IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.03.2011
CORAM :
The Honourable Mr. Justice M. M.sUNDRESH
Writ Petition No.18012 of 2003
The Managing Director,
Tamil Nadu State Transport Corporation
( Salem Division II) Ltd.,
Bharathipuram,
Dharmapuri. ... Petitioner
Vs.
1. P.Raja
2.The Presiding Officer,
Labour Court, Salem ... Respondents
Writ petition is filed under Article 226 of the Constitution of India to issue a Writ of Certiorari to call for the records dated 17.6.2002, passed in I.D.No.762 of 1998, on the file of the Labour Court, Salem, the second respondent herein and to quash the same.
For Petitioner : Mr.M.Ravibharathi
For Respondent-1 : Mr.V.Ajoy Khose
For Respondent- 2 : Court
ORDER
This Writ Petition has been filed by the petitioner, challenging the award dated 17.06.2002, passed in I.D.No.762 of 1998, on the file of the Labour Court, Salem, wherein the respondent No.1, was directed to be reinstated with continuity of service and other attendant benefits.
2. The petitioner herein is the Transport Corporation. The respondent No.1, joined the Office of the petitioner-Corporation, as Driver on 17.05.1989, with his Registration No.5453. While so, proceedings have been initiated against the respondent No.1, by the petitioner- Corporation on the ground that on 24.12.1996, when the respondent was driving the Vehicle, plying from Hosur to Coimbatore, he involved the Vehicle in an accident at Ottayanur, by dashing against the Maruti Car and thereby, causing instant death to the driver of the Car, apart from causing grievous injuries to others, who were traveling in the said Car.
3. A charge memo was issued to the respondent No.1, on 4.01.1997 and in pursuant to the charge memo, an Enquiry Officer, was appointed and it was found by the Enquiry Officer that, the charges levelled against the respondent No.1, have been proved. Thereafter, a show cause notice dated 24.07.1997, was issued to the respondent No.1, and not being satisfied with the explanation given by the respondent No.1, order of dismissal was passed by the petitioner-Corporation on 06.11.1997.
4. Being aggrieved, the respondent No.1 raised an industrial dispute, under Section 2 -A (ii) of the Industrial Disputes Act, 1947, ( hereinafter referred to as ‘Act’) which was taken on its file by the Labour Court, Salem, the second respondent herein in I.D.No.762 of 1998. The Labour Court on appreciation of both, the oral and documentary evidence available before it, was pleased to pass the said award of reinstatement of the respondent No.1, with continuity of service and attendant benefits.
5. Challenging the said award, passed by the Labour Court, the petitioner has come forward to this Court, by way of the present Writ Petition.
6. Mr.M.Ravibharathi, the learned counsel appearing for the petitioner submitted that, the findings of the Labour Court to the effect that the charges levelled against the first respondent have not been proved, inasmuch as no eye witness has been examined, cannot be sustained. The learned counsel further submitted that the Enquiry Officer conducted an enquiry, by taking the statement given by the Engineer of the petitioner-Corporation, as well as the statement given by the respondent No.1.
7. According to the learned counsel for the petitioner, the respondent No.1 was also involved with several other accidents on earlier occasions. It is further submitted by the learned counsel that, the mere fact that the show cause notice does not disclose the past conduct of the respondent No.1 and the punishment suffered by him, cannot be a ground to hold that the order of dismissal, cannot be sustained. In support of his contention, the learned counsel also placed reliance upon the judgment of the Hon’ble Apex Court reported in ( 2005) 3 M.L.J. 241 in the case of ( Cholan RoadwaysLtd., Vs. G.Thirugnanasambandam ). Hence, the learned counsel submitted that the Writ Petition will have to be allowed.
8. Per contra, Mr.Ajoy Khose, the learned counsel appearing for the respondent No.1, submitted that factual findings have been given by the second respondent on an appreciation of all the materials available on records before it, and the same, shall not be interfered with, by this Court, by exercising power of Judicial Review under Article 226 of the Constitution of India.
