Syed Mumtaz Syed Moosa vs The Divisional Controller, Maharashtra State Road Transport Corporation

Z.A. Haq, J.—Heard Shri B.M. Khan, the learned Advocate for the petitioner and Shri R.S. Charpe, the learned Advocate for the respondent.

The petitioner-employee has filed this writ petition challenging the order passed by the subordinate Courts concurrently upholding the dismissal of the petitioner from the service.

The petitioner had been in the employment of the respondent-Corporation as driver since 1984. According to the petitioner, his record of service was good and unblemished till the incident which resulted in dismissal of the petitioner occurred. The petitioner was given charge-sheet dated 29th June, 1993 alleging that on 9th May, 1993 when the petitioner was driving the State Transport bus on Mangrulpir-Nanded route, an accident occurred with matador in which three passengers travelling in the matador died and 13 passengers travelling in the matador sustained injuries. According to the respondent-Corporation, the petitioner failed to maintain safe distance between the State Transport bus and the matador and had lost control over the bus because of which the bus dashed with the matador and three passengers fell from the matador and the bus passed over their bodies and they died on the spot. According to the respondent-Corporation, this amounted to misconduct. An inquiry was conducted against the petitioner and after the inquiry was completed, the inquiry report was submitted and the petitioner was dismissed from the service.

The petitioner being aggrieved by the decision of the respondent-Corporation filed complaint before the Labour Court under Section 28 read with Item 1 of the Schedule IV of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The learned trial Judge by the order passed on 10th November, 2000 concluded that the petitioner failed to prove that the inquiry conducted against him was not fair and proper and that the findings recorded by the Inquiry Officer were perverse. The learned trial Judge held that the punishment of dismissal of the petitioner from the service was not shockingly disproportionate and dismissed the complaint filed by the petitioner.

The petitioner aggrieved by the order above-mentioned filed the revision before the Industrial Court which is dismissed. The petitioner being aggrieved in the matter has filed this writ petition.

Shri B.M. Khan, the learned Advocate for the petitioner has submitted that the decision taken by the respondent-Corporation dismissing the petitioner from service is based on the inquiry report which according to the learned Advocate is not sufficient to prove the allegations levelled against the petitioner in the charge-sheet. It is submitted that when the State Transport bus driven by the petitioner reached near Kolambi Phata, the matador bearing No. MH-30-9600 carrying passengers unauthorisedly stopped near Kolambi Phata to enable the passengers to alight from the matador. It is submitted that because of the mistake committed by the matador driver, the dash between State Transport bus and the matador had taken place. According to the petitioner, the driver of the matador was not having the driving licence and was carrying passengers unauthorisedly. The learned Advocate has submitted that it has come in the inquiry that the passengers travelling in the matador were hanging outside the matador. It is submitted that in view of these facts, the petitioner cannot be penalised and deprived of his livelihood for the wrongs committed by the driver of the matador. The learned Advocate has submitted that there is nothing on the record to show that the accident had occurred due to rash and negligent driving by the petitioner. The learned Advocate has submitted that considering the past record of the petitioner, the punishment of dismissal from the service is shockingly disproportionate and is required to be set aside.

Shri Charpe, the learned Advocate for the respondent-Corporation has submitted that in the inquiry conducted against the petitioner it is found that the State Transport bus driven by the petitioner dashed against the matador which resulted in death of three passengers and injuring 17 persons passengers in the matador. It is submitted that the bus was also damaged and as per the Schedule-A Clause 15 of the Employees'' Discipline and Appeal Procedure, 1951, the petitioner is liable for the punishment. It is submitted that the inquiry report shows that the petitioner has caused grave loss to the Corporation and is liable for punishment as per clause 11 of the Schedule-A of the Employees'' Discipline and Appeal Procedure, 1951. It is submitted that similarly the charge of indiscipline is proved against the petitioner and the charge of breach of administrative order is also proved. The learned Advocate has submitted that the petitioner was driving the bus at a high speed because of which he could not control the bus and as per Clause 39 of Schedule-A the petitioner is liable for punishment for over-speeding.

It is submitted that the charges against the petitioner are found to be proved in the inquiry and the Labour Court has properly appreciated the material on the record and has recorded the finding of fact that the petitioner has failed to prove that the findings of Inquiry officer are perverse and that the punishment of dismissal is shockingly disproportionate. The learned Advocate has submitted that the Industrial Court has also examined the matter properly and has dismissed the revision filed by the petitioner.

