Divisional Controller vs Narendra Mukundrao Gulhane
2004 Latest Caselaw 1186 Bom

JUDGMENT

Dharmadhikari B.P., J.

1. By this petition, under Articles 226 and 227 of Constitution of India, the petitioner/MSRTC is challenging the judgment and order dated 6-12-1988 delivered by first Labour Court, Nagpur in Complaint (ULPA) No. 1059/1987 and subsequent order dated 16th July, 1991 passed by the learned Member of the Industrial Court, Nagpur in Revision (ULPN) No. 39/1989, upholding the judgment and order of the Labour Court.

2. The respondent is working as driver with petitioner. On 15-1-1983 he was working as driver on a bus proceeding from Chandrapur to Arrive and said bus met with an accident and jeep having No. MTE - 1976 dashed with it. The charge in the charge-sheet is that with a view to stop the said jeep, which was coming from opposite side, the MSRTC bus was taken to right hand side, and at the same time, the jeep driver also took his jeep to his correct side, i.e. left hand side and hence both the vehicles came in front of each other and there was the accident. It is alleged that without reducing the speed of his vehicle, the respondent/driver continued to drive his but recklessly and to give side to the jeep coming from opposite direction, he took his bus to a wrong side of the road. Therefore, charge-sheet, for the charges falling under Clauses 11 and 42 of Schedule A of Discipline and Appeal Procedure, was served upon the respondent. After departmental enquiry on 28-9-1987 punishment of dismissal was imposed upon him and he was dismissed from MSRTC service w.e.f. 29-9-1987.

3. The respondent challenged his dismissal before the Labour Court by filling Complaint (ULPA) No. 1059/1987 under Section 28 of the M.R.T.U. and P.U.L.P. Act and took a defence that at the place of accident, the jeep was coming from opposite direction on wrong side and in excessive speed. He stated that the jeep was being driven in zig zag manner and, therefore, to avoid collision, he took the bus to right hand side of the road when the driver of the jeep also brought his jeep to left hand side and, therefore both the vehicles came on same side of the road in front of each other and the jeep gave dash to the bus with great force. He stated that because of this impact, the jeep driver died on the spot while two other occupants in the jeep were injured. He stated that he was not at all responsible for the said accident and the sole fault was that of jeep driver, the learned Labour Court, after appreciation of evidence on record, found that the findings reached by the Enquiry Officer are perverse and, therefore, had granted relief of reinstatement with full back wages and continuity of service to the respondent.

4. The petitioner/MSRTC challenged this order of Labour Court by filling Revision (ULPN) No. 39/1989 and the Revisional Court, after hearing both the sides, has endorsed the findings reached by the Labour Court after holding that there was no evidence before the Enquiry Officer to find the present respondent guilty. With the result, it dismissed the revision filed by the petitioner.

5. I have heard Advocate V.G. Wankhede for the petitioner/MSRTC and Advocate Mokdam for the respondent/driver.

6. Advocate Wankhede points out that before the Labour Court the respondent did not challenge fairness or property of departmental enquiry and accepted the same to be in accordance with the principles of natural justice. He contends that the findings of Enquiry Officer are based upon the material available on record, i.e. spot panchanama, map of accident spot prepared by staff of MSRTC. He contends that charge-sheet along with these documents clearly show that the MSRTC bus was taken to wrong side of the road and, therefore, there was accident. He contends that the defence of respondent/driver also supports this. He argues that if the jeep coming from opposite direction is being driven recklessly, in rash and negligent manner or in zigzag manner, that does not mean that MSRTC bus should be taken to right hand side of the road (wrong side) to avoid collision with the said jeep. He states that the charge-sheet is issued only for that purpose. He contends that after seeing such vehicle coming from opposite direction, the driver should have reduced the speed of his vehicle and should not have taken the bus to the wrong wide of the road to give side to such jeep. He states that the accident has taken place only because of this act on the part of respondent/driver.

