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CASE NO.: Appeal (civil)  4779 of 2006

PETITIONER: U.P. State Road Transport Corporation & Ors

RESPONDENT: Shivaji

DATE OF JUDGMENT: 10/11/2006

BENCH: S.B. Sinha & Dalveer Bhandari

JUDGMENT: JUDGMENT

O R D E R  [Arising out of S.L.P. (Civil) No.3586 of 2005]

       Leave granted.

       Respondent was appointed as a Driver by Appellants herein.  On  07.12.1986, he was driving a bus on Aligarh-Agra route.  A barrier was  installed at Sasani Bus Stand by the public.  The barrier was not installed by  Appellant-Corporation or by any other statutory authority.  Respondent    allegedly dashed into the barrier intentionally and caused injuries to one  Bhoodev.  He was placed under suspension.  A domestic inquiry was held.   He was found to be guilty of the charges levelled against him.  He was  directed to be removed from services.  An industrial dispute was raised  whereupon the State referred the following dispute for adjudication to the  Labour Court, Agra :

"Whether the termination of services of Shri Shivaji, S/o  Shri Sundarlal, Driver, by the employees vide order dated  07.09.1987 is legal and valid?  If not, then to what  relief/benefit the workman is entitled?  And with what  details?

       A preliminary issue was raised as to whether the domestic inquiry was  legal and valid.  It was held not to be so; whereupon Appellants were  granted opportunity to adduce evidence to prove the charges against  Respondent.  Evidence was led before the Labour Court.  On analysis of the  evidence brought on records, the Labour Court held :

"\005Shri Bhoodev Singh, S/o Mulayam Singh has been  produced on behalf of employers  who stated that on  07.12.1986 the witness was posted as Sasani.  A barrier  was installed in front of bus stand to stop the bus which  was used  to be opened by the witness.  On the said date  the concerned workman came along with bus from the  side of Aligarh.  The witness has lowered the barrier to  stop the bus but concerned workman did not stop the bus.   The bus went ahead by breaking the barrier due to which  the witness fell down and got injuries in his hands and  legs.  In cross examination  also no contrary fact has been  emerged from this witness and he has supported his  original statement.

7.      The concerned workman has not produced any  evidence in his defence.  From consideration of all the  evidence and documents available on record the

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conclusion is arrived that the workman has intentionally  hit the barrier due to which one employee got injured.  In  this accident there could be serious loss of life and  property.  Therefore my opinion is that concerned  workman is guilty of serious misconduct and has no right  to remain in service.  The termination of workman’s  services w.e.f. 07.09.1987 is legal and valid and he is not  entitled for any benefit/relief.  Both parties will bear their  own costs."

       A writ petition was filed questioning the correctness of the said  Award by Respondent before the High Court which by reason of the  impugned judgment was allowed, stating :         

       "Statement of aforementioned sole witness has  been brought on record along with supplementary  affidavit.  In the statement of aforementioned witness  it  has been mentioned that he has received minor injury.  It  has been admitted by him that while bus was proceeding  from Aligarh to Sasni then he asked to get bus stopped  when the Bus was near to barrier and by that time he was  putting barrier down bus caused injuries to him.  It has  been admitted that said barrier was not belonging to  Roadways and it was totally private barrier.  No injuries  has been caused by bus rather on account of barrier  falling, the rope was loosened on account of which he fell  down.  It has been admitted that bus could have passed  even without putting barrier down.  No justification has  come on record as to why said bus was being stopped at  that private barrier.  No First Information Report has  been lodged, no medical examination was done at  Government Hospital.  It is true that High Court has got  no authority to appreciate evidence, but the case in hand,  taking the sequence of events clearly establish that it is  practically case of no evidence.  Tested on the touchstone  of reasonableness and fairness, no reasonable or prudent  man would construe, this case to be a case of misconduct  as has been alleged.  Even the sentence, which has been  awarded, same is shockingly disproportionate to the  charge which had been levelled i.e. non stopping of bus  at barrier.  Injuries alleged to be received by Bhoodev  Singh are attributable to his own conduct as Bus in  question could have passed even putting barrier down."

