ORDER
R.J. KOCHAR, J.
1. The petitioner, a statutory corporation constituted under the Bombay Municipal Corporation Act, 1888, caters inter alia the needs of the people in Mumbai for Electric Supply and Road Transport. In the present petition we are concerned with its Public Transport Undertaking through which it employs a large number of persons as Conductors and Drivers to run the Buses on the roads of the City for the benefits of the public. The management of the Undertaking has always tried to render its B.E.S.T. services through its ever vigilant efforts to discipline its employees in the interest of efficiency in the services with the help and co-operation of the representative Union i.e. B.E.S.T. Workers Union functioning in the B.E.S.T. To maintain efficiency and discipline in such a large organisation is a herculean task which the Management is performing. The Public Transport Industry of the petitioner is a class by itself and it cannot be compared with other Industrial activities carried on in the shop floor of the factories. The Transport buses carry 100 passengers and also run through the crowded roads and streets of the City which has become totally unmanageable. Any one who drives through the crowded roads and streets of the City knows how difficult and risky is to virtually swim through the crowds. In the given circumstances we have to appreciate and understand the anxiety of the management in continuing to employ persons as drivers, who consume liquor. We have also to bear in mind the safety and security of not only the passengers siting inside the bus but also the pedestrians. While deciding such matters we cannot afford to lose sight of the aforesaid very crucial factors. Neither the passengers in the bus nor the public on the road would be safe if a driver is under the influence of alcohol while on the wheels.
2. The present case concerns a driver-respondent No. 1, who was charge-sheeted for being under the influence of alcohol i.e. in the state of drunkenness when he was on duty and was driving the bus. He was served with a charge-sheet for the alleged misconduct under Standing Orders 20(1)(k) for the alleged incident which took place on 14-10-1982, In the charge-sheet all the relevant details and particulars were given. He was called upon to attend a departmental enquiry which was proposed by the Management against him. It is significant to note that the respondent No. 1 the concerned driver did not submit his written explanation to deny the charges. The Management, therefore, proceeded to hold a Domestic Enquiry against him. In the Enquiry, statement of Shri R.R. Pathak, Asstt. Supervisor (Accident Supervisor), who had visited the Police Station where the respondent No. 1 was taken by the Police Sub Inspector Shri Kedar was recorded. The other witnesses who were examined before the Inquiry Officer were Shri P.S. Malwankar, Conductor, Shri D.G. Patil, Acting Starter Conductor and Police Sub Inspector Shri Kedar. The Enquiry Officer had also recorded the statement of the delinquent driver-respondent No. 1. As far as the conduct of the enquiry is concerned there was no dispute about its procedural fairness, that is to say, the Enquiry Officer had followed all the required principles of natural justice while conducting the enquiry. Before the enquiry an independent witness Police Sub Inspector had clearly stated that the delinquent driver was under the influence of alcohol liquor and he gave verbatim what he saw and what he found such as that the driver’s mouth was smelling of alcohol, his eyes were red and his speech was incoherent. Even the other witness Shri Pathak gave the description of the same symptoms which he noted when he had seen the delinquent driver in the Police Station. It is also a fact recorded in the enquiry that from the Police Station he was taken to Cooper Hospital where he was examined by the Doctor on duty who certified that the driver had consumed alcohol and was under the influence of alcohol. Considering the aforesaid evidence the Enquiry Officer found him guilty of the charges levelled against him and finally passed an order of dismissal. Under the Rules the Enquiry Officer who is designated as Trying Officer is also competent to pass punishment orders and accordingly he passed an order of dismissal under the Standing Orders. He also considered the delinquent-driver’s past service record, which according to him, was not satisfactory and
he has given the instances of punishments imposed on the delinquent in the past. What is more significant in the dismissal order was the usual anxiety to maintain the safety and security of the passengers and public. His observations are to the effect that looking to the gravity of the offences committed by the delinquent-driver, he would be instrumental to land B.E.S.T. Bus in accident thereby endangering the lives of the passengers as he was in the habit of driving bus under the influence of alcohol and, therefore, he found that he should not be retained in service any longer. He has considered all the evidence on record and has come to the aforesaid findings of guilt of the delinquent and passed the dismissal order.
