Madras High Court
C.Palanisamy vs The Presiding Officer on 20 September, 2024
Author: J.Nisha Banu
Bench: J.Nisha Banu
W.A.No.1440 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 25.07.2024
PRONOUNCED ON : 20.09.2024
CORAM:
THE HON'BLE MRS. JUSTICE J.NISHA BANU
AND
THE HON'BLE MR. JUSTICE P.DHANABAL
W.A.No.1440 of 2024
C.Palanisamy ... Appellant
Vs.
1.The Presiding Officer,
Labour Court, Salem.
2. Tamil Nadu State Transport Corporation Ltd., (Salem)
Rep. By its General Manager,
Bharathipuram, Dharmapuri - 5 ...Respondents
PRAYER: Writ Appeal filed under Clause 15 of the Letters Patent to set aside
the order of the learned Judge made in W.P.No.26243 of 2015 dated 19.01.2024
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Page No.1 of 14
W.A.No.1440 of 2024
and confirm the Award passed by the first respondent in I.D.No.64 of 2011
dated 30.10.2014.
For Appellant : Mr.R.Thamaraiselvan
For R-2 : Mr.Aswin
* R1- Court
******
JUDGMENT
(Judgment of the Court was made by J.NISHA BANU, J.)
Challenging the order passed by the Writ Court in W.P.No.26243 of
2015 dated 19.01.2024, wherein the Award passed by the Labour Court, Salem
is I.D.No.64 of 2011 came to be set aside, thereby upholding the order passed
against the appellant in the domestic enquiry conducted by the respondent
Management, the aggrieved appellant has preferred the present writ appeal
before this Court.
2. Necessary brief facts are stated in this judgment to appreciate the
rival legal contentions urged by the learned counsel for the parties :
(a) The case of the appellant is that he was working as a driver under
the 2nd Respondent Management from 10.06.2008 onwards. On 04.08.2008,
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while the appellant was driving the bus from Dharmapuri to Pennagaram and
when the bus was nearing Erikarai at about 7.15 hours, a motor cycle came
from the opposite direction of the bus and dashed against the bus, out of which
three persons who were traveling in the two wheeler met with a major accident,
in which two male persons died on the spot and one female person died on the
way to the hospital.
(b) As a result of the said accident, a charge memo was issued by the
2nd respondent Management to the appellant on 09.01.2008 for which the
appellant has submitted his explanation on the very same day. Being not
satisfied with the explanation submitted by the appellant, the respondent
Management conducted a domestic enquiry and the Enquiry Officer submitted
his report holding that charges framed against the appellant stands proved
against him. Therefore, based on the Enquiry Officer's report, a second show
cause notice, dated 22.06.2009 was issued to the appellant regarding the
proposed punishment, for which the appellant submitted his explanation on the
very same day.
(c) After considering the explanation submitted by the appellant, the
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Enquiry Officer gave his finding of dismissal from service vide order dated
11.09.2009 for the appellant. Aggrieved by the said order of dismissal, the
appellant raised an industrial dispute in I.D.No.64/2011 on the file of the 1st
respondent Tribunal and the same came to be allowed by the Labour Court.
Against the said Award, the second respondent filed a writ petition in
W.P.No.26243 of 2015 and this Court vide order dated 19.01.2024 allowed the
writ petition by setting aside the order passed by the 1st respondent/Labour
Court, Salem in I.D.No.64 of 2011. Aggrieved against the said order, the
appellant has preferred the present appeal.
3. According to the learned counsel for the appellant, the learned
Single Judge failed to consider that the witnesses, who were examined during
the domestic enquiry have not stated that the appellant drove the bus in a rash
and negligent manner, thereby causing the accident. It is pertinent to note that
there were no eye witnesses and the evidence produced by the respondent
Management were just an observance through the circumstantial evidence
present at the spot. Further, the learned counsel contended that the learned
Single Judge failed to consider that the alleged charges against the appellant
were dropped by the Inspector of Police, Pennagaram Police station after
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thorough investigation stating that the motorcyclist has been held responsible
for the accident vide letter dated 05.08.2008.
