TaxTMI 
TaxTMI 
2004 (12) TMI 693
X X X X Extracts X X X X
X X X X Extracts X X X X
....espondent herein it met with an accident resulting in death of 7 passengers. According to the Appellant the said bus was being driven in a rash and negligent manner. The road at the place of the accident was 300 ft wide and straight one. The Respondent allegedly despite noticing that another bus was coming from the opposite direction did not slow down the vehicle in order to avoid collision therewith. It is said that the Bus was being driven at a speed of 80 k.m.p.h. The bus driven by the Respondent herein is said to have swerved suddenly to the extreme left side of the road which was lined with tamarind trees on both sides. The impact of the said collusion was so severe that the bus dashed against the protruding branches and stumps of the tamarind trees, then dashed against the bus resulting the left side of the bus completely damaged as a result whereof 7 passengers died and several persons were seriously injured. The Motor Vehicles Claims Tribunal, Madras awarded a sum of Rs. 9 lakhs to the dependants of the victims as compensation for loss of life. It is not in dispute that the Branch Manager of the Appellant, Mr. Venkatesan visited the scene of the accident at about 4 p.m. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nce resulting in this accident and he is responsible for this accident and consequences thereof and the defence evidence by way of two statements adduced by the delinquent in proof of his defence cannot be given any credit or credence for reasons already expatiated. The delinquent has not alleged any brake failure in his earlier statement in Ex.P-9 or in his written explanation to charge memo, in which he has stated that he effectively used brake and halted the bus after impact." The Respondent was, thereafter, dismissed from the services by the Disciplinary Authority. As an industrial dispute was pending before the Industrial Tribunal the Appellant herein filed an application under Section 33(2)(b) of the Industrial Disputes Act for grant of approval of the said order of dismissal. The learned Presiding Officer, Industrial Tribunal by an order dated 29.4.88 despite holding that 'the scope of adjudication in a proceeding under Section 33(2)(b) of the Industrial Disputes Act is limited and while granting approval it does not sit as a court of appeal re-appreciating the evidence for itself but has to examine the findings of the Enquiry Officer on the evidence adduced in the....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... principles of natural justice must be held to have fully been complied with. In support of the said contention, learned counsel has strongly relied on a decision of this Court in Divisional Controller KSRTC (NWKRTC) Vs. A.T.Mane [2004(8) SCALE 308] Mr. J. Buther, learned counsel on behalf of the Respondent, on the other hand, would submit that in the domestic enquiry the alleged misconduct of the Respondent cannot be said to have been proved inasmuch as no finding has been recorded as regards the culpability of the Respondent vis-a-vis commission of the said misconduct. It was further contended that only because an accident had taken place, the same by itself in absence of the strict proof thereof and having regard to the fact that the Respondent had been acquitted in the criminal trial, cannot be held to be a ground to infer that the misconduct on the part of the Respondent stood proved. The learned counsel in support of his argument has placed reliance upon a decision of this Court in M/s Bareilly Electricity Supply Co. Ltd. Vs. The Workmen and Others [1971(2) SCC 617] and Zunjarrao Bhikaji Nagarkar Vs Union of India & Others [(1999) 7 SCC 409] Section 33(2)(b) of the Industrial....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er noticed that even after the impact of the bus against the tree, the delinquent is said to have swerved the bus further to the right side from left side without applying brake and reducing speed and later only be brought the bus to a halt at some distance as a result of which the entire side roof angle of the bus got cut. The learned Presiding Officer, Industrial Tribunal, as noticed hereinbefore, opined that the passengers of the bus should have been examined. It does not appear from the order dated 29.4.88 passed by the Presiding Officer, Industrial Tribunal that the Respondent herein made any prayer for cross examining the passengers who travelled in the ill-fated bus and who were examined by the said Shri M. Venkatesan. It is evident from the order of the learned Tribunal that only in the show cause filed by the Respondent in response to the second show cause notice, such a contention was raised. The learned Presiding Officer, Industrial Tribunal in his impugned judgement further failed to take into consideration that even if the statements of the said passengers are ignored, the misconduct allegedly committed by the Respondent would stand proved on the basis of the eviden....