Shri Charpe, the learned Advocate has submitted that the Labour Court has recorded the finding of fact that the petitioner has failed to prove that the inquiry conducted against him was not fair and proper. It is submitted that once this finding is recorded by the Labour Court, it is not open for the Labour Court or the Industrial Court to examine as to whether the findings recorded by the inquiry Officer regarding the misconduct and negligence are proper and otherwise. In support of his submission, the learned Advocate has relied on the judgment given by the Hon''ble Supreme Court in the case of U.P. State Road Transport Corporation Vs. Vinod Kumar, . Shri Charpe, the learned Advocate has submitted that the Inquiry Officer having found that the accident occurred due to rash and negligent driving by the petitioner and the petitioner having failed to prove that the finding recorded by the Inquiry Officer suffers from any perversity, it was not open for the Labour Court to examine as to dismissal of the petitioner from service was shockingly disproportionate. It is submitted that the Labour Court has rightly concluded against the petitioner by giving the finding that the dismissal of the petitioner is not shockingly disproportionate in the facts of the present case. In support of his submission, the learned Advocate has relied on the judgment given by this Court in the case of Maharashtra State Road Transport Corporation Vs. Manikrao Sahabrao Chavan and Another, . The learned Advocate has submitted that the burden was on the petitioner to prove that he was driving the bus at a slow speed. The learned Advocate has submitted that res ipsa loquitur principle applies to the present case and the fact that three passengers travelling in the matador were killed and 17 passengers travelling in the matador suffered injuries, is sufficient to show that the bus was driven by the petitioner rashly and negligently at a high speed. In respect of the submission about applicability of the res ipsa loquitur principle, the learned Advocate has relied on the judgment given by the Hon''ble Supreme Court in the case of Cholan Roadways Limited Vs. G. Thirugnanasambandam, .

I have considered the submissions made by the learned Advocates for the respective parties and have examined the record. I am conscious about the limitations of this Court while exercising the extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India. However, the Labour Court has recorded the finding that there is evidence on the record that the petitioner failed to keep sufficient distance between the State Transport bus and the matador and that the petitioner was driving the bus rashly and negligently and dashed with the matador which resulted in the accident and caused the death of three passengers and injuries to 17 passengers travelling in the matador. The above mentioned finding recorded by the Labour Court does not show the basis for coming to the above conclusion. Therefore, I have examined the inquiry report which is placed on record by the petitioner. In paragraph 6 of the inquiry report, it is recorded as follows:-

"The reason for the above incident is that the driver of S.T. has not kept the safe distance with the Matador and the matador in order to board the passengers stopped and in the speed the S.T. Driver has tried to overtake the matador due to which the matador was dashed from the side of conductor and due to which the accident occurred. The statement of the S.T. Driver that the matador has dashed to the bus does not appear to be true. Looking to the nature of loss of the S.T. Bus the S.T. Driver has dashed the matador which appears to be true, so also 3 passengers from the matador felt down and the tyre of the bus went upon them by left side and 17 passengers were injured. From this it is established that the driver was driving the bus with grave negligence which resulted in the said accident".

In paragraph 7(3) of the inquiry report, it is recorded as follows:-

"(3) Wilful damage to work in process, vehicle or to any other property of the corporation whether valuable or not, whether due to negligence or connivance at and/or failure to prevent such damage or loss thereof (Schedule-A Clause 15) present charge against the driver also stands proved, without keeping the distance between the two vehicles and by driving the bus negligently doing the Act of overtake due to which accident of serious nature can occurred. So also the driver of the bus could have seen that the passengers in the matador where hanging outside thereafter also without keeping and eye and with negligency by trying to overtake the matador the present accident of serious has been called".

The Inquiry Officer has concluded that the petitioner did not keep sufficient distance between the bus and the matador and negligently tried to overtake the matador overlooking that the passengers were hanging outside the matador. The Inquiry Officer has concluded that because of the negligence of the petitioner, the accident has taken place. However, the enquiry report does not show the basis for the conclusions.

The reliance placed by the learned Advocate for the respondent on the judgment given by the Honourable Supreme Court in the case of U.P. State Road Transport Corporation Vs. Vinod Kumar (supra) is misdirected. In that case, the employee had not challenged the correctness, legality or validity of the inquiry, still the Labour Court examined the legality of the findings recorded by the Inquiry Officer. In the facts of that case, the Hon''ble Supreme Court has recorded that it was not open for the Labour Court to examine the legality of the findings recorded by the Inquiry Officer.

