(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
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
