ORDER
R.J. Kochar, J.
1. The petitioner corporation is aggrieved by the order passed by the Industrial Court on 4th March, 1999 in appeal I.C. No. 98 of 1993 filed by the General Manager of the BEST Undertaking, of the Corporation who was aggrieved by the order of the Labour Court dated 27th August, 1993 granting the relief of reinstatement with full back wages and continuity of service to the respondent No. 2, the bus driver, who was dismissed by the petitioner’s undertaking after holding a domestic enquiry in the charge of misconduct levelled against the said driver under the Standing Order No. 20(J) i.e. for gross negligence.
2. The facts giving rise to the present petition are summarized in the synopsis given by the petitioner. On 20th June, 1989, the bus driver (respondent No. 2) while on duty driving the bus rashly and negligently knocked down to death a 7 year old girl. A charge sheet was served by the petitioner on 6th July, 1989 charging the driver for the misconduct under Standing Order No. 20(J).It appears that the said driver did not submit his written explanation to the charge sheet to explain the circumstances of the accident and to admit or deny the charges levelled against him. It appears that a full fledged domestic enquiry was held in the charges in accordance with the provisions of the certified Standing Orders governing the BEST undertaking. It further appears that the charge sheeted driver appeared before the enquiry officer (trying officer) along with his union representative to defend him in the enquiry. The management examined its witnesses in support of the charge while the delinquent driver also examined two witnesses. He also gave his own statement. The union representative cross-examined the management witnesses and similarly the witnesses examined on behalf of the delinquent driver were also cross-examined on behalf of the undertaking. On the basis of the evidence and material on record, the enquiry officer recorded his findings holding the delinquent driver guilty of the charge of gross neglect of work i.e. rash and negligent driving resulting in killing of a 7 year old girl. As the enquiry officer is empowered under the Standing Orders to impose punishment after the enquiry, he imposed the extreme punishment of dismissal of the delinquent driver on the ground of proved misconduct against him. The enquiry officer also considered the past record of the delinquent driver and concluded that he was not a fit person to be retained in the services of the undertaking and, therefore, he was ordered to be dismissed with effect from 24th October, 1989.
3. The delinquent driver filed unsuccessfully two internal appeals through its union i.e. the respondent No. 1. Both the appeals were dismissed and the order of the dismissal passed by the enquiry officer was confirmed by both the appellate authorities. The respondent No. 1 union, thereafter, filed an application under Section 79 read with Sections 78 and 42(4) of the Bombay Industrial Relations Act, 1946 (hereinafter referred to as “the BIR Act”) challenging the propriety and legality of the order of dismissal passed by the petitioners under the Standing Orders. The respondent union prayed for reinstatement with full back wages and continuity of service of the delinquent driver. There was no challenge to the fairness and propriety of the domestic enquiry held by the management in the charge levelled against the driver. I may mention here itself that both the courts below have conclusively held that the domestic enquiry was fair and proper. Both the courts, however, have held that the findings of the enquiry officer were perverse and the enquiry was set aside on that ground. Both the courts have concurrently quashed and set aside the order of the dismissal and have granted reinstatement with full back wages and continuity of service to the delinquent driver. The petitioner was aggrieved by the order passed by the Labour Court and therefore, preferred an appeal under Section 84 of the BIR Act before the Industrial Court at Mumbai. The Industrial Court also agreed with the judgment of the Labour Court and refused to interfere with the said order of the Labour Court granting reinstatement with full backwages and continuity of service to the delinquent. The petitioners are aggrieved by the said order of the Industrial Court and they have, therefore, challenged the legality, propriety and validity of the said order under Article 226 of the Constitution of India.
4. Nobody appears for the respondent union though served. Shri Talsania, the learned Counsel for the petitioners files affidavit of service, which is taken on record and marked as Exh.X for identification. Shri Talsania prays that the respondent No. 2 may be deleted as it was not possible for the petitioner to serve him as his whereabouts are not known. In any case, he was always represented by respondent No. 1 as the representative union for the transport undertaking for the local area of Mumbai. He has also pointed out that the delinquent driver was defended by the representative union in the domestic enquiry and it had also instituted the proceedings before the Labour Court and defended the appeal in the Industrial Court. The respondent No. 1 has not appeared to contest this petition, though served.
