Allowed

D.Prasad, Driver v. the General Manager

Madras HC11 Sept 2014WP/6311/2014

Case brief

AI extract

What is this about?

The High Court allowed a workman's writ petition for reinstatement and dismissed the Transport Corporation's challenge against the rejection of a dismissal approval petition. The court held there was no prima facie case of negligent driving and the salary payment was insufficient under Section 33(2)(b).

What did the court decide?

Writ petition No. 6311 of 2014 for reinstatement is allowed; Writ petition No. 15568 of 2014 challenging the rejection of approval is dismissed.

D.Prasad, Driver Vs the General Manager — Pension and Retirement Benefits | Madras HC (2014)

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IN THE HIGHCOURT OF JUDICATURE AT MADRAS

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DATED : 11.09.2014

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CORAM:

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THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN

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W.P.Nos.6311 and 15568 of 2014 and

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M.P.Nos.1 and 2 of 2014 in
W.P.No.15568 of 2014
W.P.No.6311 of 2014
D.Prasad ... Petitioner
Vs.
1.The General Manager,
Metropolitan Transport Corporation,
(Chennai) Limited, Pallavan Illam,
Anna Salai, Chennai – 600002.
2.The Special Assistant Commissioner of
Labour, Teynampet,
Chennai – 600 006. ... Respondents
W.P.No.15568 of 2014
The General Manager,
Metropolitan Transport Corporation
Chennai Limited,
Pallavan Illam, Anna Salai,
Chennai – 600 002. ... Petitioner
vs.
1.The Special Joint Commissioner of Labour,
Teynampet, Chennai – 600 006.
2.D.Prasad ... Respondents

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Writ Petition No.6311 of 2014 filed under Article 226 of the Constitution of India for the issuance of a Writ of Mandamus directing the respondent to issue orders of reinstatement with continuity of service and other benefits applicable to the petitioner as per orders passed by the Deputy Commissioner of https://hcservices.ecourts.gov.in/hcservices/

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Labour (Conciliation), Thenampet, Chennai in Approval Petition No.234 of 2012 dated 18.10.2013 within a time frame.

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Writ Petition No.15568 of 2014 filed under Article 226 of the Constitution of India for the issuance of a Writ of Certiorari to call for the records of the order passed by the first respondent in Approval Petition in A.P.No.234 of 2012 dated 18.10.2013 and to quash the same as illegal.

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Mr.R.Y.George Williams: for Petitioner in W.P.No.6311 of 2014 and for 2^nd respondent in W.P.No.15568 of 2014

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Mr.P.Paramasiva Doss : for petitioner in W.P.No.15568 of 2014 Standing Counsel for and for 1^st respondent in Transport Corporation W.P.No.6311 of 2014

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Mrs.M.E.Raniselvam, : for 1^st respondent in W.P.No.15568 of Addl.Govt.Pleader 2014 and for 2^nd respondent in W.P. No.6311 of 2014. COMMON ORDER

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W.P.No.6311 of 2014

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The petitioner in W.P.No.6311 of 2014 is the workman employed by the respondent. In respect of an accident that took place on 27.06.2014, a domestic enquiry was conducted and the enquiry officer found that the charges levelled against the petitioner/workman was proved and as industrial dispute was pending, at that time, before Special Deputy Commissioner of Labour, Teynampet, Chennai, the management/respondent in W.P.No.6311 of 2014 filed Approval Application under Section 33(2) (b) of the Industrial Disputes Act 1947 seeking approval of their action to dismiss the petitioner/workman by paying him his one month last drawn salary and that Approval Application No.234/2012 was rejected by the Special Deputy Commissioner of Labour, Teynampet, Chennai by order dated 18.10.2013. Therefore, the petitioner/workman filed W.P.No.6311 of 2014 seeking for a direction to direct the first respondent/management to reinstate him with continuity of service and other benefits applicable to the petitioner.

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W.P.No.15568 of 2014

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The management filed this Writ Petition challenging the order of the Special Deputy Commissioner of Labour, Teynampet, Chennai, rejecting Approval Application No.234 of 2012 dated 18.10.2013.

