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TMI Blog2004 (12) TMI 693X X X X Extracts X X X X X X X X Extracts X X X X ..... of impact clearly demonstrates that the vehicle was being driven rashly or negligently. Res ipsa loquitur is a well-known principle which is applicable in the instant case. Once the said doctrine is found to be applicable the burden of proof would shift on the delinquent. As noticed, the enquiry officer has categorically rejected the defence of the Respondent that the bus was being driven at a slow speed. 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not in dispute that the Branch Manager of the Appellant, Mr. Venkatesan visited the scene of the accident at about 4 p.m. on the same day and conducted an investigation. During the said inspection some passengers were examined. He submitted a detailed report. In furtherance of the said report, a disciplinary proceeding was initiated against the Respondent on the following charges: "1. On 18.5.85 while you served as the driver in the bus bearing No.TMN 4148 you have been very careless in your duty and around 3.00 p.m. near Poondi dashed against a tamarind tree which was at the edge of the road and thereby caused a very big accident. 2. While you were on duty as aforesaid, even though it was a straight road and was visible to a distance of about 300 ft. In respect of the buses which come from the opposite direction, you have been very negligent and in a careless and irresponsible manner move the bus very fast and dashed the front left side of the bus against the branch of the tamarind tree which was cut and found at the left side of the road and after that turned the bus towards the right side and thereby caused heavy damage to the bus. On account of your aforesaid act the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence for itself but has to examine the findings of the Enquiry Officer on the evidence adduced in the domestic enquiry to ascertain whether a prima facie case had been made out on the charges leveled or if the findings are perverse', came to the following findings: "In the instant case, the domestic enquiry conducted cannot be considered as fair and proper and is vitiated on account of the failure of the Enquiry officer to observe the principles of natural justice by not examining the passengers who had given the statements." On such finding the approval sought for by the Appellant herein was rejected. A writ petition was filed by the Appellant questioning the correctness or otherwise of the said order dated 1.12.1992 before the High Court. A learned Single Judge of the High Court upheld the said order. A writ appeal No.46/1993 filed by the Appellant against the order passed by the learned Single Judge was dismissed opining: "Though the learned counsel for the Appellant placed reliance upon the judgment of the Apex Court in State of Haryana & Another Vs Rattan Singh reported in AIR 1977 SC 1512, we hold that the said pronouncement of the Apex Court will n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unjarrao Bhikaji Nagarkar Vs Union of India & Others [(1999) 7 SCC 409] Section 33(2)(b) of the Industrial Disputes Act reads as under: "(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman (a) *** (b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman. Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer." It is neither in doubt nor in dispute that the jurisdiction of the Industrial Tribunal under Section 33(2)(b) of the Industrial Disputes Act is a limited one. The jurisdiction of the Industrial Tribunal under Section 33(2)(b) cannot be equated with that of Section 10 of the Industrial Disputes Act. In this c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edly committed by the Respondent would stand proved on the basis of the evidence adduced by Shri M. Venkatesan together with the circumstantial evidences brought on records. The learned Single Judge of the High Court although referred to the sketch drawn by PW-1 on the site (Ex.P-2) and 4 photographs (Ex.P-8) but ignored the same observing that unless witnesses were examined in support of the two exhibits, it is not possible to draw any inference therefrom. The Division Bench of the High Court did not examine the materials on records independently but referred to the findings of the Industrial Tribunal as also the learned Single Judge to the effect that from their judgments it was apparent that the driver had not been driving the bus rashly and negligently. It is now a well-settled principle of law that the principle of Evidence Act have no application in a domestic enquiry. In Maharastra State Board of Secondary and Higher Secondary Education Vs. K.S. Gandhi and Others [(1991) 2 SCC 716], it was held: "It is thus well settled law that strict rules of the Evidence Act, and the standard of proof envisaged therein do not apply to departmental proceedings or domestic tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision of the Industrial Disputes Act. In Martin Burn's case (supra) this court stated: "A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. It may be that the Tribunal considering this question may itself have arrived at a different conclusion. It has, however, not to substitute its own judgment for the judgment in question. It has only got to consider whether the view taken is a possible view on the