4. Furthermore, the learned counsel for the appellant submitted that
the appellant, as a precautionary measure, drove the bus by keeping to the left
side of the road with utmost care to prevent the bus from falling into the lake
with an intention to protect the lives of the passengers. Even after taking such
precautions, the two wheeler rider along with two other pillion riders, even
after having sufficient space on the right side of the bus, came in the opposite
direction and dashed against the bus in the middle portion.
5. In support of his arguments, the learned counsel relied on the
judgment of the Punjab & Haryana High Court in the case of Union of India
and Ors. v. Virender Kumar in RSA 2753-2009(O&M) dated 22.05.2023
wherein the Court has held that, the principle of “rash and negligent” is to be
considered only when there is no direct evidence or material to substantiate
that the appellant drove the bus in a rash and negligent manner. Therefore,
without considering the facts and circumstances of the case, the Writ Court has
allowed the writ petition filed by the respondent Management and the same
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deserves to be interfered with.
6. Per contra, the learned counsel appearing for the respondent/
Management would submit that the application in I.D. No.64 of 2011 was filed
by the appellant after a lapse of two years from the date of removal of service.
Further, the learned counsel submitted that the accident took place within a
couple of months from the date of appointment of the appellant. Therefore, if
the service of the appellant continues to prevail, then it would endanger the life
of the common persons, who travel in the Transport Corporation. Therefore, on
the interest of public life and safety, the present writ Appeal is liable to be
dismissed.
7. Heard the learned counsel for the appellant as well as the learned
counsel appearing for the respondent and perused the materials placed before
this Court.
8. The points that arise for determination in this appeal are whether
the Management was fair enough to dismiss the appellant from the service and
whether the appellant is entitled for reinstatement into service based on
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records.
9. The Hon'ble Apex Court in the case of State Of Karnataka vs
Satish reported in (1998) 8SCC 493, has held as follows:-
“4. Merely because the truck was being driven at a "high
speed" does not speak of either "negligence" or "rashness"
by itself. None of the witnesses examined by the prosecution
could give any indication, even approximately, as to what
they meant by "high speed". "High speed" is a relative
term. It was for the prosecution to bring on record material
to establish as to what it meant by "high speed" in the facts
and circumstances of the case. In a criminal trial, the
burden of providing everything essential to the
establishment of the charge against an accused always
rests on the prosecution and there is a presumption of
innocence in favour of the accused until the contrary is
proved. Criminality is not to be presumed, subject of course
to some statutory exceptions. There is no such statutory
exception pleaded in the present case. In the absence of any
material on the record, no presumption of "rashness" or
"negligence" could be drawn by invoking the maxim "res
ipsa loquitur". There is evidence to show that immediately
before the truck turned turtle, there was a big jerk. It is not
explained as to whether the jerk was because of the uneven
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road or mechanical failure. The Motor Vehicle Inspector
who inspected the vehicle had submitted his report. That
report is not forthcoming from the record and the Inspector
was not examined for reasons best known to the
prosecution. This is a serious infirmity and lacuna in the
prosecution case.
5. There being no evidence on the record to establish
"negligence" or "rashness" in driving the truck on the part
of the respondent, it cannot be said that the view taken by
the High Court in acquitting the respondent is a perverse
view. To us it appears that the view of the High Court, in
the facts and circumstances of this case, is a reasonably
possible view. We, therefore, do not find any reason to
interfere with the order of acquittal. The appeal fails and is
dismissed. The respondent is on bail. His bail bonds shall
stand discharged.”
In the present case on hand, this Court finds that initiating action
only against the appellant, when there is negligence on the other side also, is
arbitrary. Therefore, the entire blame cannot be thrown on the appellant. The
Enquiry Officer should have considered the above aspect while imposing
punishment against the appellant. Ignoring the same, the Enquiry Officer has
rendered a finding of an order of dismissal from service, which is distorted.
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This Court finds that no direct evidence has been proved either by the trial
court or by the Writ Court to the effect that the appellant was driving the bus
either negligently or rashly.
