Point of Law: Departmental proceedings and criminal case are based on identical and similar set of facts and charge in a departmental case against appellant and charge before criminal court are one and same.

ORDER :

1. The petitioner is before this court seeking for the following relief:

“The petitioner humbly prays that this Hon’ble Court may be pleased to issue a writ in the nature of certiorari and or any other appropriate writ, order and quash the impugned Award dated 28.02.2014 passed in I.D. No.18/2012 by the Prl. Labour Court, Bangalore at Annexure-J and pass such other order or orders as deemed fit in the facts and circumstances of the case.”

2. The employer is engaged in the manufacture of ready to fry products and established a factory with around 60 workmen. The machinery installed are automatic requiring less manual operation and as such, the workmen are fully trained to operate the machines. The respondent was working as an Operator in the petitioner factory on G700 Gelatinizer mixing machine with the aid of a helper by name Annayachari.B.C.

3. On 10.9.2011, it is alleged that the respondent-workman tied a thin wire to the limit switch and allowed the contract worker N.Devaraj to clean the mixing machine. The contract worker while cleaning, touched the knob which started the machine and caused the accident resulting in instantaneous death of the contract worker.

4. It is alleged that if the thin wire was not tied to the limit switch, the accident itself would not have happened since the safety switch would not have allowed the machine to start. It is on this basis, a charge memo came to be issued on 22.09.2011, to both the respondent and Annayachari. The respondent workman submitted his reply and explanation, finding the same not satisfactory the Enquiry Officer was appointed.

5. The Enquiry Officer submitted a report and findings on 5.1.2012 holding the respondent guilty of the charges. A second show cause notice enclosing the report and finding of the Enquiry Officer was issued to the respondent, the reply thereto being not satisfactory, the Disciplinary authority terminated the services of the respondent by order dt. 10.03.2012 and paid an amount of Rs.3,367/-towards other dues and Rs.1,92,733/-as gratuity which has been collected by the workman.

6. The workman raised a dispute before the Prl. Labour Court registered as I.D.No.18/2012. The labour court held the domestic enquiry to be fair and proper vide order dated 5.10.2013 and vide award dated 28.02.2014 held the findings of the enquiry officer as perverse and set-aside the termination order directing the petitioner to reinstate the respondent-workman in his original post with 50% backwages, continuity of service and all consequential benefits. It is aggrieved by the said award, the petitioner is before this Court seeking for the aforesaid reliefs.

7. Sri.Somashekhar, learned counsel for the petitioner would submit that,

7.1. Once the domestic enquiry is held to be fair and proper, the question of labour Court thereafter holding the contents of the enquiry report to be perverse would not at all arise. In this regard, he relies upon the decision Cholan Roadways -v-Sri.g.Thirugnanasambandam, (2005) 3 SCC 241, more appropriately paras 21 and 22 thereof, which is reproduced hereunder for easy reference:

21. 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.

22. In Pushpabai Purshottam Udeshi v. Ranjit Ginning & Pressing Co. (P) Ltd. [(1977) 2 SCC 745 : AIR 1977 SC 1735] this Court observed: (SCC pp. 750-51, para 6)

“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