".....the petitioner-workman would be
entitled for all the consequential benefits
with the continuity of service. The order of
the Labour Court is modified accordingly".
The petitioner-workman is stated to
have been retired from service, the
respondent-management shall process the
requisition of the petitioner for release of his
retirement benefit as expeditiously as
possible. The entire process shall be
completed within an outer limit of two [2]
months from the date of receipt of certified
copy of this order."
3. Brief facts of the case as made out by the
Management. He was issued with a charge sheet on
15.04.2013 alleging that, on 07.10.2012, when he was
discharging his duties as a driver in the Bus bearing
Registration No.KA-25/F-2611 enroute from Pune [Pimpri] to
Hubballi, at about 4:45 am, he caused the accident. In the
said accident, conductor of the bus died and six passengers
in the bus suffered injuries and the bus sustained damages,
thereby, he has caused loss to the respondent-Management
to the tune of Rs.1,80,000/-.
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4. To the said charge sheet, the petitioner-workman
submitted a reply contending that, he was driving the Bus in
a careful manner and when his Bus at 4:45 a.m. reached
near Kamat Hotel, Chikkalgudda on NH-4, a lorry was
proceeding ahead of him, the driver of the said lorry without
any indicator or signal suddenly stopped the lorry, because
of this, the petitioner had to apply the break and to avoid
the accident, he swerved the bus towards the left side of the
road and because of the thick fog, he was unable to see
through and the bus dashed to a lorry, which was parked on
the left side of the road without any indicator or signal.
Therefore, according to him, the said accident has taken
place not because of his negligence.
5. He faced the domestic enquiry before the Enquiry
Officer appointed by the respondent - Management. Before
the Enquiry Officer, one Sri. A.S.Adahallimath, the then
Depot Manager gave evidence on behalf of the Management.
The petitioner also adduced evidence. Documents were
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marked such as FIR, complaint, statement of the driver,
hand sketch, log sheet, Panchanama and MVI report during
the course of the domestic enquiry.
6. The Enquiry Officer, based upon the evidence
placed on record, found the petitioner guilty of negligence in
causing the accident. Accordingly, there was a
recommendation for his dismissal from service. Based upon
the enquiry report, the respondent - Management issued an
order dated 28.01.2015 dismissing the petitioner. Being
aggrieved by the said order, the petitioner preferred a claim
petition before the Labour Court under Section 10(4-A) of
the Industrial Dispute (Karnataka Amendment) Act, 1987 in
KID No.20/2015.
7. Before the Labour Court, petitioner examined
himself as WW.1 and closed his evidence. None of the
witnesses were examined on behalf of the Management.
However, the respondent got exhibited 26 documents as per
Exs.M.1 to M.26. The learned Labour Court after hearing the
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arguments and on evaluation of the evidence lead by the
parties in KID No.20/2015 dated 25.06.2016 found that, the
petitioner was guilty of negligence and considering the
proportionality of the punishment imposed by the
respondent - Management, set aside the order of dismissal
dated 28.01.2015 and granted the relief to the petitioner as
under:-
"The claim petition is allowed in-part.
The dismissal order dated 28.1.2015
passed by the respondent-Corporation is
hereby set aside.
The respondent-management shall
reinstate claimant back into service within 2
months from the date of publication of the
award, without back wages, without
consequential benefits and without continuity
of service from the date of dismissal to date of
award by reducing 4 (Four) annual
increments in his existing pay permanently."
8. Being dissatisfied with the said order of the
Labour Court, the petitioner preferred WP No.103916/2018
before this Court. The learned Single Judge, on hearing the
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arguments and on evaluation of the material placed on
record, passed the impugned order which is now challenged
by respondent - Management by preferring this intra-Court
appeal under Section 4 of the Karnataka High Court Act,
1961.
