Quashed

Municipal Corpn. of Gr. Bombay v. General Secretary, Best Workers Union

Bombay HC11 Jul 2014WP/842/2008

Case brief

AI extract

What is this about?

A writ petition challenging an Industrial Court order that reinstated a bus driver dismissed for gross negligence. The High Court held the Industrial Court erred by reappreciating evidence using the wrong standard of proof and intervening in fact-finding where the Labour Court had found the enquiry fair.

What did the court decide?

The impugned order dated 16th August 2007 passed by the Industrial Court is quashed and set aside. The petition is allowed.

Municipal Corpn. of Gr. Bombay Vs General… — Pension and Retirement Benefits | Bombay HC (2014)

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DSS

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JUDGMENT WP-842-08

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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WRIT PETITION NO. 842 OF 2008

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Municipal Corporation of Greater ] Bombay, through General Manager ] Bombay Electric Supply and ] Transport Undertaking, having his ] office at BEST Bhavan, Colaba, ] Mumbai 400 001 ] .. Petitioner

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vs.

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General Secretary, ] BEST Workers Union ] A Trade Union registered under the ] Trade Unions Act, 1926, having its ] Office at 42, Kennedy Bridge, ] Mumbai 400 004 ] .. Respondents

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Mr. S. K. Talsania, Senior Advocate a/w. Mr. R. L. Singh i/b M/s. M.V. Kini and Co. for Petitioner. Ms Neeta Karnik for Respondent.

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CORAM : M. S. SONAK, J. (In Chamber)

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Judgment reserved on : 04 July 2014 Judgment pronounced on : 11 July 2014.

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JUDGMENT :-

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1] This petition is directed against the order dated 16^th August

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2007 passed by the Industrial Court, Mumbai in an appeal under

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Section 84 of the Bombay Industrial Relations Act 1946 (said Act),

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directing reinstatement of Shri. Haibatrao B. Dhembre (bus driver) with continuity of service and full back-wages.

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2] The factual matrix in which the aforesaid challenge arises is that on 10^th October 1999 at about 20.05 hours, public transport bus No.6074 in route No.67 collided with a Maruti car, almost head on near Chowpatty at Teen Batti bus stop. Both the public transport bus as well as the Maruti car suffered extensive damage. The Maruti car driver succumbed to the injuries. The bus driver was charge-sheeted on 26^th October 1999 for having committed misconduct under Standing Order 20(j), i.e., “ gross negligence ”. A domestic enquiry was conducted by Shri. Robert Fernandes, Senior Traffic Officer (Trying Officer), in which the bus driver was represented by Shri. Walke, Controller 23 (Wadala). On behalf of the employer, two witnesses came to be examined in the domestic enquiry. The bus driver examined himself, in defence. The Trying Officer recorded a conclusion that the charge was conclusively proved against the bus driver and on the said basis, the bus driver was dismissed from service by order dated 7^th April 2000. As indicated earlier, this petition is directed against the order dated 16 August 2007 which shall hereinafter be referred to as impugned order.

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3] The two statutory appeals against the order of dismissal to the Assistant Traffic Superintendent and Traffic Manager were also dismissed.

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4] The respondent-union, thereafter filed an application before the Labour Court for and on behalf of the bus driver invoking the provisions of sections 78 and 79 of the said Act, questioning the legality and propriety of the dismissal order dated 7^th April 2000. In the Labour Court, the respondent-union submitted a praecipe to the effect that they do not wish to lead any evidence on the aspect of fairness of the domestic enquiry. The Labour Court vide its order dated 24^th April 2003 held that the domestic enquiry was fair and proper, the findings recorded by the Trying Officer do not suffer from perversity and the penalty of dismissal is by no means shockingly disproportionate.

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5] The respondent-union appealed against the order dated 24^th April 2003 to the Industrial Court by invoking the provisions of Sections 84 & 85 of the said Act. The Industrial Court, by its order dated 16^th August 2007 (hereinafter referred to as impugned order) has upset the Labour Court's order dated 24^th April 2003 and has

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directed that the bus driver be reinstated with full back-wages and continuity in service. As indicated earlier, this petition is directed against the order dated 16^th August 2007 which shall hereinafter be referred to as impugned order.

