ORDER
V.P. Mohan Kumar, J.
1. This case was earlier heard by me and I dictated the order. Before I signed the same and on my going through the papers, I felt that the matter requires further hearing and as indicated in Vinod Kumar Singh v Banaras Hindu University and Others. I reported the same for further
hearing to 10-8-1999. I heard the Counsel for the petitioner as also Mr. P.R. Ramesh and Sri V.S. Naik, the Counsel for the workers. After hearing, I reserved the matter for further orders. As the earlier judgment does not require material alteration except regarding the formulation of the relief to be granted, I am not recalling the said order.
This case illustrates an unfortunate and sorry state of affairs prevailing in the conduct of case by the petitioner before the Tribunal as well as before other judicial forum. The petitioner acts, oblivious of the fact that it is the trustee of public fund and the brunt of the loss it sustains is passed on to the faceless and helpless common man in the form of hike in the bus fare etc.
2. The facts are that a worker was found guilty of driving the vehicle, a stage carriage, in a rash and negligent manner and causing a fatal accident. It happened on 11-4-1988 at about 11-45 a.m. The casualty was that a person who was riding on his cycle died instantaneously and the pillion rider riding with him was injured. The petitioner took disciplinary action against the driver and on finding him guilty of negligent driving, dismissed him from service. The worker raised a dispute invoking Section 10(4-A) of the Industrial Disputes Act and the matter was taken before the Tribunal by him.
3. He raised a preliminary issue regarding the validity of the domestic enquiry. The Labour Court by its order dated 21-3-1996 set aside the domestic enquiry. Obviously, it was then the bounden duty of the employer to lead evidence to sustain the charges and uphold the dismissal of the worker. But obligingly, the Corporation did not lead any evidence to sustain the charges. The Corporation was satisfied with the production of “a scrap of paper” described as report of the Traffic Manager on the accident, which according to the petitioner was the best evidence to prove the charges and it felt, was the last word on the issue. It is an admitted rule that mere production of a document, is no proof of its contents; the executant of the document at least should have been examined. Strangely, neither the petitioner nor its Counsel felt it was necessary. The settled law is that when once the domestic enquiry is set aside, it is for the employer to lead evidence to establish the charges of which the worker is guilty of and to justify the dismissal. But strangely neither the learned Counsel for Corporation appearing in the Tribunal nor the petitioner took any steps to lead evidence to establish the charges. The Labour Court, on the ground that charges have not been proved set aside the dismissal and ordered reinstatement of the worker with 75% back wages. This award is challenged in this proceeding. Necessarily when the dismissal of the employee is set aside, the only alternative for the Tribunal would be to order reinstatement of the worker and restore the benefits lost by him. One cannot find fault with the Tribunal if it did so.
4. But the question is whether, the Tribunal came to that conclusion by means of an adjudication of the dispute? The answer to this query is in the negative. This finding was arrived at due to the sole default of the petitioner. This is so only because petitioner failed to conduct the case
properly before the Tribunal. When a vehicle is involved in an accident, it may be either because of the negligence of the driver or of some other reasons such as negligence of the victim, mechanical failure or contributory negligence of the victim. The primary burden to tender the evidence is on the employee. But when the employer, on the basis of the evidence collected has dismissed the workers on the ground of negligence, then the burden shifts to the employer to sustain the dismissal. This is the consequence of the setting aside the domestic inquiry. If the domestic enquiry had been upheld, then this question would not have arisen. In such an event, if the management does not participate and tender evidence to sustain dismissal necessarily the Labour Court has no other alternative but to proceed with and hold that there was no just cause to terminate. This is, precisely what has happened in this case.
5. But, the Labour Court has also proceeded in a strange manner. In the award, in para 16 it is stated thus:
“The said document is produced by the respondents. Therefore it has got more weight than the evidence of any other thing. When the Traffic Manager has held that the accident was due to the contributory negligence of the driver and the cyclist he would have considered in a proper way for awarding the punishment. When the accident is due to the contributory negligence it means both the parties are responsible for the accident. In such situation the claimant cannot be held solely responsible for the punishment. Therefore, the punishment awarded by the respondent is unreasonable. Normally if the accident was caused, it cannot be said that the driver is responsible. There would be so many factors and causes for the accident. In the present case, the driver and the cyclist are both responsible jointly for the accident. Under these circumstances, I am of the opinion that the claimant cannot be held solely responsible for the accident. Under these circumstances, the punishment like dismissal is not warranted. But some lenient punishment is necessary”.
