Full Judgment Text
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CASE NO.:
Appeal (civil) 3392 of 2002
PETITIONER:
Cholan Roadways Limited
RESPONDENT:
G. Thirugnanasambandam
DATE OF JUDGMENT: 17/12/2004
BENCH:
N. Santosh Hegde & S.B. Sinha
JUDGMENT:
J U D G M E N T
S.B. Sinha, J :
This appeal is directed against the judgment and order dated 6.6.2001
passed by a Division Bench of the Madras High Court in W.A. No.46/1993
as also the judgment and order passed by the learned Single Judge of the
said Court in a Writ Petition No.11113/88 whereby and whereunder the writ
petition filed by the Appellant herein for setting aside order dated 29.4.88
passed by the Industrial Tribunal, Tamil Nadu, Madras in Approval Petition
No. 125 of 1985 rejecting the grant of approval sought for as regard order of
dismissal passed against the Respondent herein was dismissed.
The factual matrix of the matter is not much in dispute.
The Respondent herein was a driver of a bus bearing No.TMN-4148
plying between Tanjore and Nagapattinam. On 18.5.1985 while the said bus
was driven by the Respondent herein it met with an accident resulting in
death of 7 passengers. According to the Appellant the said bus was being
driven in a rash and negligent manner. The road at the place of the accident
was 300 ft wide and straight one. The Respondent allegedly despite noticing
that another bus was coming from the opposite direction did not slow down
the vehicle in order to avoid collision therewith. It is said that the Bus was
being driven at a speed of 80 k.m.p.h. The bus driven by the Respondent
herein is said to have swerved suddenly to the extreme left side of the road
which was lined with tamarind trees on both sides. The impact of the said
collusion was so severe that the bus dashed against the protruding branches
and stumps of the tamarind trees, then dashed against the bus resulting the
left side of the bus completely damaged as a result whereof 7 passengers
died and several persons were seriously injured.
The Motor Vehicles Claims Tribunal, Madras awarded a sum of Rs. 9
lakhs to the dependants of the victims as compensation for loss of life. It is
not in dispute that the Branch Manager of the Appellant, Mr. Venkatesan
visited the scene of the accident at about 4 p.m. on the same day and
conducted an investigation. During the said inspection some passengers
were examined. He submitted a detailed report. In furtherance of the said
report, a disciplinary proceeding was initiated against the Respondent on the
following charges:
"1. On 18.5.85 while you served as the driver in
the bus bearing No.TMN 4148 you have been very
careless in your duty and around 3.00 p.m. near
Poondi dashed against a tamarind tree which was
at the edge of the road and thereby caused a very
big accident.
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2. While you were on duty as aforesaid, even
though it was a straight road and was visible to a
distance of about 300 ft. In respect of the buses
which come from the opposite direction, you have
been very negligent and in a careless and
irresponsible manner move the bus very fast and
dashed the front left side of the bus against the
branch of the tamarind tree which was cut and
found at the left side of the road and after that
turned the bus towards the right side and thereby
caused heavy damage to the bus. On account of
your aforesaid act the entire left side of the bus
dashed against the tamarind tree branch which
resulted in the passengers at the left side of the bus
to sustain grievous injuries and that seven
passengers died in the aforesaid accident and about
10 passengers sustained grievous injuries and that
you were responsible for the same.
3. Further, you were responsible for the loss of
accessories of the bus to the tune of Rs.30,000/-
and also you were responsible for the loss of
revenue for the Corporation.
4. Further, you were responsible for tarnishing the
fair name of the Corporation amongst general
public."
In the domestic inquiry that followed the said charge-sheet, two
witnesses were examined on behalf of the Appellant.
The Inquiry Officer upon consideration of the materials brought on
records by the parties therein found the Respondent guilty of misconduct in
relation to the charges framed against him. The Inquiry Officer rejected the
contention of the Respondent herein that the bus was being driven at a slow
speed and the accident took place to save a boy who suddenly crossed the
road holding:
"Thus it has been proved beyond doubt by the
evidence adduced by the management’s side that
the delinquent was careless, negligent and rash in
driving the bus at the time of the occurrence
resulting in this accident and he is responsible for
this accident and consequences thereof and the
defence evidence by way of two statements
adduced by the delinquent in proof of his defence
cannot be given any credit or credence for reasons
already expatiated. The delinquent has not alleged
any brake failure in his earlier statement in Ex.P-9
or in his written explanation to charge memo, in
which he has stated that he effectively used brake
and halted the bus after impact."