9. The learned counsel further submitted that, the petitioner has filed a counter affidavit in the Claim Petition filed by the injured person in M.C.O.P.No.1374 of 1997, in the State of Kerala and in the said case, the Subordinate Judge, Tiruvandrum, was pleased to pass the award against the injured of the Maruti Car, in which the deceased was travelling. A finding was also given by the Subordinate Judge, Thiruvanathapuram, to the effect that, the accident was not due to the rash and negligent driving of the respondent No.1, but due to the negligence on the part of the deceased in the Maruti Car.
10. The learned counsel further submitted that, an appeal was filed before the High Court of Kerala, being M.A.C.A.No.417 of 2003, by the injured of the New India Assurance Company Ltd., and the same was dismissed. The learned counsel also brought to the notice of this Court that, in the said proceedings, the petitioner was also brought as a party. Therefore, the learned counsel for the respondent No.1 submitted that it is not open to the petitioner to contend that there is negligence on the part of the respondent No.1.
11. It is his further submission that admittedly, no witness has been examined. Neither the conductor, nor the passengers of the Vehicle, who were also plying at the time of the accident, have been examined. Therefore, the learned counsel submitted that, when such a finding has been given, based upon evidence, on appreciation of facts, this Writ Petition will have to be dismissed.
12. Submissions have already been made by the learned counsel for the petitioner on the question of backwages payable to the respondent No.1. The learned counsel for the petitioner submitted that, the backwages ordered by the Tribunal is not an automatic and the respondent No.1 has not established before the Labour Court, that he has not been employed gainfully elsewhere. It is further submitted that, the Labour Court has not given any finding about the same.
13. Per contra, the learned counsel for the respondent No.1 submitted that the respondent No.1, has set out in the affidavit filed before this Court, while claiming last drawn wages payable under Section 17 -B of the said Act, to the effect that the respondent No.1 has not been employed elsewhere gainfully, from the date of his dismissal. The said fact has not been refuted or rebutted by the petitioner. The Labour Court has set aside the order of dismissal passed by the petitioner-Corporation, on the merits of the case and therefore, what is originally due to the respondent No.1, cannot be denied.
14. As contended by the learned counsel for the respondent No.1 in the Claim Petition filed on behalf of the injured person in M.C.O.P.No.1374 of 1997, on the file of the Motor Accidents Claims Tribunal, Thiruvandrum, a counter has been filed by the petitioner- Corporation stating that, it is the deceased, who was responsible for the accident. It is also to be seen that, the F.I.R. was given by the respondent No.1, against the deceased viz., the driver of the Maruti Car, and the Motor Accidents Claims Tribunal, taking into consideration of the materials available before it, has rendered a factual findings that the accident had occurred due to the negligence on the part of the deceased/driver of the Maruti car.
15. In other words, the contention that the accident was due to the negligence on the part of the respondent No.1, was negatived. It is pertinent to note that the petitioner- Corporation was also made as a party to the said proceedings. An appeal was filed before the High Court of Kerala in M.A.C.A.No.417 of 2003, by New India Assurance Company Ltd., being the insurer of the Maruti Car and the same was dismissed, insofar as the liability is concerned. Therefore, in the wake of the pronouncement by the Competent Court, it is not open to the petitioner-Corporation, being a party to the said proceedings, to change its stand and contend that it is the respondent No.1,who was responsible for the accident.
16. The Tribunal found that the petitioner-Corporation has not examined anybody to substantiate the charge leveled against the respondent No.1. The charge is pertaining to the accident is said to have been caused by the respondent No.1. It is trait law that in a departmental proceedings, onus is more on the Employer to establish the charge levelled against a delinquent employee. Moreover, there were passengers traveling in the same bus, which was involved in the accident, along with the conductor, but absolutely no explanation was given by the petitioner- Corporation before the Labour Court, as to why they have not been examined.
