IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:09.11.2010
CORAM:
THE HON BLE MR.JUSTICE P.JYOTHIMANI
WRIT PETITION NO.47086 OF 2002
..
The Management
Pallavan Transport Corporation
Now renamed as Metropolitan
Transport Corporation
(Chennai Division I) Ltd.,
Pallavan Salai
Chennai 2. .. Petitioner
Vs.
1.Moorthy
2.The Presiding Officer
Ist Additional Labour Court
Chennai. .. Respondents
Writ Petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorari as stated therein.
For petitioner : Mr.G.Muniratnam
For respondents: Mr.V.Ajoy Khose for R.1
..
ORDER
The writ petition is filed by the management of Pallavan Transport Corporation, which is now termed as Metropolitan Transport Corporation, Chennai Division , challenging the award of the Labour Court dated 15.4.2002 made in I.D.No.574 of 1997, by which the Labour Court in the dispute raised by the first respondent, by concluding that the Enquiry Officer s report is perverse, directed the reinstatement of the first respondent in the petitioner Corporation with continuity of service and benefit of backwages and also all other service benefits.
2. According to the first respondent, he was appointed as a Driver in the petitioner Corporation on 14.4.1990 and when he was driving a bus belonging to the petitioner Corporation in the route No.54A from Saidapet to Thirunindravur, the bus involved in the accident with a car coming from the opposite direction, in which three persons travelling in the car died.
a) According to the first respondent, he was moving the vehicle on the left side when the ambassador car came on the opposite side rashly, of course, on its left side and on seeing the said car, the first respondent turned the bus towards left side further, but the car turning to its right side, dashed the bus on the right side and due to the accident, the bus without turning to left side, went to right side due to right pulling, causing the fatal accident.
b) However, on the ground that it was due to the rash and negligent driving of the first respondent the accident took place, the petitioner management issued a charge memo on 2.5.1990, for which the first respondent submitted his explanation. The petitioner directed for a domestic enquiry and the Enquiry Officer submitted his report finding the petitioner as guilty, based on which a second show-cause notice was issued on 8.9.1990 to the first respondent and after considering the explanation submitted by the first respondent, the petitioner terminated the service of the first respondent in the order dated 26.10.1990.
c) Since there were certain other disputes pending, the petitioner filed an approval petition under section 33(2)(b) of the Industrial Disputes Act,1948 in A.P.No.129 of 1990 and approval was granted on 22.8.1991 and thereafter, the first respondent raised industrial dispute in 1997, contending inter alia that the domestic enquiry was not properly conducted and the Enquiry Officer s report was perverse.
d) The said industrial dispute was contested by the petitioner by filing counter stating that the domestic enquiry was conducted by giving sufficient opportunity to the first respondent and all documents relied upon were furnished to the first respondent beforehand and opportunity was given to cross-examine the witnesses produced on the side of the management and therefore, the domestic enquiry was done in accordance with the principles of natural justice and based on the enquiry, the Enquiry Officer found that the charge framed against the first respondent came to be proved and it was thereafter, the second show-cause notice dated 8.9.1990 was given, for which the first respondent gave his explanation on 30.9.1990 and since the explanation was not satisfactory, the first respondent was terminated on 26.10.1990 and approval petition was also ordered and in the approval petition when notice was given to the first respondent/workman, he did not appear.
e) It was also the case of the petitioner management before the Labour Court that even though the approval was granted on 22.8.1991, the first respondent has chose to raise industrial dispute after six years. It was also denied that the bus driven by the first respondent was not having road worthiness and on the other hand, the bus was 100% fit to ply. It was stated that even during the domestic enquiry the first respondent did not raise the issue that the bus was not road worthy. It was also stated by the petitioner management that the accident itself proved the seriousness of it and therefore, on the basis of Res ipsa loquitur, the industrial dispute must be dismissed.
3. Before the Labour Court, on behalf of the workman, the first respondent/workman was examined as witness while the petitioner management did not examine any witness and on behalf of the first respondent workman, 15 documents were marked as Exs.W1 to W15 and on behalf of the petitioner management, 19 documents were marked as Exs.M1 to M19 and the counter filed in MCOP.No.520 of 1991 before Sub Court, Chengalpattu by the petitioner also marked as Court document, Ex.C1.
4. Having found that the first respondent/driver denied the charge and the explanation submitted by him was not satisfactory, the petitioner employer directed for domestic enquiry. The proceedings in the domestic enquiry were marked as Ex.W4 and Ex.M12 and the Enquiry Officer s report submitted to the petitioner management was marked as Ex.W5 and Ex.M13. The order of termination dated 26.10.1990 was marked as Ex.W8 and Ex.M16 and the order passed by the appellate authority against the termination order was marked as Ex.M19. The accident report filed by the Transport Inspector was marked as Ex.M1 and according to the petitioner management, the report says clearly that the petitioner, while driving the bus, went to the right side beyond the centre line and that itself is sufficient to prove the negligence. The Motor Vehicles Inspector in his report marked as Ex.M4 dated 14.4.1990, stated that the accident was not due to the mechanical failure. The Labour Court found that the first respondent driver, during the domestic enquiry requested the Branch Manager of the petitioner management on 12.5.1990 (Ex.M7) to furnish certain documents. Even though it was the case of the petitioner management that such documents were furnished, the Labour Court found that there is no evidence to show that those documents were furnished to the first respondent.
