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2011 Supreme(Mad) 4899
IN THE HIGH COURT OF MADRAS, MADURAI BENCH
D. Hariparanthaman, J.
The Management Tamil Nadu State Transport Corporation (Madurai, Division-V) Ltd. – Appellant
Versus
The Joint Commissioner of Labour (Conciliation) and M. Thennarasu – Respondent
Writ Petition (MD). No. 10735 of 2005 and M.P. (MD). Nos. 1 and 2 of 2006
Decided On : 01-07-2011
For the Appellant : R. Sivamanogaran
For the Respondent: S. Mohandoss, for P. Subbna Raj
The main legal point established in the judgment is the requirement for legal evidence to support dismissal under the Industrial Disputes Act and the inapplicability of the principle of res ipsa loquitur when eyewitnesses are available.
Headnote:
Industrial Disputes Act - Approval Application - 33(2)(b) - [2003 (3) LLN 713, 2005 (1) LLN 633] - The court discussed the application of the principle of res ipsa loquitur and the requirement of legal evidence in determining the dismissal of an employee under the Industrial Disputes Act. The court found that the findings of the enquiry officer were not supported by legal evidence and therefore not perverse. The judgment cited by the petitioner was found inapplicable to the facts of the case, and the court dismissed the writ petition.
Fact of the Case:
The case involved the dismissal of a bus driver following an accident in which a pillion rider died. The employer sought approval for dismissal under section 33(2)(b) of the Industrial Disputes Act.
Finding of the Court:
The court found that the dismissal was not supported by legal evidence and the findings of the enquiry officer were not perverse.
Issues: The issues included the application of the principle of res ipsa loquitur, the sufficiency of legal evidence, and the requirement for a fair enquiry.
Ratio Decidendi: The court held that the principle of res ipsa loquitur could not be applied where eyewitnesses were available, and the dismissal was not supported by legal evidence. The court also found that the petitioner's request for remand to lead evidence had no merit.
Final Decision: The writ petition was dismissed, and the employee was reinstated in service.
D. Hariparanthaman, J.
The writ Petitioner is a Transport Corporation. The writ Petitioner has questioned the rejection of approval application No. 365 of 2003 filed u/s 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred as the Act) by the impugned order, dated 12.02.2005. The Petitioner has sought approval for dismissing the second Respondent by an order dated 06.10.2003. As stated above, the first Respondent refused to grant approval.
2. The facts leading to the filing of the writ petition are stated as follows:
The second Respondent was a driver employed by the writ Petitioner corporation. He was on duty on 29.03.2003 in the bus with registration No. TN 58 N 0178, which run between Thirumangalam and Courtallam. He started his trip at Thirumangalam and proceeded to Courtallam. When the bus was nearing Puliyangudi at 11.30 a.m. there was an accident with TVS 50 moped (the same is disputed by the workman). The accident took place when he attempted to over take TVS-50 moped. The pillion rider in the TVS 50 Moped fell down and the rear side left wheel of the bus run over on the pillion rider. The pillion rider died due to accident.
An official of the transport corporation on hearing about the accident, investigated the manner of accident and gave a report. Based on the report, the Petitioner issued a charge memo dated 07.04.2003 alleging that the second Respondent committed misconduct of rash and negligent driving. The second Respondent submitted an explanation denying the charges.
3. The workman stated that there was road repair taking place at the place of accident. Due to road repair works, the road became narrow and therefore, he slowed the vehicle. The TVS 50 Moped attempted to over take on the left side of the bus and since it was not a proper road, he fell down and the rear side left wheel of the bus run over on the pillion rider. According to him, he did not over take the TVS 50 Moped and only the TVS 50 Moped attempted to overtake the bus and in that process the accident took place as the road was not in a good condition. Because of road condition, she fell down.
4. An enquiry was conducted. In the enquiry, the person who investigated the accident alone was examined and nobody else was examined. Even the conductor, who gave the statement about the accident was not examined. The driver got examined himself in the enquiry. Thereafter, the enquiry officer gave a report alleging that the charges were established. Based on the finding, the Petitioner dismissed the second Respondent on 06.10.2003. Since an industrial dispute relating to charter of demand was pending before the first Respondent, the writ Petitioner sought approval for dismissal u/s 33(2)(b) of the Act and the same was taken on file in Approval Petition No. 365 of 2003. After hearing both sides, the first Respondent rejected the approval petition on the ground that the findings of the enquiry officer was perverse as there was No. legal evidence. The first Respondent held that the person, who investigated the manner of accident alone was examined and he has not examined any eye witness during his investigation and the conductor was also not examined. Therefore, it is the case of No. evidence. Hence, the first Respondent refused to grant approval by the impugned order, dated 12.02.2005. The writ Petitioner has filed the present writ petition to quash the aforesaid order, dated 12.02.2005 of the first Respondent rejecting the approval application No. 365 of 2003 filed by the writ Petitioner.
5. Heard both sides.
6. The learned Counsel for the Petitioner submits that the first Respondent exceeded its jurisdiction by re-appreciating the evidence as if it is a reference u/s 10 of the Industrial Disputes Act and the first Respondent ought to have granted approval as it is only a proceeding u/s 33(2)(b) of the Act. It was further contended that the first Respondent also held that the enquiry officer failed to take into account the photographs filed by t