The judgment in the case of Cholan Roadways Ltd. Vs. G. Thirugnansambandam (supra) does not assist the respondent. In paragraph 21 of the judgment, the Hon''ble Supreme Court has recorded that the principle of Res ipsa loquitur applied. In the fact of that case it was held that the burden is on the delinquent to show that the bus was being driven at a slow speed. It is recorded in paragraph 3 of the judgment that the bus was driven at a speed of 80 km per hour. The driver swerved to the extreme left side of the road and there was collusion with tamarind trees on the side of the road and because of dash seven passengers died and several persons were seriously injured. In the present case, it is not even alleged that any passenger travelling in the State Transport bus had suffered any injury. The passengers who died and suffered injuries were travelling in the matador and it has come on the record that the passengers were hanging outside the matador.

The judgment given by this Court in the case of Maharashtra State Road Transport Corporation Vs. Manikrao Sahabrao Chavan and anr. (supra) does not assist the respondent-Corporation. In that case, this Court recorded that the proportionality of a punishment is to be left to the employer, considering the facts of that case. In the present case, I have recorded that the conclusions of the Inquiry Officer are not based on the evidence and are perverse. I am not considering the proportionality of the punishment and the legality of the orders passed by the Labour Court and the industrial Court on the ground that the punishment given to the petitioner is shockingly disproportionate.

After examining the inquiry report, I find that the conclusions as recorded by the Inquiry Officer are not based on evidence. The findings recorded by the Inquiry Officer that the petitioner was driving the State Transport bus rashly and negligently and at a high speed without maintaining sufficient distance with the matador is based on the assumptions. While finding out the guilt of the delinquent, it is permissible for the Inquiry Officer to examine preponderance of probabilities, however, it does not mean that the inquiry Officer can give his findings as per his assumptions without there being objective consideration of the facts on the record. The inquiry Officer has not endeavoured to examine whether the driver of the matador had licence at the relevant time. The Inquiry Officer has not endeavoured to examine as to how many passengers were travelling in the matador. In my view, these facts were required to be considered by the Inquiry Officer as it has come on the record that the passengers were hanging outside the matador and three passengers died and 17 suffered injuries which shows that large number of passengers were travelling in the bus. The case of the petitioner is that the matador stopped at the Kolambi Phata to enable the passengers to alight from the matador. It was necessary for the Inquiry Officer to bring on record the situation of the bus and the matador at the time of accident and to record the finding that there was no mistake on the part of the driver of the matador. The Inquiry Officer got swayed by the result of the accident without examining the cause of the accident.

The Enquiry Officer has emphasised too much on the point that the petitioner was driving the bus at a high speed, without maintaining sufficient distance between the bus and the matador. According to the Enquiry Officer this amounted to rash and negligent driving by the petitioner. Apart from the fact that there is no material on the record to show that the petitioner was driving the bus at a high speed or without maintaining sufficient between bus and the matador, it cannot be said that only because the bus is driven at a high speed it amounts to rash and negligent driving. The Hon''ble Supreme Court in the judgment given in the case of Ravi Kapur Vs. State of Rajasthan, has recorded as follows:-

10 "In order to examine the merit or otherwise of contentions (b) and (c) raised on behalf of the appellant, it is necessary for the Court to first and foremost examine (a) what is rash and negligent driving; and (b) whether it can be gathered from the attendant circumstances. Rash and negligent driving has to be examined in light of the facts and circumstances of a given case. It is a fact incapable of being construed or seen in isolation. It must be examined in light of the attendant circumstances. A person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result. It may not be always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently. Both these acts presuppose an abnormal conduct. Even when one is driving a vehicle at a slow speed but recklessly and negligently, it would amount to ''rash and negligent driving'' within the meaning of the language of Section 279 IPC. That is why the legislature in its wisdom has used the words ''manner so rash or negligent as to endanger human life''. The preliminary conditions, thus, are that (a) it is the manner in which the vehicle is driven; (b) it be driven either rashly or negligently; and (c) such rash or negligent driving should be such as to endanger human life. Once these ingredients are satisfied, the penalty contemplated under Section 279 IPC is attracted.

(11) ''Negligence" means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the Court. In a given case, even not doing what one was ought to do can constitute negligence.

(12) The Court has to adopt another parameter, i.e., ''reasonable care'' in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when the pedestrian happen to be children of tender years. It is axiomatic to say that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others.

