ORDER
D.Y. Chandrachud, J.
1. Rule, made returnable forthwith. Respondent waives service. By consent taken up for hearing and final disposal.
2. The Respondent was appointed as a driver with the Maharashtra State Road Transport Corporation in 1993. On 1st March, 1997, a bus laden with passengers was being driven by the Respondent and, as is not uncommon, was packed to capacity. Two persons were also allowed by the Respondent to sit inside the driver’s cabin contrary to regulations. While negotiating the ghat section which the bus was ascending, there was a ‘U’ turn. A dumper was descending the ghat and an accident took place as a result of which the bus turned turtled thrice and fell down into the ghat to a distance of 150 feet. Five passengers died and sixty five passengers were injured. A disciplinary enquiry was held against the Respondent, in which several witnesses including passengers who were travelling in the bus were examined. The Enquiry Officer came to the conclusion that the Respondent was guilty of rash and negligent driving. The Disciplinary Authority, after the disciplinary proceedings were concluded imposed a penalty of dismissal from service, after a notice to show cause dated 29th July, 1997. The Respondent thereupon moved the Labour Court at Kolhapur in a complaint under items 1(a), (b), (c), (d), (f) and (g) of Schedule IV of the Maharashtra Recognition of the Trade Unions and Prevention of Unfair Labour Practices Act, 1971. (“the Act”).
3. Items 1(a), (b), (c), (d), (f) and (g) of Schedule IV to the Act provide thus:
“1. To discharge or dismiss employees-
(a) By way of victimisation;
(b) not in good faith, but in the colourable exercise of the employer’s rights;
(c) by falsely implicating an employee in a criminal case on false evidence or on concocted evidence;
(d) for patently false reasons;
(e) …
(f) in utter disregard of the principles of natural justice in the conduct of domestic enquiry or with undue haste;
(g) for misconduct of a minor or technical character, without having any regard to the nature of the particular misconduct or the past record of service of the employee, so as to amount to a shockingly disproportionate punishment.”
4. The Labour Court by its judgment and order dated 10th July, 1998 arrived at the Conclusion that the enquiry was fair and proper and that the findings which were recorded by the Enquiry Officer were not perverse. The Court held that the employer had not engaged in an unfair labour parties under any of the items of Schedule IV as alleged and that the Respondent was, therefore, not entitled to reinstatement with continuity of service and backwages. The Labour Court adverted to all the relevant material in arriving at the conclusion that the charge of misconduct on the ground that the Respondent had been rash and negligent was duly established. The Labour Court noted that witness Jadhav who was a bus driver and was travelling in the bus was sitting on the battery compartment inside the driver’s cabin. That witness who was also an employee of the Corporation claimed that the Respondent had not been driving at a high speed and it was the dumper which had given a dash. An independent witness who was a passenger in the bus was examined who was sitting in Seat Nos. 1 and 2 together with his wife just behind the driver’s cabin. The witness stated that the Respondent while driving the bus was engaged in a conversation with two other persons who were sitting in the cabin. According to him, the Respondent was not careful and the accident took place due to the negligence of the Respondent. A suggestion was made to the witness in the course of the cross examination that the accident in question had occurred due to the fault both, of the driver of the dumper as well as the bus driver meaning thereby the Respondent himself. This suggestion was accepted by the witness. The Labour Court noted that the suggestion indicated that according to the Respondent himself he was equally guilty of negligence. The conductor of the bus was examined and he stated that under the rules no one except the driver was permitted to sit in the cabin of the driver. He, however, stated that the bus was not in speed and the dumper had dashed against it on the rear side. The Respondent in his statement stated that two other drivers were travelling in the bus and were sitting inside his cabin. He admitted the incident in the course of which the bus fell down in a valley at a distance of 150 ft. in which five passengers were killed and 65 were injured. The Labour Court then referred to the other documents including the spot Panchanama and a map of the spot of the accident. The Panchanama indicated that the tarred road was 23 ft. wide and there was a Kachha section on either side. On a review of the material on record, the Labour Court held that though the driver of the dumper was negligent and was responsible for the accident, the Respondent was equally responsible. In fact, the suggestion on the part of the Respondent during the course of the cross examination of the passenger was also that both he as well as the driver of the dumper were equally negligent. The Labour Court held that though it may well have been that the accident could have been avoided if the dumper driver had taken an acute or shorter turn that did not exonerate the Respondent himself. The Respondent was incharge of 65 passengers including two sitting in the driver’s cabin. The sit was admitted to be a ghat section with a turning and the Respondent was expected to be extremely careful and cautious. The finding of the Enquiry Officer, it was held, could not be regarded as perverse. In so far as the quantum of punishment was concerned, the labour Court held thus:
“Coming to the quantum it appears that the Complainant had served the Respondent for about 3 years and there are no adverse entries in his service record. However, the accident was extremely serious in as much as 5 passengers were killed and more than 60 were injured apart from the damage which must have been caused to the bus. The Complainant is a driver employed for carrying passengers. Considering the lapse on his part the punishment of dismissal or termination of services proposed by the Respondent cannot be said to be shockingly disproportionate or harsh. Further the misconduct can also not be said to be of minor or technical character as contemplated in Schedule IV item 1(g). In sum, I find no unfair labour practice whatsoever engaged in by the Respondent.”