5. Shri Talsania has submitted that the Laobur Court as well as Industrial Court both have held against the petitioner on the point that the enquiry officer had not considered the evidence of a witness, rickshaw driver examined by the delinquent bus driver. According to both the courts the evidence of the rickshaw driver was of importance as he was said to be an eye-witness on the spot. Both the courts have set aside the enquiry and have granted the full relief of reinstatement with full backwages and continuity of service only on this point that the findings recorded by the enquiry officer are perverse as he did not consider the evidence of the said rickshaw driver. According to the learned Counsel, the conclusion of the courts below that the enquiry officer did not consider and apply his mind to the said piece of evidence is totally wrong. He has pointed out from the findings recorded by the enquiry officer on page 87 of the
paper book, the enquiry officer has discussed the evidence of the rickshaw driver and discarded the same and did not accept his testimony on account of self-conflicting statement made by the said witnesses. The enquiry officer has given cogent reasons for finding the evidence of that witness as not believable and trustworthy. The enquiry officer has, therefore, applied his mind to the evidence of the rickshaw driver examined by the delinquent bus driver and, therefore, according to Shri Talsania, the conclusion of both the courts below are totally erroneous. It was well within his powers and jurisdiction to accept or to discard the evidence of the witness examined before the enquiry officer. Shri Talsania has stressed the point that the enquiry officer has recorded the evidence of the rickshaw driver and has discarded the same after giving reasons for the same. The Labour Court, in exercise of his jurisdiction under Section 79 of the BIR Act had no powers to hold that the conclusions drawn by the enquiry officer ought to have been in a particular manner and that the enquiry officer ought to have believed the rickshaw driver. The Labour Court’s jurisdiction and function is not to impose its opinion on the enquiry officer. It cannot substitute its own findings in place of the findings of the enquiry officer. The findings of the enquiry officer can be termed as perverse, if a particular piece of evidence is not considered at all by the enquiry officer, while coming to certain conclusions. In the present case, according to Shri Talsania, the enquiry officer has applied his mind to the evidence of the rickshaw driver and has discarded his testimony after giving reasons. The learned Counsel has criticized the approach of the Industrial Court also. The Industrial Court has also followed the same reasoning which was given by the Labour Court that the enquiry officer had not considered the evidence of the rickshaw driver. Shri Talsania has further strongly canvassed that the past record of the bus driver was totally unsatisfactory. He has pointed out from the findings of the enquiry officer at page 90 of the paper book that he was punished on 12 occasions and these punishments were of the nature of suspension of two days or five days, reduction in grade etc. Shri Talsania has further pointed out that besides the aforesaid 12 punishments, there were 19 reports of the blameworthy accident/collision cases. In the aforesaid circumstances, in the background of proved misconduct and the past record being of aggravating nature, it was submitted by the learned Counsel that the driver did not deserve to be continued even for a while in the services of the undertaking which is catering the needs of the millions of city commuters and the lives of pedestrians would be in danger. He has stressed the point that on several occasions he was found guilty of bad driving and collision etc. His rash and bad driving has finally taken the life of an innocent girl, says the learned Counsel. According to him, therefore, the extreme punishment of dismissal is the only legal and proper punishment and both the courts have committed grave error of law in directing reinstatement with full back wages and continuity of service of such a driver, after setting aside the lawful order of dismissal of the bus driver.
