Allowed

Subbian v. the Presiding Officer

Madras HC4 Oct 2013WP/33115/2003

Case brief

AI extract

What is this about?

The court allowed a writ petition challenging dismissal from service. It held that an employer cannot take a contradictory stance in departmental proceedings after defending the employee before judicial forums regarding negligence. Furthermore, failure to examine eye-witnesses vitiated the inquiry, leading to the quashing of the dismissal order.

What did the court decide?

Labour Court award set aside; petitioner granted 50% back wages with continuity of service as he has attained superannuation age.

Subbian Vs the Presiding Officer — Labour and Industrial Disputes | Madras HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED:- 04-10-2013

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CORAM:

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THE HONOURABLE MR.JUSTICE K.RAVICHANDRABAABU

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W.P.No.33115 of 2003

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Subbian ... Petitioner

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Versus

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The Presiding Officer, Labour Court, Coimbatore.

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The General Manager Tamilnadu Government Transport Corporation Ltd., Mettupalayam Road Coimbatore. ... Respondents

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Prayer: Writ Petition filed under Article 226 of the Constitution of India for the relief of issuance of writ of certiorarified mandamus to call for the records concerning I.D.No.189/96 dated 13.3.2003 passed by the Presiding Officer, Labour Court, Coimbatore and quash the same and to direct the second respondent to reinstate the petitioner in service with continuity of service and with 50% backwages.

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For Petitioner :- Mr.R.Balasubramanian

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For Respondents :- Mr.V.R.Kamalanathan (R2)

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The workman is the writ petitioner. He is aggrieved against the order of dismissal from service confirmed by the Labour Court.

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The case of the petitioner is as follows:-

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He joined the second respondent Transport Corporation on 15.10.1977 as a driver. When he was driving the bus bearing Registration No. TCP 1355 on 28.8.1990 from Tirupur to Mettupalayam, at about 8.40 a.m., a cyclist who was riding in front of the bus suddenly crossed the road from left to right and dashed against the bus. Thus, he sustained injury and even

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though he was taken to the Government Hospital for treatment, he died. The petitioner was not responsible for the said accident. The petitioner informed the management about the occurrence. The second respondent suspended the petitioner on 30.8.1990. Thereafter, after issuing a charge memo and conducting domestic enquiry, the petitioner was dismissed from service on 19.3.1991. Aggrieved against the same, he raised an industrial dispute in I.D.No. 189 of 1996 on the file of the Labour Court, Coimbatore, which came to be dismissed on 13.3.2003. In the meantime, criminal proceedings were also initiated against the petitioner and the learned Judicial Magistrate after analysing the evidence and the circumstances of the case acquitted the petitioner by holding that the charge framed against him as not proved.

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Learned counsel Mr.R.Balasubramanian appearing for the petitioner submitted as follows:-

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The legal heirs of the deceased filed MCOP No. 49 of 1991 on the file of the Motor Accidents Claims Tribunal, Tirupur, claiming compensation for the death of the said cyclist by name Rasappan. In the said proceedings, the management took a stand that the petitioner herein viz., the driver of the bus was not at fault and it was only due to the fault of the deceased the accident took place. It was their specific stand before the Motor Accidents Claims Tribunal that the petitioner was not driving the vehicle either rashly or negligently. The management having taken such a stand cannot take a different stand in the departmental proceedings. The Criminal Court also acquitted the petitioner in C.C.No.259 of 1992. The management did not examine either the conductor or any other eye witness to prove the guilt.

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In support of his submissions, the learned counsel relied on the following decisions:-

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Tamil Nadu State Transport Corporation (Kumbakonam Dn-II) Vs. P.Karuppusamy (2008 (1) MLJ 694 )

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Management, Pallavan Transport Corporation Vs. Moorthy and another (2011 (2) LLJ 87 ( Mad)

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In Pandian Roadways Corporation Ltd., Vs Presiding Officer, Additional Labour Court, Madurai and another (2002 (1) LLN 348),

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Management of Cheran Transport Corporation Ltd., Vs. Presiding Officer, Industrial Tribunal, Madras and another (2002 (1) LLN 388)

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Management of Jeeva Transport Corporation Ltd., Vs. Presiding Officer, Industrial Tribunal of Tamil Nadu and another (2002 (2) LLN 704)

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Per contra, the learned counsel appearing for the management submitted as follows:-

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The finding of the criminal court will not bind the labour court or the department. The examination of eye witnesses is not necessary since the accident itself spoken for itself. The petitioner had committed two accidents within a period of five months. The Motor Accident Claims Tribunal found the petitioner as guilty for his rash and negligent driving. Therefore, the learned counsel supported the order of dismissal from service and he relied on a decision of the Apex Court reported in 2005 (3) SCC 241 ( Cholan Roadways Ltd., Vs.G.Thirugnanasambandam) in support of his submission.