5. The Respondent then moved the Industrial Court at Kolhapur in revision under Section 44 of the Act. The Industrial Court agreed with the Labour Court that the misconduct on the part of the Respondent had been duly established. In holding thus, the Industrial Court relied upon the evidence in the course of the enquiry of the passenger, of the driver who was sitting the battery box inside the driver’s cabin and on the circumstances in which the accident took place. The Industrial Court held that the accident took place in a ghat section where the Respondent ought to have kept a reasonable distance from the dumper so as to rule out any possibility of a mishap. Having held thus, the Industrial Court set aside the penalty of dismissal imposed by the Petitioner which had been affirmed by the Labour Court and directed the Petitioner to continue to employ the Respondent on the post of a driver. The Industrial Court permitted the Petitioner to impose an appropriate punishment upon the Respondent other than of dismissal or discharge. In holding thus, the circumstances which weighed with the Industrial Court were that (i) the accident took place on a curve on which the bus was in moderate speed and the dash by the dumper driver was a direct and proximate cause of the injuries; (ii) The Labour Court was swayed by the injuries sustained by the passengers; and (iii) The past and future service record of the Respondent did not deserve the imposition of the extreme punishment of dismissal. In holding thus, the Industrial Court relied upon the judgment of a learned Single Judge of this Court in Divisional Controller, M.S.R.T. Corporation, Bhandara v. Gulab Tanbaju Bhankarkar (1998 I Mh. L.J. 818).
6. Counsel appearing on behalf of the Petitioner has urged that he Industrial Court, in the exercise of its revisional jurisdiction under Section 44 of the MRTU & PULP Act, 1971 was not justified in interfering with the view taken by the Labour Court, particularly having concurred with the finding that the misconduct had been duly established. Counsel urged that the judgment of the learned Single Judge is not an authority for the proposition that a single accident has to be ignored if the service record, is otherwise blamefree. The facts of each case have to be taken due note of. In the present case, on the date when the accident took place the driver had only three years’ service to his credit and it was during this period that there was no other accident noted in his record. Counsel urged, relying upon the judgment of a Division Bench in Divisional Controller, MSRTC, Wadhwa v. Dhyaneshwar S/o Kewaji Khole and Anr. (1992 II CR 773) that in such a case as against the consequence visited by a penalty of dismissal on the individual workman the Court must have due regard to the vital interest of the community that is affected by rash and negligent driving on the part of a driver of a public transport undertaking. On the other hand, it was urged on behalf of the Respondent relying upon the judgment of the learned Single Judge noted earlier that the accident in this case had taken place on a turn; the bus which had been driven by the Respondent was ascending the ghat; the dumper had struck the bus on its rear side and this was not a head-on collusion. In the circumstances, it was urged that the Industrial Court was justified in interfering with the order of the Labour Court, in so far as the punishment was concerned. These submissions can now be considered.
7. In the present case, both the Labour Court as well as the Industrial Court in revision have concurred in holding that the disciplinary enquiry which was held was fair and proper and that the findings which were arrived at by the Enquiry Officer were not perverse. The evidence on record shows that the Respondent, when the accident took place, had permitted two other persons to occupy the driver’s cabin in violation of the rules; that this was in violation of the rules was admitted; but it must be mentioned that the conductor of the bus specifically stated so. The Respondent himself admitted that he had permitted two other persons to occupy the driver’s cabin. A passenger who was travelling in the bus was examined in the course of the enquiry amongst other witnesses. On a review of evidence and upon considering the circumstances in which the accident took place, both the Courts below held that the finding of misconduct was established. This was a serious incident in which a bus carrying a full load of 65 passengers hurtled down the section of the ghat to a distance of 150 ft. Five passengers lost their lives and 65 passengers were injured. The finding of misconduct has been held to be established by both the Labour Court and the Industrial Court.
