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CASE NO.:

Appeal (civil) 3392 of 2002

PETITIONER:

Cholan Roadways Limited

RESPONDENT:

G. Thirugnanasambandam

DATE OF JUDGMENT: 17/12/2004

BENCH:

N. Santosh Hegde & S.B. Sinha

JUDGMENT:

J U D G M E N T

S.B. Sinha, J :

This appeal is directed against the judgment and order dated 6.6.2001

passed by a Division Bench of the Madras High Court in W.A. No.46/1993

as also the judgment and order passed by the learned Single Judge of the

said Court in a Writ Petition No.11113/88 whereby and whereunder the writ

petition filed by the Appellant herein for setting aside order dated 29.4.88

passed by the Industrial Tribunal, Tamil Nadu, Madras in Approval Petition

No. 125 of 1985 rejecting the grant of approval sought for as regard order of

dismissal passed against the Respondent herein was dismissed.

The factual matrix of the matter is not much in dispute.

The Respondent herein was a driver of a bus bearing No.TMN-4148

plying between Tanjore and Nagapattinam. On 18.5.1985 while the said bus

was driven by the Respondent 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. 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.

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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 entire left side of the bus

dashed against the tamarind tree branch which

resulted in the passengers at the left side of the bus

to sustain grievous injuries and that seven

passengers died in the aforesaid accident and about

10 passengers sustained grievous injuries and that

you were responsible for the same.

3. Further, you were responsible for the loss of

accessories of the bus to the tune of Rs.30,000/-

and also you were responsible for the loss of

revenue for the Corporation.

4. Further, you were responsible for tarnishing the

fair name of the Corporation amongst general

public."

In the domestic inquiry that followed the said charge-sheet, two

witnesses were examined on behalf of the Appellant.

The Inquiry Officer upon consideration of the materials brought on

records by the parties therein found the Respondent guilty of misconduct in

relation to the charges framed against him. The Inquiry Officer rejected the

contention of the Respondent herein that the bus was being driven at a slow

speed and the accident took place to save a boy who suddenly crossed the

road holding:

"Thus it has been proved beyond doubt by the

evidence adduced by the management's side that

the delinquent was careless, negligent and rash in

driving the bus at the time of the occurrence

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 domestic enquiry to ascertain whether a prima facie case had

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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 not

have any application to the present case as it was a

converse case where the finding are based upon

some evidence, namely, eye witness, and therefore,

in that context, the Supreme Court held that non-

examination of the passenger will not vitiate the

enquiry. The said pronouncement will not have

any application to the facts of the present case and

it is clearly distinguishable."

Mr. K. Ramamurthy, learned senior counsel on behalf of the

Appellant would contend that the learned Tribunal and consequently the

learned Judges of the High Court committed a serious error in passing the

impugned judgments insofar as they failed to take into consideration that in

an enquiry of this nature it was not necessary to examine the passengers of

the bus. The learned counsel urged that the admitted photographs of the bus

in question after it met with an aforementioned accident clearly demonstrate

that the same was being driven in a rash and negligent manner as a result of

which 7 passengers died and some others suffered serious injuries. It was

submitted that the Respondent had not only afforded an opportunity to the

Respondent to cross examine the witnesses examined on behalf of the

Appellant but also was given the opportunity to examine his defence

witnesses and in that view of the matter the 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 Disputes Act reads as under:

"(2) During the pendency of any such proceeding

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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

\026

(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 case admittedly an enquiry has been held wherein the parties

examined their witnesses. The Respondent was represented and assisted by

three observers. Shri M. Venkatatesan was the Branch Manager, CRC

Tanjore Town Branch, who had submitted his report and proved the same

before the Inquiry Officer. He furnished a detailed account of the position

of the bus vis-`-vis the other bus after the collision took place. He found

that there was no brake tyre mark of the bus on the road. All the two seaters

seats on the entire left side of the bus were found totally damaged. The left

side roof arch angle of the bus was found totally out. Not only 4 persons

were found to be dead at the spot, the driver and conductor of the bus and 10

other passengers were also sustained injuries in this accident. Out of the

said 10 passengers, 3 subsequently died in the hospital owing to the injuries

sustained by them. He further found that on the left side of the road in the

earthen margin, there was a tamarind tree's protruding branch and which

was found to have been already cut and the bottom stump of the branch was

found protruding to a length of 3 inches. The bus was found to have been

brought to a halt only at a distance of 81 ft. from the place of impact against

the tree. He further 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

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

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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. It is open to the authorities to

receive and place on record all the necessary,

relevant, cogent and acceptable material facts

though not proved strictly in conformity with the

Evidence Act. The material must be germane and

relevant to the facts in issue. In grave cases like

forgery, fraud, conspiracy, misappropriation, etc.

seldom direct evidence would be available. Only

the circumstantial evidence would furnish the

proof. In our considered view inference from the

evidence and circumstances must be carefully

distinguished from conjectures or speculation. The

mind is prone to take pleasure to adapt

circumstances to one another and even in straining

them a little to force them to form parts of one

connected whole. There must be evidence direct

or circumstantial to deduce necessary inferences in

proof of the facts in issue. There can be no

inferences unless there are objective facts, direct or

circumstantial from which to infer the other fact

which it is sought to establish.\005The standard of

proof is not proof beyond reasonable doubt but the

preponderance of probabilities tending to draw an

inference that the fact must be more probable.

