Madras High CourtM. Chella Thambi vs The Presiding Officer, Labour Court And ... on 31 October, 2003Author:F.M. Ibbrahim KalifullaBench:F.M. Ibbrahim KalifullaORDER
 

F.M. Ibbrahim Kalifulla, J.1. The petitioner seeks to challenge the award of the first respondent dated 12.4.96 in I.D.No. 310 of 1991 holding that the non employment of the petitioner was justified and therefore, he was not entitled for any relief.2. The petitioner was employed as a driver in the second respondent Corporation. While so, on 20.1.89, while he was driving a passenger bus bearing Registration No. TML-6242 from Thirupuvanampudur to Anna bus stand, he caused an accident at a place called Silaiman by dashing the bus on an aged mentally challenged lady, who, subsequently, died in the Government Hospital, Madurai. Further, it is stated that in the said accident, he also caused damage to a nearby co-operative society retail outlet and the goods stocked there. In the accident, it is stated that the conductor suffered fracture injuries. The petitioner was issued with a charge memo dated 15.2.89. The petitioner submitted his explanation dated 9.3.89. Thereafter, an enquiry was held and based on the report of the enquiry officer, the petitioner was ultimately dismissed from service on 29.11.90. The petitioner raised an industrial dispute, which came to be numbered as I.D.No. 310 of 1991 on the file of the first respondent. In the said dispute, initially a preliminary award came to be passed as regards the fairness of the enquiry. The said award was dated 4.1.93. In the preliminary award, the first respondent took the view that the enquiry was not fair and proper and since the second respondent had sought for an opportunity to let in fresh evidence, the dispute was posted again for that purpose. Thereafter, the second respondent examined M.W.1 on its side. The petitioner did not let in any oral evidence. Exs.W.1 to W.5 were marked on the side of the petitioner, while Exs.M.1 to M.11 were marked on the side of the second respondent. The first respondent/Labour Court has passed an award in the said I.D. on 12.4.96 holding that the non-employment was fully justified.3. Assailing the said award, Mr. Saravanan, the learned counsel appearing for the petitioner contended that the version of M.W.1 was disbelieved by the first respondent in its own preliminary award dated 4.1.93 and in the circumstances, the reliance placed upon the very same version by the first respondent in its final award cannot be sustained. According to the learned counsel, when the evidence of M.W.1 is to be eschewed from consideration, in the absence of any other acceptable evidence as regards the manner in which the accident had taken place on 20.1.89, the conclusion of the first respondent finding the petitioner guilty of the charge of rash and negligent driving cannot be accepted. The learned counsel further contended that when the petitioner has made it clear in his explanation as to the manner in which the accident had taken place, it was on the second respondent Corporation to have countered the said version by letting in appropriate acceptable evidence before the first respondent and therefore, in the absence of such material, the conclusion of the first respondent in the impugned award cannot be upheld.4. As against the above said submissions, Mr. Parthiban, the learned counsel appearing for the second respondent, contended that in cases of this nature, it has been repeatedly held by the Honourable Supreme Court that when once the accident is not disputed, then the onus would be on the concerned driver to prove to the satisfaction of the Court that he was not at fault in causing the accident. The learned counsel relied upon the judgment of this Court in THIRUVALLUVAR TRANSPORT CORPORATION LIMITED, MADRAS v. K.AYYAVU [2003 (3) LLN 705] and a Division Bench judgment of the Karnataka High Court in NORTH WEST KARN. R.T.C. v. B.U.DONI (Vol.3 FJR 511), in support of his submissions.5. Having heard the learned counsel for the parties, the vital question that arise for consideration in this writ petition is as to whether the evidence of M.W.1 can be relied upon in the light of the preliminary award of the first respondent itself in having taken the view that based on his sole version, the petitioner could not have been found guilty of the charges, since, in the case on hand, after the preliminary award dated 4.1.93 holding that the enquiry was not fair and proper and the finding was also perverse and after liberty was given to both the parties to let in fresh evidence, the evidence let in on the side of the second respondent was that of the very same witness, who was examined in the domestic enquiry and whose version was not acceptable to the first respondent as has been stated in its preliminary award. It will have to borne in mind that the accident is not in dispute. The consequent damages caused by virtue of the accident, namely, the loss of life of an old lady, the injury caused to the conductor and the damages caused to the stores kept in a nearby co-operative retail outlet were all not in dispute. The explanation of the petitioner dated 9.3.89 also clearly states the manner in which the vehicle was driven at the relevant point of time at the place called Silaiman. The description stated in the explanation shows that, that particular place had certain curves and that while the vehicle was on the move, the mentally challenged old lady crossed the road and to avoid that lady, the petitioner had to drive the vehicle towards the opposite side and on finding a lorry parked there, he had to turn the vehicle towards the left again, which went amok and dashed against the co-operative retail outlet causing damages to the stores kept there. When such a description can be easily visualised even from the explanation submitted by the petitioner, the question that remains for consideration is whether the accident could have occurred due to the rash driving of the vehicle by the petitioner. For that purpose, the evidence of M.W.1 was relied upon by the second respondent Corporation.6. It is true that in the preliminary award, the first respondent itself has held that the evidence of M.W.1 in the enquiry cannot be relied upon. When the said preliminary award of the first respondent is perused, I find that the enquiry was challenged by the first respondent on the ground that at the time when he was issued with the second show cause notice, he asked for a copy of the report of the enquiry officer and since the same was not furnished to him, he was put to serious prejudice and therefore, the whole enquiry proceeding should be set aside. In fact, that ground raised on behalf of the petitioner weighed with the first respondent/Labour Court for setting aside the enquiry as not fair and proper. In fact, in the enquiry, the petitioner examined himself, apart from examining one other witness on his side. He also cross-examined M.W.1, who was examined in the said enquiry as Management witness and thus, as regards the manner in which the enquiry was held, there appeared to have been no grievance