Judgment:
ORDER
S.R. Nayak, J.
1. This writ petition filed by the Depot Manager, A.P.S.R.T.C., Medak is directed against the award dated December 31, 1987 passed in I.D. No. 244/86 on the file of the Additional Industrial Tribunal-Cum-Additional Labour Court, Hyderabad directing reinstatement of the first respondent Sri Mobd. Ismail into service with continuity of service and attendant benefit and with 50% backwages.
2. An important question of law of general importance whether an opinion expressed by a disciplinary authority in the course of preliminary enquiry that the delinquent employee is guilty of the alleged misconduct could act as a disqualifying bias arises for our consideration and decision in this case.
3. The first respondent was a driver in the services of the A.P.S.R.T.C. It was alleged that on May 19, 1984 the first respondent was driving the bus bearing registration No. AAZ 1614 on the route Rajpet - Medak and while returning from Rajpet, on account of rash and negligent driving, he caused an accident while negotiating a turning on the left side of the road resulting in dashing of the vechile to the right side guard stones; the vechile went off the road for a distance of 47 feet and capsized in a nearby nala. On account of the accident 35 passengers and the conductor sustained injuries of different magnitude and heavy damage was caused to the vechile. The police registered a crime against the first respondent under Sec-337 Indian Penal Code. Accident Enquiry Committee was constituted as per the Operational Manual consisting of the Depot Manager, Medak and the Depot Manager, Sangareddy as a part of preliminary enquiry, to enquire into the accident. The Accident Enquiry Committee visited and inspected tip, Accident spot on May 20, 1984 and after, necessary investigation it opined that the accident was caused on account of gross negligence of the driver; it also opined that the first respondent be suspended and disciplinary action be instituted vide its report dated May 22, 1984. The first respondent was kept under suspension and he was served with the charge-sheet on May 24, 1984. The following are the four charges framed against the first respondent :
1 'For your rash and negligent driving of AAZ 1614 on May 19, 1984 resulting in the capsize of the vehicle which constitutes misconduct in terms of Reg. No. 28 (xxxii) of APSRTC Employees (Conduct) Regulations, 1963.
2. For your gross negligence in driving AAZ - 1614 resulting in serious loss to the Corporation and inconvenience to the public which constitutes misconduct in terms of Reg. No. 28(ix)(a) of APSRTC Employees (Conduct) Regulations, 1963.
3. For having caused damage to AAZ 1614 due to your negligence which constitutes misconduct in terms of Reg. 28(xiii) of APSRTC Employees (Conduct) Regulations, 1963.
4. For having failed to take precautionary measures and driving the vechile AAZ 1614 without road Sense which constitutes misconduct in terms of Reg. No. 28(xvii) of APSRTC Employees (Conduct) Regulations, 1963.'
The first respondent submitted his reply on July 11, 1984. Thereafter wards the Depot Manager, Medak who is the Disciplinary Authority and the petitioner herein, not being satisfied with the explanation offered by the first respondent, decided to hold departmental enquiry, and appointed the Chief Inspector (Enquiries), Medak division as Inquiring Authority, to conduct enquiry into the charges levelled against the first respondent. The Inquiring Authority, after holding the enquiry as per the provisions of the Andhra Pradesh State Road Transport Corporation Employees (Classification, Control and Appeal) Regulations, 1967, for short 'C.C.A. Regulations,' found the first respondent guilty of the charges. Accordingly the Inquiring Authority submitted his report to the Disciplinary Authority on August 29, 1984. The Disciplinary Authority after considering the findings recorded by the Inquiring Authority and taking into account the facts and circumstances of the case, thought it fit to remove the first respondent from service as a disciplinary measure. Accordingly, order was passed on October 8, 1984 removing the first respondent from service. The appeal of the first respondent to the Divisional Manager, Medak Division was dismissed on March 13, 1985. Subsequently at the behest of the first respondent, the Government referred the dispute to the Labour Court under Section 10(1)(c) of the Industrial Disputes Act and the same was registered as I.D. No. 244/86.
4. Before the Labour Court, the first respondent questioned the validity of the enquiry as well as that of the final order passed by the Disciplinary Authority, as could be seen from the claim statement filed by the first respondent before the Labour Court. It seems that the workman did not seek adjudication from the Labour Court on the validity of the domestic enquiry and requested the Labour Court to decide the reference on merits. That is what we gather from the observation of the learned Presiding Officer of the Labour Court in para 4 of the impugned award.
