Monday 10 October 2022

How to appreciate evidence if state is taking different stand while filing written statement in Motor accident proceeding and while taking departmental proceeding against concerned driver?

 12.11 The Road Transport Corporation, in order to

escape its liability in the M.A.C.T. matter, has

taken up the contention that the driver was

driving in a proper manner and rider of the two

wheeler was driving in a rash and negligent but

on the other hand in the disciplinary

proceedings it is contended that its own driver

was rash and negligent. It is required for any

litigant more so an instrumentality of the state

to adhere to one set of facts and not change

the set of facts depending on its convenience

and/or requirements.

12.12 Despite the existence of the fax dated

26.07.2015, of the Divisional Cum Controller to

the Managing Director, and the report of the

Deputy Chief Security and Vigilance Officer

dated 05.08.2016, a written statement had

been filed absolving the respondent-driver of

any liability. Once the driver stood absolved by

the said written statement, it is impermissible

for the Road Transport Corporation to initiate

the disciplinary enquiry.

12.13 It was for the respondent, Road Transport

Corporation to have come clean and clearly and

categorically stated in M.V.C.Nos.3282 &

3283/2015 that it was the driver's fault for

driving the vehicle in a rash and negligent

manner and offered to make payment of the

compensation due in the said proceedings. It is

only in order to try and escape the payment of

compensation that a false stand has been taken

by the Road Transport Corporation, which is

established to be false by the contents of the

present writ petition as also by the M.A.C.T. in

its order dated 08.09.2016 in the aforesaid

M.V.Cs.

12.14 It is also relevant to take note that not only was

the precious time of the M.A.C.T. wasted by

taking the said false defence offered by the

Road Transport Corporation, but more

importantly, the victim of the road accident was

denied, immediate relief, and succour by way of

payment of compensation. The said payment

being delayed until the finding being rendered

by the M.A.C.T. after evidence being led. These

kind of actions on part of the Road Transport

Corporation are required to be deprecated and

are deprecated.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

WRIT PETITION NO. 24370 OF 2019 (L-KSRTC)

BETWEEN:

THE KARNATAKA STATE ROAD TRANSPORT

CORPORATION  Vs SRI GANGANNA

BEFORE

 MR JUSTICE SURAJ GOVINDARAJ

DATED THIS THE 13TH DAY OF SEPTEMBER, 2022

1. The petitioner-Road Transport Corporation, is before

this Court seeking the following reliefs:

a. A writ of certiorari or order or direction quashing

the impugned award dated 12.10.2018 passed by

the Principal District Judge, at Tumkur in

Application No.10(4)(A) No.1/2017 produced at

Annexure-M.

b. Issue any other appropriate writ, order or

direction as deemed fit, under the facts and

circumstances of the above case, in the interest

of justice and equity.

2. The respondent-workman was appointed as a driver

with effect from 04.07.2020. On 26.07.2015, while

discharging his duty in a bus bearing registration

No.KA-06-F-952 plying in route No.23/24 i.e.,

Bengaluru to Hosadurga at 11.45 hours near

Nelamangala on Joss Toll of National Highway-4 after

crossing white line of divider due to rash, high speed

and negligent driving of the respondent-workman,

the driver dashed against a two-wheeler which came

from the opposite direction due to which the two-

wheeler rider expired at the spot and pillion-rider

expired on the way to the hospital.

3. It is alleged that this accident was caused due to the

rash and negligent driving of the driver-workman.

The Divisional Controller submitted an accident

report stating specifically that the accident was

caused due to the rash and negligent driving of the

workman-driver. On the basis of the said report of

the Divisional Controller, the Disciplinary Authority,

on 29.07.2015, suspended the respondent-workman.

4. On 05.08.2015, the Deputy Chief Security and

Vigilance Officer, K.S.R.T.C, Bengaluru, wrote a letter

to the Chief Security and Vigilance Officer,

K.S.R.T.C., Bengaluru, intimating about the accident

due to negligent driving. On the basis of the said

report article of charges was issued on 18.08.2015

towards which a reply was submitted by the

workman, which was not accepted.