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With the consent of both parties, both the Writ Petitions were heard together and common order is passed. In this order, the parties are referred as Workman and Management.

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https://hcservices.ecourts.gov.in/hcservices/

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It is the case of the management that the workman was driving the bus belonging to the management / Transport Corporation and, on 27.6.2012, at about 1.40 p.m., when the workman was driving the bus over Anna Flyover, proceeding from Broadway to Vadapalani, and while turning the vehicle towards left to go to cloverleaf road, he drove the vehicle in a rash and negligent manner and dashed against parapet wall and the vehicle was found hanging from the bridge and 46 passengers sustained injuries and therefore, the petitioner was suspended by order dated 28.06.2012 and a charge memo dated 31.06.2012 was issued against the petitioner and an enquiry was conducted and in the enquiry, sufficient opportunity was given to the workman to participate and to let his evidence and to cross-examine the witness adduced by the management. The workman also gave evidence and in the enquiry, the principles of natural justice was followed and the enquiry officer, on the basis of the materials placed before him in the enquiry, found that the workman drove the vehicle in a rash and negligent manner and by reason of that, he brought disrepute to the management and also income loss and the petitioner also by his misconduct made passengers to sustain the injuries. Therefore, on the basis of the finding of the enquiry officer, the second show cause notice dated 5.10.2012 was issued to the workman calling for his explanation and the workman submitted his explanation on 13.10.2012 and as the explanation was not acceptable, the management decided to dismiss the workman from service and passed a dismissal order dated 18.10.2012 by enclosing a cheque for the last drawn monthly salary of Rs.21,525.25 and applied for approval by filing an Application under Section 33(2)(b) of the Industrial Disputes Act 1947 before the Special Deputy Commissioner of Labour, Teynampet, Chennai, and the approval was rejected and hence, the management filed W.P.No.15568 of 2014.

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The workman in his affidavit filed in support of the Writ Petition No.6311 of 2014 stated that the accident was not due to rashness and negligent driving of the vehicle and at that point of time, he was ascending Anna Flyover and while taking left to the cloverleaf road, the driver seat suddenly gave way and he had fallen inside the bus and therefore, he was not able to effectively control the bus. Nevertheless, he applied brake and despite the best efforts taken by him, the bus dashed against the parapet wall of the bridge and therefore, he had not driven the vehicle rashly and negligently as contended by the management. He further submitted that in the enquiry, the management examined only the enquiry officer appointed by the management who came to the spot after the accident had taken place and no passenger or other person was examined to prove that the vehicle was driven in a rash and negligent manner on that day and the management witness only

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https://hcservices.ecourts.gov.in/hcservices/

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marked some documents and those documents should not have been relied upon without examining the author of those documents and therefore, there is no legal evidence to come to the conclusion that the workman was guilty of rash and negligent driving of the bus and the enquiry officer without considering all these aspects and without considering the evidence of management witness that he did not give any material regarding rash and negligent driving of the bus by the workman, erroneously came to the conclusion that the workman drove the vehicle rashly and negligently and there is no prima facie evidence to arrive at such a conclusion and the enquiry officer did not consider the explanation given by the workman immediately after the accident stating that the driver seat on which he was seated suddenly gave way and he fell inside the bus and therefore, he was not able to control the vehicle effectively and the Special Deputy Commissioner of Labour held that the report of the enquiry officer cannot be accepted as there is no prima facie material against the workman to arrive at the conclusion that he was driving the vehicle rashly and negligently on that date and refused to grant permission. He therefore submitted that the workman is entitled to reinstatement with continuity of service and back wages and for that purpose, he filed Writ Petition No.6311 of 2014.