5. The learned Presiding Officer of the Labour Court did not think it necessary to decide the reference on merits but thought that he had no option except to allow the reference in view of the law laid down by a single Judge of this Court in the judgment dated September 17, 1987 delivered in W.P. No. 7074/87 (C. Beeranna v. APSRTC by its Managing Director and others). Accordingly he passed the impugned award.
6. Sri A. V. Sivaiah, learned Standing Counsel appearing for the petitioner, would submit that the Labour Court was not justified in passing the award without going into the merits of the case. Alternatively, the learned standing counsel would contend that the law laid down by the learned single Judge of this Court is not good law in as much as the rule against bias cannot be applied to the opinion expressed by the Disciplinary Authority in the course of the preliminary enquiry and therefore it requires reconsideration. On the Other hand, Sri A. K. Jayaprakash Rao, the learned Counsel appearing for the first respondent workman, would support the law laid down by the learned single Judge of this Court as the correct one and would reinforce his submission placing reliance on the decisions of the Supreme Court in (i) H. L. Trehan and others v. Union of India & ors. 1989 1 CLR 31 (SC); (ii) D. C. Aggarwal & Ors. v. State Bank of India & Ors. (1995-I-LLJ-108O) (SC) and (iii) Institute of Chartered Accountants of India. v. L. K. Ratna and Others. : [1987]164ITR1(SC) .
7. Lawyers are a procedurally minded class and they quite often tend to restrict the freedom of administrative action by applying principles of natural justice. Judges too are a justice-conscious race and for them the rules of natural justice come handy to ensure fairness in action. Despite this discernible zeal of the both, a dividing line should be drawn for the free play of the principles of natural justice in different areas of administrative actions, otherwise the administration will be stripped of freedom totally and it will be reduced to a non functioning entity. A very significant but often perplexing question of modern administrative law is when can a right to compliance of principles of natural justice be claimed by a person against whom administrative action is proposed It is well settled principle of the Indian Administrative Law that quasi-Judicial body or a body which is required to act judicially should act according to the principles of natural justice. Nemo judex in re sua, i.e., the authority deciding the matter should be free from bias; and audi alteram partem, i.e., a person affected by a decision has a right to be heard are the two basic principles of natural justice. However, certain subsidiary principles are deduced from these two basic principles by the Courts. These principles of natural justice now require the quasi-judicial authorities to record reasons in support of their decisions; the decisions of the authorities should be based on substantive evidence. Principles of natural justice also mandate that justice should not only be done, but should manifestly and undoubtedly be seemed to be done; nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice. These two basic principles of natural justice are neither separate nor distinct; they are two facets of the same principle i.e., fairness in action. A hearing given to person with a biased mind will never be a fair hearing; similarly, an authority who takes decision against a person may be totally honest, impartial and disinterested, but, if such decision is not preceded by hearing of the affected person, then it would violate the concept of fairness in action.
8. The decision of the Supreme Court in A. K. Kraipak v. Union of India : [1970]1SCR457 was a trendsetter. The earlier conventional classification of administrative actions into judicial, quasi-judicial and purely administrative, in the matter of application of principles of natural justice was discarded by invoking the concept of fairness in administrative action. K. S. Hegde, J, in Kraipak said :
'The dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. The concept of rule of law would lose its validity if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily and capriciously .... In recent years the concept of quasi-judicial power has been undergoing a radical change. What was considered as an administrative power some years back is now being considered as a quasi-judicial power.'
The trend set by Kraipak was subsequently expanded and strengthened through many later pronouncements; Maneka Gandhi v. Union of India : [1978]2SCR621 ; Mohinder Singh Gill v. Chief Election Commissioner : [1978]2SCR272 ; S. L. Kapoor v. Jag Mohan : [1981]1SCR746 ; Swadeshi Cotton Milss v. Union of India : [1981]2SCR533 to cite a few. After these decisions, the application of principles of natural justice to administrative action does not depend upon the nature of the action i.e. whether it is judicial, quasi-judicial or purely administrative. Whatever be the nature of the action, except legislative action, if such an action has the effect of affecting the civil rights of a person or brings about evil consequences to him, then, principles of natural justice should be applied unless the application of the same is taken away by any statute. There is no dispute and there cannot be any dispute that the preliminary enquiry held by the Disciplinary Authority was purely an administrative action. Therefore the first question to be considered is whether the opinion expressed by the Accident Enquiry Committee in its report dated May 22, 1984 that the first respondent workman was guilty of negligence in driving the vehicle has affected adversely any of the rights of the workman. In order to decide this question it is necessary to consider the nature, purpose, scope of and consequences of findings recorded in the preliminary enquiry.
