(Prayer: Writ Petition filed under Article 226 of Constitution of India, to issue a Writ of Certiorarifed Mandamus, calling for the records relating to the impugned award passed by the second respondent Labour Court dated 26.06.2003 in I.D.No.154 of 1998 and quash the same as illegal and consequentially direct the respondents 1 & 2 to reinstate the petitioner in service with back wages and all attendant benefits with continuity of service within a period that may be stipulated by this Court.)
The prayer sought in this Writ Petition is for a Writ of Certiorarified Mandamus, calling for the records relating to the impugned award passed by the second respondent labour Court dated 26.06.2003 in I.D.No.154 of 1998 and quash the same and consequently direct the respondents 1 and 2 to reinstate the petitioner in service with back wages and all attendant benefits with continuity of service.
2. The short facts, which are required to be noticed for disposal of this writ petition are as follows:
The petitioner was appointed as a Driver on 30.07.1991 at the first respondent Corporation. On 09.10.1996, while he was on duty by driving the bus bearing No.H893/190, due to rain, the road was slippery and therefore, the petitioner lost his control over the bus and in order to save the passengers, he negotiated the bus to the left side. With the result, the vehicle dashed against the fallen tree branch. Due to the said accident, no one was injured including the crew. However, there was a slight damage to the vehicle to the tune of Rs.7,116/-.
3. Pursuant to the said accident, disciplinary proceedings was initiated against the petitioner and a charge memo was issued on 27.01.1997 and domestic enquiry was conducted. After the domestic enquiry, the petitioner was found guilty of rash and negligent driving. With the result, the punishment of removal of service was inflicted on the petitioner by the first respondent on 29.07.1997. Aggrieved over the said punishment of removal of service, the petitioner had belatedly raised an Industrial dispute under Section 2A(2) of the Industrial Disputes Act, 1947 [hereinafter referred to as 'Act'] and the same was taken on file in I.D.No.154 of 1998 on the file of the second respondent.
4. The labour Court / second respondent, after having considered the claim made by the petitioner by way of ID as well as the counter filed by the first respondent Corporation, had ultimately dealt with the punishment imposed on the petitioner is justifiable and also commensurate with the guilt found against him and therefore, the labour Court has dismissed the ID on 26.06.2003. As against the dismissal of the said ID, the petitioner has approached this Court with the present Writ Petition.
5. Heard Mr.S.M.Ajmal Khan, learned Senior counsel appearing for the petitioner, who would submit that the labour Court, as a preliminary issue, should have decided as to whether the domestic enquiry was conducted within the parameters of the principles of natural justice. The labour Court has failed to adhere to. He would also submit that under Section 11A of the Act, the evidence could have been re-appreciated by the labour Court. However, even though there were evidences in the domestic enquiry in favour of the petitioner, the said evidences were not considered in proper perspective by the labour Court.
6. The learned counsel appearing for the petitioner would also submit that the labour Court, while come to the conclusion about the quantum of punishment, instead of taking the incident with regard to the disciplinary proceedings, has taken the past events and observed that previously on six occasions, since the petitioner had driven the vehicle in a rash and negligent manner, the punishment of removal of service inflicted on the petitioner is certainly commensurate with the guilt and therefore, the labour Court, on that ground, confirmed the said punishment and passed the award. Therefore, the learned counsel appearing for the petitioner would submit that the entire impugned award passed by the labour Court/ second respondent is liable to be interfered with.
7. Per contra, Mr.S.Baskaran, learned standing counsel appearing for the first respondent Corporation, would submit that by taking note of the discussions made by the labour Court in the impugned award, that the labour Court, after having considered the facts and circumstances, which were made available before the labour Court from the records of the domestic enquiry, it had come to a right conclusion that the punishment imposed against the petitioner is justifiable.
8. The learned Standing Counsel would further submit that the labour Court had also taken into account the past events, where atleast on six occasions, the petitioner had been indulging in such driving in a rash and negligent manner and therefore, taking note of the chronic nature of plying the vehicle in such a rash and negligent manner, endangering to the passengers as well as to the general public, the labour Court had taken a right decision in confirming the punishment inflicted on the petitioner by the first respondent disciplinary authority. Therefore, the learned Standing Counsel appearing for the first respondent would submit that no interference is required in the impugned award.
9. I have considered the submissions made by both the learned counsel appearing for the parties and also perused the materials placed before this Court.
10. The labour Court, in the impugned award though had discussed about the situation, which was prevailing on the day, where the accident taken place on the said day, it was raining and during night hours, the vehicles were moving with the help of head light only and during rainy time, unless the vehicle comes nearer to an object, it is difficult to have a vision about the object and therefore, in that sense, the act of the Driver, who was driving the vehicle must have been in lesser speed, so that the Driver could have visualized the object during the night hours in a rainy day.
11. The labour Court went to the extent of stating that a 60 feet road, where a tree has fallen down, which could have been occupying 40 feet and the remaining 20 feet road could have been available for plying the vehicle, therefore, the Driver should have to be conscious expecting lot of vehicles to cross the single side of the road during night hours, that too, on a rainy day. Further, the Driver, according to the labour Court finding, since had not plied the vehicle with proper caution in the minimum speed so as to enable him to visualize the object during night hours in the rainy day, the action on the part of the Driver could be construed that he would have plied the vehicle in a rash and negligent manner.