3. The aforesaid order of dismissal dated 14-12-1982 was challenged by the delinquent-driver under the provisions of the Bombay Industrial Relations Act, 1946 after his failure in the two departmental appeals provided under the Standing Orders. It is significant to note here that the Management and the representative Union both have taken abundant care to give maximum opportunity to get the matter screened by Higher. Officers and, therefore, two appeals are provided against the punishment orders. The Management had held a domestic enquiry which is in compliance with the principle of natural justice. It has also given an opportunity to the delinquent to file his first appeal against the order of the Trying Officer, who dismissed him. He was also given a right to file his second appeal against the order in the first appeal. All the three authorities have concurrently found him guilty of the misconduct levelled against him. Thereafter he filed an application before the Labour Court challenging the propriety and legality of his dismissal order under the provisions of the Bombay Industrial Relations Act, 1946. Before the Labour Court admittedly the fairness and propriety of the enquiry was not challenged and admittedly the delinquent employee was given full opportunity to defend himself in the enquiry. The Labour Court, however, held that the findings of the Enquiry Officer were perverse and, therefore, he quashed and set aside the order of dismissal. The Labour Court’s findings are based on its own assessment of the evidence recorded in the enquiry. The reasoning of the Labour Court, briefly, is that no medical certificate was produced before the Enquiry Officer and that the Doctor was not examined as a witness before the Enquiry Officer. According to the learned Labour Judge, the symptoms given by the Police Sub Inspector were not sufficient to come to a conclusion that the delinquent was under the influence of alcohol. According to him, statements of passengers ought to have been recorded and, therefore, he concludes that it was doubtful to say as to whether the delinquent employee was under the influence of alcohol and that he had abused the Police Sub-Inspector. The learned Labour Judge, was of the opinion that the findings of the Enquiry Officer were not flowing from the evidence on record and, therefore, he declared the order of dismissal as illegal and directed the petitioner to reinstate the respondent employee Shri Kamble with full back wages and continuity of service.
4. This order of the Labour Court was carried by the petitioner in appeal before the Industrial Labour Court under section 84 of the Bombay Industrial Relations Act, 1946. The learned Member of the Industrial Court also found that there was no sufficient and satisfactory evidence adduced before the Enquiry Officer to hold that the respondent-driver was under the influence of alcohol. He discarded the evidence of the Police Sub Inspector Shri
Kedar and the Accident Supervisor Shri Pathak, who had verbatim given the state of the delinquent at the relevant time. Both of them had described that his eyes were red, his speech was incoherent and his breath was smelling of alcohol. The learned Industrial Court opined that both the witnesses were not “experts” and that symptoms they had given were not conclusive to say that the driver-Kamble was under the influence of alcohol at the relevant time. The learned Member of the Industrial Court therefore, called for the medical record from the Cooper Hospital. It is borne from the record that the learned Industrial Court gave an opportunity to the petitioner to adduce further evidence by examining the medical officer. It is also borne from the record that a witness from the hospital produced the original register which was maintained by it during the course of its business. In the register an entry is made that a medical certificate was issued to the following effect:
“Patient referred from Goregaon Police Station for confirmation alcohol consumption. On examination patient fairly conscious, pupils semi-dialated ventriculating to light. Breath smells alcohol, gait unsteady, coordination poor, speech slurred.
Patient consumed alcohol and under influence of the same.
The above entry is found in the original register which is maintained by the Hospital during the course of its business: It is however, true that the doctor who examined the delinquent-driver was not examined before the Industrial Court as he had left the services and was not available. On this ground the learned Industrial Court discarded the whole evidence including the material entry from the original register of the Hospital and concluded that it was difficult to accept the case of the petitioners that the driver-Kamble was under the influence of alcohol at the relevant time. It is curious to note that the learned Industrial Court did not accept the case of the petitioner that the delinquent employee had misbehaved and uttered indecent and filthy abuses towards the Police Sub Inspector because he did not give the exact abuses uttered by the delinquent driver-Kamble. The learned Industrial Court wanted some other independent witnesses from the Bus to “throw” sufficient light on the incident itself. He wanted some more evidence to corroborate the testimony of Shri Kedar on the point that the delinquent had abused him and that he had behaved in an indecent and disorderly manner at that time. The learned President of the Industrial Court therefore, agreed with the findings of the Labour Court and confirmed the order of reinstatement with full back wages of the delinquent driver.