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Mr.P.Paramasiva Doss, learned counsel appearing for the management submitted that the approving authority, namely, Special Deputy Commissioner of Labour, without properly appreciating the scope of Section 33(2)(b) of the Industrial Disputes Act erred in holding that the report of the enquiry officer cannot be accepted and the management has not proved the guilt of the workman beyond reasonable doubt and erred in rejecting the Application. He submitted that while entertaining Application under Section 33(2) (b) of the I.D.Act, the approving authority has to consider whether the principles of natural justice was followed in the enquiry, whether the workman was given sufficient opportunity to represent his case, whether prima facie case has been made out by the management to arrive at the conclusion that the workman has committed the misconduct and there is no necessity to examine any passenger who sustained injury or any other witness and the principle of res ipsa loquitur should have been applied and if so applied, it would have been made clear that the accident was occurred due to rash and negligent driving of the vehicle. Therefore, the approving authority should have granted approval. He also submitted that during the enquiry, the Motor Vehicle Inspector's report, sketch and other documents were marked and as per the report of the Motor Vehicle Inspector, the driver seat was found to be intact and that would falsify the case of the workman that the driver seat gave way while turning towards left and therefore, he could not control the vehicle and without considering all these aspects, the approving authority erred in rejecting the

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Application. He further submitted that the approving authority having come to the conclusion that the management conducted enquiry by following the principles of natural justice, ought to have held that the management made out a prima facie case for dismissing the petitioner on legal evidence and the approving authority has also rightly held that the management has not acted vindictively and therefore, ought to have granted approval. He further submitted that the finding of the appellate authority that the workman was getting Rs.21,655/- and he was paid Rs.21,525.25 and therefore, provision of Section 33(2)(b) of the I.D.Act was not complied with and on that ground, approval can be rejected, cannot also be accepted. He also relied upon the following judgments in support of his contention:-

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1 Managing Director, Brakes India Limited Versus S.Packiaraj and another [ (2006) 1 MLJ 233 ]

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2 Cholan Roadways Ltd. Versus G. Thirugnanasambandam [(2005) 1 LLJ 569]

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3 Managing Director, North East K.R.T.C. Versus Devidas Manikrao Sadananda [(2007) 7 MLJ 726 (S.C.)

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4 Management of Cheran Transport Corporation Ltd., (rep. by M.D.) Coimbatore Versus Presiding Officer, Industrial Tribunal, Madras and another [(2003) 4 LLJ 682]

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5 Municial Corporation of Greater, Bombay Versus General Secretary, BEST Workers Union [(2014] 3 LLJ 471]

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6 Delhi Transport Corporation Versus Gajender Pal Singh [(2010) II LLJ 688]

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7 Anna Transport Corporation Ltd., Salem Versus the Presiding Officer, Labour Court, Coimbatore and another [(2000) 1 MLJ 664]

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8 Management of Tamil Nadu State Transport Corporation (Kumbakonam Division – I) Ltd., rep. By its General Manager Versus Joint Commissioner of Labour and another [(2013) 3 LLJ 641]

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https://hcservices.ecourts.gov.in/hcservices/

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9 Hotel Corporation of India Versus Sudesh Kumar Julka and others [(2012) 4 LLJ 88]

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10 Bharat Electronics Ltd., Bangalore Versus Industrial Tribunal, Karnataka, Bangalore and another [(1990) 2 LLJ 32]

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11 National Aviation Company of India Ltd., Mumbai Versus Amit Kumar S/o.Nibal Chand [(2008) III LLJ 925

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12 Divisional Controller, G.S.R.T.C. v. Conciliation Officer & Others [(2002) 4 LLJ 1488

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On the other hand, Mr.R.Y.George Williams, learned counsel appearing for the workman, submitted that the approving authority relied upon the judgment reported in A.I.R.1978 (S.C.)1004 in the matter of Lalla Ram Vs. D.C.M.Chemical Works and having found that the management has not victimised the workman and the management followed the principles of natural justice rightly, held that there was no legal evidence to arrive at the prima facie case that the workman was driving the vehicle in a rash and negligent manner and also rightly held that the workman was not paid his last month salary fully and rightly rejected the Approval Application and therefore, the order does not require any interference.

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Having regard to the submission of the arguments of the learned counsel appearing for both the parties, we will have to find out whether the approving authority was right in holding that the dismissal order was not based on legal evidence adduced before the domestic enquiry and whether prima facie case has been made out by the management against the workman for passing the order of dismissal.