The Respondent was, thereafter, dismissed from the services by the
Disciplinary Authority.
As an industrial dispute was pending before the Industrial Tribunal the
Appellant herein filed an application under Section 33(2)(b) of the Industrial
Disputes Act for grant of approval of the said order of dismissal. The
learned Presiding Officer, Industrial Tribunal by an order dated 29.4.88
despite holding that ’the scope of adjudication in a proceeding under Section
33(2)(b) of the Industrial Disputes Act is limited and while granting
approval it does not sit as a court of appeal re-appreciating the evidence for
itself but has to examine the findings of the Enquiry Officer on the evidence
adduced in the domestic enquiry to ascertain whether a prima facie case had
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been made out on the charges leveled or if the findings are perverse’, came
to the following findings:
"In the instant case, the domestic enquiry
conducted cannot be considered as fair and proper
and is vitiated on account of the failure of the
Enquiry officer to observe the principles of natural
justice by not examining the passengers who had
given the statements."
On such finding the approval sought for by the Appellant herein was
rejected. A writ petition was filed by the Appellant questioning the
correctness or otherwise of the said order dated 1.12.1992 before the High
Court. A learned Single Judge of the High Court upheld the said order. A
writ appeal No.46/1993 filed by the Appellant against the order passed by
the learned Single Judge was dismissed opining:
"Though the learned counsel for the Appellant
placed reliance upon the judgment of the Apex
Court in State of Haryana & Another Vs Rattan
Singh reported in AIR 1977 SC 1512, we hold that
the said pronouncement of the Apex Court will not
have any application to the present case as it was a
converse case where the finding are based upon
some evidence, namely, eye witness, and therefore,
in that context, the Supreme Court held that non-
examination of the passenger will not vitiate the
enquiry. The said pronouncement will not have
any application to the facts of the present case and
it is clearly distinguishable."
Mr. K. Ramamurthy, learned senior counsel on behalf of the
Appellant would contend that the learned Tribunal and consequently the
learned Judges of the High Court committed a serious error in passing the
impugned judgments insofar as they failed to take into consideration that in
an enquiry of this nature it was not necessary to examine the passengers of
the bus. The learned counsel urged that the admitted photographs of the bus
in question after it met with an aforementioned accident clearly demonstrate
that the same was being driven in a rash and negligent manner as a result of
which 7 passengers died and some others suffered serious injuries. It was
submitted that the Respondent had not only afforded an opportunity to the
Respondent to cross examine the witnesses examined on behalf of the
Appellant but also was given the opportunity to examine his defence
witnesses and in that view of the matter the principles of natural justice must
be held to have fully been complied with. In support of the said contention,
learned counsel has strongly relied on a decision of this Court in Divisional
Controller KSRTC (NWKRTC) Vs. A.T.Mane [2004(8) SCALE 308]
Mr. J. Buther, learned counsel on behalf of the Respondent, on the
other hand, would submit that in the domestic enquiry the alleged
misconduct of the Respondent cannot be said to have been proved inasmuch
as no finding has been recorded as regards the culpability of the Respondent
vis-a-vis commission of the said misconduct. It was further contended that
only because an accident had taken place, the same by itself in absence of
the strict proof thereof and having regard to the fact that the Respondent had
been acquitted in the criminal trial, cannot be held to be a ground to infer
that the misconduct on the part of the Respondent stood proved. The learned
counsel in support of his argument has placed reliance upon a decision of
this Court in M/s Bareilly Electricity Supply Co. Ltd. Vs. The Workmen and
Others [1971(2) SCC 617] and Zunjarrao Bhikaji Nagarkar Vs Union of
India & Others [(1999) 7 SCC 409]
Section 33(2)(b) of the Industrial Disputes Act reads as under:
"(2) During the pendency of any such proceeding
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in respect of an industrial dispute, the employer
may, in accordance with the standing orders
applicable to a workman concerned in such dispute
or, where there are no such standing orders, in
accordance with the terms of the contract, whether
express or implied, between him and the workman
\026
(a) *
(b) for any misconduct not connected with the
dispute, discharge or punish, whether by dismissal
or otherwise, that workman.
