In
Martin Burn’s case (supra) this court stated:
“A prima facie case does not mean a case
proved to the hilt but a case which can be
said to be established if the evidence which
is led in support of the same were believed.
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
conclusion which could be arrived at on that
evidence. It may be that the Tribunal
considering this question may itself have
arrived at a different conclusion. It has,
however, not to substitute its own judgment
for the judgment in question. It has only got
to consider whether the view taken is a
possible view on the evidence on the record.
(See Buckingham & Carnatic Co. Ltd. Vs ThePage 12
12
Workers of the Company (1952) Lab. AC 490
(F).””
(emphasis supplied)
(REPORTABLE)
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos. 6765-66/2014
The Management of TNSTC (Coimbatore) Ltd.
Versus
M. Chandrasekaran .
Dated:September 2, 2016
A.M. KHANWILKAR, J.
These appeals challenge the decision of the Division Bench of
the High Court of Judicature at Madras, dated 22.11.2013, in Writ
Appeal Nos. 2082 and 2083 of 2013.
2. Briefly stated, the respondent was employed as a driver by the
appellant on 14.04.1986. While on duty on 15.01.2003, on vehicle
TN-38-0702, during a trip from Kovai Ukkadam to Pollachi, near
Vadakkipalayam he caused an accident with a car bearing No. TMA
4845 coming from the opposite direction resulting in fatal injuries
to persons travelling in that car. Disciplinary enquiry was instituted
against the respondent inter alia on the charge of driving the bus in
a rash and negligent manner. The Enquiry Officer found the
respondent guilty of the charges framed in Charge Memo dated
22.01.2003. The Disciplinary Authority after giving opportunity to
the respondent passed order of dismissal on 13.10.2003. The
appellant then submitted an application, being Approval Petition
No. 480 of 2003, under Section 33(2)(b) of the Industrial Disputes
Act, 1947, before the Joint Commissioner Labour (Conciliation),
Chennai as an industrial dispute was pending for conciliation
before him. The Labour Commissioner, after analysing the material
placed before him in the said proceeding noted that the Department
only examined two witnesses who were also cross-examined by the
respondent. The respondent examined himself as defence witness,
but was not cross-examined by the Department. The Commissioner,
however, found that the enquiry against the respondent was
conducted in accordance with the principles of natural justice and
also in conformity with the Standing Orders. While dealing with the
quality of evidence adduced by the Department, the CommissionerPage 3
3
found that the same, by no standard would substantiate the
charges framed against the respondent. The first witness was the
Junior Engineer. He had submitted a site inspection report and
stated in his evidence that the car came with speed to the left side
from Vadakkipalayam branch road to the main road and then came
to the centre of the road. His evidence about the occurrence of
accident was on presumption. The second witness examined by the
Department was the Assistant Manager. He stated that the bus
driver as well as car driver had driven their vehicles speedily. He
also stated that car was driven in the middle of the road with speed
at the time of accident. The defence of the respondent was that
when he was approaching Vadakkipalayam branch road, an
ambassador car driven by a 17 year old boy named Sivakumar
came on the wrong side of the road at a high speed and, after
entering the main road went to the left side of the bus in wrong
direction. The respondent, therefore, first thought of driving the bus
to the left. But, as some pilgrims were going in a procession on the
left side of the road and as the car was being driven rashly and had
come to the left side of the bus, he was left with no option except to
take the bus to the right side to avoid a head on collision. ThisPage 4
4
averted a fatal accident to pedestrians and minimized the damage
to the car coming from the opposite direction on the wrong side.
This also ensured the safety of the bus passengers. In substance,
the respondent pleaded that the accident was caused due to
unavoidable circumstances and in spite of all precautions and
applying his best judgment in maneuvering the vehicle.
3. The Commissioner found that the respondent had deposed
about these facts as defence witness, but was not cross-examined
by the Department. No eye witness was examined by the
Department nor the conductor of the bus or passengers travelling in
the same bus were examined by the Department. The
Commissioner, therefore, concluded that the finding reached by the
Enquiry Officer by merely relying on the evidence of the Junior
Engineer and the Assistant Manager (who were not eye witnesses),
was perverse. In that, the charges were not proved against the
respondent by independent legal evidence of eye witnesses. The
Commissioner held that the Enquiry Officer’s report was vitiated
being perverse. The Commissioner also relied on the decision of the
Division Bench of Madras High Court in Writ Appeal No. 2238 ofPage 5
5
2000 in the case of A. Mariasundararaj vs. Cheran Transport
Corporation Ltd., which had deprecated the practice of not
examining eye witness or other relevant evidence during the enquiry
in respect of accident cases by the State Transport Corporation, and
as it results in not confirming the charges and punishments
awarded against its drivers involved in accidents. The
Commissioner, therefore, refused to accord approval for dismissal
of the respondent.
