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(REPORTABLE)

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos. 6765-66/2014

The Management of TNSTC (Coimbatore) Ltd.            ….….Appellant

Versus

M. Chandrasekaran                 ....Respondent

J U D G M E N T

A.M. KHANWILKAR, J.

These appeals challenge the decision of the Division Bench of

the High Court of Judicature at Madras, dated 22.11.2013, in Writ

Appeal Nos. 2082 and 2083 of 2013.   

2. Briefly stated, the respondent was employed as a driver by the

appellant on 14.04.1986.  While on duty on 15.01.2003, on vehicle

TN-38-0702, during a trip from Kovai Ukkadam to Pollachi, near

Vadakkipalayam he caused an accident with a car bearing No. TMA

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4845 coming from the opposite direction resulting in fatal injuries

to persons travelling in that car. Disciplinary enquiry was instituted

against the respondent inter alia on the charge of driving the bus in

a  rash  and  negligent  manner.  The  Enquiry  Officer  found  the

respondent  guilty  of  the  charges  framed  in  Charge  Memo dated

22.01.2003.  The Disciplinary Authority after giving opportunity to

the  respondent  passed  order  of  dismissal  on  13.10.2003.  The

appellant  then submitted an application,  being Approval  Petition

No. 480 of 2003, under Section 33(2)(b) of the Industrial Disputes

Act,  1947,  before  the  Joint  Commissioner  Labour  (Conciliation),

Chennai  as  an  industrial  dispute  was  pending  for  conciliation

before him.  The Labour Commissioner, after analysing the material

placed before him in the said proceeding noted that the Department

only examined two witnesses who were also cross-examined by the

respondent.  The respondent examined himself as defence witness,

but was not cross-examined by the Department. The Commissioner,

however,  found  that  the  enquiry  against  the  respondent  was

conducted in accordance with the principles of natural justice and

also in conformity with the Standing Orders. While dealing with the

quality of evidence adduced by the Department, the Commissioner

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found  that  the  same,  by  no  standard  would  substantiate  the

charges framed against the respondent.  The first witness was the

Junior Engineer.  He had submitted a site inspection report and

stated in his evidence that the car came with speed to the left side

from Vadakkipalayam branch road to the main road and then came

to the centre of  the road.  His evidence about the occurrence of

accident was on presumption. The second witness examined by the

Department was the Assistant Manager.   He stated that the bus

driver as well as car driver had driven their vehicles speedily.  He

also stated that car was driven in the middle of the road with speed

at the time of accident.  The defence of the respondent was that

when  he  was  approaching  Vadakkipalayam  branch  road,  an

ambassador  car  driven  by  a  17  year  old  boy  named Sivakumar

came on the  wrong side  of  the  road at  a  high speed and,  after

entering the main road went to the left side of the bus in wrong

direction. The respondent, therefore, first thought of driving the bus

to the left. But, as some pilgrims were going in a procession on the

left side of the road and as the car was being driven rashly and had

come to the left side of the bus, he was left with no option except to

take the bus to the right side to avoid a head on collision. This

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averted a fatal accident to pedestrians and minimized the damage

to the car coming from the opposite direction on the wrong side.

This also ensured the safety of the bus passengers.  In substance,

the  respondent  pleaded  that  the  accident  was  caused  due  to

unavoidable  circumstances  and  in  spite  of  all  precautions  and

applying his best judgment in maneuvering the vehicle.   

3. The  Commissioner  found  that  the  respondent  had  deposed

about these facts as defence witness, but was not cross-examined

by  the  Department.  No  eye  witness  was  examined  by  the

Department nor the conductor of the bus or passengers travelling in

the  same  bus  were  examined  by  the  Department.  The

Commissioner, therefore, concluded that the finding reached by the

Enquiry  Officer  by  merely  relying  on the  evidence  of  the  Junior

Engineer and the Assistant Manager (who were not eye witnesses),

was perverse.   In that,  the charges were not  proved against  the

respondent  by  independent  legal  evidence  of  eye  witnesses.  The

Commissioner  held that  the Enquiry Officer’s  report  was vitiated

being perverse.  The Commissioner also relied on the decision of the

Division Bench of Madras High Court in Writ Appeal No. 2238 of

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2000  in  the  case  of  A.  Mariasundararaj  vs. Cheran  Transport

Corporation  Ltd.,  which  had  deprecated  the  practice  of  not

examining eye witness or other relevant evidence during the enquiry

in respect of accident cases by the State Transport Corporation, and

as  it  results  in  not  confirming  the  charges  and  punishments

awarded  against  its  drivers  involved  in  accidents.  The

Commissioner, therefore,  refused to accord approval for dismissal

of the respondent.   

