WP/14712/2001 of Hyderabad Industries Limited, Vs The Additional Industrial Tribunal-cum-Addl., Labour Court, on 30 December 2009

ORDER:

This writ petition is directed against the awardpassed on 13.03.2001 by the Additional IndustrialTribunal-cum-Additional Labour Court, Hyderabad in I.D.No.22 of 1998 which was raised by the 2[nd] respondent-workman.

The 2[nd] respondent-workman is employed as adriver in the petitioner company since 1982. On09.03.1993, he was entrusted with the task of getting oneof the trucks of the petitioner company attended to at theworkshop near Kavadiguda, Secunderabad and while hewas bringing the vehicle back from the said workshop,the workman was said to have caused an accident, onaccount of rash and negligent driving and hit a pedestrianby name R.Ilaiah, resident of Bholakpur and in theprocess seriously injured him. The said Ilaiahsubsequently succumbed to the injuries whileundergoing treatment at Gandhi Hospital atSecunderabad at about 21.30 hours on 09.03.1993. Itwas also alleged that the 2[nd] respondent has also hit thecompound wall of the house of Mr.M.Muthu Kumar andthe compound wall was badly damaged requiring the writpetitioner company to reconstruct the compound wall at its cost. In view of this conduct of the 2[nd] respondent, hewas charge sheeted on 11.03.1993. In the meantime, thepolice have also registered against him a criminal casebearing C.C. No.667 of 1993 under Section 304-A ofIndian Penal Code.

Since the explanation offered by the 2[nd] respondentto the charge sheet was not satisfactory, an enquiry wasordered to be conducted. However, in view of thependency of the criminal case, the 2[nd] respondentrequested the petitioner company not to proceedsimultaneously with the departmental enquiry and hencethe writ petitioner company has deferred the saidenquiry. On 05.08.1996, the Xth Metropolitan Magistrate, Secunderabad, has acquitted the 2[nd] respondent-workman of the charge laid against him. Thereafter, thepetitioner company took up the issue of conducting thedomestic enquiry and examined 2 witnesses on itsbehalf. Documentary evidence, Exs.M-1 to M-10 are gotmarked. The 2[nd] respondent-workman has beenexamined on his own behalf. He filed Ex.W-1. TheEnquiry Officer has drawn up his report holding the 2[nd]respondent guilty of the two charges laid against him. Based upon the said report, a show-cause notice wasissued by the petitioner-management on 10.07.1997calling upon the 2[nd] respondent to submit his explanationas to the findings of guilt recorded by the Enquiry Officer.

The 2[nd] respondent’s explanation was not foundsatisfactory and hence the writ petitioner-managementconcurred with the findings of the Enquiry Officer andpassed orders on 12.01.1998 terminating the services of the 2[nd] respondent-workman. They have also encloseda cheque drawn in a some of Rs.1,04,141/- towards finalsettlement of his account and another cheque drawn in asum of Rs.29,304/- towards gratuity to this order.

Calling in question, this order of termination, the 2[nd]respondent-workman has raised Industrial Dispute in I.D.No.22 of 1998. By an award on 13.03.2001, the LabourCourt directed reinstatement of the 2[nd] respondent-workman with the benefit of continuity of service withoutattendant benefits and without backwages. Questioningthe legality and validity of this award, the present writpetition has been instituted by the Management.

I have heard Sri A.K.Jayaprakash Rao, learnedcounsel for the writ petitioner and Sri G.Ravi Mohan,learned counsel for the 2[nd] respondent-workman.