5. Having fully heard the learned Counsel for both the parties, I find no substance in the submissions of Shri Ganguli, the learned Advocate for the respondent-driver in support of the judgment of both the courts below. The learned Advocate gave much emphasises on the point that both the courts below have given concurrent findings and, therefore, the High Court under its extra ordinary jurisdiction under Article 226 of the Constitution of India should not interfere with the orders. He also emphasised that even before the Industrial Court the Doctor who gave the medical certificate was not examined and, therefore, there was no “legal evidence”, on record to find that the driver was under the influence of alcohol. He also submitted that the evidence of the Police Sub-Inspector cannot be believed as he was on inimical terms with the driver as he had abused the Police Sub-Inspector and, therefore, he gave evidence against him. According to the learned Advocate, there was no independent witness from the passengers to support the case of the
Undertaking. The learned Advocate relied on a judgment of the Supreme Court reported in Bareli Elec. Co. Ltd. v. Workmen & another, 1971(2) L.L.J. 407(S.C.) on the point that there should be a legal evidence and that a document should be proved before the Court and unless that is done it cannot be relied upon. There is no quarrel with the said proposition or ratio of the Supreme Court. I however find that the said judgment is of no help in the present case. The entire emphasise of Shri Ganguli was that there was no medical certificate produced before the Enquiry Officer to prove that his client was under the influence of alcohol at the relevant time.
6. As against the said submissions Mr. Talsania, the learned Counsel for the petitioner pointed out that there was sufficient evidence before the Enquiry Officer and that before the Industrial Court the original register of the Hospital was produced and if that is to be read even in the context of the evidence before the Enquiry Officer it is clearly established that the delinquent driver was under the influence of alcohol at the relevant time. He, therefore, assailed the impugned judgments of the both the courts and argued that there was more than sufficient evidence before the Enquiry Officer to give his finding that the delinquent was under the influence of alcohol. He also submitted that with such a serious misconduct the delinquent could not be continued as a driver of a public bus. He also stressed on the bad past record of the delinquent as an aggravating circumstance against the delinquent driver, 1st respondent.
7. No one can afford to have a driver who is under the influence of alcohol at the time of driving. No reasonable or prudent man knowing a person with red eyes, smelling of alcohol from his breath and incoherent speech would dare to allow him to sit on the wheels to drive a vehicle. According to me, no much expertise of any nature is required to know that a person is under the influence of alcohol under the above description. Any one who has taken some liquor he is betrayed by his breath first and then other symptoms such as red eyes, trembling of the body and incoherent speech would follow. He need not be sent to a doctor or a hospital for examination for the purpose whether he should be allowed to drive a vehicle and particularly a Public Transport vehicle carrying 100 passengers in a crowded roads of the city of Mumbai. Even in the absence of a formal medical certificate if the employer finds the aforesaid symptoms on the body of his driver he can very well refuse to continue him in employment as driver. As I have already stated that the public transport undertaking is a distinct employer that has to take care of the public and pedestrian on the road and the passengers inside the bus. Even if there is slightest doubt that the driver is under the influence of alcohol he can be ordered to get down from the bus. In the present case there was sufficient evidence before the Enquiry Officer. Two independent witnesses, that is, the Police Sub Inspector Shri Kedar and Shri Pathak, Accident Supervisor of the Undertaking, who had nothing against the delinquent driver have unequivocally described the state in which the delinquent driver was found at the relevant time. The said description exactly fits in the description of a person who is under the influence of alcohol or liquor. This description is not denied or refuted by the delinquent driver in any manner. He has not said in his evidence how and why his eyes became red, and why his gait was unsteadable and he was trembling and why his speech was incoherent.