10. This Court is also of the considered opinion that the learned
Single Judge failed to consider the fact that the charges leveled against the
appellant have already been dropped by the Inspector of Police, Pennagaram
Police station after thorough investigation stating that the motorcyclist has
been held responsible for the accident. It is to be noted that on considering the
available records, the preponderance of probabilities cannot be presumed when
there is an absence of evidence to prove the act of “rash and negligent” on the
part of the driver. Therefore, the dismissal order has been passed without
considering the facts of the case and as such, the same warrants the
interference of this Court.
11. It would be relevant to refer to the observation made in the case
of the Depot Manager, Andhra Pradesh State vs Mohd. Ismail And Anr. on
18 October, 1996, wherein the relevant paragraph is extracted as under:-
"The next question to be considered under Section
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11-A of the Industrial Disputes Act is whether the penalty
imposed by the Disciplinary Authority is proportionate to the
gravity of the misconduct proved against the delinquent. The
Disciplinary Authority has pointed out that the misconduct
proved against the delinquent is quite serious in nature
resulting in injuries to 35 passengers and the conductor, and
heavy damage to the vehicle. If we were to decide this case in
the year 1987 or 1988, probably, we would not have
interfered with the punishment imposed by the Disciplinary
Authority. The delinquent was reinstated into service by
virtue of the impugned award passed by the Labour Court
more than eight years back, and it is not brought to our notice
that after reinstatement, the delinquent caused any accident
on account of his negligence or committed any other
misconduct. In that view of the matter and taking into account
the totality of the facts and circumstances of the case, we
think it is just and proper not to disturb the reinstatement
awarded by the Labour Court. But, we do not find any
justification to award backwages to the delinquent.”
In the above case, the observations would make it very clear that the
reinstatement of the appellant is requisite, besides the departmental enquiry, the
approval sought by the Management for the dismissal order lacks legal
evidence, suffers perversity and thereby attracts the unfair labour practice. As
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the deceased, who was driving the motorcycle had two pillion riders, it would
clearly show that he has violated the provisions of th Motor Vehicles Act under
section 128(1). It can also be presumed that the maneuverability of a
motorcycle would have been affected by having two pillion riders vis-à-vis one
pillion rider and that amounted to a rash and negligent act on the part of the
two wheeler rider. Finally, this Court in on the view that the appellant was not
solely responsible for the accident, whereas the two-wheeler rider along with
the other two pillion riders were also responsible for the accident.
12. However, in the case of Darwan Singh Aswal v. United India
Insurance Company Limited &Ors, dated 01.11.2012, the Delhi High Court
has held that it cannot be presumed that there would always be negligence on
the part of the two wheeler driver, if 3 persons are riding on the two wheeler. In
such circumstances, the negligence has to be established as a fact. In the instant
case, as stated earlier, the manner of the accident has been examined by the
police officers at Pennagram and the police officials have reported that the act
of rash driving and negligence is on the side of the two wheeler rider. However,
there has been no evidence adduced by any of the parties that there was some
act or omission on the part of the Bus Driver, which materially contributed to
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the accident, so that it could not be described as rash or negligent act.
13. Moreover, the witnesses produced by the respondent
Management was also not an adhesive one to contradict against the bus driver.
In fact, the evidence on record established that the two wheeler rider was on
the wrong side of the road and the appellant bus driver was not guilty and he
was on a cautionary note to protect the passengers present inside the bus.
Therefore, the charges alleged against the bus driver fails to prove the act of
“rash and negligence”. Hence the present charges cannot be sustained.
14. Therefore, this Court finds error in the order passed the learned
Single Judge in W.P.No.26243 of 2015. Hence, the Award passed by the 1st
respondent in I.D.No.64 of 2011 dated 30.10.2014 shall stand confirmed and
this Court directs the respondent Management to reinstate the appellant with
back wages and other benefits. In the result, the Writ Appeal stands allowed.
No costs.
(J.N.B,J.) (P.D.B., J.)
20.09.2024
sts
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Internet : Yes/ No
Index: Yes / No
To:
1.The Presiding Officer,
Labour Court, Salem.
2. The General Manager,
Tamil Nadu State Transport Corporation Ltd., (Salem)
Bharathipuram, Dharmapuri - 5
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J. NISHA BANU, J.,
and
P.DHANABAL, J.,
sts
Judgment made in
Dated:
20.09.2024
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