Delhi Transport Corporation vs Sh. Gajender Pal Singh
2009 Latest Caselaw 1785 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          W.P.(C) NO. 6964/2005

%                                         Reserved on : 18.03.2009
                                     Date of Decision : 01.05.2009

Delhi Transport Corporation                             .... Petitioner

                       Through Mr. Uday N. Tiwari, Advocate

                                 Versus

Sh. Gajender Pal Singh                                  .... Respondent

                       Through Mr. Ranjan Kumar, Advocate


CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

1.    Whether reporters of Local papers may be
      allowed to see the judgment?                            YES
2.    To be referred to the reporter or not?                  YES
3.    Whether the judgment should be reported in
      the Digest?                                             YES


V. K. SHALI, J.

*

1. The petitioner in this writ petition has challenged the award dated

26th August, 2004 passed by the learned Industrial Tribunal in O.P. No.

15/1997 in the case titled Delhi Transport Corporation Vs. Sh.

Gajender Pal Singh. By virtue of the aforesaid award, the learned

Tribunal had held that the petitioner/DTC was not able to establish

that the respondent/driver had caused the accident by rash and

negligent driving. Secondly, he had failed to inform the petitioner/DTC

(which fact was admitted by him) about the factum of accident and

accordingly the application under Section 33-2(b) of the Industrial

Disputes Act, 1947 of the petitioner/DTC was rejected.

2. Briefly stated the facts of the case leading to the filing of the

present writ petition are that after holding a domestic enquiry for

alleged misconduct against the respondent/driver, the petitioner/DTC

filed an application under Section 33-2(b) of the Industrial Disputes

Act, 1947 for seeking approval of the learned Labour Court for the

dismissal of the respondent/driver on the allegation given as under:

"That on 7.3.1987 while you were on staff bus duty on bus No. DEP 8297 at about 13.30 hours, you drove the bus in rash and negligent manner near Brahampuri Road and dashed a cyclist who was expired later on."

3. It was alleged that this amounted to misconduct on the part of

the respondent/driver within the meaning of clause 24 and 31 (vii) of

the Executive Instructions Duties of a driver read with paragraph 19(h)

and 19(k) of the standing orders governing the conduct of the DTC

employees. It may pertinent here to mention another charge against

the respondent/driver was that he had concealed the above factum of

accident.

4. The petitioner/DTC instituted an enquiry which was conducted in

accordance with law and the principle of natural justice. The Enquiry

Officer came to a conclusion that the misconduct of the

respondent/workman in causing accident and the consequent death of

the injured and the factum of not informing the petitioner/DTC about

the incident were proved. The petitioner/DTC accepted the enquiry

report and imposed the punishment of dismissal on the

respondent/driver which would not have effect without first getting the

approval of the learned Tribunal.

5. Before giving the approval to the petitioner/DTC a preliminary

issue was framed with regard to the legality and validity of the enquiry

against the respondent/driver as to whether it was in accordance with

the principles of natural justice. The said issue was decided against

the respondent/driver after examination of management witnesses i.e.

Tej Pal Singh, Deputy Manager as exhibit MW-I, Sanjay Saxena as

exhibit MW-2 and the respondent/driver was examined himself as

exhibit WW-I. The defence taken by the respondent/driver was that

the accident had occurred due to the negligence of the cyclist and not

due to his fault. A plea was also taken by the respondent/driver that

he was proceeded in respect of criminal case of causing accident by the

respondent/driver in which he was acquitted by the Metropolitan

Magistrate and this fact was informed to the petitioner/DTC. The

respondent/workman has stated that he had informed about the

incident to the Depot Manager on 7th March, 1985.

6. Although the learned Tribunal upheld the legality and validity of

the enquiry against the petitioner/DTC, however, with regard to the

grant of approval of the learned Tribunal came to a finding that as no

eye-witness to the incident was examined before the Enquiry Officer or

before the Court, and therefore, it merely on account of the fact that an

accident was caused resulting in the death of the cyclist, it could not be

assumed that the respondent/driver was driving bus in a rash and

negligent manner resulting in the accident and the consequence of

which death of the deceased. The learned Tribunal also took into

account the factum of respondent/workman having been acquitted in

the criminal case and accordingly, did not grant approval under Section

33-2(b) of the Industrial Disputes Act, 1947.

7. The main contention of the learned counsel for the

petitioner/DTC is that the learned Tribunal has fallen into grave error

and has given a finding which is perverse on account of the fact that the

factum of the accident having taken place is not denied by the

respondent/driver. If that be the so then the learned Tribunal ought to

have relied upon on the doctrine of res ipsa loquitur and the onus had

to be on the respondent/driver to prove that the accident was not

caused because of his rash and negligent driving. The learned counsel

for the petitioner/DTC in support of his submissions placed reliance on

North-East KRTC Vs. Devidas Manikrao Sadananda (2006) 8 SCC

52.

