The application of the principle of res ipsa loquitur in a departmental enquiry to shift the burden of proof onto the workman in cases of alleged misconduct.

DEEPA SHARMA, J.

1. Vide this common judgment, I propose to dispose of W.P.(C) No.6603/2001 and W.P.(C) No.4071/2004 since in both the cases, common question of law and facts are involved.

2. The brief facts in both the petitions are that the respondent-workman was in the employment of the petitioner as a driver. He was employed on 31.05.1979. On 31.12.1988, while he was on duty and driving Bus No.DEP-9353 on route No. SS(-), GTB Nagar, he allegedly was driving the said bus in rash and negligent manner and carelessly and caused an accident which resulted into the death of a cyclist Ram Prasad. The workman was arrested on the spot and a criminal case vide FIR No.440/88 under Section 279/304-A of IPC was registered against him and since the offence was bailable, he was released on bail.

3. Depot Manager, Wazirpur Depot, Shri Bhoop Singh, Assistant Traffic Inspector thereafter reached at the spot and after making enquiries, submitted his report. He reported that at the time when the cyclist was taking a left turn, Prem Singh-workman also took a left turn towards Madipur and hit the cyclist. His report shows that accident had occurred since Prem Singh-workman while taking a left turn did not take a broad turn but took a narrow turn. The cyclist received head injuries and died on the way to the hospital.

4. On the basis of this report, a charge-sheet dated 12.04.1989 for misconduct was issued and received by the respondent on 26.04.1989. He replied the charge-sheet vide his reply dated 16.05.1989. His reply was duly considered and on consideration, it was found unsatisfactory. An enquiry into the charges was ordered. The enquiry was conducted and during the enquiry, the Management had examined Prem Chand, Assistant Traffic Inspector. He had duly supported the petitioner’s case. The workman-respondent was asked to cross-examine the witness of the petitioner, but he refused to do so. He was also asked to produce his evidence in defence, but he also refused to produce any evidence. On 08.08.1989, the enquiry was completed and on 23.08.1989, Enquiry Officer gave its findings that the misconduct was proved against the workman-respondent.

5. A show-cause notice was issued to the respondent. Instead of submitting a reply to the show-cause notice, the workman sent a letter dated 06.08.1989 and also filed a suit for declaration and permanent injunction against show-cause notice of removal. But, he did not succeed in obtaining stay from the Court. Thereafter, vide order dated 07.04.1992, the services of the workman-respondent were terminated and he was paid one month notice salary through money order at his permanent address.

6. After about two years and three months, the workman-respondent raised an industrial dispute by filing a statement of claim, challenging his dismissal and it was registered as ID No.54/1994 before the Labour Court.

7. The petitioner had also filed an application under Section 33(2)(b) of the ID Act for approval of the dismissal order which was registered as O.P.No.149/1992.

8. Meanwhile, the respondent was also acquitted in FIR No.440/1988 by the Metropolitan Magistrate of charges of rash and negligent driving of the bus. In both the cases, the leaned Labour Court found that there was no formal defect in the enquiry. He, however, gave findings that since there was no evidence before the Enquiry Officer to prove the misconduct, the findings of Enquiry Officer were vitiated.

9. In both the cases, the Labour Court had set aside the enquiry report on the ground that the findings were vitiated and in these two writ petitions the said finding of Labour Court is under challenge. In W.P.(C) No.6603/2001, the said order is dated 13.01.2000 and 01.06.2000 and in W.P.(C) No.4071/2004, it is dated 24.01.2003. In W.P.(C) No.6603/2001, ID No.54/1994 was subsequently dismissed vide order dated 01.06.2000. All these orders are under challenge.

10. In ID No.54/94, an order dated 13.01.2000 was passed by the Labour Court. The findings o