Learned counsel for the writ petitioner SriA.K.Jayaprakash Rao submits that the Labour Court hasgrossly erred in ordering for reinstatement into service ofthe 2[nd] respondent-workman without assigning anyreasons muchless valid or tenable one as to why the 2[nd]respondent should be reinstated. It is contended that noreasons are assigned as to why the report of thedomestic enquiry was not sustainable. The findings recorded at the domestic tribunal are not characterized asunsustainable or perverse findings either. It is not foundthat the domestic tribunal did not follow the procedureprescribed nor was it said that the domestic tribunal didnot observe the required principles of natural justice. Therefore, the findings recorded by the domestic tribunalso long as they are not perverse, cannot giveauthorization to the labour Court to interfere with thepunishment imposed. It is further contended that if the2[nd] respondent-workman is truly guilty of having causeda motor vehicle accident involving the motor vehiclebelonging to the petitioner-company, and in the process,the victim has died and damage was also caused to theproperty of a private person, requiring the petitioner-company to get it repaired at its own expenses, such aperson cannot possibly be retained in service as adriver. Learned counsel submits that the motor vehiclesof the writ petitioner-company not only form part of itsassets, but they are intended for purpose of serving thecause of the organization. The motor vehicles aretherefore required to be driven carefully and skillfully too. Causing fatal accidents involving vehicles of thecompany would unnecessarily draw a wrong and badimpression about the callousness and lack of concern forhuman lives on the part of the petitioner-company. Thepetitioner-company has engaged the services of the 2[nd]respondent-workman requiring him to not only drive carefully the vehicles, but he was required to employ allthe care and skill needed to avoid accidents. Whensufficient material was brought before the enquiry officerto demonstrate that the 2[nd] respondent-workman isresponsible for causing accident in question, the labourCourt ought not have ordered light heartedly for hisreinstatement.

Per contra, learned counsel for the 2[nd] respondent-workman wound Sri Ravi Mohan contend that when acompetent criminal Court has gone into the question asto whether the 2[nd] respondent-workman is the one whocaused the accident or not and found that there is nomaterial to arrive at such a conclusion that it is the 2[nd]respondent-workman, who caused the accident, thedomestic tribunal cannot arrive at an exactly opposite of aconclusion upon appreciation of the very same materialwhich was examined by the competent criminal court. If,this was permitted, according to the learned counsel forthe respondent, it would amount to sitting in judgmentover that of a competent criminal Court, which isimpermissible in law. Further, it is contended that thewitnesses who have been examined before the domestictribunal have not witnessed the accident caused by the2[nd] respondent-workman. Therefore, the evidencemarshaled before the domestic tribunal lacks credibility. Merely because the standard of proof before the domestictribunal is not the same as the one before the competent criminal Court, it would not enable the domestic tribunalto arrive at a conclusion that it is the workman who hascaused the accident in question. According to thelearned counsel for the respondent workman the materialmarshaled before the domestic tribunal by themanagement was hardly sufficient for a reasonable bodyof men to arrive at a conclusion that it is the workmanwho is responsible for causing the accident.

I have considered the rival submissions. Whatemerges as undisputed facts are, that the 2[nd]respondent-workman was employed by the petitionerCompany as a driver in its service. He has beenassigned the duty on 09.03.1993 to take the vehicle inquestion for attending to its maintenance and repairs atone of the workshops situated at Kavadiguda area ofSecunderabad. Some of the repair works have beenattended to on the vehicle, but however, while the 2[nd]respondent was bringing the vehicle back, an accidentwas caused involving the said vehicle and the injuredperson has been removed to Gandhi Hospital by the 2[nd]respondent-workman for securing medical attention andtreatment and that the injured person, later in the eveningsuccumbed to his injuries. It is the respondent-workman,who got the injured person admitted to the GandhiHospital and also informed the police outpost at GandhiHospital, about the accident. Therefore, the local policehave not only apprehended the writ petitioner, but they have also seized the accident causing motor vehicle. During the course of investigation the vehicle in questionwas got inspected by the Motor Vehicle Inspector whotendered an opinion that the vehicle in question has notsuffered any mechanical failure, for it to be the causativefactor of the accident. Further, the police have recordedthe statement of the victim at the Gandhi Hospital, as tohow, the truck in question has hit him from behind ancaused the accident.

The F.I.R lodged by the police has been broughtbefore the Domestic Enquiry Tribunal and was also gotmarked before the labour Court by the writ petitioner asEx.M-1. Further the case diary of the police was also gotexhibited as Ex.M-2. The post mortem examinationreport of the deceased, which revealed that the death hasbeen caused due to multiple injuries has also beenexhibited as Ex.M-3. Hence, the question that is requiredto be answered at the first instance was whether there isreasonable material before the domestic Tribunal toconclude that it is the 2[nd] respondent-workman who hascaused the accident in question or not.

