Gujarat State Road Transport ... vs M K Vora
2023 Latest Caselaw 4902 Guj

    C/SCA/3239/2011                               CAV JUDGMENT DATED: 26/06/2023




     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 3239 of 2011


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
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1 Whether Reporters of Local Papers may be allowed YES to see the judgment ?

2 To be referred to the Reporter or not ? YES

3 Whether their Lordships wish to see the fair copy NO of the judgment ?

4 Whether this case involves a substantial question NO of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== GUJARAT STATE ROAD TRANSPORT CORPORATION Versus M K VORA ========================================================== Appearance:

MR HARDIK C RAWAL(719) for the Petitioner(s) No. 1 MR ND SONGARA(2198) for the Respondent(s) No. 1

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CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

Date : 26/06/2023

CAV JUDGMENT

1. The petitioner, by way of present petition under Article 226 and 227 of the Constitution of India has challenged the Judgement and Award dated 22/6/2010 passed by the learned Industrial Tribunal, Ahmedabad in Reference (I.T.)

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No. 443 of 1999 by which, the order of the punishment dated 4/8/1994 of placing the respondent in basic pay of Rs.800/- of driver, is quashed and set aside and directed the petitioner to pay the consequential and incidental benefits.

2. Facts giving rise to file the present petition are as under:-

2.1. The respondent was working as a driver and has superannuated on 30/6/2005. The respondent was driving the bus on 12/2/1989 on Ahmedabad - Badmer route and at that time the bus met with an accident with a truck No.G.R. 5700. In the said accident, seven passengers were injured and two were died on the spot and the bus as the well as the truck suffered damage.

2.2. The claimants have filed four different claim petitions in the Motor Accident Claims Tribunal being Motor Accident Claim Petition No.810 of 1990 (pending) claiming compensation of Rs. 2,05,000/-, MACP No.420 of 1989 (pending) Claiming Rs.25,000/-, MACP No.484 of 1989 (pending) claiming Rs.1,50,000/- and 1413 of 1989 in which an amount of Rs.1,53,515/- is paid.

2.3. After holding departmental inquiry against the respondent driver as per the rules, the competent authority

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by order dated 4/8/1984 imposed the punishment of placing the respondent in the basic pay scale of Rs. 800/- of driver. The departmental appeal filed by the respondent was rejected.

2.4. The respondent raised an industrial dispute which was referred to the Industrial Tribunal, Ahmedabad and same was registered as Reference (IT) No.443 of 1999. During the course of the reference, the workman by filing a pursis waived challenge to the legality and validity of the departmental inquiry. However the Learned Judge found fault with the findings of the competent authority and quashed and set aside the order of punishment. Hence, the petitioner Gujarat State Road Transport Corporation has preferred the present petition.

3. SUBMISSIONS OF THE PETITIONER :

3.1. Mr.Hardik Raval, learned advocate for the petitioner has submitted that due to the negligence of the respondent driver accident has occurred wherein seven persons have injured and two persons have died on the spot and even the bus and the truck have suffered damages. As such, after holding departmental inquiry as per the rules, punishment of placing the respondent workman in the basic pay Rs.800/- of driver, was imposed and the departmental appeal has been rejected. It is also submitted that during the pendency of the reference, the workman had filed

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pursis waiving the challenge to the legality and validity of the departmental inquiry. It is submitted that the impugned judgement and award of the Industrial Tribunal is unjust and arbitrary.

3.2. Mr.Hardik Raval, learned advocate for the petitioner has relied upon the principle of res ipsa loquitur. It is submitted that the accident which has occurred has clearly established the negligence of the respondent driver and there was no requirement to examine any independent witness to that effect. The Industrial Tribunal has given erroneous finding regarding legality of the inquiry and non- examination of the independent witness.

3.3. Mr.Hardik Raval, learned advocate for the petitioner has submitted that the burden was not on the management that the bus driver was negligent due to the which the accident occurred, but it was for the respondent driver to prove that he was not rash and negligent in driving the bus. He has also prayed to apply the doctrine of res ipsa loquitur, in the present case wherein it is an admitted fact that while overtaking the Truck which was going ahead, the conductor side of the bus was dashed with the truck and the accident occurred in which seven persons were injured and two persons had died on account of negligence of the respondent workman in driving the bus. It is submitted to allow the petition and quash and set aside the judgement

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and award passed by the Industrial Tribunal.