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6] Heard Mr. S.K. Talasania, the learned Senior Advocate for the petitioner and Ms. Neeta Karnik, the learned Advocate for the Respondent.

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7] Mr. Talsania, the learned Senior Advocate for the Petitioner submitted that the respondent-union had stated in writing before the Labour Court that it does not desire to lead any evidence in the matter of fairness of the enquiry. On the said basis and upon evaluation of the material on record, the Labour Court had held that the enquiry was fair and proper and the findings recorded therein were not vitiated by perversity. In such circumstances, it was not open for the Industrial Court to record any finding that the driver was not negligent and to direct his reinstatement with continuity of service and full back-wages. Mr. Talsania, further submitted that in doing so the Industrial Court has applied the standard of proof applicable to a criminal trial, which is clearly impermissible. Further,

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Mr. Talsania submitted that from the material on record, it was clear that the doctrine of ' res ipsa loquitur' was attracted and therefore, the onus of establishing that the bus driver was not grossly negligent, lay squarely upon the bus driver. The circumstance that despite efforts, the employer was unable to examine the son of deceased Maruti car's driver, viz., Mr. Kalpesh Patel, could by no means have been treated as a denial of reasonable opportunity to the bus driver to cross-examine the said Mr. Kalpesh Patel. Admittedly, this is not a case where the employer has placed any reliance upon in the statement of said Mr. Kalpesh Patel, for the purposes of concluding that the charge of gross negligence stands proved against the bus driver. Mr. Talsania submitted that the entire approach of the Industrial Court was contrary to the law and consequently the impugned order suffers from errors apparent on the face of record as well as jurisdictional errors warranting interference of this Court in the exercise of its writ jurisdiction.

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8] Ms. Neeta Karnik, the learned counsel for the respondentunion on the other hand submitted that the Industrial Court, in passing the impugned order, has neither exceeded his jurisdiction, nor can the findings of fact recorded by it, be regarded as perverse.

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In this regard, Ms. Karnik placed reliance upon the decision of the learned Single Judge of this Court in the case of Rupee Co-operative Bank Limited vs. Shailesh V. Vaidya & Ors .¹ , in which it is held that the powers of the Industrial Court under Section 84 of the said Act while re-appreciating the evidence led before the Labour Court are not circumscribed only to exercise the power of judicial review. Ms. Karnik, after taking me through the material on record, submitted that the evidence of gross negligence recorded by the trying officer was indeed perverse and therefore the same was rightly interfered with by the Industrial Court. Ms. Karnik further submitted that the finding of fact recorded by the Industrial Court, being based upon the material on record ought not to be interfered with by this Court in exercise of powers under judicial review.

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9] This Court now proceeds to evaluate the contentions raised by the learned counsel for the respective parties.

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10] The material on record indicates that fatal accident took place on 10^th October 1999 between 8 to 8.15 p.m. near Teen Batti bus stop, Girgaon Chowpatty when the bus was going down the slope from Malabar Hill and the ill-fated Maruti car coming in the

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1 2007 (6) Bom. C.R. 265

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direction towards Malabar Hill. There is material on record that the breadth of the road at the accident spot was about 40 feet and the distance from the left tyre of the bus to the footpath, at the accident spot was about 16 feet. There is material on record that there was extensive damage, both to the bus as well as the Maruti car. The front right side corner of the bus was heavily damaged. The right side headlight and corner lights broken. The right side corner was pressed and iron sheet was torn. The bumper was damaged and pressed. The right side corner iron sheet was broken and had fallen down. The front side strip of the body was also detached from the bus body. The Maruti car was completely damaged and blood had collected in the car. The Maruti car driver sustained fatal injuries, about which there is no dispute.

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11] The circumstance that the distance between left tyre of the bus and the footpath was only about 16 feet, on a road the breadth of which was about 40 feet, does indicate that the bus had left its own lane and swerved over the painted divider line, at the time when the fatal accident took place. Besides, admittedly the bus was coming down the slope and the Maruti car climbing up the slope. The material on record also establishes that there were no brake or skid

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marks relatable to the bus at the accident site. The duty of care to be adopted by the bus driver in such circumstances, had to be naturally much greater. From the material on record, it does appear that the principle of ' res ipsa loquitur' is attracted and consequently the onus lay upon the bus driver to establish that there was no negligence on his part, which led to the fatal accident.