4. Being aggrieved by this  decision,  the appellant-Management

preferred  Writ  Petition  No.  2425 of  2010.   Even the  respondent

preferred  Writ  Petition  No.  23155/2009  for  issuing  writ  of

mandamus against the Corporation to implement the order passed

by the Joint Commissioner of Labour, Chennai dated 25.05.2009 in

Approval  Petition  No.  480/2003;  and  to  reinstate  him  with

continuity of service, back-wages and all other attendant benefits.

Both  the  writ  petitions  were  heard  analogously  by  the  learned

Single Judge.  The Single Judge noted the seven reasons recorded

by the Commissioner to disapprove the dismissal of the respondent,

as follows: -

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“a)  Except  examining  witnesses,  who  are employees  of  the  petitioner  Corporation,  the petitioner  has  not  examined any independent witness to  prove that  the  accident  took  place because of the rash and negligent driving of the 2nd respondent  resulting  in  the  death  of  9 persons.

b) The Engineer’s report, which was marked as Ex. A2 shows that the car came fast from the branch road to the main and came to the centre of the road and the bus was coming on the right side of the road instead of the left side on high speed.  The report fixed prime responsibility on the bus driver and part responsibility on the car driver.  Though the Junior Engineer, who gave this report,  deposed that the car and the bus came with speed, he was not an eye witness to the  occurrence  and  he  had  described  the occurrence only on presumption.

c) P.W.1, the Assistant Manager of the petitioner Corporation, though deposed that the bus driver as well as the car driver had driven the vehicles in high speed, he was also not an eye witness to the occurrence and hence, his evidence also cannot  be  taken  into  consideration  to  fix  the responsibility on the 2nd respondent.

d)  The conductor  of  the  bus,  who could have been  examined  on  the  side  of  the  petitioner Corporation, had not been examined.  

e) Not even a single passenger of the bus was examined  to  prove  or  establish  that  the  2nd respondent,  the driver  of  the bus,  had driven the vehicle in a rash and negligent manner.

f)  The  Enquiry  Officer  had  relied  on  the evidence  of  the  Engineer  and  the  Assistant Manager,  who were  not  eye witnesses to  the

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occurrence  and  their  evidence  was uncorroborated by any independent witness.

g) The 2nd respondent had denied that he was responsible for the accident and stated that the ambassador car, which took a left turn from the branch road and came driving to its right side, suddenly turned to the left  and therefore, the accident  had  occurred.   However,  the  2nd respondent  was  not  subjected  to cross-examination.”

5. The Single Judge then opined that the view so taken by the

Commissioner  was  well  founded  and  did  not  warrant  any

interference.  Reliance was also placed on an un-reported decision

of Division Bench of the same High Court in Writ Appeal No. 2238

of 2000 in the case of  A. Mariasundararaj  (Supra).  The relevant

dictum in that decision has been reproduced in paragraph 7 by the

Single Judge, as follows:-  

“We  have  to  point  out  that  when  we  come across such accident case, where disciplinary actions  are  initiated  by  the  State  Transport Corporations, invariably except the statement of the  inspecting  official,  the  sketch  and photographs, no other evidence is placed before the  Inquiry Officer.  It is also repeatedly being pointed  out  that  in  the  absence  of  such independent  evidence  before  the  Court,  it  is difficult for the Court to confirm the punishment awarded as against such erring drivers.”

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6. Accordingly,  the  Single  Judge  dismissed  the  writ  petition

preferred by the appellant and allowed the writ petition preferred by

the respondent and issued direction to the appellant Corporation to

reinstate the respondent with back-wages and continuity of service

and all other attendant benefits.  

7. Being aggrieved, the appellant preferred Letters Patent Appeal

bearing Writ Appeal  Nos. 2082 and 2083 of  2013.  The Division

Bench affirmed the view taken by the Single Judge. The Division

Bench  distinguished  the  decision  of  this  Court  in  the  case  of

Cholan Roadways Ltd. Vs. G. Thirugnanasambandam1 which was

pressed into service by the appellant, on the principle of  res ipsa

loquitur.   The  Division  Bench  held  that  merely  on  the  basis  of

evidence of the Assistant Manager and the Engineer, who were not

the  eye  witnesses,  the  charges  against  the  respondent  remained

unsubstantiated.  Hence, the writ appeals came to be dismissed.

1

 (2005) 3 SCC 241

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This  decision  is  the  subject  matter  of  challenge  in  the  present

appeals.   