4. Being aggrieved by this decision, the appellant-Management
preferred Writ Petition No. 2425 of 2010. Even the respondent
preferred Writ Petition No. 23155/2009 for issuing writ of
mandamus against the Corporation to implement the order passed
by the Joint Commissioner of Labour, Chennai dated 25.05.2009 in
Approval Petition No. 480/2003; and to reinstate him with
continuity of service, back-wages and all other attendant benefits.
Both the writ petitions were heard analogously by the learned
Single Judge. The Single Judge noted the seven reasons recorded
by the Commissioner to disapprove the dismissal of the respondent,
as follows: - Page 6
6
“a) Except examining witnesses, who are
employees of the petitioner Corporation, the
petitioner has not examined any independent
witness to prove that the accident took place
because of the rash and negligent driving of the
2
nd respondent resulting in the death of 9
persons.
b) The Engineer’s report, which was marked as
Ex. A2 shows that the car came fast from the
branch road to the main and came to the centre
of the road and the bus was coming on the right
side of the road instead of the left side on high
speed. The report fixed prime responsibility on
the bus driver and part responsibility on the car
driver. Though the Junior Engineer, who gave
this report, deposed that the car and the bus
came with speed, he was not an eye witness to
the occurrence and he had described the
occurrence only on presumption.
c) P.W.1, the Assistant Manager of the petitioner
Corporation, though deposed that the bus driver
as well as the car driver had driven the vehicles
in high speed, he was also not an eye witness
to the occurrence and hence, his evidence also
cannot be taken into consideration to fix the
responsibility on the 2nd respondent.
d) The conductor of the bus, who could have
been examined on the side of the petitioner
Corporation, had not been examined.
e) Not even a single passenger of the bus was
examined to prove or establish that the 2nd
respondent, the driver of the bus, had driven
the vehicle in a rash and negligent manner.
f) The Enquiry Officer had relied on the
evidence of the Engineer and the Assistant
Manager, who were not eye witnesses to thePage 7
7
occurrence and their evidence was
uncorroborated by any independent witness.
g) The 2nd respondent had denied that he was
responsible for the accident and stated that the
ambassador car, which took a left turn from the
branch road and came driving to its right side,
suddenly turned to the left and therefore, the
accident had occurred. However, the 2nd
respondent was not subjected to
cross-examination.”
5. The Single Judge then opined that the view so taken by the
Commissioner was well founded and did not warrant any
interference. Reliance was also placed on an un-reported decision
of Division Bench of the same High Court in Writ Appeal No. 2238
of 2000 in the case of A. Mariasundararaj (Supra). The relevant
dictum in that decision has been reproduced in paragraph 7 by the
Single Judge, as follows:-
“We have to point out that when we come
across such accident case, where disciplinary
actions are initiated by the State Transport
Corporations, invariably except the statement of
the inspecting official, the sketch and
photographs, no other evidence is placed before
the Inquiry Officer. It is also repeatedly being
pointed out that in the absence of such
independent evidence before the Court, it is
difficult for the Court to confirm the punishment
awarded as against such erring drivers.”Page 8
8
6. Accordingly, the Single Judge dismissed the writ petition
preferred by the appellant and allowed the writ petition preferred by
the respondent and issued direction to the appellant Corporation to
reinstate the respondent with back-wages and continuity of service
and all other attendant benefits.
7. Being aggrieved, the appellant preferred Letters Patent Appeal
bearing Writ Appeal Nos. 2082 and 2083 of 2013. The Division
Bench affirmed the view taken by the Single Judge. The Division
Bench distinguished the decision of this Court in the case of
Cholan Roadways Ltd. Vs. G. Thirugnanasambandam1
which was
pressed into service by the appellant, on the principle of res ipsa
loquitur. The Division Bench held that merely on the basis of
evidence of the Assistant Manager and the Engineer, who were not
the eye witnesses, the charges against the respondent remained
unsubstantiated. Hence, the writ appeals came to be dismissed.
1
(2005) 3 SCC 241Page 9
9
This decision is the subject matter of challenge in the present
appeals.
