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Judgment
A. Kulasekaran, J.—The petitioner has come forward with this writ petition praying for a Writ of Certiorarified Mandamus calling for the
records relating to the order passed by the first respondent in TNSTC/TS/D6/32 dated 22.12.2003 and confirmed by the second respondent in
Ref. No. TNSTC/Kumb/ Thovoo/95 dated 26.04.2004, quash the same and consequently direct the respondents to reinstate the petitioner with
all backwages and other service benefits.
The petitioner appeared party in person and he submitted as follows:
The petitioner was appointed as driver in the respondents corporation on 17.10.1991 and he received several accident free awards. On
04.05.2002 when he was driving the bus bearing No. TN-63-0675 from Sivagangai to Karaikudi, at about 7.55 p.m. while nearing Kundrakudi,
in order to avoid head on collision with the vehicle coming in the opposite direction, he applied sudden brake, however, the bus dashed the
stationary jeep and a private bus parked on the other side of the road. In the said accident, two persons died on the spot and four persons were
injured, but none of the passengers boarded on the bus driven by the petitioner were affected or suffered any injuries. Thereafter, the first
respondent placed the petitioner under suspension from 07.05.2002 and a charge memo was issued on 13.05.2002, for which the petitioner has
submitted a reply dated 18.05.2002 denying the charges. Not satisfied with the reply submitted by the petitioner, an enquiry officer was appointed,
who delayed in completing the enquiry, however submitted his report on 29.06.2002. In the meantime, the first respondent has revoked the order
of suspension on 10.06.2002. On receipt of the enquiry report, the first respondent issued second show cause notice dated 16.07.2002 calling
upon the petitioner to submit as to why he should not be dismissed from service, for which the petitioner has submitted his reply on 28.07.2002
denying all the charges and submitted that the accident occurred due to mechanical defect, however, the first respondent has erroneously passed
the order dated 22.12.2003 dismissing the petitioner from service. Aggrieved by the said order of dismissal, the petitioner has filed an appeal
before the second respondent on 17.01.2004, who, without properly considering the case of the petitioner rejected the appeal by its order dated
26.04.2004. The respondents also filed Approval Petition No. 404 of 2003 before the Joint Commissioner of Labour (Conciliation) Chennai u/s
33(2)(b) of the Industrial Disputes Act, 1947 and the said authority has passed an order dated 22.12.2006 erroneously according approval for the
dismissal. The charges levelled against the petitioner was that he driven the vehicle in a rash and negligent manner, but the enquiry officer, in his
report gave a finding that he drove the bus in a sleepy mood, hence, the accident occurred. The respondents failed to note that the petitioner has
reported certain defects in the gear box of the bus and written it in the day to day maintenance register but the authorities without carrying out the
repairs directed the petitioner to ply the vehicle. Thus, the accident occurred due to the mechanical defect for which the petitioner not to be held
responsible, which facts were not at all considered by the enquiry officer or the respondents. The stationary jeep was on the other side of the road
without light when the petitioner applied sudden brake to avoid head on collision with the vehicle came in opposite direction, but his bus was
dragged to the other side due to mechanical defect and hit against the stationary jeep and bus, however no one in the bus driven by the petitioner
affected or sustained injuries, which itself show that the bus was driven with due care and diligence by the petitioner. The first respondent imposed
only lesser punishment to the drivers who involved in similar accidents as mentioned below:
S. No. Name of the Persons died Punishment
Driver imposed
1) A. Maria Joseph Two cyclists No punishment
No. 86228 died at the spot
Karaikudi Branch at Amaravathi
Pudhur
2) S. Prem Sahib Three persons died Stoppage of
No. 86036 while travelling increment for
Karaikudi Branch in Maruthi Car at three years
Mathur near Trichy
3) Thavasi Two Motor Cyclists Stoppage of
Driver No. 83116 died in the spot increment for
Sivaganga Branch at Manamadurai two years
4) S. Durairaj Two Constables died - do -
No. 96078 while travelling in
Karaikudi Branch a car at Melur,
Madurai
5) K. Kandasamy Two pedestrians - do -
No. 94046 belonging to MDMK
Karaikudi Branch Political party
died at Madurai
The above said facts prove that the petitioner alone was discriminated by the respondents and inflicted with major punishment of dismissal from
service for extraneous reasons. The order of dismissal passed by the first respondent is not based on the enquiry report relating to the present
charge memo but only based on the previous punishments imposed on the petitioner and if the first respondent want to rely on the said previous
punishments, he should have been given an opportunity to explain his case, but no such opportunity was given to him, hence, the order of dismissal
passed by the first respondent is violative of principles of natural justice. The first respondent has passed a non-speaking order by relying upon the
earlier punishments without discussion about the present charges or the evidence adduced by both sides and the second respondent/appellate
authority also, in the absence of any valid evidence erroneously confirmed the order passed by the first respondent and prayed for quashing of both
the orders.
