Divisional Mechanical Engineer, R.S.R.T.C. vs Dhanna Ram

Veerender Singh Siradhana, J.—The petitioner - Rajasthan State Road Transport Corporation (hereinafter referred to as the ''petitioner-Corporation'', for short), in the instant writ application, projects a challenge to the award made by the Labour Court, Jaipur dated 4th June, 1997, in Case Number L.C.R.196/88, on a reference made by the appropriate government vide order dated 12th October, 1988. The Labour Court while answering the reference in affirmative and in favour of the respondent/workman (Dhanna Ram), since deceased, made an award for reinstatement with continuity of service as well as full back wages and all consequential benefits, holding the termination of employment as illegal and invalid.

Briefly, the skeletal material facts, which are essential for appreciation of the controversy raised in the instant writ application while assailing the legality, validity and correctness of the impugned award dated 4th June, 1997, needs to be first noticed. The respondent/workman was appointed in substantive capacity as ''Driver'' by the petitioner-Corporation in the year 1976. The respondent/workman was served with a charge sheet on 5th June, 1982, for rash and negligent driving on 13th October, 1978, while he was employed as Driver on the Bus of the petitioner-Corporation with Registration Number RRM-1078, resulting into death of a passenger traveling in the Bus. The accident occurred near Deedwana Railway Crossing. The dependents of the deceased passenger filed a claim petition before the Motor Accident Claims Tribunal, Jodhpur (hereinafter referred to as the ''Tribunal'', for short), whereupon an award dated 4th June, 1981, for compensation to the tune of Rs. 15,000/- (Rupees: Fifteen Thousands Only) along with an interest @ 6% with effect from 3rd March, 1979, till the realization of the amount to the dependents of the deceased passenger. The Tribunal while making an award of compensation observed that the petitioner-Corporation as well as the Driver of the Bus (respondent/workman), were responsible for the accident; and therefore, held them liable for compensation jointly and severally. The reply to the charge sheet by the respondent/workman, was not found satisfactory and the petitioner-Corporation appointed an Enquiry Officer to inquire into the charges levelled against the respondent/workman. The Enquiry Officer submitted his enquiry report dated 25th March, 1983, with the observation and finding that the matter has already been adjudicated upon by the Tribunal while awarding compensation, and therefore, no contrary finding could be arrived at, contrary to the decision already arrived at by the Tribunal/Court. The Enquiry Officer further observed that if any appeal was pending before any Appellate Court, as stated by the respondent/workman, the fact may be verified and any proposed action against the respondent/workman, may be kept in abeyance pending decision of the appeal. The Disciplinary Authority vide order dated 25th September, 1985, agreeing with the findings arrived at by the Enquiry Officer as well as with the judgment and order made by the Tribunal dated 4th June, 1981, awarding compensation of Rs. 15,000/- (Rupees: Fifteen Thousands Only); inflicted the penalty of removal from services in exercise of the powers under Regulation 34 read with 36(7). The respondent/workman raised an industrial dispute challenging the legality, validity and correctness of the office order dated 25th September, 1985, which ultimately has been adjudicated upon by the Labour Court, Jaipur, vide impugned award dated 4th June, 1997.

Mr. V.S. Yadav, learned counsel, on behalf of the petitioner-Corporation/employer, reiterating the pleaded facts and grounds of the writ application and the stand before the Labour Court in the reply to the statement of claim; vehemently argued that the impugned award passed by the Labour Court dated 4th June, 1997, is bad in the eyes of law for the same is based on assumptions and presumptions. Further, there is no legal evidence to sustain the impugned award. The findings arrived at during the course of adjudication on the reference made, are without jurisdiction as well as without application of mind so also against the settled propositions of law.

The learned counsel would further submit that in the departmental enquiry strict rules of evidence, as required under the provisions of the Indian Evidence Act, 1872, are not attracted and law in this regard is no more res-integra. The charges levelled against the respondent/workman were not required to be proved to the hilt, and therefore, the Labour Court fell in gross error and exceeded it''s jurisdiction by extensively quoting the evidence recorded by the Criminal Court while interfering with the findings arrived at in the departmental enquiry conducted.

The Enquiry Officer committed no error while returning a finding of guilt on the charge of loss suffered by the petitioner-Corporation on account of compensation to the tune of Rs. 15,000/- (Rupees: Fifteen Thousands Only) along with interest of 6%, as would be evident from the findings arrived at by the Tribunal while awarding compensation to the dependents of the deceased passenger vide award dated 4th June, 1981.

Since the vehicle was driven in a rash and negligent manner by the respondent/workman, though overloaded, resulted into failure of the breaks and damage to hauze pipe on account of sudden application of the breaks. Thus, the Labour Court was in clear error in ignoring these relevant aspects and hence, exceeded it''s jurisdiction in interfering with the penalty imposed by the petitioner-Corporation.