6. I have scrutinised the proceedings including the three orders of the authorities below viz., (i) report of the enquiry officer, (ii) the judgment of the Labour Court and (iii) the judgment of the Industrial Court. I have also considered the other relevant material on record. It is significant to note that the findings and the order of the enquiry officer have been concurrently confirmed
by the two appellate authorities provided under the certified Standing Orders framed under the provisions of the BIR Act. All the aforesaid three authorities have recorded reasons for their conclusions of finding of guilt of the delinquent driver. The Enquiry Officer has closely considered the evidence and material on record and has analysed the same in his report. He has given cogent reasons for accepting the evidence and for discarding the evidence. He has enumerated eight grounds to find the charge proved against the driver. He has also neatly considered the very bad past record of the delinquent driver. It appears from the past record also that the driver was not a good driver to drive the bus of the transport undertaking. From the year 1975 onwards till 1989 the delinquent driver was punished with suspension for 1 to 3 days on six occasions, censured for two occasions and his grade was reduced for different periods on three occasions for different offences such as damaging private vehicle, collision with car, knocking down pedestrian, bad driving habit, collision with another bus, collision with taxi, rough and rash driving and dangerous overtaking, etc. In addition to the aforesaid graph of bad record of the driver, there are 19 reports for blameworthy accident/collision cases. In my opinion by dismissing such a driver after concluding on the basis of the material on record that he had committed an offence, the management has not committed any illegality or impropriety. It is to the credit of the management that it has taken a lenient view by tolerating this driver for such a long time and that too at the risk of the public, only to avoid the charge of hasty action. The management has waited for a sufficiently long period to give him an opportunity to improve but the case had gone beyond the control of the management when the child was killed in the accident due to his negligent driving.
7. The jurisdiction of a Labour Court under Section 79 of the Act is neither appellate nor revisional. The power of the Labour Court is not as wide as a court of appeal nor is it as narrow as a court sitting in revision. This has been the view taken by the division bench of this High Court 1964 Mh.LJ. 717, Vithoba Maruti Chavan v. S. Taki Belgrami. It is for the Labour Court to decide the propriety and legality of an order of dismissal passed by the employer under the Standing Orders. If the order is in accordance with the prescribed provisions under the Standing Orders, the criteria of legality would be satisfied. If the employer has observed scrupulously the provisions of the Standing Orders, before imposing the punishment on a delinquent employee and if the delinquent employee had adequate and reasonable opportunity to defend himself against the charge levelled against him, and if the principles of natural justice are complied with and if they are not violated in any manner, as far as the legality part of the order is concerned, it would stand satisfied. The employer must hold an enquiry in the charge levelled against the delinquent employee who must get an opportunity of hearing and an opportunity to defend himself. If the enquiry officer on the basis of the evidence recorded and the material produced before him, comes to a conclusion and records a finding of guilt against the delinquent and if the employer accepts such findings and impose a punishment, the first crucial test of legality would stand satisfied. The findings or the report of the enquiry officer must be based on the evidence and material on record. The conclusions must be supported by cogent reasons to be recorded by the enquiry officer. The
conclusions cannot be ipse dixit of the enquiry officer. He must give reasons for his findings. The findings of the enquiry officer should not be perverse or baseless to be instantaneously discarded in a judicia probe. The order should be strictly in accordance with the Standing Orders. Thereafter, the test of propriety of the order of punishment under the Standing Order enters. The question of propriety of the order of punishment is equally important in the industrial jurisprudence. For a frivolous act or charge, the delinquent workman cannot be inflicted with an extreme punishment of dismissal. The principle of punishment is that the punishment or the penalty must be commensurate with the charge levelled against the employee or the workman. The punishment cannot be out of proportion or cannot be disproportionate to shock the conscious of the court or any reasonable man. The judicial officer has to consider judiciously the question of propriety of punishment after taking into account all the facts and circumstances, evidence and material on record and if the employer is satisfied that it was proper to inflict the punishment which he consider to be proper and which stands judicious test of reasonable man, the employer would have satisfied the