Madras High Court

V.Duraisamy vs The Management on 9 July, 2021

                                                                               W.A.No.2814 of 2012

                                   IN THE HIGH COURT OF JUDICIATURE AT MADRAS

                                                  DATED : 09.07.2021

                                                        CORAM :

                                        THE HONOURABLE MR.JUSTICE T.RAJA
                                                     and
                                       THE HONOURABLE MR.JUSTICE P.T.ASHA

                                     W.A. No.2814 of 2012 and M.P. No.1 of 2012

                     V.Duraisamy                                          ... Appellant

                                                          versus

                     1.The Management,
                       Tamil Nadu State Transport Corporation,
                       (Coimbatore Divn-1) Limited,
                       Mettupalayam Road,
                       Coimbatore-641 043.

                     2.The Presiding Officer,
                       Joint Commissioner of Labour,
                       (Conciliation), Chennai.                           ... Respondents
                     Prayer: Appeal filed under Clause 15 of the Letters Patent against
                     the order dated 19.03.2012 of the Hon'ble Mr.Justice B.Rajendran in
                     W.P. No.19838 of 2006.
                               For Appellant       :     Mr.K.V.Shanmuganathan

                               For Respondents :         Mr.A.Sundaravadhanan for R1
                                                         R2-Court

                                                       JUDGMENT

(Judgment of this Court was delivered by T.RAJA,J.)

This writ appeal has been directed against the impugned order

dated 19.03.2012 passed in W.P. No.19838 of 2006, wherein the

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learned Single Judge, considering the gravity of the mis-conduct,

committed by the appellant, Driver of the first respondent Tamil

Nadu State Transport Corporation in taking away three innocent

persons' lives, granted approval for the order of dismissal dated

19.11.2003, which was refused by the Joint Commissioner of Labour

(Conciliation), Chennai, the second respondent. Aggrieved thereby,

this appeal has been brought before us.

2.Mr.K.V.Shanmuganathan, learned counsel appearing for the

appellant, assailing the impugned order, argued that when the

Management, Tamil Nadu State Transport Corporation had taken a

stand before the learned II Additional District Judge, Coimbatore/

Motor Accidents Claims Tribunal, by filing a counter statement in

M.C.O.P. No.112 of 2003 in favour of the appellant that there was

no rash and negligent driving on the part of the appellant, they

cannot take a diametrical stand of negligent driving for which the

appellant was found guilty of charges on the basis of findings given

by the Enquiry Officer since the same cannot go together. However,

while proceeding with the departmental enquiry for having caused

accident, the Management first respondent came to the conclusion

that the appellant was found guilty of charges and resultantly, an

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order of dismissal dated 19.11.2003 was passed against the

appellant and thereafter, they have moved a belated Approval

Petition No.37 of 2004 before the Joint Commissioner of Labour

(Conciliation), Chennai/the second respondent for getting approval

for the order of dismissal. The second respondent, considering the

delay in moving the Approval Petition for passing the order of

dismissal against the appellant holding that the first respondent,

having come to the bonafide conclusion that the appellant was not

responsible for the accident in their counter affidavit filed before the

Motor Accidents Claims Tribunal, ought not to have taken a

diametrical stand that the opposite party/appellant was guilty of

rash and negligent driving, hence he could be found guilty of the

charges framed against him, therefore, dismissal of the Approval

Petition filed by the Management/first respondent by order dated

09.12.2005 cannot be found fault with. Aggrieved thereby, the first

respondent has filed the above Writ Petition in W.P. No.19838 of

2006 and obtained an order of approval of dismissal order from the

learned Single Judge.

3.Continuing his arguments, learned counsel for the appellant

submitted that the order of approval granted by the learned Single

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Judge, disturbing the findings given by the second respondent, is

not justifiable for the reason that the first respondent had not even

fulfilled the mandatory conditions mentioned in Section 33(2)(b) of

the Industrial Disputes Act.

