This writ petition has been filed against the award of the first respondent Labour Court, dated 15.12.2003, made in I.D.No.39 of 1997.
2. It has been stated that the second respondent was employed as a driver in the petitioner Corporation. On 1.5.1995, the bus bearing Registration No.TN-49-N-0411, driven by the second respondent had dashed against a van resulting in the death of four persons, who were travelling in the van and causing grievous injuries to five others. A charge sheet, dated 16.5.1995, had been issued to the second respondent. The second respondent had submitted his explanation, dated 24.5.1995. Since the explanation submitted by the second respondent was found to be unsatisfactory, a domestic enquiry was conducted, with regard to the charges levelled against the second respondent. The enquiry officer had submitted his report, dated 5.6.1995, holding the second respondent guilty of the charges levelled against him. A second show cause notice, dated 8.6.1995, had been issued to the second respondent, proposing to terminate him from service. After considering the explanation, dated 26.6.1995, submitted by the second respondent, he was dismissed from service by an order, dated 15.11.1995. Aggrieved by the said order of dismissal, the second respondent had raised an industrial dispute before the first respondent Labour Court in I.D.No.39 of 1997, after the conciliation efforts had failed.
3. The first respondent Labour Court had passed an award, dated 15.12.2003, reinstating the second respondent in service, with 50% backwages. The petitioner Corporation had preferred the present writ petition challenging the said award of the first respondent Labour Court, dated 15.12.2003, stating that the award of the Labour Court suffers from an error apparent on the face of the record and it is bad in law due to non-application of mind. It has also been stated that the first respondent Labour Court had erred in reinstating the second respondent in service holding that there was no direct evidence to prove the charges levelled against him. The Labour Court had failed to see that there was sufficient evidence to prove the charges against the second respondent. Ex.R-5 had clearly established that the accident had occurred only due to the rash and negligent driving of the second respondent, resulting in the death of four persons and causing grievous injuries to some others. The Labour Court had also erred in refusing to rely on Exs.R-9, R-10, R-12 and R-14, on the ground that they have not been corroborated by oral evidence, even though the charges against the second respondent had been proved in the domestic enquiry.
4. Even though no counter affidavit has been filed on behalf of the second respondent, the learned counsel appearing on behalf of the second respondent had submitted that the first respondent Labour Court was right in coming to the conclusion that the charges levelled against the second respondent had not been sufficiently proved by oral or documentary evidence. The first respondent Labour Court had come to the conclusion that the charge against the second respondent that he had caused the accident by his rash and negligent driving has no basis. In such circumstances, the petitioner Corporation was not right in imposing the punishment of dismissal from service on the second respondent.
5. The learned counsel for the petitioner had submitted that Ex.M-5 marked on behalf of the petitioner Management clearly shows that the accident had occurred due to the rash and negligent driving of the bus by the second respondent. Since the records speak for themselves, based on the principle of res ipsa loquitur there was no necessity for examining any eye-witness to corroborate the evidence available on record. Once it is clear that a major accident had occurred the burden shifts and it is for the second respondent, who was the driver of the bus at the time of the accident to show that the said accident had not occurred due to his rash and negligent driving. From the manner in which the accident had occurred it could be seen that the second respondent had caused the accident by driving the vehicle in a rash and negligent manner. Based on the preponderance of evidence and the probabilities of the case, the liability could be easily fixed on the second respondent for causing the accident.
6. It has also been stated that the second respondent had not challenged the vires of the enquiry. Therefore, it would not be open to the second respondent to question the procedures employed during the enquiry to elicit the truth regarding the accident. Since the first respondent Labour Court had not applied the principle of res ipsa loquitur in a proper manner to the facts of the present case, it had erred by arriving at the wrong conclusions in its award, dated 15.12.2003, made in I.D.No.39 of 1997.
