U.P. State Road Transport ... vs Presiding Officer, And Ors
2012 Latest Caselaw 4808 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 26
 

 
Case :- WRIT - C No. - 604 of 1999
 

 
Petitioner :- U.P. State Road Transport Corporation, And Ors
 
Respondent :- Presiding Officer, And Ors
 
Petitioner Counsel :- Nripendra Mishra,Samir Sharma
 
Respondent Counsel :- C.S.C.,Siddharth
 

 
Hon'ble B. Amit Sthalekar,J.

Application for recalling of the order dated 19.10.2005 has been filed. The grounds mentioned in the affidavit filed in support of the restoration application found sufficient. Application is allowed and the order dated 19.10.1005 is recalled. The case is restored to its original number.

Heard Shri Samir Sharma, learned counsel for the petitioner, Shri Siddharth, learned counsel appearing for the UPSRTC and the learned standing counsel appearing for the State respondent.

By this writ petition, the petitioner-UPSRTC is challenging the award of the Labour Court dated 4.12.1997 passed in adjudication case No. 17 of 1994.

Briefly stated, the facts, as emerging from the writ petition, are that the respondent no. 2 was appointed as a Driver under the petitioner-Corporation on 1.1.1988. On 16.11.1988 when he was plying Bus No. UGN 7393 on Roorkee-Ghaziabad Road at about 7 p.m. the Bus collided with a tree at Chhapar near Moti Jheel. The reason given is that the respondent no. 2 tried to avoid the accident with a oncoming Truck and as the brakes were not in order, he steered the Bus to the left but due to poor visibility the bus dashed into a tree. A charge sheet was issued to the respondent no. 2 on 18.11.1989 alleging negligence and loss of a sum of Rs.3,020.25/- to the employer.

The respondent no. 2 submitted his explanation on 18.12.1989 but it is alleged that the same was not considered. A departmental enquiry was conducted in which he was not given full and fair opportunity to defend himself. Thereafter a show cause notice dated 11.12.1991 was issued to him which was also served upon him and he submitted his reply on 31.3.1992. Thereafter the order of punishment was passed on 13.5.1992 removing the respondent no. 2 from service. The respondent no. 2 preferred a departmental appeal on 20.5.1992. Aggrieved by the action of the petitioner-Corporation in removing him from service, the respondent no. 2 raised an industrial dispute which was referred by the State Government under section 4-K of the U.P. Industrial Disputes Act, 1947 by notification dated 20.1.1994, which on translation reads as follows:

"Whether the termination of the services of Shri Devendra Singh son of Karan Singh, Driver by order dated 13.5.1992 is legal and valid and if not what relief is the employee entitled to."

Accordingly adjudication case no. 17 of 1994 was registered. Alongwith the writ petition replies or objections of the Corporation have not been filed but from the reading of the award it will be noticed that the case of the respondent no. 2 workman was that the Bus was not driven rashly or negligently, there was poor visibility on account of fog and the brakes of the Bus were also not proper. To this a rejoinder was filed by the employer-Corporation and paragraphs 1 to 13 of the written statement of the respondent no. 2 were simply replied as "not admitted". The Labour Court framed additional issues which are as follows:

1. Whether the enquiry conducted by the employers was not fair and proper. If so, its effect?

2. Whether punishment awarded to the workman is excessive? If so, what would be the proper punishment?

3. Whether the workman has been in gainful employment else where? If so its effect.

The case of the respondent no. 2-workman before the Labour Court on a statement given on oath was that an accident took place on 16.11.1988 of the Bus No. UGN 7393 at Chhapar on account of poor visibility due to foggy weather and weak brakes. The case of the workman was that a speeding Truck was coming from the opposite side and in order to avoid a head on collision, the respondent no. 2-Driver steered his vehicle to a side on the Kachcha road where there was a tree with which the Bus collided. According to the respondent no. 2-workman a charge sheet was issued on 8.11.1989 filed as Ext. W-1 to which he has submitted his explanation, Ext. W-2. He was also issued a show cause notice Ext. W-3 to which he ha submitted his reply, Ext. W-4 but thereafter a punishment order, Ext. W-5 was passed on 13.5.1992 terminating his services. According to the respondent no. 2 he also filed a departmental appeal on 20.5.1992 but no order was communicated to him and he also sent a reminder filed as Ext. W-9. The workman reiterated that he was not given opportunity to cross examined the witnesses. However, in his cross examination it was admitted by the workman that he had received intimation about the departmental proceedings fixed on 15.11.1990 but as he was on duty he could not attend the same. It is also admitted that he did not apply for leave to attend the departmental proceedings. His contention further was that Foreman did not check the vehicle and the brakes of the Bus were not working properly.

Before the Labour Court, the case was fixed on 2.7.1997 for evidence of the employer-Corporation, but as the post of the Presiding Officer was vacant the case was adjourned for 18.8.1997 for the employer's evidence. On 18.8.1997 the employer-Corporation sought an adjournment, which was granted and the next date was fixed for 29.9.1997. On that date also the employer sought adjournment which was granted and the case was fixed for 28.10.1997. On 28.10.1997 again the employer requested for adjournment, which was granted and the case was fixed for 29.11.1997. On 29.11.1997 when the case was called out no one appeared on behalf of the petitioner-Corporation but after sometime someone claiming to be a pairokar and representative of the Corporation presented himself and moved an application for adjournment on the ground that the witness required to be produced on behalf of the Corporation was sick but no medical certificate of sickness was filed in support of this contention. Accordingly the Labour Court rejected the application on 29.11.1997. It was made clear that no further date would be granted and the evidence of the employer was closed.

The Labour Court has also recorded a finding that there was no dispute that the accident took place on 16.11.1988 at Chappar and the Bus No. UGN 7393 driven by the respondent no. 2 was involved in the accident. The Labour Court has further recorded a finding that the main evidence which was relied on against the workman in the enquiry proceedings was the report of the Senior Foreman dated 6.12.1988 in which it was held that the accident occurred on account of negligence of the respondent no. 2-Driver but the Labour Court has held that in the report there is no mention that the Bus was being driven negligently or that the accident took place on account of negligence of the Driver of the Bus.

The Labour Court has also referred to a report dated 22.11.1988 written by the respondent no. 2, which was marked as Ext. -21 in which it was stated that the respondent no. 2 had stated that when he was driving the Bus there was horse cart in front of the Bus and he tried to overtake the horse cart but at the same time he suddenly noticed that a Truck was coming from the opposite direction. The visibility was poor he tried to avoid a head on collision and steered the Bus to the left of the road and took it on the Kachcha road where the Bus hit a tree. An F.I.R. of the accident was lodged by the conductor of the Bus Shri Satish Chand in which it was stated that the accident occurred at about 6.15 p.m.; there was heavy fog; a Truck was coming from the opposite direction which could not be seen but when seen at the last moment, to avoid a head on collision the Bus was taken to the side of the road where it collided with a tree which could not be noticed due to heavy fog. The Superintendent of Police did not take any action on this report due to the fact that it was a non cognizance offence.

The Labour Court has, however, recorded a finding of fact that even in the departmental enquiry proceedings as well as before the Labour Court the only evidence produced by the employer-Corporation was the Foreman who was not an eye witness of the accident. No eye witnesses were produced; even passengers were not produced; even the conductor who lodged the F.I.R. was not produced either in the departmental enquiry or before the Labour Court , therefore, the Labour Court has held that in such circumstances the respondent no. 2-Driver has been able to discharge his burden to prove that the accident occurred on account of poor visibility due to heavy fog and not on account of rash or negligent driving on his part.

There is nothing on the record to show that any person or passenger or conductor or Driver received any injury or there were any deaths. What was the nature of damage to the vehicle has also not come on the record from any of the documents of the writ petition. All that has been stated in the charge sheet is that a loss of Rs.3023.25/- has been caused on account of the accident caused by the respondent no. 2 due to his negligent driving.