8. Per contra the learned counsel for the respondent/driver

contended that the very fact that he had acquitted in a criminal case of

the charge of rash and negligent driving, therefore, the onus was on the

petitioner/management to establish by examining the eye-witnesses

that the accident was caused on account of rash and negligent driving

of the respondent/driver.

9. I have carefully considered the submissions made by the

respective sides and perused the record.

10. There is no dispute about the fact that no eye-witness was

examined either before the Enquiry Officer or before the learned Labour

Court with regard to the accident having been caused by the rash and

negligent driving of the respondent/workman. It was also not in

dispute that in matters of accident the Apex Court has very frequently

applied the doctrine of res ipsa loquitur and if that be so, then in the

instant case also even though the petitioner/DTC may not have

examined any eye-witness either before the Enquiry Officer or even

before the learned Tribunal, the learned Labour Court was under an

obligation to apply the doctrine of res ipsa loquitur and examine on the

basis of the said doctrine, it could be said the accident was caused

because of the rash and negligent driving of the respondent/driver. On

the contrary, the learned Tribunal straight away observed that as no

eye-witness has been examined, therefore, the accident having been

caused by the rash and negligent driving of the respondent/driver is not

established. This in my view is not a correct position in law. Even if

no eye-witness was examined, the learned Labour Court was bound to

take note of the aforesaid doctrine and apply the same and the onus to

establish that the accident had not been taken place because of his

rash and negligent driving should have shifted on to the

respondent/driver. The fact that the accident was not caused because

if his negligence was a fact which was specially in his knowledge and he

ought to have established the same. To that extent the finding of the

learned Labour Court suffers from perversity and deserves to be set

aside. Reliance can also be placed on the case titled North-East KRTC

(supra).

"The respondent was a driver in the employment of the appellant Corporation. While driving a bus, he tried to overtake another bus of the Corporation and in that process the bus which he was driving collided with the hind part of the other bus. Consequently, the other bus dashed against a tree resulting in injuries to several passengers and death of several others. Moreover, severe damage was caused to the latter bus. The Corporation instituted a departmental enquiry which culminated in the dismissal of the respondent. The respondent then raised an industrial dispute under Section 10(4-A) (as in force in Karnataka) of the Industrial Disputes Act, 1947. The Labour Court held, inter alia, that there was no eyewitness to the accident and there was no evidence to show that the respondent had not taken reasonable care in the process of driving. The Labour Court, therefore, set aside the order of dismissal and direct reinstatement with full back wages. A Single Judge of the Karnataka High Court upheld that order albeit he reduced the back wages to 50%. Dismissing the Corporation's appeal, a Division Bench held that in the absence of evidence the doctrine of res ipsa loquitur was not applicable to the facts of the present case. The Corporation then filed the present appeal by special leave."

The question before the Supreme Court was whether the view

taken by the Division Bench was correct or not. While allowing the

appeal and remitting the matter to the Labour Court, the Supreme

Court observed :

"The impact of the offending bus running into the other bus was so great that the other bus went and

dashed against a tree resulting in injuries to 56 passengers and death of 4 passengers. No attempt was made by the delinquent driver to show that the cause of the accident could not have been avoided by exercise of ordinary care and caution. The Labour Court therefore, erred in not considering the maxim res ipsa loquitur."

11. On applying the doctrine of res ipsa loquitur in the instant case

also, the learned Labour Court ought to have considered the

implications of the said doctrine.

12. Another aspect on which the learned Labour Court has gone

wrong and against the record is the fact that one of the charges against

the respondent/driver was that he had failed to intimate the

petitioner/DTC about the accident. This is also stated by the learned

Labour Court in its penultimate paragraph that the respondent/driver

admitted in his cross-examination that he failed to intimate the

petitioner/DTC about the accident, therefore, this also constitute a

misconduct and since this was established at least a part of the charge

against the respondent/driver was fully established for which the

learned Labour Court was not correct to have refused the approval

sought by the petitioner/DTC under Section 33-2(b) of the Industrial

Disputes Act, 1947 on this ground also the order of the learned Labour

Court suffers from arbitrariness and perversity. Apart from this, the

general principle of proof is that a fact which is admitted need not be

proved. The respondent/workman has himself admitted the factum of

accident, therefore factum of accident having taken place need not be

established.

13. For the reasons mentioned above, I accordingly, set aside the

order dated 26th August, 2004 passed by the learned Labour Court and

remand the matter back to the learned Labour Court with the direction

to decide the application of the petitioner/DTC for grant of approval

under Section 33-2(b) of the Industrial Disputes Act, 1947, in the light

of the misconduct alleged against the respondent/driver afresh after

taking into account the doctrine of res ipsa loquitur as enunciated by

the Apex Court in the aforesaid judgment. With these observations, the

award dated 26th August, 2004 is set aside. The parties are directed to

appear before the learned Labour Court on 11th May, 2009 whereupon

the learned Labour Court shall decide the said application afresh. It is

hoped that the learned Labour Court shall endeavour to decide the

application as expeditiously as possible.

May 01, 2009                                           V.K. SHALI, J.
KP