9. The learned counsel for the appellant submits
that, the writ Court ought not to have interfered with the
well- reasoned order passed by the Management. The order
of dismissal of the petitioner was based upon the evidence
placed on record. The learned Single Judge ought not to
have interfered into the order of dismissal and substitute the
punishment so imposed. Under Article 226 of the
Constitution, the scope of judicial review/ interference is not
permitted. She submits that when disciplinary proceedings
were initiated and findings of fact having been recorded in
such enquiry, it cannot be interfered unless such findings
are based on no evidence or perverse or that no reasonable
man would have reached. She would submit that in this
case, no grounds for interference are made out by the
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respondent-workman. The disciplinary proceedings are
concluded based upon the evidence and even the Labour
Court has also committed the error in passing the orders of
reinstatement. The petitioner was given full opportunity to
put forth his defence and thereby, there is compliance of the
principles of natural justice.
10. In support of her arguments, she relied upon the
judgment in the following cases:
i. Life Insurance Corporation of India and
others v/s. Vasanthi-(2014) 9 SCC 315.
ii. Coimbatore district central cooperative bank
v/s. Coimbatore district central cooperative
bank employees Assn. and another-(2007) 4
SCC 669.
11. She prays to allow the appeal and set aside the
impugned order passed in the writ petition and restore the
order of dismissal passed by the Management.
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12. As against this submission, the learned counsel
for the respondent (complainant)-workman submits that, the
learned Single Judge by considering the evidence placed on
record has passed the orders modifying the orders of the
Labour Court. He would submit that, because of non-
compliance of the directions issued by the writ Court and
disobedience of the same, the workman filed the above said
contempt proceedings to take necessary action against the
Management. He would submit that, as the learned Single
Judge has passed a reasoned order, such an order cannot
be interfered with in this appeal. According to him, the writ
Court can very well reassess the evidence and pass
necessary orders in the ends of promoting justice. He would
submit that, now the respondent (complainant) - workman
is retired and is entitled for his retiral benefits. Hence, prays
to dismiss the appeal.
13. We have given our anxious considerations to the
arguments of both side and perused the records.
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14. In view of the rival submissions of both the side,
the only preliminary point that is to be considered in this
appeal is, "whether the learned Single Judge, while
exercising the judicial review under Article 226 of the
Constitution of India, is right in interfering with the
validity of impugned orders passed by the disciplinary
authorities with regard to imposition of penalty ?"
15. Our answer to the above point is in the negative.
16. Before adverting to the other aspects of the case,
let us examine the admitted facts between the parties.
1. The respondent - workman was the driver
of the appellant-Corporation at the
relevant time.
2. He was issued with a charge sheet on
15.04.2014 alleging, that on 07.10.2012
when he was driving the Bus bearing
registration No.KA-25-F/2611 from Pune
[Pimpri] to Hubballi, at 4:45 am caused the
accident, resulting in death of a Conductor
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of the said Bus and six [6] passengers
suffered accidental injuries, so also there
was damage caused to the Bus resulting in
loss to the Management to the tune of
Rs.1,80,000/-.
3. To the said charge sheet, he submitted
reply denying his rash and negligent
driving of the Bus at the time of accident
and put forth a defence that when the said
accident has taken place, the lorry which
was ahead of the Bus suddenly stopped by
the driver of the lorry and therefore, to
avoid the major accident, he swerved his
Bus towards the left side of the road and at
that time, there was a thick fog and
because of that there was no visibility and
dashed the said Bus to a parked lorry.
4. There was a domestic enquiry conducted
by the Management and based upon the
evidence, the workman was found guilty of
negligence and based upon the
recommendation, the Management
dismissed him from service as per the
orders dated 28.01.2015.
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5. Being aggrieved by the same, he
challenged the said order before the
Labour Court in KID No.20/2015 before
whom the evidence was recorded and an
order was passed of reinstatement stated
above as per the order dated 25.06.2015.
6. The said order of Labour Court was
challenged by the workman by filing the
Writ Petition stated above and the Single
Judge of this Court modified the award
passed by the Labour Court.
These admitted facts need not be proved.