The employer-Corporation did not lead any evidence to dispute the fact that on the date and time of accident there was no fog or that there was no horse cart in front of the Bus or that a Truck was not coming from the opposite direction and the Driver tried to avoid a head on collision, what was the speed of the Bus at the time of accident has also not been disclosed by the employer but the fact that there was no death recorded and not even a single injury of the simplest nature such as bruises or abrasion caused to anybody inside the Bus as a result of the accident or what was the nature of damage caused to the Bus, it can be safely presumed that the Bus was not being driven rashly or negligently inasmuch as this fact could only have been verified by the evidence of the Conductor who had lodged the F.I.R. However as already noted above since the Conductor was neither produced in the enquiry proceedings nor before the Labour Court nor any passenger of the Bus was produced either in the enquiry or before the Labour Court, it can safely be presumed that the Bus was not being driven rashly or negligently by the respondent no. 2 and the accident occurred due to poor visibility on account of fog.

Shri Sameer Sharma, learned counsel for the petitioner relying upon a decision of the Supreme Court reported in (2005) 3 SCC 241 (Cholan Roadways Ltd. Vs. G. Thirugnanasambandam) submitted that the factum of the accident was not in dispute, the only question remains is that the burden in such circumstances was upon the respondent no. 2-workman to have discharged that burden. He further submitted that even if the Conductor had not been produced in the departmental enquiry or before the Labour Court by the employer-Corporation, the Conductor could have been produced in the departmental enquiry or before the Labour Court as an employee's witness, namely, as a witness of the respondent no. 2 to establish that the Bus was not being driven negligently by the Driver and that the circumstances in which the accident occurred were true as stated by the Driver. Shri Sameer Sharma has laid specific emphasis on paragraphs 21,26 and 34 of the said judgment, which read as under:

"21. Res ipsa loquitur is a well-known principle which is applicable in the instant case. Once the said doctrine is found to be applicable the burden of proof would shift on the delinquent. As noticed hereinabove, the enquiry officer has categorically rejected the defence of the respondent that the bus was being driven at a slow speed.

26. The burden of proof was, therefore, on the respondent to prove that the vehicle was not being driven by him rashly or negligently.

34.This decision also has no application to the facts of the present case. 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 posted 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 ips 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, that 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 is "preponderance of probability" and applied the standard of proof required for a criminal trial . A case for judicial review was, thus, clearly made out."

He has also placed reliance on a decision of the Supreme Court reported in (2007) 2 SCC 433 (J. K. Synthetics Ltd. Vs. K.P. Agrawal and another) and referred to paragraphs 19, 20 and 21 which read as under:

"19. But the cases referred to above, where back-wages were awarded, related to termination/retrenchment which were held to be illegal and invalid for non-compliance with statutory requirements or related to cases where the court found that the termination was motivated or amounted to victimization. The decisions relating to back wages payable on illegal retrenchment or termination may have no application to the case like the present one, where the termination (dismissal or removal or compulsory retirement) is by way of punishment for misconduct in a departmental inquiry, and the court confirms the finding regarding misconduct, but only interferes with the punishment being of the view that it is excessive, and awards a lesser punishment, resulting in the reinstatement of employee. Where the power under Article 226 or section 11A of the Industrial Disputes Act (or any other similar provision) is exercised by any Court to interfere with the punishment on the ground that it is excessive and the employee deserves a lesser punishment, and a consequential direction is issued for reinstatement, the court is not holding that the employer was in the wrong or that the dismissal was illegal and invalid. The court is merely exercising its discretion to award a lesser punishment. Till such power is exercised, the dismissal is valid and in force. When the punishment is reduced by a court as being excessive, there can be either a direction for reinstatement or a direction for a nominal lump sum compensation. And if reinstatement is directed, it can be effective either prospectively from the date of such substitution of punishment (in which event, there is no continuity of service) or retrospectively, from the date on which the penalty of termination was imposed (in which event, there can be a consequential direction relating to continuity of service). What requires to be noted in cases where finding of misconduct is affirmed and only the punishment is interfered with (as contrasted from cases where termination is held to be illegal or void) is that there is no automatic reinstatement; and if reinstatement is directed, it is not automatically with retrospective effect from the date of termination. Therefore, where reinstatement is a consequence of imposition of a lesser punishment, neither back-wages nor continuity of service nor consequential benefits, follow as a natural or necessary consequence of such reinstatement. In cases where the misconduct is held to be proved, and reinstatement is itself a consequential benefit arising from imposition of a lesser punishment, award of back wages for the period when the employee has not worked, may amount to rewarding the delinquent employee and punishing the employer for taking action for the misconduct committed by the employee. That should be avoided. Similarly, in such cases, even where continuity of service is directed, it should only be for purposes of pensionary/retirement benefits, and not for other benefits like increments, promotions etc.