9. Unless in a given case, a statute requires that the Disciplinary Authority should hold a preliminary enquiry preceding a regular departmental enquiry against a delinquent, preliminary enquiry is not compulsory. However, the Courts have emphasised the desirability of holding preliminary enquiry before initiating a regular departmental enquiry. The reason is that a person should not be charged with misconduct recklessly and without proper basis and reason although the initiation of a departmental enquiry as such will not violate any of the legal rights of the delinquent, the fact remains that he will be subjected to the inconvenience and rigour of facing a departmental inquiry. In N. N. Bhattacharjee v. Secretary to Government of West Bengal (1962-I-LLJ-317) the Calcutta High Court held that to charge a person with disobedience of an order without being so sure revealed a fault finding mind and a mala fide-disposition of the Disciplinary Authority. The Supreme Court also in a slightly different context in P. Sirajuddin v. State of Madras : 1971CriLJ523 held that in departmental proceedings against a Government servant charged with delinquency, the normal practice before issue of a charge-sheet is to take down statements of persons involved in the matter and to examine documents which have a bearing on the issue involved and it is only then that a charge-sheet is issued, and, therefore, the same procedure should be followed to find out a prima facie evidence of guilt before launching criminal proceedings. Therefore it is an aspect of good administration to hold preliminary enquiry to satisfy itself whether there is a prima facie case to proceed against, the delinquent, before it launches departmental enquiry. But, this is not an indispensable requirement.
10. Preliminary enquiry is neither a judicial nor a quasi-judicial act; it is purely an administrative action. The purpose of holding departmental enquiry is to decide whether the disciplinary action should or should not be taken against a delinquent employee. The said enquiry results in either punishment or exoneration of the employee concerned. On the other hand, the purpose of a preliminary enquiry is to find out whether there is sufficient justification for embarking on a full fledged departmental enquiry against a particular employee. Such a preliminary enquiry does not result either in exoneration or punishment, but it merely guides the employer whether to proceed against a particular employee or not, and its purpose is to see whether a prima facie case is made out for issuing a charge-sheet calling for explanation. In other words, the purpose of the preliminary enquiry is for the personal satisfaction of the Disciplinary Authority to enable him to come to a decision whether the matter should be dropped or any further action should be taken. It is also relevant to note that there is no obligation on the part of the Disciplinary Authority to disclose the materials and evidence collected in the course of the preliminary enquiry to the delinquent. There is also no obligation cast on the Disciplinary Authority to disclose its findings in the preliminary enquiry. But, the satisfaction arrived at and the materials and the evidence collected in the preliminary enquiry may be a basis for initiating departmental enquiry and if the Disciplinary Authority wants to make use of the materials and evidence collected in the preliminary enquiry against the delinquent in the departmental enquiry, then, law requires that such materials and evidence should be disclosed to the delinquent and the delinquent should be given a reasonable opportunity to have his say regarding those materials.
11. Adverting to the facts of the present case, at the outset it may be noted that the Regulations do not require the Depot Manager - Disciplinary Authority to hold a preliminary enquiry preceding initiation of a regular departmental enquiry. However, it seems that the Management of the Corporation has issued certain administrative instructions embodied in the 'Operational Manual' Chapter 43 in the Manual deals with the accidents. Paragraph 43 - 10 in Chapter 43 requires that a committee called Accident Enquiry Committee consisting of the District Manager of the depot to which the accident vechile belongs and a District Manager of nearby depot should be constituted in cases of major accidents and such committee shall go into details of the accident and submit its findings regarding the action to be taken against the concerned employee. As per this requirement, the Accident Enquiry Committee was constituted, and after necessary investigation and after obtaining the report from the Mechanical Foreman, it submitted its report on May 22, 1984. Paras 8 and 9 of the report read :
'8. By perusing the entire case the AEC opined that it is a clear case of gross negligence on the part of the driver. The mechanical condition of the vehicle was good as per the report of M.F.
9. The AEC opined that the driver Sri Ismail, 71751 is suspended and to initiate disciplinary action'.
This report is signed both by the Depot Manager, Sangareddy and the Depot Manager, Medak.
