Madras High Court
K.Ramesh vs The Tamilnadu State Transport ... on 22 March, 2022
W.P.(MD)No.7162 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.03.2022
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P.(MD)No.7162 of 2016
and
W.M.P.(MD)Nos.6064 and 6065 of 2016
K.Ramesh ... Petitioner
vs.
1.The Tamilnadu State Transport Corporation
(Kumbakonam) Limited,
Kumbakonam Division,
represented by its Managing Director,
Kumbakonam, Thanjavur District.
2.The Tamilnadu State Transport Corporation
(Kumbakonam) Limited,
Tiruchirappalli Region,
represented by its General Manager,
Periyamelaguparai, Tiruchirappalli - 620 001.
3.The Tamil Nadu State Transport Corporation
(Kumbakonam) Limited,
Tiruchirappalli Rural Branch,
represented by its Branch Manager,
Tiruchirappalli - 620 001. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
1/9
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W.P.(MD)No.7162 of 2016
issuance of Writ of Certiorarified Mandamus, to call for records of the impugned
order of the 2nd respondent in no.TNSTC/KUM/TRICHY/D6/5266/2014, dated
30.12.2015 and to quash the same and pleased to direct the 2nd respondent to
give all consequential benefits to the petitioner.
For Petitioner : Mr.R.S.Sivaram
For Respondents : Mr.D.Sivaraman
*****
ORDER
This Writ Petition is filed for issuance of a Writ of Certiorarified
Mandamus, to quash the impugned order of the 2nd respondent in No. TNSTC /
KUM / TRICHY/D6/5266/2014, dated 30.12.2015 and pleased to direct the 2nd
respondent to give all consequential benefits to the petitioner.
2.The brief facts of the case are that the petitioner was appointed as Driver
on 15.06.2010 and was regularized from 04.08.2012. On 02.12.2014, when the
petitioner was driving the Bus bearing TN 45 N 3709 from Trichy to Salem at
about 09:45 AM, a TATA ACE Mini Van with Registration No.TN 28 AM 2797
was driven by the Driver in a rash and negligent manner and suddenly turned his
vehicle to his right side to avoid a pothole in the road and due to the same he was
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W.P.(MD)No.7162 of 2016
unable to control his vehicle and ultimately he dashed the petitioner's bus, due to
which the Driver and other passengers in TATA ACE sustained injuries in the
accident. The glass and the tyer of the Bus were damaged and the petitioner also
sustained injuries all over his body due to breaking of the glass. The petitioner
was admitted in Government Hospital, Namakkal and thereafter, discharged from
Hospital. FIR was registered in Crime No.347 of 2014 under Sections 279, 337,
338 and 304(A) of IPC. The petitioner was suspended on 02.12.2014 and a
charge memo, dated 09.12.2014 was issued. The petitioner was made responsible
for the death of two persons and was made responsible for the loss to the Bus to
the tune of Rs.33,168/-.
3. The contention of the petitioner is that FIR was not mentioned in the
charge memo, pending the disciplinary proceedings the petitioner's suspension
was revoked and was allowed to join duty on 08.01.2015. For the charge memo,
the petitioner submitted oral explanation and requested to withhold the
disciplinary proceedings, until the disposal of the criminal proceedings.
However, the respondents appointed an Enquiry Officer. The petitioner submitted
a representation, dated 18.03.2015, to the Enquiry Officer to provide necessary
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W.P.(MD)No.7162 of 2016
documents. The Enquiry Officer directed the petitioner to attend the enquiry on
06.08.2015. Again, the petitioner requested to withhold the disciplinary
proceedings until criminal case is disposed of. According to the petitioner,
without considering his request, the Enquiry Officer concluded enquiry report and
submitted it on 26.10.2015.
4.The contention of the petitioner is that the Enquiry Officer exceeded his
power in coming to the conclusion with his findings. The enquiry was not as per
Rules and it is in violation of principles of natural justice. There is no
independent witness in the enquiry proceedings and all the witnesses are from the
department. Based on the enquiry report, the disciplinary authority has passed an
order imposing a punishment of stoppage of increment for three years with
cumulative effect, vide order, dated 02.11.2015. For the said proposed
punishment, the petitioner submitted another explanation, vide letter, dated
08.12.2015 and 08.01.2016. The contention of the petitioner is that, vide letters,
the petitioner sought extension of time for giving reply, but the respondents did
not pass any order either granting extension of time or rejecting the request.
