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Monday, September 5, 2016

In our opinion, the Commissioner exceeded his jurisdiction in reappreciating the evidence adduced before the Enquiry Officer and in substituting his own judgment to that of the Disciplinary Authority. It was not a case of no legal evidence produced during the enquiry by the Department, in relation to the charges framed against the respondent. Whether the decision of the Disciplinary Authority of dismissing the respondent is just and proper, could be assailed by the respondent in appropriate proceedings. Considering the fact that there was adequate material produced in the Departmental enquiry evidencing that fatal accident was caused by the respondent while driving the vehicle on duty, the burden to prove that the accident happened due to some other cause than his own negligence was on the respondent. The doctrine of Res ipsa loquitur squarely applies to the fact situation in the present case.= Ordinarily, we would have remitted the matter back to the Commissioner for consideration afresh, but as the matter is pending for a long time and as we are satisfied that in the fact situation of the present case approval to the order of punishment passed by the appellant against the respondent should have been granted, we allow the application under Section 33(2)(b) preferred by the appellant but with liberty to the respondent to take recourse to appropriate remedy as may be available in law to question the said order of dismissal dated 13th October, 2003. 14. Accordingly, we set aside the impugned decisions of the High Court as well as of the Joint Commissioner. The appeals are allowed in the above terms with no order as to costs.

                                                                (REPORTABLE)



                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL Nos. 6765-66/2014

The Management of TNSTC (Coimbatore) Ltd.            ….….Appellant

                                   Versus

M. Chandrasekaran                                            ....Respondent



                             J U D G M E N T





A.M. KHANWILKAR, J.



These appeals challenge the decision of  the  Division  Bench  of  the  High
Court of Judicature at Madras, dated 22.11.2013, in Writ  Appeal  Nos.  2082
and 2083 of 2013.

2.    Briefly stated, the  respondent  was  employed  as  a  driver  by  the
appellant on 14.04.1986.  While on duty on  15.01.2003,  on  vehicle  TN-38-
0702, during a trip from Kovai Ukkadam to Pollachi, near  Vadakkipalayam  he
caused an accident with a car bearing No. TMA 4845 coming from the  opposite
direction resulting in fatal injuries to persons  travelling  in  that  car.
Disciplinary enquiry was instituted against the  respondent  inter  alia  on
the charge of driving the bus in a rash and negligent  manner.  The  Enquiry
Officer found the respondent guilty of the charges  framed  in  Charge  Memo
dated 22.01.2003.  The Disciplinary Authority after  giving  opportunity  to
the respondent passed order of dismissal on 13.10.2003. The  appellant  then
submitted an application, being Approval Petition No.  480  of  2003,  under
Section 33(2)(b) of the Industrial Disputes  Act,  1947,  before  the  Joint
Commissioner Labour (Conciliation), Chennai as  an  industrial  dispute  was
pending  for  conciliation  before  him.   The  Labour  Commissioner,  after
analysing the material placed before him in the said proceeding  noted  that
the Department only examined two witnesses who were also  cross-examined  by
the respondent.  The respondent examined himself  as  defence  witness,  but
was not cross-examined by the Department. The Commissioner,  however,  found
that the enquiry against the respondent was  conducted  in  accordance  with
the principles of natural justice and also in conformity with  the  Standing
Orders.  While  dealing  with  the  quality  of  evidence  adduced  by   the
Department, the Commissioner found that  the  same,  by  no  standard  would
substantiate the charges framed against the respondent.  The  first  witness
was the Junior Engineer.  He had submitted  a  site  inspection  report  and
stated in his evidence that the car came with speed to the  left  side  from
Vadakkipalayam branch road to the main road and then came to the  centre  of
the  road.   His  evidence  about  the  occurrence  of   accident   was   on
presumption.  The  second  witness  examined  by  the  Department  was   the
Assistant Manager.  He stated that the bus driver as well as car driver  had
driven their vehicles speedily.  He also stated that car was driven  in  the
middle of the road with speed at the time of accident.  The defence  of  the
respondent was that when he was approaching Vadakkipalayam branch  road,  an
ambassador car driven by a 17 year old  boy  named  Sivakumar  came  on  the
wrong side of the road at a high speed and, after  entering  the  main  road
went to the left side  of  the  bus  in  wrong  direction.  The  respondent,
therefore, first thought of driving the  bus  to  the  left.  But,  as  some
pilgrims were going in a procession on the left side of the road and as  the
car was being driven rashly and had come to the left side  of  the  bus,  he
was left with no option except to take the bus to the right side to avoid  a
head on  collision.  This  averted  a  fatal  accident  to  pedestrians  and
minimized the damage to the car coming from the opposite  direction  on  the
wrong side.  This also  ensured  the  safety  of  the  bus  passengers.   In
substance, the respondent pleaded  that  the  accident  was  caused  due  to
unavoidable circumstances and in spite of all precautions and  applying  his
best judgment in maneuvering the vehicle.