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The scope of section 33(2)(b) of the I.D.Act was considered for the first time by the Supreme Court in Atherton West & Co Ltd v. Suti Mill Mazdoor Union [(1953) 2 LLJ 321 (SC)]. Later, in the judgment reported in AIR 1955 SC 258 : (1955) 1 LLJ 346 (SC) in the matter of Automobile Products of India Ltd., v. Rukmani Bala, the Hon'ble Supreme Court considered the scope of Section 22 of the Industrial Disputes (Appellate Tribunal) Act 1950 which is in pari materia with Section 33 of the I.D.Act and later in the judgment rendered in Martin Burn Ltd v RN Banerjee [(1958) 1 LLJ 247], the Hon'ble Supreme Court considered the scope of 33 of the I.D.Act and observed that the prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the

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evidence which is led in support of the same were believed and while determining whether a prima facie case had been made out, the relevant consideration is whether on the evidence led, it was possible to arrive at the conclusion in question and not whether that was the only question which could be arrived at on that evidence. The Tribunal has to consider whether the view taken is the possible view on the evidence of record and not to substitute his own judgment. In the judgment reported in 1976 Lab IC 4 (SC) in the matter of Bharat Iron Works v. Bhagubhai Balubhai Patel, the Hon'ble Supreme Court has stated the scope of the two-fold approach to the problem while granting or refusing permission under Section 33 of the I.D.Act is as follows:-

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“Firstly, in a case where there is no defect in procedure in the course of a domestic inquiry into the charges for misconduct against an employee, the tribunal can interfere with an order of dismissal on one or the other of the following conditions:-

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(1) If there is no legal evidence at all recorded in the domestic inquiry against the concerned employee with reference to the charge or if no reasonable person can arrive at a conclusion of guilt on the charge levelled against the employee on the evidence recorded against him in the domestic inquiry. This is what is known as perverse finding.

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(2) Even if there is some legal evidence in the domestic inquiry but there is no prima facie case of guilt made out against the person charged for the offence even on the basis that the evidence so recorded is reliable. Such a case may overlap to some extent with the second part of the condition no 1 above. A prima facie case is not, as in a criminal case, a case proved to the hilt.

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It must be made clear in following the above principles, one or the other, as may be applicable in a particular case, the tribunal does not sit as a court of appeal, weighting or re-appreciating the evidence for itself but only examines the finding of the inquiry officer on the evidence in the domestic inquiry as it is in order to find out either whether there is a prima facie case or if the findings are perverse.

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Secondly, in the same case, ie., where there is no failure of the principles of natural justice, in the course of domestic inquiry, if the Tribunal finds that dismissal of an employee is by way of

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victimisation or unfair labour practice, it will then have complete jurisdiction to interfere with the order of dismissal passed in the domestic inquiry. In that event, the fact that there is no violation of the principles of natural justice in the course of the domestic inquiry will absolutely lose its importance of efficacy.”

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Therefore, bearing in mind the principles laid down by the Hon'ble Supreme Court as stated above, it has to be found out whether the Special Deputy Commissioner of Labour, Teynampet, Chennai, has rightly rejected the Approval Petition sought for by the management.

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As stated supra, the management examined one witness to prove the charge levelled against the workman and that witness was not an eye-witness and he came to the spot after the accident had taken place and in his evidence, he has not denied the stand taken by the workman that driving seat gave way and therefore, he had fallen down.

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Admittedly, the accident took place on 27.06.2012 at 1.45 p.m., and he came immediately thereafter, and on the date of accident itself, the workman gave a statement wherein he has stated clearly that the seat gave way and therefore, he had fallen and despite the same, he applied brake but he could not control the vehicle and as a result, the vehicle dashed against the parapet wall. Though such a plea was available on the date of accident itself, the management witness did not state anything about the contention of the driver regarding the driver's seat in his evidence and only relied upon the Motor Vehicle Inspector's Report for his contention that as per the report, the driver seat was found to be intact and therefore, the accident could have been taken place only due to the rash and negligent driving of the vehicle. As a matter of fact, while giving evidence, the management witness did not state that the vehicle was driven in a rash and negligent manner and the management witness only expressed his opinion that the vehicle was driven in a rash and negligent manner and that was the reason for the driver to lose control and dashed against the parapet wall. In his evidence, he has not stated that the vehicle was driven in a rash and negligent manner and he only concluded that the vehicle must have been driven in a rash and negligent manner and therefore, the driver lost control. Therefore, from the above evidence, can it be stated that a prima facie case has been made out by the management for arriving at the conclusion that the management proved the misconduct or the management has prima facie made out a case against the workman based on legal evidence.

