Telangana High Court
D. Bhadru vs Tsrtc on 7 November, 2024
THE HONOURABLE SMT. JUSTICE T. MADHAVI DEVI
WRIT PETITION NO.10430 OF 2021
O R D E R:
This Writ Petition is filed seeking a Writ of Certiorari to
quash the impugned award dated 25.09.2020 in I.D.No.23 of
2017, published on 23.11.2020 on the file of Labour Court-III,
Hyderabad, in not granting any relief to the petitioner as
illegal and arbitrary and consequently to direct the
respondents to reinstate the petitioner into service along with
all the consequential benefits in the interest of justice.
2. Brief facts leading to the filing of the present writ
petition are as under:-
Petitioner No.1 was appointed as a driver in
Respondent-Corporation and he joined in service on
17.05.1997 after undergoing due process of selection. His
services were subsequently regularized w.e.f. 01.01.2000.
Petitioner Nos.2 to 4 are the legal heirs of petitioner No.1. On
25.07.2015, while petitioner No.1 was driving the bus service
bearing vehicle No. AP 29Z 2147 between Vijayawada and
Bhadrachalam, a pedestrian suddenly came on to the road
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from the left side near L.V. Prasad Eye Hospital, Nava Bharat
Village, from the back side of the stationed auto, and instead
of crossing the road, he got confused and again came back; in
the process, he came into contact with the left side corner of
front bumper of the bus and he died on the spot. Respondent
No.4 conducted the preliminary enquiry and on the basis of
such report, he placed the petitioner under suspension on
11.08.2015 and charge sheet was issued to petitioner No.1.
Thereafter, by order dated 18.03.2016, the petitioner No.1
was removed from service and against the same, he preferred
an appeal, revision and mercy appeal, but all were rejected
vide orders dated 19.04.2016, 22.07.2016 and 06.02.2017
respectively. Assailing the said orders, petitioner No.1 raised
I.D.No.23 of 2017 before the Labour Court-III, Hyderabad.
However, the Labour Court upheld the validity of the domestic
enquiry and also the order of removal vide award dated
25.09.2020. Challenging the same, the present writ petition
has been filed.
3. Learned counsel for the petitioners submitted that
petitioner No.1 has worked with unblemished record of
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service from 17.05.1997 till the date of his removal from
service i.e., 18.03.2016. Learned counsel submitted that
except for the sole incident where the pedestrian came into
contact with the bus and sustained injuries resulting in his
death on the spot, there was never, any other accident that
occurred while petitioner No.1 was in service. Learned
counsel for the petitioners submitted that the charge sheet
dated 11.08.2015 was issued to the petitioner No.1 alleging
that petitioner No.1 has driven the vehicle with gross
negligence without taking any precautionary measures and
hit the pedestrian, who was crossing the road from right side
to left side, resulting in the death of the pedestrian on
25.07.2015 and that it amounts to serious misconduct under
Regulation 28 (ix)(a) of APSRTC Employees (Conduct)
Regulations, 1963. Learned counsel further submitted that
petitioner No.1 submitted his explanation stating that there
was no fault on his part and that the spot inspection report
clearly revealed that due to confused state of mind of the
pedestrian, the accident has taken place. It is also the
submission of the learned counsel for the petitioner that in
the enquiry, the conductor K.B. Reddy, the ADC of
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Kothagudem Depot Sri Jamaluddin, who made spot
inspection, and the Assistant Manager (P) Sri N.V.Reddy, who
conducted the preliminary enquiry, were examined in support
of the charges and petitioner No.1 was examined in defence
and that the evidence adduced in the enquiry, in support of
charges, was not sustainable. Therefore, according to learned
counsel for the petitioners, the Enquiry Officer has committed
an error, as is evident from the enquiry report, and based on
the same, the petitioner No.1 was removed from service
mechanically by the higher authorities. It is submitted that
the Labour Court has committed an error in throwing the
burden of proof on petitioner No.1 to show, under what
circumstances the incident took place and has not taken into
consideration the fact that Jamaluddin, ADC of Kothagudem,
who went to the incident spot, has not examined any other
witnesses on the spot, which would have revealed that the
accident has occurred due to the confused state of mind of
the pedestrian. Learned counsel further submitted that the
burden of proving the charge is on the employer and not on
the delinquent employee. It is further submitted by learned
counsel for the petitioner, that in the enquiry all the three
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management witnesses have deposed that due to the
confused state of mind of the pedestrian, the accident was
occurred. It is submitted that the Labour Court has given a
finding on mere assumptions and presumptions and
committed an error, in confirming the punishment order as is
evident from the face of the record. Learned counsel placed
reliance upon the judgment of the Hon'ble Supreme Court in
Nirmala J. Jhala v. State of Gujarat and another 1 and
submitted that when the charges are made by the employer,
the onus is on the employer to prove the charges made
against the delinquent employee and not otherwise.
