N. Kumar, J.
1. The respondent was a driver working at Bailhongal Depot of Belgaum Division, NWKRTC. On 14-2-1995 while on duty enroute Belgaum-Bailhongal he caused a fatal accident at about 13.30 hours near Hirebagewadi. He was served with an articles of charge accusing him of rash and negligent driving which resulted in an accident in which three persons lost life and 20 passengers sustained injuries. The respondent gave a reply denying the charges. Not being satisfied with the said reply an enquiry was initiated. Petitioner examined witnesses in support of their case and also produced eight documents which were marked. Respondent contended that the reply given by him to the charge-sheet has to be taken as his evidence. As there was an obligation cast upon the Enquiry Officer to put questions to the delinquent in the event of his not examining himself, he was questioned and his statement was recorded in which he stated the accident arose on account of breaking of front right side main leaf. The Enquiry Officer on appreciation of the entire material on record recorded a finding that the misconduct alleged against the respondent is established and accordingly he submitted a report to the Disciplinary Authority. The Disciplinary Authority accepting the said finding of the Enquiry Officer and on appreciating the entire material on record dismissed the respondent from service by his order dated 18-4-1996.
2. Aggrieved by the said order of dismissal the respondent filed an application under Section 10(4-A) of the Industrial Disputes Act, 1947 as amended by (Karnataka Amendment) Act, 1987, contending that the domestic enquiry conducted is not fair and proper; the material on record do not establish the misconduct alleged against the respondent; at any rate the order of dismissal is grossly disproportionate to the charges levelled and proved against the respondent. Petitioner filed their counter contesting the said claim. The Labour Court framed a preliminary issue regarding validity of the domestic enquiry. Both the parties adduced evidence. By a considered order dated 3-10-1998 the Labour Court held that the domestic enquiry is fair and proper. Thereafter, the Labour Court proceeded to consider the entire material on record and came to the conclusion that there is absolutely no material on record to establish the misconduct alleged against the respondent. Therefore, it set aside the order of dismissal, directed reinstatement and awarded 50% back wages by its award dated 25-9-1999. Aggrieved by the said award of the Labour Court, the petitioner has preferred this petition.
3. Learned Counsel for the petitioner assailing the impugned award contends the reasoning of the Labour Court that because no eye-witnesses are examined, no conductor is examined, no passenger is examined, mechanical engineer is not examined and, therefore, there is no evidence to prove the misconduct, is illegal, contrary to law and, therefore, liable to be quashed. She submitted it is for the driver who was driving the bus to show that the accident did not happen because of his negligence. When no such evidence is given, the doctrine of res ipsa loquitur squarely applies to the facts of the case and, therefore, the Labour Court committed a serious error in interfering with the order of dismissal.
4. Per contra, the learned Counsel for the respondent contended the burden of proof of rash and negligent driving is on the petitioner. When the petitioner did not examine the conductor, passengers, eye-witnesses or even the Mechanical Inspector who has given a report, there was absolutely no evidence to prove the misconduct and, therefore, the Labour Court was fully justified in passing the impugned award and, hence, it does not call for any interference.
5. The Supreme Court in the case of Pushpabai Parshottam Udeshi and Ors. v M/s. Ranjit Ginning and Pressing Company Private Limited and Anr., : 3SCR372 has held as under:
'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.....'.
6. Again the Supreme Court in the case of Thakur Singh v State of Punjab, : (2003)9SCC208 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'.
7. Under Section 101 of the Indian Evidence Act, 1872 whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Section 106 of the Indian Evidence Act is an exception to the general rule laid down in Section 101. Section 106 is not intended to relieve any person of that duty or burden. But, it says that when a fact to be proved is pectiliarly within the knowledge of a party it is for him to prove it. The knowledge must be in the nature of something peculiar. 'Especially' means facts that are pre-eminently or exceptionally within one's knowledge.