       The learned counsel appearing on behalf of Appellants urged that  Respondent having been found  guilty of a serious charge of misconduct by  the Labour Court, the findings of fact arrived at by the Labour Court should  not have been interfered with by the High Court.   

       Ms. Sharda Devi, the learned counsel appearing on behalf of  Respondent, on the other hand, supported the judgment.   

The Labour Court exercised its jurisdiction under Section 11-A of the  Industrial Disputes Act, 1947 (for short, ’the Act’).  It was categorically held  that the domestic inquiry  was not fair or valid and Respondent in the  domestic inquiry had not been granted adequate opportunity to defend his  case.  Appellant was, therefore, granted opportunity to adduce evidence  afresh.  The opinion of the  Labour Court in the matter has, therefore, to be  judged on the basis of the evidence adduced before it.  The Labour Court did  not analyze the evidence adduced by the parties at all.  It adopted a wrong  approach.  It did not consider as to whether ’Bhoodev’ who was examined  on behalf of the Corporation, being its employee could have operated the  said barrier particularly when his job was only to serve water to its

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employees.  The barrier, according to him, had not been put up by the  Corporation.  He was not on duty to operate the said barrier.  As noticed  hereinbefore, the public allegedly installed  the said barrier for which no  authority existed.                    The fact as to why the said barrier was put up and whether the same  was within the knowledge of all the drivers of  the Corporation had not been  disclosed.  Even according to the said witness, no First Information Report  was lodged.  He did not receive any serious injury.  The statement of  ’Bhoodev’ before the disciplinary authority was marked  as an exhibit.  In  his statement  before the domestic inquiry he stated :

"Q.  When you had closed the barrier, how far was the  bus standing?

A.  As soon as the bus came, I had pulled down the  barrier but as soon as the driver of the bus lowered down  speed of the bus and asked to raise the barrier, I tried to  open the barrier, but even then it was hit by the corners of  the portion of the bus above the glass.

Q. When you raise the barrier, how far were you dragged  along with rope behind the bus?

A.  I was dragged for about the distance of five hands."      

       The charge levelled  against Respondent was noticed by the Labour  Court in the following terms :

"\005On 18.12.1986 information has been received against  the Driver that on 07.12.1986 when he was driving bus  No. UTR 4007 on Aligarh-Agra route, he intentionally  broken the barrier installed near Sasani bus stand.  He  had negligently driven the bus towards Agra due to  which an employee Bhoodev received injuries in the  accident.  On this basis a chargesheet was issued to  concerned workman on 20.01.1987 and domestic enquiry  got made in accordance with law\005"

                        The offence to cause any intentional injury, thus, cannot be said to  have been proved.  The High Court was, therefore, not wholly incorrect in  opining that there was no evidence to prove the charges levelled against him.

       In fact, the Presiding Officer, Labour Court, did not assign  any reason  as to how the charges could be said to have been proved.  He had not taken  into consideration his power under Section 11-A of the Act in regard to  quantum of punishment.  Why he had opined that the workman was guilty of  serious misconduct and had no right to remain in service has not been  explained.   

The matter in ordinary course should have been remitted to the  Labour Court for passing an appropriate award,  but keeping in view the fact  that the matter is pending for a long time, we ourselves considered the  evidence on records.

       We, therefore, are of the opinion that the impugned judgment cannot  be faulted in its entirety.  The High Court has granted reinstatement of   Respondent with only 50% back wages. The said order has been stayed by  this Court.  Respondent was out of service for a long time.  He, as noticed  hereinbefore, even during the pendency of the domestic inquiry had been  kept under suspension.  He, however, was driving rashly and negligently.   

In a case of this nature, doctrine of proportionality would also be

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applicable. Doctrine of irrationality is now giving way to doctrine of  proportionality.  [See Commissioner of Police and Others v. Syed Hussain   (2006) 3 SCC 173].  The Labour Court also did not consider this aspect of  the matter.  If only a charge of negligence had been proved against him, we  are of the opinion that the interest of justice would be subserved if he is  directed to be reinstated in service with 25% back wages.  

The appeal is disposed of with the aforementioned directions.  No  costs.