IMPORTANT POINT
The judgment establishes that mere negligence does not constitute misconduct warranting dismissal under standing orders, and that disciplinary actions must be proportionate to the proven misconduct.

JUDGMENT/ORDER

1. This is a petition filed under Articles 226 and 227 of the Constitution of India whereby the petitioner-Brihan Mumbai Electric Supply and Transport ("BEST") has assailed the concurrent findings as rendered against the petitioner firstly by the Labour Court, Mumbai in its judgment and order dtd. 9/3/2012 and secondly, as confirmed by the Industrial Court in dismissing its appeal vide judgment and order dtd. 13/9/2017.

2. The relevant facts are :- The respondent joined the services of the petitioner on 3/8/1988 as a bus driver. His last drawn salary was of Rs.15,000.00 per month. A charge-sheet dtd. 4/5/2010 was issued to the respondent on the basis of an incident of an accident which had taken place on 21/4/2010, when the respondent on duty was driving a bus on route No.33. On the said day at about 12.35 a.m. when the bus being driven by the respondent was proceeding from Goregaon Bus Station to Goregaon Bus Depot, on Gajanan Maharaj Road, near Annabhau Sathe Square, one pedestrian while crossing the road from left side to the right side, collided with the bus and suffered a head injury. He was immediately taken by the respondent along with one passenger travelling in the bus one Mr. Vicky Mhasalkar to the Cooper Hospital when on medical examination, he was declared to be dead. On such incident, a charge-sheet dtd. 3/5/2010 was issued to the respondent levelling two charges against him, firstly under standing order No.20(J) to the effect that the respondent had shown unpardonable negligence in discharge of his duties and secondly, under standing order No.20(K) to the effect that the respondent was discharging his duties contrary to the service rules and regulations and a notice no.301 of 2004 dtd. 22/9/2004 issued for the bus drivers in regard to safe driving of bus. With effect from 4/5/2010 the services of the respondent were suspended.

3. The respondent denied the charges levelled against him. He interalia contended that the bus he was plying was at a very moderate speed of about 15 to 20 km per hour and that the pedestrian who collided with the left corner of the bus was talking on his mobile phone, suddenly came before the bus and was hit by the left side of the bus. It was the respondent's case that it was impossible for the respondent to conceive that suddenly such person talking on mobile phone would cross the road and would get hit by the bus and injured. His case was that there was no negligence whatsoever in discharging his duties.

4. The petitioner appointed an enquiry officer Shri. P. R. Pandey, who was holding the post of a Traffic Officer who conducted the disciplinary enquiry. Only one witness, who was stated to be an eye witness, was examined namely Mr. Vicky Mhasalkar, who stated in his evidence that he was working in Mahindra and Mahindra Company, Kandivali (East). He stated that he used to take a bus at about 12.10 to 12.15 a.m. from Goregaon Bus Station to return home. He stated in his evidence that on the day of incident, he had boarded bus No.33 and when the bus after taking stop at Bhagatsingh Nagar No.1, proceeded further and was to take a left turn at the square, which was in slow speed, one person suddenly came in front of the bus from his vehicle which was parked at the side of the road and was hit by the bus. He stated that the person collapsed on the ground and was injured. He stated that he along with the bus driver took the injured person to Cooper Hospital, but before the person could be admitted, he was declared as dead. In his deposition, he further stated that the speed of the bus was about 15 k.m. per hour and when the bus was taking a left turn, the speed of the bus was about 10 k.m. per hour. He also stated that on the side of the footpath, there were tempos, taxis, rickshaws, etc. which were parked and that as there was a speed breaker, when the bus driver (respondent) had applied brakes. He stated that the pedestrian/victim was speaking on the mobile phone while crossing th