12. A preliminary enquiry is of very informal character and the methods are likely to vary in accordance with the requirements of each case. The delinquent employees have no vested right in any form or procedure of holding preliminary enquiry. The object being the satisfaction of the officer concerned, the procedure of enquiry is wholly at the discretion of the officer holding the enquiry. After holding preliminary enquiry, the Disciplinary Authority need not record its satisfaction in writing nor is it required to give reasons for initiating the regular departmental so enquiry. As already pointed out, a preliminary enquiry does not result either exoneration or punishment. Therefore it should be held that whatever be the finding in the preliminary enquiry, that will no affect any of the legal rights of the delinquent.
13. The first respondent workman does not attribute any personal bias to the Depot Manager, Medak. The argument of Sri A. K. Jayaprakash Rao, the learned counsel for the workman, is that since the Depot Manager, Medak was a member of the Accident Enquiry Committee and since the Committee recorded its finding that the workman was guilty of gross negligence in driving the vehicle he has pre-judged the whole issue and therefore such a pre-judgment should be considered to be a disqualifying factor, disabling the Depot Manager Medak to conduct departmental enquiry or to pass final order. In other words, what was attributed to the Depot Manager is official bias. The two officers who constituted the Accident Enquiry Committee were, in a sense, laymen in law and therefore it was too much for anybody to expect them to use the vocabulary of a lawyer. Merely because the Depot Managers, after holding preliminary investigation, recorded prima facie satisfaction that the workman was guilty of negligent driving, it cannot be said that statement should be considered to be a disqualifying bias or pre-judging the issue, if we keep in our mind the very nature, purpose and the consequences of the preliminary enquiry. Even in a case where the preliminary enquiry was governed by statutory provisions, a constitution Bench of the Supreme Court in Amalendu Ghosh v. North Eastern Railway (1960-II-LLJ-61) held that the finding reached by the Enquiry Committee as a result of the statutory enquiry cannot be said to be findings against the employee in a departmental enquiry made against him on alleged neglect of duty, and in such enquiry nobody is accused of negligence or dereliction of duty. A Division Bench of the Madhya Pradesh High Court in Ramshakal Yadav, v. R. P. F, Bombay : (1969)ILLJ343MP dealing with the question whether the mention of the proposed punishment in the charge-sheet issued to the delinquent would act as a disqualifying factor, held that it was not reasonable to infer from the proposed punishment mentioned in the charge-sheet that the Assistant Security Officer or the Divisional Inspector, who held the enquiry had already formed the view that the charges against the delinquent were true and that he deserved the punishment of removal from service, and it did not vitiate the departmental enquiry.
14. Now let us advert to the decision cited by the learned counsel for the workman. The facts in C. Beeranna's Case (supra) were almost similar to the facts of the present case except to the extent of the Accident Enquiry Committee in that case recommending removal of the employee from service. The Depot Manager, Nandyal was the Disciplinary Authority and he was also a member of the Accident Enquiry Committee. In the report submitted by the Committee, it was recorded that the delinquent was guilty of negligent driving. Further, the committee stated that there was no alternative other than to remove the delinquent from service. In that context the learned Judge observed :
'The rules of natural justice are sacrosanct and must be followed implicitly in all cases of domestic enquiries. It is not a case of any statutory requirement by virtue of which a fair and reasonable opportunity must be given to the petitioner to explain his conduct, but it is on the basic principle of rules of fair play, justice, equity and good conscience that the delinquent officers should be afforded a full-fledged opportunity to explain their case before the authorities concerned. It is apparent that this rule of natural justice has been infringed in this case. Respondent No. 4, who has passed the orders of removal has already pre-judged the issue in his capacity as a member of Accident Enquiry Committee and it cannot be expected that he will bring an open, fair and impartial mind to consider the case of the petitioner. It is evident that respondent No. 4 cannot pass the orders of removal of the petitioner, as he has already pre-judged the issue earlier, his capacity as a member of the Accident Enquiry Committee.'
15. At the outset, we may point out that principles of natural justice are not sacrosanct nor in-violable. The High water mark reached by Chief Justice Coke in Dr. Bonham's case (1610) where he went so far as to say that the Court could declare an Act of Parliament void if it made a man judge in his own case (sic), or other wise 'against common right and reason' has not been adhered to by the Courts both in U.K. and India. It is settled position in law that on rare occasions, principles of natural justice may be excluded by express legislation. For example, where the police have to act with urgency in making arrests, a decision to prosecute or bring legal actions, or to carry out a search, damaging though it may be to the accused, does not entitle him to be consulted or shown the evidence in advance. Instances are numerous in our law where principles of natural justice are excluded because in many such cases prior notice or warning would frustrate the objects of the legislation.