(13) The other principle that is pressed in aid by the courts in such cases is the doctrine of res ipsa loquitur. This doctrine serves two purposes one that an accident may be its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. The Courts have also applied the principle of res ipsa loquitur in cases where no direct evidence was brought on record. The Act itself contains a provision which concerns with the consequences of driving dangerously alike the provision in the IPC that the vehicle is driving in a manner dangerous to public life. Where a person does such an offence he punished as per the provisions of Section 184 of the Act. The Courts have also taken the concept of ''culpable rashness'' and ''culpable negligence'' into consideration in cases of road accidents. ''Culpable rashness'' is acting with the consciousness that mischievous and illegal consequences may follow but with the hope that they will not and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite consciousness (luxuria). ''Culpable negligence'' is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the neglect of civic duty of circumspection. In such a case the mere fact of accident is prima facie evidence of such negligence. This maxim suggests that on the circumstances of a given case the res speaks and is eloquent because the facts stand unexplained, with the result that the natural and reasonable inference from the facts, not a conjectural inference, shows that the act is attributable to some person''s negligent conduct. [Ref. Justice Rajesh Tandon''s ''An Exhaustive Commentary on Motor Vehicles Act, 1988'' (First Edition, 2010]".

This Court in the judgment given in the case of Paul Peter D''Mello Vs. State of Maharashtra reported in 1975 (1) LJSoft 217 has also observed that mere fast speed would unnecessarily amount to rash or negligent driving. The relevant paragraph no.9 is reproduced as follows:-

"(9) Excepting this the prosecution has lead no other evidence to prove the evidence. The only part of the evidence of the said two witnesses that relates to the question of rash or negligent act is a solitary statement by Malhari that the taxi was in a fast speed at that time. In my view, this evidence by itself would not necessarily show that the accused was driving the tax either rashly or negligently. The said evidence does not throw any light on how the incident had taken place. There is no other evidence to indicate how the injured person had crossed the road at that time, whether he had crossed from front of the taxi or from its rear, whether the accused had put on the light, blow the horn, etc. which would have been necessary, to find out whether the accused had driven the taxi rashly or negligently. If the injured person had been examined he would have been able to shed light on this. Mere fast speed would not unnecessarily amount to rash or negligent driving. (emphasis supplied). Even the evidence does not show the rate of speed at which the taxi was being driven by the accused. The fact that the accused had sped away cannot be relevant to show that accused was driving rashly or negligently. Medical evidence does not show that the injuries suffered by the injured person were due to any rash and negligent act. In my view, therefore, the evidence led by the prosecution fails to prove that the accused was guilty of rash or negligent act. The learned Magistrate was therefore, in error in holding the accused guilty of the charge under Section 279 or 338 of I.P.C."

The subordinate Courts have failed to examine the matter in the right perspective. Though in the charge-sheet given to the petitioner five charges are levelled, they are interrelated and are based on the charge that the petitioner was driving the State Transport bus rashly and negligently and the petitioner failed to maintain the distance between the State Transport bus and the matador because of which accident occurred.

In view of my finding that the charge of rash and negligent driving and failure on the part of the petitioner to maintain proper distance between the bus and matador having not been proved by the respondent-Corporation, the other charges of indiscipline, grave negligence on the part of the petitioner which resulted in causing loss to the respondent-corporation and breach of administrative orders, do not sustain the scrutiny of law.

In view of the above, I find that the order issued by the respondent-Corporation dismissing the petitioner from the service is unsustainable in law and it has to be set aside. Consequently, the order passed by the Labour Court dismissing the complaint filed by the petitioner and the order passed by the Industrial Court dismissing the revision filed by the petitioner are also set aside.

The petitioner has not pleaded that he is not gainfully employed during the period from the date of dismissal from the service. In view of this, the petitioner is not entitled for the back wages.

In view of the above, the writ petition is partly allowed. The order passed by the Labour Court in Complaint (ULP) NO. 269/1995 on 22.08.1995 and the order passed by the Industrial Court in Revision Application (ULP) no.9/2001 on 12th August, 2005 are set aside.

The order issued by the respondent-Corporation on 2nd of June, 1996 dismissing the petitioner from the service is quashed.

The respondent-Corporation shall reinstate the petitioner in the post in which he was working and grant him continuity of service and all other benefits treating the petitioner to be in service from the date of his initial appointment.

The petitioner shall not be entitled for the arrears of salary and actual payment of other monetary benefits from the date of his dismissal from the service till the date of this judgment.

The petitioner will be entitled for the increments notionally and the salary of the petitioner shall be paid to him giving the benefit of notional increments.

Rule is absolute in the aforesaid terms. In the circumstances, the parties to bear their own costs.