The Tribunal while awarding compensation to the tune of Rs. 15,000/- (Rupees: Fifteen Thousands Only) along with interest, to the dependents of the deceased passenger, found the respondent/workman (driver) as well as the petitioner-Corporation responsible for the accident, and therefore, ordered for enforcement of the claim of compensation severally as well as jointly.

Moreover, the respondent/workman did not challenge the findings of the Tribunal arrived at while awarding compensation to the dependents of the deceased passenger vide award dated 4th June, 1981, therefore, the findings attained finality. Thus, the Labour Court had no authority to ignore the findings of the Tribunal arrived at while awarding compensation to the dependents of the deceased passenger.

The respondent/workman was under obligation to drive the Bus carefully and in case the Bus was overloaded, he was required to be extra cautious. Moreover, the fact noticed by the Labour Court, on the assertion of the respondent/workman, for the vehicle was carrying about 200 passengers, is without any corroborative evidence.

The learned counsel further urged that failure of the breaks and damaged to the hauze pipe was on account of sudden application of the breaks, is a finding arrived at by the Claims Tribunal while performing a quasi judicial function and the Labour Court committed gross error as it totally lost sight of this aspect of the matter as it could not have acted as an Appellate Authority over the findings arrived at by the Claims Tribunal.

The observations made by the Labour Court for the Bus was overloaded, as it was carrying about 200 passengers, the learned counsel submitted that the observations are without any material available on record in support thereof. Moreover, even if, the Bus was overloaded with the passengers to the extent as observed by the Labour Court, the respondent/workman, as a Driver, was at liberty not to drive the Bus in such a situation. According to the learned counsel, the action of the petitioner-Corporation in issuance of the charge sheet vide communication dated 5th June, 1982, and the enquiry proceedings conducted by the Enquiry Officer while returning a finding of guilt, is perfectly legal and valid.

The Disciplinary Authority having considered the totality of the facts, circumstances and materials available on record, supporting the finding of guilt arrived at by the Enquiry Officer, rightly inflicted the penalty of removal from service and the same cannot be faulted. The enquiry proceedings were found to be just, proper and fair on the analysis of evidence by the Labour Court, therefore, the impugned award dated 4th June, 1997, is beyond jurisdiction while holding that the charge was not proved.

In the alternative, the learned counsel would submit that there is no finding arrived at by the Labour Court while making the impugned award dated 4th June, 1997, that the respondent/workman was not gainfully employed and was without work in the entire period with effect from 1985 to 1996. Therefore, it can be safely presumed that the respondent/workman did not remain unemployed during all these 12 years. Be that as it may, since the respondent/workman has not been in the employment as a Driver for a long time, therefore, it will not be in the fitness of things to sustain the direction for reinstatement. In support of his submissions, the learned counsel has placed reliance on the opinion of the Hon''ble Supreme Court in the case of State of Haryana and Another Vs. Rattan Singh, , and Managing Director, Uttar Pradesh Warehousing Corporation and Another Vs. Vijay Narayan Vajpayee, .

I have heard the learned counsel for the petitioner-Corporation and with his assistance, perused the materials available on record.

During the pendency of the writ proceedings, the respondent/workman died on 25th May, 2010, and his legal representatives have been brought on record.

From the order-sheet drawn at the motion stage on 17th July, 1998, it is further reflected that the Court issued notice to the respondent/workman only on the issue of back wages. The order dated 17th July, 1998, reads thus:--

"Issue notice to the respondents.

Issue notice of stay petition also. Meanwhile, the recovery of back wages shall remain stayed."

Indisputably, the respondent/workman was in the employment of the petitioner-Corporation in substantive capacity as Driver. The accident occurred on 13th October, 1978. It is further reflected from the materials available on record that the petitioner-Corporation did not proceed against the respondent/workman departmentally until the Claims Tribunal made an award for compensation to the tune of Rs. 15,000/- (Rupees: Fifteen Thousands Only) along with interest, in favour of the dependents of the deceased passenger, who was traveling in the Bus at the time the accident occurred, as would be reflected from the charge sheet dated 5th June, 1982.

A bare perusal of the charge sheet would reveal that the respondent/workman was charge-sheeted for the accident that occurred on 13th October, 1978, while he was driving the Bus, which was found involved in the accident and an award for compensation was made to the tune of Rs. 15,000/- (Rupees: Fifteen Thousands Only) along with 6% interest, in favour of the dependents of the deceased passenger, holding the petitioner-Corporation as well as the respondent/workman (driver) responsible for the accident jointly and severally.