3.    The Commissioner found that the respondent  had  deposed  about  these
facts as defence witness, but was not cross-examined by the  Department.  No
eye witness was examined by the Department nor the conductor of the  bus  or
passengers travelling in the same bus were examined by the  Department.  The
Commissioner, therefore, concluded that the finding reached by  the  Enquiry
Officer by merely relying on the evidence of the  Junior  Engineer  and  the
Assistant Manager (who were not eye witnesses), was perverse.  In that,  the
charges  were  not  proved  against  the  respondent  by  independent  legal
evidence of eye witnesses. The Commissioner held that the Enquiry  Officer’s
report was vitiated being perverse.  The Commissioner  also  relied  on  the
decision of the Division Bench of Madras High Court in Writ Appeal No.  2238
of 2000 in the case of A. Mariasundararaj vs. Cheran  Transport  Corporation
Ltd., which had deprecated the practice of  not  examining  eye  witness  or
other relevant evidence during the enquiry in respect of accident  cases  by
the State Transport Corporation, and as it results  in  not  confirming  the
charges and punishments awarded against its drivers involved  in  accidents.
The Commissioner, therefore,  refused to accord approval  for  dismissal  of
the respondent.

4.    Being aggrieved by this decision, the  appellant-Management  preferred
Writ Petition  No.  2425  of  2010.   Even  the  respondent  preferred  Writ
Petition  No.  23155/2009  for  issuing  writ  of   mandamus   against   the
Corporation to implement the order  passed  by  the  Joint  Commissioner  of
Labour, Chennai dated 25.05.2009 in Approval Petition No. 480/2003;  and  to
reinstate  him  with  continuity  of  service,  back-wages  and  all   other
attendant benefits. Both the writ petitions were heard  analogously  by  the
learned Single Judge.  The Single Judge noted the seven reasons recorded  by
the Commissioner to disapprove the dismissal of the respondent, as  follows:
-

“a)  Except  examining  witnesses,  who  are  employees  of  the  petitioner
Corporation, the petitioner has not  examined  any  independent  witness  to
prove that the accident  took  place  because  of  the  rash  and  negligent
driving of the 2nd respondent resulting in the death of 9 persons.

b) The Engineer’s report, which was marked as Ex.  A2  shows  that  the  car
came fast from the branch road to the main and came to  the  centre  of  the
road and the bus was coming on the right side of the  road  instead  of  the
left side on high speed.  The report fixed prime responsibility on  the  bus
driver and part  responsibility  on  the  car  driver.   Though  the  Junior
Engineer, who gave this report, deposed that the car and the bus  came  with
speed, he was not an eye witness to the occurrence and he had described  the
occurrence only on presumption.

c) P.W.1, the  Assistant  Manager  of  the  petitioner  Corporation,  though
deposed that the bus driver as  well  as  the  car  driver  had  driven  the
vehicles in high speed, he was also not an eye  witness  to  the  occurrence
and hence, his evidence also cannot be taken into consideration to  fix  the
responsibility on the 2nd respondent.

d) The conductor of the bus, who could have been examined  on  the  side  of
the petitioner Corporation, had not been examined.

e) Not even a  single  passenger  of  the  bus  was  examined  to  prove  or
establish that the 2nd respondent, the driver of the  bus,  had  driven  the
vehicle in a rash and negligent manner.

f) The Enquiry Officer had relied on the evidence of the  Engineer  and  the
Assistant Manager, who were not eye witnesses to the  occurrence  and  their
evidence was uncorroborated by any independent witness.

g) The 2nd respondent had denied that he was responsible  for  the  accident
and stated that the ambassador car, which took a left turn from  the  branch
road and came driving to its right side, suddenly turned  to  the  left  and
therefore, the accident had occurred.  However, the 2nd respondent  was  not
subjected to cross-examination.”