Provided that no such workman shall be
discharged or dismissed, unless he has been paid
wages for one month and an application has been
made by the employer to the authority before
which the proceeding is pending for approval of
the action taken by the employer."
It is neither in doubt nor in dispute that the jurisdiction of the
Industrial Tribunal under Section 33(2)(b) of the Industrial Disputes Act is a
limited one. The jurisdiction of the Industrial Tribunal under Section
33(2)(b) cannot be equated with that of Section 10 of the Industrial Disputes
Act. In this case admittedly an enquiry has been held wherein the parties
examined their witnesses. The Respondent was represented and assisted by
three observers. Shri M. Venkatatesan was the Branch Manager, CRC
Tanjore Town Branch, who had submitted his report and proved the same
before the Inquiry Officer. He furnished a detailed account of the position
of the bus vis-‘-vis the other bus after the collision took place. He found
that there was no brake tyre mark of the bus on the road. All the two seaters
seats on the entire left side of the bus were found totally damaged. The left
side roof arch angle of the bus was found totally out. Not only 4 persons
were found to be dead at the spot, the driver and conductor of the bus and 10
other passengers were also sustained injuries in this accident. Out of the
said 10 passengers, 3 subsequently died in the hospital owing to the injuries
sustained by them. He further found that on the left side of the road in the
earthen margin, there was a tamarind tree’s protruding branch and which
was found to have been already cut and the bottom stump of the branch was
found protruding to a length of 3 inches. The bus was found to have been
brought to a halt only at a distance of 81 ft. from the place of impact against
the tree. He further noticed that even after the impact of the bus against the
tree, the delinquent is said to have swerved the bus further to the right side
from left side without applying brake and reducing speed and later only be
brought the bus to a halt at some distance as a result of which the entire side
roof angle of the bus got cut.
The learned Presiding Officer, Industrial Tribunal, as noticed
hereinbefore, opined that the passengers of the bus should have been
examined. It does not appear from the order dated 29.4.88 passed by the
Presiding Officer, Industrial Tribunal that the Respondent herein made any
prayer for cross examining the passengers who travelled in the ill-fated bus
and who were examined by the said Shri M. Venkatesan. It is evident from
the order of the learned Tribunal that only in the show cause filed by the
Respondent in response to the second show cause notice, such a contention
was raised. The learned Presiding Officer, Industrial Tribunal in his
impugned judgement further failed to take into consideration that even if the
statements of the said passengers are ignored, the misconduct allegedly
committed by the Respondent would stand proved on the basis of the
evidence adduced by Shri M. Venkatesan together with the circumstantial
evidences brought on records. The learned Single Judge of the High Court
although referred to the sketch drawn by PW-1 on the site (Ex.P-2) and 4
photographs (Ex.P-8) but ignored the same observing that unless witnesses
were examined in support of the two exhibits, it is not possible to draw any
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inference therefrom. The Division Bench of the High Court did not examine
the materials on records independently but referred to the findings of the
Industrial Tribunal as also the learned Single Judge to the effect that from
their judgments it was apparent that the driver had not been driving the bus
rashly and negligently.
It is now a well-settled principle of law that the principle of Evidence
Act have no application in a domestic enquiry.
In Maharastra State Board of Secondary and Higher Secondary
Education Vs. K.S. Gandhi and Others [(1991) 2 SCC 716], it was held:
"It is thus well settled law that strict rules of the
Evidence Act, and the standard of proof envisaged
therein do not apply to departmental proceedings
or domestic tribunal. It is open to the authorities to
receive and place on record all the necessary,
relevant, cogent and acceptable material facts
though not proved strictly in conformity with the
Evidence Act. The material must be germane and
relevant to the facts in issue. In grave cases like
forgery, fraud, conspiracy, misappropriation, etc.
seldom direct evidence would be available. Only
the circumstantial evidence would furnish the
proof. In our considered view inference from the
evidence and circumstances must be carefully
distinguished from conjectures or speculation. The
mind is prone to take pleasure to adapt
circumstances to one another and even in straining
them a little to force them to form parts of one
connected whole. There must be evidence direct
or circumstantial to deduce necessary inferences in
proof of the facts in issue. There can be no
inferences unless there are objective facts, direct or
circumstantial from which to infer the other fact
which it is sought to establish.\005The standard of
proof is not proof beyond reasonable doubt but the
preponderance of probabilities tending to draw an
inference that the fact must be more probable.
