1999 Supreme(Bom) 746

IN THE HIGH COURT OF BOMBAY
R.J. Kochar, J.
Municipal Corporation of Greater Bombay Petitioner.
Versus
Siddheshwar Shivaji Kamble others..... Respondents.
Writ Petition No. 2932 of 1992, decided on 1-10-1999.
Advocates appeared :
Talsania, for petitioner.
Ganguli, for respondent.

Headnote:Domestic enquiry

       Domestic Enquiry-A domestic enquiry is not a criminal trial.

       Domestic Enquiry-Respondent No.1 employee, after a domestic enquiry against him was dismissed from service on the charge that he was found under the influence of alcohol when he was on duty and driving a public transport bus-Two witnesses examined during the enquiry unequivocally described the condition of the employee-driver at the relevant time, which would fit in the description of a person who is under the influence of alcohol-The employee driver neither denied the description nor submitted any written explanation denying the charges-Departmental appeals filed by the employee dismissed-The Labour Court before which the employee ventilated his grievance quashed the dismissal and directed the reinstatement of the employee with full back wages and continuity of service on the ground that the findings of Enquiry Officer were perverse and no medical evidence was brought on record-Industrial Court confirmed the findings of Labour Court though it had called for the original medical record for examination which had an entry regarding the condition of the employee at the relevant time-Both the Courts committed a grave error of law in discarding the findings of enquiry officer as perverse and not based on evidence on record-The entry in the medical record which was a public register by a public medical officer regarding the condition of the employee was more than a corroborative evidence-Orders set aside. Respondent No. 1 a driver with the Municipal Corporation was dismissed after holding a domestic enquiry against him on the charge that he was found under the influence of alcohol when he was on duty and driving a public transport bus. The Police Sub-Inspector and the Accident Supervisor stated in the enquiry the condition of the employee at the relevant time which would fit in the description of a person under influence of alcohol. The doctor who examined the employee when taken to hospital also made an entry in the medical record that the patient consumed alcohol and was under influence of the same. The employee challenged the dismissal before Labour Court which quashed the same and directed the reinstatement of the employee with full back wages and continuity of service on the ground that the findings of the Enquiry Officer were perverse and no medic? I certificate was produced and the doctor was not examined as a witness before the Enquiry Officer. Employer challenged the decision of Labour Court before the Industrial Court which had called for the original medical record from the Hospital. The said record was to the following effect: "On examination patient fairly conscious, pupils semi dilated gesticulating to light. Breath smells alcohol, gait unsteady, coordination, poor, speech slurred. Patient consumed alcohol and under influence of the same." The Industrial Court however having confirmed the findings of the Labour Court the Municipal Corporation filed Writ Petition challenging the order.

       Held, that no reasonable or prudent man knowing a person with red eyes, smelling of alcohol from his breath and incoherent speech would dare to allow him to sit on the wheels to drive a vehicle. No much expertise of and nature is required to know that a person is under the influence of alcohol under the above description. Anyone who has taken some liquor is betrayed by his breath First and then other symptoms such as red eyes, trembling of the body and incoherent speech would follow. He need not be sent to a Doctor or a hospital for examination for the purpose whether he should be allowed to drive a vehicle and particularly a Public Transport vehicle carrying 100 passengers in a crowded roads of the city of Mumbai. Even in the absence of a formal medical certificate if the employer hinds the aforesaid symptoms on the body of his driver he can very well refuse to continue him in employment as driver. There was sufficient evidence before the enquiry officer. Two independent witnesses, that is, the Police Sub-Inspector, Accident Supervisor of the Undertaking, who had nothing against the delinquent driver had unequivocally described the state in which the delinquent driver was found at the relevant time. The description exactly fits in the description of a person who is under the influence of alcohol or liquor. This description is not denied or refuted by the delinquent driver in any manner. He had Rot said in his evidence how and why his eyes became red, and why his gait was unsteadily and he was trembling and why his speech was incoherent. He had not denied the aforesaid symptoms and he had also not explained what caused the aforesaid symptoms. He had not submitted his written explanation to the charge-sheet denying the charges and explaining further what exactly had happened at the relevant time the delinquent driver was taken to the public hospital where he was examined by a doctor who had recorded his description in the medical register maintained by the hospital in its due course of business. Though the said certificate or the register was not produced before the Enquiry Officer the fact remains that the said record was made in the register of the public hospital The Medical Officer who recorded the said description had nothing against the delinquent driver and he was an independent Public Officer. The evidence of the two witnesses before the Enquiry Officer who had given their statements and who were cross-examined by the delinquent driver, constituted sufficient evidence before the Enquiry Officer to find the guilt of the delinquent driver that he was under the influence of alcohol or liquor at the relevant time. It satisfies the test in such matters where only preponderance of evidence is enough and there need not be proof to the hilt. There was further no good reason to say that some passengers should have been examined. There need not be any proof to the hilt in the form or medical certificate and the medical reports of blood and urine examination on the basis of which alone the employer can get rid of such a driver. It was wrong on the part of the Labour Court to search for some more "legal evidence" in the form of medical certificate. The evidence of two witnesses before the enquiry officer was more than sufficient evidence to base the findings of guilt of the delinquent driver. If any documentary evidence was required in support of those witnesses the medical register of the public hospital with the entries quoted hereinabove was more than a corroborating and conclusive evidence. Both the Labour and Industrial Courts committed a grave error of law in discarding the finding of the enquiry officer as perverse and not based on evidence on record. The Industrial Court was also wrong in discarding the entry in the public document such as medical register merely on the ground that the doctor who examined the delinquent was not examined as a witness. Documentary evidence which was a public register maintained in due course of business was more than a corroborative evidence to show that the delinquent driver was under the influence of alcohol at the relevant time. In view of the fact that the employee was suffering from serious ailment and living a miserable life, the employer agreed to consider the employment delinquents son if he was eligible and found fit otherwise. 1971 (2) LLJ 407, Ref.1996 (2) LLJ 144, Rel.