4. SUBMISSION OF THE RESPONDENT:

4.1. Mr.N.D. Sonagara, learned advocate for the respondent has supported the judgement and award passed by the Industrial Tribunal. He has submitted that the inquiry officer has not considered the fact that no independent witnesses of the accident has been examined and the Industrial Tribunal has rightly observed that the findings of the inquiry officer are perverse and illegal. It is submitted that the Industrial Tribunal has taken into consideration the fact that there are not previous allegations or charges of any accident being occurred due to negligence of the respondent workman. It is also submitted that by way of reference, the workman has challenged the finding of the inquiry officer based upon the wrong appreciation of the evidence and based upon the statement of the witnesses which has been recorded by the investigating agency i.e. police whereas the procedure of conducting inquiry is not challenged and is admitted by the respondent workman. It is submitted that as such there is no illegality or perversity in the present order of the Industrial Tribunal. It is prayed to reject the petition.

5. FINDINGS:

Heard the learned advocates for the respective parties at length.

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5.1. At the outset, it is required to be noted that in the departmental inquiry charge of negligence in driving by the respondent workman and causing accident, seven persons injured and two persons died on the spot, came to be proved. It also appears that the respondent workman was driving the bus and while overtaking the truck which was going ahead, the conductor side of the bus was dashed with the bus and accident had taken place wherein seven persons injured and two persons died on the spot. The Industrial Tribunal has allowed the reference and quashed and set aside the order of punishment imposed by the disciplinary authority on two grounds, firstly, no independent witnesses have been examined in the departmental inquiry and secondly, inquiry officer has relied upon the statement of the witnesses which were recorded in the police case, and held that the inquiry initiated against the respondent driver is not proved.

5.2. So far as the first ground on which the impugned order has been passed by the Industrial Tribunal and order of the inquiry officer has been set aside i.e. that no independent witnesses being examined by the inquiry officer, is concerned, it is required to be noted that as such it was the driver who was driving of the bus is the best person who can be said to be eye witness and therefore, it is for the driver to prove that there was no negligence in driving the

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vehicle and he was not at all responsible for the accident.

5.3. The controversy involved in the present petition is not res-integra in view of decision of this Court in the case of Gujarat State Road Transport Corporation Versus Pravinsinh N. Gohil, reported in 2014(0) GLHEL-HC 231210 wherein, this Court has observed and held as under :-

"[5.3] In the case of Cholan Roadways Ltd., vs. G. Thirugnanasamb andam reported in AIR 2005 SC 570, in paragraphs 17, 19, 22 to 28 has observed and held as under:-

"17.There cannot, however, be any doubt whatsoever that the principle of natural justice are required to be complied with in a domestic enquiry. It is, however, well-known that the said principle cannot be stretched too far nor can be applied in a vacuum.

19. It is further trite that the standard of proof required in a domestic enquiry vis-`-vis a criminal trial is absolutely different. Whereas in the former 'preponderance of probability' would suffice; in the latter, 'proof beyond all reasonable doubt' is imperative.

22. In Pushpabai Parshottam Udeshi and Others Vs. M/s. Ranjit Ginning & Pressing Co. Pvt. Ltd. and another [AIR 1977 SC 1735] this Court observed:

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"6. The normal rule is that it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident "speaks for itself" or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence"

23. The said principle was applied in Sarla Dixit (Smt.) and Another Vs. Balwant Yadav and Others [(1996) 3 SCC 179].

                  24.    In    A.T.     Mane    (supra),      this       Bench
                  observed:

"6. Learned counsel relied on a judgment of this Court in support of this contention of his in the case of Karnataka State Road Transport Corpn. Vs. B.S. Hullikatti [(2001) 2 SCC 574]. That was also a case where a conductor concerned had committed similar misconduct 36 times prior to the time he was found guilty and bearing that fact in mind this Court held thus:-

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"Be that as it may, the principle of res ipsa loquitur, namely, the facts speak for themselves, is clearly applicable in the instant case. Charging 50 paise per ticket more from as many as 35 passengers could only be to get financial benefit, by the Conductor. This act was either dishonest or was so grossly negligent that the respondent was not fit to be retained as a Conductor because such action or inaction of his is bound to result in financial loss to the appellant corporation."