Standard of proof, however, cannot be put in a
strait-jacket formula. No mathematical formula
could be laid on degree of proof. The probative
value could be gauged from facts and
circumstances in a given case. The standard of
proof is the same both in civil cases and domestic
enquires."
There cannot, however, be any doubt whatsoever that the principle of
natural justice are required to be complied with in a domestic enquiry. It is,
however, well-known that the said principle cannot be stretched too far nor
can be applied in a vacuum.
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
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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 Workers
of the Company (1952) Lab. AC 490(F)."
It is further trite that the standard of proof required in a domestic
enquiry vis-‘-vis a criminal trial is absolutely different. Whereas in the
former ’preponderance of probability’ would suffice; in the latter, ’proof
beyond all reasonable doubt’ is imperative.
The tribunal while exercising its jurisdiction under Section 33(2)(b) of
the Industrial Disputes Act was required to bear in mind the aforementioned
legal principles. Furthermore, in a case of this nature the probative value of
the evidence showing the extensive damages caused to the entire left side of
the bus; the fact that the bus first hit the branches of a tamarind tree and then
stopped at a distance of 81 ft therefrom even after colliding with another bus
coming from the front deserved serious consideration at the hands of the
tribunal. The nature of impact clearly demonstrates that the vehicle was
being driven rashly or negligently.
Res ipsa loquitur is a well-known principle which is applicable in the
instant case. Once the said doctrine is found to be applicable the burden of
proof would shift on the delinquent. As noticed hereinabove, the enquiry
officer has categorically rejected the defence of the Respondent that the bus
was being driven at a slow speed.
In Pushpabai Parshottam Udeshi and Others Vs. M/s. Ranjit Ginning
& Pressing Co. Pvt. Ltd. and another [AIR 1977 SC 1735] this Court
observed:
"6.The normal rule is that it is for the plaintiff to
prove negligence but as in some cases considerable
hardship is caused to the plaintiff as the true cause
of the accident is not known to him but is solely
within the knowledge of the defendant who caused
it, the plaintiff can prove the accident but cannot
prove how it happened to establish negligence on
the part of the defendant. This hardship is sought
to be avoided by applying the principle of res ipsa
loquitur. The general purport of the words res ipsa
loquitur is that the accident "speaks for itself" or
tells its own story. There are cases in which the
accident speaks for itself so that it is sufficient for
the plaintiff to prove the accident and nothing
more. It will then be for the defendant to establish
that the accident happened due to some other cause
than his own negligence\005"
The said principle was applied in Sarla Dixit (Smt.) and Another Vs.
Balwant Yadav and Others [(1996) 3 SCC 179].
In A.T. Mane (supra), this Bench observed:
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"6\005Learned counsel relied on a judgment of this
Court in support of this contention of his in the
case of Karnataka State Road Transport Corpn. Vs.
B.S. Hullikatti [(2001) 2 SCC 574]. That was also
a case where a conductor concerned had
committed similar misconduct 36 times prior to the
time he was found guilty and bearing that fact in
mind this Court held thus:-
"Be that as it may, the principle of res ipsa
loquitur, namely, the facts speak for themselves, is
clearly applicable in the instant case. Charging 50
paise per ticket more from as many as 35
passengers could only be to get financial benefit,
by the Conductor. This act was either dishonest or
was so grossly negligent that the respondent was
not fit to be retained as a Conductor because such
action or inaction of his is bound to result in
financial loss to the appellant corporation."
7. On the above basis, the Court came to the
conclusion that the order of dismissal should have
been set aside. In our opinion, the facts of the
above case and the law laid down therein applies
to the facts of the present case also."
