P. Mahimaidoss vs Tamil Nadu State Transport Corporation

N. Paul Vasanthakumar, J.—The petitioner, while working as Driver in the respondent Transport Corporation was proceeded with in a

criminal case u/s 304A I.P.C., before the Judicial Magistrate, Vanur, for having committed an accident due to which a cyclist was killed. He was

also proceeded departmentally for the same incident and after enquiry, the charge was found proved, holding that on 10.5.1999, while the

petitioner was driving the bus bearing registration No. TN-21-N-0460 owned by the respondent Corporation, in Route 188-A/B, in a rash and

negligent manner, a cyclist died on the spot. Based on the enquiry report, an order of punishment was passed by the Transport Corporation on

9.1.2001 and his pay was reduced for five years from the basic pay of Rs. 4,010 to Rs. 3,410. It is also stated in the said order that the period of

pay reduction will postpone his increments.

The petitioner filed appeal against the said order on 18.10.2001 and no order having been passed, he filed W.P. No. 24408 of 2001 and on

14.12.2001 this Court directed the appellate authority to pass orders in the appeal pursuant to which on 13.2.2002 the appellate authority passed

an order modifying the punishment for a period of four years instead of five years.

The above said orders are challenged in this writ petition by contending that the criminal case initiated against the petitioner in C.C. No. 82 of

2000 in respect of the very same accident, the learned Judicial Magistrate, Vanur, by judgment dated 21.6.2001 acquitted the petitioner, that the

punishment imposed against the petitioner is highly excessive, and that the petitioner was not punished for any delinquency earlier.

The learned Counsel for the petitioner argued that the accident occurred on 10.5.1999 is the first accident committed by the petitioner and the

Criminal Court having acquitted the petitioner, the respondents ought not to have imposed the punishment, which affect his pay and retirement

benefits.

Since the learned Counsel for the petitioner asserted that the subject matter of the accident is the only accident committed by the petitioner

during his service, the entire file was directed to be produced by the learned Counsel for the respondent, who in turn produced the file and from

the file it is found that the petitioner had committed the following accidents:

(i) Fatal accident on 2.1.1986 and he was suspended on 2.1.1986 and on 30.7.1986 the period of suspension was considered as leave and

punishment of postponement of increment for six months with cumulative effect was imposed.

(ii) Minor accident on 31.3.1989 for which he was imposed with the punishment of postponement of increment for three months with cumulative

effect.

(iii) Major accident on 4.5.1994 and suspended on 17.5.1994 till 31.5.1994, for which the petitioner was imposed with the punishment of

withholding of increment for three years with cumulative effect.

(iv) On 26.7.1989 committed minor accident and a sum of Rs. 200/- was recovered towards cost of damage caused to the vehicle.

(v) On 25.11.1997 committed a major accident, for which suspended and he was imposed with the punishment of withholding of increment for

two years with cumulative effect and a fine of Rs. 772/- towards damages caused to the vehicle. Apart from the above, there are also punishments

for various delinquencies totally for 13 times.

From the above narrated facts which is recorded in the file, it is evident that even in the year 1986 the petitioner committed fatal accident and he

was leniently dealt with. In the year 1994 and 1997 also the petitioner committed major accidents and the subject matter of the accident committed

by the petitioner on 10.5.1999 is the 4th major accident in which one cyclist was killed on the spot due to the rash and negligent driving of the

petitioner.

On perusal of the criminal court Judgment made in C.C. No. 82 of 2000 dated 21.6.2001 it is clear that the petitioner was acquitted by giving

benefit of doubt and not on merits. It is the specific case of the petitioner that the accident was in fact committed, however he alone is not fully

responsible for the accident.

Taking note of the over all view of the matter the respondent Transport Corporation imposed only lenient punishment of reduction in pay for five

years, which was modified in the appeal for four years.

Whether acquittal in criminal case has got any bearing in the departmental proceedings, was considered in the following cases:

(a) In Lalit Popli Vs. Canara Bank and Others, , in paragraphs 16 to 19 it is held thus:

It is fairly well settled that the approach and objective in criminal proceedings and the disciplinary proceedings are altogether distinct and

different. In the disciplinary proceedings the preliminary question is whether the employee is guilty of such conduct as would merit action against

him, whereas in criminal proceedings the question is whether the offences registered against him are established and if established what sentence

should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial are conceptually different.

(See State of Rajasthan v. B.K. Meena) In case of disciplinary enquiry the technical rules of evidence have no application. The doctrine of ''proof

beyond doubt'' has no application. Preponderance of probabilities and some material on record are necessary to arrive at the conclusion whether

or not the delinquent has committed misconduct.

While exercising jurisdiction under Article 226 of the Constitution the High Court does not act as an appellate authority. Its jurisdiction is

circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of

natural justice. Judicial review is not akin to adjudication of the case on merits as an appellate authority.

In B.C. Chaturvedi v. Union of India the scope of judicial review was indicated by stating that review by the court is of decision-making

process and where the findings of the disciplinary authority are based on some evidence, the court or the tribunal cannot reappreciate the evidence

and substitute its own finding.

As observed in R.S. Saini v. State of Punjab in paras 16 and 17 the scope of interference is rather limited and has to be exercised within the

circumscribed limits.

