The prayer in this writ petition is to quash the award made in I.D.No.168 of 1998 on the file of the first respondent and direct the second respondent to reinstate the petitioner in service with back wages, continuity of service and all attendant benefits.
2. At the time of arguments, the learned counsel for the petitioner submitted that the petitioner attained the age of superannuation on 30.6.2003 itself and therefore a direction may be issued to pay all benefits upto 30.6.2003 and to pay the terminal benefits thereafter.
3. The case of the petitioner is that he was appointed as Driver in the second respondent Transport Corporation in the year 1979 and he was terminated from service on 19.3.1988. Thereafter a dispute was raised before the Assistant Commissioner of Labour, Coimbatore, who submitted failure report to the Government. The Government of Tamil Nadu referred the dispute for adjudication before the Labour Court. Petitioner filed Claim petition and raised a preliminary objection with regard to the validity of the domestic enquiry. The said preliminary issue was upheld by the Labour Court. The second respondent challenged the said preliminary order made by the Labour Court, in W.P.No.14775 of 1992 before this Court and the said writ petition was disposed of granting liberty to the second respondent management to adduce additional evidence before the first respondent to prove the charges. Thereafter, the second respondent management examined the Junior Engineer, who was examined in the departmental enquiry and marked the very same documents. The Conductor of the bus, who was available in the bus while the accident took place was not examined. The Labour Court found that the accident had taken place at 10.45 p.m. on 19.2.1987 while the petitioner was driving the Transport Corporation bus bearing registration No.TML 4113 due to the rash and negligent driving of the petitioner and dismissed I.D.No.168 of 1999.
4. The said award is challenged in this writ petition on the ground that the Conductor, who was on duty at the time of accident, who was the sole eye witness to the occurrence was not examined; that there was contributory negligence on the part of the driver of the lorry and the same was not considered; and that the Labour Court wrongly assumed that the petitioner had attempted to overtake the bullock cart without sufficient space and the same is without proper care and therefore there is perversity in the order of the Labour Court.
5. The learned counsel for the petitioner argued that no independent witness nor the Conductor of the Bus having been examined, the second respondent management failed to establish the rash and negligent driving of the petitioner on 19.2.1987 at 10.45 p.m. while he was driving the Transport Corporation bus and only a Junior Engineer, who was not present in the scene of occurrence was examined and through whom the documents were marked and therefore the second respondent has not established the charges levelled against the petitioner even before the Labour Court, particularly when the preliminary issue raised by the petitioner with regard to the conduct of domestic enquiry was upheld by the Labour Court. The learned counsel also argued that in the criminal case registered against the petitioner in respect of the very same accident, the petitioner was acquitted and therefore the dismissal of the petitioner from his service is unsustainable.
6. The learned counsel for the second respondent on the other hand submitted that the petitioner drove the bus in a rash and negligent manner and at the place called Pappanpatti Pirivu while overtaking the bullock cart, the bus dashed against the lorry coming from the opposite direction and there was head on collision resulting in the accident and death of the lorry driver. The petitioner's past record was also not satisfactory and therefore he was dismissed from service. The learned counsel also submitted that the factum of the accident and the petitioner's involvement in the accident having been admitted it is for the petitioner to establish his innocence that he was driving the bus in a careful manner. As per the practice followed in the Corporation, when an accident is reported, the Senior Officer of the Corporation visits the spot and collects the details and on the basis of the same, responsibility of the accident is fixed and the said procedure was followed in this case also. Even hearsay evidence can be relied on to prove the charge of rash and negligent driving. The learned counsel also submitted that the petitioner having committed fatal accident, the department considered the gravity of the offence and imposed the punishment of dismissal as the petitioner cannot be entrusted with the bus to drive, as the same will affect the safety and life of the passengers travelling in the Transport Corporation Bus.
7. I have considered the rival submissions made by the learned counsel for the petitioner as well as the respondents.
8. The translated version of the charges levelled against the petitioner are as follows:
"On 19.2.1987, you had been working as the Driver of the night service bus bearing registration No.TML 4113 belonging to Ondipudur branch. It has been stated in the Accident report that when the bus left Appanaickenpatti on that night at 9.45 hrs, and proceeding towards Gandhipuram, you had been driving the bus in a rash and negligent manner at 10.45 hrs at night, near Pappampatti, and dashed the bus against a lorry coming in the opposite direction, that the lorry driver died on the spot and 3 other persons having sustained grievous injuries, had been admitted at the Government Hospital, Coimbatore for treatment and that you had also suffered injuries and had been admitted in the hospital and as a result of the said accident, the Corporation bus had suffered severe damages amounting to Rs.5175/- and the private carrier lorry suffered severe damages to the tune of Rs.8900/-.
