Madras High Court
Tamil Nadu State Transport ... vs The Presiding Officer on 15 April, 2021
W.A.No.2671/2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.04.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MS.JUSTICE P.T.ASHA
W.A.No.2671 of 2012
Tamil Nadu State Transport Corporation
(Villupuram Division-II) Limited,
Vellore,
rep. by its Managing Director ... Appellant
-vs-
1. The Presiding Officer,
Labour Court, Vellore.
2. V.K.Kamal Basha ... Respondents
Writ Appeal filed under Clause 15 of the Letters Patent against
the order dated 02.01.2012 passed in W.P.No.5283/2004 by a learned
Single Judge of this Court.
For Appellant : Mr.C.K.Sathish,
Standing Counsel for TNSTC
For 2nd Respondent : Mr.V.Ajoy Khose
1/12
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W.A.No.2671/2012
JUDGMENT
(Judgment of the Court was pronounced by T.RAJA, J.)
This Writ Appeal has been preferred against the order dated
02.01.2012 passed in W.P.No.5283/2004 by a learned Single Judge of
this Court, thereby upholding the award of the Labour Court, Vellore,
to the extent of the order for reinstatement and continuity of service of
the 2nd respondent herein and setting aside a part of the award
directing the payment of back wages from the date of award till the
date of reinstatement instead of date of dismissal from service till the
date of award. Aggrieved by the said order, the Tamil Nadu State
Transport Corporation (Villupuram Division-II) Limited, Vellore is
before this Court with the present Writ Appeal.
2. Learned Counsel appearing for the appellant would submit
that the 2nd respondent, namely, V.K.Kamal Basha, who was employed
as driver in the appellant Transport Corporation from 1993 met with
an accident on 25.8.1996 around 2.30 a.m., while driving the bus
bearing Registration No.TN23 N0564 from Thiruvannamalai to Chennai
near Abdullahpuram, by dashing against an Auto, which claimed the
lives of three persons and also causing two grievous injuries and one
simple injury to three other persons travelling in the said Auto.
Therefore, a Criminal Case was registered against the 2nd respondent
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herein. Apart from the same, a Charge Memorandum was issued to
him on 05.11.1996 levelling as many as four charges and a domestic
enquiry was fairly and rightly held against him and after giving him fair
and reasonable opportunity, the Enquiry Officer came to the conclusion
that all the four charges levelled against him were proved and
subsequently, submitted his Report dated 25.08.1997 holding him
guilty of all the charges. Thereafter, yet another Show Cause Notice
dated 30.08.1997 was issued to the 2nd respondent calling upon his
explanation on the report of the Enquiry Officer. Not satisfied with the
explanation offered by him, the appellant Corporation dismissed the 2 nd
respondent from service w.e.f. 16.09.1997 Challenging the same, he
filed I.D.No.174/1999 before the Labour Court, Vellore, the 1 st
respondent herein.
3. Learned Counsel for the appellant would further submit
that the 1st respondent Labour Court, based on the pleadings of both
sides framed three issues which are as follows:
a. Whether in the Domestic Enquiry conducted by the Enquiry
Officer, fair and reasonable opportunity was given to the 2nd
respondent herein?;
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b. The reasonings and findings given by the Enquiry Officer
for passing the order of dismissal against the 2 nd respondent were
justifiable and acceptable?; and
c. Whether the 2nd respondent is entitled to get reinstatement
with back wages along with continuity of service?
Continuing his argument, learned Counsel for the appellant
would submit that the Labour Court, while considering the first issue in
favour of the Appellant Transport Corporation holding clearly that the
domestic enquiry was held fairly giving reasonable and sufficient
opportunities to the 2nd respondent, secondly coming to the findings
and conclusions reached by the Enquiry Officer, for passing the order
of dismissal, by exercising its power conferred under Section 11(A) of
the Industrial Disputes Act, held that the punishment of dismissal from
service awarded against the 2nd respondent was shockingly
disproportionate to the charges ultimately proved against him and set
aside the same on the basis of the evidence produced by both the
parties before him and ordered for reinstatement of the 2nd respondent
in service with back wages and continuity of service. Aggrieved
thereby, the appellant approached this Court by filing
W.P.No.5283/2004.