expressed on behalf of the petitioner. Unfortunately, the first respondent/Labour Court, while holding that the enquiry was not fair and proper, went into the details of the evidence let in through M.W.1 as Management witness and commented upon the said version by stating that the same cannot be accepted in the absence of any direct eye witness to support the said version. I am of the view that in view of the scope of consideration that was required while dealing with the question about the fairness of the enquiry, it was totally unnecessary for the first respondent to assess the version of the management witness as regards the merits of the mis-conduct, while ultimately holding that the enquiry was not fair and proper. In other words, it will have to be held that, that part of the preliminary award in going into the correctness of the version of the management witness at that stage was totally out of context. Even if the said preliminary award was not ultimately challenged and continued to remain in force, inasmuch the first respondent/Labour Court had exceeded its limits while dealing with the preliminary issue by assessing the version of the witness as regards the merits of mis-conduct, it will have to be held that the said part of the award will have to be ignored as though the same did not form part of that preliminary award. Therefore, in my view, when the first respondent dealt with the merits of the misconduct after the preliminary award, it had to independently assess the evidence placed before it without in any manner being influenced by whatever stated in the preliminary award. Once I stear clear of that position, then it can be safely held that the evidence let in on behalf of the second respondent, even if it be the examination of the very same witness once over again in proof of the mis-conduct, the same can be independently assessed by the labour Court for taking any decision on the merits of the mis-conduct. With that view, when the award impugned in the writ petition is scrutinised, it will have to be seen whether the conclusions reached by the first respondent/ Labour Court can be accepted.7. As stated earlier, the accident that happened on 20.1.89 is not in dispute and the manner in which it took place is also not disputed. Therefore, the only question was whether the petitioner had driven the vehicle in a rash and negligent manner, which ultimately caused the accident and the ultimate loss of life to the old lady. In the evidence now let in before the first respondent, M.W.1 has deposed to the effect that after the accident, he inspected the place and has narrated as to how the accident had taken place. A perusal of that version of M.W.1, when compared with what has been stated by the petitioner in his explanation dated 9.3.89, it tallies in all respects. As far as the cause of the accident is concerned, according to M.W.1, had the petitioner driven the vehicle cautiously in a slow speed, the accident could have been avoided. He has also stated that there was no indication at the accident spot to show that the petitioner applied brake to avoid the accident. He has also stated that the curve was in a shape of letter 'S'. According to him, the petitioner should have driven the vehicle only at 25 kms. speed in that place. He has further stated that even if the vehicle was driven at 40 kms. speed and brake had been applied, that would have dragged the vehicle atleast to 30 feet and that in such a situation, there would be tyre marks on the road. In the cross-examination, no significant answer has been elicited from M.W.1 in order to dislodge the above version stated by him in his chief-examination. Significantly, after the preliminary award, when opportunity was extended to both sides for letting in fresh evidence, the petitioner chose not to go into the box and was rest content with the documents marked on his side. Apart from the domestic enquiry proceedings and the standing orders, he had only filed the Criminal Court Verdict as Ex.W.1. In such circumstances, when the first respondent/ Labour Court, by accepting the version of M.W.1, reached the conclusion that the petitioner drove the vehicle at 40 kms. speed in a place, which was a curved area and thereby, caused the accident, as he was unable to control the vehicle in that high speed, it cannot be held to be a perverse finding in order to hold that the ultimate conclusion of the first respondent that the non-employment was justified calls for interference. I am, therefore, convinced that the award of the first respondent was fully justified and it was based on acceptable material evidence before it and the conclusions were also reached based on cogent and convincing reasoning.8. Insofar as such conduct of the drivers of a public transport corporation are concerned, time and again, it has been repeatedly held that the doctrine of res ipsa loquitur would apply, that is, the accident speaks for itself. In other words, when it is in the exclusive knowledge of the driver, who caused the accident, it is but proper that he discharge the onus, namely, that the accident did not happen due to his rash and negligent driving, but due to various other reasons not attributable to him.In fact, in the Division Bench judgement cited by the learned counsel for the second respondent, reference has been made to three decisions of the Honourable Supreme Court  (PUSHPABAI PARSHOTTAM UDESHI v. RANJIT GINNING AND PRESSING CO. P.LTD.),  (STATE OF KARNATAKA v. KRISHNA RAJU) and A.I.R. 2000 SC 1677 (DALBIR SINGH v. STATE OF HARYANA.In the judgment  (STATE OF KARNATAKA v. KRISHNA RAJU), the Honourable Supreme Court has cautioned to the effect that where a driver of a public transport corporation is found to have caused a fatal accident, the same has to be looked at with certain amount of seriousness, since the public safety and convenience is a paramount, the Court should not fall a prey to the plea of misplaced sympathy. The Honourable Supreme Court has also held that award of punishment has to be weighed keeping in view the interest of the public at large and the travelling passengers and that disciplinary actions are taken more as preventive measure so that it may work as an effective warning against other drivers to behave befitting their duties and maintaining due discipline in the establishment.9. Keeping that caution made by the Honourable Supreme Court in mind, if the case of the petitioner is analysed, there can be no two opinion that when the petitioner was responsible for the cause of the accident and as concluded by the first respondent/Labour Court that such accident was caused due to the rash and negligent driving of the petitioner, it would be highly unsafe for the second respondent corporation to continue to employ the petitioner in service as a driver, as the same would be detrimental to the interest of the public at large, namely, the road users. Therefore, I find no illegality in the award of the first respondent in order to interfere with the same in this writ petition. The writ petition, therefore, fails and the same is dismissed. No costs.