(b) In Ajit Kumar Nag Vs. General Manager (P.J.), Indian Oil Corporation Ltd., Haldia and Others, in paragraph 11, the Supreme Court held as

follows:

As far as acquittal of the appellant by a criminal court is concerned, in our opinion, the said order does not preclude the Corporation from

taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an

employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are

entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate

punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance

with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally

inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is

necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to

appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the

prosecution is able to prove the guilt of the accused ''beyond reasonable doubt'', he cannot be convicted by a court of law. In a departmental

enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of ''preponderance of probability''.

Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of

the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned

order dismissing him from service deserves to be quashed and set aside.

(c) The Division Bench of this Court in the decision reported in 2005 (1) CTC 625 (The Management of Thiruvalluvar Transport Corporation v.

S. Anthonysamy) in paragraphs 8 to 13 held as follows:

It is well settled that on the same charges when there is a criminal proceeding as well as a domestic enquiry, merely because the workman is

found innocent in the criminal case, it does not mean that he cannot be found guilty in the departmental/domestic enquiry vide Thenmozhi v. The

Chairman & Managing Director, Neyveli Lignite Corporation in W.A. Nos. 202 and 203 of 2005 dated 8.2.2005.

In the aforesaid Division Bench decision reliance had been placed on the Supreme Court decisions in Allahabad District Co-operative Bank

Ltd., Allahabad Vs. Vidhya Varidh Mishra, and Secretary, Ministry of Home Affairs and Anr. v. Tahir Ali Khan Tyagi JT 2002 (Supp.1) SC 520.

In paragraph 12 of the decision in Allahabad District Co-Op. Bank Ltd. v. Vidhya Varidh Mishra (supra) the Supreme Court observed:

Mr. Rao submitted that the respondent had been exonerated by the criminal Court. He submitted that the termination was only on the basis of his

conviction. He submitted that as his conviction is set aside, the Courts below were right in reinstating the respondent. We are unable to accede to

this submission. The termination was pursuant to a disciplinary inquiry. It is settled law that in a disciplinary inquiry a conclusion different from that

arrived at by a criminal Court, may be arrived at. The strict burden of proof required to establish guilt in a criminal Court is not required in

disciplinary proceeding. The respondent has not claimed that the disciplinary proceedings were not conducted fairly. As the termination was based

on findings of the Disciplinary Committee, the fact that the appellate Court exonerated the respondent was no consequence.

Similarly, in Secretary, Ministry of Homes Affairs and Anr. v. Tahir Ali Khan Tyagi (supra) the Supreme Court observed (vide paragraph -6):

Departmental proceeding and criminal proceeding can run simultaneously and departmental proceeding can also be initiated even after acquittal in a

criminal proceeding particularly when the standard of proof in a criminal proceeding is completely different from the standard of proof that is

required to prove the delinquency of a government servant in a departmental proceeding, the former being one of proof beyond reasonable doubt,

whereas the latter being one of preponderance of probability.

In view of the above, we are clearly of the opinion that the Labour Court proceeded on a wrong legal basis and wrongly ordered reinstatement

of the workman concerned after finding that he was guilty of negligence.

In Divisional Controller, KSRTC (NWKRTC) Vs. A.T. Mane, the Supreme Court observed that ""once a domestic tribunal based on

evidence comes to a particular conclusion normally it is not open to the appellate tribunal or Courts to substitute their subjective opinion in the

place of the one arrived at by the domestic tribunal.

The issue as to how the drivers committing accidents shall be dealt with, is considered in the decision reported in 2004 (4) LLJ Supp 362 (M.

Chella Thambi v. Presiding Officer, Labour Court, Madurai and Anr.) and in paragraph 8 it is held thus,

In so far as such conduct of the drivers of a public transport corporation are concerned, time and again, it has been repeatedly held that the

doctrine of res ipsa loquitur would apply, that is, the accident speaks for itself. In other words, when it is in the exclusive knowledge of the driver,

who caused the accident, it is but proper that he discharges the onus, namely, that the accident did not happen due to his rash and negligent driving,

but due to various other reasons not attributable to him. In fact, in the Division Bench judgment cited by the learned Counsel for the second

respondent, reference has been made to three decisions of Hon''ble Supreme Court reported in Pushpabai Purshottam Udeshi and Others Vs.

Ranjit Ginning and Pressing Co. (P) Ltd. and Another, ; State of Karnataka Vs. Krishna alias Raju, and Dalbir Singh Vs. State of Haryana, . In the

judgment reported in State of Karnataka v. Krishna (supra), the Hon''ble Supreme Court has cautioned to the effect that where a driver of a public

transport Corporation is found to have caused a fatal accident, the same has to be looked at with certain amount of seriousness, since the public

safety and convenience is paramount, the Court should not fall a prey to the plea of misplaced sympathy. The Hon''ble Supreme Court has also

held that award of punishment has to be weighed keeping in view the interest of the public at large and the travelling passengers and the disciplinary

actions are taken more as preventive measure so that it may work as an effective warning against other drivers to behave befitting their duties and

maintaining due discipline in the establishment.

The scope of judicial review in disciplinary matters is also considered by the Supreme Court in B.C. Chaturvedi Vs. Union of India and others,

, the Supreme Court held as follows:

A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding

authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose

appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial

review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary

authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the

disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose

appropriate punishment with cogent reasons in support thereof.

The same view is reiterated in the subsequent decisions reported in V. Ramana Vs. A.P.S.R.T.C. and Others, and State of U.P. and Another Vs.

Man Mohan Nath Sinha and Another, .

Applying the principles laid down in the above referred judgments of the Supreme Court, I hold, no case is made out to interfere with the

punishment imposed on the petitioner. Consequently the writ petition is dismissed. There will be no order as to costs.