17. Before the Enquiry Officer, the Depot Manager
was examined, so also the workman. Before the Labour
Court also the workman was examined. But, the
Management relied upon documents at Exs.M.1 to M.26. On
perusal of the records of this case, the evidence of the
witnesses so recorded shows that, the lorry was parked on
the left side of the road, the Bus driven by the workman
dashed to the lorry by moving towards the extreme left side
of the road. The Enquiry Officer found the workman guilty of
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negligence. Even it is not in dispute that the jurisdictional
Police have registered the Crime against the workman in
Crime No.168/2012 for the offences punishable under
Sections 279, 337 and 304-A of IPC. As per the documents
produced, the Bus was damaged. The Conductor of the said
Bus died because of the accidental injuries and six [6]
passengers being the inmates of the Bus were injured. The
disciplinary authority accepted the findings of the Officer,
though the workman was given opportunity to answer,
having not satisfied with the reply of the workman, passed
the impugned order of dismissal.
18. The scope of judicial review is very much limited
in a case of present nature. The learned Single Judge of this
Court has considered the evidence and has modified the
award of the Labour Court. While passing the impugned
order, the learned Single Judge of this Court relying upon
the Section 122 of the M.V.Act, has held that, when the lorry
to which the Bus dashed was parked in a dangerous
position then, no negligence can be attributed on the driver
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of the Bus. In this regard, in para No.13 of the impugned
judgment, the learned Single Judge observed as under:
"13. Necessary also at this juncture to refer Section 122
of the M.V. Act, which reads as under:
"122. Leaving vehicle in dangerous position.- No
person in charge of a motor vehicle shall
cause or allow the vehicle or any trailer to be
abandoned or to remain at rest on any public
place in such a position or in such a condition
or in such circumstances as to cause or likely
to cause danger, obstruction or undue
inconvenience to other users of the public
place or to the passengers."
19. Thus, the learned Single Judge of this Court
observed that considering the evidence placed on record,
sole negligence cannot be attributed on the petitioner
without examining any other witnesses.
20. On perusal of the impugned order, we find that
the writ Court has exceeded its jurisdiction while exercising
the power of judicial review over the orders passed in the
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judicial proceedings which were conducted while adhering to
the principles of natural justice.
21. The writ Court has failed to notice the fact that,
in the charge sheet so issued to the workman, it is stated
that, the workman was quite negligent in driving the Bus at
the relevant time and because of that the said accident has
taken place. The statement of the Depot Manager before
Enquiry Officer was that, because of the rash and negligent
driving of the Bus by the respondent, the accident has taken
place. No doubt the Depot Manager was a hear say witness,
it was for the writ petitioner to lead evidence that he was
very much careful while driving the Bus.
22. The Apex Court, in a three Judges Bench in the
case of State of Haryana and Anr. Vs. Rattan Singh1
dealing with the issue of non examination of the passengers
have held that, in a domestic enquiry, strict and
sophisticated rules and evidence under the Indian Evidence
Act may not apply and that all materials which are logically
probative for a prudent mind are permissible. There is no
(1977) 2 SCC 491
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allergy to hear say evidence provided it has reasonable
nexus and credibility. In para No.4 of the said judgment the
Apex Court held as under:
"4. It is well settled that in a domestic
enquiry the strict and sophisticated rules of
evidence under the Evidence Act, 1872 may
not apply. All materials which are logically
probative for a prudent mind are permissible.
There is no allergy to hearsay evidence
provided it has reasonable nexus and
credibility. It is true that departmental
authorities and administrative tribunals must
be careful in evaluating such material and
should not glibly swallow what is strictly
speaking not relevant under the Indian
Evidence Act. For this proposition it is not
necessary to cite decisions nor text books,
although we have been taken through case-
law and other authorities by counsel on both
sides. The essence of a judicial approach is
objectivity, exclusion of extraneous materials
or considerations and observance of rules of
natural justice. Of course, fairplay is the basis
and if perversity or arbitrariness, bias or
surrender of independence of judgment vitiate
the conclusions reached, such finding, even
though of a domestic tribunal, cannot be held
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good. However, the courts below mis-directed
themselves, perhaps, in insisting that
passengers who had come in and gone out
should be chased and brought before the
tribunal before a valid finding could be
recorded. The 'residuum' rule to which counsel
for the respondent referred, based upon
certain passages from American
jurisprudence does not go to that extent nor
does the passage from Halsbury insist on
such rigid requirement. The simple point is,
was there some evidence or was there no
evidence- not in the sense of the technical
rules governing regular court proceedings but
in a fair common-sense way as men of
understanding and wordly wisdom will
accept. Viewed in this way, sufficiency of
evidence in proof of the finding by a domestic
tribunal is beyond scrutiny. Absence of any
evidence in support of a finding is certainty
available for the court to look into because it
amounts to an error of law apparent on the
record. We find, in this case, that the evidence
of Chamanlal, Inspector of the flying squad, is
some evidence which has relevance to the
charge levelled against the respondent.