7. As against this, Advocate Mokdam for the respondent/driver, points out that this aspect has been considered by both the courts below and the findings of fact has been reached that the respondent is not at fault in so far as this accident is concerned. He, therefore, argues that the finding of fact so reached cannot be re-opened by this Court in exercise of writ jurisdiction. He further states that before the Enquiry Officer, there was only a map of spot of accident, which reveals that the bus and jeep were on wrong side of the road in so far as the respondent/driver is concerned, and further there is a spot panchanama which has been recorded after that accident has taken place. He states that all these documents do not show the situation leading to the accident and no eye-witness to the accident was examined in departmental enquiry. He, therefore, states that there was absolutely no material before the Enquiry Officer to reach a finding that the respondent/driver was guilty and responsible for this accident. By relying upon para 6 of the judgment of the Labour Court, he points out that the Labour Court has appreciated this controversy minutely after evaluation of evidence and has recorded a correct, finding that the respondent/driver was not responsible for this accident.

8. Perusal of para 6 of the said judgment of the Labour Court shows that the Labour Court has found that there is no direct evidence before the Enquiry Officer to hold the respondent/driver responsible for the accident. The Labour Court has found that Asstt. Traffic Inspector and Dy. Mechanical Engineer who visited the spot after the accident, had no knowledge of circumstances leading to the accident. It has further found that the conductor of the bus, whose statement was recorded after the accident, was not examined during the departmental enquiry and no passenger in the bus was also examined. The Labour Court says that there is absolutely no material before the Enquiry Officer and absolutely no jurisdiction for Enquiry Officer to hold the respondent/driver guilty of the accident, It has found that there is no material on record to hold that the bus was being driven in an excessive speed, as alleged in the charge-sheet. It has found that on the contrary, it was the jeep driver, who was driving the jeep in excessive speed and in zig zag manner. As a prudent driver, with a view to avoid dash to his bus, the respondent took his bus to wrong side of the road (right hand side of the road) when suddenly the jeep also came on the same side of the road and gave dash to the bus. The Labour Court has held that when the jeep was approaching fast towards the bus in an abnormal manner, bus driver's reaction to avoid the dash was just and proper and had the jeep driver continued in same direction, there could not have been any accident. The Labour Court has visualised the situation and further held that any normal prudent driver would have acted with same refle. The Labour Court has further considered the fact that in Criminal Case No. 43/1983, the JMFC has acquitted the respondent on 31-1-1987. It has found that during trial two occupants of the jeep were examined by the prosecution and though they were injured in the accident, their evidence also could not establish that respondent/driver was negligent or rash in driving his bus. The learned Labour Court has held that the Enquiry Officer has not even considered this acquittal in his enquiry report.

9. Thus, it is apparent that the learned Labour Court has evaluated the entire material and thereafter has arrived at a finding that respondent/driver could not have been blamed for this accident and has, therefore, disagreed the findings recorded by the Enquiry Officer. Before the Enquiry Officer, there was no witness examined about the geography of place the situation and circumstances, which lead to this unfortunate accident.

10. The learned Member of the Industrial Court, in exercise of revisional jurisdiction, has confirmed these findings and has upheld the judgment and order of the Labour Court. In such circumstances, there is no perversity and no error apparent on the face of record is pointed out by the petitioner/MSRTC. There is no jurisdictional error also. Therefore, no ground has been made out warranting interference in the impugned order in writ jurisdiction under Articles 226 and 227 of Constitution of India. The writ petition fails and is accordingly dismissed. No order as to costs.

11. This Court by its order dated 25-6-1992 has directed the petitioner/ MSRTC to deposit the entire amount of back wages with Labour Court, Nagpur within one month and further directed that the said amount should be invested in a nationalised bank for a period of two years and the said deposit was directed to be renewed thereafter during the pendency of this petition. In view of dismissal of this writ petition. In view of dismissal of this writ petition, it is apparent that the respondent is entitled to withdraw the said amount. Hence, the respondent is granted permission to withdraw the said amount by making an appropriate application before the Labour Court.