It is further reflected from the enquiry report dated 25th March, 1983, that one Hari Kishan, who deposed before the Enquiry Officer, in defence, on behalf of the respondent/workman, stated that the accident occurred on account of damage to the hauze pipe and failure of the breaks as well as for break down of the leaf springs (patta tutne se). PW-1 Lalaram (mechanic) and PW-2 Pokar Singh (mechanic), who deposed in support of the charges on behalf of the Management, were cross-examined. The Enquiry Officer while arriving at the conclusion of guilt, has recorded no reasons in support thereof rather has completely relied upon the observations made by the Claims Tribunal while awarding compensation to the dependents of the deceased passenger vide award dated 4th June, 1981, holding the petitioner-Corporation as well as the respondent/workman (driver), responsible for the death of the deceased passenger (Hanuwant Singh).

The conclusion of guilt qua the respondent/workman is based on agreement with the observations and findings arrived at in the award of compensation by the Tribunal with further observations to the effect that the fact of appeal, if any, filed by the respondent/workman (driver), may be confirmed and in the event of pendency of any appeal, the proposed action, against the respondent/workman, may be kept in abeyance.

The Labour Court has extensively dealt with the issue and arrived at a finding, even while taking into consideration the observations made by the Claims Tribunal vide award dated 4th June, 1981, that the vehicle was overloaded and cause of the accident was on account of damage to the hauze pipe and break down of ''kamani'' (leaf springs), and for that, the respondent/workman (driver), could not be held responsible by any stretch of imagination.

Further, the mere fact that the petitioner-Corporation had to suffer monetary loss to the extent of Rs. 15,000/- along with 6% interest, as compensation on account of death of the passenger on the Bus, cannot be a circumstance to hold the respondent/workman as guilty for the charge of rash and negligent driving. Moreover, the conductor is responsible for issuing tickets and ingress to the passengers to the Bus. No action was proposed against the conductor of the Bus, therefore, even if, the vehicle was supposed to be overloaded, the respondent/workman cannot be held responsible.

There is no independent evidence available on record to sustain the finding of rash and negligent driving attributed to the respondent/workman. Furthermore, the respondent/workman has been acquitted of the charges for the offence under Section 279 and 304-A of IPC.

From the enquiry report, it is also reflected that there is no material or relevant consideration as well as any substantial evidence, to arrive at the finding of guilt for the charge of rash and negligent driving on the part of the respondent/workman. The very fact that the mechanical inspection report of the vehicle (Bus) reflected damage to hauze pipe, break down of leaf springs and failure of the breaks, goes to show that the petitioner-Corporation was negligent in maintenance of the vehicle (Bus).

The petitioner-Corporation had to suffer monetary loss of Rs. 15,000/- (Rupees: Fifteen Thousands Only) with 6% interest as compensation to the dependents of the deceased passenger, is the basis for initiation of the departmental proceedings. This fact is evident for the accident occurred on 13th October, 1978, but no departmental proceedings were initiated against the respondent/workman until the award for compensation was made by the Claims Tribunal on 4th June, 1981. Thus, it is apparent on the face of record that the sole basis for initiation of the departmental proceedings was the compensation awarded by the Claims Tribunal vide award dated 4th June, 1981, and not for any misconduct for rash and negligent driving attributed to the respondent/workman before the award made by the Claims Tribunal.

In the case of State of Haryana (supra), the Hon''ble Supreme Court propounded the principle that in a domestic enquiry, the strict and sophisticated rules under the Indian Evidence Act may not apply. All the materials, which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Evidence Act. Their Lordships further held that the essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiates the conclusions reached, such finding even though of a domestic tribunal, cannot be held good.

In the instant case at hand, as would be reflected from the enquiry report, there is no reasoning on the basis of some evidence while arriving at the conclusion/finding of guilt qua the respondent/workman. The Enquiry Officer simply agreed with the findings arrived at by the Claims Tribunal while awarding compensation to the dependents of the deceased passenger. The Enquiry Officer further observed that the proposed action against the respondent/workman be kept in abeyance, if any appeal was pending as stated by the respondent/workman. It is apparent on the face of record that there is no independent appreciation of the relevant facts and the materials available on record. There is no finding arrived at by the Enquiry Officer on the issues of break down of the leaf springs (kamani), damage to the hauze pipe and failure of the breaks as reported by the mechanic while conducting mechanical inspection of the Bus involved in the accident, which was driven by the respondent/workman as driver of the petitioner-Corporation.

The question about the limited scope of writ jurisdiction in the matters like one at hand, has been considered by the Hon''ble Supreme Court time and again. In the case of Syed Yakoob Vs. K.S. Radhakrishnan and Others, , the Hon''ble Supreme Court observed that a writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals and thus, cases have been stated to be where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. Exercise of writ jurisdiction could also be resorted to where the court or tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt, that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the same cannot be undertaken as an appellate function meaning thereby that the findings of fact arrived at by the inferior court or tribunal, as a result of the appreciation of evidence, cannot be reopened or questioned in writ proceedings. Fundamentally, an error of law which is apparent on the face of record can be corrected by a writ, but not an error of fact, however, grave it may appear to be.