20. But there are two exceptions. The first is where the court sets aside the termination as a consequence of employee being exonerated or being found not guilty of the misconduct. Second is where the court reaches a conclusion that the inquiry was held in respect of a frivolous issue or petty misconduct, as a camouflage to get rid of the employee or victimize him, and the disproportionately excessive punishment is a result of such scheme or intention. In such cases, the principles relating to back-wages etc. will be the same as those applied in the cases of an illegal termination.

21. In this case, the Labour Court found that a charge against the employee in respect of a serious misconduct was proved. It, however, felt that the punishment of dismissal was not warranted and therefore, imposed a lesser punishment of withholding the two annual increments. In such circumstances, award of back wages was neither automatic nor consequential. In fact, back wages was not warranted at all."

His further submission is that even if it is found by the Labour Court that the punishment of removal from service is too harsh and lesser punishment may be imposed, the entire back wages in such circumstances ought not to have been awarded nor a direction for reinstatement be given.

Per contra, Shri Siddharth, learned counsel for the respondent no. 2 also placed reliance upon paragraph 20 of the judgment in the case of J.K. Synthetics Ltd. (Supra) and submitted that where the Court sets aside the termination as a consequence of the employee being exonerated being not found guilty of misconduct or where the enquiry is held in respect of a frivolous issue or petty misconduct, as a camouflage to get rid of the employee or victimize him, punishment awarded would be held to be excessive as a result of such scheme or intention.

Having considered the submissions of the learned counsel for the respective parties, it would be seen that there is no dispute that the accident occurred and that to that extent the department has discharged its burden to prove the occurrence of accident. Thereafter the burden shifts upon the employee to establish that the accident did not occur as a result of his negligence. In this regard the evidence on record shows that there was heavy fog on 16.11.1988 at around 7 p.m. evening, when the accident occurred and the accident occurred on account of the fact that when the respondent no. 2 was trying to overtake a horse cart he at the last moment noticed that a Truck was coming from the opposite direction and to avoid a head on collision he steered the vehicle to the Kachcha road where it hit a tree. According to the respondent no. 2 the tree was also not visible on account of heavy fog. Therefore, it is submitted by Shri Siddharth that the workman has also been able to discharge his burden of proof cast upon him on the basis of the F.I.R. lodged by the Conductor.

However, the fact remains that when the accident occurred whether there was an on coming Truck or not and whether the respondent no. 2 tried to avoid the horse cart or not, this fact could only be established by the Bus Driver namely, respondent no. 2 by producing some evidence in his favour. The conductor of the Bus who lodged the F.I.R. was never produced as a witness in the departmental proceedings or before the Labour Court, therefore, the story set up by the respondent no. 2 cannot be accepted in its entirety for want of evidence of the Conductor or any of the Bus passengers. The Labour Court also has held that the workman was not guilty of the charges levelled against him. This finding of the Labour Court cannot be accepted in its entirety, for the reasons already stated above. The Labour Court has held that the respondent no. 2-workman was not guilty of negligence and has, therefore, held the order of punishment to be harsh and unwarranted and has directed the reinstatement of the respondent no. 2. The Labour Court has also considered that the employer has not been able to establish that during the period the workman was out of service he was in gainful employment and has, therefore, further awarded entire back wages as a consequence of reinstatement of the respondent no. 2.

