Madras High Court
The General Manager vs The Presiding Officer on 2 February, 2022
W.P(MD)No.1115 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02.02.2022
CORAM:
THE HONOURABLE DR JUSTICE ANITA SUMANTH
W.P.(MD) No.1115 of 2018
and W.M.P(MD)No.1170 of 2018
The General Manager,
Tamil Nadu State Transport Corporation,
Tirunelveli Ltd.,
Nagarcoil Region,
Ranithottam,Nagarcoil. ... Petitioner
Vs.
1.The Presiding Officer,
The Labour Court,
Tirunelveli.
2.The General Secretary,
Kanyakumari District,
Bharathiya State Transport Employees Association,
Saithainium,
Vivakanandhar Street,
Ranithottam, Nagarcoil – 1. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
issuance of writ of Certiorari calling for the records relating to the impugned
award passed by the first respondent Labour Court in I.D.No.98/2015 dated
09.05.2016 and quash the same.
For Petitioner : Mr.K.Sathiya Singh
For R2 : Mr.T.Sakthi Kumaran
for M/s.Victory Associates
ORDER
This Writ Petition has been filed by the Tamilnadu State Transport
Corporation (Corporation/petitioner) challenging an order passed by the Labour
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W.P(MD)No.1115 of 2018
Court/R1 dated 09.05.2016.
2. An employee, by name Shanmugam, who is a member of the
Bharathiya State Transport Employees Association/R2 was driving a bus
bearing Registration No. TN-74-N-1048 from Kanyakumari to Nedumangadu.
Enroute, a motorcycle bearing Registration No. TN-74-Q-0210 had been
involved in an accident with the bus and both the rider and the pillion rider of
the motorcycle had passed away.
3. The Corporation issued a charge memo to the employee, to which, he
responded stating that the entire responsibility for the accident must be
attributed to the rash and negligent driving of the motorcycle rider. A domestic
enquiry was ordered and all charges were found proved. Thereafter, he was
punished with increment cut in salary for three(3) years, and raised a Industrial
Dispute in this regard before the Labour Court.
4. The Labour Court, considering the rival contentions of the employee
and the Corporation, cancelled the punishment, by order dated 09.05.2016
which order has been challenged by the Corporation in this Writ Petition.
5. One of the points that has found favour with the Labour Court is that
the Corporation, in a counter filed in a claim for compensation by the family of
the deceased victims before the Motor Accident Claims Tribunal (MACT), had
taken a stand that the employee was not at fault and it was only the negligence
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W.P(MD)No.1115 of 2018
of the victims that lead to the accident. Thus, the Labour Court, proceeding on
the basis of the Corporation's own counter, came to the conclusion that the
punishment imposed upon him was unsustainable.
6. This is a matter where three(3) different fora have been seized of the
very same set of facts, in the context of criminal charges, disciplinary
proceedings and claim for compensation.
7. A criminal case had been filed in C.C.No.118 of 2010 before the
learned Judicial Magistrate No.1, Nagercoil. After taking note of the facts and
circumstances leading to the fatalities, the employee was acquitted. The charges
laid had been in terms of Sections 27 and 304(A) of the Indian Penal Code
relating to rash driving or riding on a public way and causing death by
negligence. The order of the criminal court acquitting the petitioner has attained
finality and is greatly relied upon by the employee before me.
8. On the other hand, the MACT, considering the same accident, had
passed an award in M.C.O.P.No.47 of 2011, holding the Corporation and the
employee liable for the accident and awarding compensation of a sum of
Rs.2,73,000/- to be paid to the family of the victims. This order has been
complied with by the Corporation. Award dated 26.03.2012 is detailed and
takes note of the evidences presented on the side of the victims by way of eye
witnesses.
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W.P(MD)No.1115 of 2018
9. Mr.K.Sathiya Singh, who appears for the Corporation relies upon the
provisions of Section 163-A of the Motor Vehicles Act, 1988 (MV Act), which
fastens joint and several liability over both the Corporation and the employee in
meeting the claims of victims. It is thus that the Corporation normally supports
its employees irrespective of whether they are guilty or otherwise, solely to
protect their own interests.
10. This is a troubling situation. One would expect the Corporation to be
fair in its assessment as to who should assume responsibility for an accident
after a scientific evaluation of all facts and circumstances. However, before me,
the Corporation brazenly reveals that its approach is solely a self-serving one.
Thus, and as a matter of rote, an employee of the Corporation finds support
from the employer irrespective of his culpability or otherwise.
11. The present case is no exception and the Corporation has filed
counter before the MACT supporting the employee, in full. This counter is
referred to by the Labour Court in setting aside the punishment imposed. In
such circumstances, where the Corporation is seen to be taking contradictory
stands in the counter affidavits filed before different fora, I am of the categoric
view that the counters must simply be eschewed and no credence attached to
the same.