case of propriety also. He must consider the extenuating circumstances also in favour of the employee. The role or the function of the Labour Court would be to closely see whether the employer has acted legally and properly while passing an order of punishment under the Standing Orders. The Labour Court has to see and find out on scrutiny whether the employer has strictly and scrupulously followed the manner of imposing punishment under the Standing Orders prescribed by the employer and has not violated the principles of natural justice and has not acted mala fide and has not victimised the charge sheeted workman. The Labour Court has to decide the dispute of legality and propriety of the order of punishment passed under the Standing Orders in the light of the aforesaid principles. The grounds of mala fide, victimisation and unfair labour practice are to be put under the caption of propriety of the order of punishment. If the employer has satisfied the aforesaid test, it is not the function and jurisdiction of the Labour Court to substitute its own conclusions or the findings in place of the findings recorded by the enquiry officer. The Labour Court might differ from the findings or the conclusions of the enquiry officer and might come to some other conclusions on the same material that, however, does not give power to the Labour Court under Section 78 of the Act to substitute its own opinion in place of the enquiry officer or the employer. The Labour Court is not conferred with the appellate powers to sit in appeal over the decision of the employer. The labour Court is to watch whether the employer has acted illegally or improperly while imposing an order of punishment. If the Labour Court finds that the punishment is not proper or that the punishment is shockingly disproportionate in that case, it can interfere with the order of punishment or in that case it can quash and set aside the whole order of dismissal, even if the order might withstand the test of legality. Similarly the jurisdiction under Section 78 is not as narrow as is prescribed for the court hearing the revision. The power of superintendence or the power of revision cannot be stretched beyond the narrow compass of errors of law apparent on the face of record. Even on the errors of facts committed by the lower court or the lower authority the revisional authority is not permitted to revise such an order. I can do no better than to cite the following observations of
the division bench of our High Court (Palekar and Gokhale, JJ.) (Supra) while analysing the jurisdiction of the Labour Court under Section 78 of the Act as under:–
“Looking to the language of Section 78 of the Bombay Act, it would be seen that the powers of the Labour Court are not so circumscribed as to confine its jurisdiction to satisfy itself as to the correctness, propriety or legality of an order passed by the inferior Court. Section 78(1)(A) begins as follows :– “A Labour Court shall have power to decide disputes regarding the propriety or legality of an order”. The Labour Court is, therefore, empowered to decide disputes regarding the propriety or legality of an order passed by an employer acting under the Standing Orders, and is not confined only to satisfy itself as to the propriety or legality of an order passed by the employer, In our view, the language employed by the Legislature in Section 78 does not unmistakably show that the powers of the Labour Court are wider than the powers of the Court exercising revisional jurisdiction; and, with respect, it would not be proper to limit those powers, as the Industrial Court has done in the later case, by describing its jurisdiction as being of the nature or a revisional jurisdiction. The fact that the power to decide a dispute regarding the propriety or legality of an order passed by an employer acting under the Standing Orders is conferred on the Labour Court would mean that the Labour Court could, in the interests of justice, either confirm or set aside an order made by the employer acting under the Standing Orders, also on the ground of its propriety or impropriety, with a view to preventing injustice. It is true that the powers are not in the nature of the powers of an Appellate Court, but this will not preclude the Labour Court from exercising its wide powers to examine the propriety of an order in appropriate cases where it appears to it that grave injustice will result if such powers are not exercised. We may incidently mention that even in Balkrishna Tukaram Jadhav v. Brihan Maharashtra Sugar Syndicate Limited, Sholapur,1958 1 CR Bom. 589 referred to earlier, the Industrial Court in fact considered the circumstances which were pointed out as extenuating circumstances for deciding whether the punishment was proper, and it was after considering these circumstances that the Industrial Court came to the conclusion that the punishment meted out by the employer was proper. It does not even seem to have been suggested that once the misconduct was held proved the Labour Court had no power under Section 78 to consider the question of punishment and to make an appropriate order, if it was found that the punishment was so disproportionate to the nature of the guilt that the labour Court should alter it to some other appropriate punishment.”