5. In the claim petition filed by the driver of the ambassador car for compensation in MCOP No.520 of 1991, the petitioner in the counter affidavit filed before the Motor Accidents Claims Tribunal marked as Ex.C1, has stated that the accident did not take place due to the negligence of the first respondent driver and that the first respondent driver followed the rules, while the driver of ambassador car ought to have avoided the accident. It was also denied therein that the driver of car was having any licence. Therefore, the Labour Court found that the petitioner management having taken a stand before the Tribunal that the first respondent driver was not negligent in driving, attempted to take a different stand in the disciplinary proceedings to the effect that the first respondent was negligent, rejected the case of the petitioner.
6. It was also found that in the domestic enquiry one Section Officer, Thiru Govindarajan was examined as witness on behalf of the employer, who was not an eye witness for the accident and further, no public or passenger was examined as witnesses in the domestic enquiry or no statement was obtained from such persons except a statement obtained from the accident section Inspector. The Labour Court accepted the contention raised on behalf of the first respondent driver that he was not responsible for the accident, especially when the claim of the first respondent has not been disproved by any eye witness and also taking note of the fact that the complaint given by the accident section Inspector along with his report and sketch and also his oral evidence are all not legally acceptable and his evidence was only based on his own assumptions and presumptions.
7. The Labour Court held that the evidence of the said management witness before the Enquiry Officer in the domestic enquiry can only be taken for the purpose of deciding that there was an accident and the same cannot be used to decide as to whether the first respondent driver was negligent. The Labour Court has also found that in the domestic enquiry the first respondent driver examined one of the passengers of the bus who has stated that in spite of the brake applied by the first respondent driver, the bus was pulled on the right side. The said passenger has also stated that even though the ambassador car on the other side was coming on its left side with great speed, it turned to its right side while reaching near the bus and caused the accident and the Labour Court therefore found that the driver of the car was only responsible for causing the accident.
8. The Labour Court has also found that in the domestic enquiry, the first respondent driver was not cross-examined and therefore, it should be taken that his evidence is uncontroverted evidence and in spite of these, the Enquiry Officer found that the first respondent was responsible for the accident which was found to be perverse. The Labour Court has also found that even though the charge against the first respondent driver itself was not that he was driving with rash speed, when the charge states that the first respondent has violated the Motor Vehicles Rules, there is no specific conduct imputed on him. However, the Enquiry Officer has raised an issue by himself as to whether the first respondent driver has driven the bus with great speed and found that he has driven the bus with great speed, which is also found to be a perverse by the Labour Court.
9. The Labour Court has further found that as per the judgment of criminal Court marked as Ex.W10, the first respondent driver was acquitted on the basis that the charge framed against him was not proved and if really the petitioner management found that there are sufficient evidence to show that the first respondent driver committed the offence, it should have taken appropriate steps to prove the same, but, the criminal Court found that there was no evidence against the first respondent and inasmuch as the version of the first respondent driver remained uncontroverted, since he was not cross-examined by the petitioner management, the evidence of the first respondent has to be taken as such and on that basis, the Labour Court found that there can be no other option but to say that the report of the Enquiry Officer is perverse.
10. The Labour Court has further found that even in the order of removal passed by the petitioner management marked as Ex.W8 dated 26.10.1990, the management admitted that the first respondent had never involved in any accident previously. However, the petitioner management chose to state in the counter filed before the Labour Court that the first respondent had involved in many accidents and he was punished, without filing any proof or particulars. It was, considering the entire situation as stated above, the Labour Court found that there was no basis for the Enquiry Officer s report and the same was found to be perverse and the order of termination passed by the petitioner management based on such report of the Enquiry Officer was set aside and award passed, as stated above.
11. Mr.G.Muniratnam, learned counsel appearing for the petitioner management would vehemently contend that when the Motor Vehicles Inspector s report along with the sketch marked as Ex.M5 was before the Labour Court and the contents of the same also show that the first respondent, while driving the bus, drove the bus on the right side of the road beyond yellow line which is against the Rules and therefore, on the principle of res ipsa loquitur, the contents are to be taken as such and therefore, according to him, the management had no further obligation to provide any other document. He would rely upon the judgments in Anna Transport Corporation Ltd., Salem vs. The Presiding Officer, Labour Court, Coimbatore and another [2000 (1) MLJ 664] and Tamil Nadu State Transport Corporation (Coimbatore Division I) Ltd., 37, Mettupalayam Road, Coimbatore vs. V.K.Murugan and another [2010 (1) MLJ 749], apart from two unreported judgments to substantiate his contention in this regard.
a) He would also submit that the Labour Court has not discussed anything about the documents filed in the domestic enquiry in the proper manner, especially when it exceeded its jurisdiction by holding that the Enquiry Officer s findings are perverse. He would rely upon the judgment in Lalla Ram vs. Management of D.C.M. Chemical Works Ltd., [1978 (1) LLJ 507]. It is his further submission that when prima facie it was found against the first respondent in the approval petition filed before the Labour Court under section 33(2)(b) by the petitioner management and that has become final, having not been challenged by the first respondent driver, the same is binding on the first respondent. He would rely upon the judgment in Cholan Roadway Ltd., vs. G.Thirugnanasambandam [2005 (1) LLJ 569].
b) It is his submission that what was given by the first respondent driver before the Enquiry Officer was only a statement and that cannot be treated as evidence and therefore, it is not proper for the Labour Court to comment that the statement of the first respondent driver is uncontroverted holding that the finding of the Enquiry Officer is perverse. He would rely upon the judgment in Neeta Kaplish vs. Presiding Officer, Labour Court and another [1991 (1) LLJ 275 (SC)].
c) His submission is that in the absence of any finding by the Labour Court regarding the fairness of enquiry, it is improper on the part of the Labour Court to set aside the enquiry report based on the documents filed by the workman. It is his further submission that by setting aside the order of termination, there can be no automatic reinstatement and the Labour Court should have given a finding as to why the first respondent driver kept quiet for a period of six years for raising the industrial dispute.