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Heard both sides.

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The petitioner was employed as a driver of the second respondent Corporation. While he was driving the bus on 28.8.1990, an accident took place which had resulted in the loss of life of a cyclist by name Rasappan. According to the petitioner, the deceased was responsible for the said accident as he had suddenly crossed the road. Thus, his contention is that he was not driving the vehicle either rashly or negligently. The legal heirs of the said deceased filed a claim petition in M.C.O.P.No. 49 of 1991 before the Motor Accident Claims Tribunal (Sub Court), Tirupur. The petitioner was arrayed as first respondent and the second respondent herein was arrayed as second respondent therein. The stand of the second respondent therein was that the accident took place only due to the fault of the deceased and that the petitioner herein did not drive the vehicle either rashly or negligently. No doubt, the said stand taken by the second respondent was negatived by the Tribunal and consequently a compensation of Rs. 1,05,000/- was awarded to the claimants therein. Thus, the stand taken by the management before the Motor Accident Claims Tribunal is crystal clear that the petitioner herein was not responsible for the accident as he was not driving the vehicle rashly or negligently. Having taken such a stand before the Motor Accident Claims Tribunal, whether the second respondent is entitled to proceed departmentally against the petitioner by taking a different stand as if the petitioner was responsible for the accident is the core issue to be considered and decided in this case. The very same issue was considered by the Hon'ble Division Bench of this Court in a decision reported in 2008 (1) MLJ 694 (Tamil Nadu State Transport Corporation (Kumbakonam Dn-II) Vs. P.Karuppusamy). The relevant paragraphs 23 and 24 are extracted hereunder:-

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"23. Learned counsel for the respondent also garnered support from a decision of the Apex Court in Kali Prasad v. Dy.Director of Consolidation, AIR 2000 SUPREME COURT 3722, for a legal proposition that the finding recorded by the civil court on the question of jurisdictional fact is binding on the parties to the suit. He further

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placed reliance upon a decision of the Supreme Court in Venkatappa alias Moode v. Abdul Jabbar, 2006 (9) Supreme Court Cases 235, in which it was decided that the parties are bound by the pleadings in the statements filed by them and they cannot be permitted to put forth a new case.

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The principles laid down in the aforestated rulings are squarely applicable to the facts of the present case. The appellant Corporation, having taken a plea that the driver of the bus was not responsible for the accident, could not turn around to say that he was responsible for the accident. As such, it is very much bound by the pleadings raised by it before the Tribunals and this Court. The law is well settled as to the aspect that the standard of proof in both the proceedings before the criminal court and the domestic enquiry officer are entirely different. However, since the Corporation has consciously raised the contention in favour of the bus driver before the judicial fora, it is precluded from proceeding against him in departmental proceedings. Though the extent of proof is sufficient to the commission of delinquency in the matter of departmental proceedings, the management could not lay its hands on the workman, detrimental to his interest, after defending him before various judicial fora and accepting the findings of the Motor Accident Claims Tribunal, Karur. .."

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The said decision of the Division Bench was subsequently followed by another learned single Judge of this Court in a decision reported in 2011 (2) LLJ 87 ( Mad) ( Management, Pallavan Transport Corporation Vs. Moorthy and another) wherein at paragraph 30 the learned Judge has observed as follows:-

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"30. There is one other glaring instance in this case. Admittedly, before the Motor Accidents Claims Tribunal, in the claim petition filed against the petitioner Corporation, on behalf of the jpersons injured who had traveled in the ambassador car, the petitioner Corporation took a specific stand that the first respondent driver was not negligent and the same was marked as Ex.C1. Having taken such a stand before a judicial forum, the petitioner has chosen to frame the charge of negligence against the first respondent, which is a total contradiction in the stand of the petitioner management. In such

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circumstances, the presumption under res ipsa loquitur cannot have any application at all."

