was that he stopped the bus and the motorcyclist came across the bus and hit on the left side bumper and fell down. It may be noted that this part of the explanation of the bus driver and conductor was rejected by the Enquiry Officer on the observation that if really he stopped the bus and the motorcycle itself hit the bus, it would not have fell down under the left side bumper of the bus but would have been rebuffed back. Further, the motorcycle was dragged to 30 feet.
d) The above observation, I am afraid is not correct. It must be noted that the facts and evidence would show that the motorcycle did not come straight opposite to bus and hit on its left side bumper but on the other hand the motorcyclist after taking a sudden turn to his right side went across the bus and dashed the stationed bus on its left side bumper. Since he went across the bus and left side part of his vehicle hit the left side bumper, there was every possibility of the motorcycle falling under the left side bumper instead of throwing back. Further, the observation that the bus dragged about 30 feet after impact of hit and stopped also does not appear to be correct. If that is the case, the motorcycle would have received severe damage and the deceased would have received severe injuries and died on the spot. On the other hand the evidence shows that only the indicator lights of the motorcycle were damaged. The evidence further shows that the motorcycle was pushed only for a distance of 2 feet. The deceased had not died on the spot but in the hospital. All these would indicate that the bus driver noticing the motorcycle taking a sudden turn in the last moment, tried his best and stopped the bus but the motorcyclist went across the bus and dashed the bus on its left side bumper. In the entire process, the bus driver’s fault at best may be not more than 20% because he could not completely halt the bus at a farther distance so that the motorcycle may not hit it. I am constrained to hold that the appreciation of the facts and evidence by the Enquiry Officer is not objective rather perverse. Therefore, the cited decisions i.e, State Bank of Bikaner and Jaipur’s case (1 supra) and V. Ramana’s case (2 supra) will not help the cause of respondent. As already stated supra, the Tribunal just swayed by the Enquiry findings rather independently applied its mind. Therefore, the award is liable to be set aside.
1 1 ) Then punishment is concerned, since the fault of the petitioner was only 20% in the accident, the punishment of removal from service is shockingly disproportionate to the conscience of this Court which needs amelioration.
12) In the result, this Writ Petition is allowed and the Award dated 18.06.2001 in I.D.No.261 of 2000 passed by Industrial Tribunal-II, Hyderabad is set aside and consequently, the second respondent/Corporation is directed to reinstate the petitioner into service with continuity of service and with 50% of back wages.
As a sequel, pending miscellaneous petitions, if any, shall stand closed.
U.DURGA PRASAD RAO, J
Date: 05.12.2014
Note: L.R Copy to be marked: Yes/ No scs
[1] (2011) 4 SCC 584
[2] (2005) 7 SCC 338
[3] (2013) 1 SCC 598
[4] 1998 (4) ALD 619