12. On the other hand, it is the contention of Mr.V.Ajoy Khose, learned counsel appearing for the first respondent driver that it is not correct to state that the approval granted under section 33(2)(b) of the I.D.Act has not been challenged and the workman has got a right to challenge the same in the Industrial Dispute raised by him and in fact, he has challenged the same.
a) As far as the delay of six years is concerned, the learned counsel would submit that originally the approval petition under section 33(2)(b) was decided ex parte on 27.1.1992 and thereafter, the application was restored and decided on merit on 27.1.1997 and immediately in February, 1997, the first respondent raised the industrial dispute and there was absolutely no delay.
b) It is his submission that the principle of res ipso loquitur would apply only in cases where a party relying upon a document pleads and proves the same and on the facts of the present case, the petitioner management never pleaded or proved the correctness of the Motor Vehicles Inspector s report and sketch.
d) It is his submission that inasmuch as it is the duty of the employer to prove the case against the first respondent driver in the disciplinary proceedings and the same has not been proved, it is not merely the prima facie case which is the requirement under section 33(2)(b) of the Industrial Disputes Act.
e) It is his submission that whatever documents the first respondent workman called for were the documents of the employer. It is his submission that when eye witnesses were examined in the domestic enquiry, they were not considered by the Enquiry Officer and therefore, the Labour Court held that the finding of the Enquiry Officer as perverse. On the other hand, the management witness M.W.1 was not an eye-witness who has been relied upon by the Enquiry Officer in the domestic enquiry for concluding against the first respondent driver and therefore, according to the learned counsel for the workman, the finding of the Labour Court that the Enquiry Officer s finding is perverse is within its jurisdiction. The Labour Court has passed the award only based on the domestic enquiry and the Labour Court has not traversed beyond that.
f) It is his submission that when the charge framed by the employer against the workman itself is negligence, the Enquiry Officer s finding of rashness against the first respondent driver is beyond the charge memo and that is why, the Labour Court found that the said finding is perverse. In the absence of eye-witness in the domestic enquiry, there was absolutely no reason for the Enquiry Officer to give the finding of rashness, especially when that was not the charge framed by the employer and therefore, according to the learned counsel, the Enquiry Officer has given unwarranted finding of rashness only to bring the issue within the folder of res ipsa loquitur.
g) It is his submission that the evidence given by the first respondent before the Enquiry Officer cannot be stated as a mere statement as if it was given outside and such statement having been made before the Enquiry Officer, if the same remains uncontroverted by cross-examination, the statement is a relevant one to be considered. Therefore, according to him, the Labour Court has correctly found that the evidence of workman before the Enquiry Officer remains uncontroverted and that has to be taken as an acceptable evidence.
h) It is also his submission that the approval granted under section 33(2)(b) of the I.D.Act is on different footing, where permission is granted on prima facie case and the nature of proof being prima facie which is required in such case under section 33(2)(b) cannot be equated with the nature of proof required in the disciplinary proceedings resulting in major punishment. He would rely upon the judgments in Tamil Nadu State Transport Corporation (Kumbakonam Division II) Ltd., rep. By its Managing Director, Tiruchirappalli and another vs. P.Karuppusamy [2008 (1) LLN 922 (DB)], Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd., vs. Ram Gopal Sharma and others [(2002) 2 SCC 244] and Cholan Roadway Ltd., vs. G.Thirugnanasambandam [2005 (1) LLJ 569].
i) It is his submission that the first respondent has attained the age of superannuation on 24.11.2002 and by virtue of the order of termination of the year 1990, which stood set aside by the Labour Court, the first respondent suffered without employment for nearly 12 years and therefore, the award of the Labour Court directing reinstatement with backwages is perfectly in order.
13. I have heard the learned counsel for the petitioner as well as the first respondent and given my anxious thought to the issues involved in this case.
14. A reference to the petition filed by the first respondent driver raising industrial dispute, no doubt, shows that the employee has taken a stand that the domestic enquiry was not conducted in a fair and proper manner. In fact, he has also taken the stand that some of the documents have not been furnished and the principles of natural justice have not been complied with. In the counter filed by the petitioner management before the Labour Court, the petitioner has taken a categorical stand that the enquiry was conducted by giving adequate opportunity to the parties by complying with the principles of natural justice, however, the petitioner has, no doubt, raised a point that the petitioner may be allowed to substantiate the action taken against the first respondent by adducing fresh evidence in the event of Labour Court holding that the Enquiry Officer has not conducted the enquiry in a fair and proper manner.
15. Section 11A of the Industrial Disputes Act, which is as follows:
" 11A. Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen.-
Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require:
Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter.]"
enables the Labour Court to give relief to the workman like, reinstatement, modification of punishment, etc., however, as per the proviso, the Labour Court shall only rely on the materials available on record which means the enquiry report and not any other fresh evidence.