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4. Learned Counsel for the appellant Transport Corporation
would also submit that one of the grounds raised by the appellant
before the learned Single Judge was that when the 2nd respondent
while driving the bus belonging to the appellant Transport Corporation
bearing Registration No.TN23 N0564 from Thiruvannamalai to Chennai
on 25.8.1996 around 2.30 a.m., met with an accident dashing against
an Auto near Abdullahpuram, thereby causing the death of three
persons and grievous and simple injuries to three persons who were
travelling in the said Auto, such a careless driver cannot be kept in
service as he would cause risk to the general public. Learned Single
Judge of this Court taking into account the fact that the criminal court
in which some of the injured witnesses have also deposed, failed to
bring home the offence alleged against the 2nd respondent herein and
that the 2nd respondent was given the order of acquittal; that the Auto
Driver who was found driving the auto carrying six persons therein
himself had caused the accident by his rash and negligent driving; that
the appellant transport corporation has taken multiple stands one
before the Motor Accidents Claims Tribunal and another contrary stand
before the criminal court and yet another stand before the Labour
Court, dismissed the writ petition modifying the portion of the award
thereby making it clear that the 2nd respondent is entitled to get
reinstatement with continuity of service and back wages from the date
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of award till the date of reinstatement instead of the date of dismissal
from service till the date of award. Aggrieved thereby, the Transport
Corporation has filed this appeal.
5. Learned Counsel for the appellant heavily finding fault with
the findings and conclusions reached by the Labour Court, setting
aside the dismissal order dated 16.06.1997 awarded against the 2 nd
respondent with a direction to reinstate him along with back wages
and also finding fault with the findings given by the learned Single
Judge of this Court affirming the award of the Labour Court, Vellore
pleaded that when the 2nd respondent has admittedly driven the bus
belonging to the appellant Transport Corporation on the fateful day on
25.08.1996 rashly and negligently from Thiruvannamalai to Chennai,
causing accident thereby taking away the lives of three innocent
persons and also causing grievous and simple injuries to three
persons, allowing the same person-2nd respondent herein to continue
in service, posed a heavy risk to the road users, therefore, such an
approach adopted by the Labour Court and the learned Single Judge
are opposed to the law. Hence, the same are liable to be set aside.
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6. Pleading further, learned Counsel for the appellant
submitted that when the burden of proof lies on the delinquent
employee-2nd respondent to show that the accident could not be
avoided in spite of his cautious and meticulous driving, without there
being any explanation offered by him either before the Domestic
Enquiry held by the appellant Transport Corporation or before the
Labour Court, Vellore, the learned Single Judge of this Court has
erroneously allowed the award passed by the Labour Court, Vellore
with some modification in respect of the back wages only. Further, the
learned Single Judge has miserably failed to see the reasoning given
by the Labour Court, the 1st respondent herein that the punishment
imposed on the 2nd respondent was shockingly disproportionate to the
charges framed. Therefore, the finding and conclusion reached by the
learned Single Judge are also liable to be set aside.
7. Arguing further, it is contended that the learned Single
Judge has also failed to take into account that there was huge
monetary loss and loss of reputation being faced by the appellant
Transport Corporation due to the alleged commission of the accident
by the 2nd respondent herein. When the 2nd respondent has caused the
accident within a short period of 4 years from the date of his joining
duty that clearly shows that the punishment of termination dated
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16.09.1997 is well founded. Therefore, the same cannot be interfered
with any other lighter punishment.
8. Concluding his argument, learned Counsel for the appellant
would submit that a perusal of the reasonings given by the Labour
Court, Vellore to set aside the order of dismissal dated 16.09.1997 are
highly unacceptable because the Labour Court cannot interfere with
the quantum of punishment. This has been overlooked by the learned
Single Judge, therefore, the appeal deserves to be allowed, it is
pleaded.