Conclusion

The charge sheet dated 11.03.1993 issued to theworkman has clearly alleged that the truck bearingregistered No.AET 8831 has been taken out by therespondent-workman for getting certain maintenance andrepair works attended to it by M/s.Deccan EngineeringEnterprises, Kavadiguda on 09.03.1993. It was furtheralleged that the said vehicle has been taken out by the 2[nd] respondent workman from the factory premises of thewrit petitioner-company at about 11.50 hours in themorning. It was subsequently informed by the GandhiNagar Police Station, Secunderabad that the said vehiclewas involved in an accident at about 17.00 hours andthat one R.Ilaiah, S/o.Balaiah was seriously injured atZeera locality in Secunderabad and that the said Ilaiahwas admitted to Gandhi Hospital, Secunderabad, wherehe succumbed to his injuries at about 21.35 hours. Therefore, C.C.No.52 of 1993 was registered by thepolice against the 2[nd] respondent-workman. There is aspecific allegation made that the conduct of therespondent-workman is in violation of clause 19(1)(k) ofthe Standing Orders of the company. It is alsoappropriate to notice, right at this stage, the explanationoffered by the 2[nd] respondent-workman on 15.03.1993 tothe said charge sheet. He admits that on 09.03.1993 hewas driving lorry No.AET 8831 and that he has taken thesaid vehicle for some repairs to be undertaken at DeccanEngineering Enterprises, Kavadiguda. After some of theimportant repair works were undertaken, he was bringingthe vehicle back to the factory via Zeera locality and thathe was not aware of the factum of “no entry for heavyvehicles” there and hence, he was required to take adiversion to come on to the main road and as there wasno rearview mirror and no helper in the vehicle, hehimself got down from the lorry, checked behind the vehicle and started to take a turn to come on to the mainroad. Suddenly, he had heard some shouts and hence,stopped the vehicle. He also states that some passers-by jumped on to the vehicle and started manhandling himand hence he lost control over the vehicle. What hasbeen stated by him next is of some importance andhence, it would be appropriate to quote it: “When I cameout of the vehicle, I came to know that a cyclist wasinjured with the rear portion left side of the vehicle. Iimmediately engaged an auto rickshaw and took thecyclist to the Gandhi Hospital, Secunderabad forimmediate treatment and reported to the Outpost PoliceStation of Gandhi Hospital”. It therefore emerges that the2[nd] respondent-workman does not dispute the fact that hewas on duty driving the truck bearing No.AET 8831 on09.03.1993 and that it is that vehicle which was involvedin the accident. The 2[nd] respondent-workman also doesnot dispute the fact that the injured has been removed byhim and got admitted to the Gandhi Hospital,Secunderabad for receiving necessary medical attentionand treatment.

However, before the domestic Tribunal, analtogether new plea is raised by him that it is not thevehicle of the company which was involved in theaccident in question, but some other white coloured fiatcar which sped away from the scene of the accident sitethat caused the accident. For the first time, the workman

has introduced the theory that it is not the vehicle of thecompany which is involved in the accident, but someother motor vehicle. This theory has not been acceptedin view of the explanation submitted by the respondentworkman to the charge sheet where he has categoricallystated that due to commotion created while he was tryingto reverse the truck, he alighted from the vehicle and thencame to know that a cyclist was hit by the left hand siderear portion of the truck and as a result of which, thecyclist has received several injuries. He has alsoadmitted that he has removed the injured-cyclist toGandhi Hospital for medical attention and treatment andmore importantly the workman who had lodged acomplaint about the accident in question with the PoliceOutpost at the Gandhi Hospital and nowhere, this theoryof “hit and run” by a white Fiat Car was set out. Thus, ifthe vehicle in question belonged to the company is notthe one, which is involved in the accident, the questionabout lodging a police complaint by the respondent-workman itself would not arise and the Police will notseize the vehicle of the Company either. It is, therefore,clear that the accident was caused involving the vehiclein question belonging to the company. The EnquiryOfficer has also dealt with Ex.W-1 the judgment in C.C.No.667 of 1993 by the learned Metropolitan Magistrate,Secunderabad. The learned Metropolitan Magistratefound that there is no material in the prosecutionevidence to establish that the accused before him was the driver of the crime van that caused the accident. Thelearned Metropolitan Magistrate has come to theconclusion that there is no direct or circumstantialevidence before the Court to show that the driver of thesaid crime van was rash and negligent in driving the saidvan and caused this accident.

