2022 LLR 1063
SUPREME COURT OF INDIA
Hon'ble Dr. Dhananjaya Y. Chandrachud, J.
Hon'ble Mr. Surya Kant, J.
CA No. 3161/2022 (Arising out of SLP (C) No. 8314/2020,
Dt/– 25-4-2022
Management, Tamil Nadu State Transport Corporation (Kumbakonam) Ltd.
vs.
P. Thirunavukkarasu
REINSTATEMENT of a bus driver with 40% back wages – When not justified – The Division Bench of High Court dismissed the Writ Appeal upholding judgment and order of the Single Judge by which the respondent was directed to be reinstated in pursuance of the award of the Labour Court though back wages have been restricted to 40% – On perusal of the documentary evidence on record, the submissions of both the parties and the provisions of law their Lordships of the Apex Court held the award of the Labour Court dated 23.6.2015 in I.D. No. 25 of 2006 shall stand set aside – The impugned judgment and order dated 21.11.2019 passed by the High Court is also set aside. Paras 2 to 5 and 8 to 10
For Petitioner(s): Mr. Amit Anand Tiwari, Sr. Advocate, Mr. D. Kumanan, AOR, Mr. Sheikh F. Kalia, Ms. Mary Mitzy, Ms. Devyani Gupta and Ms. Tanvi Anand, Advocates.
For Respondent(s): Mr. Md. Shahid Anwar, AOR, Mr. Ashish Prakash, Mr. Aryan P. Nanda, Mr. Mohd. Naseem Mughal and Mr. Ajay Amritraj, Advocates.
IMPORTANT POINTS
ORDER
1. Leave granted.
2. The appeal arises from a judgment dated 21 November 2019 of a Division Bench at the Madurai Bench of the Madras High Court. The Division Bench dismissed a writ appeal arising from a judgment of a Single Judge by which the respondent was directed to be reinstated in pursuance of the award of the Labour Court though back wages have been restricted to 40 per cent.
3. The respondent was appointed as a driver by the Tamil Nadu State Transport Corporation – “Corporation” on 18 October 1985. On 1 March 2003, he was on duty as a driver in a bus bearing Registration No. TN 45 N 1326 on the Chennai to Trichy route. The bus left Chennai at 10.30 am and reached Perambalur at 3.30 pm. According to the Management, when the bus was proceeding near the new RTO office, it went on to the extreme right side of the road and dashed against a two wheeler on which besides the rider, there were two pillion riders. Two of the three occupants died on the spot, while, the third died shortly thereafter in a government hospital. The respondent was placed under suspension and a charge memo was issued to him on 7 March 2003 on the allegation of being involved in an accident caused due to rash and negligent driving resulting in the death of three persons. No reply was filed by the respondent to the charge memo and disciplinary proceedings were accordingly initiated. The enquiry officer found in a report dated 19 May 2003 that the charge was proved. The respondent filed his response to the enquiry report. The disciplinary authority issued a show cause notice on 3 July 2003 following which, an order of dismissal from service was passed. The disciplinary authority noted that the respondent had suffered eighteen punishments within a period of eighteen years' service, including eleven punishments for accidents and damages out of which two accidents were major, including one fatal accident.
4. An industrial dispute was raised, following which proceedings in ID No. 25 of 2006 took place before the Labour Court, Tiruchirapalli. The Labour Court held that the charges of misconduct were not proved and while setting aside the order of dismissal directed reinstatement with continuity of service and with full back wages. The appellant instituted a writ petition before the High Court. The Single Judge accepted the plea of the appellant by holding that this was a case where the doctrine of res ipsa loquitur should be invoked and that the respondent was guilty of rash and negligent driving. However, despite these findings, the Single Judge confirmed the award of the Labour Court, but, restricted the quantum of back wages to 40 per cent on the ground that:
(i) The appellant had not examined the person who drew the spot sketch; and
(ii) The appellant had failed to mark the award of the MACT in the proceedings before the Labour Court.
5. The judgment of the Single Judge has been affirmed in appeal by the Division Bench of the High Court.
6. Mr. Amit Anand Tiwari, AAG appearing on behalf of the appellant, submitted that the Single Judge having accepted the basic contention of the appellant that the respondent was guilty of rash and negligent driving, the decision to set aside the disciplinary award by the employer on the technical grounds, noted above, was not in order. Moreover, it was submitted that the past record of the employee indicated a series of punishments, including those involving rash and negligent driving. In this backdrop, it was urged that in the absence of anything to indicate that the enquiry was not fair, the finding of misconduct was sustainable with reference to the evidence on the record and the punishment of dismissal was not disproportionate to the misconduct found to be established.
7. On the other hand, on behalf of the respondent, Mr. Md Shahid Anwar, counsel, submitted that the respondent has been acquitted in the criminal trial. Apart from the above submission, it has been urged that though the Single Judge has found that this was a case involving rash and negligent driving, the burden was on the employer to prove it. It was on this ground, in the absence of a spot sketch and the MACT award being brought on the record, that the award of reinstatement was affirmed though the back wages were restricted to 40 per cent. Hence, it is submitted that the Court may not interfere in the exercise of its jurisdiction under Article 136 of the Constitution of India.
8. Having heard the rival submissions, we find that the judgment of the Single Judge has substantially accepted the plea of the appellant that the case involves a clear act of rash and negligent driving on the part of the respondent. The Single Judge noted that three individuals died in the accident which was caused by the bus, which was being driven by the respondent and the bus was found to be on the extreme right side of the road. On the facts as they emerge before the Court, the Single Judge held that the doctrine of res ipsa loquitur would apply. In spite of these findings, the Single Judge affirmed the award of the Labour Court purely on the ground that:
(i) The person who conducted the spot inspection and prepared the sketch was not examined; and
(ii) The Management did not mark the award of the MACT before the court below.
9. The fact that the award of the MACT was not marked in evidence was not sufficient reason to hold that there was a failure on the part of the employer to establish the allegation of misconduct. The MACT was dealing with the claim for compensation by the legal representatives. In the disciplinary enquiry, the employer was seeking to enquire into an alleged act of misconduct. Both deal with different facets. Once the Single Judge came to the conclusion that the misconduct was proved, particularly, in the context of the doctrine of res ipsa loquitur , there was no warrant to then direct reinstatement by merely restricting the quantum of back wages. The past record of the respondent was relied upon by the disciplinary authority from which it appeared that he was involved in similar such instances in the past and had suffered eighteen punishments, including eleven for accidents and damages caused to the Corporation. Out of these accidents, two were major, including one fatal accident. The past record, therefore, did not contain any extenuating circumstance. The respondent was driving the bus and as a result of the accident, three individuals died. In this backdrop, once the finding of misconduct stands established, there was neither any perversity in the finding nor was the punishment disproportionate to the misconduct. The disciplinary proceedings are not affected by the outcome of the acquittal in the criminal case. The order of the High Court becomes clearly unsustainable. The High Court on the reasoning which was adopted by the Single Judge ought to have set aside the order of the Labour Court instead of directing reinstatement and merely restricting the quantum of back wages to 40 per cent.
10. We accordingly allow the appeal and set aside the impugned judgment and order of the High Court dated 21 November, 2019. In consequence, the writ petition filed by the appellant before the High Court shall stand allowed and the award of the Labour Court dated 23 June 2015 in ID No. 25 of 2006 shall stand set aside.
11. In the circumstances, there shall be no order as to costs.
12. Pending application, if any, stands disposed of.