In Thakur Singh Vs. State of Punjab [(2003) 9 SCC 208], this Court
observed:
"4. It is admitted that the petitioner himself was
driving the vehicle at the relevant time. It is also
admitted that the bus was driven over a bridge and
then it fell into canal. In such a situation the
doctrine of res ipsa loquitur comes into play and
the burden shifts on to the man who was in control
of the automobile to establish that the accident did
not happen on account of any negligence on his
part. He did not succeed in showing that the
accident happened due to causes other than
negligence on his part."
The burden of proof was, therefore, on the Respondent to prove that
the vehicle was not being driven by him rashly or negligently.
Furthermore, in a case involving accident it is not essential to examine
the passengers of the bus. In State of Haryana & Others Vs Rattan Singh
[(1977) 2 SCC 491] this Court observed:
"5. Reliance was placed, as earlier stated, on the
non-compliance with the departmental instruction
that statement of passengers should be recorded by
inspectors. These are instructions of prudence, not
rules that bind or vitiate in the violation. In this
case, the Inspector tried to get the statements but
the passengers declined, the psychology of the
latter in such circumstances being understandable,
although may not be approved. We cannot hold
that merely because statements of passengers were
not recorded the order that followed was invalid.
Likewise, the re-evaluation of the evidence on the
strength of co-conductor’s testimony is a matter
not for the court but for the administrative tribunal.
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In conclusion, we do not think the courts below
were right in overturning the finding of the
domestic tribunal."
Yet again, this Court in A.T. Mane (supra) referring to the decision of
this court in Rattan Singh (supra) held:
"6\005In such circumstances, it was not necessary or
possible for the appellant \026 corporation to have
examined the passengers to establish the guilt of
the respondent. He also submitted that the finding
of the Labour Court and the learned Single Judge
that the punishment is disproportionate to the
misconduct is wholly misconceived."
In M/s Bareilly Electricity Supply Co. Ltd.(supra) this Court was
seized with a different question namely the employer’s liability to pay the
bonus to the workmen which had a direct relation with the profit earned by
the company for the year 1960-61. In support of financial condition of the
management which had a direct nexus with the employer’s capacity to pay
bonus and in that situation it was held that mere production of a balance-
sheet by the management would not serve the purpose as the entries
contained therein, if called in question, must be proved. The tribunal in that
case came to the conclusion that management had failed to prove the
original cost of the machines, plant and machinery, its age, the probable
requirements for replacement, the multiplier and the divisor. In those
circumstances the claim was held to have been properly disallowed by the
Tribunal holding:
"14\005\005.No doubt the procedure prescribed in the
Evidence Act by first requiring his chief-
examination and then to allow the delinquent to
exercise his right to cross-examine him was not
followed, but that the Enquiry Officer, took upon
himself to cross-examine the witnesses from the
very start. It was contended that this method
would violate the well recognized rules of
procedure. In these circumstances it was observed
at page 264:
"Now it is no doubt true that the
evidence of the Respondent and his
witnesses was not taken in the mode
prescribed in the Evidence Act; but
that Act has no application to
enquiries conducted by Tribunal even
though they may be judicial in
character. The law requires that such
Tribunals should observe rules of
natural justice in the conduct of the
enquiry and if they do so their
decision is not liable to be impeached
on the ground that the procedure
followed was not in accordance with
that which obtains in a Court of law."
But the application of principle of natural justice
does not imply that what is not evidence can be
acted upon. On the other hand what it means is
that no materials can be relied upon to establish a
contested fact which are not spoken to by persons
who are competent to speak about them and are
subjected to cross-examination by the party against
whom they are sought to be used. When a
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document is produced in a Court or a Tribunal the
questions that naturally arise is, is it a genuine
document, what are its contents and are the
statements contained therein true. When the
appellant produced the balance-sheet and profit
and loss account of the company, it does not by its
mere production amount to a proof of it or of the
truth of the entries therein. If these entries are
challenged the Appellant must prove each of such
entries by producing the books and speaking from
the entries made therein. If a letter or other
document is produced to establish some fact which
is relevant to the enquiry the writer must be
produced or his affidavit in respect thereof be filed
and opportunity afforded to the opposite party who
challenges this fact. This is both in accord with
principles of natural justice as also according to the
procedure under Order XIX, Civil Procedure Code
and the Evidence Act both of which incorporate
these general principles. Even if all technicalities
of the Evidence Act are not strictly applicable
except in so far as Section 11 of the Industrial
Disputes Act, 1947 and the rules prescribed therein
permit it, it is inconceivable that the Tribunal can
act on what is not evidence such as hearsay, nor
can it justify the Tribunal in basing its award on
copies of documents when the originals which are
in existence are not produced and proved by one of
the methods either by affidavit or by witnesses
who have executed them, if they are alive and can
be produced. Again if a party wants an inspection,
it is incumbent on the Tribunal to give inspection
in so far as that is relevant to the enquiry. The
applicability of these principles are well
recognized and admit of no doubt."