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Thus, from the above decision of the Division Bench which has been subsequently followed by another learned single Judge, it is crystal clear that the respondent Corporation having taken a specific stand before the Motor Accident Claims Tribunal to the effect that the petitioner herein was not negligent in driving the vehicle cannot take a totally contradictory stand against the petitioner on the very same cause of action to initiate the departmental proceedings by charging him as if he was responsible for committing the accident due to his rash and negligent driving. The employer can not blow hot and cold. They can not take different stand before different forum to suit their convenience. If such practice is given an approval it would, in effect, encourage the misleading of facts before the judicial forums. Therefore, by following the decision of the Hon'ble Divison Bench and the decision of the learned single Judge as stated supra, I hold that the second respondent Corporation is not entitled to take a different stand against the petitioner to hold a departmental proceedings in respect of the very same accident.

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The learned counsel for the petitioner also contended that the award of the Labour Court is liable to be set aside also on another ground that there was no specific finding rendered by the Labour Court on the question of rash and negligent driving. As rightly contended by the learned counsel, a perusal of the order of the Labour Court would show that there is no specific finding rendered to the effect that the accident had taken place onlydue to the rash and negligent driving of the petitioner. The Labour Court sustained the order of punishment only on the reason that due to the accident a person has lost his life and that the petitioner had committed the accident once again after he was reinstated in service after the period of suspension. In my considered view, such finding rendered by the Labour Court cannot be sustained in view of the decision rendered by the Hon'ble Division Bench in Tamil Nadu State Transport Corporation (Kumbakonam Dn-II) Vs. P.Karuppusamy (2008 (1) MLJ 694 ) as stated supra since the very charge levelled against the petitioner has to go as the respondent Corporation is precluded from taking a different stand. Once the charge is found to be unsustainable, the consequent enquiry conducted and follow up punishment ordered are also not sustainable. It is also a fact that the management has not examined any eye witness viz., neither the conductor nor any other eye witness on behalf of the management.

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At this juncture, the decisions relied on by the learned counsel for the petitioner can be usefully referred to hereunder.

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(i). In Pandian Roadways Corporation Ltd., Vs Presiding Officer, Additional Labour Court, Madurai and another (2002 (1) LLN 348), the Hon'ble Division Bench of this Court has observed at paragraph 9 that in the absence of any explanation for not examining the eye witness, no reliance can be given to the uncorroborated evidence of the management witness therein. The relevant paragraph 9 is extracted hereunder:-

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Shri K.Chandru, learned Senior Counsel for the second respondent, relied on a decision in Jeeva Transport Corporation Ltd., Vs. Industrial Tribunal and another reported in 1993 (1) LLN 870. In the said case which is a similar one, the conductor of the bus was not examined as a witness. He was a p[erson present at the spot of the accident and he could have given direct evidence as to how the accident happened. Apart from the conductor, there was another person who had witnessed the accident as is evident from the first information report given to the police. The person who gave complaint could have examined as a witness. As in our case, without examining any one, the management relied on only the evidence of the Engineer who was not a eye witness. There also the Engineer was only drawing inference from the tyre marks on the road and other physical features. In the light of the said infirmity, the learned Judge confirmed the finding of the Tribunal and refused to interfere under Article 226 of the Constitution of India at the instance of the transport Corporation. We agree with the said conclusion. As rightly contended, absolutely there is no explanation from the appellant-transport corporation for not examining the conductor, or the person who made complaint to the police or one of the persons standing near the accident spot or the persons who travelled in the bus. In the absence of any explanation for not examining them, no reliance can be given to the evidence of the uncorroborated testimony of the Assistant Engineer. "

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(ii) In Management of Cheran Transport Corporation Ltd., Vs. Presiding Officer, Industrial Tribunal, Madras and another (2002 (1) LLN 388), a learned single Judge of this Court has held at paragraph 16 as follows:-

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"16.1 In Jeeva Trasnport Corporation Ltd., Vs. Industrial Tribunal, Madras reported in 1993 (1) LLN 870, M.Srinivasan, J as he then

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was held, in Para 6 at page 871 that :

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"... the Tribunal is entitled to consider whether the findings of the domestic enquiry officer is perverse or not. While doing so, the obligation on the part of the Tribunal is not to weigh or reappreciate the evidence for itself, but to examine the findings of the enquiry officer on the evidence of the domestic enquiry as it is, in order to find out whether there is a prima facie case; or if the findings are perverse, which renders essential to see whether the eye-witnesses, who alone could speak about the rash and neligent act of the employee, were examined or not."

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16.2. R.R.Jain, J in Cholan Roadways Corporation Ltd., V. Industrial Tribunal, Madras and another by order, dated 14 August 1997, made in Writ Petition No.12383 of 1986 held that in acase where the workman is charged for a rash and negligent act, the persons present on the site of accident alone can speak about the occurrence and as the management failed to examine any such eye-witness, the findings of the enquiry officer cannot be sustained.

