IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.04.2010 CORAM: THE HONBLE MR.JUSTICE K.CHANDRU W.P.No.18034 of 2001 M.Ramalingam ... Petitioner Vs 1.The Presiding Officer, Labour Court, Vellore. 2.The Management of Pattu Kottai Azhagiri Transport Corporation (Now known as Tamilnadu State Transport Corporation Ltd., Division II) Rangapuram, Vellore. ...Respondents Prayer :Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified mandamus, calling for the records relating to the Award in I.D.No.70 of 1996 dated 08.01.2001 passed by the first respondent quash the same and direct the second respondent to reinstate the petitioner with continuity of service and backwages and all other attendant benefits. For Petitioner : Mr.R.Krishnasamy For Respondents: Ms.Rajeswari for M/s.King and Partridge for R2 O R D E R
The petitioner is a workman. He has come forward to challenge the Award passed by the first respondent – Labour Court, Vellore in I.D.No.70 of 1996 dated 08.01.2001. By the impugned Award, the Labour Court declined to grant any relief to the petitioner.
2. The writ petition was admitted on 28.09.2001. On notice from this Court, the second respondent had filed a counter affidavit dated 31.03.2008.
3. The brief facts leading to the filing of the writ petition are as follows:
The petitioner was working as a Driver in the second respondent Corporation since 15.06.1976. On 24.04.1994, when he was driving the bus bearing Registration No.TML 2957 from Agraharam Village to Vellore, the bus met with an accident at Mullipalayam near Vellore. The petitioner was given a charge memo dated 01.06.1994 charging that he hit against the auto-rickshaw coming from the opposite direction and that the petitioner was responsible for the death of the auto driver and injuries to the passengers and also for the damage caused to the bus. The petitioner gave his explanation dated 23.06.1994 denying the charges. However, the second respondent conducted an enquiry and removed the petitioner from service on 17.05.1995.
4. The petitioner raised an industrial dispute before the Labour Officer, Vellore. On the strength of the failure report, he filed a claim statement before the Labour Court. The Labour Court took up the dispute as I.D.No.70 of 1996 and issued notice to the second respondent corporation. The second respondent filed a counter statement justifying the removal.
5. Before the Labour Court, the petitioner agreed that he did not dispute the validity of the enquiry and oral evidence on that score was dispensed with and the documents were marked by consent. It is on the basis of these documents, arguments were advanced. During the proceedings, the petitioner filed an application to receive additional documents at the time when the Award was being dictated by the first respondent Labour Court. The documents that were produced viz., the counter filed by the respondent before the Motor Accident Claims Tribunal in MCOP No.445 of 1994 as well as the deposition of Ashok Kumar, who was the Conductor of the bus as R.W.1 in M.C.O.P.No.445 of 1994. The Labour Court refused to receive those two documents and held that the petitioner cannot take advantage of those documents and acquittal before the Criminal court has no bearing on the proceedings before the Labour Court unless it forms part of the record in the domestic enquiry.
6. The learned counsel for the petitioner attempted to bring those two documents before this Court on the strength of certain observations made by a Division Bench of this Court in Tamil Nadu State Transport Corporation, Tiruchirapalli v. P.Karuppusamy reported in 2008-I-L.L.J 460 (Mad). This Court is not inclined to accept those documents as part of the records in this case. The Labour Court had rejected reception of those documents on the ground that these documents were not available at the time when the Management filed counter statement before the Labour Court and they did not form part of the domestic enquiry proceedings. May be the Labour Court is right in stating that any reception of documents when the enquiry was not attacked by the workman as per proviso to Section 11-A of the I.D.Act which prohibits receiving any documents other than which forms the materials on record. The Labour Court held that no domestic enquiry proceedings cannot be found fault with on the ground that the concept of res ipsa loquitor will apply.
7. Apart from these issues, the statement of one Marys Selvin, who travelled in the Autorickshaw show that the bus was driven in a rash and negligent manner. Though the workman stated that it was biased witness, the Labour Court refused to take the workman’s objection on the ground that she was the defacto complainant in Crime No.283/1994 in the criminal proceedings. The Labour Court after looking into the position of the vehicles as found in the photograph published in the newspapers held that it was not a normal road accident but an head-on collision which occurred in a busy locality. The Labour Court also held that it was the petitioner who was mainly responsible for the accident. However on the question of quantum of penalty imposed, the Labour Court held that the punishment of dismissal was not disproportionate and considering the fact that the Corporation was facing proceedings before MACT and has to pay damages, the punishment cannot be said to be disproportionate. It is in that view of the matter, the claim of the Workman came to be dismissed.
8. Even though the evidence of R.W.1 before MACT in MCOP No.445 of 1994 cannot be a material available in the domestic enquiry, but the counter statement filed by the Corporation in the MCOP No.445 of 1994 dated 25.09.1995 can be atleast looked into for the purpose of granting relief to the petitioner. For that purpose, the judgment of the Division Bench in P.Karuppusamy’s case (cited supra) referred to above can be looked into. The Division Bench in that judgment in Paragraph 24 held 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 hand 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 December 9, 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.”
9. It must be noted that the petitioner has been in service from June 1976 and had put in nearly 18 years of service. Therefore, while exercising power under Section 11-A of the I.D.Act, the Labour Court cannot simply go by the counter pleadings made by the second respondent viz., that they were mulct with heavy cost in the Motor Accident Claims Tribunal and the petitioner having caused loss must be sent out of service. If that contention is taken into account, then the argument of the workman that the stand taken by the Corporation before the MACT also assumes importance. As held by the Division Bench in the P.Karuppusamy’s case (cited supra) the fact that the Management defended his interest in the other fora can also have a bearing in grant of relief.
10. The learned counsel for the petitioner brought to the notice of this Court the judgment of the Supreme Court in Mohammed Aynuddin v. State of A.P., reported in (2000) 7 SCC 72, wherein the concept of negligence in applying res ipsa loquitor principle was also considered. The Supreme Court held that in case of an accident, the negligence of the Driver cannot always be presumed and there must be evidence to show that the Driver of the bus was guilty of culpable negligence. It is also held by the Supreme Court that the principle of res ips loquitor is only a rule of evidence to determine the onus of proof in actions relating to negligence.
11. In any event considering the fact that the workman had put in 18 years of service and also the fact that before the MACT, the Corporation in their counter statement denied the role of the workman as being negligent, the total denial of relief by the Labour Court is unwarranted. The Labour Court considering the nature of long service put in by the workman and the total deprivation that he may have by denial of employment could have converted the dismissal into one of retirement. Atleast in that way, the workman can get terminal benefits which he may require at the end of his service lest he my be driven to penury. At the time of filing of the writ petition, the petitioner was nearing 58 years and almost reached the age of superannuation.
12. Therefore, considering the facts and circumstances of the case, this court is inclined to interfere with the Award only to the limited extent viz., that the Award in denying total relief to the workman stands modified. The petitioner will be deemed to have retired on the date of the Award namely on 08.01.2001. But however for the interregnum period, he will not be paid any backwages. But his entire service will be counted for the purpose of getting his terminal benefits.
13. Accordingly, the writ petitions stands partly allowed. The Award of the Labour Court stands modified to the extent indicated above. No costs. The second respondent is directed to implement this order within 12 weeks from the date of the receipt of this order.
svki
To
1.The Presiding Officer,
Labour Court, Vellore.
2.The Management of Pattu Kottai
Azhagiri Transport Corporation
(Now known as Tamilnadu State
Transport Corporation Ltd.,
Division II)
Rangapuram,
Vellore