8. According  to  the  appellant,  the  evidence  produced  by  the

Department was sufficient to bring home the charge of rash and

negligent  driving  by  the  respondent  on the  day  of  accident.  The

Commissioner  exceeded  his  jurisdiction  in  recording  a  contrary

finding while refusing to accord approval to the order of dismissal of

the respondent passed by the Department, considering the fact that

the  accident  admittedly  caused  fatal  injuries  to  passengers

travelling  in  the  car.   It  is  contended  that  considering  the

seriousness of the charges and the fact that the respondent was

driving the bus in a rash and negligent manner, the approach of the

Commissioner  was hyper-technical.   That  is  not  only  a  manifest

error but has also resulted in grave injustice.  The respondent on

the other hand contends that the Commissioner has applied the

well  settled  legal  position  that  there  can  be  no  presumption  of

misconduct by the employees.  That, charge must be proved by the

Department during the inquiry.  Non- examination of the material

witnesses such as eye witnesses present on the spot, conductor and

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passengers, travelling on the same bus was fatal. For, it entails in

not substantiating the charges against the respondent and failure

to discharge the initial onus resting on the Department to prove the

charge as framed.  According to the respondent, no fault can be

found  with the tangible reasons recorded by the Commissioner as

noticed by the Single Judge (reproduced above); and resultantly, the

conclusion of the Commissioner of  not according  approval to the

order of dismissal is just and proper.  It is submitted that the Single

Judge was justified in allowing the writ petition preferred by the

respondent and issuing direction to the appellant to reinstate him

with back-wages and continuity of service and all attendant benefits

accrued to him.  

9. The  moot  question  is  about  the  jurisdiction  of  the  Joint

Commissioner  of  Labour  (Conciliation)  whilst  considering  an

application for approval of order of punishment under Section 33(2)

(b) of the Industrial Disputes Act, 1947. It is well settled that the

jurisdiction under Section 33(2)(b) of the Act is a limited one. That

jurisdiction cannot be equated with that of the jurisdiction under

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Section 10 of the Industrial Disputes Act. This Court in the case of

Cholan Roadways (Supra) observed thus:

“18. The  jurisdiction  of  the  Tribunal  while considering  an  application  for  grant  of  approval  has succinctly been stated by this Court in Martin Burn Ltd. Vs  R.N.  Banerjee  (AIR  1958  SC  79).  While  exercising jurisdiction  under  Section  33(2)  (b)  of  the  Act,  the Industrial  Tribunal  is  required  to  see  as to  whether  a prima  facie  case  has  been  made  out  as  regard  the validity or otherwise of the domestic enquiry held against the  delinquent;  keeping  in  view  the  fact  that  if  the permission or approval is granted, the order of discharge or  dismissal  which  may  be  passed  against  the delinquent employee would be liable to be challenged in an appropriate proceeding before the Industrial Tribunal in terms of the provision of the Industrial Disputes Act. In Martin Burn’s case (supra) this court stated:

“  A prima facie case does not mean a case proved to the hilt  but a case which can be said to be established if the evidence which is led in support of the same were believed. While  determining  whether  a  prima  facie case  had  been  made  out  the  relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence.  It  may  be  that  the  Tribunal considering  this  question  may  itself  have arrived  at  a  different  conclusion.  It  has, however, not to substitute its own judgment for the judgment in question. It has only got to  consider  whether  the  view  taken  is  a possible view on the evidence on the record. (See Buckingham & Carnatic Co. Ltd. Vs The

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Workers of the Company (1952) Lab. AC 490 (F).””  

(emphasis supplied)

This  judgment  was  relied  by  the  appellant  before  the  Division

Bench. The Division Bench, however, brushed it aside by observing

that the principle of  Res ipsa loquitur  is not applicable to the case

on hand. That approach, in our opinion is untenable. In that, the

said decision not only deals with the principle of  Res ipsa loquitur

but also with the scope of jurisdiction of the Commissioner under

Section 33(2)(b) of the Act. It also delineates the extent of scrutiny

to be done at this stage to ascertain whether prima facie case is

made  out  for  grant  or  non-grant  of  approval  to  the  order  of

punishment. In doing so, the Commissioner could not substitute

his own judgment but must only consider whether the view taken

by the Disciplinary Authority is a possible view on the evidence on

record.  

10. In the present case, the sole reason which weighed with the

Commissioner was that no independent witness was produced - not

even  a  single  passenger  of  the  bus  was  examined  by  the

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Department.  The  decision  relied  by  the  appellant  squarely  deals

even with this reasoning. It has been held that, in the case of State

of Haryana & Others Vs. Rattan Singh2 the Court held that mere

non-examination of passenger does not render the finding of guilt

and  punishment  imposed  by  the  Disciplinary  Authority  invalid.

