IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9632 of 2008 Vinay Shankar Tiwari, son of Deo Narayan Tiwary, resident of House of Dr. Paras Nath Prasad, A/65, Magistrate Colony, Ashiana Nagar, Patna – Petitioner. Vs. 1) The State of Bihar through the Principal Secretary cum Commissioner, Department of Transport, Bihar, Patna. 2) The Joint Transport Commissioner, Bihar, Patna – Respondents. … For the petitioner: Mr. Mrigank Mauli, Mr. Sajal Kumar Sinha and Mr. Vinay Mistry, Advocates. For the State: Mr. Manoj Kumar Jha, AC to GA I. … 2 11.5.2011 The petitioner is aggrieved by order, dated 2.5.2008 contained in Annexure 11 issued by the Joint Transport Commissioner, Bihar, Patna, albeit with the consent of the Secretary of the Department. The petitioner was working as a Motor Vehicle Inspector. The allegation against the petitioner is that he had not inspected the three vehicles mentioned in the allegation petition, rather, he had issued the fitness certificate without following the law. An enquiry was held. The report is contained in Annexure 8 which indicates that after going through the records of the department, the enquiry officer came to the conclusion that the petitioner had in fact physically examined the trucks (vehicles in question) before issuing the fitness certificate. It is also mentioned that the certificate was granted in the year 2002. The check list was not handed over to the licensee / owner of the vehicles as that was not envisaged till 10.1.2003, when the department issued a circular making it mandatory to supply a check list to the owner or 2 licensee of the vehicle in question. The enquiry report was submitted to the Secretary of the department. The Deputy Secretary of Transport Department issued Annexure 9, dated 13.4.2006 which is the second show cause issued to the petitioner informing him that the department does not agree with the findings of the enquiry report for the reasons that it was found that although the petitioner had signed on the check list, he had not put his signature on the fitness certificate in the check list prepared by him. The petitioner duly filed show cause which led to the order, dated 2.5.2008 contained in Annexure 11 by which the Joint Commissioner has imposed punishment of stoppage of three increments with cumulative effect for three years. Learned counsel for the petitioner submits that the second show cause was issued on the basis of facts that were not part of the charges levelled against the petitioner. It is specifically submitted that there was no charge against the petitioner that he had not signed on top of the check list which relates to the fitness of the vehicles in question. Counsel for the State as well as the petitioner have annexed the fitness certificates which is retained in the department with respect to the three vehicles in question (Annexure 3 series and Annexures B and B/1 respectively). This certificate undoubtedly indicates that the petitioner has granted fitness certificates by signing on the form which relates to grant of fitness of a vehicle. 3 The petitioner, on the other hand, has annexed Annexure 5 series which were also presented by him and available on the records of the department which is the check list granted by the petitioner. The check list indicates that the petitioner has specifically verified and thereafter has signed at the bottom of the check list. However, it would be apparent that the petitioner has not signed on top of Form 38 which relates to grant of fitness under sections 56 and 62(1) of the Motor Vehicles Act. The enquiry officer rightly came to the conclusion that the fitness certificate along with the check list would be the complete documents, in the sense that the fitness certificate is granted separately and the check list was prepared separately and, therefore, there is a signature on the top of Form 38 which relates to grant of fitness certificate and at the bottom, which relates to the check list. Therefore, the reasons as mentioned in Annexure 9, i.e. the show cause and annexure 11 do not appear to be correct. It has also come on record that the department had not circulated the notification by which the Motor Vehicle Inspectors were to provide a copy of the fitness certificate to the owner / licensee of the truck till 10.1.2003. This would further fortify the submissions of the petitioner to indicate that in fact there was no illegality or anomaly in grant of the fitness certificate and the preparation of the check list. Counsel for the State, on the other hand, argues that this court ought not to interfere with the order of the Joint Commissioner since there is a statutory right of appeal. At the out 4 set this court may point out that where the defect in the reasoning of the authority is such that it goes to the very root of the matter or where the disciplinary authority goes beyond the charges framed and tries to make out a third case for the purpose of holding the delinquent guilty, the power of this court are not fettered in such circumstances. Thus, this court has no hesitation in holding that this is a fit case in which this court should interfere without sending the matter to the appellate authority for consideration. Counsel for the petitioner, on the other hand, refers to a quotation made in the case of Reliance Airport Developers (P) Ltd. vs. Airports Authority of India, (2006) 10 SCC 1. Referring to the meaning of lack of jurisdiction, counsel for the petitioner points out to an extract of the judgment Lord Pearce which is as under: “Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are conditions precedent to the tribunal having any juyrisdiction to embark on an enquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or, in the intervening stage while engaged on a proper enquiry, the tribunal may depart from the rules of natural justice, or it may ask itself the wrong questions, or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction. It would turn its inquiry into something not directed by Parliament and fail to make the inquiry which Parliament did direct. Any of these things would cause its purported decision to 5 be a nullity.” The Supreme court further held that “the effect in that case is to reduce the difference between the jurisdictional error and error of law within jurisdiction almost to vanishing point.” Practically the effect of the decision is that any error of law can be reckoned as jurisdiction. An error of law which takes into account legally irrelevant consideration, which fails to take relevant considerations into account or which asks itself and answers wrong question commits a jurisdictional error. The facts of the present case lead this Court to hold that the disciplinary authority has taken into account irrelevant material to hold the petitioner guilty of the offence alleged. This Court after three years is not inclined to send the matter back to the authorities for reconsideration and has decided the issues, on consideration of relevant facts. Where the error of law is patent and apparent from the order impugned, the court should have no difficulty in interfering in such matters. I accordingly quash the order contained in Annexure 11 for the reasons discussed above. This writ petition is allowed. A.F.R / haque ( Sheema Ali Khan, J.)