16. A careful reading of the observations of the learned Judge clearly indicates that the learned Judge equated the preliminary enquiry to the departmental enquiry. No exception can be taken to the observation of the learned Judge that the rules of natural justice must be followed in all cases of domestic enquiries. As already pointed out, a preliminary enquiry is not a part of the domestic or departmental enquiry; it need not be held unless a particular statute mandates. Therefore the whole basis for the observation of the learned Judge is based on, if we may say so with respect, on an erroneous assumption that the preliminary enquiry was a part of the domestic enquiry. However, on facts, that case can be distinguished from the facts of the present case. In that case, the Accident Enquiry Committee had stated that there was no option except to remove the delinquent driver from service. That recommendation reflected the mental make up of the members of the Committee. In Such a situation, it might be possible to contend that the view expressed by the Accident Enquiry Committee did not reflect a mere prima facie satisfaction about the guilt of the delinquent, but exhibited an abnormal personal desire of the officer to remove the delinquent from service on the basis of ex parte satisfaction formed by him. Such exhibition of the mind may also indicate that the officer lacked open mind and he had made up his mind or pre-judged the issue.
17. The other three decisions on which Sri A. K. Jaya Prakash Rao placed reliance are in no way helpful to the first respondent. The decision in Institute of Chartered Accountants of India v. L. K. Ratna and others (supra) is an authority for the proposition that in a departmental enquiry proceeding, if the enquiry officer records findings on the alleged misconduct against the delinquent, such enquiry officer is disabled to participate in the proceedings of the parent body, thereby meaning the Disciplinary Authority, which is vested with the power to impose punishment as a disciplinary measure. In that case disciplinary proceedings were initiated against the respondent, L. K. Ratna, a partner of M/s. Ferguson & Co., a firm of Chartered Accountants for the alleged professional misconduct. The matter was referred to the Disciplinary Committee for enquiry under See. 21(1) of chartered Accountants Act, 1949. The Disciplinary Committee conducted the enquiry into the alleged professional misconduct and recorded its findings against Sri L. K. Ratna. Under the provisions of the Chartered Accountants Act, the Disciplinary Authority is the Council. The members of the Disciplinary Committee were also members of the Council and in that capacity, they participated in the deliberation of the Council when it proceeded to consider the report submitted by the Disciplinary Committee in order to find whether the member is guilty of professional misconduct. In that connection, the Supreme Court observed that the members of the Disciplinary Committee would be disqualified from participating in the deliberation of the Council. In the first place, what the Disciplinary Committee did in that case was a part of the disciplinary proceeding, and not a preliminary enquiry. Secondly, the disciplinary Committee held the enquiry under Section 21(1) of the Act. Thirdly, the members of the Disciplinary Committee recorded specific finding, in the report submitted to the Council, that Sri L. K. Ratna was guilty of professional misconduct. Therefore, the members of the Disciplinary Committee who formed an opinion against Sri L. K. Ratna in the course of disciplinary proceedings were quite obviously disabled to participate in the deliberations of the Council to consider the report submitted by the Disciplinary Committee in order to find whether the member was guilty of professional misconduct.
18. The decision of the Supreme Court delivered in H. L. Trehan & others v. Union of India and others (supra) was cited by the learned counsel for the first respondent workman out of context and without any relevancy. In that case, the Supreme Court considered the question whether the alterations in terms and conditions of service of the employees of Caltex Oil Refinery (India) Ltd., which company was taken over by the Government by enacting Caltex (Acquisition of Shares of Caltex Refining) (India) Ltd., and of the Undertaking in India of Caltex (India) Ltd. Act, 1977, without giving any opportunity to the employees to have their say in the matter say was valid, and held that the alterations in terms and conditions of service were invalid. The Supreme Court also held that post-decisional opportunity of hearing does not subserve the rules of natural justice. Similarly, the decision of the Supreme Court in D. C. Aggarwal v. State Bank of India and Others (supra) has also no bearing on the facts of this case. In that case, the final order had to be passed by the competent authority on recommendation of the review committee and such authority, it was stated before the Court, was always higher in rank than the Deputy Managing Director of the Bank. Unfortunately in that case the final order was passed by an officer who was a member of the Review Committee without authority. Therefore, the Court held that the final order passed by the member of the Review Committee was incompetent and without authority of law. That case did not deal with the question of bias or prejudice or pre-judging an issue.