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https://hcservices.ecourts.gov.in/hcservices/

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As stated supra, to arrive at a prima facie case relating to consideration is, whether on the evidence led it was possible to arrive at the conclusion in question. Admittedly, the vehicle was proceeding from North to South over Anna Flyover and it had to turn towards left to go into cloverleaf and having regard to the sketch marked and also evidence of MW.1, the vehicle had turned towards left and in that process, it dashed against the parapet wall. It is the case of the workman that while turning towards left to enter the cloverleaf road, the vehicle crossed 10 metres and the management witness has stated that it must be only 4 metres and he admitted that he has not measured the distance. However, it is admitted that the vehicle had turned towards left for going into cloverleaf road and in that process the accident had taken place. It is the case of the management that the vehicle was driven in a rash and negligent manner and that was the reason for the accident. Had the vehicle been driven in a rash and negligent manner as alleged by the management, the vehicle would have gone straight and the vehicle could not have turned towards left. Further, no material was produced by the management to arrive at the conclusion that the vehicle was driven in a rash and negligent manner. Though there was no necessity for the management to examine any passengers and take into consideration the principles of res ipsa loquitur, the Court has to arrive at a conclusion whether the vehicle was driven in a rash and negligent manner.

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In this case, even by applying the said principle, it cannot be stated that the vehicle was driven in a rash and negligent manner. As stated supra, the vehicle had turned towards left and after crossing 4 metres or 10 metres, the vehicle dashed against the parapet wall and had the vehicle been driven in a rash and negligent manner, the vehicle would not have turned towards left and would have dashed against the parapet wall on the left side of the bridge. The fact that the vehicle had turned towards left coupled with the evidence of the workman would probablise the explanation given by the workman that the driver seat had given way and therefore, he had fallen and therefore, he was unable to control the vehicle, can be accepted. It is held in the judgment reported in (2005) 1 LLJ 569 supra that the standard of proof required in a domestic case is preponderance of probability. According to me, the preponderance of probability is in favour of the workman and the explanation of the workman, which was given on the date of the accident that the seat had given way and he had fallen inside the bus and therefore, he was unable to control the vehicle while turning the bus towards left is more probable than the case of the management that the driver of the vehicle drove the vehicle in a rash and negligent manner in the absence of any evidence given to that effect. Therefore, by applying the

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principle of res ipsa loquitur and also applying the theory of preponderance of probability, it cannot be held that the workman was rash and negligent in driving the vehicle and causing the accident. Therefore, on the basis of the evidence adduced by the management, there is no prima facie case made out by the management for arriving at such a conclusion that the vehicle was driven in a rash and negligent manner and on the other hand, the preponderance of probability is in favour of the workman.

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The enquiry officer erred in taking into consideration the report of the Motor Vehicle Inspector to arrive at the conclusion that the driver seat had not fallen and it was intact and therefore, the defence of the workman cannot be accepted. As held in the judgment reported in 1976 Lab IC 4 (SC) supra there must be legal evidence to arrive at the conclusion that the workman has committed the misconduct. Further, as per the judgment reported in 1969-1-SCR 735 in the case of Central Bank of India, New Delhi versus Prakash Chand Jain, the Tribunal can discard the findings given by the enquiry officer while considering the Approval Application if the findings are perverse. The findings are perverse when either they are not based on legal evidence or they are such as no reasonable person could have arrived at on the basis of material before the domestic tribunal. It is further held that the previous statement of a witness is not substantive evidence unless affirmed as truthful by the witness when actually examined in the presence of the workman charged. Therefore, the report of the Motor Vehicle Inspector cannot be considered as a legal evidence in the absence of examining such person. Further, the enquiry officer while giving a finding in respect of Issue No.I, namely, whether the vehicle was driven in a rash and negligent manner, held that the management witness has proved that the vehicle was driven in a rash and negligent manner, taking into consideration the report of the Motor Vehicle Inspector. While arriving at the conclusion that the vehicle was driven in a rash and negligent manner, the enquiry officer based his conclusion on hearsay or unacceptable evidence and therefore, on the basis of the evidence of MW.1, no reasonable person would arrive at the conclusion that the vehicle was driven in a rash and negligent manner. Therefore, the finding of the enquiry officer that the vehicle was driven in a rash and negligent manner on the basis of management witness is perverse and is not based on legal evidence and therefore, the approving authority rightly rejected the Approval Application.