5.     The  Single  Judge  then  opined  that  the  view  so  taken  by  the
Commissioner  was  well  founded  and  did  not  warrant  any  interference.
Reliance was also placed on an un-reported decision  of  Division  Bench  of
the same High Court in Writ Appeal No. 2238  of  2000  in  the  case  of  A.
Mariasundararaj (Supra).  The relevant dictum  in  that  decision  has  been
reproduced in paragraph 7 by the Single Judge, as follows:-

“We have to point out that when we come across  such  accident  case,  where
disciplinary actions are initiated  by  the  State  Transport  Corporations,
invariably except the statement of the inspecting official, the  sketch  and
photographs, no other evidence is placed before the   Inquiry  Officer.   It
is  also  repeatedly  being  pointed  out  that  in  the  absence  of   such
independent evidence before the Court, it is  difficult  for  the  Court  to
confirm the punishment awarded as against such erring drivers.”





6.    Accordingly, the Single Judge dismissed the  writ  petition  preferred
by the appellant and allowed the writ petition preferred by  the  respondent
and  issued  direction  to  the  appellant  Corporation  to  reinstate   the
respondent  with  back-wages  and  continuity  of  service  and  all   other
attendant benefits.

7.     Being  aggrieved,  the  appellant  preferred  Letters  Patent  Appeal
bearing Writ Appeal  Nos.  2082  and  2083  of  2013.   The  Division  Bench
affirmed  the  view  taken  by  the  Single  Judge.   The   Division   Bench
distinguished the decision of this Court in  the  case  of  Cholan  Roadways
Ltd. Vs. G. Thirugnanasambandam[1] which was pressed  into  service  by  the
appellant, on the principle of res ipsa loquitur.  The Division  Bench  held
that merely on the basis of  evidence  of  the  Assistant  Manager  and  the
Engineer,  who  were  not  the  eye  witnesses,  the  charges  against   the
respondent remained unsubstantiated.  Hence, the writ  appeals  came  to  be
dismissed. This decision is the subject matter of challenge in  the  present
appeals.

8.    According to the appellant, the evidence produced  by  the  Department
was sufficient to bring home the charge of rash  and  negligent  driving  by
the respondent on  the  day  of  accident.  The  Commissioner  exceeded  his
jurisdiction in recording  a  contrary  finding  while  refusing  to  accord
approval to  the  order  of  dismissal  of  the  respondent  passed  by  the
Department, considering the fact that the accident admittedly  caused  fatal
injuries to  passengers  travelling  in  the  car.   It  is  contended  that
considering the seriousness of the charges and the fact that the  respondent
was driving the bus in a rash and negligent  manner,  the  approach  of  the
Commissioner was hyper-technical.  That is not only  a  manifest  error  but
has also resulted in grave injustice.  The  respondent  on  the  other  hand
contends that the Commissioner has applied the well settled  legal  position
that there can be no presumption of  misconduct  by  the  employees.   That,
charge  must  be  proved  by  the  Department  during  the  inquiry.    Non-
examination of the material witnesses such as eye witnesses present  on  the
spot, conductor and passengers, travelling on the same bus was  fatal.  For,
it entails in not substantiating the  charges  against  the  respondent  and
failure to discharge the initial onus resting on  the  Department  to  prove
the charge as framed.  According to the respondent, no fault  can  be  found
with the tangible reasons recorded by the Commissioner  as  noticed  by  the
Single Judge (reproduced above); and  resultantly,  the  conclusion  of  the
Commissioner of  not according  approval to the order of dismissal  is  just
and proper.  It  is  submitted  that  the  Single  Judge  was  justified  in
allowing  the  writ  petition  preferred  by  the  respondent  and   issuing
direction to the appellant to reinstate him with back-wages  and  continuity
of service and all attendant benefits accrued to him.