The learned Judges have dissected the provisions so beautifully not to leave any manner of doubt about the parameters of the jurisdiction of the Labour Court under Section 78 of the Act as below :–
“It is, therefore, not possible to accept the contention that under the Bombay Act the power of the Labour Court should be so narrowly construed as to enable the Labour Court to interfere with an order of
dismissal on misconduct, only if the circumstances which are enumerated by the Supreme Court in Indian Iron & Steel Co. v. Their Workmen, AIR 1959 SC 130 = (1958) 1 LLJ 260, are established. There may be cases where on account of the individual nature of the dispute there may be no victimization or unfair labour practice in the accepted sense of the term. It may be that the order passed by the employer under the Standing Orders is not mala fide or is not an order made in bad faith. It is also possible that the inquiry conducted by the domestic tribunal may not suffer for failure to follow the principles of natural justice. The legality of the order may not be called in question and yet the propriety of the order could be in dispute. If an order is challenged on the ground of its propriety, in view of the wide language used by the Legislature, it is not possible to say that the Labour Court will not have the power to set aside or alter that order in proper cases, to avoid miscarriage of justice. This is not to suggest that the Labour Court will sit as a Court of appeal and interfere with a finding made by the domestic tribunal merely because the Labour Court may take a different view of the evidence led before the domestic tribunal. As we have already pointed out, a fresh or de novo inquiry is not contemplated if the inquiry conducted by the domestic tribunal has been fair and has been in accordance with the Standing Orders. In the light of the well-known principles accepted in industrial adjudication, it has to be borne in mind that the inquiry held by the employer is a domestic inquiry and, in the absence of compelling reasons (on the ground either of its unfairness or of its illegality) the Labour Court, should not interfere with the findings or the conclusions of the domestic tribunal if such an interference is called for on the ground of its impropriety in order to avoid grave injustice occurring in a particular case, We are unable to accept the contention that even in such cases the Labour Court has no power to interfere with an order passed by the domestic tribunal, if once it is shown that that order is a legal order and did not suffer from infirmities as indicated in Indian Iron & Steel Co. v. Their Workmen“.
Besides the aforesaid judgment our High Court, even a division bench of the Gujarat High Court (Bhagwati & Shelat, JJ.) considering the very same provisions of the BIR Act has observed as under :–
“Thus, the Labour Court is not an Appellate Court over such tribunals so as to enable it to appreciate the evidence led before the domestic tribunal and substitute its own finding, if he cannot agree therewith. It does not exercise revisional jurisdiction as well. It has only the limited original jurisdiction and has to decide dispute provided it falls under Section 78(1) of the Act. If grave injustice is caused, it may interfere with its order on the ground that it lacked properly though no doubt it can interfere if it suffers from any illegality either in procedure of enquiry or on other ground under the Standing Orders which bind the parties. Similarly in appeal against the order of the Labour Court under Section 84(1) of the Act, the Industrial Tribunal can exercise only such and similar powers which the Labour Court has under Section 78(1) of the Act and no more.” “Para. 18 :– It followed from the discussion hereabove, that apart from
the Labour Court acting under Section 78(1) and that the Industrial Tribunal acting as an Appellate Authority under Section 84 of the Act against the order of the Labour Court, their powers and jurisdiction are the same as described in Section 78(1) of the Act, in relation to the order passed by the management i.e. the domestic tribunal acting under the Standing Orders in relation to the employee working in its concern. Neither the Labour Court nor the Industrial Tribunal acts as a Court of appeal in cases of dismissal on misconduct of a workman by the domestic tribunal, so that it can substitute its own judgment for that of the management. Under the Standing Order 15 such powers are with the Managing Agents of the Mills against the order of the Manager called the “domestic tribunal”. That has its basis on the recognized fact that the management of a concern must have power to direct its own internal administration and discipline, and much though its orders are otherwise final under the Standing Orders, they are subject to decision under Section 78(1) in a dispute raised before the Labour Court and then taken to Industrial Tribunal in appeal under Section 84 of the Act. Such a decision by the Labour Court under Section 78(1) of the Act can therefore be challenged on any of the grounds set out in the Supreme Court decision referred to above, so as to justify an interference with the order of the domestic tribunal on grounds of propriety or legality contemplated under Section 78(1) of the Act. On these basic principles Section 78(1) read with Section 78(1)A of the Act and the Standing Orders governing the employee, we have to examine whether the interference by the Industrial Tribunal is in any way justifiable with the decision of the domestic tribunal such as of the Factory Manager of the Mills dismissing respondent No. 2 from service on ground of misconduct established against him”. These two judgments still hold field and they are the good law as yet.