The Enquiry Officer, therefore, noticed that thesefindings are recorded by the Criminal Court inC.C.No.667 of 1993 because there was no directevidence available before it to establish that the accusedbefore the Criminal Court was the one who drove thevehicle, whereas before the Domestic Tribunal there isno such crisis of identity or difficulty whatsoever. The vanin question was seized by the police at Gandhi Nagar,immediately after the accident was caused. That vehicleundoubtedly belonged to the company. It is the companywhich got the vehicle released subsequently from thecustody of the police after the inspection by the MotorVehicle Inspector was completed. Therefore, there is nocrisis of identity before the domestic tribunal with regardto the ownership of the vehicle or about the person whohas been assigned the duty to drive the said vehicle onthe date when the accident was caused. Therefore, theenquiry officer has rationally deduced that it is therespondent-workman who drove the vehicle in question,that caused the accident.

For the purpose of handing down a conviction to a person for causing death carelessly, there should be anelement of rashness proved on the part of such a person. In the absence of any direct evidence in that respect, theCriminal Court, perhaps, could not have hand down aconviction to any person, whereas before the DomesticTribunal, the charge was entirely different. It is not thequestion of rashness or negligence while driving thevehicle alone, what mattered, but lack of devotion whileperforming duties and failure to employ necessarydegree of skill and care that counts. Hence, the charge isrightly held proved by the domestic tribunal in so far asthe respondent-workman is concerned. Such anexercise, to my mind, does not amount to sitting in appealover the judgment rendered by the Criminal Court.

Labour Court never characterized the findingsrecorded by the Industrial Tribunal as perverse findings. Perversity of conclusions on the part of a DomesticTribunal was a fatal ground for the subsequent actionbased thereon. The standard for determining whether aparticular conclusion is perverse or not, one has toemploy the standard of a reasonable prudent body ofmen, whether, would have reached the same conclusionas was done by the Domestic Tribunal or not. In otherwords if the conclusion reached by the Domestic Tribunalis a reasonable one, then the labour Court is notsupposed to substitute its opinion to that of the DomesticTribunal. Where two views are possible on the materialgathered by the Domestic Tribunal and if one of them is taken by the enquiry officer, then, it will be improper tocall any such finding as irrational finding. The possibleview, if taken is liable to be sustained, as in the instantcase, it is possible to conclude that the vehicle whichcaused the accident being the one belonging to thecompany and being one which is assigned for the 2[nd]respondent-workman to drive on the fateful day, he canbe legitimately held responsible for causing theaccident. When a person dies in a motor vehicleaccident involving the vehicle of a company, suchcircumstances will also bring forth certain consequencesinvolving necessity to pay compensation to the victims. This apart, it may even cause loss of reputation oresteem to the organization. Therefore, the exercise ofpower of disciplinary control over the 2[nd] respondent-workman has been rightly exercised by the petitioner-company herein.

While dealing with the question as to how far theLabour Court or Industrial Tribunal can travel in thematter of exercise of the power available to it underSection 11(A) of the Industrial Disputes Act, the SupremeCourt in EAST INDIA HOTELS V. THEIRWORKMAN[[1]], in para-5, set out clearly the legalprinciples in this regard as under.

“In the undoubted exercise of the rightof the employer to take disciplinaryaction, and to decide upon thequantum of punishment, both of whichare part of the managerial functions,

Arguments

what has to be seen is whether theemployer before imposing thepunishment had conducted a properenquiry in accordance with theprovisions of the Standing Orders, ifapplicable, and principles of naturaljustice. When a proper enquiry hasbeen held by an employer and thefinding of misconduct has supportfrom the evidence adduced at the saidenquiry, the Tribunal has nojurisdiction to sit in judgment over thedecision of the employer as anappellate body. The interference withthe decision of the mployer will bejustified when the enquiry is unfair orthe findings arrived at in the enquiryare perverse or have no basis inevidence or the management is guiltyof victimization, unfair labour practiceor mala fide or the punishment isharsh and oppressive. The Tribunalcannot, therefore, reappraise theevidence and arrive at a conclusiondifferent from that arrived at by thedomestic Tribunal. Even if no enquiryhas been held by an employer or if theenquiry held by him is found to bedefective, the Tribunal in order tosatisfy itself about the legality andvalidity of the order, has to give anopportunity to the employer andemployee to adduce evidence beforeit. It is open to the employer to adduceevidence for the first time justifying hisaction; and it is open to the employeeto adduce evidence contra. Oncemisconduct is proved, either in theenquiry conducted by the employer orby the evidence placed before theTribunal for the first time, thepunishment imposed cannot be interfered with by the Tribunal exceptin case where the punishment isharsh and oppressive. This is not acase where no enquiry has been heldnor is it a case where either side hadnot adduced evidence before theTribunal. What the Tribunal had tosee is whether the enquiry is vitiatedby any of the grounds referred to byus. Admittedly, no such grounds existin this case. Nothing was stated as toin what respects the enquiry wasdefective. On the other hand, theTribunal proceeded on the basis thatthe enquiry was not vitiated, but it hadpower under S.11A to arrive at adifferent conclusion and award adifferent conclusion and award adifferent punishment. That apart, eventhe evidence justified the conclusionarrived at by the Enquiry Officer.

