1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14.09.2011 CORAM:THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.10341 of 2011 S.Manikandan : Petitioner Vs. 1.The Regional Manager, TamilNadu State Transport Corporation, Bye Pass Road, Madurai-16. 2.The Assistant Engineer, TamilNadu State Transport Corporation, Ponmeni Branch, Madurai Division, Madurai. 3.The Branch Manager, TamilNadu State Transport Corporation, Ponmeni Branch, Madurai Division, Madurai. : Respondents PRAYER: Writ Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Mandamus, directing the 3rd respondent to reinstate the petitioner with continuity of service and consequently provide all the attended benefits to the petitioner. For Petitioner : Mr.D.Anbarsau For Respondents: Mr.B.Pugalendhi Special Government Pleader ORDER Pleadings disclose that the petitioner, a driver in Ponmeni Branch, Madurai Division, Tamil Nadu State Transport Corporation, on 21.04.2011, while on his wheels, a Transport Corporation bus bearing Regn.No.TN-58-N-1724 in Route No.77B, met with an accident and in the untoward accident, one Sub-Inspector of Police died. According to the petitioner, he has not committed any offence. 2.On the complaint dated 22.04.2011 given by the wife of the deceased to the effect that when her husband was proceeding in his two wheeler bearing Regn.No.TN-59-K-3586, he was knocked down by the rash and negligent driving of the writ petitioner, a case in Cr.No.93 of 2011, has been registered on the file of the Inspector of Police, Crime Branch, Tallakulam (incharge), Traffic Investigation Wing under Section 304-A of I.P.C. Subsequent to the registration of the same, the petitioner has filed a Criminal Original Petition on the file of this Court and the same is pending. 3.It is the case of the petitioner that on 03.05.2011, he sent a letter to the Branch Manager, Tamil Nadu State Transport Corporation, Ponmeni Branch, Madurai Division, third respondent herein. It is also contended that in spite of the representations dated 13.05.2011, 17.05.2011 and 29.06.2011 respectively to the third respondent, no action has been taken permitting the petitioner to join duty. However on 06.07.2011, the Branch Manager, Tamil Nadu State Transport Corporation, Ponmeni Branch, Madurai Division, third respondent herein has sent a telegram to the petitioner to produce the driving licence of the https://hcservices.ecourts.gov.in/hcservices/ 2 petitioner. 4.In response to the same, the petitioner appeared in person and explained that he had not caused any accident. Notwithstanding the same, a show-cause notice, dated 10.06.2011, of the General Manager, Tamil Nadu State Transport Corporation Limited, Madurai has been served on the petitioner, alleging that he had failed to attend the office from 03.05.2011 without intimation or prior permission and that the conduct of the petitioner is, against standing orders 16(7) of the Transport Corporation. It is further the case of the petitioner that the abovesaid show-cause notice has been replied by way of a letter dated 27.07.2011, denying the allegations levelled. In these circumstances, the petitioner, has come forward with the present writ petition for mandamus, directing the third respondent to reinstate him with continuity of service and consequently provide all the attendant benefits. 5.On instructions, from the respondents, Mr.B.Pugalendhi, learned Special Govt Pleader submitted that as the petitioner, remained absent, without any intimation or prior permission from 03.05.2011, charges have been levelled against the petitioner, by the General Manager of Tamil Nadu State Transport Corporation, Madurai and though the petitioner was directed to produce the driving licence by the Branch Manager, Tamil Nadu State Transport Corporation, Ponmeni Branch, Madurai Division, the petitioner has not surrendered the licence, instead, he has also sent a letter dated 27.07.2011, stating that he has filed a criminal original petition for quashing the crime registered against him, and until the said petition is disposed of, he would not be in a position to surrender his licence. 6.The issue as to whether the licensing authorities, have power to order surrendering of the licence, in a case of dangerous driving, resulting in death, of a person or causing grievous hurt, and to retain the same, till the disposal of the proceedings under Sections 19 and 21 of the Motor Vehicles Act, has been considered by this Court in W.P.No.8067 of 2011 dated 20.07.2011. The said judgment has been confirmed in W.A.No.856 of 2011, dated 08.09.2011. The order made in appeal is reproduced as follows: "This Writ Appeal is directed against the order of the learned Single Judge dated 20.07.2011 made in W.P.