8. In the present case, the enquiry officer has recorded reasons for his conclusions. He has considered the evidence and the material and has drawn his conclusions. Applying the principles of law exhaustively set out hereinabove, from the two judgments, in my opinion therefore, it was not proper exercise of the jurisdiction under Section 78 of the Act for the Labour Court to have substituted its own findings. It cannot be said by any stretch of imagination that the report of the enquiry officer is either perverse or baseless or his conclusions are not supported by reasons. The enquiry officer has carefully considered the evidence of the police constable and also the evidence of the rickshaw driver. I am referring to, in particular, the aforesaid evidence of the two witnesses as the Labour Court as well as the Industrial Court, both have interfered with the order of punishment after reappreciating the aforesaid evidence, which according to me was not proper for both the courts below to have done. In para 17 of the judgment of the Labour Court, the learned Judge has referred to the evidence of police constable recorded by the enquiry officer. The enquiry officer has discarded his evidence on the ground that the very same constable who was on duty on the spot and had gone to the police station to register the first information report which was recorded by a senior police inspector, makes a total contrary
statement before the enquiry officer. For this reason the enquiry officer has not believed the evidence of the constable and has discarded the same being only “an afterthought” for the reasons best known to the police constable who had retracted from the FIR. I do not find any reason to disbelieve the conclusion of the enquiry officer to discard the evidence of the constable who had gone hostile. The police constable atleast ought not to have turned hostile to give evidence against his own earlier statement made to his own police inspector who recorded his FIR. Such a piece of evidence did deserve a contemptuous treatment which was rightly given by the enquiry officer. The constable being protector of law had turned hostile and had given a totally contrary statement before the enquiry officer for the reasons best known to him. Since the said constable was on duty at the time of the occurrence of the accident and since he had immediately gone to the police station to report the incident, the said material had rightly been believed by the enquiry officer though the very same police constable had retracted from the same while in the enquiry. The FIR was recorded by the officer of the rank of senior Inspector of Police. It cannot be said that the said senior Inspector of Police had imagined that some accident had taken place and that the said constable was lodging the FIR. I fail to understand how the Labour Court and the Industrial Court both have given credence to such a piece of evidence which actually deserved to be discarded, contemptuously. The police constable had no regrets for the human life and he very lightly and easily turned hostile and retracted from his own earlier truthful statement. His testimony in the enquiry has created cloud doubts about his truthfulness. In my opinion, both the Labour Court and Industrial Court have committed a grave error of law in discarding the report of the enquiry officer merely because the enquiry officer in his own right had discarded the evidence of the police constable and had based his conclusions on the material i,e. FIR lodged by the very same witness and recorded by the Senior Police Inspector at the police station. If the enquiry officer had discarded the evidence of the constable and if he had given cogent and sufficient reasons for doing so, it was not for the Labour Court and the Industrial Court to have interfered with the said findings. Both the courts below, therefore, have committed a serious error of law in condemning the findings of the enquiry officer as perverse. I do not find an iota of perversity in the said findings of the enquiry officer.