From the submissions made by learned counsel for the petitioner and the case law referred to above, it cannot be said that accident has not occurred nor can it be said that the respondent no. 2 discharged the burden upon him to establish that the accident did not occur as a result of rash and negligent driving of the respondent no. 2. However, it has been informed by Shri Sameer Sharma very fairly that the respondent no. 2 has been reinstated in service w.e.f. 2000 and he is working continuously as such. At the time of admission of this writ petition on 8.1.1999, this Court had been pleased to pass the following interim order:

"Heard learned counsel for the petitioner. The validity of the award made under the Industrial Disputes Act, 1947 has been challenged in this writ petition. A fine point of controversy has been raised requiring scrutiny by this court.

Issue notice to the respondents, for which steps shall be taken, in accordance with provisions contained in the Rules of the Court, within one week. Respondents be called upon to file counter affidavit within four weeks. List thereafter.

In the meantime, the enforcement of the impugned award shall remain stayed provided-

(1) the back wages to the extent of 50 per cent payable under the award are deposited with the concerned Industrial Tribunal within two months from today.

(2) a sum equal to wages payable to the workman from the date of the award till the last preceding month is paid to the respondent workman within two months from today; and,

(3) wages at the rate admissible under Section 17-B of the Industrial Disputes Act, 1947 for the succeeding months shall be paid to the respondent-workman, month by month basis, till further orders of this court.

The back wages so deposited, in terms of this order, shall be invested in some Nationalized Bank by the Industrial Tribunal under an interest earning term deposit scheme.

In the event of default in complying with any of the aforementioned conditions, the present stay order shall automatically come to an end. "

Shri Siddharth, learned counsel for the respondent no. 2 submits that the petitioner-Corporation has deposited the amount of 50% of the back wages before the Tribunal and when the writ petition was dismissed on 19.10.2005 and the interim order stood vacated, the said amount has also been paid to the respondent no. 2. Similarly the amount awarded under the direction no. 2 was paid to the respondent no. 2. The only question now remains that with regard to the directions given for compliance under section 17-B of the Industrial Disputes Act, 1947. In this regard it may be noted that the Supreme Court in the case of UPSRTC Vs. Surendra Singh Civil Appeal No. 359 of 2007 arising out of SLP © No. 882 of 2007 has held that the provisions of Section 17-B of the Industrial Disputes Act, 1947 are found only in the Industrial Disputes Act, 1947 and do not find any mention in the U.P. Industrial Disputes Act, 1947 and therefore, the said provisions have no application to the proceedings under the U.P. Industrial Disputes Act, 1947. The judgement being a short one is quoted in its entirety:

"Leave granted.

This appeal has been filed by the U.P. State Road Transport Corporation against an interim order passed by the High Court of Allahabad by which the High Court has modified the interim order granted by it staying the operation of the award to the extent that the appellant shall comply with the provisions of Section 17-B of the Industrial Dispute Act, 1947.

It is not in dispute that the provisions of Section 17-B of the Industrial Disputes Act do not exit in the U.P. Industrial Disputes Act. In this view of the matter, question of compliance of the said provision does not arise at all. Accordingly, the impugned order is set aside. This, however, shall not preclude the respondent from making fresh application for grant of interim relief in his favour in accordance with law. Since the appeal is pending, we direct the High Court to dispose of the appeal preferred by the appellant within a period of six months from this date positively without granting any unnecessary adjournments to either of the parties.

Accordingly, the appeal is allowed to the extent indicated above. There shall be no order as to costs. "

However, since the respondent no. 2 has already been reinstated in service and he has already been paid 50% of the back wages awarded and as contained in paragraph 2 and 3 of the order dated 8.1.1999, the award of the Labour Court dated 4.12.1997 is modified to the extend that the back wages shall be confined only to the amount already paid to the respondent no. 2 in terms of the order dated 8.1.1999. It is further provided that any amount paid to the respondent no. 2 under section 17-B of the Industrial Disputes Act, 1947 shall not be recovered from him.

With the aforesaid observations, this writ petition is partly allowed.

Order Date :- 5.10.2012

o.k.