19. We may look at the question for decision from another angle also. As pointed out supra, even in the absence of statutory obligations to hold preliminary enquiry before launching regular departmental enquiry against a delinquent employee, the Courts including the Apex Court emphasised the need and desirability of holding preliminary enquiry to find out whether there is prima facie case to proceed against a delinquent employee by launching regular departmental enquiry. That is why, generally, the Disciplinary authorities, both in public and private sectors, even in the absence of statutory compulsions, hold preliminary enquiry to satisfy themselves about the prima facie case. After holding such preliminary enquiry, it is quite understandable, a Disciplinary Authority will form an opinion about the prima facie case. If the Disciplinary Authority records that the delinquent is prima facie guilty of misconduct and decides to initiate regular departmental enquiry, he would be accused of having pre-judged the guilt of the delinquent if we were to accept the argument of the learned counsel for the workman. On the other hand, if the disciplinary authority does not hold preliminary enquiry, he would violate what the Courts have emphasised. If preliminary enquiry is desirable and if the argument of Sri A. K. Jayaprakash Roa, the learned Counsel for the first respondent is accepted, then it will lead to a situation where the Disciplinary Authorities will be disqualified from holding departmental enquiries or passing final orders only on the ground that the prima facie satisfaction recorded by them after the conclusion of the preliminary enquiries tantamounts to prejudging the alleged misconduct against the delinquent employee. If law is interpreted in the way suggested by Sri A. K. Jayaprakash Rao, it will lead to an impracticable situation. At this stage itself, we may also point out that the evidence and materials collected, and the findings recorded, in the preliminary enquiry are totally irrelevant as regards the departmental enquiry is concerned. The Disciplinary Authority need not maintain records of the preliminary enquiry; exparte subjective satisfaction can be reached regarding prima facie case without recording the factors or reasons for such satisfaction. It need not give any opportunity to the delinquent to have his say in the preliminary enquiry. Final order that may be made by a Disciplinary Authority cannot rest on the findings recorded by the Disciplinary Authority in the preliminary enquiry. The charges are required to be proved in the departmental enquiry by adducing substantial material evidence. The findings recorded in the preliminary enquiry are ex parte findings and the delinquent is not bound by such findings. The delinquent will not be bound by even his own statement recorded in the preliminary enquiry unless the same is produced in the departmental enquiry and proved in accordance with law. Misconduct of a delinquent should be proved only in the departmental enquiry. If that is so, it should be held that the findings recorded by the Disciplinary Authority in the course of preliminary enquiry will in no way prejudice the delinquent and those findings will not violate any of the rights of the delinquent. Preliminary enquiry is not intended to determine any body's right; it is intended for the Disciplinary Authority to form subjective satisfaction regarding the desirability to launch departmental proceedings against a delinquent. Principles of rationality and fairness in action cannot be read into such enquiry. Therefore, there is absolutely no scope for applying the rule of official or departmental bias to a preliminary enquiry, and we accordingly hold.
20. In our view, the doctrine of principles of natural justice is not applicable to preliminary enquiries, and consequently the ex parte finding recorded by the Accident Enquiry Committee that the first respondent - workman was guilty of negligent driving of the motor vehicle would not be a disqualifying official or departmental bias. The very basis for passing the impugned award should, therefore, be held to be totally erroneous. In that view of the matter, we would have quashed the impugned award and remanded the proceedings to the Labour Court for fresh disposal on merits. The accident took place in the year 1984, and we are deciding this writ petition after a long lapse of more than 12 years. The impugned award was passed by the Labour Court on December 31, 1987; since there was no stay of operation of the award, we are told that the first respondent was reinstated into service in 1988. If we remand the proceedings to the Labour Court for fresh disposal, that would consume considerable time and that would also give scope for second or third round of litigation. Such a course will not be beneficial to either of the parties. The Supreme Court in Gujarat Steel Tubes Limited v. Gujarat Steel Tubes Mazdoor Sabha (1980-I-LLJ-137) held that what the Tribunal may, in its discretion, do, the High Court too, under Art. 226, can, if facts compel do. Further, the Supreme Court held that See. 11A of the Industrial Disputes Act applies to the High Courts and they have the power to examine whether the punishment proposed by the disciplinary authority is excessive. Therefore, we think it just and proper to give a quietus to the dispute, particularly keeping in mind that the first respondent was reinstated into service more than eight years back. Accordingly, we proceed to consider the merits of the case.