12. These are the reasonings given by the labour Court and based on these reasonings and findings and also on the basis of the above conduct of the petitioner that he has involved in similar actions for six times, the labour Court has come to the conclusion that the punishment of removal of service inflicted on the petitioner, is justifiable.
13. I have gone through the discussions made by the labour Court in this regard.
14. It seems that before domestic enquiry, management side witnesses, at the time of cross-examination, could have deposed that, the day, on which, the accident taken place was a rainy day. Because of night hours, in the rainy day, it was very difficult to see the object in front of the vehicle and therefore, only with the help of flickering the head lamp, the Driver could be able to see the object and that is the reason why, the fallen tree was noticed by the Driver, when the vehicle comes nearer to the object. Even though the said deposition was made by the Management witnesses, the same had not been taken into account by the learned labour Court Judge in the impugned award.
15. Further, the labour Court was influenced by the past conduct of the petitioner, as according to the labour Court, the petitioner had involved in similar accident for six times prior to the present one, because of which, he caused a loss to the first respondent Corporation to the tune of Rs.39,037.15/-.
16. The relevant portion of the discussion of the labour Court is extracted hereunder for better appreciation:
17. On perusal of the aforesaid discussion and award, which was made therein, the second respondent / labour Court had recorded that the accident was taken place by the vehicle of the first respondent Corporation driven by the petitioner and the fact remains that on the day of accident, it was raining and the vehicle was plying during night hours. No doubt, during a rainy day and that too in night hours, the vehicle must be moved in a minimum speed. But, at the same time, we cannot expect the distance, within which, such fallen object would lie. However, expecting such entrenches on road, during rainy season, if the vehicle is plying with a very minimum speed, sometimes this kind of small accident could have been avoided. Here, in the case in hand, the Driver, on visualizing the fallen tree, immediately applied the brake, however, the vehicle dashed the said fallen tree and by thus, some damages also were caused in the front side of the vehicle worth Rs.7,000/- and more. This nature of accident would reflect that the vehicle was not plying in a considerable speed during the time of accident. Had the vehicle had been plying in a considerable speed, definitely, the impact of the accident would be higher and some of the passengers would have been injured.
18. Therefore, considering the nature of the accident, which is very minor in category, it can be presumed that the vehicle was not plying by the petitioner with that much speed. Even sometimes, when the vehicle is moved with very minimum speed, it is difficult to visualize the object during rainy day, that too, in night hours and therefore, the Driver must be more conscious and careful in plying the vehicle in such a situation. At any rate, the accident was a minor one and therefore, for the said accident, whether the punishment inflicted on the petitioner is in commensurate with the guilt of the petitioner, is the only issue to be looked into.
19. The labour Court, in this regard, not on the basis of the accident in question, but also taking into account the past history of the petitioner, which according to the Management, the petitioner had involved six times in such kind of accident in earlier occasions and caused loss to the tune of Rs.39,037.15/- to the Corporation, had come to a conclusion that the quantum of punishment of removal of service inflicted on the petitioner is justifiable.
20. Considering the said aspects of the case, this Court is of the view that, though the petitioner was liable to be punished, the quantum of punishment of removal of service is certainly on higher side and therefore, this aspect could have been considered by the labour Court by re-appreciating the evidence on record under Section 11A of the Act. However, the labour Court has not appreciated this aspect with regard to the quantum of punishment and it has been imposed based on the past conduct of the petitioner supplied by the Management side. This way of deciding the quantum of punishment by the Labour Court, in the opinion of this Court, is not justifiable and therefore, this Court is of the view that with regard to the quantum of punishment awarded by the Labour Court, which is impugned herein, it can be interfered with.
21. It is submitted by the learned counsel appearing for both sides that the petitioner was appointed as a labour in the year 1991 and regularised in the year 1993. This accident was taken place in the year 1997, and he was removed from service on 20.09.1997.
22. Thereafter, the petitioner is not in service. Even though the labour Court award was passed on 26.06.2003, the petitioner has not immediately approached this Court. Only after seve
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n years, the present writ petition has been filed i.e., in the year 2010, for which, even though he has given some reasons that the award was not immediately notified, those reasons cannot be accepted for the delayed approach of the petitioner before this Court. 23. The learned counsel appearing for the petitioner submits that the petitioner hereafter will have only less than two years of service to reach his superannuation. 24. Considering all these aspects, this Court is inclined to pass the following order: (i) that the impugned award passed by the second respondent / labour Court is modified to the extent that the petitioner shall be reinstated into service at the second respondent Corporation, however, the petitioner shall not seek any backwages to his past service from 20.01.1997 till 26.06.2003 and thereafter. The period from 01.02.2010, (the day on which, this writ petition was filed) till his reinstatement shall be taken into account, only for the purpose of computing retirement benefits and not for any other purpose; and (ii) The aforesaid needful shall be undertaken by the first respondent within a period of four weeks from the date of receipt of a copy of this order. 25. With the above directions, this Writ Petition is allowed to the term indicated above. No costs.