12. One must assimilate the facts involved independently in support of
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W.P(MD)No.1115 of 2018
one's conclusion. The Hon'ble Supreme Court in Sunita and others Vs.
Rajasthan State Road Transport Corporation and others (2020 (13) SCC 486)
holds that once the foundational basis in regard to the actual occurrence of the
accident has been established, the role of MACT is to marshal the facts, fix
responsibility and if negligence of the driver of the vehicle has been
established, calculate quantum of just compensation. In doing so, the Tribunal
would not be bound strictly by pleadings of parties. This is what MACT has
done in the present case, eschewing the counter filed and proceeding on the
basis of the evidence before it.
13. On the other hand, I find that the Criminal Court has exonerated the
employee in full. The judgment of the Criminal Court, dated 19.10.2012 has
been referred to by the Labour Court in the order impugned though no redence
is attached to the conclusion.
14. Upon an assimilation of the three orders, I am of the considered view
that the order of the MACT is a detailed and well reasoned order, which takes
into account the facts in entirety and as seen from all perspectives.
15. In Tamil Nadu State Transport Corporation and another Vs.
P.Karuppusamy (2008 (3) L.W 90) a Division Bench of this Court considered
the standard of proof to be adopted qua orders passed in domestic enquiry
reiterating that they are distinct and different from criminal proceedings.
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W.P(MD)No.1115 of 2018
16. In that case, MACT had absolved the employee. In the present case, it
is the reverse and compensation has been awarded to the victims which has
been paid. The Division Bench refers to a judgment of the Hon'ble Supreme
Court in G.M. Tank Vs. State of Gujarat and another (2006 (3) CTC 494) for
the preposition that merely because the accused had been acquitted,
departmental enquiry would not automatically lapse and neither is the power of
the authority to continue such enquiry, in any way, fettered.
17. Departmental and criminal proceedings are entirely different, operate
in different fields, and reiterate different objects. While the object of criminal
proceedings is to inflict appropriate punishment upon the offender, the purpose
of departmental proceedings is to deal with the lapses committed by the
delinquent in rendition of official duties and to impose suitable punishment in
accordance with service Rules.
18. In that case, no criminal case has been initiated, whereas in the
present case, criminal proceedings had been initiated and have resulted in
favour of the employee. However, I apply the settled preposition that the
conclusion in one, while it might have a bearing on the other, would not have
automatic application in the other. To conclude this issue, the judgment in the
criminal case does not tip the balance in favour of the petitioner before me.
19. I also find support in this conclusion from a recent judgment of the
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W.P(MD)No.1115 of 2018
Hon’ble Supreme Court in Maharashtra State Road Transport Corporation Vs.
Dilip Uttam Jayabhay (2022 SCC online SC 1). The Corporation had
challenged an order of the Labour Court ordering reinstatement, though without
back wages, but with continuity of service. The High Court dismissed the Writ
Petition, as against which, the Maharastra State Road Transport Corporation
approached the Supreme Court.
20. The question before the Supreme Court was a vexed one, concerning
the difference in appreciation between disciplinary enquiry and criminal
proceedings. The court held that acquittal in a criminal trial would have no
bearing upon the conduct of, or conclusion in disciplinary proceedings.
Judgments in the cases of Samar Bahadur Singh Vs. State of of Uttar Pradesh
(2011 (9) SCC 94) and Union of India Vs. Sitaram Mishra (2019 (20) SCC 588
were cited in support of the aforesaid preposition and the appeal of the
Transport Corporation was allowed.
21. In the result, and for the detailed reasoning as aforesaid, this Writ
Petition is allowed and the impugned order is set aside restoring the punishment
imposed on 09.05.2016. No costs. Consequently, connected miscellaneous
petition is closed.
02.02.2022
Index : Yes/No
Internet: Yes
https://www.mhc.tn.gov.in/judis
W.P(MD)No.1115 of 2018
CM
Note: In view of the present lock down owing to COVID-19 pandemic, a
web copy of the order may be utilized for official purposes, but, ensuring
that the copy of the order that is presented is the correct copy, shall be the
responsibility of the advocate/litigant concerned.
To,
The Presiding Officer,
The Labour Court,
Tirunelveli.
https://www.mhc.tn.gov.in/judis
W.P(MD)No.1115 of 2018
DR. ANITA SUMANTH , J.
CM
W.P.(MD) No.1115 of 2018
and W.M.P(MD)No.1170 of 2018
https://www.mhc.tn.gov.in/judis
W.P(MD)No.1115 of 2018
02.02.2022
https://www.mhc.tn.gov.in/judis