Therefore, we are unable to hold that the
order is invalid on that ground."
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(emphasis in original and
supplied)
23. Like wise in catena of judgments, the Hon'ble
Apex Court has laid down the broad parameters to the
exercise of jurisdiction. Amongst them, In the case of Union
of India Vs. P. Gunasekaran2 the Hon'ble Apex Court has
laid down the following parameters. Further, in the case of
State of Karnataka Vs. Umesh3, the Hon'ble Apex Court
has reiterated the said parameters. In para No.22 of the said
judgment, it is held as under:
"22. In the exercise of judicial review, the Court
does not act as an appellate forum over the findings
of the disciplinary authority. The court does not re-
appreciate the evidence on the basis of which the
finding of misconduct has been arrived at in the
course of a disciplinary enquiry. The Court in the
exercise of judicial review must restrict its review to
determine whether:
(i) the rules of natural justice have been
complied with;
(2015) 2 SCC 610
(2022) 6 5 SCC
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(ii) the finding of misconduct is based on some
evidence;
(iii) the statutory rules governing the conduct of
the disciplinary enquiry have been observed;
and
(iv) whether the findings of the disciplinary
authority suffer from perversity; and
(vi) the penalty is disproportionate to the proven
misconduct."
(emphasis supplied)
24. If the aforesaid parameters are applied to the
present facts of the case and having considered the
submissions of both the side, we are of the considered view
that, an interference with the order of dismissal by the
appellant - Management is unwarranted. The disciplinary
authority by considering the material placed on record, has
recommended for dismissal. The object of a departmental
enquiry is to find out whether delinquent is guilty of
misconduct under the Contract Rules for the purpose of
determining whether the workman should be continued in
the service. As held in the afore judgments of the Apex
Court, the Labour Court ought not to have passed an award
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of reinstatement of the petitioner - workman, so also the writ
Court ought not have modified the order of the Labour
Court. The misconduct is proved as per the service
conditions of the appellant-corporation. The writ Court
cannot interfere into such action taken by the Management.
There is no ground made out by the petitioner that the
principles of natural justice are not followed by the
Management while conducting the Departmental Enquiry. It
is not in dispute that, the Criminal prosecution is launched
against the petitioner for the offences punishable under
Sections 279, 337 and 304-A of IPC and also he has faced
the Departmental Enquiry for dereliction of duty. The
Departmental Enquiry is to maintain discipline in the
service and efficiency of service. In view of the parameters
issued by the Apex Court stated supra, as held in catena of
judgments, the burden of proof in the departmental
proceedings is not of a beyond reasonable doubt as is the
principle in the Criminal Trial but, probabilities of the
misconduct. Therefore, we find that the order passed by the
Single Judge of this Court is not sustainable and is liable to
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be set aside. Hence, the same is set aside and the order of
punishment of dismissal dated 28.01.2015 by the
disciplinary authority stands restored. Accordingly, the
appeal is allowed.
25. Sofar as contempt petition is concerned, though
the workman filed the complaint alleging the disobedience of
the directions passed in WP No.103916/2018 but, the said
impugned order so passed in the Writ Petition is not
sustainable in the eyes of law and accordingly it is set aside
as aforesaid. In view of the same, this CCC No.100368/2024
does not survive for consideration and accordingly, it is
closed.
Costs made easy.
Sd/-
(B.M.SHYAM PRASAD)
JUDGE
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
PJ/CT:VG