Similar view has been taken in the case of  Divisional Controller

KSRTC (NWKRTC) vs. A.T. Mane3. Both these decisions have been

noticed in the reported decision relied by the appellant. The burden

to prove that the accident happened due to some other cause than

his own negligence, is on the employee, as expounded in the case of

Thakur Singh  vs. State of  Punjab4 referred to in the  reported

decision.  In the reported case relied by the appellant, it has been

noted as under:

“34. ……………………………In  the  instant  case  the Presiding  Officer,  Industrial  Tribunal  as  also  the learned  Single  Judge  and  the  Division  Bench  of  the High  Court  misdirected  themselves  in  law insofar  as they failed to pose unto themselves correct questions. It

2

(1977) 2 SCC 491 3

(2005) 3 SCC 254 4

(2003) 9 SCC 208

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is now well-settled that a quasi-judicial authority must pose unto itself a correct question so as to arrive at a correct finding of fact. A wrong question posed leads to a  wrong  answer.  In  this  case,  furthermore,  the misdirection in law committed by the Industrial Tribunal was apparent insofar as it did not apply the principle of Res ipsa loquitur which was relevant for the purpose of this case and, thus, failed to take into consideration a relevant factor and furthermore took into consideration an  irrelevant  fact  not  germane  for  determining  the issue,  namely,  the  passengers  of  the  bus  were mandatorily  required  to  be  examined.  The  Industrial Tribunal further failed to apply the correct standard of proof  in  relation  to  a  domestic  enquiry,  which  in “preponderance  of  probability”  and  applied  the standard of proof required for a criminal trial. A case for judicial review was, thus, clearly made out.”

11. Applying  the  principle  stated  in  Cholan  Roadways  Ltd.

(Supra), what needs to be considered is about the probative value of

the evidence showing the extensive damage caused to the bus as

well  as  motorcar;  the  fatal  injuries  caused  to  several  persons

resulting in death; and that the nature of impact raises an inference

that the bus was driven by the respondent rashly or negligently.

The  material  relied  by  the  Department  during  the  enquiry

supported the fact that the respondent was driving the vehicle at

the relevant time and because of the high speed of his vehicle the

impact  was  so  severe  that  the  two  vehicles  were  extensively

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damaged and the passengers travelling in the vehicle suffered fatal

injuries  resulting  in  death  of  five  persons  on  the  spot  and  four

persons in the hospital besides the injuries to nine persons. These

facts stood established from the material relied by the Department,

as a result of which the doctrine of Res ipsa loquitur came into play

and the burden shifted on the respondent who was in control of the

bus to establish that the accident did not happen on account of any

negligence  on  his  part.  Neither  the  Commissioner  nor  the  High

Court  considered  the  matter  on  that  basis  nor  posed  unto

themselves the correct question which was relevant for deciding the

application under Section 33(2)(b). On the other hand, the order of

punishment  dated  13th October,  2003,  ex  facie,  reveals  that  the

report  of  the  Enquiry  Officer  referring  to  the   relevant  material

established the factum and the nature of accident warranting an

inference  that  the  respondent  had  driven  the  bus  rashly  and

negligently. Further, the observation in the unreported decision of

the Division Bench of the same High Court was not relevant for

deciding the application under  Section 33(2)(b).  Significantly,  the

order  of  punishment  also  adverts  to  the  past  history  of  the

respondent  indicative  of  respondent  having  faced  similar

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departmental action on thirty two occasions, including for having

committed minor  as well  as  fatal  accidents  while  performing his

duty.  

12. In our opinion, the Commissioner exceeded his jurisdiction in

reappreciating the evidence adduced before the Enquiry Officer and

in  substituting  his  own  judgment  to  that  of  the  Disciplinary

Authority. It was not a case of no legal evidence produced during

the enquiry by the Department, in relation to the charges framed

against  the respondent.  Whether  the decision of  the Disciplinary

Authority of dismissing the respondent is just and proper, could be

assailed by the respondent in appropriate proceedings. Considering

the  fact  that  there  was  adequate  material  produced  in  the

Departmental enquiry evidencing that fatal accident was caused by

the  respondent  while  driving the vehicle  on duty,  the  burden to

prove that the accident happened due to some other cause than his

own negligence was on the respondent. The doctrine of  Res ipsa

loquitur squarely applies to the fact situation in the present case.  

13. Ordinarily,  we would  have  remitted  the  matter  back to  the

Commissioner  for  consideration  afresh,  but  as  the  matter  is

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pending for  a long time and as we are satisfied that  in the fact

situation of the present case approval to the order of punishment

passed by the appellant against the respondent should have been

granted, we allow the application under Section 33(2)(b) preferred

by the appellant but with liberty to the respondent to take recourse

to appropriate remedy as may be available in law to question the

said order of dismissal dated 13th October, 2003.

14. Accordingly, we set aside the impugned decisions of the High

Court as well as of the Joint Commissioner. The appeals are allowed

in the above terms with no order as to costs.       

.………………………….CJI (T.S.Thakur)

..……………………………J. (A.M. Khanwilkar)

New Delhi, September 2, 2016