16. It is the settled law that, in cases where the Labour Court or the Industrial Tribunal relies upon the Enquiry Officer s report exclusively for the purpose of giving relief to the workman as per the proviso, there is no question of reliance on any other fresh evidence. It is only on specific finding by the Labour Court that the domestic enquiry was not conducted in a fair and proper manner and there has been a violation of the principles of natural justice, then the Labour Court has to ignore the Enquiry Officer s report in which event it is certainly the duty of the Labour Court to call upon the employer to prove that the enquiry has been conducted in a proper manner by adducing fresh evidence.
17. Therefore, section 11A of the I.D.Act, which has made a great inroad into the concept of Labour legislation which was originally the domain of the employer to decide the punishment in the enquiry, by shifting the same to the Court to decide otherwise regarding the punishment even while accepting the Enquiry Officer s report. Therefore, it is an extension of the beneficial legislation given in favour of the workmen by transferring the power to the judicial authority for giving relief to workmen, of course, based on the Enquiry Officer s report. In such event, as it is stated in the proviso, no fresh evidence shall be adduced. But, on the other hand, if the Labour Court comes to a conclusion that the Enquiry Officer s report is not fair and proper in the sense that opportunity has not been given, etc., the Labour Court gives one more opportunity to the employer to prove that the enquiry was conducted in a proper manner and thereafter, decides the matter. In those circumstances, fresh evidence is adduced. This has been an established law throughout in India, as the Courts have held as above, while deciding about the term, material on record found in section 11A of the Industrial Disputes Act. That was the view expressed by the Hon ble Apex Court in Neeta Kaplish vs. Presiding Officer, Labour Court and another [1999 (1) LLJ 275], where it was held as under:
" 27. The record pertaining to the domestic enquiry would not constitute fresh evidence as those proceedings have already been found by the Labour Court to be defective. Such record would also not constitute material on record , as contended by the counsel for the respondent, within the meaning of Section 11-A as the enquiry proceedings on being found to be bad, have to be ignored altogether. The proceedings of the domestic enquiry could be, and were in fact, relied upon by the Management for the limited purpose of showing at the preliminary stage that the action taken against the appellant was just and proper and that a full opportunity of hearing was given to her in consonance with the principles of natural justice. This contention has not been accepted by the Labour Court and the enquiry has been held to be bad. In view of the nature of objections raised by the appellant, the record of enquiry held by the Management ceased to be material on record within the meaning of Section 11-A of the Act and the only course open to the Management was to justify its action by leading fresh evidence as required by the Labour Court. If such evidence has not been led, the Management has to suffer the consequences.
28. Having regard to the findings recorded by the Labour Court that the domestic enquiry was not properly and fairly held and an effective opportunity of hearing was not given to the appellant, the Labour Court was right in calling upon the Management to lead fresh evidence. Since the Management did not lead any fresh evidence on merits, the appellant was well within her right to say that she too would not lead any fresh evidence. But for that reason, her claim could not be rejected. Rather, she was entitled to be granted relief then and there. However, having regard to the entire circumstances of the case particularly when the Labour Court had itself found that the enquiry was not fairly and properly held, we allow the appeal, set aside the judgment of the High Court and that of the Labour Court and remand the case back to the Labour Court to decide the case afresh after requiring the parties to lead fresh evidence on merits in pursuance of its order dated 21-11-1995. Having regard to the fact that the appellant was removed from service on 4-4-1987, we direct that the Labour Court shall dispose of the whole matter within three months from the date on which the certified copy of this judgment is produced before it. There will be no order as to costs.
18. By applying the above said established concept, if we refer to the order of the Labour Court, it is seen that throughout the order, the Labour Court has no where given a finding that the enquiry conducted by the Enquiry Officer was either unfair or improper. But, on the other hand, the Labour Court has relied exclusively on the Enquiry Officer s report except, of course, three documents which were called for on the side of the first respondent workman which are all documents relating to the petitioner management itself, viz., counter statement filed by the petitioner management dated 21.5.1997 in the petition filed by the first respondent under section 2A of the I.D. Act before the Conciliation Officer marked as Ex.W12, conciliation failure report dated 16.6.1997 marked as Ex.W13 and certificates of appreciation given to the first respondent workmen by the petitioner management, marked as Exs.W14 and W15 to come to the conclusion that the finding of the Enquiry Officer on available evidence is perverse. In fact, the Labour Court has found that the available evidence of the first respondent workman before the Enquiry Officer which was not cross-examined by the petitioner management was not taken note of by the Enquiry Officer in his report and therefore, found that the Enquiry Officer s report is perverse. The finding of the Labour Court that the Enquiry Officer s report was perverse cannot be said to be either illegal or impermissible.
19. Further, the Labour Court found that the charge against the first respondent employee itself was general in nature that he was negligent and the charge was not to the effect that there was rash driving on his part and in the absence of any evidence before the Enquiry Officer, the Enquiry Officer has given a finding that the first respondent was driving the bus in a rash manner. The Labour Court has further found that the witness examined in the domestic enquiry on the side of the management was not an eye-witness for the incident and in the absence of any eye-witness examined either from the passengers of the bus or outsiders, on the evidence available, the Labour Court held that no decision can be arrived at to the effect that the first respondent was negligent. Therefore, when the Labour Court has given its decision only based on the materials available before the Enquiry Officer in the domestic enquiry, merely because the Labour Court found that the finding of the Enquiry Officer is perverse on various relevant aspects, it does not mean that the Labour Court has come to such a conclusion that the enquiry was not conducted in a fair and proper manner so as to request the management to adduce fresh evidence. In fact, the learned counsel for the petitioner would also admit that the Labour Court has not given a finding that the enquiry was not conducted in a fair and proper manner, but his grievance is that in the absence of such finding, it has allowed the workman to file three documents as stated above and therefore, according to him, the decision of the Labour Court has to be held against section 11A of the I.D.Act. The said submission is totally unacceptable. It is not as if by filing the above said documents, new and fresh evidence has been let in on behalf of the workman. They were all documents of the petitioner employer, about which the petitioner cannot have any objection at all.