5. The Enquiry Officer being appointed submitted a

report stating that the charges had been proved, and

the respondent-workman was called upon to give a

reply to the enquiry report, a reply when given was

not accepted, and the respondent-workman was

dismissed from service on 02.08.2016.

6. Being aggrieved by the said order, the respondentworkman

filed a Claim Statement under Section

10(4-A) of the Industrial Disputes Act, 1947, before

the Principal District & Sessions Judge, Tumkuru in

Application No.10(4) A No.1/2017. The said Principal

District Judge held the enquiry to be fair and proper.

But however, allowed the claim petition of the

workman and set aside the dismissal order directing

the reinstatement of the respondent-workman into

service with continuity of service and without back

wages from the date of dismissal, but withholding

three increments. It is aggrieved by the same that

the petitioner-Corporation is before this Court.

7. Sri. R.B.Annappanavar, learned counsel appearing for

the petitioner would submit that:

7.1 There is serious delinquency on the part of the

workman-driver inasmuch as an accident has

been caused due to the rash and negligent

driving of the said driver, which has resulted in

two deaths, and as such, the Tribunal ought to

have upheld the order of dismissal instead of

reinstating the workman.

7.2 The Labour Court has also further erred in

taking into account certain lower punishments

awarded to certain other workmen to support

its order of reduction of punishment, which

ought not to have been done.

8. Per contra, Sri. L.Shekar, learned counsel appearing

for the respondent-workman, would submit that the

Labour Court has rightly taken into consideration the

various factors and had reduced the punishment,

which cannot be found fault with. The respondentworkman

has been discriminated against vis-a-viz

other workmen who were awarded a lesser

punishment. The Road Transport Corporation has in

the Motor Accident claim filed has supported the

workman and as such disciplinary proceedings could

not have been initiated. Therefore, this Court ought

not to interfere in the matter and the petition above

filed would have to be dismissed.

9. When the said arguments were advanced, this Court

called upon Sri.R.B.Annappanavar to enquire into as

to whether any motor vehicle accident Claim Petition

had been filed under the Motor Vehicles Act, and

what was the defence if any, which had been taken

by the Road Transport Corporation.

10. Today, Sri. R.B. Annappanavar, produces the

judgment of the Motor Accident Claims Tribunal in

M.V.C.Nos.3282 and 3283/2015 dated 08.09.2016.

By relying upon the same, he submits that the

Tribunal has come to a categorical conclusion that

the respondent-workman has driven the vehicle in a

rash and negligent manner. Therefore, this Court

ought to take the same into consideration and set

aside the order of the Labour Court and confirm the

order of dismissal.

11. Heard Sri. Annappanavar R.B., learned counsel for

the petitioner and Sri. L. Shekar, learned counsel for

the respondent and perused papers.

12. The points that would arise for determination of this

Court are:

1. Whether the Road Transport Corporation

can take a different stand than that taken

before the Motor Accident Claims Tribunal

(M.A.C.T.), while dealing with the

disciplinary proceedings?

2. Whether the principle of estoppel would

apply to the Road Transport Corporation?

3. Whether the order passed by the Labour

Court suffers from any legal infirmity

requiring interference?

4. What order?

13. I answer the above points as under:

14. Answer to point Nos.1 and 2: Whether the Road

Transport Corporation can take a different

stand than that taken before the M.A.C.T., while

dealing with the disciplinary proceedings? and

Whether the principle of estoppel would apply

to the Road Transport Corporation?

12.1 There is no dispute about the occurrence of the

accident on 26.07.2015 and the involvement of

the vehicle, which was driven by the

respondent-workman. There is also no dispute

about the fact that two persons died due to the

said accident, who was the rider and the pillion

rider of the motorcycle against which the said

bus of the Road Transport Corporation dashed

against.