4.In support of his submission, learned counsel for the

appellant, relying upon a ratio laid down by the Hon'ble Apex Court

in the case of Podar Mills Ltd. vs. Bhagwan Singh and others

reported in AIR 1974 (3) SCC 157, argued that on the date of the

alleged accident took place, namely, 05.11.2002, while the

appellant was driving the bus bearing Registration No.TN-38-N-

0509 at 06.40 p.m., when the vehicle was nearing Sidco LIC Colony

at about 7.15 p.m., the deceased Venkitusamy suddenly crossed

the main road without observing the traffic rules. When the

appellant has turned the vehicle on its right side to rescue the

deceased, another two wheeler came from the opposite direction in

a rash and negligent manner, dashed against the appellant's

vehicle. Due to the same, the pedestrian, the driver of the motor

bike and pillion rider sustained head injuries and died. Although the

appellant has carefully driven the vehicle, due to the reasons

mentioned above, the aforementioned accident took place and as a

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result, the fatal accident took place. This was also properly

explained to the Management and the same was accepted by them

and therefore, they have also filed a counter statement before the

Motor Accidents Claims Tribunal supporting the case of the appellant

that there was no rash and negligent driving on the part of the

appellant which clearly shows that the appellant cannot be held

liable. When the Motor Accident Claims Tribunal has proceeded with

the matter, without waiting for the final award from the Tribunal,

the first respondent Management issuing the charge memo and

consequently dismissing the explanation offered by the appellant

and appointing an Enquiry Officer, who finally finds him guilty of

causing accident, is un-justified because the first respondent

Management has passed an order of dismissal on 19.11.2003. Since

the Management has not filed proper petition before the second

respondent within the reasonable time as per the mandatory

conditions laid down by the Apex Court in the aforementioned

judgment, the second respondent has rightly dismissed the

Approval Petition and as against which, the Management has

approached this Court and obtained an order of approval, which

cannot be allowed to stand. Therefore, the impugned order passed

by the learned Single Judge is liable to be interfered with.

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5.But we are not able to find any justification to interfere with

the well speaking order passed by the learned Single Judge. The

reason being that when the appellant had driven his bus bearing

Registration No.TN-38-N-0509 on 05.11.2002 at about 6.40 p.m., a

two wheeler came from the opposite direction, said to have dashed

against the appellant's vehicle. Due to the said accident, one

Venkidusamy, the pedestrian, the driver of the motor bike and the

pillion rider died on sustaining head injuries. Without even

attempting to stop the bus when the poor pedestrian coming in

front of the appellant, the appellant has caused the accident and

due to which, the old pedestrian, poor cyclist and the pillion rider

died. Since three innocent lives were taken away by his careless,

rash and negligent driving, the Management, doubting his

competency to continue him as a Driver, has framed charges

against him. Finally, he was put to face enquiry before the domestic

enquiry officer, who has given a finding that the appellant was

found guilty of charges. Therefore, the Management passed an

order of dismissal from service on 19.11.2003 and thereafter, with

the delay of 13 days, they moved an Approval Petition before the

second respondent seeking approval of the order of dismissal. The

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reasons given by the second respondent, refusing to accept the

Approval Petition, are extracted as under:

'1.The Applicant had not come to a bonafide conclusion that the Opposite Party was guilty of the charges framed against him.

2.The Applicant had not applied to this Authority for the approval of the dismissal of the Opposite Party either simultaneously or within such reasonably short time as to form part of the same transaction.'

6.We are not impressed by the reasons given by him. When

the appellant had driven the vehicle on 05.11.2002, he should have

attempted to stop the vehicle, but he has not done so. Due to the

same, the poor pedestrian became victim and thereafter, the cyclist

and the pillion rider also became victims. It cannot be disputed that

multiple death of three persons was caused by careless and rash

driving of the driver of the bus. Therefore, without waiting for the

Award from the Tribunal, the Management has rightly proceeded

with the departmental enquiry and ultimately, dismissed the

appellant from service by order dated 19.11.2003 finding him guilty

of charges. But, the second respondent without considering the

above aspects, has refused to accord approval for the dismissal of