20. The Labour Court, by construing the Enquiry Officer s report, has found that no eye-witness was examined on the side of management to prove the charge of negligence against the first respondent workman and on the other hand, it has considered the contents of Enquiry Officer s report and proceedings and found that the first respondent employee has in fact given a statement by way of evidence before the Enquiry Officer on 8.3.1990 which is as follows:
" (vk;/o/K:h;j;jp. Xl;Leh;. 3413) Fw;wk; rhl;lg;gl;l CHpahpd; thf;FK:yk;:-
ehd; fle;j 23/3/96 Kjy; Rkhh; 24 tUl';fshf Xl;Ldh; gzp bra;J tUfpnwd;/ 24 Mz;Lfshf vt;tpj rpW tpgj;Jk; ele;jjpy;iy/ tpo 100 vd;w ngUe;J vdf;F vd;W xJf;fg;gl;l ngUe;J ,y;iy/ tpo 100 ngUe;J jlj;jpy; XLk; jFjpia ,He;J (fz;lk;) bra;ag;gl;l ngUe;jhFk;/
nghf;Ftuj;J Ma;thsh; mth;fs; vdJ tpgj;jpw;fhf rhpahd Kiwapy; Ma;t[ bra;atpy;iy/ tpgj;Jf;Fs;shd ngUe;J vz;/tpo 100I !;jyj;jpnyna 14/4/90 md;W gpnuf; bl!;l; bra;atpy;iy/ 16/4/90 md;W jhd; gpnuf; bl!;l; bra;jhh;fs; vd;gija[k; j';fspd; nkyhd ftdj;jpw;F bfhz;L tUfpnwd;/
nkYk; vdJ tpgj;J rk;ge;jkhd nghf;Ftuj;J Ma;thsh; mth;fs; 09/45 kzpf;F ele;j tpgj;ij gw;wp 10/25 kzpf;F elj;Jdh; K:yk; jfty; mwpe;J Rkhh; 11/30 kzpf;Fj;jhd; !;jyj;jpw;F te;jhh;/ mth; Ma;t[ bra;jJ rhpahd Ma;t[ vdpy; tpgj;J ele;j ,lj;jpy; bghJ kf;fs; ahhplKk; tprhuiza[k; bra;atpy;iy/ rhl;rpaKk; bgwtpy;iy vd;gija[k; j';fs; ftdj;jpw;F bfhz;L tUfpnwd;/
jh';fs; jat[ bra;J tpo 100 tz;oapd; tz;og;gjpntL (yhf;rPl;) Fiwe;j gl;rk; 30 ehSf;FhpaJ tutiHj;J ghprPypf;Fk;go nfl;Lf; bfhs;fpnwd;/
nkYk; vdJ tpgj;J rk;ge;jkhd tHf;F g{e;jky;yp Kjy; nfhh;l;oy; cs;sJ/ me;j tHf;fpy; ehd; epuguhjp vd jPh;g;g[ fpilf;Fk;/ mjd; efiy j';fSf;F rk;h;g;gpf;fpnwd;/ ehd; Fw;wkw;wtd; vd jPh;g;g[ tH';Fk;go ,Ufuk; Tg;gp rpuk; jhH;j;jp nfl;Lf; bfhs;fpnwd;/
FWf;F tprhuiz: ,y;iy
,j;Jld; tprhuiz Kotile;jJ/"
and this evidence of the first respondent workman has admittedly not been cross-examined and therefore, the Labour Court has come to the conclusion that the same should be taken as uncontroverted evidence and that aspect has not been considered by the Enquiry Officer.
21. The Enquiry Officer s report also contains the evidence of a passenger by name, Thiru K.Sundaramurhty, who was examined in the domestic enquiry, who has, in the chief examination, clearly stated that in spite of the efforts taken by the driver to control the bus, the bus has pulled itself to the right side and the statement reads as follows:
" ngUe;jpd; Xl;Leh; vt;tst[ fd;l;nuhy; bra;Jk; ngUe;J tyJg[wk; ,Gj;Jr; brd;wJ/"
The said witness was cross-examined in the domestic enquiry on behalf of the petitioner management wherein the witness has clearly reiterated that the accident was due to the negligence of the driver of the ambassador car as it is seen in his evidence, which is as follows:
"FWf;F tprhuiz:
nf: mk;gh!plh; fhh; neuhf te;jjh my;yJ gf;fkhf jpUk;gKad;wjh?
g : mk;gh!plh; fhh; rhiyapy; jdJ ,lJgf;fj;jpy;jhd; ntfkhf te;jJ/ ngUe;jpy; mUfhikapy; te;jgpwJ jhd; mjw;F tyg;gf;fkhf jpUk;gp ngUe;jpy; nkhjptpl;lJ/
nf: mk;gh!plh; Xl;Lehpd; jtW jhd; tpgj;Jf;F fhuzk; vd;W TwfpwPh;fsh?
g: epr;rakhf fhh; Xl;Lehpd; jtW jhd;/"
In spite of such clinching evidence by the said passenger of the bus, the Enquiry Officer has come to the conclusion that the first respondent has driven the vehicle in a rash manner and the same has been found to be perverse by the Labour Court.