6. I do not understand the logic of the above reasoning and from where the Labour Court draws a presumption that in the case of an accident, the driver is presumed to be not negligent. In a contract of employments, the employee is cast with a duty to discharge his duties with due care and caution. In Lister v Romford Ice and Cold Storage Company Limited:
“I conclude, then, the first stage of the argument by saying that the appellant was under a contractual obligation of care in the performance of his duty, that he committed a breach of it, that the respondents thereby suffered damage and they are entitled to recover that damage from him, unless it is shown either that the damage is too remote or that there is some other intervening factor which precludes the recovery. I should note in passing that it was urged on behalf of the appellant that the respondents had
not proved the quantum of damage suffered by them by proving only that judgment had been given against them and that they had paid or were liable to pay the amount of the judgment and costs. This plea could not be sustained. It appears to me to be against reason and authority: see, for example, Green v New River Company”.
It is clear from this judgment that a master who has paid for the negligence of his servant, can sue that servant for indemnity. This principle is stated thus in the Law of Torts by Salmond and Heuston:
“There is an implied term in the contract of service that the servant will take reasonable care not only of his master’s property entrusted to him but also generally in the performance of his duties. It seems that this duty is to be thought of as an implied contractual obligation rather than as a particular example of the tort of negligence. Hence if the servant breaks his obligation his employer has a cause of action for breach of contract to recover damages for such loss as is not too remote a consequence of the breach. The damage which the master has suffered may be either physical or financial — e.g., the sums which the master, as vicariously responsible for his servant’s torts, has paid to third parties injured by such a tort committed in breach of the implied contractual obligation”.
The driver who is put in charge of a vehicle when he drives without care and caution, would cause great havoc. Therefore whenever fatal accidents take place, it is the burden of the Driver to show that he has taken reasonable care and caution while driving the vehicle to avoid the accident. If this burden is not discharged by him a presumption cannot certainly be raised as stated by the Labour Court that he is not negligent. Such a presumption is fundamentally opposed to the principle on which the doctrine of ‘no fault liability’ is found.
7. Whatever that be, the Labour Court found that the punishment imposed on the worker is unsustainable and therefore, it has to be set aside. The Labour Court called upon the management to reinstate the workmen with 75% back wages.
8. I have heard the learned Counsel for petitioner Smt. Meena Ramachandran and Sri V.S. Naik, learned Counsel appearing for the workmen.
9. It is the case of the petitioner that the worker, 1st respondent herein while driving the vehicle caused the accident which resulted in a death of a person and injury to another, Prima facie, applying the doctrine “res ipsa loquitur”, it can be said that there is negligence on the part of the worker. I am informed by the learned Counsel for the worker that after the accident, claim petition was filed by the legal representatives of the deceased as also the injured under Section 110 of the Motor Vehicles Act before the Motor Accidents Claims Tribunal. A production of the judgment therein would have shown the nature of the defence raised by the driver and whether he led any evidence to prove
that he was not negligent. The only person who could have established the absence of the negligence in the matter of driving the vehicle to avoid accident was the driver. The accident having caused fatality the burden of proof to prove that he has taken all reasonable care and caution while driving the vehicle lies squarely on the driver. If as a matter of fact, he had participated in the proceedings and if, the Tribunal finds that the injury was mainly due to the negligence of the driver alone, that material could have been placed before the Tribunal by the management so that it can look into the said proceedings to assess as to the finding on the charges framed against the worker. This was not attempted to by the management and nothing was placed before the Tribunal as stated earlier and if I may say so, the petitioner seems to have proceeded on the assumption that it is the duty of the Tribunal to uphold the dismissal. The petitioner seems to be under a grave misconception that their role is to dismiss worker and erect the disputes and the responsibility of upholding is that of the labour Court/Tribunal as the case may be. One can only pity the petitioner’s ignorance and its manner in which its matter are being dealt with. In fact when the matters was being argued before this Court, this Court wanted to ascertain the nature of defence taken by the worker before the Motor Accidents Claims Tribunal, the finding entered by the Tribunal etc. But despite granting of sufficient time it is rather unfortunate that the detailed judgment could not be secured except the making available of the decretal order. The learned Counsel ultimately expressed his inability to secure the papers frustrated in his attempts. This information is hardly sufficient to ascertain the dispute involved in this case. It is strange, the way in which a public Corporation like the petitioner conducts its litigations.