8. In so car as the quantum of punishment was concerned, the Labour Court took due note of the fact that the service record of the Respondent who had three years of service to his credit had no adverse entry. However, the Labour Court was of the view that this was a serious accident in which five passengers were killed and more than 60 were injured. Obviously in an incident of the nature serious damage was also caused to the bus. The Labour Court emphasised that the Respondent was a driver employed in a public transport undertaking constituted for carrying passengers. Consequently, considering the lapse on his part the punishment of dismissal was not shockingly disproportionate. The Labour Court also held that the misconduct was not of a minor character as contemplated in item 1(g) Schedule IV. The Industrial Court while interfering with the order of the Labour Court seems to have read the judgment of the Labour Court to reflect that the Labour Court had been swayed by the injuries sustained by the passengers. Ex facie, this is not a correct reading of the judgment of the Labour Court. The Labour Court has in the extract which has already been called out earlier had due regard to the nature of the incident, the lapse on the part of the Respondent and the fact that the misconduct could not be said to be of a minor of technical character. Surprisingly, having concurred on the part of the Respondent had been duly established, the Industrial Court then held that the accident had taken place on a curve, the bus was at a moderate speed and the dash by the dumper driver was a direct and proximate cause of the accident. In my view, the entire approach of the Industrial Court was flawed. Having once come to the conclusion that the finding of misconduct was established, the Industrial Court was not justified, particularly in the exercise of its revisional jurisdiction under Section 44 in interfering with the well considered reasons furnished by the Labour Court in paragraph 17 of its judgment for sustaining the punishment imposed by the employer.
9. The Labour Court had quite correctly emphasised that the complaint was under Clauses (a), (b), (c), (d), (f) and (g) of Item 1 of Schedule IV of the Act. Obviously, Clauses (a), (b), (c), (d) and (f) had no application whatsoever since this is not a case of dismissal by way of victimisation, or not in good faith, by implicating the employee in a criminal case on false evidence for patently false reasons or in disregard of the principles of natural justice. The only other clause of item 1 that was invoked was Clause (g) which deals with the dismissal of an employee for misconduct of a minor or technical character, without having regard to the nature of the misconduct of the past service record so as to amount to a shockingly disproportionate punishment. In the present case, the Labour Court had expressly entered a finding that the misconduct was not of a minor or technical character. The findings which have been arrived at by both the Courts below are in any event clearly demonstrative of the fact that the misconduct was not of a minor or technical character. The misconduct was of a serious nature. The consequence of the misconduct was that five passengers lost their lives and over 60 suffered injuries in the accident. Hence, none of the provisions of item 1 of Schedule IV which were invoked were attracted.
10. A Division Bench of this Court in Divisional Controller, MSRTC, Wardha v. Dhyaneshwar Kewaji Khole (1992 II C.L.R. 773) dealt with a case where a driver of the Maharashtra State Road Transport Corporation was involved in an accident, in which the bus which was driven by him dashed against a stationary bus. After a disciplinary enquiry, he was dismissed from service. A learned Single Judge of this Court in the exercise of the jurisdiction under Article 227 of the Constitution set aside the penalty which was imposed adverting inter alia to the possibility that the brakes may have failed and of the consequence of a dismissal being economic death for the workman. The Division Bench held that on the other hand the Court must have due regard to the serious consequences which flow out of rash and negligent driving particularly on the part of a driver of a public undertaking:
“11. It is true, that the extreme penalty of dismissal from service will visit on the dismissed employee unbearable consequences of economic deprivation and the like. That individual hardship has to be poised against the sufferings of the travelling public at large who use the vehicle or those who use the road and had been victims of such rash and negligent driving of the employee. Unlike a private employer in a smaller non-passenger vehicle, a driver of a stage carriage operated by the state undertaking has a greater responsibility. He is in the enjoyment of advantages and perquisites not ordinarily claimable and available for other employees. Security of service, decent wages, fair treatment and status and respectability attributable to the employment under a State authority – all give him a greater hold even among the generality of the class of employees. This adds to the more onerous nature of his duty and responsibility. In such a situation, if he mis-behaves and mis-conducts himself and in such manner as to generate an instantaneous revulsion towards his gross negligence, a soft approach cannot be taken by the Constitutional Court.”