22. The appreciation of evidence available in the domestic enquiry by the Labour Court cannot be said to be extraneous. In fact, the Labour Court or Industrial Tribunal is bound to reappreciate the evidence given in the domestic enquiry for arriving at a proper conclusion as it was held by the First Bench of this Court in Workmen employed in Engine Valves Limited vs. Engine Valves Limited [1983 (2) LLJ 232]. The relevant portion of the judgment is as follows:
" 32. These decisions can be of no assistance to management, because an Industrial Tribunal is duty bound to reappraise the evidence on record, and find out the correctness of the finding of misconduct. It cannot in a general manner touch upon the evidence without fully comprehending the evidence on record. No doubt a contention was raised resting upon the decision in Girija Nandini vs. Bijendra Narain (AIR 1967 SC 1124), that it is not the duty of the appellate court, when it agrees with the view of the Trial Court on the evidence, either to restate the effect of the evidence or to reiterate the reasons given by the Trial Court, and that expression of general agreement with reasons given in the decision which is under appeal, would ordinarily suffice. Such an approach is no longer available to a Tribunal constituted under the Industrial Disputes Act, subsequent to 15th December, 1971. A reappraisal of evidence contemplates an elaborate and meticulous consideration of the evidence on record and reasons to be given for upholding the findings rendered in the domestic enquiry. It is to remove the menace of arbitrariness, unreasonable attitude in holding the enquiry, unfair approach made in the conduct of proceedings etc. Labour Courts, are now enjoined to scrunitnise carefully and find out whether the misconduct alleged is established or not. It is to safeguard the vital interests of the weaker section of the society, District Judges and Senior Judicial Officers are posted to function as Presiding Officers of Labour Courts, and they cannot in a haphazard or cursory manner touch upon the evidence on record in a general way and uphold the findings of the enquiry officer. This would be an unsatisfactory manner of discharging duties cast upon such officers. Having been assigned, to dispose of only cases pertaining to Industrial Disputes, they are duty bound to meticulously consider the evidence on record and devote their utmost attention and care in finding out whether the misconduct alleged had been made out on the materials adduced in the enquiry. If only there had been a reappraisal of the evidence on record, then the Tribunal would have given a valid reason, as to why the sole testimony of M.W.1 alone should be acted upon in the instant matter, as against Ambalavanan."
23. One other submission made by the learned counsel for the petitioner that the order passed in the approval petition filed by the petitioner under section 33(2)(b) of the Industrial Disputes Act remains unchallenged by the first respondent workman and the said order prima facie shows that the first respondent was negligent, has also to be rejected. The approval obtained from the authority under section 33(2)(b) of the Industrial Disputes Act which is as follows:
33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings.
(1) ***
(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman,
(a) ***
(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman:
Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.
relates to the misconduct not connected with the dispute pending before the authority and the approval was on prima facie ground.
24. The Supreme Court in Cholan Roadways Ltd., vs. G.Thirugnanasambandam [2005 (1) LLJ 569] held that while exercising the powers under section 33(2)(b) of the Act what is required is preponderance of probabilities which is sufficient and not the proof beyond all reasonable doubts and only prima facie case has to be considered. The relevant portion of the judgment is as follows:
" 17.. The jurisdiction of the Tribunal while considering an application for grant of approval has succinctly been stated by this Court in Martin Burn Ltd. v. R.N. Banerjee6. While exercising jurisdiction under Section 33(2)(b) of the Act, the Industrial Tribunal is required to see as to whether a prima facie case has been made out as regards the validity or otherwise of the domestic enquiry held against the delinquent, keeping in view the fact that if the permission or approval is granted, the order of discharge or dismissal which may be passed against the delinquent employee would be liable to be challenged in an appropriate proceeding before the Industrial Tribunal in terms of the provision of the Industrial Disputes Act. In Martin Burn case6 this Court stated: (AIR p.85, para 27)
A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. It may be that the Tribunal considering this question may itself have arrived at a different conclusion. It has, however, not to substitute its own judgment for the judgment in question. It has only got to consider whether the view taken is a possible view on the evidence on the record. (See Buckingham & Carnatic Co. Ltd. v. Workers of the Company 1951 II LLJ 314)
25. Further, the jurisdiction of the authority exercising powers under section 33(2)(b) for granting approval is very limited as it was confirmed by the Hon ble Apex Court in Lalla Ram vs. Management of D.C.M. Chemical Works Ltd., and another [1978 (1) LLJ 507].
