Management of NWKRTC Hubli Division vs S.S. Gudihal

A.S. Bopanna, J.—The petitioner is assailing the award dated 30/07/2008 passed in ID No. 58/2001.

The petitioner who was working as a driver in the petitioner-Corporation had met with an accident while he was driving the bus to which a cyclist succumbed. On the charges of causing the accident due to his negligence, an inquiry was held and he was punished by the order dated 04/07/1994 by withholding 3 increments. The respondent claiming to be aggrieved raised a dispute which was referred to the Industrial Tribunal under Section 10(1)(c) of the Industrial Disputes Act, 1947 (the "ID Act" for short). The validity of the domestic inquiry held against the respondent was considered as a preliminary issue before the Industrial Tribunal which was held against the Management. Despite the domestic inquiry held to be not fair and proper, the petitioner at the first instance did not choose to tender fresh evidence before the Industrial Tribunal to establish the charges, the Industrial Tribunal had, therefore, allowed the reference. The petitioner claiming to be aggrieved was before this Court in Writ Petition No. 1046/2000 assailing the award passed by the Industrial Tribunal. This Court had remanded the matter to the Industrial Tribunal providing an opportunity to the petitioner to tender evidence on merits before the Industrial Tribunal. Subsequent thereto, the evidence as available has been analyzed by the Industrial Tribunal and on holding that the charge alleged against the petitioner had not been established afresh before it, the Industrial Tribunal has set aside the punishment imposed on the respondent. The petitioner is before this Court assailing the award passed by the Industrial Tribunal.

Heard the learned counsel for the parties and perused the petition papers.

The learned counsel for the petitioner would contend that the Industrial Tribunal was not justified in arriving at the conclusion that the Management has not established the charge before the Industrial Tribunal. It is contended that the manner in which the accident had occurred would disclose that the respondent was rash and negligent in driving the bus and therefore in such circumstance, the Industrial Tribunal ought to have accepted the evidence which was available on record to come to the conclusion that the action initiated against the respondent is justified.

The learned counsel for the respondent would however seek to sustain the award passed by the Industrial Tribunal.

In the light of the above a perusal of the petition papers including the award passed by the Industrial Tribunal would disclose that the Industrial Tribunal was conscious of the situation that the petitioner management would have to tender evidence afresh before it to establish the charge. It is in the circumstance, that Industrial Tribunal has referred to the evidence tendered through Maheshappa Angadi, a retired Traffic Controller who had worked at Hirekerur in 1992. From his evidence, it has been noticed that he was not a witness to the accident. Even if that be so, the Industrial Tribunal has taken into consideration the description as made by him with regard to the accident. In that light, the manner in which the accident had occurred has also been taken into consideration based on the materials available on record and the Industrial Tribunal has noticed that the place where the accident had occurred was a narrow road and there was no place on either side of the road. It has been further noticed that on one side of the road there was a fence and on the other side there was a ditch. The said reference by the Industrial Tribunal was to emphasize the fact that the driver of the bus did not have sufficient space to negotiate and to avoid the accident Based on such observation, the Tribunal has arrived at the conclusion that there was no negligence on the part of the respondent. Even though the fact that the accident had occurred is established, in a matter of present nature when the respondent is sought to be punished on the ground that the accident had occurred due to his negligence it would not be sufficient for the management to prove only the fact that the accident had occurred. In fact the management would have to tender evidence to establish the fact that the accident has occurred due to the negligence of the driver. Therefore, he is liable to be punished. In the instant case on independent examination of the material by the Industrial Tribunal it has arrived at a finding of fact that the petitioner management had failed to establish that the respondent driver was negligent in causing the accident.

Having arrived at such a conclusion, the Industrial Tribunal has also kept in view the fact that though the charge sheet had been filed against the respondent-driver alleging that he had committed offence punishable under Section 304A of the Indian Penal Code it was to be proved that the respondent was negligent in causing the accident. In the said proceedings, the learned Magistrate on considering this has acquitted the respondent in CC No. 345/1992. It is no doubt true that the nature of consideration in the criminal proceedings and the domestic inquiry are distinct and different inasmuch as in the domestic proceedings, it would be the preponderance of probabilities by which a conclusion has to be reached. However, in the instant case when the allegation is of the negligence in causing the accident, when the Tribunal has arrived at the conclusion that the same has not been proved and in the criminal proceedings also he has been acquitted, I am of the opinion that the award as passed by the Industrial Tribunal does not call for interference in a writ proceedings.

Accordingly, the petition being devoid of merits stands disposed of.