8. In a domestic enquiry where charge of misconduct alleged against a driver is rash and negligent driving resulting in an accident, what the employer/management has to establish is the accident. Once the accident is established then the burden of proving that the said accident is not on account of rash and negligent driving on the part of the delinquent workman/driver is on him. If he sets up a defence and explains under what circumstances the accident happened it is for him to establish the said circumstances. Only on establishing the said circumstances it can be said that the misconduct alleged against him is not proved. It is because the employer will not be at the spot at the time of the accident. He will not be aware of who are all the persons who were at the spot or who witnessed the accident to bring them as eye-witness to prove the charge in a domestic enquiry. Police Official who prepare the sketch, mahazar and other documents reach the place only after the accident. Mechanical Inspector inspects the vehicle only after the accident. In a case there may not be an eye-witness at all. The conductor of a bus will be inside the bus, may be busy in issuing tickets. Therefore, to hold that as none of these persons are examined and as such charge of rash and negligent driving is not proved is incorrect. Therefore, in a domestic enquiry what the employer/management has to prove is the accident and not how the accident took place. It is for the delinquent workman/driver of the vehicle which caused the accident to establish how the accident took place as it is especially within his knowledge. It is because of the doctrine of res ipsa loquitur as explained by the Supreme Court in the aforesaid judgment and because of Section 106 of the Indian Evidence Act.
9. In the instant case, the Labour Court has interfered with the finding of the Enquiry Officer on the ground that the management did not examine any eye-witnesses, conductor who was in the bus as well as the Mechanical Inspector who had given his report stating that the accident did not happen because of any mechanical defects were not examined. It is in that context the Labour Court holds there is no iota of evidence to prove the rash and negligent driving of the driver. The said finding of the Labour Court is illegal, contrary to law declared by the Supreme Court and, therefore, cannot be sustained.
10. The reasoning given by the delinquent driver is that the accident happened because of breaking of right front main steering leaf. In fact when an opportunity was given to the respondent to adduce evidence in the domestic enquiry, he was content by saying that the statement filed by him to the charge-sheet has to be taken as his reply. In law that statement cannot be evidence. In view of Regulation 23 of the Karnataka State Road Transport Corporation Servants (Conduct and Discipline) Regulations, 1971, an obligation is cast upon the Enquiry Officer to examine the delinquent in the event of his not giving evidence by pointing out the adverse material against him. To that he has given an answer that the accident is because of breaking of right front main steering leaf. But, no material is placed on record to establish the said plea which is the cause given by the respondent for accident. In that view of the matter, the doctrine of res ipsa loquitur squarely applies. The material on record shows, in particular the sketch showing the location, the place where the bus found after the accident, which gives an indication of how the accident has happened. Therefore, it is clear that the accident occurred on account of rash and negligent driving of the respondent. Therefore, the finding recorded by the Labour Court that the misconduct is proved cannot be sustained and requires to be interfered with.
11. Once it is held that the material on record establishes the misconduct alleged against the respondent, the next question would be whether it is a fit case for exercise of discretion under Section 11-A to interfere with the extreme punishment of order of dismissal. The order of dismissal passed by the Disciplinary Authority do not disclose any past conduct on the part of the respondent. Certainly that is one of the factor which has to be taken note of while exercising discretion under Section 11-A. Respondent is aged 31 years. In the petitioner-Corporation normally no worker is dismissed from service for the proved misconduct very first time. Moreover it is not a misconduct of misappropriation of funds, breach of trust or dishonesty or committing of an offence which is characterised as moral turpitude. May be because of the age of the respondent and want of experience the accident is caused resulting in death of three persons and injury to 20 victims which has given rise to several claims against the Corporation. Under these circumstances, I am of the view that the respondent requires to be given one more opportunity to improve. As such in the facts and circumstances of the case, the punishment of dismissal imposed for the proved misconduct is on the higher side. Therefore, justice of the case would be met by withholding of four increments cumulatively as a punishment for the misconduct and denying full back wages.
12. It is made clear that this Court is not laying down any law to the effect, that a driver cannot be dismissed from service for the proved misconduct the very first time, and the relief granted in this petition, is confined to the facts of this case only. Hence, I pass the following order:
(a) Writ petition is allowed;
(b) The impugned award passed by the Labour Court is hereby quashed;
(c) The petitioner is directed to reinstate the respondent into service;
(d) For the proved misconduct the punishment of withholding of four increments cumulatively is imposed.