9.    The moot question is about the jurisdiction of the Joint  Commissioner
of Labour (Conciliation) whilst considering an application for  approval  of
order of punishment under Section 33(2) (b) of the Industrial Disputes  Act,
1947. It is well settled that the jurisdiction  under  Section  33(2)(b)  of
the Act is a limited one. That jurisdiction cannot be equated with  that  of
the jurisdiction under Section 10  of  the  Industrial  Disputes  Act.  This
Court in the case of Cholan Roadways (Supra) observed thus:

“18.  The jurisdiction of the Tribunal while considering an application  for
grant of approval has succinctly been stated by this Court  in  Martin  Burn
Ltd. Vs R.N. Banerjee (AIR 1958 SC 79). While exercising jurisdiction  under
Section 33(2) (b) of the Act, the Industrial Tribunal is required to see  as
to whether a prima facie case has been made out as regard  the  validity  or
otherwise of the domestic enquiry held against the  delinquent;  keeping  in
view the fact that if the permission or approval is granted,  the  order  of
discharge or dismissal which may be passed against the  delinquent  employee
would be liable to be challenged in an  appropriate  proceeding  before  the
Industrial Tribunal in terms of the provision  of  the  Industrial  Disputes
Act. In Martin Burn’s case (supra) this court stated:

“A prima facie case does not mean a case proved  to  the  hilt  but  a  case
which can be said to be established if the evidence which is led in  support
of the same were believed. While determining whether a prima facie case  had
been made out the relevant consideration is whether on the evidence  led  it
was possible to arrive at the conclusion in question and  not  whether  that
was the only conclusion which could be arrived at on that evidence.  It  may
be that the Tribunal considering this question may itself have arrived at  a
different conclusion. It has, however, not to substitute  its  own  judgment
for the judgment in question. It has only got to consider whether  the  view
taken is a possible view on the evidence on the record.  (See  Buckingham  &
Carnatic Co. Ltd. Vs The Workers of the Company (1952) Lab. AC 490 (F).””

            (emphasis supplied)



This judgment was relied by the appellant before  the  Division  Bench.  The
Division Bench, however, brushed it aside by observing  that  the  principle
of Res ipsa loquitur is not applicable to the case on hand.  That  approach,
in our opinion is untenable. In that, the said decision not only deals  with
the principle of Res ipsa loquitur but also with the scope  of  jurisdiction
of the Commissioner under Section 33(2)(b) of the Act.  It  also  delineates
the extent of scrutiny to be done at this stage to ascertain  whether  prima
facie case is made out for grant or non-grant of approval to  the  order  of
punishment. In doing so, the  Commissioner  could  not  substitute  his  own
judgment but must only consider whether the view taken by  the  Disciplinary
Authority is a possible view on the evidence on record.

10.    In  the  present  case,  the  sole  reason  which  weighed  with  the
Commissioner was that no independent witness  was  produced  -  not  even  a
single passenger of the bus was examined by  the  Department.  The  decision
relied by the appellant squarely deals even  with  this  reasoning.  It  has
been held that, in the  case  of  State  of  Haryana  &  Others  Vs.  Rattan
Singh[2] the Court held that mere  non-examination  of  passenger  does  not
render the finding of guilt  and  punishment  imposed  by  the  Disciplinary
Authority invalid. Similar view has been taken in  the  case  of  Divisional
Controller KSRTC (NWKRTC) vs. A.T. Mane[3]. Both these decisions  have  been
noticed in the reported decision relied by  the  appellant.  The  burden  to
prove that the accident happened due  to  some  other  cause  than  his  own
negligence, is on the employee, as expounded in the  case  of  Thakur  Singh
vs. State of Punjab[4]  referred  to  in  the  reported  decision.   In  the
reported case relied by the appellant, it has been noted as under:

“34.  ……………………………In the  instant  case  the  Presiding  Officer,  Industrial
Tribunal as also the learned Single Judge and  the  Division  Bench  of  the
High Court misdirected themselves in law insofar  as  they  failed  to  pose
unto themselves correct questions. It is  now  well-settled  that  a  quasi-
judicial authority must pose unto itself a correct question so as to  arrive
at a correct finding of fact. A  wrong  question  posed  leads  to  a  wrong
answer. In this case, furthermore, the misdirection in law committed by  the
Industrial Tribunal was apparent insofar as it did not apply  the  principle
of Res ipsa loquitur which was relevant for the purpose of  this  case  and,
thus, failed to take into consideration a relevant  factor  and  furthermore
took into consideration an irrelevant fact not germane for  determining  the
issue, namely, the passengers of the bus were  mandatorily  required  to  be
examined. The Industrial  Tribunal  further  failed  to  apply  the  correct
standard  of  proof  in  relation  to   a   domestic   enquiry,   which   in
“preponderance of probability” and applied the standard  of  proof  required
for a criminal trial. A case for judicial review  was,  thus,  clearly  made
out.”