12.2 The contention of Sri. R.B.Annappanavar,

learned counsel for the petitioner is that the

Divisional Controller of concerned divisions had

submitted an accident report stating that the

respondent-workman was riding the same in a


rash and negligent manner. A fax message had

been sent by the Divisional Controller to the

Managing Director, and a report from the

Deputy Chief Security and Vigilance Officer,

K.S.R.T.C., Bengaluru, also indicated that the

said driver was riding in a rash and negligent

manner, and it is on that basis that the article

of charges were issued.

12.3 In M.V.C.Nos.3282 and 3283/2015, the

M.A.C.T. at Bengaluru (SSCH-15) has dealt with

the contents of the written statement in para '6'

which reads as under:

"6. In the written statement of respondent: he

admits that he has the owner of JA-06/F-952 and

denied all other allegations made in the petition

and contended that, on that day the driver of said

bus driven slowly and carefully on the left side of

road, at about 11.30 a.m. when the said bus

reached near the JOSS Toll which is an one way

road in which a rider of motor cycle bearing Regn.

No.KA-41/U-1520 came from the opposite

direction with a pillion rider in a rash and

negligent manner and dashed against to the front

right side of the said bus, further contended that,

the rider of motor cycle came in a wrong

direction, to avoid direct collusion, the driver of

the bus all of a sudden slowly and cautiously

applied brake and he was already in the extreme

left side of the road. As such, the rider of the

Motor Cycle bearing Reg.No.KA-41/U-1520 was

wholly and solely responsible for the alleged

accident. Hence, respondent prays to dismiss the

petition."

12.4 A perusal of the same would indicate that in the

written statement which has been filed in the

said M.V.C.Nos.3282 and 3283/2015, the Road

Transport Corporation has certified the driving

of the respondent-workman and has

categorically stated that the bus was being

driven slowly and carefully on the left side of

the road and it is further alleged that the rider

of the motor vehicle came from the opposite

direction in a rash and negligent manner and

dashed against the front side of the bus.

12.5 It is further stated that the rider of the

motorcycle came in the wrong direction and to

avoid a direct collision, the driver of the bus

slowly and cautiously applied the brake on the

extreme left side of the road. As such, it was

contended that sole responsibility for the

accident rested with the rider of the motorcycle,

and on that basis, it was contended that the

Road Transport Corporation ought not to be

made responsible for the compensation which

has been sought for in the M.V.C. case.

12.6 From the above, it is clear that in the written

statement filed, the Road Transport Corporation

has categorically exonerated the respondentworkman

from any wrongdoing and has

certified that the respondent-workman has

driven the vehicle in a proper and required

manner.

12.7 Shockingly, it is further averred and contended

that it is the rider of the motorcycle who has

driven in a rash and negligent manner. Though

the Tribunal, after considering all the evidence,

has come to the conclusion that the defence

that has been taken by the Road Transport

Corporation has not been established by any


documentary or ocular evidence and taking into

consideration the spot of the accident, has

come to the conclusion that the driver of the

bus of the Road Transport Corporation was

driving the said bus on the wrong side of the

road. The fact, however, remains that what we

are concerned with in the present matter is the

disciplinary enquiry which has been initiated by

the Road Transport Corporation.

12.8 The Road Transport Corporation, being a

Government company and instrumentality of

the state, the Road Transport Corporation as

also its officers, are required to act in a proper

manner.

12.9 In the present petition, it is categorically

averred that the Divisional Controller of K.B.S.

Division was of the opinion that the bus was

being driven in a rash and negligent manner,

which was informed by way of a fax message

dated 26.07.2015 to the Managing Director. In

furtherance thereof the Road Transport

Corporation has suspended the respondentworkman

on 29.07.2015. The Deputy Chief

Secretary and Vigilance Officer, has submitted a

report on 05.08.2015.