The learned standing counsel appearing for the respondents/corporation submitted as follows:
The petitioner, while driving the bus bearing No. TN-63-0675 caused fatal accident on 04.05.2002 in a trip from Sivagangai to Karaikudi at
Kundrakudi. The said accident occurred due to the rash and negligent driving of the petitioner in which two persons died on the spot and four
persons sustained injuries and all the vehicles involved were damaged. The petitioner was placed under suspension immediately, a charge memo
was issued for which he submitted his explanation, which was not satisfactory, hence, a domestic enquiry was ordered. The enquiry officer
appointed by the corporation conducted detailed enquiry and submitted his report that charges against the petitioner were proved. The first
respondent, considering the report of the enquiry officer and the evidence on record found that the charges against the petitioner is proved.
Thereafter, the first respondent has issued second show cause notice for which the petitioner also submitted his explanation and thereafter, the
order of dismissal from service was passed by the first respondent. Prior to the said accident, the petitioner visited punishments of warning on four
occasion; recovery order was passed on three occasion; suspended for misbehaviour on one occasion and increment cut for misbehaviour.
Considering the past records of the petitioner and the gravity of the offence committed by him, the first respondent has rightly passed the order of
dismissal dated 22.12.2003 and the same was confirmed by the second respondent. The respondents have also filed Approval Petition No. 404 of
2003 before the Joint Commissioner of Labour (Conciliation) Chennai, who after careful consideration of the evidence on record accorded
approval by order dated 22.12.2006 stating that proper domestic enquiry was conducted by the respondents in accordance with the relevant
standing order after following the principles of natural justice; that prima facie case for dismissal based on legal evidence adduced in the domestic
enquiry, rejected the plea that respondents adopted unfair labour practice and one month wage was paid to the petitioner and the respondents
have applied for approval within seven days. It is incorrect to state that the petitioner has received several accident free awards, the fact remains
that during the year 2001-2004, he has received only one accident free award.
This Court carefully considered the argument of both sides and perused the records. The charge against the petitioner was on 04.05.2002, while
he was driving the vehicle bearing No. TN-63-0675 from Sivagangai to Karaikudi, at about 7.57 p.m. when the bus was in between Kundrakudi
and Padharakudi, driven in a rash and negligent manner, crossed the central line of the road, run over the stones which were kept 25 feet away
from the place where a stationary jeep and bus were parked, as a mark to show that they were parked for carrying out repairs and dashed against
both. In the said accident, two persons who were carrying out the repairs of the bus died on the spot and four others accompanied them were
injured and damages were caused to the private bus to the tune of Rs. 5,000/- and also to the bus belonging to the respondents/corporation
thereby committed the offence mentioned in Clause 16(k) and (q) of the standing orders of the corporation. After the said accident, one Murugan,
Branch Manager, who was later examined as PW1, inspected the scene of occurrence at 12.00 Noon on 05.05.2002 and submitted his report
stating that the accident took place due to the rash and negligent driving of the petitioner. Pursuant to the said report, charge memo dated
13.05.2002 was issued to the petitioner calling upon him to submit his explanation and the petitioner also submitted his explanation dated
18.05.2002.
In the explanation, the petitioner has denied all the charges and stated that a vehicle which came in the opposite direction was driven rashly and
negligently, in a zig zag manner with bright headlights, in order to avoid head on collision, he drove the bus to the right side of the road, slowed
down it for a while so that the said vehicle proceeding from opposide side be allowed to cross, but the brake efficiency was in poor condition, it
dashed against the jeep and the bus; that seven days prior to the occurrence, the petitioner has written in the day-to-day register maintained by the
respondents corporation about the mechanical defect and that one Premsa Sahib, another driver of the said bus also reported mechanical defect,
but the Corporation Assistant Engineer Selvaraj neither taken steps to repair it nor gave spare bus and requested the petitioner to ply the same by
adjusting it. Even on the date of accident, the brake condition was not good, hence, the petitioner was constrained to approach a mechanic, who
adjusted it, however, it was not corrected fully, thus, the said mechanical defect was the reason for the accident; that within half an hour of the
accident, one Bothalingam, who was incharge of night duty of the corporation workshop came to the spot and inspected, who was the correct
person to submit the basic report, but the respondents/management deliberately sent the said Murugan, Branch Manager, who was enemical to him
to submit basic report which was relied on for issuing the charges.