17. Therefore, the judgment reported in ( 2005) 3 M.L.J. 241 (supra), relied on by the learned counsel for the petitioner that it has no application to the present case on hand, since the facts involved in the said case are entirely different to the facts of the present case on hand. In the said case, there was no head on collision. The bus driven by the driver has swerved suddenly and dashed against the protruding branches and stumps of the tamarind trees, on the side of the road, causing death to seven passengers, who were traveling in the bus, apart from causing serious injuries to others.
18. Therefore, in view of the said facts, under those circumstances, the Hon’ble Apex Court was pleased to hold that, non-examination of passengers would not vitiate the proceedings. It is further to be seen that there were other material evidence on record in the said case, for coming to such a conclusion. The Hon’ble Apex Court in the said case was dealing with the petition filed under Section 33 (2) ( b) of the said Act, seeking approval for a decision to dismiss a delinquent employee. Therefore, considering the limited scope of the petition, filed under Section 33 (2) (b) of the said Act, which requires prima facie material, the Hon’ble Apex Court has rendered that judgment.
19. It is trait law that the judgment shall not be read like a statute, has to be applied to the facts and circumstances of each case. Hence, this Court is of the view that the ratio laid down by the Hon’ble Apex Court in the in (2005) 3 M.L.J. 241 (supra) has no application whatsoever, to the facts and circumstances in the present case on hand.
20. In a judgment rendered by a Division Bench of this Court, reported in 2002 1 L.L.N. 348, in the case of [ Pandian Roadways Corporation Ltd., (rep. By its Managing Director Vs. Presiding Officer, Additional Labour Court, ] the Division Bench, was pleased to hold that exercise of power under Section 33 (2) (b) of the Industrial Disputes Act,1947, by the Labour Court cannot be compared with the power exercised under Section 11 of the said Act. The Division Bench was also pleased to hold that in a case, where departmental proceedings have been initiated against the delinquent employee, regarding the accident said to have been committed by him, a punishment cannot be imposed, merely based upon the evidence of the Engineer and the evidence of an eye witness is very much required.
21. The Division Bench further held that in such an eventuality, the order passed by the Labour Court, based upon the material evidence available on records, cannot be interfered with. A perusal of the Division Bench judgment, would show that the same is applicable in all force, to the present case on hand.
22. Similarly, the Division Bench of this Court in the case of (A.Mariasundararaj Vs. Cheran Transport Corporation Ltd., and others) rendered in W.A.No.2238 of 2000 dated 3.10.2007, was pleased to issue certain directions, which is extracted hereunder:-
Before parting with the case, having regard to the manner in which the accident cases are being handled by the first respondent-Corporation and other State owned Corporation, we are inclined to issue certain directions in order to ensure that whenever accident takes place, the authorities concerned can collect the minimal and necessary evidence, by taking little more efforts in order to ensure that no recalcitrant driver can be rewarded with the relief of reinstatement, by interfering with the punishment of dismissal. In that view, we direct as under:-
i) all the State owned Corporation shall form an Emergent Mobile Accident Attending Unit, with an Assistant Engineer as its Unit head, who shall take every effort to reach the accident spot immediately after the accident is reported;
ii) such mobile unit should record the statement of the driver as well as the conductor in their own handwriting as to the manner in which the accident had occurred with necessary details
iii) If at the time the mobile unit reaches the accident spot they meet any passengers who travelled in that Vehicle, they should also record a statement from such passengers in their own handwriting, if possible along with the tickets in proof of their travel. The mobile unit authorities must also collect the statement in handwriting from the nearby shop owners or any other independent witnesses or police constable, if any such constable was present and submit the same along with the report of the mobile unit head. It they were not able to collect such statements from such independent witnesses, the Unit Head must give reasons as to why he was not in a position to collect such statements.
iv) The Corporation should issue directions to the Mobile Unit Head that every earnest endeavour should be made by the said Unit in the collection of independent materials, in the form of statements or other materials, in order to states as to the manner in which the accident had occurred to find out as to who was at fault
v)apart from the above directions to the Mobile Unit and its Head, the Corporations should issue directions to all the Conductors that they must give a statement in writing to the Inspecting Officials stating as to the manner in which the accident had occurred, dispassionately, along with the statements if any, which they collect from any of the passengers, who travelled in that Vehicle, along with the tickets in proof of their travel.