Therefore, the petitioner's contention is that there was deemed extension of time.
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W.P.(MD)No.7162 of 2016
The petitioner filed a Writ Petition in W.P.(MD)No.2630 of 2016. In the
meanwhile, the respondents appeared before the Court and submitted that the
final orders are passed on 30.12.2015 itself. Recording the said submission, the
said Writ Petition was disposed with a liberty to file a fresh Writ Petition.
6.The contention of the petitioner is that even though it was submitted by
the respondents that the final orders are passed. The said order was not
communicated to the petitioner. The petitioner sought information under Right to
Information Act, vide letter, dated 07.03.2016. The respondents rejected the said
letters but subsequently served copy of the order. The contention of the petitioner
is that the entire process of the disciplinary proceedings initiated by the second
respondent is mala fide and against the rule of law and natural justice. Since the
criminal proceedings are pending before the Court, according to the petitioner, the
disciplinary proceedings cannot be concluded against the evidence like the sketch
and other materials, which are relevant to prove the negligence and rash driving
of the petitioner. Since the same was not produced and the documents were not
served to the petitioner, the disciplinary proceedings are vitiated and the
punishment imposed is illegal.
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W.P.(MD)No.7162 of 2016
7. The respondents relied on the written para wise remarks, where it has
been stated that the writ petition is not maintainable. Moreover the accident spot
was inspected and it was seen that the petitioner has crossed the meridian and has
entered the right side of the meridian. Therefore, he had hit the TATA ACE Van.
The petitioner was granted adequate opportunity. However, the petitioner was not
inclined to attend the enquiry stating that since the criminal proceedings are
pending, the respondents cannot proceed with the disciplinary proceedings. In
the accident two persons died and the two persons have incurred injuries 2
MCOPs are pending before the Tribunal claiming Rs.15,00,000/- and Rs.
17,00,000/- each.
8.Heard Mr.R.S.Sivaram, learned Counsel appearing for the petitioner and
Mr.D.Sivaraman, learned Standing Counsel appearing for the respondents.
9.The contention of the petitioner is that he did not drive the Vehicle in a
rash and negligent way. The TATA ACE in order to avoid a pothole in the road,
crossed the meridian suddenly, which the petitioner/driver did not expect.
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W.P.(MD)No.7162 of 2016
Therefore, the accident occurred. According to the respondent, even if such a
claim is accepted, the accident investigation report says even the Bus crossed the
meridian. If that is so, both the Bus as well as the TATA ACE had crossed the
meridian. Therefore, the accident had occurred. Even though there is no rash and
negligent driving, the petitioner has violated the traffic rules by crossing the
meridian instead of keeping on the left. The petitioner and the respondents
agreed on one aspect that the TATA ACE in order to avoid the pothole, crossed
the meridian but there is no such difficulty for the petitioner. Therefore, crossing
the meridian on the road is negligent but not rash.
` 10.The respondents raised an objection to entertain this Writ Petition, since
the petitioner has filed this without availing the alternative remedy of filing this
before the Labour Court. The respondents relied on two judgments of this Court
where it has been stated that the employee ought to approach before the Labour
Court and straight away he cannot file a Petition by invoking Article 226. The
respondents also relied on a Full Bench decision of this Court on maintainability
of the Writ Petitions, wherein, it has been stated that the circumstances under
which Article 226 can be entertained. However, this Court has admitted this Writ
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W.P.(MD)No.7162 of 2016
Petition and has granted interim stay and subsequently, extended the interim stay.
Since this Court has entertained the Writ Petition as early as 2016 and this case
was pending for the past 7 years, at this stage if the peititoner is directed to
approach the appropriate forum it will take another few years. In order to grant
substantive justice this Court is inclined to entertain this Writ Petition. As far as
the punishment is concerned, this Court is inclined to modify it. Since it has been
held supra that there is no rash driving but there is some negligence on the part of
the petitioner, the punishment of stoppage of increment for three years with
cumulative effect is modified as stoppage of increment for one year without
cumulative effect.
12.With the above direction, the Writ Petition is disposed of. No costs.
Consequently, connected miscellaneous petitions are closed.
Index : Yes / No 22.03.2022
Internet : Yes
Tmg
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.7162 of 2016
S.SRIMATHY, J
Tmg
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.
W.P.(MD)No.7162 of 2016
22.03.2022
https://www.mhc.tn.gov.in/judis