26. Turning to the next contention raised by the petitioner relating to res ipsa loquitur, it is relevant to refer to the charge framed against the first respondent which is as follows:
"Fw;wr;rhl;Lfs;:
1/ 14/4/90 md;W ng/vz;/tpo 100 jlk; vz;/54V. gp rh;tP!;y; gzp bra;a[k;nghJ. ngUe;ij ftdf;Fiwthft[k;. m$hf;fpuijahft[k; ,af;fp. rhiyapd; bgUk;gFjpapid Mf;fpukpj;J ikag;gFjpia fle;J brd;W nghf;Ftuj;J tpjpfis kPwp vjph; jpirapy; te;Jf; bfhz;oUe;j mk;ghrplh; fhh; xd;wpd; kPJ nkhjp K:th; kuzk; milat[k;. Ith; fhakilat[k; goa[k; bra;Js;shh;/ rh/ep/M/vz;/25 (XXVII )d;go Fw;wkhFk;/"
Therefore, the charge is only relating to negligence while as stated above, the Enquiry Officer has concluded as if the first respondent was driving the bus rashly causing the accident. Learned counsel for the petitioner would rely upon Ex.M5, which is the report of the Motor Vehicles Inspector along with sketch to show that the bus driven by the first respondent driver went to the right side which is on the face of it against the Rules and that in the accident three persons travelling in the ambassador car coming on the opposite direction were killed and few others were seriously injured and therefore, applying the principle of res ipsa loquitur, the Labour Court should have concurred with the Enquiry Officer s report. One must appreciate that the nature of proof required at the time of approval under section 33(2)(b) of the Industrial Disputes Act in which a different dispute which was not connected with the disciplinary proceeding was pending, is based on prima facie evidence and at that stage, it is not necessary to analyse the proof and it is to decide about the prima facie evidence under section 33(2)(b) for granting approval and hence, the concept of res ipsa loquitur is applied.
27. But, when it comes to final decision in disciplinary proceedings, certainly the principle of res ipsa loquitur must be proved on facts. On the facts of the present case, an independent evidence has been let in before the domestic enquiry on behalf of the workman who happened to be an eye witness saying that the ambassador car on the opposite direction was coming very fast on its right side and it approached the bus coming on the opposite direction and on seeing that, the first respondent driver attempted to proceed towards left side to avoid an accident and in the meantime, the car dashed on the right side of the bus with the result the bus took a right turn. When that is the evidence available, certainly it is not correct to state that the principle res ipsa loquitur has to be applied. Unless there is a strong evidence on the side of the management to show that the first respondent driver went towards right side because of his negligence, which requires the evidence of eye-witness, the said principle cannot be pressed into service. It is not as if there were no other passengers in the bus or public were not available to disentitle the petitioner management from letting in evidence before the Enquiry Officer. Even though the petitioner in the counter statement before the Labour Court has raised a point relating to res ipsa loquitur, no steps have been taken to substantiate the concept before the Labour Court by letting in proper evidence, in the context of explanation given by the first respondent and the eye-witness examined on the side of the first respondent workman.
28. The principle of res ipsa loquitur which means situation speaks for itself was described by Morris,LJ in Roe vs. Minister of Health [1954 (2) QB 66] at page 87 as the maxim merely as a convenient formula possessing no magical qualities and it actually does not represent any principle of law and it is a matter of convenience. The English Court held that even if the definition does not offer any evidence, it does not necessarily mean that the maxim would automatically apply. Further, the principle can be applied only in cases where there are no satisfactory explanation as to what happened and when rebuttal evidence is adduced, the allegation of negligence can be disproved. The basic principle of the said maxim was explained by Erle CJ in Scott vs. London and St.Katherine Docks Co. (1865 (3) H&C 596 at 601), which is as follows:
"There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care."
It was further held in Easson v. London and North Eastern Railway Co. [1944 Kings Bench 421] that if the accident has happened at the time when the defendant was not in sole control of the situation, res ipsa loquitur does not apply. The Privy Council in Ng Chun Pui vs. Lee Chuen Tat [1988 RTR 298] has ruled that by merely pleading res ipsa loquitur the burden did not shift from the claimant to the defendant. The effect of the maxim res ipsa loquitur' has been aptly explained to be a mere presumption and a guide to arrive at a final conclusion on factual evidence by Brooke L.J. in Ratcliffe vs. Plymouth and Torbay Health Authority (1998 (1) Lloyd's Rep Med 162 at 172, in the following words:
" Res ipsa loquitur is not a principle of law; it does not relate to or raise any presumption. It is merely a guide to help to identify when a prima facie case is being made out. When expert or factual evidence has been called on both sides at a trial its usefulness will normally have long since been exhausted."
29. It is, based on the said established concept of res ipsa loquitur, which is a matter of convenience and presumption, the judicial precedence in India in the labour legislation is that the same is applicable to arrive at prima facie conclusion based on preponderance of evidence in respect of an approval petition under section 33(2)(b) of the Industrial Disputes Act. On the facts of the present case, especially when the first respondent has taken a definite stand by way of evidence which is uncontroverted and the evidence of eye-witness examined on the side of workman as elicited above, it is clear that there is no negligence on the part of the first respondent and therefore, the presumption raised by the employer to apply the principle, res ipsa loquitur stands controverted and in such circumstances, definitely the onus of proof for applying the said principle lies on the petitioner management and in the absence of any evidence of eye-witness to establish the said presumption, there is absolutely nothing to come to the conclusion that the Labour Court should have applied the concept, res ipsa loquitur for concurring with the Enquiry Officer s report.
30. There is one other glaring instance in this case. Admittedly, before the Motor Accidents Claims Tribunal, in the claim petition filed against the petitioner Corporation, on behalf of the persons injured who had traveled in the ambassador car, the petitioner Corporation took a specific stand that the first respondent driver was not negligent and the same was marked as Ex.C1. Having taken such a stand before a judicial forum, the petitioner has chosen to frame the charge of negligence against the first respondent, which is a total contradiction in the stand of the petitioner management. In such circumstances, the presumption under res ipsa loquitur cannot have any application at all.