(MD).No.8067 of 2011, by which the learned Single Judge, after considering the entire issue elaborately, has dismissed the said Writ Petition, which was filed by the appellant herein challenging the order of the respondent herein and for a direction to the respondent to return the driving license, which was denied on the ground that a complaint has been lodged against the appellant. 2. Inasmuch as the said complaint is still pending as-on- date and the power of suspension of license is available to the respondent, which is not in dispute, we do not see any reason to interfere with the order of the learned Single Judge. 3. In the result, the Writ Appeal fails and the same stands dismissed. However, it is always open to the appellant to have the relief claimed, either after the criminal case has ended in his favour or after the investigation is over and https://hcservices.ecourts.gov.in/hcservices/ 3 final report is filed to the effect that no case is made out for the purpose of the Court to take cognizance." 7.In the light of the above said Division Bench judgment, it is always open to the employer or the police, or the Licencing Authority, to seek for surrendering of the licence. In the case on hand, the petitioner, has refused to part with the licence by citing the pendency of Criminal Original Petition, where, only notice has been ordered on 13.07.2011. Admittedly, a criminal case under Section 304-A of IPC has been registered against the petitioner, for allegedly causing the death of a Sub-Inspector of Police, who was riding a motor cycle. When a criminal case has been registered against the petitioner under Section 304-A of I.P.C, nothing prevented the disciplinary / appointing authority, from placing the petitioner, under suspension, as per the service rules applicable to the employees of Transport Corporation. Though it is contended that the petitioner has already submitted a medical leave letter on 03.05.2011 and that he has been continuously representing to the authorities to permit him to join duty, material on record discloses that he was not placed under suspension and that there was no cessation of employer and employee relationship. The question of reinstatement would arise only if an order is passed by the competent authority, to temporarily put off the petitioner from duty. In the case on hand, though the petitioner has contended that he is always ready and willing to join duty, and that the respondents did not provide him duty, initiation of disciplinary proceedings by way of formulation of charges dated 10.06.2011, by the General Manager, TamilNadu State Transport Corporation, Madurai Limited is to the effect that the petitioner has unauthorisedly absented without prior permission or intimation from 03.05.2011 and that, he has committed an act of mis-conduct, as per the standing orders 16(7) of the Transport Corporation. Whether the petitioner has absented from reporting the duty or not, is a matter to be enquired into by the respondents 1 to 3 and that when disciplinary proceedings have already been initiated, it would not appropriate for this Court to adjudicate the said issue and record any finding. It is a matter for enquiry. In the light of the abovesaid discussion, the relief of mandamus, cannot be granted by this Court. Accordingly, this writ petition is dismissed. In view of the registration of the cr.No.93 of 2011 under Section 304-A of I.P.C on the file of the Sub-Inspector of Police, Crime Branch, Tallakulam (incharge), Traffic Investigation Wing, which is still pending, appropriate decision may be taken by the authority to keep him off temporarily, by placing him under suspension or permit the petitioner to report for duty, assign any work, which is suitable and permissible under the rules and standing orders, applicable to the employees of the Transport Corporation, without prejudice to the disciplinary action already taken. No costs. Sd/- Assistant Registrar (AS) /True copy/ Sub Assistant Registrar(CS) https://hcservices.ecourts.gov.in/hcservices/ 4 To 1.The Regional Manager, TamilNadu State Transport Corporation, Bye Pass Road, Madurai-16. 2.The Assistant Engineer, TamilNadu State Transport Corporation, Ponmeni Branch, Madurai Division, Madurai. 3.The Branch Manager, TamilNadu State Transport Corporation, Ponmeni Branch, Madurai Division, Madurai. Vs GH : 21.09.2011 : 4p/4c Order made in W.P.(MD).No.10341 of 2011 Dated:- 14.09.2011 https://hcservices.ecourts.gov.in/hcservices/