IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :06.08.2010 CORAM: THE HON'BLE MR. JUSTICE T.S.SIVAGNANAM W.P.No.5807 of 2003 & W.P.No.5336 of 2004 The Management of Tamil Nadu State Transport Corporation (Villupuram-Division II) Limited, Rangapuram, Vellore - 632009 ...Petitioners inW.P.No.5807 of 2003 Tamil Nadu State Transport Corp. (Villupuram-Division II) Limited, Rep. by its Managing Director ... Petitioner in W.P.No.5336 of 2004 Vs. 1.The Presiding Officer, Labour Court, Vellore. 2.Mr.K.Parthasarathy ...Respondents in both W.Ps.
Prayer in W.P.No.5807 of 2003 : This writ petition is filed under Article 226 of the Constitution of India to issue a writ of Certiorari to call for the records on the file of the 1st respondent herein and to quash the impugned award passed by the 1st respondent dated 06.09.2001 made in I.D.No.245 of 1997.
Prayer in W.P.No.5336 of 2004 : This writ petition is filed under Article 226 of the Constitution of India to issue a writ of Certiorari to call for the records of the 1st respondent in claim petition No.30/2002 dated 18.06.2003 and quash the same.
For Petitioner : M/s.M.G.Rajeswari for M/s.King & Partridge For Respondents: V.Ajoy Khose for R2 COMMON ORDER Since the issue involved in both these writ petitions are identical by consent, they are heard and disposed of by a common order.
2. The petitioner in W.P.No.5807 of 2003 is the Management of the Tamil Nadu State Transport Corporation, Villupuram Division II (hereinafter referred to “as the Management). The second respondent was working as a driver in the petitioner management (hereinafter referred to “as the workmen”). The prayer in W.P.No.5807 of 2003 is for issuance of writ of Certiorari to quash the award passed by the Labour Court, Vellore in I.D.No.245 of 1997 dated 06.09.2001. The management has filed the writ petition in W.P.No.5336 of 2004 against the order in C.P. No.30 of 2002, filed by the workmen, to compute the wages due and payable to him based on the award in I.D.No.245 of 1997, which is impugned in W.P.No.5807 of 2003.
3. The facts which are necessary for disposal of the writ petitions are that, while the workmen was driving the bus in route No.102F from Madras to Arni near the Kolathur junction road, the bus collided with the another bus belonging to the same management coming in the opposite direction and after the impact the bus went on its right side, crossed the road and dashed on a tree. Due to the accident eight passengers died and nineteen persons sustained serious injury and four persons sustained simple injury. A case was registered against the workmen in crime No.383 of 1995 on the file of the Kaveripakkam Police Station for offences under Section 279, 337 and 304 (A) IPC. According to the management, the accident occurred solely due to the rash and negligent driving of the workmen. The workmen was issued a charge memo dated 14.09.1995 and he submitted his explanation on 04.10.1995 and the management not being satisfied with the explanation offered conducted a domestic enquiry and the enquiry officer submitted a report holding that the charges were proved. The disciplinary authority concurred with the findings of the enquiry officer and issued a show cause notice dated 09.01.1996, calling upon the workmen to show cause why he should not be dismissed from service. The workmen submitted his explanation dated 24.01.1996 and the disciplinary authority after considering all the materials and the past record of the workmen by order dated 08.02.1996 terminated the services of the workmen.
4. Against such order of termination, the workmen has raised the Industrial Dispute in I.D.No.245 of 1997, before the Labour Court, Vellore. The Labour Court in its preliminary findings held that the domestic enquiry was conducted in accordance with the principles of natural justice. However, came to a conclusion that the charges leveled against the workmen was not proved and passed an award dated 06.09.2001 directing reinstatement of the workmen with backwages and continuity of service and other benefits. Aggrieved by such award, the management has filed the writ petition in W.P.No.5807 of 2003. Based on the award, the workmen filed C.P.No.30 of 2002 before the Labour Court, Vellore under Section 33 C(2) of the Industrial Disputes Act (hereinafter referred to “as the Act) to compute the monetary benefits based on the award in I.D.No.245 of 1997. The Labour Court by order dated 18.06.2003 computed the wages payable at Rs.2,48,500/- aggrieved by such order, the management has filed the writ petition in W.P.No.5336 of 2004.