9. Per contra, learned Counsel for the 2nd respondent would
submit that when the 2nd respondent was removed from service on the
alleged proven charges in the enquiry held by the Enquiry Officer,
aggrieved by the order of dismissal of service, an Industrial Dispute
was raised in I.D.No.174/99 before the Labour Court, Vellore, raising,
inter alia that he was not afforded with fair and reasonable opportunity
and that when the real culprit Auto driver, who was admittedly
carrying on 6 passengers in a small auto, driven the vehicle on the
wrong side of the road, counted accident, it was 2nd respondent in an
effort to avoid the hitting of the auto and to avoid multiple casualties,
drove the bus carefully, in that delicate situation, the alleged accident
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has taken place which was explained properly before the Labour Court,
therefore, the learned Labour Court, Vellore also considering the oral
and documentary evidence placed before it including the dismissal
order passed by the appellant Corporation has concluded that the
prosecution has failed to bring home the offence before the Criminal
Court and the 2nd respondent was acquitted on the basis of the
evidence of the two injured witnesses and without examining the same
witnesses in the departmental enquiry, the order of dismissal was
passed by the appellant Corporation on 16.09.1997, therefore, while
setting aside the dismissal order directed the appellant to reinstate the
2nd respondent into service with continuity of service with back wages.
Aggrieved thereby when the appellant Corporation has filed the Writ
Petition, the learned Single Judge after carefully noticing the fact that
the appellant Corporation has taken multiple stands, one stand before
the Labour Court, another stand before the Criminal Court and yet
another contra stand before the Motor Accidents Claims Tribunal,
disbelieving the claims and submissions made by the appellant
Transport Corporation dismissed the Writ Petition thereby confirming
the award passed by the learned Labour Court, however while setting
aside the direction given to the appellant Corporation to pay the back
wages from the date of accident till the date of award, denied the
back wages. Therefore, no where, the appellant can find fault with the
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approach adopted by the learned Labour Court or Learned Single
Judge of this Court. Hence, the present Writ Appeal has to be
dismissed, he pleaded.
10. Heard the learned Counsel on either side. We have also
carefully gone through the materials available on record.
11. At the outset, We find some merit in the arguments
advanced by the learned Counsel for the 2nd respondent. The reason
being that firstly, though we are surprised to see how the 2 nd
respondent after causing three deaths and grievous and simple injuries
on three persons could be allowed to continue in service, the
reasonings given by the learned Counsel for the 2nd respondent that in
order to avoid multiple casualties which would likely to arise due to the
rash and negligent driving of the Auto by an Auto Driver with 6
passengers, would clearly show that the fault was not found on the
part of the 2nd respondent but on the part of the auto driver only.
Secondly, when the appellant has prosecuted the 2nd respondent for
the alleged accident that took place on 25.8.1996, as rightly canvassed
by the learned Counsel for the 2nd respondent, the appellant Transport
Corporation has taken three different inconsistent stand before each
forum, namely, one stand before the Enquiry Officer in the
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departmental enquiry, yet another stand before the Criminal Court and
entirely contra stand before the Motor Accidents Claims Tribunal.
Therefore, when the appellant was not able to take a definite stand
before all these three forums as to the fact that the 2 nd respondent is
only responsible for the fatal accident that took place on 25.08.1996,
we are unable to find any infirmity or error in the impugned order
passed by the learned Single Judge. Thirdly, it appears that the 2nd
respondent was already reinstated in service and getting his monthly
regular salary, therefore, we are of the view that nothing survives for
further adjudication in this appeal. In view of all the above, we find
no merit in the present appeal.
12. In the result, the Writ Appeal fails and the same is
accordingly dismissed. No costs. Consequently, connected
Miscellaneous Petition is also dismissed.
(T.R.J.,) (P.T.A.J.,)
15.04.2021
tsi
To
The Presiding Officer,
Labour Court, Vellore.
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W.A.No.2671/2012
T.RAJA, J.
and
P.T.ASHA, J.,
tsi
W.A.No.2671/2012
15.04.2021
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