He has not denied the aforesaid symptoms and he has also not explained what caused the aforesaid symptoms. It is pertinent to note that he has not submitted his written explanation to the charge-sheet denying the charges and explaining further what exactly had happened at the relevant time. It is further pertinent to note that the delinquent driver was taken to the public hospital where he was examined by a doctor who had recorded his description in the medical register maintained by the hospital in its due course of business. Though the said certificate or the register was not produced before the Enquiry Officer the fact remains that the said record was made in the register of the public hospital. The Medical Officer who recorded the said description had nothing against the delinquent driver and he was an independent Public Officer. The evidence of the two witnesses before the Enquiry Officer who have given their statements and who were cross examined by the delinquent driver, in my opinion constitutes sufficient evidence before the Enquiry Officer to find the guilt of the delinquent driver that he was under the influence of alcohol or liquor at the relevant time. It satisfies the test in such matters where only preponderance of evidence is enough and there need not be proof to the hilt. There is no reason or ground why these two witnesses should be disbelieved. There is further no good reason to say that some passengers should have been examined. A domestic enquiry is not a criminal trial. We also have to bear in mind and we can never forget that the delinquent driver was employed to drive a public bus through the public streets. The petitioner as employer is always held liable for any accident that would take place on the road and such employer has a distinct privilege to decide whether a person who is betraying the symptoms of being under the influence of alcohol to ask him not to drive a public bus on the road. There need not be any proof to the hilt in the form of medical certificate and the medical reports of blood and urin examination on the basis of which alone the employer can get rid of such a driver. The petitioner as a public employer can never take such a risk, and according to me, very rightly so. If we allow drunkards to drive any vehicles the public life will become miserable. According to me, any one who is addict to liquor should not be allowed to drive on the public road. Howsoever one may love to drink let him do so while at home but he can never be allowed to drive thereafter on the public streets. Such a driver under the influence of alcohol would be a grave danger for the innocent men/women and children. It was wrong on the part of the Labour Court to search for some more “legal evidence” in the form of medical certificate. According to me, the evidence of two witnesses before the enquiry officer was more than sufficient evidence to base the findings of guilt of the delinquent driver. If any documentary evidence was required in support of those witnesses the medical register of the public hospital with the entries quoted hereinabove was more than a corroborating and conclusive evidence. This documentary evidence supports the oral testimony on the point of medical certificate to prove that he was under the influence of liquor. In this regard I am fully supported by a judgment of the learned Single Judge of this High Court in the case of Maharashtra State Road Transport Corporation v. Sudam Narayan Chaudhari, reported in 1996(2) L.L.J. 144. The learned Single Judge (B.N. Shrikrishna, J.) in paragraph 7 of the said judgment has dealt with the said point. He has expressed the nature of evidence which is required before the domestic enquiry and that is the evidence should be compatible with and suggesting of a state of high degree of intoxication. Para 7 of the said judgment reads as:
“7. Mr. Bapat then contended that no certificate as to the state of intoxication was produced before the Enquiry Officer and, at least to this extent, the Enquiry Officer’s finding that the respondent workman was guilty of charges under Clauses 10, 12, 29 and 45 of the Standing Orders was perverse. I am unable to agree in the first place, there is no law which stipulates the quality or quantity of evidence to prove any particular fact before a domestic enquiry. It is more a matter of the Enquiry Officer’s bona fide approach to the problem and attempts to discover the truth, to the best of his ability, on the basis of all materials which have some probative value. It is understandable that, because of the failure of the police to produce the proper medical certificate showing the alcoholic content in the blood of the respondent, the Criminal Court acquitted him of charges under the Bombay Prohibition Act. It is also understandable that, taking the view that the Bus Depot of the petitioner Corporation was not a public place, the respondent was also acquitted of the charges under the Bombay Police Act. Neither fact is sufficient to hold that the charges against the respondent were not proved in the domestic enquiry. In my view the evidence given by the witnesses in the domestic enquiry was compatible with and suggestive of a state of high degree of intoxication on the part of the respondent workman. The details of his demeanor, conduct and behaviour attested to by the eye witnesses, whose evidence was rightly accepted by the Enquiry Officer, clearly suggested that the respondent workman was acting under intoxication. In these circumstances, even without production of a medical certificate as to blood contents if the Enquiry Officer bona fide and honestly came to the conclusion that the respondent had behaved in the manner attributed to him, ostensibly under the influence of an intoxicating substance, I see nothing wrong in the finding, much less and perversity in it. In fairness to Mr. Bapat, when I drew his attention to the statement of one of the witnesses in which he deposes to the state of influence of liquor in which the respondent was, and I asked him whether that was not consistent with the view taken by the Enquiry Officer, Mr. Bapat did not further pursue the point. No other point has been urged to show that the Enquiry Officer’s findings were perverse. Neither the so called reasoning in the impugned order, nor the contentions canvassed at the Bar persuade me to accept the view of the Industrial Court that the order of the Labour Court needed interference.”
