The prayer in this writ petition is to quash the award made in I.D.No.317 of 1998, dated 24.11.2000, on the file of the second respondent and for a direction to the first respondent to pay backwages and other attendant benefits from 31.5.1996, gratuity and provident fund till the petitioner attains superannuation on 31.7.2001.
2. The case of the petitioner is that he served in the Indian Army as driver and as an ex-serviceman, he got appointed as driver in the Tamil Nadu State Transport Corporation on 6.7.1985. On 27.8.1995, while the petitioner was driving the bus bearing registration No.TCB.3486 in route No.T-15B from Ambur to Vaniambadi, one person tried to board the moving bus and fell down and later succumbed to injuries in the hospital. The petitioner was issued with charge memo dated 21.9.1995, containing three charges. The petitioner submitted explanation and denied the charges. The said explanation having been found not satisfactory, domestic enquiry was conducted and all the charges were found proved. Based on the enquiry report, the first respondent, by order dated 25.5.1996, dismissed the petitioner from service. Consequently petitioner raised an industrial dispute in I.D.No.317 of 1998 before the Labour Court, Vellore. The said industrial dispute was dismissed by the second respondent-Labour Court, against which this writ petition is filed.
3. The contentions raised in the writ petition are that there was a municipal lorry clearing debries and wastes at the entrance of the bus stand and therefore the bus could not enter into the bus stand; that the deceased was in a drunken state, when he boarded the bus through the front entrance and fell down, and due to the said act, he contributed to the accident; that the management failed to examine any eye witness, including the conductor to prove the charge and the only witness examined was the person who came to the accident spot half an hour after the occurrence and therefore his evidence can only be a hearsay evidence; that the Enquiry Officer has not considered the circumstance under which the bus was unable to enter the bus stand; that the petitioner was acquitted in the criminal case; and that, the discretion vested with the Labour Court under
Section 11A of the Industrial Disputes Act, 1947, has not been exercised.
4. The first respondent filed counter affidavit by stating that while the petitioner was working as driver in the respondent Corporation, on 27.8.1995 he drove the bus bearing registration No.TCB 3486 in route No.T-15B from Vaniambadi to Ambur, rashly and negligently and caused the death of an intending passenger, who attempted to enter the bus through the front entrance and hence charge memo dated 21.9.1995 was issued. The explanation submitted by the petitioner having been found not satisfactory, domestic enquiry was conducted. The petitioner fully utilised the opportunity to cross-examine the management witnesses. The enquiry report was submitted on 7.3.1996 holding that all the three charges were proved. The enquiry report was furnished to the petitioner, who also submitted his remarks. The said remarks were considered and the enquiry report was accepted. Considering the fatal accidents committed by the petitioner earlier, the respondent passed the final order on 25.5.1996 and dismissed the petitioner from service.
5. Before the Labour Court, the petitioner marked Exs.W-1 to W-3 and on behalf of the management, Exs.M-1 to M-9 were marked. After considering the said documentary evidence and oral evidence, the Labour Court confirmed the dismissal order. Labour Court found that insofar as the contention that the municipal lorry was parked at the entrance of the bus stand, the same was not proved by the petitioner side witness, who has not spoken about the alleged parking of the vehicle. The Labour Court observed that, had the petitioner observed the rules and regulations and parked the vehicle inside the bus stand, he could have avoided the fatal accident. The Labour Court also considered the criminal court judgment and by considering the previous fatal accidents committed by the petitioner, affirmed the order of dismissal, by taking note of the life of the passengers and public.
6. The learned counsel appearing for the petitioner submitted that the defence witness has clearly spoken about the accident that the deceased person was in drunken state while he tried to enter the bus through the front entrance and that the municipal lorry was parked at the entrance of thebus stand. Non-consideration of the above factors by the Enquiry Officer as well as the Labour Court has vitiated the proceedings. The learned counsel also submitted that the Labour Court shifted the burden on the petitioner to prove his innocence as it is the duty of the prosecution/department to prove the charges against the delinquent officer. The learned counsel further submitted that the failure to exercise the discretion given to the Labour Court under
section 11A of the Industrial Disputes Act,1947, to consider whether the punishment is proportionate, has caused great prejudice to the petitioner.
7. The learned counsel cited the judgments of the Division Bench of this Court reported in 2007 (2) LLJ 285 (R.Santhanam v. Madura Coats Ltd., Tuticorin), Division Bench of Bombay High Court decision reported in 1992 (1) LLJ 110 (Krishna Gopal Vaity v. M/s.Collins & Co. and Others), Division Bench of Punjab & Haryana High Court reported in 1998 (2) LLJ 294 (Mangat Rai v. Punjab Road Transport Corporation & Another) and the decision of the learned single Judge of this Court reported in 1992 (1) LLJ 384 (Cork Industries, Madras v. I Additional Labour Court, Madras & Another) in support of his contentions and contended that
Section 11A of the Industrial Disputes Act, 1947, empowers the Labour Court to interfere with the punishment awarded against the employee.