12.10 If that be so, it remains to be explained by the

concerned as to how the defence in

M.V.C.Nos.3282 and 3283/2015 was taken that

the driver was driving in a proper manner and

that it is the two wheeler rider who was driving

in a rash and negligent manner.

12.11 The Road Transport Corporation, in order to

escape its liability in the M.A.C.T. matter, has

taken up the contention that the driver was

driving in a proper manner and rider of the two

wheeler was driving in a rash and negligent but

on the other hand in the disciplinary

proceedings it is contended that its own driver

was rash and negligent. It is required for any

litigant more so an instrumentality of the state

to adhere to one set of facts and not change

the set of facts depending on its convenience

and/or requirements.

12.12 Despite the existence of the fax dated

26.07.2015, of the Divisional Cum Controller to

the Managing Director, and the report of the

Deputy Chief Security and Vigilance Officer

dated 05.08.2016, a written statement had

been filed absolving the respondent-driver of

any liability. Once the driver stood absolved by

the said written statement, it is impermissible

for the Road Transport Corporation to initiate

the disciplinary enquiry.

12.13 It was for the respondent, Road Transport

Corporation to have come clean and clearly and

categorically stated in M.V.C.Nos.3282 &

3283/2015 that it was the driver's fault for

driving the vehicle in a rash and negligent

manner and offered to make payment of the

compensation due in the said proceedings. It is

only in order to try and escape the payment of

compensation that a false stand has been taken

by the Road Transport Corporation, which is

established to be false by the contents of the

present writ petition as also by the M.A.C.T. in

its order dated 08.09.2016 in the aforesaid

M.V.Cs.

12.14 It is also relevant to take note that not only was

the precious time of the M.A.C.T. wasted by

taking the said false defence offered by the

Road Transport Corporation, but more

importantly, the victim of the road accident was

denied, immediate relief, and succour by way of

payment of compensation. The said payment

being delayed until the finding being rendered

by the M.A.C.T. after evidence being led. These

kind of actions on part of the Road Transport

Corporation are required to be deprecated and

are deprecated.

12.15 Learned counsel for the petitioner is directed to

bring the above facts and observations to the

knowledge of the Managing Director of the

Road Transport Corporation to issue necessary

directions to all the concerned while dealing

with similar matters that no contradictory stand

is taken by any of the disciplinary authorities

and/or the authorities who file written

statement in the M.V.C. proceedings and if any

such event occurs, necessary disciplinary

proceedings to be initiated against such persons

by following the applicable rules. Instructions to

be also issued that a statement to be made in

any written statement filed in a Motor Vehicle

Accident claim petition if any disciplinary

proceedings are initiated or not.


12.16 In view of the above, I answer point Nos.1 and

2 raised by holding that the Road Transport

Corporation cannot take different stands in

different proceedings more so, when they are

diametrically opposite to each other. The stand

having been taken by the Road Transport

Corporation in the M.V.C. proceedings the Road

Transport Corporation is estopped from taking

any stand otherwise.

15. Answer to point No.3: Whether the order

passed by the Labour Court suffers from any

legal infirmity requiring interference?

13.1. In view of my finding in respect of point Nos.1

and 2 above, I am of the considered opinion

that though this matter has not been

considered by the Labour Court, the finding of

the Labour Court is not required to be

interceded with.

16. Answer to point No.4: In view of the all aforesaid

reasons, I pass the following:

::ORDER::

i. The writ petition is dismissed.

ii. The Managing Director, Karnataka State Road

Transport Corporation (K.S.R.T.C.) is directed

to institute a proper Standard Operating

Procedure (SOP) to deal with similar kind of

matters on the basis of the observations made

herein above and submit the said Standard

Operative Procedure to this Court within a

period of six weeks from the date of receipt of

a copy of this order.

iii. Though the above petition is dismissed, for

reporting compliance with the above

observations, re-list on 15.11.2022.

iv. All pending interlocutory applications stand

dismissed.

Sd/-

JUDGE


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