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12] In matters of domestic inquiries, it is settled position in law that the standard of proof to be applied is that of preponderance of probability, unlike in criminal trials where standard of proof to be applied would be that the offence is proved beyond reasonable doubt. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their ' neighbour'. The road accidents are one of the top killers in our country, specially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, to draw an initial presumption in several cases based upon the doctrine of ' res ipsa loquitur'.²

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2 N.K. V. Bros. (P) Ltd. vs. M. Karumai Ammal & ors.-(1980) 3 SCC 457

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13] The Trying Officer, upon consideration of the material on record came to the conclusion that the bus driver was guilty of gross negligence. The Trying officer has made note of the fact that despite efforts, Mr. Kalpesh Patel, the son of deceased Maruti car driver, who was said to be the following Maruti car could not be examined. No provision was brought to my notice, under which the Enquiry Officer or Trying Officer in the course of domestic enquiry can compel a witness to attend a domestic enquiry. In such circumstances, the finding of the Industrial Court that non-examination of Mr. Kalpesh Patel as a witness constitutes denial of opportunity to the bus driver to put forth his defence by way of cross-examination of the said witness, is clearly misplaced and unsustainable. In the case of Cholan Roadways Ltd. vs. Thirugnanasambndam³ the Supreme Court whilst invoking the principle of ' res ipsa loquitur' has held that there is no mandate to examine the passengers of a bus, which was involved in the accident in the course of domestic enquiry. In the said decision, the Supreme Court has also held that the correct standard of proof in relation to proof of domestic enquiry is ' preponderance of probability' and where, in a domestic enquiry, a standard of proof necessary in criminal trial came to be applied, a

3 (2005) 3 SCC 241

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case for judicial review is clearly made out.

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14] At a stage where, the Trying Officer (Enquiry Officer) on basis of the material on record had concluded that the bus driver was grossly negligent, the conclusion upheld by two statutory appellate authorities and finally by the Labour Court, there was really no occasion for the Industrial Court to re-appreciate the evidence by applying the incorrect test as to the standard of proof and come to the conclusion that there was no negligence on the part of the bus driver, primarily on the ground that the pieces of glass were found on the left side of the road, and in the opinion of the Industrial Tribunal, if the bus driver had indeed been negligent, the glass pieces would perhaps be found on the other side. Apart from the circumstance that there is absolutely no clarity in this reasoning, this was certainly not the ground on which the finding of fact, which came to be recorded by the Enquiry Officer, endorsed by at least two appellate authorities and finally upheld by the Labour Court could have been interfered with. Besides, the Industrial Court has not even adverted to the principle of ' res ipsa loquitur', which was clearly attracted in the facts and circumstances of the present case. This is one of the cases where ' the accident speaks for itself ' and

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consequently since the factum of accident is admitted, the onus was upon the bus driver to establish that the accident took place for some reasons other than the own negligence. In a case of this nature, the probative value of the evidence showing the extensive damage caused both to the bus and Maruti car, the circumstances that the bus in question was going down the slope and the Maruti car in the opposite direction, the circumstance that the distance between left wheel of the bus and the footpath was about 16 meters, the circumstance that Maruti car had blood in it and the Maruti car driver succumbed to the injuries sustained, the circumstance that there were no brake or skid marks relatable to the bus at the accident site, were sufficient to attract the principle of ' res ipsa loquitur'. If therefore , the bus driver was serious about the defence that there was no negligence on his part, and it is the Maruti car driver who was negligent and consequently responsible for the accident, then it was for the bus driver to have established this aspect in the course of domestic enquiry. There is no question of denial of principle of natural justice or denial or an opportunity to cross-examine Mr. Kalpesh Patel, as the material on record establishes that the petitioner did make efforts to require Mr. Patel to depose in the course of domestic enquiry and more importantly

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no reliance whatsoever has been placed upon any statement that may have been made by the said Mr. Kalpesh Patel in recording the conclusion of the bus driver's gross negligence.