5. The learned counsel appearing for the Management after elaborately setting out about the manner in which the accident had occurred would strenuously contend that the accident is solely due to the rash and negligent driving of the workmen and that the management was fully justified in passing the order of termination, that the Labour Court failed to apply the principles of res-ipsa-loquitor and ought to have dismissed the dispute raised by the workmen. That the Labour Court ought to have seen that the accident occurred on account of the negligent driving of the workmen, which resulted in collision of two buses belonging to the management, loss of eight lives and injuries to passengers, and damage to the buses of the management and such misconduct warrants the punishment of termination; that the bus was driven at very high speed in a reckless manner and as a result of which the workmen lost control of the vehicle and the bus crossed the road and hit against a tree and the tyre marks on the road clearly establish the accidents, since the bus had travelled nearly 150 feet away from the collision spot, whereas the other bus travelled only 80 feet from the place of collision. It is further contended that the Labour Court ought not to have exercised its discretion under Section 11A of the Industrial Disputes Act(The Act), as such provision is not intended to cause embarrassment to the management. Further, the past record of the workmen is a from being satisfactory, since he had caused injury to a child on the road and he was warned for the said delinquency. Therefore, the learned counsel would submit that the impugned award calls for interference. The learned counsel relied upon the decision of the Hon’ble Supreme Court in Cholan Raodways Limited Vs. G.Thirugnanasambandam, 2005 1 LLJ 569 and the decision of this Court in W.P.No.8906 of 2001 dated 08.06.2010 in support of her contention.
6. The learned counsel appearing for the workmen would contend that the plea regarding res-ipsa-loquitor was not raised by the management before the Tribunal and the same is raised for the first time before this Court and such factual plea cannot be allowed to be raised by the management at this stage of the proceedings. Even assuming the same could be raised the burden of proof does not shift on the workmen and the management was bound to prove the charge and that the decision relied on by the learned counsel appearing for the management in the case of Cholan Raodways Limited is not applicable to the case on hand, since, the matter arose out of an approval petition under Section 33(2)(b) of the Act and it is not a case of exercise of power by the Labour Court under Section 11A of the Act. It is further contended that admittedly, two buses were involved in the accident and both the buses were owned by the management, however no action was taken on the driver of the other bus nor he was produced as a witness and therefore, fixing the liability on the workmen alone is illegal. Further before the Sub-Court Ranipet in M.C.O.P. No.379 of 1995 filed by the passengers claiming compensation, the management took a stand that the bus driven by the workmen was passing a lorry and suddenly the steering wheel of the bus got stuck and the bus driver could not turn the vehicle and the bus went ahead towards the other bus coming on the opposite direction and though the driver (workmen herein) tried his best to avoid direct collision and the accident occurred.
7. Therefore, the learned counsel for the workmen would submit that the management having taken such a stand before a judicial forum cannot charge sheet the petitioner. In support of his submissions, the learned counsel relied upon the Hon’ble Division Bench Judgment of this Court in Tamil Nadu State Transport Corporation Vs. P.Karuppusamy, 2008 1 LLJ 460 (Mad). Further, it is contended that the criminal case filed against the workmen in C.C.No.117 of 1995 has ended in acquittal by Judgment dated 19.10.2001 passed by the District Munsif Cum Judicial Magistrate I, Wallaja. It is contended that when the Labour Court properly appreciated the evidence on record and came to a conclusion that the misconduct against the workmen was not proved, this Court should not re-appreciate the evidence and substitute its opinion. The past conduct of the workmen could be looked into only if the charge is proved and in the instant case, the Labour Court held that the charge is not proved and the question of looking into the past conduct does not arise. The learned counsel placed reliance on the decision of the Hon’ble Supreme Court in Workmen Vs. Firestone Tyre and Rubber Co, (1973) 1 SCC 813 and the decision of this Court in Pandian Roadways Corporation Ltd Vs. Presiding Officer, Additional Labour Court, 2002 1 LLN 348 and the decision of this Court in W.P.No.1554 of 1989 dated 23.02.1998 and in W.P.No.363 of 1995 dated 17.01.2001 and W.P.No.7716 of 1998, dated 21.02.2007 in support of his contentions.