Moreover, you have committed violation of the Motor Vehicles Act and had been instrumental for the damages caused to both the vehicles, death of a person and for the injuries sustained by 3 other persons due to your rash and negligent driving.
Your action as stated above, is a delinquency under Order 14(a)(ad) of the Corporation Standing Orders."
From the perusal of the above charges and from the pleadings it is evident that the petitioner drove the Transport Corporation bus bearing TML 4113 on 19.2.1987 from Pappanaikkanpatti to Gandhipuram, Coimbatore, and at 10.45 p.m. near Pappanpatti the said bus dashed with the lorry and the lorry driver died on the spot and three others got grievous injuries, who were admitted in the Government Hospital, Coimbatore. The case of the petitioner as per the pleadings is that he has not drove the bus in a rash and negligent manner and due to the rash and negligent driving of the lorry driver the accident had happened. Even though such a pleading is made by the petitioner, he has not taken any steps to prove the said fact either before the Enquiry Officer or before the Labour Court. The accident having been admitted the maxim 'Res Ipso Loquitor' will apply and therefore it is the duty of the petitioner to prove the fact that he was not driving the vehicle in a rash and negligent manner.
9. (a) The burden of proof in the accident cases is on the side of the driver of the bus, was the view taken by the Supreme Court in the decision reported in 2007 (2) SLR 441 (Managing Director, North East K.R.T.C. v. Devidas Manikrao Sadananda). In paragraphs 10 and 11 it is held as follows:
"10. In the case of Shyam Sunder and others v. The State of Rajasthan, 1974 (1) SCC 690, this Court held that the maxim "res ipsa loquitur" does not embody any rule of substantive law nor a rule of evidence. It is resorted to when the accident is shown to have occurred and and the cause of the accident is primarily within the knowledge of the driver. It was held that the mere fact that the cause of the accident is unknown does not prevent the plaintiff from recovering damages from the defendant if the proper inference to be drawn from the circumstances, which are known is that the accident was caused by the negligence of the defendant. It was held that the fact of the accident may constitute evidence of negligence and in such cases the above maxim applies. The principal function of the maxim is to prevent injustice which would result if the management is compelled to prove the precise cause of the accident, particularly, when the respondent-driver has knowledge of the cause of the accident. This judgment has not been considered by the Division Bench of the Karnataka High Court.
11. In the case of Pushpabai Purshottam Udeshi and others v. M/s.Ranjit Ginning & Pressing Co (P) Ltd. And another, 1977 (2) SCC 745, this Court held that where the evidence shows dashing of the vehicle against the tree was so violent that it caused the death of the passengers then the burden rests on the opposite party to show that the cause of the accident could not have been avoided by exercise of ordinary care and caution (See para 5). In the present case no such attempt was made by the driver to show the plea of inevitability, therefore, the Labour Court had erred in misdirecting itself in not invoking the maxim "res ipsa loquitur." "
(b) In 2005 (3) SCC 241 (Cholan Roadways Ltd. v. G. Thirugnanasambandam) in paragraphs 21 to 26, it is held as follows:
"21. Res ipsa loquitur is a well-known 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 speed.
22. In Pushpabai Purshottam Udeshi v. Ranjit Ginning & Pressing Co. (P) Ltd. this Court observed: (SCC pp.750-51, para 6) 6. The normal rule is that it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident speaks for itself or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence.
23. The said principle was applied in Sarla Dixit v. Balwant Yadav.
24. In A.T. Mane this Bench observed: (SCC p. 257, paras 5-6) 5. Learned counsel relied on a judgment of this Court in support of this contention of his in the case of Karnataka SRTC v. B.S. Hullikatti. That was also a case where a conductor concerned had committed similar misconduct 36 times prior to the time he was found guilty and bearing that fact in mind this Court held thus: (SCC p. 576, para 5) Be that as it may, the principle of res ipsa loquitur, namely, the facts speak for themselves, is clearly applicable in the instant case. Charging 50 paise per ticket more from as many as 35 passengers could only be to get financial benefit, by the conductor. This act was either dishonest or was so grossly negligent that the respondent was not fit to be retained as a conductor because such action or inaction of his is bound to result in financial loss to the appellant Corporation.
6. On the above basis, the Court came to the conclusion that the order of dismissal should have been set aside. In our opinion, the facts of the above case and the law laid down therein apply to the facts of the present case also.
25. In Thakur Singh v. State of Punjab this Court observed: (SCC p.209, para 4) 4. It is admitted that the petitioner himself was driving the vehicle at the relevant time. It is also admitted that bus was driven over a bridge and then it fell into canal. In such a situation the doctrine of res ipsa loquitur comes into play and the burden shifts on to the man who was in control of the automobile to establish that the accident did not happen on account of any negligence on his part. He did not succeed in showing that the accident happened due to causes other than negligence on his part.