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16.3. Similarly, in Cheran Transport Corporation Ltd, Coimbatore Vs. K.S.Palanisamy and another by order dated 23 February 1998, in Writ Petition No. 1554 of 1989, V.S. Sirpurkar,J. Held that where the management failed to examine anybody who had seen the accident, the findings of the enquiry officer cannot sustain.

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16.4 In the light of the decision referred to above, as it is not in dispute that the petitioner – management had not examined any eye-witness before the enquiry officer, the finding arrived at by the enquiry officer itself is not sustainable in law for want of legal evidence."

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(iii) In Management of Jeeva Transport Corporation Ltd., Vs. Presiding Officer, Industrial Tribunal of Tamil Nadu and another (2002 (2) LLN 704) , another learned single Judge of this Court has held at paragraphs 8 to 10 as follows:-

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"8. The learned counsel, relied on the judgement of Sri M.Srinivasan, J., as he then was in Jeeva Transport Corporation Ltd., Vs. Industrial Tribunal and another (1993 (1) LLN 870). Reference is made to Para 3 in the judgment, which deals with an identical

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situation. The conductor of the bus was not examined as a witness. There was another person, who had also witnessed the accident, but had not been examined. On the other hand, the enquiry officer has relied only on the report of the Engineer who was not an eye witness. In these circumstances, the learned Judge held that the Tribunal disagreeing with the enquiry officer was quite justified.

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Further reference is made to another judgment of the same learned Judge in W.P.No. 11316 of 1984, dated 21 April 1995, Pattukottai Azagiri Transport Corporation Ltd., V. Shanmugavel. In that case, a witness who was examined on the side of the worker was not cross-examined and the learned Judge had observed that the said circumstance was rightly taken into account by the Tribunal to hold that the enquiry officer's report was vitiated by perversity.

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I have considered the submissions of both sides. I have also perused the enquiry Officer's findings. It is no doubt true, that the enquiry officer has found that the claim of the driver that the victim had suddenly crossed the road was without any substance. The more relevant issue to be considered in this case is that no eye witness had been examined on the side of the management. Added to the same, a perusal of the Tribunal's order shows that the conductor though not examined has given a report on the same day. Even according to the statement of the conductor, the victim was standing on the left side of the bridge and that he suddenly crossed the road. The report of the conductor supports the claim of the delinquent. But on the other hand, in the enquiry report, it is seen that the enquiry officer had concluded that the victim had crossed the road from the right side of the road. This finding is contrary to the report of the conductor himself. "

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A perusal of all these decisions would go to show that the nonexamination of the eye witness, more particularly, the conductor of the bus is fatal to the department/ prosecution .

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The learned counsel for the second respondent Corporation no doubt relied on the decision reported in Cholan Roadways Ltd., Vs. G.Thirugnanasambandam (2005 (3) SCC 241) to contend that there is no necessity for examining the eye witness when the

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accident speaks for itself. There is no quarrel about the said proposition. But the said principle viz., "res ipsa loquitor" i.e. "speaks for itself" cannot be applied uniformly in all cases to contend that there is no necessity for examination of an eye witness. Certainly, each and every case has to be considered on its own merits by taking into consideration of the facts and circumstances of that case. In the case on hand, we have to bear it in mind that the management has taken a stand before the Motor Accident Claims Tribunal that the petitioner has not driven the vehicle in a rash and negligent manner. Apart from the said fact, the Criminal Court has also acquitted the petitioner in C.C.No.259 of 1992 by holding that the prosecution has not established the guilt against the petitioner under Sections 279 and 304 A of the Indian Penal Code. These two factors undoubtedly stand against the management and consequently they cannot be permitted to say that the non-examination of the eye witness will not be fatal to the prosecution. Hence, the above decision of the Apex Court is not helpful to the second respondent.

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Considering all these facts and circumstances, I am of the view that the petitioner in this writ petition is entitled to succeed and accordingly the writ petition is allowed and the award of the Labour Court in I.D.No. 189 of 1996 is set aside. At the time of filing the writ petition, the petitioner was 55 years old. So by this time he would have attained the age of superannuation. Therefore, there is no question of reinstating him in service consequent upon the order passed in this writ petition. Considering this position, I am of the view that the petitioner should be given 50% back wages with continuity of service. Accordingly, the second respondent is directed to disburse 50% of the back wages and all the pensionary benefits to the petitioner within a period of eight weeks from the date of receipt of a copy of this order.

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