Standard of proof, however, cannot be put in a

strait-jacket formula. No mathematical formula

could be laid on degree 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 (supra) this court stated:

"A prima facie case does not mean a case proved

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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 imperative.

The tribunal while exercising its jurisdiction under Section 33(2)(b) of

the Industrial Disputes Act was required to bear in mind the aforementioned

legal principles. Furthermore, in a case of this nature the probative value of

the evidence showing the extensive damages caused to the entire left side of

the bus; the fact that the bus first hit the branches of a tamarind tree and then

stopped at a distance of 81 ft therefrom even after colliding with another bus

coming from the front deserved serious consideration at the hands of the

tribunal. The nature 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 hereinabove, the enquiry

officer has categorically rejected the defence of the Respondent that the bus

was being driven at a slow speed.

In Pushpabai Parshottam Udeshi and Others Vs. M/s. Ranjit Ginning

& Pressing Co. Pvt. Ltd. and another [AIR 1977 SC 1735] this Court

observed:

"6.The normal rule is that it is for the plaintiff to

prove negligence but as in some cases considerable

hardship is caused to 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\005"

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:

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"6\005Learned 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 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 comes into play and

the burden shifts on to the man who was in control

of the automobile to establish that the accident did

not happen on account of any negligence on his

part. He did not succeed in showing that the

accident happened due to causes other than

negligence on his part."

The burden of proof was, therefore, on the Respondent to prove that

the vehicle was not being driven by him rashly or negligently.

Furthermore, in a case involving accident it is not essential to examine

the passengers of the bus. In State of Haryana & Others Vs Rattan Singh

[(1977) 2 SCC 491] this Court observed:

"5. Reliance was placed, as earlier stated, on the

non-compliance with the departmental instruction

that statement of passengers should be recorded by

inspectors. These are instructions of prudence, not

rules that bind or vitiate in the violation. In this

case, the Inspector tried to get the statements but

the passengers declined, the psychology of the

latter in such circumstances being understandable,

although may not be approved. We cannot hold

that merely because statements of passengers were

not recorded the order that followed was invalid.

Likewise, the re-evaluation of the evidence on the

strength of co-conductor's testimony is a matter

not for the court but for the administrative tribunal.

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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\005In such circumstances, it was not necessary or

possible for the appellant \026 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. 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\005\005.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

enquiry and if they do so their

decision is not liable to be impeached

on the ground that the procedure

followed was not in accordance with

that which obtains in a Court of law."

But the application of principle of natural justice

does not imply that what is not evidence can be

acted upon. On the other hand what it means is

that no materials can be relied upon to establish a

contested fact which are not spoken to by persons

who are competent to speak about them and are

subjected to cross-examination by the party against

whom they are sought to be used. When a

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document is produced in a Court or a Tribunal the

questions that naturally arise is, is it a genuine

document, what are its contents and are the

statements contained therein true. When the

appellant produced the balance-sheet and profit

and loss account of the company, it does not by its

mere production amount to a proof of it or of the

truth of the entries therein. If these entries are

challenged the Appellant must prove each of such

entries by producing the books and speaking from

the entries made therein. If a letter or other

document is produced to establish some fact which

is relevant to the enquiry the writer must be

produced or his affidavit in respect thereof be filed

and 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 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\005\005."

It was further observed:

"41. When penalty is not levied, the assessee

certainly benefits. But it cannot be said that by not

levying the penalty the officer has favoured the

assessee or shown undue favour to him. There has

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to be some basis for the disciplinary authority to

reach such a conclusion even prima facie. The

record in the present case does not show if the

disciplinary authority had any information within

its possession from where it could form an opinion

that the appellant showed "favour" to the assessee

by not imposing the penalty. He may have

wrongly exercised his jurisdiction. But that wrong

can be corrected in appeal. That cannot always

form a basis for initiating disciplinary proceedings

against an officer while he is acting as a quasi-

judicial authority. It must be kept in mind that

being a quasi-judicial authority, he is always

subject to judicial supervision in appeal.

42. Initiation of disciplinary proceedings against

an officer cannot take place on information which

is vague or indefinite. Suspicion has no role to

play in such matter. There must exist reasonable

basis for the disciplinary authority to proceed

against the delinquent officer. Merely because

penalty was not imposed and the Board in the

exercise of its power directed filing of appeal

against that order 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 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, we

direct accordingly. The Respondents may, however, take recourse to such

remedy as is available to in law for questioning the said order of dismissal.

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For the reasons aforementioned, the impugned judgments cannot be

sustained which are set aside accordingly. The appeal is allowed. No costs.