8. I have carefully considered the submissions on either side and perused the materials available on record.
9. It is not in dispute that accident occurred on account of collision between two buses belonging to the petitioner management. Since the Labour Court held that the domestic enquiry was properly conducted, it may not be necessary to traverse into the procedure adopted by the management till the order of termination was passed as the relevant particulars as regards the dates and events have been already set out in the preceding paragraphs. The Labour Court framed three issues for consideration namely, whether the domestic enquiry conducted was fair and proper, whether the finding rendered by the enquiry officer that the charges are proved is correct and whether the workmen is entitled for the relief sought for. On the first issue regarding the validity of the domestic enquiry, the Labour Court in paragraph 7 of the award held that the domestic enquiry was in consonance with the principles of natural justice and fair play. On the second issue, the Labour Court proceeded to discuss as to whether the charges against the workmen are proved. At this stage, it is relevant to note that both the management and the workmen did not lead oral evidence and the workmen did not mark any document but the management marked 17 documents as Exhibits R1 to R17. The Labour Court found that though there are four articles of charge framed against the workmen, all arise out of the same incident. The Labour Court considered the explanation submitted by the workmen to the charge memo, which was marked as Exhibit R-13 wherein the workmen has explained about how the accident occurred and that the steering had got stuck.
10. Further, the Labour Court also considered the explanation given by the driver and conductor of the other bus coming in the opposite direction, which was marked as Exhibit R4 and held that when there are two versions projected, the management is bound to ascertain the truth as to which of the version is correct and if one of the version is rejected by the management, it has to assign reasons and fix which of the version is to be accepted. However, this was not done in the enquiry proceedings this was taken note of by the Labour Court. Further before the enquiry officer, the driver of the other bus was not examined as a result of which the workmen herein did not have an opportunity to the cross examine the other driver. In the absence of any contra evidence the enquiry officer’s conclusion that the charge against the workmen is proved cannot be countenanced. This has been taken note of by the Labour Court in Paragraph 8 of the award. Further, the management witnesses, who were examined in the domestic enquiry were not eyewitness to the incident. Further, the defacto complainant one Jabar Ali, who is stated to be a passenger in other bus, was also not examined in the domestic enquiry. Therefore, the Labour Court rightly concluded that the finding of guilt against the workmen alone is not sustainable, failure to examine the driver and conductor of the other bus is fatal to the case of the management.
11. That apart the workmen has given a cogent explanation stating about the manner in which, he drove the bus and though the steering of the bus was struck, he exercised all care and caution to avoid the accident. This aspect of the matter has been elaborately dealt by the Labour Court in paragraph 9 of the award. Ultimately, the Labour Court came to a conclusion that the charge against the workmen has not been proved. At this stage, it is useful to refer to the counter statement filed by the management in M.C.O.P.No.379 of 1995, which is to the following effect:-
“6…… suddenly the steering wheel of the bus got struck up badly and the bus driver could turn the vehicle. Hence, the bus went ahead towards the other bus which was coming on the opposite side and though the respondent driver tried his best to avoid direct collision, he had managed only to a avoid the front of the other bus and hit on the front side of the bus. Due to the impact and due to the sudden brakes applied by both the drivers of the buses the passengers travelling on the back side of the bus driver got injuries. The respondent driver know that the steering wheel got struck up and had he wanted to save his own life he could have jumped out, but he fought with the steering wheel bravely till the last second and did his best.