The said decision, for the reasons stated hereinabove, cannot have any
application to the fact of the present case.
The learned Counsel for the respondent also placed reliance upon a
decision of this Court in Zunjarrao Bhikaji Nagarkar (supra). In that case,
this court was concerned with the charge of misconduct against the appellant
therein concerning an allegation that he favoured M/s Hari Vishnu Pakaging
Ltd. Nagpur (assessee) by not imposing penalty on it under Rule 173-Q of
the Central Excise Rules, 1944 when he had passed an order-in-Original
No.20 of 1995 dated 2.3.1995 holding that the assesee had clandestinely
manufactured and cleared the excisable goods willfully and evaded the
excise duty and had ordered confiscation of the goods. The misconduct was
said to have been committed by the appellant while exercising his judicial
function. Having regard to the factual matrix obtaining therein, this court
observed:
"37. Penalty to be imposed has to be
commensurate with the gravity of the offence and
the extent of the evasion. In the present case,
penalty could have been justified. The appellant
was, however, of the view that imposition of
penalty was not mandatory. He could have formed
such a view\005\005."
It was further observed:
"41. When penalty is not levied, the assessee
certainly benefits. But it cannot be said that by not
levying the penalty the officer has favoured the
assessee or shown undue favour to him. There has
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to be some basis for the disciplinary authority to
reach such a conclusion even prima facie. The
record in the present case does not show if the
disciplinary authority had any information within
its possession from where it could form an opinion
that the appellant showed "favour" to the assessee
by not imposing the penalty. He may have
wrongly exercised his jurisdiction. But that wrong
can be corrected in appeal. That cannot always
form a basis for initiating disciplinary proceedings
against an officer while he is acting as a quasi-
judicial authority. It must be kept in mind that
being a quasi-judicial authority, he is always
subject to judicial supervision in appeal.
42. Initiation of disciplinary proceedings against
an officer cannot take place on information which
is vague or indefinite. Suspicion has no role to
play in such matter. There must exist reasonable
basis for the disciplinary authority to proceed
against the delinquent officer. Merely because
penalty was not imposed and the Board in the
exercise of its power directed filing of appeal
against that order in the Appellate Tribunal could
not be enough to proceed against the appellant.
There is no other instance to show that in similar
case the appellant invariably imposed penalty."
In the aforementioned factual matrix of the case it was held that every
error of law would not constitute a charge of misconduct.
This decision also has no application to the facts of the present case.
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 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, further more,
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 garmane 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.
Errors of fact can also be a subject-matter of judicial review. (See E.
vs Secretary of State for the Home Department (2004 Vol.2 Weekly Law
Report page 1351). Reference in this connection may also be made to an
interesting article by Paul P. Craig Q.C. titled ’Judicial Review, Appeal and
Factual Error’ published in 2004 Public Law Page 788.
The impugned judgment, therefore, cannot be sustained and, thus,
must be set aside.
Ordinarily, we would have remitted the matter back to Industrial
Tribunal for its consideration afresh but as the matter is pending for a long
time and as we are satisfied having regard to the materials placed before us
that the Industrial Tribunal should have granted approval of the order of
punishment passed by the Appellant herein against the Respondents, we
direct accordingly. The Respondents may, however, take recourse to such
remedy as is available to in law for questioning the said order of dismissal.
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For the reasons aforementioned, the impugned judgments cannot be
sustained which are set aside accordingly. The appeal is allowed. No costs.