9. The second piece of evidence on which both the courts have heavily relied upon is the statement of the rickshaw driver recorded before the enquiry officer as a witness of the delinquent driver. The enquiry officer has not believed the statement of the rickshaw driver and has given his own reasons for disbelieving the version of the rickshaw driver. The story of the rickshaw driver is not believed by the enquiry officer as it appeared to him to be not probable. According to the rickshaw driver, he was 15 feet ahead of the offending bus and he claimed before the enquiry officer that he had seen the accident from the side mirror of his rickshaw. He stated that he had seen a cyclist knocking down the girl and the said girl falling under the rear tyre of the bus. This story of cyclist knocking down the girl etc. had never come before at any stage of the matter. For the first time, the rickshaw driver has given this version before the enquiry officer. Even the police constable in his FIR did not refer to the cyclist knocking
down the girl. The enquiry officer has not believed this version and according to me, rightly so, as the rickshaw driver claims to see the whole accident from his side mirror, which could not be of a very large size. It appears that the rickshaw driver was all along watchful of the side mirror and that he was not looking ahead in the traffic. According to the enquiry officer, the version of the rickshaw driver was not truthful as it is common sense that from the side mirror he would only see the bus and not the cyclist knocking down the girl under the rear tyre of the bus. All such events take place only within a fraction of moment and it is not possible to have the whole scene watched from a side mirror. The enquiry officer has, in my opinion, rightly disbelieved the statement of the rickshaw driver for more than one good reasons. It is further pertinent to note that even the delinquent driver has not stated about the cyclist knocking down the girl etc. before the enquiry officer. Even before the accident reporter, neither the delinquent driver nor the conductor have referred to the cyclist. Even the rickshaw driver has not made any statement before the police that such an event had taken place. Another material on which the enquiry officer has placed reliance is the report of the accident reporter, an employee of the undertaking, whose duty appears to be to reach the spot of accident and record the statement of the concerned driver/conductor and any other witnesses if available. In the said report of the accident reporter there is no mention by the driver about the cyclist coming in the way or the cyclist knocking down the girl. Even the conductor had made a statement before the said accident report that the driver was not driving properly but he was driving in a zig zag manner. Even before the enquiry officer, the driver had not referred to the cyclist. Even the conductor has not said anything about the cyclist. It is, therefore, clear that the rickshaw driver is brought in by the delinquent driver to save his skin. The evidence of the rickshaw driver, in my opinion, has been rightly discarded by the enquiry officer and wrongfully given credence to by both the courts below. It is the privilege of the enquiry officer to consider the evidence and material on record and to come to his own conclusions after recording reasons to accept and/or reject the same. It was not for the Labour Court and the Industrial Court to have opined that the enquiry officer ought to have accepted the evidence of the constable and the rickshaw driver. The enquiry officer has rightly appreciated the evidence and has discarded the evidence of both the aforesaid witnesses in correct perspective.
10. Both the courts below have committed serious error of law in observing that the enquiry officer did not consider the evidence of the rickshaw driver. Both the courts are wrong as the enquiry officer has not only considered the said piece of evidence but has applied his mind to discard the same and has recorded reasons for doing so. The enquiry officer has completed his role while both the courts below have erroneously stated that the enquiry officer had ignored the important piece of evidence.
11. Besides the above, the enquiry officer has considered the material on record which was before him i.e. the FIR recorded by the Senior Police Inspector, accident reporter’s report, absence of story of the rickshaw driver except at the time of enquiry, absence of the story of the cyclist knocking down the girl etc.; improbability of the rickshaw driver seeing the scene of accident from his side mirror while driving the rickshaw in the traffic. It is pertinent to note that there
was no explanation given by the delinquent driver in reply to the charge sheet. In my opinion, the explanation to the charge sheet should hold a prime position in the disciplinary proceedings. The provisions in the Standing Order is that the employer should call upon the charge sheeted workman to submit his written explanation. Such a provision has its own significance. The charge sheeted workman explains his version as against the charge. He denies or accepts or denies or accepts partly. All subsequent events would be tantamount to after thoughts and after cool calculations. In this matter if the delinquent driver had submitted his written explanation setting out the story that would have been of prime importance. He has not done so. That is also a material fact which cannot be ignored. Considering the totality of the facts of record both the courts have committed a serious error of law in quashing and setting aside the order of dismissal imposed by the petitioner dismissing the delinquent driver from service. Both the courts below have committed a serious error of law in concluding that the enquiry officer had given perverse findings for the reasons given by both the courts below.
12. hi the aforesaid circumstances and also considering the extremely bad past record of the delinquent driver, I allow the petition and make the rule absolute in terms of prayers (a) and (b) with no orders as to costs.
13. Shri Talsania informs me that under the order of Industrial Court the BEST undertaking had deposited an amount of Rs. 1,25,204.99 on 30th November, 1993. The BEST undertaking is hereby allowed to withdraw the said amount with interest, if any.
14. All concerned including the Registrar, Industrial Court to act on copy of this order duly authenticated by the Associate.