8. The learned counsel for the first respondent-Transport Corporation on the other hand submitted that the fatal accident committed by the petitioner while driving the Transport Corporation Bus was proved in the enquiry before the Enquiry Officer. The petitioner having taken a defence that the victim was intoxicated, nothing prevented the petitioner to mark the post mortem report of the deceased to prove his stand. It is also contended by the learned counsel for the first respondent that the petitioner in his reply to the charge memo has not stated about the parking of lorry blocking the entrance of the bus stand, which prevented the entry of the bus inside the bus stand.
9. The learned counsel cited the Judgments of the Supreme Court reported in (2005) 3 SCC 241 (Cholan Roadways Ltd. v. G.Thirugnanasambandam); 2003 (3) LLN 713 (K.Ayyavu v. Management of Thiruvalluvar Transport Corporation Ltd.); 2007 (2) SLR 441 (Managing Director v. Devidas Manikrao Sadananda); (1999) 8 SCC 90 : 1999 (2) LLJ 1415 (R.S.Saini v. State of Punjab and Others); 2005 (1) CTC 625 (The Management of Thiruvalluvar Transport Corporation v. S.Anthonysamy), and the decision of the single Judge of this Court reported in 2004 (4) LLJ (Supp) 362 (M.Chella Thambi v. Presiding Officer, Labour Court, Madurai) and 2003 (3) LLN 705 (Tiruvalluvar Transport Corporation Ltd. v. K.Ayyavu) in support of his contentions.
10. I have considered the rival submissions made by the learned counsel for the petitioner as well as the standing Counsel for the first respondent.
11. The charges levelled against the petitioner are as follows:
"1. Negligent in duty by not entering into Ambur bus stand and reversed the bus at the entrance itself and allowed the passengers to alight the bus and then drove the bus towards Vaniambadi.
2. Due to the negligence in duty, a person who tried to board the bus through the front entrance, fell down and the bus ran over, thereby caused fracture to the said person, who died at Hospital.
3. Failed to follow the rules of the Corporation by not stopping the bus for the passengers to board the bus and get down from the bus."
The petitioner was directed to submit his explanation to the said charges and in the explanation the petitioner had stated that at about 9.30 a.m. on 27.8.1995, he drove the bus to the bus stand amd when it was taken out of the bus stand, one male passenger tried to enter into the bus through the front door, who was under the influence of alcohol and fell down and he was ran over by the front wheel of the bus. Immediately, the said injured person was taken to the hospital by engaging an auto and after two hours he died.
12. In the statement given by the petitioner about the accident on 27.8.1995, nowhere it is stated that the entrance of the bus stand was blocked by the municipal lorry to collect the garbages. The only reason given was that the deceased was in drunken state and he tried to enter into the bus through the front door and he fell down.
13. The Conductor of the bus also gave a statement on 27.8.1995 about the said accident and stated that the bus entered into the bus stand and after alighting the passengers, it came out from the bus stand and at that time, the driver applied sudden brake and he noted that near the front left wheel one male person was lying and that immediately he arranged for one auto and he was taken to the hospital and there was smell of alcohol.
14. A criminal case was registered against the petitioner under
section 304 IPC in crime No.585 of 1995 and in the criminal case, petitioner was acquitted. Domestic enquiry was conducted and the Enquiry Officer found that the charges levelled against the petitioner are proved. The Enquiry Officer held that even if the passenger tried to enter through the front door in intoxicated state, the petitioner could have stopped the bus and taken the passenger inside the bus. Insofar as the contention that the municipal lorry was parked in front of the entrance for collecting garbages is concerned, the Enquiry Officer gave finding that no such plea was made in the statement given at the first instance. The statement given by the Conductor also do not contain such a statement. The Enquiry Officer disbelieved the statement of the defence witness and held that the petitioner ought to have filed post mortem report to prove that the deceased was under the influence of alcohol. Based on the said reasons the Enquiry Officer found that the charges are proved.
15. The Labour Court disbelieved the version of the petitioner about the contributory negligence on the part of the deceased, since the petitioner failed to prove that the deceased person was under the influence of alcohol. Insofar as the contention of the petitioner that there was a lorry parked in front of the gate of the bus stand, was also disbelieved on the ground that no such statement was made by the petitioner at the first instance. Taking note of the earlier fatal accidents committed by the petitioner the Labour Court refused to exercise its discretionary jurisdiction under
Section 11A of the Industrial Disputes Act, 1947.
16. The plea that the deceased person was under the influence of alcohol, is stated by the petitioner as well as the conductor of the bus and also by the defence witness. When that being the case, the plea raised by the petitioner that there is contributory negligence on the part of the injured/deceased, could have been verified by producing the post mortem report of the deceased person. The report would have been filed before the Criminal Court when the petitioner was an accused. The management as well as the Labour Court blamed the petitioner for not producing the post mortem certificate of the deceased. Since the petitioner had taken the plea of drunkenness of the deceased for his falling down from the bus, it is for the petitioner to prove the same to establish the same.