23. The directions issued above by the Division Bench, have not been complied with by the petitioner. In above cited directions, it has been specifically stated that the conductor of the Vehicle, which was involved in the accident, must give a statement to the Inspecting Officer, narrating the manner of the accident. Further, it was observed that the statement of the passengers will have to be obtained and considered by the Officer, concerned. Admittedly, as discussed above, there is no explanation. It is nobody’s case that the passengers were travelling in the bus along with the conductor at the time of the accident. Therefore, this Court does not find any reason to interfere with the order passed by the Labour Court, insofar as the reinstatement and continuity of service along with attendant benefits are concerned.
24. Coming to the question of backwages, it is a trait law, that the payment of backwages will have to be seen on the facts and circumstances of each case and it is not an automatic in all cases, as a natural consequence of reinstatement.
25. In the present case on hand, the respondent No.1, has been exonerated from the charges levelled against him, on merits. Even in the proceedings initiated before the State of Kerala, a finding has been given to the effect that the respondent No.1, was not responsible for the accident. The petitioner herein has also took a stand to that effect, which was also found favour with the Courts in the State of Kerala. Therefore, it is clear that the charges levelled against the respondent No.1, cannot be sustained. The Labour Court has also found that the past conduct of the respondent No.1, cannot be looked into, when the same has not be indicated in the show cause notice. Moreover, when the charge itself falls to the ground that there is no question of considering past conduct.
26. However, this Court finds that the proceedings have been initiated as early as on 04.01.1997. The respondent No.1, has also stated in the counter affidavit filed before this Court, that he has not been gainfully employed elsewhere. In other words, when the respondent No.1, is pronounced not to have committed the accident and the accident is not due to the negligence on his part, then there is no question of imposing any punishment, whatsoever. The order of dismissal was passed on 06.11.1997, and the award was passed setting aside the order of dismissal on 17.06.2002. The Writ Petition was filed on 14.06.2003, after one year, from the date of the award and wages have been paid to the respondent No.1 under Section 17- (B) of the said Act. Taking note of the length of proceedings, coupled with the fact, that the Labour Court has not gone into the question of backwages and in the light of the discussions made above, this Court is of the view that it is just and proper, if the backwages payable to the respondent No.1 is reduced by 25% from the date of suspension viz. 04.01.1997 to the date of the dismissal on 17.06.2002, which would meet the ends of justice.
27. Therefore, the Writ Petition is allowed in part, insofar as the backwages is concerned, by reducing 25% payable to the respondent No.1, from 04.01.1997 to 17.06.2002. In all other aspects, regarding reinstatement, continuity of service with other attendant benefits, apart from the backwages payable from the date of award and to the date of reinstatement, the award is hereby confirmed. It is made clear that the respondent No.1 is entitled to 75% of the backwages, by deducting 25% from 04.01.1997 to 17.06.2002.
28. It is stated by the learned counsel appearing for the petitioner that a sum of Rs.2,31,345/- has been deposited by the petitioner-Corporation, in pursuant to the order passed by this Court. The respondent No.1, is directed to withdraw the same in accordance with the order passed by this Court.
29. In the result, the Writ Petition is allowed in part. However, there shall be no order, as to costs.
sd
To
1. The Managing Director,
Tamil Nadu State Transport Corporation
( Salem Division II) Ltd.,
Bharathipuram,
Dharmapuri.
2. The Presiding Officer,
Labour Court,
Salem