Management of Jeeva Transport Corporation vs Presiding Officer, Industrial Tribunal and Another

K.P. Sivasubramaniam, J.—In this writ petition, the petitioner speaks for a writ of certiorari, to call for the records of the first respondent

herein, leading to the passing of the order, dated December 7, 1995, in Petition No. 65 of 1993 in I.D. No. 62 of 1982.

The writ-petitioner is the management of Jeeva Transport Corporation, Ltd.

The second respondent was employed as a driver under the Corporation. He joined the Services of the Corporation on May 20, 1978. While

he was on duty on January 20, 1982 as a driver of the bus bearing No. TN-33-N-0244 plying between Madurai and Sathyamangalam, he dashed

against a person who attempted to cross the road at Kamaraj Nagar and thereby caused the death of that person and also causing damage to the

bus to an extent of Rs, 500. A detailed report of the accident was received from the Junior Engineer who had inspected the accident spot as

directed by the Corporation. A notice under Standing Order 16(k) was issued to the second respondent, after holding an enquiry, the enquiry

officer found that the second respondent was guilty of negligence and was responsible for the accident. Agreeing with the findings of the enquiry

officer the disciplinary authority issued a second show-cause notice, dated October 6, 1992, calling upon him to show cause as to why he should

not be dismissed from service. After receiving the explanation of the delinquent and also after holding that the enquiry officer''s report was justified,

also took into account three previous delinquencies and dismissed the second respondent from service by order, dated July 20, 1993. As against

the said order the second respondent raised an industrial dispute in I.D. No. 62 of 1982 u/s 33(2)(b) of the Industrial Disputes Act, 1947.

The Industrial Tribunal however held that the order of dismissal was vitiated by perversity and the enquiry officer''s report was perverse and

cannot be sustained, with the result, the industrial dispute was awarded in favour of the delinquent. Hence, the present writ petition.

Sri R. Subbiah, the learned counsel appearing for the Corporation/petitioner contends that the Industrial Tribunal has exceeded the powers u/s

33(2)(b) of the Industrial Disputes Act, 1947, and had indulged in reappraisal of the evidence which was not admissible. The Tribunal could have

only seen as to whether the enquiry was properly complied with by adhering to the principles of natural justice and it was not open to the Industrial

Tribunal to reappraise the evidence and come to a different conclusion.

In this context, the learned counsel relies on the judgment of the learned Single Judge of this Court in Cholan Roadways Corporation Ltd. Vs.

Industrial Tribunal, Madras and Another, . Reliance is placed on the observation that for the purpose of granting or refusing approval u/s 33(2)(b)

of the Act, the Tribunal could only examine the findings of the enquiry officer in order to find out whether the findings of the enquiry officer are

perverse. Further reliance is also made in the judgment of K. SAMPATH, J., in WP. No. 14946 of 1994, dated January 9, 1999 Management of

Thiruvalluvar Transport Corporation, Ltd. v. K. Ayyavu and Anr. and also as confirmed by the Division Bench in Writ Appeal No. 2522 of 1999,

dated February 14, 2000.

Per contra, Sri D. Hariparanthaman, the learned counsel appearing for the second respondent, states that the Tribunal has rightly given a finding

that the enquiry officer''s report was vitiated by perversity. The Tribunal came to the conclusion due to the fact that no eye witness had been

examined and the conductor was also not examined. Added to the case, the delinquent had examined a witness on his side and he was not even

cross-examined by the management. Therefore, according to the learned counsel, the Tribunal has rightly taken note of the nature of the enquiry

before the enquiry officer and had rightly held that the enquiry was vitiated by perversity.

The learned counsel, relied on the judgment of Sri M. SRINIVASAN, J., as he then was in Jeeva Transport Corpn. Ltd. Vs. Industrial Tribunal

and Another, . Reference is made to the judgment, which deals with an identical situation. The conductor of the bus was not examined as a

witness. There was another person who had also witnessed the accident, but had not been examined. On the other hand, the enquiry officer has

relied only on the report of the Engineer who was not an eye witness. In these circumstances, the learned Judge held that the Tribunal disagreeing

with the enquiry officer was quite justified.

Further reference is made to another judgment of the same learned Judge in W.P. No. 11316 of 1984, dated April 21, 1995, Pattukottai

Azagiri Transport Corporation, Ltd. v. Shanmugavel. In that case, a witness who was examined on the side of the worker was not cross-examined

and the learned Judge had observed that the said circumstance was rightly taken into account by the Tribunal to hold that the enquiry officer''s

report was vitiated by perversity.

I have considered the submissions of both sides. I have also perused the enquiry officer''s findings. It is no doubt true, that the enquiry officer

has found that the claim of the driver that the victim had suddenly crossed the road was without any substance. The more relevant issue to be

considered in this case is that no eye witness had been examined on the side of the management. Added to the same, a perusal of the Tribunal''s

order shows that the conductor though not examined has given a report on the same day. Even according to the statement of the conductor, the

victim was standing on the left side of the bridge and that he suddenly crossed the road. The report of the conductor supports the claim of the

delinquent. But on the other hand, in the enquiry report, it is seen that the enquiry officer had concluded that the victim had crossed the road from

the right side of the road. This finding is contrary to the report of the conductor himself.

Further having obtained a report from the conductor, there is no reason why he was not examined as a witness on the side of the management.

It is also seen that a witness was examined on the side of the worker and he had not been subjected to cross-examination. This would strike at

the root of the propriety of the enquiry report and the nature of the enquiry before the enquiry officer.

Therefore, I have no reason to interfere with the finding of the Tribunal that the enquiry officer''s report was vitiated by perversity.

With the result, there are no merits in the above writ petition and the same is dismissed. No costs.

It is represented that a sum of Rs. 1,00.000 (Rupees One Lakh only) is lying in the deposit of the Industrial Tribunal. The second respondent

having succeeded in the writ petition is entitled to withdraw the amount.