Applying the above legal principle to the presentfact situation, what emerges is that the labour Court hasreappraised the entire evidence and withoutcharacterizing the findings recorded by the domesticenquiry officer as perverse, it has substituted a differentpunishment, which is wholly impermissible. It has,literally, exercised the disciplinary power.

Learned counsel for the 2[nd] respondent Sri RaviMohan strenuously contended that imposing anexcessively harsh punishment itself reflects the anxiety ofthe employer to get rid of the workman in question. Hefurther submits that the charge in the instant case leveledagainst the workman was based upon the statement of a

police officer and the said police officer was neitherexamined nor summoned to appear before the domesticTribunal. No opportunity was ever accorded to theworkman to verify the veracity of the statements made bysuch a police officer and it is a salutary principle undercriminal law that statements made or recorded by policeofficers are inadmissible in evidence. But, in the instantcase, the respondent-workman was sought to bepenalized only on that score. With regard to the twowitnesses who have been examined, Sri Ravi Mohancontends that they are not the direct eye-witnesses to theincident. They were not present near the accident site. Therefore, their statements at best are hear-say. Theyhave ascertained some facts from the source of the policeand on that basis the respondent-workman was sought tobe victimized. Learned counsel Sri Ravi Mohan,therefore contends that the evidence of M.W-2 is all hear-say evidence and hence, it is inadmissible evidence indomestic enquiry. He has placed reliance on thefollowing judgments.

(1) K.C.SHARMA V. DELHI STOCK EXCHANGEAND OTHERS[[2]]

(2) KANHAIYALAL AGRAWAL AND OTHERS V.THE FACTORY MANAGER, GWALIOR SUGARCOMPANY LTD[[3]]

(3) K.DAVID WILSON V. SECRETARY TOGOVERNMENT, LAW DEPARTMENT(LEGISLATIVE AFFAIRS AND JUSTICE), HYDERABAD AND ANOTHER[[4]]

(4) PREM PRAKASH MISHRA V. U.P. STATETRANSPORT CORPORATION[[5]]

(5) PALGHAT BPL & PSP THOZHILALI UNION V.BPL INDIA LIMITED & ANOTHER[[6]]

Learned counsel would also submit that thestandard of proof required before the domestic Tribunal,particularly when the criminal Court has alreadyacquitted, should be a reasonable one not merely basedupon preponderance of probabilities.

Per contra, Sri A.K.Jayaprakash, learned counselrelied upon the following judgments in support of hisplea:

(1) UTTARANCHAL ROAD TRANSPORTCORPORATION AND OTHERS v.MANSARAM NAINWAL[[7]]

(2) EMPLOYERS MANAGEMENT WESTBOKARO COLLIERY OF TISCO LTD., V.CONCERNED WORKMAN, RAM PRAVESHSINGH[[8]].

I n K.C.SHARMA’s case (cited 2 supra), theSupreme Court dealt with the question of payment ofcompensation in lieu of reinstatement. Wherever thenormal relief of reinstatement with full back wages isconsidered as not feasible to be ordered, the Court isentitled to order for payment of compensation.