It is true that in the explanation submitted by the petitioner the above mentioned averments are found mentioned, but during the enquiry, he has
not chosen to examine the said Bothalingam or Co-driver Premsa Sahib nor summoned the documents relied on by him namely day-to-day
maintenance register etc., Even though the petitioner was allowed to have an Assistant to represent him, he strangely refused to avail the same. The
defence taken by the petitioner was that the bus was not in on road condition, which was the reason for the accident, if so, it is not known as to
how he has chosen to ply it or continued the trip. It is alleged by the petitioner that he saw a vehicle coming in the opposite direction with bright
headlights in a zig zag manner, to avoid head on collision, he crossed the central line, went to the right side of the road to slow down near the jeep
which was parked on the right side of the road and to allow the said vehicle to cross. No driver take such an erroneous decision, if at all, to avoid
accident, the vehicle could be taken to the left extreme.
One another adverse factor found in the explanation submitted by the petitioner was the brake mark of the bus found in the road was in straight
line upto the place where the jeep was parked. The enquiry officer pointed out the said brake mark, coupled with the evidence of Murugan and
came to a conclusion that the brake efficiency of the bus was good, hence, this Court is unable to accept the said contentions of the petitioner that
the vehicle was not driven in a rash and negligent manner.
The enquiry officer gave opportunity to the petitioner to cross-examine the witnesses on the side of the respondents/corporation and based on
their evidence gave a finding that the charges against the petitioner are proved, hence, this Court is of the view that the enquiry was proper and
valid.
It is not in dispute that the petitioner was served with enquiry report along with second show cause notice and called upon to give his
explanation. In the said second show cause notice, the first respondent has also pointed out the previous punishments visited by the petitioner and
proposed the punishment of dismissal. It is incumbent upon the authority to give the delinquent at the second stage reasonable opportunity to show
cause against the proposed punishment and if the proposed punishment is also based on his previous punishment or his bad record, it should be
included in the second show cause notice so that he may be able to give his explanation. A delinquent must be given a reasonable opportunity not
only to prove that he is not guilty of the charges levelled against him but also that the proposed punishment to be imposed is either not called for or
is excessive. Therefore, it is necessary that the delinquent must be told of the ground on which it is proposed to take such action. If the grounds are
not mentioned in the notice, it is impossible for him to predicate what is operating in the mind of the authority concerned in proposing a particular
punishment, he would not be in a position to explain why he does not deserve any punishment at all or such punishment proposed is excessive. If
the proposed punishment was based on the previous record of the delinquent and that was not disclosed in the notice, it would mean that main
reason for proposed punishment was withheld from the knowledge of the delinquent. It would be no answer to suggest that delinquent must have
had knowledge of the fact that his previous record would necessarily to be taken for consideration by the authorities in inflicting the punishment on
him nor it would be a adequate answer to show that he know as a matter of fact that the earlier punishments were imposed on him or that he knew
of his past record. State of Mysore Vs. K. Manche Gowda, In this case, as mentined above, in the second show cause notice, the previous
punishments visited by the petitioner were indicated and explanation was called for from him, which is also in accordance with law.
The averment that other drivers involved in similar accidents were awarded with lesser punishment but the petitioner was awarded capital
punishment of dismissal, which amounts to discrimination is concerned, each case has to be decided on its own merits, hence, the said comparison
is also untenable in law.
The argument of the petitioner was that the first respondent has not passed a speaking order. In departmental proceedings, the Disciplinary
authority is the sold Judge of facts and in case an appeal is presented to the Appellate Authority, the Appellate Authority has also the power/and
jurisdiction to re-appreciate the evidence and come to its own conclusion, on facts, being the sole fact finding authorities. Once findings of fact,
based on appreciation of evidence are recorded, the High Court in Writ Jurisdiction need not normally interfere with those factual findings unless it
finds that the recorded findings were based either or no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy
or inadequacy of the evidence is not permitted to be canvassed before the High Court. Since the High Court does not sit as an Appellate Authority
over the factual findings recorded during the departmental proceedings, while exercising the power of judicial review, the High Court cannot
normally speaking substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities. Even insofar as
imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the Disciplinary or the Departmental Appellate
Authority, is either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and
impose some other punishment or penalty. Followed Apparel Export Promotion Council Vs. A.K. Chopra, . This Court finds no such elements in
this case.
In view of the above discussion, this Court is of the view that interference of this Court is not warranted in the well considered order passed by
the respondents, hence, the writ petition is dismissed. No costs.