26. The burden of proof was, therefore, on the respondent to prove that the vehicle was not being driven by him rashly or negligently."
(c) The same is the view taken by the Division Bench of this Court in the decision reported in 2003 (3) LLN 713 (K.Ayyavu v. Management of Thiruvalluvar Transport Corporation Ltd., Chennai).
10. The contention of the learned counsel for the petitioner that the management witness was not present in the scene of accident and therefore his evidence cannot be relied upon by the Enquiry Officer is also unsustainable. The Supreme Court in the decision reported in 2008 AIR SCW 927 (Workmen of Balmadies Estatesv. Management, Balmadies Estate & Others) held that even hearsay evidence can be acted upon in the disciplinary proceeding, provided it has a reasonable nexus and credibility. Paragraphs 8 and 9 of the said judgment read as follows:
"8. It is fairly well settled now that in view of the wide power of the Labour Court it can, in an appropriate case, consider the evidence which has been considered by the domestic Tribunal and in a given case on such consideration arrive at a conclusion different from the one arrived at by the Domestic Tribunal. The assessment of evidence in a domestic enquiry is not required to be made by applying the same yardstick as a Civil Court could do when a lis is brought before it. The Indian Evidence Act, 1872 (in short the Evidence Act) is not applicable to the proceeding in a domestic enquiry so far as the domestic enquiries are concerned, though principles of fairness are to apply. It is also fairly well settled that in a domestic enquiry guilt may not be established beyond reasonable doubt and the proof of misconduct would be sufficient. In a domestic enquiry all materials which are logically probative including hearsay evidence can be acted upon provided it has a reasonable nexus and credibility.
9. In J.D.Jain v. Management of State Bank of India and Anr. (1982) 1 SCC 143 it was held, almost in a similar factual background, that confessional evidence and circumstantial evidence, despite lack of any direct evidence, was sufficient to hold the delinquent guilty of misconduct and to ustify the order of termination that had been passed."
11. The effect of acquittal in the criminal case while considering the validity of the departmental proceedings was considered by the Supreme Court and this Court in the following cases.
(a) The scope of interference in the domestic enquiry findings and the Labour Court decision and the effect of acquittal in the criminal case was considerd by the Honourable Supreme Court in the decision reported in (2003) 3 SCC 583 (Popli v. Canara Bank), wherein in paragraphs 16 to 19 it is held thus:
"16. It is fairly well settled that the approach and objective in criminal proceedings and the disciplinary proceedings are altogether distinct and different. In the disciplinary proceedings the preliminary question is whether the employee is guilty of such conduct as would merit action against him, whereas in criminal proceedings the question is whether the offences registered against him are established and if established what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial are conceptually different. (See State of Rajasthan v. B.K. Meena) In case of disciplinary enquiry the technical rules of evidence have no application. The doctrine of proof beyond doubt has no application. Preponderance of probabilities and some material on record are necessary to arrive at the conclusion whether or not the delinquent has committed misconduct.
17. While exercising jurisdiction under
Article 226 of the Constitution the High Court does not act as an appellate authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. Judicial review is not akin to adjudication of the case on merits as an appellate authority.
18. In B.C. Chaturvedi v. Union of India the scope of judicial review was indicated by stating that review by the court is of decision-making process and where the findings of the disciplinary authority are based on some evidence, the court or the tribunal cannot reappreciate the evidence and substitute its own finding.
19. As observed in R.S. Saini v. State of Punjab in paras 16 and 17 the scope of interference is rather limited and has to be exercised within the circumscribed limits."
(b) In (1995) 6 SCC 749 (B.C.Chaturvedi v. Union of India) in paragraph 18, it is held as follows:
"18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."
(c) In (2005) 7 SCC 764 (Ajit Kumar Nag v. G.M.(PJ), Indian Oil Corporation Ltd.) in paragraph 11, the Supreme Court held as follows:
"11. As far as acquittal of the appellant by a criminal court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused beyond reasonable doubt, he cannot be convicted by a court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of preponderance of probability. Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned order dismissing him from service deserves to be quashed and set aside."
(d) The Division Bench of this Court in the decision reported in 2005 (1) CTC 625 (The Management of Thiruvalluvar Transport Corporation v. S.Anthonysamy). In paragraphs 8 to 13 it is held as follows:
"8. It is well settled that on the same charges when there is a criminal proceeding as well as a domestic enquiry, merely because the workman is found innocent in the criminal case, it does not mean that he cannot be found guilty in the departmental/domestic enquiry vide Thenmozhi v. The Chairman & Managing Director, Neyveli Lignite Corporation in W.A.Nos.202 and 203 of 2005 dated 8.2.2005.