In KANHAIYALAL AGARWAL’s case (cited 3supra) also the Supreme Court had dealt with the issue relating to when an employer can be said to have lostconfidence in his employee. The principles in this regardhave been spelt out in Paragraph No.7 of the saidjudgment as under:

“7. Substantial contention on themerits of the case by the employer inthese appeals is that the finding ofloss of confidence in the employee bythe labour court has been reversed inappeal by the industrial court onunreasonable grounds. What must bepleaded and proved to invoke theaforesaid principle is that : (i) theworkman is holding a position of trustand confidence; (ii) by abusing suchposition, he commits acts whichresults in forfeiting the same; and (iii)to continue him in service would beembarrassing and inconvenient to theemployer or would be detrimental tothe discipline or security of theestablishment. All these threeaspects must be present to refusereinstatement on ground of loss ofconfidence. Loss of confidencecannot be subjective based upon themind of the management. Objectivefacts which would lead to a definiteinference of apprehension in the mindof the management regardedtrustworthiness or reliability of theemployee must be alleged andproved. Else, the right ofreinstatement ordinarily available tothe employee will be lost.”

Based upon these principles, the fact situation prevailingin each case is required to be considered by the Court before it could arrive at a conclusion as to whether theemployer has justifiably lost confidence in the employeeconcerned.

In DAVID WILSON’s case (cited 4 supra) theDivision of this Court has dealt with the powers of judicialreview on disciplinary action taken by the employers. Based upon the principles enunciated by the SupremeCourt in that regard in RAE BARELI KSHETRIYAGRAMIN BANK v. BHOLA NATH SINGH (AIR 1997 SC1908 = (1997) 3 SCC 657) and in H.B. GANDHI v. GOPINATH AND OTHERS ( (1992) Supp. (2) SCC 313), theDivision Bench has pointed out that the Court is onlyentitled to look into the evidence on record not as anappellate authority, but to satisfy itself that there wassome evidence, which can correlate the misconduct ofthe delinquent to the charges leveled against him. It wasalso further held by the Division Bench that thestatements recorded during the course of preliminaryenquiry could not be treated as substantive evidence atthe regular departmental enquiry without examining suchwitness and making available the statements made bythem, during the course of preliminary enquiry andwithout providing any opportunity for cross-examiningsuch witnesses.

A learned single Judge of Allahabad High Court inPREM PRAKASH MISRA’s case (cited 5 supra) hasdealt with the question as to whether hearsay evidencecan be admitted in departmental proceedings. While answering this question, the learned Judge, has entered a caveat in the following manner:

“11. It may, however, be made clearthat, even though hearsay evidence isadmissible in a departmental ordomestic enquiry, its probative valuewill depend on the facts andcircumstances of each case. Suchevidence must be carefully evaluatedand the administrative authoritiesmust not blindly accept such evidencewhich is, strictly speaking, not relevantunder the Indian Evidence Act. Inorder that such evidence may haveprobative value, it must havereasonable nexus and credibility. Admissibility of evidence is one thing,its probative value quite another. Ifsuch evidence is putforth and nexusestablished then sufficiency of theevidence will be beyond the scrutinyof the Courts but if no such connectionis established, the Courts will beentitled to interfere for, in that case, itwill amount to error apparent on therecord (See Ratan Singh case, 1997(1) SLR 750 : (1977 Lab IC 845). Inother words, the Courts will not,normally, interfere in the finding of adomestic Tribunal if that finding isbased on some evidence which islogically probative for a prudent mindand has reasonable nexus andcredibility. On the other hand if thecase be one of no evidence or findingbe perverse, the Courts will be entitledto interfere.”

In PALGHAT BPL & PSP THOZHILALI UNION’scase (cited 6 supra) the Supreme Court had occasion to deal with the powers exercised under Section 11-A of theIndustrial Disputes Act.

I n UTTARANCHAL ROAD TRANSPORT

CORPORATION’s case (cites 7 supra) the legal positionrelating to the conduct of an employee, who has sincebeen acquitted of a relating or corresponding charge in acriminal court has fallen for consideration. After noticingtwo earlier judgments, which dealt with the question ofacquittal in a criminal case and it’s effect on departmentalproceedings in UNION OF INDIA AND ANOTHER v.BIHARI LAL SIDHANA ((1997) 3 SCR 364) andCAPTAIN M. PAUL ANTHONY v. BHARAT GOLDMINES LIMINTED AND ANOTHER ((1999) 1 LLJ 1094),the Supreme Court deduced that every judgment must beread as applicable to the particular facts proved orassumed to be proved, since the generality of theexpressions which are found there are not intended to beexposition of the law but governed and qualified by theparticular facts of the case in which such expressions arefound. Thus, the Supreme Court has reiterated that thefacts which are held established in a criminal case andthe facts held established before the departmentalenquiry have got to be carefully analyzed and appliedbefore an appropriate conclusion is drawn.