21. In the departmental enquiry, the first respondent, in his evidence, stated that he was driving the vehicle slowly and he took all care and exercised precaution, and despite it, the accident occurred purely on account of mechanical defects in the vehicle. In support of his plea, the first respondent examined M/s. Sailu and Ameer Khan as witnesses. Sri M. Sailu, in his evidence, stated that at the time of the accident the bus was moving in slow speed. Sri Ameer Khan, another witness, also stated that at the time of accident, the first respondent was driving the vechile at a Speed of 20 to 22 K.Ms per hour. On behalf of the Disciplinary authority, M/s. J. B. Lingappa, E. 96727 Conductor of the bus and P. Chandrareddy, S.T.I of Medak depot were examined. Of course, J. B. Lingappa also stated that the speed at which the bus was driven just before the accident might be 20 K.Ms per hour. Chandra Reddy is a technical personnel. He stated that no skid marks were found. The four passengers whose statements were recorded by Chandra Reddy stated that the vehicle while negotiating the turning hit the right guard-stones resulting in the driver losing control.
22. The Inquiring Authority and the Disciplinary Authority, on perusal of the accident sketch and evidence led in the enquiry, came to the conclusion that the driver did not apply brake before the accident took place and according to them, if the driver were to apply the brake in time, there was no scope for the bus going 47 feet away from the margin of the road after hitting the guard stones. They have also placed reliance on the certificate issued by the Mechanical Foreman Certifying that the Vehicle was in good condition and the speed control bracket fitted to the vehicle was in-tact. For all these cumulative reasons, the Inquiring Authority and the Disciplinary Authority found the first respondent guilty of the charges. It cannot, therefore, be said that the findings recorded by the Inquiring Authority and the Disciplinary Authority are based on 'no evidence'. The findings are based on acceptable material evidence. At the same time, we should point out that except paraphrasing the evidence of the witnesses of the first respondent, the Disciplinary Authority has not considered the same and it has not given any reasons as to why their evidence should be disbelieved. The Inquiring Authority and the Disciplinary Authority are quasi-judicial authorities. They are expected, in law, to consider the evidence led by the delinquent. Mere paraphrasing the evidence is not assessment and evaluation of the evidence. A fact finding authority is required to critically evaluate the evidence let in on an issue and then record its finding on that issue. However, after careful consideration of the evidence of the two witnesses of the delinquent, we are not persuaded to give any credence to their evidence. We say this because if the delinquent was driving the vehicle at a speed of 20 or 22 K.Ms per hour just before the accident, it is beyond our comprehension how the vehicle could go off the road for a distance of 47 feet after hitting the guard stones. The very fact that skid marks were not found clearly belies the say of the delinquent that he applied the brake in time. Therefore we are satisfied that the evidence on record support the finding recorded by the Inquiring Authority and the Disciplinary Authority that the delinquent was guilty of the charges.
23. The next question to be considered under Section 11A of the Industrial Disputes Act is whether the penalty imposed by the Disciplinary Authority is proportionate to the gravity of the misconduct proved against the delinquent. The disciplinary Authority has pointed out that the misconduct proved against the delinquent is quite serious in nature resulting in injuries to 35 passengers and the conductor, and heavy damage to the vechile. If we were to decide this case in the year 1987 or 1988, probably we would not have interfered with the punishment imposed by the Disciplinary Authority. The delinquent was reinstated into service by virtue of the impugned award passed by the Labour Court more than eight years back, and it is not brought to our notice that after reinstatement, the delinquent caused any accident on account of his negligence or committed any other misconduct. In that view of the matter and taking into account the totality of the facts and circumstances of the case, we think that it is just and proper not to disturb the reinstatement awarded by the Labour Court. But, we do not find any justification to award back wages to the delinquent.
24. In the result and for the foregoing reasons the writ petition is allowed in part. The impugned award of the Labour Court is quashed in so far as it awarded 50% backwages. In all other respects, the award of the Labour Court stands unaltered. The parties are directed to bear their own costs in this writ petition. It is made clear that if the petitioner has already paid full or part of the backwages awarded by the Labour Court to the first respondent, the petitioner can recover the same from the salary of the first respondent or otherwise.