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of proof. The probative value could be gauged from facts and circumstances in a given case. The standard of proof is the same both in civil cases and domestic enquires." There cannot, however, be any doubt whatsoever that the principle of natural justice are required to be complied with in a domestic enquiry. It is, however, well-known that the said principle cannot be stretched too far nor can be applied in a vacuum. The jurisdiction of the Tribunal while considering an application for grant of approval has succinctly been stated by this Court in Martin Burn Ltd. vs R.N. Banerjee (AIR 1958 SC 79). While exercising jurisdiction under Section 33(2(b) of the Act, the Industrial Tribunal is required to see as to whether a prima facie case has been made out as regard the validity or otherwise of the domestic enquiry held against the delinquent; keeping in view the fact that if the permission or approval is granted, the order of discharge or dismissal which may be passed against the delinquent employee would be liable to be challenged in an appropriate proceeding before the Industrial Tribunal in terms of the provision of the Industrial Disputes Act. In Martin Burn's case (sup....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o 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 hardship is sought to be avoided by applying the principle of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident "speaks for itself" or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence " The said principle was applied in Sarla Dixit (Smt.) and Another Vs. Balwant Yadav and Others [(1996) 3 SCC 179]. In A.T. Mane (supra), this Bench observed: "6 Learned counsel relied on a judgment of this Court in support of this contention of his in the case of Karnataka State Road Transport Corpn. Vs. B.S. Hullikatti [(2001) 2 SCC 574]. That was also a case where a conductor concerned had committed similar misconduct 36 times prior to the time he was fo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he court but for the administrative tribunal. In conclusion, we do not think the courts below were right in overturning the finding of the domestic tribunal." Yet again, this Court in A.T. Mane (supra) referring to the decision of this court in Rattan Singh (supra) held: "6 In such circumstances, it was not necessary or possible for the appellant corporation to have examined the passengers to establish the guilt of the respondent. He also submitted that the finding of the Labour Court and the learned Single Judge that the punishment is disproportionate to the misconduct is wholly misconceived." In M/s Bareilly Electricity Supply Co. Ltd.(supra) this Court was seized with a different question namely the employer's liability to pay the bonus to the workmen which had a direct relation with the profit earned by the company for the year 1960-61. In support of financial condition of the management which had a direct nexus with the employer's capacity to pay bonus and in that situation it was held that mere production of a balance- sheet by the management would not serve the purpose as the entries contained therein, if called in question, must be proved.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d opportunity afforded to the opposite party who challenges this fact. This is both in accord with principles of natural justice as also according to the procedure under Order XIX, Civil Procedure Code and the Evidence Act both of which incorporate these general principles. Even if all technicalities of the Evidence Act are not strictly applicable except in so far as Section 11 of the Industrial Disputes Act, 1947 and the rules prescribed therein permit it, it is inconceivable that the Tribunal can act on what is not evidence such as hearsay, nor can it justify the Tribunal in basing its award on copies of documents when the originals which are in existence are not produced and proved by one of the methods either by affidavit or by witnesses who have executed them, if they are alive and can be produced. Again if a party wants an inspection, it is incumbent on the Tribunal to give inspection in so far as that is relevant to the enquiry. The applicability of these principles are well recognized and admit of no doubt." The said decision, for the reasons stated hereinabove, cannot have any application to the fact of the present case. The learned Counsel for the respondent also pl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....der in the Appellate Tribunal could not be enough to proceed against the appellant. There is no other instance to show that in similar case the appellant invariably imposed penalty." In the aforementioned factual matrix of the case it was held that every error of law would not constitute a charge of misconduct. This decision also has no application to the facts of the present case. In the instant case the Presiding Officer, Industrial Tribunal as also the learned Single Judge and the Division Bench of the High Court misdirected themselves in law insofar as they failed to pose unto themselves correct questions. It is now well-settled that a quasi-judicial authority must pose unto itself a correct question so as to arrive at a correct finding of fact. A wrong question posed leads to a wrong answer. In this case, further more, the misdirection in law committed by the Industrial Tribunal was apparent insofar as it did not apply the principle of Res ipsa loquitur which was relevant for the purpose of this case and, thus, failed to take into consideration a relevant factor and furthermore took into consideration an irrelevant fact not garmane for determining the issue, namely, the ....