8. According to the appellant, the evidence produced by the
Department was sufficient to bring home the charge of rash and
negligent driving by the respondent on the day of accident. The
Commissioner exceeded his jurisdiction in recording a contrary
finding while refusing to accord approval to the order of dismissal of
the respondent passed by the Department, considering the fact that
the accident admittedly caused fatal injuries to passengers
travelling in the car. It is contended that considering the
seriousness of the charges and the fact that the respondent was
driving the bus in a rash and negligent manner, the approach of the
Commissioner was hyper-technical. That is not only a manifest
error but has also resulted in grave injustice. The respondent on
the other hand contends that the Commissioner has applied the
well settled legal position that there can be no presumption of
misconduct by the employees. That, charge must be proved by the
Department during the inquiry. Non- examination of the material
witnesses such as eye witnesses present on the spot, conductor andPage 10
10
passengers, travelling on the same bus was fatal. For, it entails in
not substantiating the charges against the respondent and failure
to discharge the initial onus resting on the Department to prove the
charge as framed. According to the respondent, no fault can be
found with the tangible reasons recorded by the Commissioner as
noticed by the Single Judge (reproduced above); and resultantly, the
conclusion of the Commissioner of not according approval to the
order of dismissal is just and proper. It is submitted that the Single
Judge was justified in allowing the writ petition preferred by the
respondent and issuing direction to the appellant to reinstate him
with back-wages and continuity of service and all attendant benefits
accrued to him.
9. The moot question is about the jurisdiction of the Joint
Commissioner of Labour (Conciliation) whilst considering an
application for approval of order of punishment under Section 33(2)
(b) of the Industrial Disputes Act, 1947. It is well settled that the
jurisdiction under Section 33(2)(b) of the Act is a limited one. That
jurisdiction cannot be equated with that of the jurisdiction under
Section 10 of the Industrial Disputes Act. This Court in the case of
Cholan Roadways (Supra) observed thus:
“18. The jurisdiction of the Tribunal while
considering an application for grant of approval has
succinctly been stated by this Court in Martin Burn Ltd.
Vs R.N. Banerjee (AIR 1958 SC 79). While exercising
jurisdiction under Section 33(2) (b) of the Act, the
Industrial Tribunal is required to see as to whether a
prima facie case has been made out as regard the
validity or otherwise of the domestic enquiry held against
the delinquent; keeping in view the fact that if the
permission or approval is granted, the order of discharge
or dismissal which may be passed against the
delinquent employee would be liable to be challenged in
an appropriate proceeding before the Industrial Tribunal
in terms of the provision of the Industrial Disputes Act. In
Martin Burn’s case (supra) this court stated:
“A prima facie case does not mean a case
proved to the hilt but a case which can be
said to be established if the evidence which
is led in support of the same were believed.
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
conclusion which could be arrived at on that
evidence. It may be that the Tribunal
considering this question may itself have
arrived at a different conclusion. It has,
however, not to substitute its own judgment
for the judgment in question. It has only got
to consider whether the view taken is a
possible view on the evidence on the record.
(See Buckingham & Carnatic Co. Ltd. Vs ThePage 12
12
Workers of the Company (1952) Lab. AC 490
(F).””
(emphasis supplied)
This judgment was relied by the appellant before the Division
Bench. The Division Bench, however, brushed it aside by observing
that the principle of Res ipsa loquitur is not applicable to the case
on hand. That approach, in our opinion is untenable. In that, the
said decision not only deals with the principle of Res ipsa loquitur
but also with the scope of jurisdiction of the Commissioner under
Section 33(2)(b) of the Act. It also delineates the extent of scrutiny
to be done at this stage to ascertain whether prima facie case is
made out for grant or non-grant of approval to the order of
punishment. In doing so, the Commissioner could not substitute
his own judgment but must only consider whether the view taken
by the Disciplinary Authority is a possible view on the evidence on
record.
10. In the present case, the sole reason which weighed with the
Commissioner was that no independent witness was produced - not
even a single passenger of the bus was examined by thePage 13
13
Department. The decision relied by the appellant squarely deals
even with this reasoning. It has been held that, in the case of State
of Haryana & Others Vs. Rattan Singh2
the Court held that mere
non-examination of passenger does not render the finding of guilt
and punishment imposed by the Disciplinary Authority invalid.