11.   Applying the principle stated in Cholan Roadways  Ltd.  (Supra),  what
needs to be considered is about the probative value of the evidence  showing
the extensive damage caused to the  bus  as  well  as  motorcar;  the  fatal
injuries caused to several persons resulting in death; and that  the  nature
of impact raises an inference that the bus  was  driven  by  the  respondent
rashly or negligently. The material relied  by  the  Department  during  the
enquiry supported the fact that the respondent was driving  the  vehicle  at
the relevant time and because of the high speed of his  vehicle  the  impact
was so severe that  the  two  vehicles  were  extensively  damaged  and  the
passengers travelling in the vehicle suffered fatal  injuries  resulting  in
death of five persons on the spot and four persons in the  hospital  besides
the injuries to  nine  persons.  These  facts  stood  established  from  the
material relied by the Department, as a result of which the doctrine of  Res
ipsa loquitur came into play and the burden shifted on  the  respondent  who
was in control of the bus to establish that the accident did not  happen  on
account of any negligence on his part.  Neither  the  Commissioner  nor  the
High Court considered the matter on that basis  nor  posed  unto  themselves
the correct question which was relevant for deciding the  application  under
Section 33(2)(b). On the other hand, the  order  of  punishment  dated  13th
October, 2003, ex facie, reveals that the  report  of  the  Enquiry  Officer
referring to the  relevant material established the factum  and  the  nature
of accident warranting an inference that the respondent had driven  the  bus
rashly and negligently. Further, the observation in the unreported  decision
of the Division Bench of the same High Court was not relevant  for  deciding
the  application  under  Section  33(2)(b).  Significantly,  the  order   of
punishment also adverts to the past history of the respondent indicative  of
respondent  having  faced  similar  departmental  action   on   thirty   two
occasions, including for having committed minor as well as  fatal  accidents
while performing his duty.

12.    In  our  opinion,  the  Commissioner  exceeded  his  jurisdiction  in
reappreciating the evidence  adduced  before  the  Enquiry  Officer  and  in
substituting his own judgment to that of the Disciplinary Authority. It  was
not a case  of  no  legal  evidence  produced  during  the  enquiry  by  the
Department, in relation  to  the  charges  framed  against  the  respondent.
Whether the  decision  of  the  Disciplinary  Authority  of  dismissing  the
respondent is just and proper,  could  be  assailed  by  the  respondent  in
appropriate proceedings.  Considering  the  fact  that  there  was  adequate
material  produced  in  the  Departmental  enquiry  evidencing  that   fatal
accident was caused by the respondent while driving  the  vehicle  on  duty,
the burden to prove that the accident happened due to some other cause  than
his own negligence was on the respondent. The doctrine of Res ipsa  loquitur
squarely applies to the fact situation in the present case.

13.    Ordinarily,  we  would  have  remitted  the  matter   back   to   the
Commissioner for consideration afresh, but as the matter is  pending  for  a
long time and as we are satisfied that in the fact situation of the  present
case approval to the order of punishment passed  by  the  appellant  against
the respondent should have been granted,  we  allow  the  application  under
Section 33(2)(b)  preferred  by  the  appellant  but  with  liberty  to  the
respondent to take recourse to appropriate remedy as  may  be  available  in
law to question the said order of dismissal dated 13th October, 2003.

14.   Accordingly, we set aside the impugned decisions of the High Court  as
well as of the Joint Commissioner. The appeals  are  allowed  in  the  above
terms with no order as to costs.





                                                             .………………………….CJI
                                                                (T.S.Thakur)



                                                             ..……………………………J.
                                                           (A.M. Khanwilkar)

New Delhi,
September 2, 2016
-----------------------
[1]
      [2]  (2005) 3 SCC 241
[3]
      [4] (1977) 2 SCC 491
[5]
      [6] (2005) 3 SCC 254
[7]
      [8] (2003) 9 SCC 208


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