IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:23.12. 2009
CORAM:-
Hon'ble Mr. Justice R. SUDHAKAR
Writ Petition No. 18632 of 2008
R.Shanmugam .. Petitioner
Vs
1. The Managing Director,
Tamil Nadu State Transport
Corporation (Division No.1)
No.7, Ramakrishna Road,
Salem.7
2. The General Manager,
Tamil Nadu State Transport
Corporation (Division No.1)
No.7, Ramakrishna Road,
Salem.7
3. The Presiding Officer,
Labour Court, Salem. . . . Respondents . . .
Prayer: The writ petition filed under Article 226 of the Constitution of India praying for a writ of Certiorarified mandamus to call for the records connected with the Award passed by the third respondent in I.D.No.429 of 2004 dated 19.12.2007 , quash the same and direct the respondents to reinstate the petitioner in service with backwages, continuity of service and other attendant benefits.
For Petitioner : Mr. S.Ayyathurai
For respondents : Mr. Ravi Bharathi (R1 & R2)
. . .
O R D E R
The Writ Petition has been filed to quash the Award of the Labour Court in I.D.No.429 of 2004 and to direct the respondents to reinstate the petitioner in service with backwages, continuity of service and other attendant benefits.
2. The petitioner was working as Driver in the first respondent Corporation. On 22.03.2003, the petitioner was driving the bus from Thiruchengode Depot to Thiruchengode Bus Stand on duty. At about 22.45 hours, when he was nearing Pillaiar Koil Bus stop at Kailasampalayam, there was an accident between the bus and a T.V.S.50 XL causing death of 3 persons, who travelled in the T.V.S.50 Motor Cycle. A criminal case in C.C.No.542 of 2003 under Section 279 and 304 A I.P.C. was registered against the driver of the bus. The Judicial Magistrate, Thiruchengode, honourably acquitted the driver by judgment dated 20.03.2006 holding that the accident was due to the three persons who travelled in T.V.S Motor cycle and in particular, the accident happened when the person who drove the Motor Cycle was talking on his mobile phone while driving. In such circumstances, the criminal Court came to the conclusion that there was no fault on the part of the driver of the bus. The respondent-Corporation, in the meanwhile initiated departmental proceedings resulting in an order of dismissal, which was challenged by the petitioner in I.D.No.429 of 2004. The Labour Court came to the conclusion that the driver of the bus did not take proper care and caution while driving and therefore, was responsible for the accident. It confirmed the delinquency and the punishment imposed by its judgment dated 19.12.2007. The said order is under challenge in this writ petition.
3. The award is challenged on the following grounds;
(i) The Labourt Court failed to appreciate the verdict of honourable acquittal of the petitioner by the criminal Court.
(ii)The petitioner was honourably acquitted by the criminal court based on the evidence which would clearly establish the fact that the petitioner was in no way responsible for the accident and the consequent death and hence the Labour Court erred in upholding the finding on delinquency and dismissing the claim.
(iii) The Labour Court, on the other hand, failed to look into the findings of the criminal Court on merits and proceeded to hold that the petitioner was responsible for the accident and the consequent death. The reasons given by the Labour Court are contrary to the findings of the criminal Court.
(iv) The petitioner before the enquiry officer in the disciplinary proceedings examined two witnesses on his side to show that he was not responsible for the delinquency charged. The Management also examined the conductor of the bus. But his evidence is in favour of the petitioner. In spite of the overwhelming evidence in favour of the petitioner, the Labour Court rejected the evidence cursorily without considering the matter on merits.
4. On going through the Award of the Labour Court, it is clear that the verdict of the criminal Court and the reasons given therein, clearly point out that the petitioner was not responsible for the accident and the consequent death. The reason for the accident as has been extracted above, is the fault of the deceased driver of the two wheeler, who breached the provisions of the Motor Vehicle Rules by talking on the cellphone while driving the vehicle. The consequence of such finding should have been considered by the Labour Court whereas, it has proceeded on a wrong premises by invoking the principle of Res Ipsa Loquitur. When the findings of the Criminal Court clearly goes to disprove the delinquency charge, the Labour Court ought to have discussed the same in detail before coming to a different conclusion. This view has to be considered in view of the decision of the Apex Court in G.M.Tank VS t of Gujarat and others reported in (2006) 5 Supreme Court Cases 446. The principle that emerges here is that when the petitioner is honourably acquitted in a criminal case, it is incumbent on the part of the Labour Court to consider the same in a proper perspective before confirming the delinquency. In such view of the matter, the Award of the Labour Court suffers from an error apparent on the face of the record. The honourble acquittal of the petitioner in the criminal case by Criminal Court should have been considered by the Labour Court in proper perspective. The failure to consider the same, by the Labour Court has resulted in grave injustice to the petitioner and the Award of the Labour Court, therefore, is liable to be set aside.
5. In the result, the writ petition is allowed and the impugned Award of the Labour Court is set aside and the matter is remitted back to the Labour Court for reconsideration on merits and in accordance with law. Such exercise shall be completed within a period of six months from the date of receipt of a copy of this order. No order as to costs.
Index:No
Internet:Yes 23.12.2009
PAL
To
1. The Managing Director,
Tamil Nadu State Transport
Corporation (Division No.1)
No.7, Ramakrishna Road,
Salem.7
2. The General Manager,
Tamil Nadu State Transport
Corporation (Division No.1)
No.7, Ramakrishna Road,
Salem.7
3. The Presiding Officer,
Labour Court, Salem.
R.SUDHAKAR,J.
Pal
W.P. No. 18632 of 2008
Dt.23.12.2009