17. The Enquiry Officer has given a finding that due to the rash and negligent driving of the petitioner the accident had occurred. The petitioner also failed to note the movement of the deceased in getting into the bus through the front door, which was within the vicinity of the petitioner, if the petitioner was careful enough. Failure to prove the fact about the drunkenness of the deceased by the petitioner by producing the post mortem report or medical evidence, is stated as the reason to disbelieve the defence version of the petitioner. The management accepted the findings of the Enquiry Officer and also considered the past conduct, including the earlier punishment of withholding of increment for two years by order dated 2.8.1994 for having caused the death of another person on 14.4.1994. Before imposing the said punishment the petitioner was given show cause notice, namely the proposed penalty.
18. The Labour Court concurred with the findings of the Enquiry Officer with regard to the non-production of the medical opinion of the deceased to prove that he was under the influence of alcohol. The Labour Court also found that the petitioner could have produced the available record from the police viz., post mortem certificate and the report of the public analyst. The acquittal in the criminal Court cannot be given much credit as the proof required in the criminal case is beyond reasonable doubt. Considering the preponderance of evidence against the petitioner for his rash and negligent driving and the petitioner having failed to prove that the deceased contributed for the negligence, the Labour Court gave a finding and upheld the order of dismissal.
19. (a) In the decision reported in (1999) 8 SCC 90 : 1999 (2) LLJ 1415 (R.S.Saini v. State of Punjab) the Supreme Court considered the scope of the writ Court in interfering with the findings of the Enquiry Officer. It is held in that case that the High Court cannot review the evidence and arrive at its own independent finding. Paragraphs 16 and 17 of the Judgment (in SCC) read as follows:
"16. .........we will have to bear in mind the rule that the court while exercising writ jurisdiction will not reverse a finding of the inquiring authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably support the conclusion of the inquiring authority, it is not the function of the court to review the evidence and to arrive at its own independent finding. The inquiring authority is the sole judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the court in writ proceedings.
17. A narration of the charges and the reasons of the inquiring authority for accepting the charges, as seen from the records, shows that the inquiring authority has based its conclusions on materials available on record after considering the defence put forth by the appellant and these decisions, in our opinion, have been taken in a reasonable manner and objectively. The conclusion arrived at by the inquiring authority cannot be termed as either being perverse or not based on any material nor is it a case where there has been any non-application of mind on the part of the inquiring authority. Likewise, the High Court has looked into the material based on which the enquiry officer has come to the conclusion, within the limited scope available to it under
Article 226 of the Constitution and we do not find any fault with the findings of the High Court in this regard." (Emphasis Supplied)
(b) Similar issue as to whether it is the duty of the driver of the Transport Corporation to prove, if the accident not happened due to the rash and negligent driving, was considered by this Court in the judgment 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)
(c) The scope of interference in the domestic enquiry findings and the Labour Court decision and the effect of acquittal in the criminal case was again 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."
(d) 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."
(e) 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."
(f) 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)
(g) 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." "
(h) 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."
(i) 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).
20. 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."
21. The decision cited by the learned counsel for the petitioner reported in 1998 (2) LLJ 294 (SC) (Mangat Rai v. Punjab Road Transport Corporation & Another), 1992 (1) LLJ 110 (SC) (Krishna Gopal Vaity v. M/s.Collins & Co & Others) are in respect of the powers conferred on the Labour Court to reappreciate the evidence recorded by the Enquiry Officer and also to interfere with the quantum of punishment under
Section 11A of the Industrial Disputes Act, 1947. The Division Bench Judgment reported in 2007 (2) LLJ 285 (R.Santhanam v. Madura Coats Ltd., Tuticorin) is in respect of confirming the award passed by the Labour Court under
Section 11A, where the Labour Court exercised its discretion and modified the punishment of dismissal and ordered reinstatement without backwages, taking note of 12 years of unblemished record of service. In the decision reported in 1992 (1) LLJ 384 (Cork Industries, Madras v. I Additional Labour Court, Madras & Another) again this Court considered the power of the Labour Court to differ with the findings of the misconduct, if proper case is made out and to interfere with the punishment, if it was found disproportionate.
22. Here in this case, the Enquiry Officer's finding was considered as just and proper by the Labour Court. The petitioner's past conduct was also considered by the Disciplinary Authority while imposing the punishment. The Labour Court also considered the past conduct and refused to exercise its discretion even under
Section 11A of the Industrial Disputes Act, 1947, in interfering with the punishment imposed. There is no perversity in the said order. In view of the said findings, I am of the firm view that the above referred decisions cited by the learned counsel for the petitioner are not applicable to the facts of this case.
There is no merit in the writ petition and the writ petition is dismissed. No costs.
vr To
1. The Managing Director, Tamil Nadu State Transport Corporation (Villupuram Division-II) Ltd., Vellore 632009.
2. The Presiding Officer, Labour Court, Vellore