A finding of fact could be interfered, if same is arrived at erroneously, refusing to admit admissible and material evidence or had erroneously admitted inadmissible material which has influenced the impugned finding. Similarly, a finding of fact is based on evidence, that would also be open to interference in writ jurisdiction as it would amount to an error of law. Insufficiency or inadequacy of material evidence brought on record, to sustain the impugned finding, is not open to challenge in writ proceedings since the inference drawn on the basis of adequacy or sufficiency of the evidence led, on a point, is within the exclusive jurisdiction of the Tribunal and the same cannot be agitated before a writ court.

In the instant case at hand, the findings arrived at by the Labour Court on the sufficiency or adequacy of the material evidence adduced by the parties, has been canvassed referring to the conclusion arrived at by the Claims Tribunal while awarding compensation to the dependents of the deceased passenger vide award dated 4th June, 1981. The Labour Court has considered, in detail, the facts and the evidence while arriving at the finding to the effect that the deceased respondent/workman (driver) could not be held responsible for the accident in the face of materials available on record and further concluding lapse on the part of the petitioner-Corporation in properly maintaining the vehicle (Bus) since there was a damage to the hauze pipe and failure of breaks.

Moreover, even the Claims Tribunal, jointly and severally held responsible the petitioner-Corporation as well as the respondent/workman (driver) while awarding the compensation. The Enquiry Officer did not base his reasoning on substantial evidence and materials on record, while returning a finding of guilt on the charge for rash and negligent driving, resulting into liability of compensation on the petitioner-Corporation, but simply agreed to the conclusions arrived at by the Claims Tribunal while determining the claim of compensation to the dependents of the deceased passenger.

For the reasons and discussions herein above, I do not find any ground, legally sustainable, calling for interference in exercise of writ jurisdiction in the impugned award passed by the Labour Court dated 4th June, 1997.

During the pendency of the writ proceedings, the respondent/workman has died, and therefore, the relief to the extent of reinstatement has become infructuous. Be that as it may, at the motion stage, the issue was restricted only to the extent of admissibility of the back wages.

The Hon''ble Supreme Court in the case of State of Maharashtra and Others Vs. Kanchanmala Vijaysing Shirke and Others, , while examining the issue of vicarious liability for any act of employee(s) of the employer in the course of employment, held thus:--

"17. Incidentally, it may be pointed out that in Motor Vehicles Act, 1939. Chapter VII A "liability without fault in certain cases" has been introduced (Chapter X of the Motor Vehicles Act, 1988), Sub-section (1) of Section 92A provides that where the death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle, the owner of the vehicle shall be liable to pay compensation in respect of such death or disablement in accordance with the provisions of the said Section. Sub-section (2) specifies a fixed amount for such liability without fault. In view of Sub-section (3), the claimant is not required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner of the vehicle. Sub-section (4) of that Section says in clear and unambiguous words that a claim for compensation under Sub-section (1) of that Section shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made. Section 92B clarifies that the right to claim compensation under Section 92A in respect of death or permanent disablement of any person shall be in addition to any other right i.e. the right to claim compensation on principle of fault. The introduction of provisions creating liability without fault gives out that the Parliament has provided for payment of compensation within certain limits, ignoring the principle of fault. When even under the law of tort, courts have held that the employer is vicariously liable for an authorised act done in an unauthorised manner taking into consideration the interest of the victims of the accident, according to us, this approach is all the more necessary while judging the liability of the owner of the vehicle under the statutory provisions of the Motor Vehicles Act." 35. In the instant case at hand, it is not disputed that the respondent/workman has been acquitted of offence under Section 279 and 304-A of IPC. Once, it is established that the negligent act of the driver was in course of employment, the State shall be liable to make payment of the amount of compensation. The accident took place while the petitioner was performing the duty of the driver, during the course of his employment, and therefore, the petitioner-Corporation was liable to pay the compensation payable on account of the accident, as awarded by the Tribunal, and the respondent/workman cannot be made liable for the same.

Indisputably, the respondent/workman was a substantive employee of the petitioner-Corporation and was in employment discharging his duties while the accident occurred.

For the reasons and discussions herein above, the writ petition is devoid of any substance and deserves to be dismissed.

Ordered accordingly.

In view of the final adjudication on the writ application, the stay application stands closed.

The petitioner-Corporation is directed to ensure compliance of the impugned award dated 4th June, 1997, according entire back wages with all consequential benefits. The relief to the extent of reinstatement has become infructuous as the respondent/workman died during the pendency of the writ application on 25th May, 2010. The exercise in order to release the consequential benefits must be ensured by the petitioner-Corporation within a period of two months from the date of receipt of certified copy of this order.

However, in the facts and circumstances of the case, there shall be no order as to costs.