11. The Industrial Court has relied upon a judgment of the learned Single Judge of this Court in Divisional Controller, M.S.R.T. Corporation, Bhandara v. Gulab Tanbaji Bhandarkar (1998 I Mah. L.J. 818). That was a case where a bus which had been driven by the respondent met with an accident with another motor vehicle which resulted in the death of five persons travelling in the motor vehicle and injuries to some passengers in the bus. In the disciplinary proceedings, it was held that the finding of misconduct was proved and thereupon the respondent was dismissed from service. The Labour Court held that the enquiry was fair and proper and that the findings that had been arrived at were also justified. However, the dismissal was held to be disproportionate to the charges levelled. In that case, the Labour Court noted that no independent passenger in the bus was examined in the enquiry and the accident had taken place at a U turn where a clear view of the front portion of the road was not possible. The judgment of the Division Bench in 1992 II CLR 773 was not cited before the learned Single Judge. It must also be noted that this was a case where the Labour Court had interfered with the penalty which was imposed by the employer and the judgment of the Labour Court had been affirmed by the Industrial Court in revision. The question which arose before the learned Single Judge was whether a case under Article 227 for interference had been made out. Be that as it may, it is clear from a reading of the judgment that the proposition which has been laid down therein does not support the view which has been canvassed on behalf of the Respondent. The learned Single Judge held thus:
“A solitary incident by itself considering the nature of the misconduct could on one occasion be sufficient to impose the punishment of dismissal. In another case the said solitary incident may not by itself warrant dismissal from service. The fact that five persons have died on account of the accident in one set of circumstance may be sufficient to impose the punishment of dismissal. In another set of circumstance looking at the manner in which the accident is caused even though it has resulted in death may justify imposition of harsh punishment.”
12. In the case the learned Single Judge was of the view that the circumstances which had been relied upon by the Labour Court including the absence of an adverse past record and the circumstances in which the accident had taken place had been correctly applied for setting aside the penalty of dismissal. The learned Single Judge, therefore, held that the case before him was not fit and property for warranting the interference of the Court. The judgment of the learned Single Judge, therefore, clearly lays down that there cannot be a hard and fast principle to the effect that a solitary incident whatever be its gravity should be ignored where the past record of the driver is otherwise free from blame. On the contrary, every case has to be decided on its own facts and in a case where the gravity of the incident and nature of the misconduct so warrant even a single incident may well be sufficient to impose a penalty of dismissal. In the present case, by no stretch of interpretation could it be held that the discharge or dismissal of the employee was for misconduct of a minor or technical character. Though undoubtedly, the service record of the employee during the three years during which he was in service prior to the accident and subsequent thereto was blamefree, that by itself would not lead to the interference that the imposition of the penalty of dismissal would amount to a shockingly disproportionate punishment. Unless an unfair labour practice is held to have been established on the part of the employer, the Industrial Court was not justified in interfering with the disciplinary action.
13. The jurisdiction of the Industrial Court in a revision under Section 44 of the MRTU & PULP Act, is based on the power of superintendence. A learned Single Judge of this Court, Mr. Justice S.P. Bharucha (as the learned Chief Justice then was) held in Hindustani Prachar Sabha and Ors. v. Dr. (Miss) Rama Sen Gupta and Anr., (1986 I CLR 77) that the powers of the Industrial Court are akin to those of a superintending Court. The Industrial Court may be justified in setting aside an order where the evidence could never justify the conclusion or, in other words, where the order is perverse. In the subsequent judgment in Vikas Textiles v. Sarva Shramik Sangh (1990 I CLR 257) Mr. Justice S.P. Bharucha speaking for a Division Bench held that the power conferred by Section 44 upon the Industrial Court empowers it to set aside the order under revision when the evidence on record, reasonably read, is incapable of supporting the order. In other words, the Industrial Court may, in exercise of its powers under Section 44, overrule the order under revision when its conclusion on evidence is perverse. In the present case, neither of these tests have been attracted so as to warrant interference in the revisional jurisdiction under Section 44 of the Act. In matters such as the present, the Industrial Court would be well to observe the caution voiced by Mr. Justice B.N. Srikrishna (as the learned Judge then was) in Emco Transformers Ltd. v. S.P. Shouche (1997 ILR 649).
“The Labour Court must remember that basically it is examining the circumstances in order to ascertain whether the contract of employment between the employee must be maintained in tact, even against the wishes of one of the parties. This, the labour Court is entitled to do, if there is total lack of bonafides or a gross case of victimisation or a situation where a totally innocent person has been dismissed from service leading to an interference of victimisation. I am afraid, none of the these factors appear to exist in this case.”
I am also supported in the conclusion which I have arrived at by a judgment of a learned Single Judge of this Court in Brihanmumbai Municipal Corporation v. Anna Gyanaba Veer .
14. In the circumstances, the Petitioner is entitled to succeed. The Petition is allowed. The impugned order of the Industrial Court date 23rd October, 2002 in so far as it directs the Petitioner to continue the employment of the Respondent on the post of a driver is quashed and set aside. In the circumstances of the case, there shall be no order as to costs.
15. Counsel appearing on behalf of the Respondent, seeks a stay of the operation of the order to enable the Respondent to pursue his remedies in appeal. The operation of this order shall remain stayed for a period of four weeks from today.
Parties be given a copy of this order duly authenticated by the Sheristedar/Personal Assistant.