Decided on September 02,2016

The Management Of Tnstc (Coimbatore) Ltd. Appellant


- (1.) 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 Commissioner 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. This 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 of 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.;

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