evidence on the record. (See Buckingham & Carnatic Co. Ltd. vs The Workers of the Company (1952) Lab. AC 490(F)." It is further trite that the standard of proof required in a domestic enquiry vis-`-vis a criminal trial is absolutely different. Whereas in the former 'preponderance of probability' would suffice; in the latter, 'proof beyond all reasonable doubt' is imper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erned had committed similar misconduct 36 times prior to the time he was found guilty and bearing that fact in mind this Court held thus:- "Be that as it may, the principle of res ipsa loquitur, namely, the facts speak for themselves, is clearly applicable in the instant case. Charging 50 paise per ticket more from as many as 35 passengers could only be to get financial benefit, by the Conductor. This act was either dishonest or was so grossly negligent that the respondent was not fit to be retained as a Conductor because such action or inaction of his is bound to result in financial loss to the appellant corporation." 7. On the above basis, the Court came to the conclusion that the order of dismissal should have been set aside. In our opinion, the facts of the above case and the law laid down therein applies to the facts of the present case also." In Thakur Singh Vs. State of Punjab [(2003) 9 SCC 208], this Court observed: "4. It is admitted that the petitioner himself was driving the vehicle at the relevant time. It is also admitted that the bus was driven over a bridge and then it fell into canal. In such a situation the doctrine of res ipsa loquitur co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he entries contained therein, if called in question, must be proved. The tribunal in that case came to the conclusion that management had failed to prove the original cost of the machines, plant and machinery, its age, the probable requirements for replacement, the multiplier and the divisor. In those circumstances the claim was held to have been properly disallowed by the Tribunal holding: "14 .No doubt the procedure prescribed in the Evidence Act by first requiring his chief- examination and then to allow the delinquent to exercise his right to cross-examine him was not followed, but that the Enquiry Officer, took upon himself to cross-examine the witnesses from the very start. It was contended that this method would violate the well recognized rules of procedure. In these circumstances it was observed at page 264: "Now it is no doubt true that the evidence of the Respondent and his witnesses was not taken in the mode prescribed in the Evidence Act; but that Act has no application to enquiries conducted by Tribunal even though they may be judicial in character. The law requires that such Tribunals should observe rules of natural justice in the conduct of the enqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case. The learned Counsel for the respondent also placed reliance upon a decision of this Court in Zunjarrao Bhikaji Nagarkar (supra). In that case, this court was concerned with the charge of misconduct against the appellant therein concerning an allegation that he favoured M/s Hari Vishnu Pakaging Ltd. Nagpur (assessee) by not imposing penalty on it under Rule 173-Q of the Central Excise Rules, 1944 when he had passed an order-in-Original No.20 of 1995 dated 2.3.1995 holding that the assesee had clandestinely manufactured and cleared the excisable goods willfully and evaded the excise duty and had ordered confiscation of the goods. The misconduct was said to have been committed by the appellant while exercising his judicial function. Having regard to the factual matrix obtaining therein, this court observed: "37. Penalty to be imposed has to be commensurate with the gravity of the offence and the extent of the evasion. In the present case, penalty could have been justified. The appellant was, however, of the view that imposition of penalty was not mandatory. He could have formed such a view ." It was further observed: "41. When penalty is not levied, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not garmane for determining the issue, namely, the passengers of the bus were mandatorily required to be examined. The Industrial Tribunal further failed to apply the correct standard of proof in relation to a domestic enquiry, which in "preponderance of probability" and applied the standard of proof required for a criminal trial. A case for judicial review was, thus, clearly made out. Errors of fact can also be a subject-matter of judicial review. (See E. vs Secretary of State for the Home Department (2004 Vol.2 Weekly Law Report page 1351). Reference in this connection may also be made to an interesting article by Paul P. Craig Q.C. titled 'Judicial Review, Appeal and Factual Error' published in 2004 Public Law Page 788. The impugned judgment, therefore, cannot be sustained and, thus, must be set aside. Ordinarily, we would have remitted the matter back to Industrial Tribunal for its consideration afresh but as the matter is pending for a long time and as we are satisfied having regard to the materials placed before us that the Industrial Tribunal should have granted approval of the order of punishment passed by the Appellant herein against the Respondents, w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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