Similar view has been taken in the case of Divisional Controller
KSRTC (NWKRTC) vs. A.T. Mane3
. Both these decisions have been
noticed in the reported decision relied by the appellant. The burden
to prove that the accident happened due to some other cause than
his own negligence, is on the employee, as expounded in the case of
Thakur Singh vs. State of Punjab4
referred to in the reported
decision. In the reported case relied by the appellant, it has been
noted as under:
“34. ……………………………In the instant case the
Presiding Officer, Industrial Tribunal as also the
learned Single Judge and the Division Bench of the
High Court misdirected themselves in law insofar as
they failed to pose unto themselves correct questions. It
2
(1977) 2 SCC 491
3
(2005) 3 SCC 254
4
(2003) 9 SCC 208Page 14
14
is now well-settled that a quasi-judicial authority must
pose unto itself a correct question so as to arrive at a
correct finding of fact. A wrong question posed leads to
a wrong answer. In this case, furthermore, the
misdirection in law committed by the Industrial Tribunal
was apparent insofar as it did not apply the principle of
Res ipsa loquitur which was relevant for the purpose of
this case and, thus, failed to take into consideration a
relevant factor and furthermore took into consideration
an irrelevant fact not germane for determining the
issue, namely, the passengers of the bus were
mandatorily required to be examined. The Industrial
Tribunal further failed to apply the correct standard of
proof in relation to a domestic enquiry, which in
“preponderance of probability” and applied the
standard of proof required for a criminal trial. A case for
judicial review was, thus, clearly made out.”
11. Applying the principle stated in Cholan Roadways Ltd.
(Supra), what needs to be considered is about the probative value of
the evidence showing the extensive damage caused to the bus as
well as motorcar; the fatal injuries caused to several persons
resulting in death; and that the nature of impact raises an inference
that the bus was driven by the respondent rashly or negligently.
The material relied by the Department during the enquiry
supported the fact that the respondent was driving the vehicle at
the relevant time and because of the high speed of his vehicle the
impact was so severe that the two vehicles were extensivelyPage 15
15
damaged and the passengers travelling in the vehicle suffered fatal
injuries resulting in death of five persons on the spot and four
persons in the hospital besides the injuries to nine persons. These
facts stood established from the material relied by the Department,
as a result of which the doctrine of Res ipsa loquitur came into play
and the burden shifted on the respondent who was in control of the
bus to establish that the accident did not happen on account of any
negligence on his part. Neither the Commissioner nor the High
Court considered the matter on that basis nor posed unto
themselves the correct question which was relevant for deciding the
application under Section 33(2)(b). On the other hand, the order of
punishment dated 13th October, 2003, ex facie, reveals that the
report of the Enquiry Officer referring to the relevant material
established the factum and the nature of accident warranting an
inference that the respondent had driven the bus rashly and
negligently. Further, the observation in the unreported decision of
the Division Bench of the same High Court was not relevant for
deciding the application under Section 33(2)(b). Significantly, the
order of punishment also adverts to the past history of the
respondent indicative of respondent having faced similarPage 16
16
departmental action on thirty two occasions, including for having
committed minor as well as fatal accidents while performing his
duty.
12. In our opinion, the Commissioner exceeded his jurisdiction in
reappreciating the evidence adduced before the Enquiry Officer and
in substituting his own judgment to that of the Disciplinary
Authority. It was not a case of no legal evidence produced during
the enquiry by the Department, in relation to the charges framed
against the respondent. Whether the decision of the Disciplinary
Authority of dismissing the respondent is just and proper, could be
assailed by the respondent in appropriate proceedings. Considering
the fact that there was adequate material produced in the
Departmental enquiry evidencing that fatal accident was caused by
the respondent while driving the vehicle on duty, the burden to
prove that the accident happened due to some other cause than his
own negligence was on the respondent. The doctrine of Res ipsa
loquitur squarely applies to the fact situation in the present case.
13. Ordinarily, we would have remitted the matter back to the
Commissioner for consideration afresh, but as the matter isPage 17
17
pending for a long time and as we are satisfied that in the fact
situation of the present case approval to the order of punishment
passed by the appellant against the respondent should have been
granted, we allow the application under Section 33(2)(b) preferred
by the appellant but with liberty to the respondent to take recourse
to appropriate remedy as may be available in law to question the
said order of dismissal dated 13th October, 2003.
14. Accordingly, we set aside the impugned decisions of the High
Court as well as of the Joint Commissioner. The appeals are allowed
in the above terms with no order as to costs.
.………………………….CJI
(T.S.Thakur)
..……………………………J.
(A.M. Khanwilkar)
New Delhi,
September 2, 2016
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