7. On the above basis, the Court came to the conclusion that the order of dismissal should have been set aside. In our opinion, the facts of the above case and the law laid down therein applies to the facts of the present case also."

25. In Thakur Singh Vs. State of Punjab [(2003) 9 SCC 208], this Court observed:

"4. It is admitted that the petitioner himself was driving the vehicle at the relevant time. It is also admitted that the bus was driven over a bridge and then it fell into canal. In such a situation the doctrine of res ipsa loquitur comes into play and the burden shifts on to the man who was in control of the automobile to establish that the accident did not happen on account of any negligence on his part. He did not succeed in showing that the accident happened due to causes other than negligence on his part."

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

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27. Furthermore, in a case involving accident it is not essential to examine the passengers of the bus. In State of Haryana & Others Vs Rattan Singh [(1977) 2 SCC 491] this Court observed:

"5. Reliance was placed, as earlier stated, on the non-compliance with the departmental instruction that statement of passengers should be recorded by inspectors. These are instructions of prudence, not rules that bind or vitiate in the violation. In this case, the Inspector tried to get the statements but the passengers declined, the psychology of the latter in such circumstances being understandable, although may not be approved. We cannot hold that merely because statements of passengers were not recorded the order that followed was invalid. Likewise, the re- evaluation of the evidence on the strength of co- conductor's testimony is a matter not for the court but for the administrative tribunal. In conclusion, we do not think the courts below were right in overturning the finding of the domestic tribunal."

5.4. Based upon the observations made by the Hon'ble Apex Court in catena of decisions and in light of the decision of this Court in the case of GSRTC (supra), this Court is of the opinion that the Industrial Tribunal has materially erred in setting aside the finding recorded by the inquiry officer and consequently quashing and setting aside the order of punishment imposed by the disciplinary authority on the ground that no independent eye witnesses have been examined in the departmental inquiry. Applying

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the doctrine of res ipsa loquitur. it appears that the respondent driver was negligent in driving the vehicle due to which the accident occurred wherein two persons have died on the spot.

5.5. So far as another ground on which the learned Industrial Tribunal has passed the impugned order i.e. the inquiry officer has relied upon the statement of the witnesses which have been recorded by the investigating officer in the police case, is concerned, this ground also cannot sustain in the eye of law. It is not required that the witnesses should be examined and many a times, many witnesses do not turn up for the domestic inquiry and when it is a case in which there is no dispute about the fact that the accident has occurred while driving the bus by the respondent workman and overtaking the truck and it also cannot be denied that the panchnama of scene of accident was also placed on record in the inquiry. Relying upon the doctrine of res ipsa loquitur, the inquiry officer has based his findings considering the act of the respondent being negligent in causing death of two persons, which cannot be denied. As such, on the face of the facts this second ground also cannot sustained.

Thus, the learned Industrial Tribunal has erred in quashing and setting aside the order of punishment.

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5.6. Here in this case, it is pertinent to note that pursis was filed by the respondent workman waiving challenge to the legality and validity of the departmental inquiry and as per the observations made by this Court, interference of the Industrial Tribunal in the findings of the inquiry is erroneous.

6. For the reasons stated hereinabove, the impugned Judgement and Award dated 22/6/2010 passed by the learned Industrial Tribunal, Ahmedabad in Reference (I.T.) No. 443 of 1999 deserves to be quashed and set aside and is accordingly quashed and set aside and the order of punishment passed by the disciplinary authority dated 4/8/1994 of placing the respondent workman in basic pay of Rs.800/- of driver, is hereby restored. Rule is made absolute.

(RAJENDRA M. SAREEN,J) Rafik