Hanumantharayapa Vs the Chief Traffic Manager

THIS WRIT PETITION IS FILED UNDER ARTICLES PRAYING TO QUASH THE IMPUGNED AWARD DTD.22.1.2013 PASSED BY THE LEARNED PRESIDING OFFICER, INDUSTRIAL TRIBUNAL, BENGALURU IN I.D.NO.38/2010, VIDE ANNEX-A AND CONSEQUENTLY ALLOW THE REFERENCE AS PRAYED FOR, BY ALLOWING THIS WRIT PETITION.

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THIS PETITION, COMING ON FOR HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE ANANT RAMANATH HEGDE

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ORAL ORDER

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This Writ Petition is filed challenging the award dated 22.01.2013 in Industrial Dispute No.38/2010 before the Industrial Tribunal at Bengaluru.

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In terms of the impugned award, the reference is answered in the affirmative and punishment imposed on the petitioner/employee, the driver of respondent-Corporation is upheld. In the Departmental enquiry, the petitioner is found guilty and respondent/employer has imposed the penalty by reducing his basic pay by three annual increments with cumulative effect.

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Learned counsel for the petitioner would contend that the charge levelled against the petitioner who was the driver of the bus, when the accident took place that he was driving the bus without closing the door. Though it is proved, he would contend that because of a mechanical defect, hydraulic door which was operated through a switch would not close and this fact is not noticed by the Industrial

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Tribunal. It is his contention that the allegation against the driver that he has pulled down the wire after the accident to take a defence that the accident has taken place on account of the mechanical defect in the bus is not established, as the technician who is said to have given a report that the wire was pulled by the driver is not examined. Thereby, the petitioner is deprived an opportunity to cross-examine the technician. He would contend that the entire departmental proceeding and the finding is erroneous and the Industrial Tribunal did not appreciate the evidence on record in a proper perspective, and failed to consider the materials on record which establish that the petitioner is not negligent in the incident referred to in the charge.

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Learned counsel appearing for the respondent on the other hand would contend that the driver/petitioner was driving the bus without closing the door and he was responsible for closing the doors. The bus had the facility of hydraulic door which had to be operated by the driver. Instead of driving the vehicle after closing the door, he was driving the bus without closing the door. In the process, a

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person tried to board the bus and he fell down and died in the accident and accordingly charge is framed against the driver in the departmental enquiry. It is also his submission that the report would disclose that the driver after the accident to cover-up his negligence has disconnected the wire to take a contention that there was a mechanical defect in the bus because of which the driver could not close the door.

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This Court has considered the contentions raised

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at the bar and perused the records.

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The following points would arise for

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consideration:

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(a) Whether the petitioner establishes that the impugned order passed by the Industrial Tribunal is erroneous and calls for interference in exercise of power under Article 227 of Constitution of India?

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(b) Whether the punishments imposed on the petitioner is just and proper?

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As noticed from the records, charge is framed against the petitioner alleging that on 24.07.2006 while driving the bus, the petitioner was negligent and without closing the door, he drove the bus and in the process, a person tried to board the moving bus and met with an accident and succumbed to the injuries. It is also alleged that the driver in order to cover up his negligence deliberately pulled the wire attached to the switch, which is used to operate the door.

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On perusal of the records, it is also noticed that

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there is no dispute that a person tried to board the bus, when the bus was moving. It is also an admitted fact that the door was open when the bus was moving. This is apparent from the fact that the petitioner has raised a defence that the door could not be closed as there was a mechanical defect.

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Now the question is whether the petitioner was negligent. Even assuming that there was a mechanical defect and for that reason, the door could not be closed, the petitioner was not supposed to drive the bus with doors

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open. He should have stopped the bus and he should have tried to manually close the door. It is not the case of the petitioner that he made such an attempt.

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The employer/respondent has also examined the

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concerned depot manager to substantiate the contention that the driver pulled the wire of the switch used to operate the door, to cover up his act of negligence. Though the learned counsel for the petitioner would urge that the technician, who reported that the wire was pulled by the driver was not examined to substantiate the contention, what is required to be noticed is that the report is produced and the same is marked at Ex.M7. The said report is dated 25.07.2006, and the accident took place on 24.07.2006. On going through the cross-examination and other evidence, it is very much evident that the said report is not seriously disputed. This being the position, this Court is of the opinion that the driver was negligent and he was driving the bus without closing the door is very much established. The defence that there was mechanical defect and for this reason, the door could not be closed is not established. As already noticed, even assuming

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that there was a mechanical defect that is not a valid reason for the driver to drive the bus with doors open. As already observed, the bus should have been stopped and the driver should have made an attempt to close the door manually. Hence point No.1 is answered in the 'negative'.

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As far as the proportionality of the punishment is concerned, learned counsel for the petitioner would urge that the penalty imposed is harsh and there could not have been a penalty of withholding three annual increments with cumulative effect.

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Learned counsel for the petitioner would also contend that the accident took place on account of the negligent act of the person, who tried to board the moving bus, as such it is a case of contributory negligence at the worse and this factor has been completely overlooked by the Disciplinary Authority as well as the Industrial Tribunal.

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Learned counsel for the respondent would contend that the accident would not have occurred in case the petitioner had driven the bus after closing the door.

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Though the contention that the accident would not have occurred in case the petitioner had driven the bus after closing the door sounds attractive, what is also required to be noticed is merely because the door was open, the person who wanted to get into the bus should not have ventured to board the bus, which was moving.

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Thus this Court is of the view, that the facts and circumstances would clearly indicate that it is a case of contributory negligence. To what extent the petitioner contributed and to what extent the victim contributed for the cause of the accident may not be relevant, but this is a case of contributory negligence. This factor has not been taken into account, while imposing the penalty. The Disciplinary Authority has completely overlooked this aspect as well as the Industrial Tribunal has not bestowed its attention to the contention relating to the contributory negligence. For the aforementioned reason, this Court is of the view that punishment imposed is harsh and disproportionate to the act of negligence, which is proved against the petitioner.

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As already noticed, the employer/management has imposed the penalty by reducing the basic pay by three annual increments with cumulative effect. As already held by this Court, this is a case of contributory negligence and this being the position, the punishment has to be reduced.

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The incident in question took place in the year 2006. The petitioner as can be seen from the age mentioned in the cause title is now aged 58 years. Under these circumstances, instead of remitting the matter to the respondent for considering the appropriate punishment, this Court is of the view, that the Court has to substitute the appropriate punishment and accordingly this Court is of the view, that the increment has to be reduced in the basic pay of the petitioner by two annual increments with cumulative effect, instead of three annual increments as ordered by the Disciplinary Authority and up-held by the Industrial Tribunal, Bengaluru.

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