The petitioner, while working as Driver in the respondent Transport Corporation was proceeded with in a criminal case under Section 304A I.P.C., before the Judicial Magistrate, Vanur, for having committed an accident due to which a cyclist was killed. He was also proceeded departmentally for the same incident and after enquiry, the charge was found proved, holding that on 10.5.1999, while the petitioner was driving the bus bearing registration No.TN-21-N-0460 owned by the respondent Corporation, in Route 188-A/B, in a rash and negligent manner, a cyclist died on the spot. Based on the enquiry report, an order of punishment was passed by the Transport Corporation on 9.1.2001 and his pay was reduced for five years from the basic pay of Rs.4,010 to Rs.3,410. It is also stated in the said order that the period of pay reduction will postpone his increments.
2. The petitioner filed appeal against the said order on 18.10.2001 and no order having been passed, he filed W.P.No.24408 of 2001 and on 14.12.2001 this Court directed the appellate authority to pass orders in the appeal pursuant to which on 13.2.2002 the appellate authority passed an order modifying the punishment for a period of four years instead of five years.
3. The above said orders are challenged in this writ petition by contending that the criminal case initiated against the petitioner in C.C.No.82 of 2000 in respect of the very same accident, the learned Judicial Magistrate, Vanur, by judgment dated 21.6.2001 acquitted the petitioner, that the punishment imposed against the petitioner is highly excessive, and that the petitioner was not punished for any delinquency earlier.
4. The learned counsel for the petitioner argued that the accident occurred on 10.5.1999 is the first accident committed by the petitioner and the Criminal Court having acquitted the petitioner, the respondents ought not to have imposed the punishment, which affect his pay and retirement benefits.
5. Since the learned counsel for the petitioner asserted that the subject matter of the accident is the only accident committed by the petitioner during his service, the entire file was directed to be produced by the learned counsel for the respondent, who in turn produced the file and from the file it is found that the petitioner had committed the following accidents:
(i) Fatal accident on 2.1.1986 and he was suspended on 2.1.1986 and on 30.7.1986 the period of suspension was considered as leave and punishment of postponement of increment for six months with cumulative effect was imposed.
(ii) Minor accident on 31.3.1989 for which he was imposed with the punishment of postponement of increment for three months with cumulative effect.
(iii) Major accident on 4.5.1994 and suspended on 17.5.1994 till 31.5.1994, for which the petitioner was imposed with the punishment of withholding of increment for three years with cumulative effect.
(iv) On 26.7.1989 committed minor accident and a sum of Rs.200/- was recovered towards cost of damage caused to the vehicle.
(v) On 25.11.1997 committed a major accident, for which suspended and he was imposed with the punishment of withholding of increment for two years with cumulative effect and a fine of Rs.772/- towards damages caused to the vehicle.
Apart from the above, there are also punishments for various delinquencies totally for 13 times.
6. From the above narrated facts which is recorded in the file, it is evident that even in the year 1986 the petitioner committed fatal accident and he was leniently dealt with. In the year 1994 and 1997 also the petitioner committed major accidents and the subject matter of the accident committed by the petitioner on 10.5.1999 is the 4th major accident in which one cyclist was killed on the spot due to the rash and negligent driving of the petitioner.
7. On perusal of the criminal court Judgment made in C.C.No.82 of 2000 dated 21.6.2001 it is clear that the petitioner was acquitted by giving benefit of doubt and not on merits. It is the specific case of the petitioner that the accident was in fact committed, however he alone is not fully responsible for the accident.
8. Taking note of the over all view of the matter the respondent Transport Corporation imposed only lenient punishment of reduction in pay for five years, which was modified in the appeal for four years.
9. Whether acquittal in criminal case has got any bearing in the departmental proceedings, was considered in the following cases:
(a) In (2003) 3 SCC 583 (Popli v. Canara Bank), 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 (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."
(c) 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 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)
10. The issue as to how the drivers committing accidents shall be dealt with, is considered in the decision reported in 2004 (4) LLJ Supp 362 (M.Chella Thambi v. Presiding Officer, Labour Court, Madurai and Another) and in paragraph 8 it is held thus, "8. In so far as such conduct of the drivers of a public transport corporation are concerned, time and again, it has been repeatedly held that the doctrine of res ipsa loquitur would apply, that is, the accident speaks for itself. In other words, when it is in the exclusive knowledge of the driver, who caused the accident, it is but proper that he discharges the onus, namely, that the accident did not happen due to his rash and negligent driving, but due to various other reasons not attributable to him. In fact, in the Division Bench judgment cited by the learned counsel for the second respondent, reference has been made to three decisions of Hon'ble Supreme Court reported in Pushpabai Parshottam Udesh v. Ranjit Ginning and Pressing Company Private Ltd., AIR 1977 SC 1735 : 1977 (2) SCC 745; State of Karnataka v. Krishna, AIR 1987 SC 861; 1987 (1) SCC 538 and Balbir Singh v. State of Haryana, AIR 2000 SC 1677 : 2000 (5) SCC 82. In the judgment reported in State of Karnataka v. Krishna (supra), the Hon'ble Supreme Court has cautioned to the effect that where a driver of a public transport Corporation is found to have caused a fatal accident, the same has to be looked at with certain amount of seriousness, since the public safety and convenience is paramount, the Court should not fall a prey to the plea of misplaced sympathy. The Hon'ble Supreme Court has also held that award of punishment has to be weighed keeping in view the interest of the public at large and the travelling passengers and the disciplinary actions are taken more as preventive measure so that it may work as an effective warning against other drivers to behave befitting their duties and maintaining due discipline in the establishment." (Emphasis Supplied)
11. The scope of judicial review in disciplinary matters is also considered by the Supreme Court in (1995) 6 SCC 749 (B.C.Chaturvedi v. Union of India) and in paragraph 18, the Supreme Court 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."
The same view is reiterated in the subsequent decisions reported in (2005) 7 SCC 338 (V. Ramana v. A.P. SRTC) and (2009) 8 SCC 310 (State of U.P. v. Manmohan Nath Sinha).
12. Applying the principles laid down in the above referred judgments of the Supreme Court, I hold, no case is made out to interfere with the punishment imposed on the petitioner. Consequently the writ petition is dismissed. There will be no order as to costs.