7. Thus it was the mechanical defect which caused this accident and the driver of the respondent could not be blamed for the same. It is but natural for any machine to have failed and the petitioners are trying to take maximum advantage of a mishap for which the respondent driver is in no way responsible.”
12. Thus, it is seen that the management, before the Sub-Court, Ranipet in MCOP No.379 of 1995, had consciously taken a stand that the workmen herein is not responsible for the accident. If that be the factual position would the management be justified in taking a contrary stand before the Labour Court. This very issue came up for consideration before the Hon’ble Division Bench of this Court in the case of P.Karuppusamy, referred above and the Hon’ble Division Bench held as follows:-
24. The principles laid down in the aforesaid 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 its 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 for a, 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 hands on the workman, detrimental to his interest, after defending him before various judicial for a 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.”
13. Therefore, it has to be necessarily held that the management is precluded from taking a inconsistency stand before the Labour Court.
14. on the question of the theory of res-ipsa-loquitor which means “speaks for itself” or “tells its own story”, it is the strenuous plea of the learned counsel appearing for the petitioner that perusal of the records relating to the accident itself clearly establishes that the workmen was solely responsible and nothing more is required. Unfortunately, the plea of res-ipsa-loquitor is raised for the first time before this Court. Even assuming if such a plea could have been raised by the management at the earliest point of time certain factual aspects stare against the management and such factual aspects remains uncontroverted. The finding of the Criminal Court does not support of the case of the management. Before the Motor Accident Claims Tribunal, the management supported the case of the workmen and contended that the accident was on account of mechanical failure. That apart, the Labour Court specifically rendered a finding that in the absence of acceptable evidence to prove the guilt against the workmen, the enquiry officer erroneously concluded that the charges are proved. Further, the driver of the other bus was not examined, the defacto complainant was not examined and in such factual scenario, it can hardly be said that the management could invoke the doctrine of res-ipsa-loquitor. Therefore, such plea raised by the management cannot be countenanced, consequently, the decision relied on by the learned counsel cannot be applied to the facts of the present case. The order relied on by the learned counsel for the petitioner in W.P.No.8906 of 2001 is of no assistance to the case of the management, since this Court in the said Judgment upheld the award.
15. Further for applying the principles of res-ipsa-loquitor, it has to be first established that the doctrine is applicable and in the absence of any material evidence to prove the charge, this doctrine cannot be invoked. As rightly pointed out by the learned counsel for the workmen that the Hon’ble Division Bench in the case of Pandian Roadways Corporation Ltd, referred supra, held that the Labour Court while exercising powers under Section 33 (2) (b) has no power to re-appreciate evidence whereas under Section 11A, the Labour Court has the same powers as or vested in a Civil suit under the Code of Civil Procedure. Therefore, the contention raised by the learned counsel appearing for the management does not merit acceptance. Further, as pointed out by the learned counsel for the workmen, the Labour Court was fully empowered to differ with the finding occurred at in the domestic enquiry and the learned counsel relied on the decision of the Hon’ble Supreme Court in Workmen Vs. Firestone Tyre & Rubber Co. (1973) 1 SCC 813, in support of his stand, wherein the Hon’ble Supreme Court held thus:-
41A….. Under Section 11-A, though the Tribunal may hold that the misconduct is proved, nevertheless it may be of the opinion that the order of discharge or dismissal for the said misconduct is not justified. In other words, the Tribunal may hold that the proved misconduct does not merit punishment by way of discharge or dismissal. It can, under such circumstances, award to the workman only lesser punishment instead. The power to interfere with the punishment and alter the same has been now conferred on the Tribunal by Section 11.A.
16. Therefore, considering the over all circumstances of the case, I find no good grounds to interfere in the award of the Labour Court. Accordingly, the writ petition fails and it is dismissed. No costs.