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15] In the case of North-East KRTC vs. Devidas Manikrao Sadananad⁴ the Supreme Court interfered with the order made by the Labour Court in a matter where the offending bus ran into another bus resulting in injuries to the fifty six passengers and death of four lives, on the ground that the Labour Court in such a situation erred in not invoking the doctrine of ' res ipsa loquitur'. The Supreme

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Court by reference to its earlier decision in the case of Shyam Sunder v. State of Rajasthan⁵ held that the fact of accident may constitute evidence of negligence and in such cases, the maxim res ipsa loquitur would apply . The principal function of the maxim is to prevent injustice which would result if the management is compelled to prove the precise cause of the accident, particularly, when the respondent driver has knowledge of the cause of the accident.

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16] In the case of Basthi Kasim Saheb vs. Mysore State Road Transport Corporation & others⁶ , the Supreme Court noted that the

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4 (2006)8 SCC 52

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5 (1974) 1 SCC 690

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6 (1991) 1 SCC 298

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evidence in that case indicated that no untoward events took place like sudden failure of brakes or unexpected stray cattle coming in front of the bus at the time of accident. In the absence of any unexpected development, it was for the driver to have explained as to how this happened and as no explanation was forthcoming, the principle of ' res ipsa loquitur' applies .

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17] Though in the context of prosecution under section 304-A of Indian Penal Code, the Supreme Court in the case of Thakur Singh vs. State of Punjab⁷ quoted with approval its previous decision in the case of Dalbir Singh v. State of Haryana⁸ , when a plea to apply the probation of offenders Act was raised, by observing thus:

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“13. Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, criminal courts cannot treat the nature of the offence under Section 304-A IPC as attracting the benevolent provisions of Section 4 of the Probation of Offenders Act. While considering the quantum of sentence to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence. A professional driver pedals the accelerator of the automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion. He cannot and should not take a chance thinking that a rash driving need not necessarily cause any accident; or even if any accident occurs it need not necessarily result in

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7 (2003) 9 SCC 208

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8 (2000) 5 SCC 82

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the death of any human being; or even if such death ensues he might not be convicted of the offence; and lastly, that even if he is convicted he would be dealt with leniently by the court. He must always keep in his mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of the vehicle he cannot escape from a jail sentence. This is the role which the courts can play, particularly at the level of trial courts, for lessening the high rate of motor accidents due to callous driving of automobiles.”

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18] Ms. Karnik, is right in her submission that the Industrial Court while exercising the appellate powers under Section 84 of the said Act can always review the entire evidence on record, reassess the same and draw its own conclusions. However, in this case it is to be noted that the respondent-union had filed a praecipe on the record of the Labour Court to the effect that it does not desire to lead any evidence on the aspect of fairness of a domestic enquiry. Based upon the same, together with the material in the form of evidence in the course of the domestic enquiry, the Labour Court had held that the findings recorded by the Trying Officer as to the gross negligence of the driver, were not perverse. In doing so, the Labour Court had rightly adverted to the standard of proof applicable in case of domestic enquiries, which is preponderance of probabilities . The Industrial Court, was therefore obliged to focus itself upon the issue as to whether the reasoning of the Labour Court, was itself perverse.

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The Industrial Court, instead has virtually acted as appellate authority over the findings recorded by the Trying Officer. This is clearly impermissible, even if the provisions of Section 84 of the said Act are most liberally construed. It is open for the Industrial Court to review the entire evidence on record before the Labour Court and to draw its own conclusions when deciding an appeal under Section 84 of the said Act, however such amplitude does not extend to reassessing the entire material before the Enquiry Officer (Trying Officer) and disturb findings of fact, unless the same are established as being perverse. Besides, from the manner in which the Industrial Court has re-appreciated the material before the Trying Officer, it does appear that the Industrial Court has applied the incorrect test in the matter of standard of proof in domestic enquiries. Thus, the impugned order warrants interference.

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19] Accordingly, the impugned order is quashed and set aside and

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the Rule is made absolute in terms of prayer clause (a). In the facts and circumstances of the present case, there shall be no order as to costs.

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(M. S. SONAK, J.)

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Dinesh

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Municipal Corpn. of Gr. Bombay v. General Secretary, Best Workers Union

Case brief

What is this about?

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Municipal Corpn. of Gr. Bombay v. General Secretary, Best Workers Union

Case brief

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What did the court decide?

What the court decided

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