31. In fact, a Division Bench of this Court in Tamil Nadu State Transport Corporation, (Kumbakonam Division II) Ltd., rep. By its Managing Director, Tiruchirappalli and another vs. P.Karuppusamy [2008 (1) LLN 922], under similar circumstances, held that the Transport Corporation having taken a stand of no negligence against the driver in one forum, cannot proceed with the departmental enquiry on the allegation of negligence and the relevant portion of the judgment is as follows:
" 24. The principles laid down in the aforestated rulings are squarely applicable to the facts of the present case. The appellant Corporation, having taken a plea that the driver of the bus was not responsible for the accident, could not turn around to say that he was responsible for the accident. As such, it is very much bound by the pleadings raised by it before the Tribunals and this Court. The law is well settled as to the aspect that the standard of proof in both the proceedings before the criminal Court and the domestic enquiry officer are entirely different. However, since the Corporation has consciously raised the contention in favour of the bus driver before the judicial fora, it is precluded from proceeding against him in departmental proceedings. Though the extent of proof is sufficient to the commission of delinquency in the matter of departmental proceedings, the management could not lay its hands on the workman, detrimental to his interest, after defending him before various judicial fora and accepting the findings of the Motor Accident Claims Tribunal, Karur. Further, in the dismissal order, dated 9th December, 1998, it is mentioned that even though a scrutiny of the service records would show that the respondent was not at all penalised at any point of time, since he caused a fatal accident, it was proposed to dismiss him from service, which shows that the past records of the respondent were also clean."
32. In addition to that, the judgment of the criminal Court dated 20.8.1996 had already been marked as Ex.W10, in which the first respondent driver was acquitted.
33. It is also relevant to consider at this stage that the petitioner management itself had given appreciation certificate to the first respondent driver. It is stated by learned counsel for the first respondent that in spite of the fact that the first respondent driver attained the age of superannuation on 24.11.2002, the Labour Court having passed the award as early as on 15.4.2002, the first respondent has not been paid any terminal benefits for the service rendered by him for a period of 12 years. In similar circumstances, in Cheran Transport Corporation Ltd., vs. Presiding Officer, Industrial Tribunal, Madras [2002 (1) LLN 388], when punishment of dismissal was awarded only on the basis of one witness who has not seen the accident and no eye-witness has been examined in the domestic enquiry, it was held that the Enquiry Officer s finding is perverse and cannot be sustained. In such circumstances, it was also held that there is no justification to give opportunity to the management to impose any minor punishment. The relevance of eye-witness which is a basic requirement for the purpose of deciding rash and negligent driving of the driver was narrated in the said judgment by P.D.Dinakaran,J. (as His Lordship then was) by referring to various judgments and held as follows:
" 16.1. In Jeeva Transport Corporation Ltd., vs. Industrial Tribunal, Madras reported in 1993 (1) L.L.N. 870, M.Srinivasan,J., as he then was, held in Para.6 at page 871 that,
".. the Tribunal is entitled to consider whether the findings of the domestic enquiry officer is perverse or not. While doing so, the obligation on the part of the Tribunal is not to weigh or reappreciate the evidence for itself, but to examine the findings of the enquiry officer on the evidence of the domestic enquiry as it is, in order to find out whether there is a prima facie case; or if the findings are perverse, which renders essential to see whether the eye-witnesses, who alone could speak about the rash and negligent act of the employee, were examined or not."
16.2. R.R.Jain,J., in Cholan Roadways Corporation Ltd., v. Industrial Tribunal, Madras and another by order dated 14 August 1997, made in Writ Petition No.12383 of 1986, held that in a case where the workman is charged for a rash and negligent act, the persons present on the side of accident alone can speak about the occurrence and as the management failed to examine any such eye-witness, the findings of the enquiry officer cannot be sustained.
16.3. Similarly, in Cheran Transport Corporation Ltd., Coimbatore, vs. K.S.Palanisamy and another by order dated 23 February 1998, in Writ Petition No.1554 of 1989, V.S.Sirpurkar,J., held that where the management failed to examine anybody who had seen the accident, the findings of the enquiry officer cannot sustain.
16.4. In the light of the decision referred to above, as it is not in dispute that the petitioner-management had not examined any eye-witness before the enquiry officer, the finding arrived at by the enquiry officer itself is not sustainable in law, for want of legal evidence."
The reasonings of the said judgment would apply in toto to the facts of the present case.
34. In such view of the matter, the writ petition is liable to be dismissed on the ground that there is no reason to interfere with the findings of the Tribunal, that the Enquiry Officer s report was affected by perversity and that there is no merit in the writ petition. Accordingly, the writ petition fails and the same is dismissed. The petitioner shall compute the terminal benefits due to the first respondent workman by treating him in employment and grant all monetary benefits due to him within a period of eight weeks from the date of receipt of copy of the order. No costs.
35. It is stated by the learned counsel for the petitioner that there is an amount, which has been deposited, lying in the Ist Addl. Labour Court, Chennai to an extent of Rs.1,50,000/- (Rupees One Lakh and Fifty Thousand only). It is open to the first respondent to receive the same.
Index:Yes/No
Internet:Yes/NO
Kh 09.11.2010
To
The Presiding Officer
Ist Additional Labour Court
Chennai.
P.JYOTHIMANI,J.
P.D.ORDER IN
W.P.NO.47086 OF 2002