7. The learned counsel appearing on behalf of the petitioner had relied on the following decisions in support of his contentions:
7.1. In Cholan Roadways Ltd. Vs. G.Thirugnanasambandam (2005(3) SCC 241), the Supreme Court had held that it is a well settled position of law that the principles enshrined in the Indian Evidence Act, 1872, have no application in a domestic enquiry. The standard of proof required in a domestic enquiry vis-a-vis a criminal trial is absolutely different. Whereas in the former `preponderance of probability' would suffice. However, in the latter, `proof beyond all reasonable doubt' is imperative. Res ipsa loquitur is a well-known principle and once the said doctrine is found to be applicable, the burden of proof would shift on the delinquent.
7.2. In Management of Thiruvalluvar Transport Corporation Ltd., Vs., K.Ayyavu (2003(3) L.L.N. 705), a Division Bench of this Court had confirmed the order passed by a learned Single Judge holding that by applying the principle of res ipsa loquitur it was clear that the accident ought to have occurred due to the rash and negligent driving of the driver of the vehicle. The burden is on him to prove that such an accident had happened due to other factors and that it was not due to his fault.
8. In the present case the second respondent ought to have proved that the accident had occurred due to other factors and that it had not occurred due to his rash and negligent driving. Since the second respondent had failed to discharge such burden of proof to exonerate himself from the charge framed against him it cannot be held that the first respondent Labour Court was right in passing an award in favour of the second respondent, directing the petitioner Management to reinstate him in service with 50% of the backwages.
9. Per contra the learned counsel appearing on behalf of the second respondent had submitted that even though the statement of one Arumugam, who was a passenger in the van that was involved in the accident, on 1.5.95, had been relied on by the Enquiry Officer, he had not been examined as a witness during the enquiry. Further, no wound certificate had been filed showing that he had been injured. Further, there is no explanation for the delay in filing the accident inspection report, marked as Ex.M-12.
10. After analysing the entire evidence both oral as well as documentary, the first respondent Labour Court had come to the conclusion that it could not be held that the accident had occurred due to the rash and negligent driving of the second respondent. Since the findings of the first respondent Labour Court is based on the available evidence, it cannot be held that it is a case of no evidence or that the findings of the Labour Court is perverse in nature. The principle of res ipsa loquitur cannot be applied to the present case to shift the burden on the second respondent to prove that the accident had not occurred due to his rash and negligent driving. It has been further stated that the second respondent had retired from service on his attaining the age of superannuation in the year 2004. He has been receiving the last drawn wages, in accordance with the application filed under
Section 17-B of the Industrial Disputes Act, 1947.
11. On considering the rival contentions and on a perusal of the records available, this Court is of the view that the petitioner has not shown sufficient cause or reason to come to the conclusion that the findings of the first respondent Labour Court is perverse or that it is based on no evidence. The first respondent Labour Court had analysed the various issues which had arisen for its consideration, based on the available evidence on record, both oral as well as documentary. Even if it is found that there were two ways of interpretation of the facts of the case, based on the evidence available, this Court would not venture to find fault with the findings of the Labour Court in choosing one of the options. Even if there are certain minor discrepancies with regard to the description of the accident or in analysing the accident sketch, marked as Ex.M-5, it cannot be said that it would have prejudiced the final conclusions arrived at by the Labour Court.
12. It is clear that the charges levelled against the second respondent had not been sufficiently proved during the domestic enquiry based on oral or documentary evidence. There was nothing on record to show that the second respondent had driven the vehicle in a rash and negligent manner in causing the accident that is said to have occurred, on 1.5.1995. The first respondent Labour Court had also noted that the second respondent had been acquitted in the criminal case filed against him, wherein it had been held that there was no negligence on his part and that the accident had occurred due to the negligent driving of the driver of the van, which had met with the accident on the fateful day.
13. The first respondent Labour Court had further found, from the sequence of events that had resulted in the accident, that the second respondent could not be found to have been driving the bus in a rash and negligent manner in causing the accident. In such circumstances, the first respondent Labour Court by its award, dated 15.12.2003, had ordered the reinstatement of the second respondent in service, along with 50% of the backwages, as there was some delay on the part of the second respondent in raising the industrial dispute. In such circumstances, the award of the Labour Court, dated 15.12.2003, made in I.D.No.39 of 1997, shall stand confirmed. Accordingly, the writ petition is dismissed. No costs.
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