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Further by applying the principle of res ipsa loquitur, it cannot be stated that the vehicle was driven in a rash and negligent manner for the reasons stated above. Therefore, the Tribunal has rightly come to the conclusion that there was no prima

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facie case for dismissal based on legal evidence before domestic enquiry and the management has not proved the charges levelled against the workman and justified in refusing the Approval Application.

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The next question for consideration is whether the workman was paid his full last drawn monthly wages. It is the specific case of the workman that he was drawing Rs.21,655/-, while serving dismissal order, a cheque for a sum of Rs.21,525.25 was given, which is in violation of provision of Section 33 (2)(b) and therefore, on that ground the Approval Application is liable to be rejected. The approving authority has found that the management did not raise any objection regarding the difference amount in the last month drawn wages and did not come forward to pay the difference amount even though that was raised by the workman.

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In the judgment reported in (1990) 2 LLJ 32 in the matter of Bharat Electronics Ltd., Bangalore Versus Industrial Tribunal, Karnataka, Bangalore and another, the Hon'ble Supreme Court held that even less by a paise if one month wages was paid, it would be fatal to an application for approval under Section 33(2)(b) of the Industrial Disputes Act, 1947. It is for the management to prove that the sum paid to the workman represents full wages of the workman. In this case, the workman has raised a specific plea that he was drawing a monthly salary of Rs.21,655/- and the management only paid Rs.21,525.25 and the management failed to prove that the workman was receiving Rs.21,525.25 and not Rs.21,655/- as salary, as contended by the workman. Therefore, on that ground the management has failed to comply with the provisions of Section 33(2)(b) of the Act and that was also properly considered by the Tribunal and rightly rejected the approval on that ground. Hence, I do not find any error in the order of the approving authority, namely, the first respondent in W.P.No.15568 of 2014.

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The argument of the learned counsel for the management that the workman would not be put to more prejudice by the grant of approval and he can challenge the order by raising an industrial dispute and therefore, the order of the approving authority has to be set aside cannot be accepted. While entertaining the Application under Section 33(2)(b) of the Industries Disputes Act, the approving authority has to find out whether the management has complied with the provisions of the Act and if there is failure, approval can be rejected.

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https://hcservices.ecourts.gov.in/hcservices/

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In the result, W.P.No.15568 of 2014 is dismissed and W.P.No.6311 of 2014 is allowed No costs. The connected Miscellaneous Petitions are closed.

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Sd/-
Asst.Registrar (CO)
/true copy/
Sub Asst. Registrar
asvm
To
1.The Special Assistant Commissioner of
Labour, Teynampet, Chennai – 600 006.
2.The General Manager,
Metropolitan Transport Corporation,
(Chennai) Limited, Pallavan Illam,
Anna Salai, Chennai – 600002.
3. The Special Deputy Commissioner of Labour
Teynampet, Chennai-6
1 cc to Mr.R.Y. George William, Advocate, Sr. 43301
1 cc to Government Pleader, Sr. 43457
W.P.Nos.6311 and 15568 of 2014
and
M.P.Nos.1 and 2 of 2014 in
W.P.No.15568 of 2014
VD (CO)
kk 18/9

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D.Prasad, Driver v. the General Manager

Case brief

What is this about?

What did the court decide?

D.Prasad, Driver v. the General Manager

Case brief

What is this about?

What did the court decide?

What the court decided

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