B.DURAIRAJ Vs. PRESIDING OFFICER II

JUDGEMENT

(1.) This writ petition has been directed against the correctness of the impugned award dated 21.7.2008 passed in I.D.No.356 of 2002 by the Second Additional Labour Court, Chennai, confirming the order of dismissal dated 27.9.2001 passed against the petitioner.

(2.) Learned counsel for the petitioner, assailing the impugned award, stated that the petitioner, having joined the second respondent-Transport Corporation as a Driver on 2.11.87, had put in nearly 14 years of continuous service. While he was on duty at Pondicherry depot in Route No.300 plying between Chennai and Chidambaram, on 2.12.2000, he took the vehicle bearing No.A342 around 16.30 hours and proceeded towards Chidambaram. While he was carefully driving the said vehicle on the National Highway near Morapakkam Village, at 19.00 hours, four persons travelling on a two-wheeler were proceeding before the bus on the left side. Since the rider of the two-wheeler, without noticing the bus, suddenly turned to the right side to proceed towards Morapakkam Cross Road on the National Highway, the petitioner, noticing the same, applied sudden brake. However, the two-wheeler crossed the road very close to the bus, as a result, the petitioner was unable to avert the accident. Only due to the careless and negligent driving of the two-wheeler rider, the accident had occurred, for which the petitioner cannot be held responsible. The very fact that the two-wheeler was carrying four persons at the time of accident itself would show that only because of the heavy load, the rider of the two- wheeler was unable to control the vehicle. Therefore, the enquiry officer, accepting the case of the petitioner, should have come to the conclusion that the accident had occurred only due to the carelessness of the two-wheeler rider. Leaving that course, wrongly proceeding as if the accident had occurred only due to the rash and negligent driving of the petitioner, he was issued with the charge memo on 22.12.2000 alleging that without following the rules framed under the Motor Vehicles Act, the petitioner allegedly drove the vehicle rashly and negligently and caused the fatal accident of killing two persons on the spot. On receipt of the said explanation, the petitioner also gave his detailed explanation on 29.12.2000 denying all the charges. But the disciplinary authority proceeded with the enquiry by appointing an enquiry officer, who also, after completing the enquiry, gave a perverse finding. It was the claim of the petitioner that when a proper and acceptable explanation was offered by him that only because of the careless driving of the two-wheeler rider carrying four persons, the accident had occurred, this was not even adverted and noticed by the enquiry officer. Finally, accepting the report holding the petitioner guilty of all the charges, the petitioner was also furnished with the copy of the report along with the second show cause notice calling him to submit his written explanation. Accordingly, the petitioner restated his stand taken before the enquiry officer also before the disciplinary authority, who also, overlooking the vital explanation offered by the petitioner, without even giving an opportunity to cross examine anyone and more importantly, without even examining the Conductor who was in the bus at the time of accident, wrongly imposed the punishment of dismissal from service. Hence, the petitioner, questioning the correctness of the order of punishment imposed against him, approached the Labour Court by raising an industrial dispute in I.D.No.356 of 2002. But the Second Additional Labour Court, Chennai, for the reasons best known, wrongly following the reasons given by the enquiry officer, which were confirmed by the disciplinary authority, without looking into the case of the petitioner that his explanation were completely brushed aside by the enquiry officer and also by the disciplinary authority and the stand taken by the petitioner that he was not given full opportunity to cross examine the important witness, again dismissed the industrial dispute. As against that, the petitioner has come to this Court.

(3.) Arguing further, it is pleaded that when the petitioner was having 14 years of continuous service as a Driver, only on mere assumption and presumption, the disciplinary authority ought not to have come to the conclusion that in view of the two fatal accidents committed by the petitioner earlier, the third fatal accident also has been committed by the petitioner due to his rash and negligent driving. This assumption and presumption made by the disciplinary authority is wholly unacceptable and impermissible in law. In support of his submissions, he has also referred to a judgment of this Court in Jeeva Transport Corporation Limited v. Industrial Tribunal, Madras and another, 1993-1 L.L.N. 870 for the proposition that the Conductor of the bus or another person who had witnessed the accident is not examined, that would prove fatal to the enquiry. In the present case also, it has been the continuous plea of the petitioner before the enquiry officer and also before the Labour Court that the Conductor of the bus driven by the petitioner was not examined and no good reason was offered either by the disciplinary authority or by the Labour Court as to why the evidence of the Conductor who was also travelling in the same bus which allegedly met with an accident, has not been examined. Therefore, the findings recorded in the domestic enquiry are to be held as perverse. Adding further, he has stated that the petitioner, during the pendency of the writ petition, reaching the age of superannuation, retired from service. Although the question of reinstatement does not arise, while setting aside the punishment imposed which is disproportionate to the charges, a direction be issued to pay the petitioner's retiral benefits.