9. In the aforesaid Division Bench decision reliance had been placed on the Supreme Court decisions in Allahabad District Co-Operative Bank Ltd., v. Vidhya Varidh Mishra, 2004 (6) SCC 482 and Secretary, Ministry of Home Affairs and Another v. Tahir Ali Khan Tyagi, JT 2002 (Supp.1) SC 520.
10. In paragraph 12 of the decision in Allahabad District Co-Op. Bank Ltd. v. Vidhya Varidh Mishra (supra) the Supreme Court observed:-
"Mr.Rao submitted that the respondent had been exonerated by the criminal Court. He submitted that the termination was only on the basis of his conviction. He submitted that as his conviction is set aside, the Courts below were right in reinstating the respondent. We are unable to accede to this submission. The termination was pursuant to a disciplinary inquiry. It is settled law that in a disciplinary inquiry a conclusion different from that arrived at by a criminal Court, may be arrived at. The strict burden of proof required to establish guilt in a criminal Court is not required in disciplinary proceeding. The respondent has not claimed that the disciplinary proceedings were not conducted fairly. As the termination was based on findings of the Disciplinary Committee, the fact that the appellate Court exonerated the respondent was no consequence."
11. Similarly, in Secretary, Ministry of Homes Affairs and Another v. Tahir Ali Khan Tyagi (supra) the Supreme Court observed (vide paragraph -6):
"Departmental proceeding and criminal proceeding can run simultaneously and departmental proceeding can also be initiated even after acquittal in a criminal proceeding particularly when the standard of proof in a criminal proceeding is completely different from the standard of proof that is required to prove the delinquency of a government servant in a departmental proceeding, the former being one of proof beyond reasonable doubt, whereas the latter being one of preponderance of probability."
12. In view of the above, we are clearly of the opinion that the Labour Court proceeded on a wrong legal basis and wrongly ordered reinstatement of the workman concerned after finding that he was guilty of negligence.
13. In Divisional Controller, KSRTC (NWKRTC) v. A.T.Mane, JT 2004 (8) SC 103 the Supreme Court observed that "once a domestic tribunal based on evidence comes to a particular conclusion normally it is not open to the appellate tribunal or Courts to substitute their subjective opinion in the place of the one arrived at by the domestic tribunal". " (Emphasis Supplied)
12. The Labour Court gave a finding that at the time of the accident the bullock cart was coming in front of the bus in the same direction towards Coimbatore and while the lorry was coming from the opposite direction, the petitioner tried to overtake the bullock cart. Had there was no overtaking of the bus by the petitioner, the lorry would have hit the bullockcart and not dashed with the bus. The said fact having not been denied viz., the bullock cart coming in front of the bus and the bullock cart was not hit by the lorry, the petitioner's attempt to overtake the bullock cart in a narrow space is clearly established. The said finding given by the Labour Court based on the evidence adduced by the management, particularly Ex.M-3, cannot be found to be a perverse finding.
13. The Labour Court also found that if proper care was taken by the petitioner before overtaking the bullock cart, the collision with the lorry could have been averted. Thus, the petitioner has violated the provisions of the Motor Vehicle Rules with regard to the overtaking and due to the said accident, not only the lorry driver died, but also three other persons got serious injuries and also the property of the Transport Corporation was damaged. Thus, the violation of Clause 14(a) and 14(a)(d) of the certified Standing Order of the Corporation is clearly established.
14. The World Health Organisation in its report states that India has the maximum number of accidental deaths in the World. Speed is the main reason behind accidents. An increase in average speed is directly related to both likelihood of a crash occurring and to the severity of crash consequences. The World Health Organisation also suggested, driving licence should be given and renewed only after stringent tests, so that the road accidents can be minimised.
15. Bearing the above facts in mind as well as the past conduct of the petitioner as he suffered punishment of suspension, I am of the firm view that the orders passed by the disciplinary authority as well as the Labour Court are just and proper. As rightly held by the Labour Court, the Transport bus drivers are not only entrusted with the property of the Corporation, but also entrusted with the safety of the life of the passengers and they are expected to have utmost care and caution in their discharge of duties. Due to the rash and negligent driving of the vehicle number of accidents are taking place and therefore no leniency could be shown to the drivers, who are driving their vehicles in a rash and negligent manner.
No case is made out to interfere with the impugned award of the Labour court and the writ petition is dismissed. No costs.
vr To The Presiding Officer, Labour Court, Coimbatore