4. Learned Standing Counsel for Respondent-Corporation
relied upon the averments made in the counter affidavit in
support of the impugned orders and submitted that a detailed
enquiry was conducted into the matter and there were no
infirmities pointed out by petitioner No.1 in the said enquiry
and that petitioner No.1 had also cross-examined the
management witness and offered his explanations before the
Enquiry Officer, wherein he requested to treat his explanation
(2013) 4 SCC 301
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to the charge sheet as his evidence in the enquiry. Learned
Standing Counsel further submitted that petitioner No.1 did
not produce any evidence or witness in his support. Thus, a
fair and proper enquiry was conducted into the charges
against him. Learned Standing Counsel further submitted
that the Labour Court upheld the validity of the domestic
enquiry and also the punishment of removal from service after
considering all the relevant facts. Therefore, according to
him, the order of the Labour Court needs no interference by
this Court under Article 226 of the Constitution of India.
5. Having regard to the rival contentions and the material
on record, this Court finds that there was death of a
pedestrian while petitioner No.1 was driving a bus from
Vijayawada to Bhadrachalam. The only question to be
decided in this Writ Petition, is whether the Labour Court was
right in confirming the punishment order of removal. Learned
counsel for the petitioner has not been able to point out any
infirmity in the enquiry conducted and therefore, the Labour
Court has upheld the validity of the domestic enquiry. The
only reason, if any, for interference would be if the accident
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has occurred due to the negligence of the pedestrian. This
Court finds that the Labour Court has gone into the evidence
adduced by the management and has observed that the bus
was moving at a high speed while the pedestrian was walking
slowly and that the driver has not taken proper precautions in
driving the vehicle slowly in the village, that too in front of the
hospital and when the pedestrian almost crossed the road
and on hearing the horn, turned back to return, there was no
possibility of his returning back to the middle of the road
without going towards the margin as stated by the petitioner
No.1 and conductor. The Labour Court has also taken into
consideration the fact that the body of the deceased was
almost at the extreme end of the road and therefore, the
contention of the petitioner No.1 that the pedestrian has
returned back from the middle of the road was not correct
and it was only a self-serving statement given by the
petitioner. The Labour Court has come to the conclusion that
the accident could be possible only when the pedestrian was
moving slowly and the bus was at high speed and the driver
wrongly estimated that the pedestrian would have crossed the
road by the time the bus reached the said place, but due to
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the slow movement of the pedestrian and the high speed of
the bus, the driver, even after applying sudden brake and
blowing the horn, could not have stopped hitting the
pedestrian and the left bumper of the bus hit the pedestrian,
causing grievous head injury, resulting in pedestrian's death.
In view of these circumstances, the Labour Court has held
that the management has proved the charges of negligence on
the part of the petitioner No.1 and therefore the onus shifts
on to the delinquent employee to establish that the accident
happened due to some other cause than his own negligence.
In view of this finding, the decision of the Hon'ble Supreme
Court in Nirmala J. Jhala (cited supra) would not apply to
this present case. In the said case, the onus was on the
department to prove the circumstances of the charge sheet
whereas in the present case, the management has already
proved the case; therefore, the burden was shifted to the
petitioner to prove his innocence. However, it is also
noteworthy that in his service of 19 years from 1997 to 2016,
there was no incident of any negligence on the part of the
petitioner No.1. By the order of removal from service, the
petitioner No.1 is deprived of all the benefits of his
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unblemished service from 19 years. Therefore, this Court, in
the interest of justice, deems it fit and proper to set aside the
order of removal from service and remand the issue to the file
of respondent No.4 for reconsideration of imposing a
punishment other than removal from service. The respondent
No.4 shall pass appropriate orders of lesser punishment
within a period of three months from the date of receipt of a
copy of this order.
6. Accordingly, the Writ Petition is disposed of. No order
as to costs.
7. Pending miscellaneous petitions, if any, in this Writ
Petition shall also stand dismissed.
_____________________________
JUSTICE T. MADHAVI DEVI
Date: 07.11.2024
PRN