In the present case also the details of symptoms visibly accepted by the delinquent driver were very much present as attested by the witnesses. In my opinion, both the Labour and Industrial Courts have committed a grave error of law in discarding the findings of the Enquiry Officer as perverse and not based on evidence on record. I further hold that the Industrial Court was also wrong in discarding the entry in the public document such as medical register merely on the ground that the doctor who examined the delinquent was not examined as a witness. There was no dispute that the said entry was made at the relevant time or that the said entry was false. There was no reason for a public medical officer to make such an entry falsely. Therefore, the said documentary evidence which was a public a register maintained in due course of business was more than a corroborative evidence to show that the delinquent driver was under the influence of alcohol at the relevant time. I, therefore, quash and set aside the impugned orders
of the Labour Court and the Industrial Court and confirm the order of dismissal passed by the petitioner. I do not find any illegality, or any impropriety or infirmity in the said order. I also hold that for the misconduct that is proved the punishment of dismissal alone is legal and proper and proportionate. It does not shock my judicial conscious. According to me, no reasonable man would employ a person as a driver who is in the habit of taking liquor and who is under the influence of alcohol while driving a vehicle, which may be either private or public. This law should be strictly enforced as the safety and security of public at large is concerned. In such matters if benefit of doubt is required to be given it should not be in favour of the delinquent but it should be in favour of the petitioner employer. I, therefore allow the petition and make the rule absolute in terms of prayer Clauses (a) and (b).
8. Though I have decided in favour of the petitioner Corporation and against the delinquent driver, I deem it necessary to observe hereunder as the learned Advocate for the delinquent employee has submitted that his client is suffering from serious ailments and he has a grown-up son who is unemployed. The delinquent is living a very miserable life. Though I have decided against him on merits I have my sympathies for the delinquent and his family. When Shri Ganguli described the whole pathetic situation, I requested Shri Talsania to consider to employ suitably the delinquent driver’s son or any other member from his family, to have some source of income. Shri Talsania, in his usual fairness, agreed to recommend to his clients to employ the delinquent driver’s son if he is otherwise found eligible. Shri Talsania himself has handed over a copy of judgment in Writ Petition No. 2392 of 1996 given by my brother Judge Shri B.N. Srikrishna, who has given his recommendations on the same line with which I am in respectful agreement. I reproduce the said paragraph 10 of the said judgment as under :
“10. Though I have held that no relief was due to respondent No. 1 under law, I am inclined to take a sympathetic view of the fact that respondent No. 1 is a widow of the deceased employee. If the respondent No. 1 has not been paid gratuity, then the petitioner shall pay to respondent No. 1 an amount equivalent to 15 days wages for every year of continuous service rendered by the deceased employee upto the date of his dismissal. Mr. Ganguli requests that the BEST may consider absorption of the son of the deceased employee in its service under the applicable scheme. If such application is made, Mr. Talsania says that it will be considered sympathetically, but employment would be made available only if the son is otherwise eligible under the applicable rules.”
9. It is clarified that if gratuity is already paid that would satisfy the payment of gratuity and no additional gratuity as suggested in the above para be paid. Shri Talsania has repeated that the case of delinquent’s son would be considered on the same line. The petitioner’s BEST Undertaking has acted bona fide in the interest of public by removing the delinquent driver who was under the influence of alcohol and there is nothing personal against him and, therefore, to show their bona fides they have readily agreed to consider the employment of the delinquent’s son if he is otherwise found fit and eligible in any post and for any work which he or she would be qualified and eligible. They shall act promptly in this regard if any application for employment is received. Rule is made absolute as above. No order as to costs.
10. Parties shall act on an ordinary copy of this judgment duly authenticated by the Sheristedar of this Court.
11. Rule made absolute.