I n EMPLOYERS MANAGEMENT WESTBOKARO COLLIERY OF TISCO LIMITED v.CONCERNED WORKMAN, RAM PRAVESH SINGH[[9]], the Supreme Court was called upon to decide the issuerelating to whether the labour court is justified tosubstitute its opinion in place of the one arrived at by thedomestic Tribunal. Noticing the earlier two judgmentsrendered by it in DIVISIONAL CONTROLLER, KSRTC(NWKRTC) v. A.T. MANE ((2004) 3 LLJ 1074 SC) and inU.P. STATE ROAD TRANSPORT CORPORATION v.

VINOD KUMAR ((2008) 1 LLJ 676 SC), it was held thatin the absence of a challenge to the legality or fairness ofthe domestic enquiry, the Court should be reluctant toeither interfere with the finding recorded by the EnquiryOfficer or the punishment awarded by the PunishingAuthority. It was made explicitly clear in ParagraphNo.17 as under:

“……………… that the Labour Court inexercise of its jurisdiction underSection 11A could have come to adifferent conclusion. There is noquarrel with this proposition of law. The Labour Court could haveawarded lesser punishment in thegiven facts and circumstances of thecase. In a case where two views arepossible on the evidence record, thenthe Industrial Tribunal should be veryslow in coming to a conclusion otherthan the one arrived at by thedomestic Tribunal by substituting itsopinion in place of the opinion of thedomestic Tribunal.”

In COMMISSIONER OF POLICE, NEW DELHI v.NARENDER SINGH[[10]], the Supreme Court was called upon to decide as to how far the provisions of theEvidence Act are attracted to departmental proceedings. It was ultimately held that all the principles underlying theEvidence Act would not be applicable to departmentalproceedings, but however, care has got to be taken toensure that a fair procedure of collecting evidence evenby the domestic Tribunal should be adopted.

I n AKHTAR AND OTHERS v. STATE OF

UTTARANCHAL[[11]], the Supreme Court was calledupon to decide the effect of non-examination of a medicalofficer, a crucial witness, on the findings of guiltrecorded. The Supreme Court ultimately held as under inParagraph No.16:

“ 16. ……… It is settled position oflaw that if the genuineness of anydocument filed by a party is notdisputed by the opposite party it canbe read as substantive evidenceunder Sub-section (3) of Section 294CrPC. Accordingly, the post-mortemreport, if its genuineness is notdisputed by the opposite party, thesaid post-mortem report can be readas substantive evidence to prove thecorrectness of its contents without thedoctor concerned being examined.”

I am of the opinion that the various principlessettled by the Supreme Court while dealing with criminalcases need not be extended or brought forth in theirapplication while dealing with the findings recorded bythe domestic Tribunal or, for that matter, Labour Court or Industrial Tribunal. Far Weighty considerations arebound to be shown by Courts while dealing with criminalcounts, as the liberty of an individual is at stake in suchcases. However, when it comes to dealing with thedomestic enquiries, what is relevant to be followed is afair, free and a procedure evolved in adherence toprinciples of natural justice and thereafter, whether areasonable body of men would have arrived at the sameconclusion based upon the evidence on record or not.

I am, therefore, of the opinion that the Labour Courthas exceeded its jurisdiction in reversing the findingsrecorded by the domestic Tribunal, which formed thebasis for the punishment that was handed down to therespondent workman.

The writ petition, therefore, is allowed, but however,the amounts which have been paid to the respondentworkman in terms of Section 17B of the Act, are not liableto be recovered by the petitioner management, nor liableto be adjusted against any terminal benefits, which therespondent workman might be entitled to receive. Nocosts.

mrk30[th] December 2009

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Nooty Ramamohana Rao, J

[1]AIR 1974 SC 696[2](2005)4 SCC 4[3]2001(91) FLR 380 (SC)[4]2001(5) ALT 65 (D.B)[5]1994 L.A.B. I.C. 1331[6](1995) 6 SCC 237[7](2006) 6 SCC 366[8]2008(3) SCC 729[9](2008) 3 SCC 729[10](2006) 4 SCC 265[11](2009) 5 SCALE 447