10. Now, it is submitted that the finding of the Labour Court is that there has been no negligence on the part of the driver in driving the vehicle at the time of accident and it is only due to contributory negligence contributed by the cyclist that has resulted in the accident. This inference is apparently drawn on the basis of the judgment in the Motor Accident Claims Tribunal. In the first place, the judgment has not been received in evidence. Secondly the findings cannot be a basis for the finding in the Labour Court. No document has been produced before the Labour Court to come to the conclusion that there was no negligence on the part of the worker and therefore, the punishment awarded should be interfered with. The worker had not produced any material to establish that the accident was due to contributory negligence. When the Labour Court held, that domestic enquiry was not fair and proper, it was the duty of the management to have led evidence and established the charges. This was admittedly was not done. Besides, the writ petition filed there is no prayer for granting an opportunity in this behalf as well. As to whether such an opportunity would be granted by this Court or not is altogether a different issue. As held by the Supreme Court unless such a request had been incorporated in the counter-statement itself by the management at the earliest point of time such a request would not
have been normally granted. No one knows as to whether such a request has been made. No materials are placed before this Court as well. When an accident takes place, the best witness to establish the contributory negligence would be the Driver. One has to verify whether he had contested before the Accident Claims Tribunal, to protect the interest of the employer and that of the employee.
11. As stated supra when the employee discharges his duty in a careless manner he will be liable to indemnify the loss suffered by the employer by reason of his liability in damages to a third party. If the employee does not establish that he was not negligent, then, the em-ployer can recover the damages/compensation he had to pay to the victims of the negligence of the employee, and which the employer had to pay on this account under the principle “respondent superior”. In other words, the employee has to establish that he was not negligent, in the proceedings before the Accident Claims Tribunal and protect the interest of the employer. To put it differently, it is the duty of the employee to lead evidence to establish that he did not discharge his duty in a careless or negligent manner and that he did not commit any breach of duty. That could have been established before the Accidents Claims Tribunal before whom the victims claimed compensation due to them arising out of the accident. If the employee fails to do so, he lays himself open for a claim against him by the employer for the reimbursement of the compensation paid by the employer on account of the accident.
12. The employer should have led some evidence to establish the negligence in the accident of the worker, to relieve its liability to pay damages now awarded invoking the principle “respondent superior”. The respondent had done nothing to take care of its interest in this reference. This case has suffered due to the negligence on the part of someone who was responsible to take care of the interest of the petitioner. The driver was apparently negligent in driving the vehicle, but someone else was culpably negligent in conducting this case.
13. In a case like this, it is the responsibility of the employer to see that the duties cast on the employee are discharged properly and not in a negligent manner. The employer is a public sector undertaking. Now as illustrated in the case, it pays the compensation to the accidents victims, it pays 75% back wages to the worker on reinstatement and also the wages of an employee who was employed during the absence of the worker in question. A portion of the loss thus caused could have been reimbursed from the back wages but for the non-co-operation of the petitioner in the conduct of the case before the Labour Court. Whatever that be the brunt of the loss due to the negligence, non-co-operation etc., would ultimately pass on to the common man i.e., the tax-payer.
14. This is not a solitary instance, there are instances galore, to show that most of the cases in which the petitioner is involved suffers due to improper conduct of the case. The malady can be cured only if someone responsible takes a serious look into the matter and places right person at the right place to do the job.
15. It is alleged that the worker had past history of six accidents. Nothing was placed before the Tribunal or before this Court to establish this fact. This would have been a circumstance in the matter of ascertaining the quantum of punishment to be awarded. The petitioner has disabled this Court also from undertaking this attempt. If the allegations are correct, the driver is not a safe person to be entrusted with a stage carriage. He is a threat to the public at large. But nevertheless he is able to carry on driving the stage carriage of the petitioner due to the sheer negligence and indifference on the part of the petitioner in the conduct of the case. This is indeed a sad state of affairs.
16. There is no proof as to precisely that compensation was paid to the accident victim. Nevertheless, the direct cause for this is the worker. We have seen that the master is entitled to claim reimbursement of this amount. Mr. Naik, submits that when 25% is deducted from the back wages payable that should represent the reimbursement. I do not think that it will in any way meet the ends of justice. Hence, I direct, that out of the 75% awarded as the back wages, the amount paid by the Corporation to the accident victim in the motor accident case will be deducted and the balance alone would be paid to the worker towards back wages.
17. For the above reasons set out above this case partly fails only because the lapse of the Corporation in conducting the case. The common man has not only to bear the loss sustained, but suffer a careless driver driving the vehicle on the road. Writ petition is dismissed.
Send a copy of this order to the Managing Director, K.S.R.T.C. for proper action.