1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 22.08.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD) No.8277 of 2011 and M.P.(MD) No.1 of 2011 M.Selvam ...Petitioner -Vs- The Regional Transport Officer and Licensing Authority, Madurai South Madurai - 10. ...Respondent PRAYER: Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Mandamus, directing the respondent to return the petitioner's original driving licence within a time limit that may be fixed by this Court. For Petitioner : Mr.A.Rahul For Respondent : Mr.T.S.Mohammed Mohideen Additional Government Pleader O R D E R The petitioner has sought for a Mandamus, directing the respondent to return his original driving licence within a time limt. 2.It is the case of the petitioner that he is employed as driver in the Tamil Nadu State Transport Corporation (Madurai) Ltd., and posted to Bodinayakkanur Depot, Theni District in the month of September 2007. He possesses a driving licence, bearing Registration No.TN 60Z 19990000745, to drive Heavy Transport Vehicles. On 06.06.2011, while he was driving a Transport Corporation bus, bearing Registration No.TN 57 N 1698, in Bodi Madurai Route, near Virattipathu, a motorcyclist, who came behind a lorry, which was coming in the opposite direction, dashed against the backside of the lorry, lost control, fell down on the right side of the road and sustained injuries. At the time, when the bus crossed the spot, the motorcyclist, by name, Ramakrishnan, has passed away. 3.In this regard, a complaint has been given by one R.Palpandi, in Cr.No.92 of 2011 on the file of the Traffic Investigation Wing https://hcservices.ecourts.gov.in/hcservices/ 2 No.III, Karimedu Police Station, under Section 304(A) IPC and the Inspector of Police, TIW III Unit, Karimedu Police Station, has seized the driving licence of the petitioner on 07.06.2011 and handed over the same to the respondent, for taking further action under Section 19(1) of the Motor Vehicles Act. 4.The petitioner has further submitted that a show cause notice, dated 07.06.2011 has been issued to him, alleging that he was responsible for the accident and called upon him to explain, as to why, his licence should not be cancelled. Denying the same, the petitioner submitted his explanation on 12.07.2011, contending that due to the negligent act of the motorcyclist, who dashed against the back side of the lorry, he fell down on the right side of the road and sustained injuries. Perusal of the letter of Inspector of Police, Traffic Investigation, Karimedu Police Station, Madurai addressed to the Regional Transport Officer, Madurai (South), dated 02.06.2011, shows that a criminal case in Crime No.92 of 2011 for the offence under Section 304 I.P.C., has been registered against the petitioner. 5.It is the further contention of the petitioner that till the date of filing of the writ petition, the respondent has not conducted any enquiry and that withholding of the licence, has caused hardship in renewing the same and also for reporting duty. Hence, he made a further representation, dated 12.07.2011 for return of his licence. There is no response. He further submitted that as per Section 1991) of the Motor Vehicles Act, without passing any order on the enquiry under Section 19 of the Act, licence cannot be withheld. 6.Placing reliance on a decision of this Court in W.A.No.339 of 2009 (E.Edward Raj Vs. R.T.O., Madurai South), the petitioner submitted that the licence cannot be impounded even prior to the issuance of show-cause notice and that the same can be impounded only after passing final orders, under Section 19(1) of the Act. Judgment in P.Sethuraman Vs. The Licensing Authority, Regional Transport Officer, Dindigul reported in 2010 Writ L.R., 100 and W.P.(MD)No.6308 of 2009, dated 25.08.2009, were also pressed into service. 7. Heard the learned counsel for the parties and perused the materials available on record. 8. In order to adjudicate the contentions, it is necessary to extract few provisions from the Motor Vehicles Act. Section 19 of Motor Vehicles Act, 1988 gives power to the licensing authority to disqualify from holding a driving licence or revoke such licence and the same reads as follows: "19. Power of licensing authority to disqualify from holding a driving licence or revoke such licence.—(1)If a licensing authority is satisfied, after giving the holder of a driving licence an opportunity of being heard, that he— (a) is a habitual criminal or a habitual drunkard; or https://hcservices.ecourts.gov.in/hcservices/ 3 (b) is a habitual addict to any narcotic drug or psychotropic substance within the meaning of the Narcotic Drugs and Psychotropic Substances Act, 1985; or (c) is using or has used a motor vehicle in the commission of a cognizable offence; or (d) has by his previous conduct as driver of a motor vehicle shown that his driving is likely to be attended with danger to the public; or (e) has obtained any driving licence or a licence to drive a particular class or description of motor vehicle by fraud or misrepresentation; or (f) has committed any such act which is likely to cause nuisance or danger to the public, as may be prescribed by the Central Government, having regard to the objects of this Act; or (g) has failed to submit to, or has not passed, the tests referred to in the proviso to sub-section (3) of section 22; or (h) being a person under the age of eighteen years who has been granted a learner’s licence or a driving licence with the consent in writing of the person having the care of the holder of the licence and has ceased to be in such care, it may, for reasons to be recorded in writing, make an order— ( i ) disqualifying that person for a specified period for holding or obtaining any driving licence to drive all or any classes or descriptions of vehicles specified in the licence; or (ii) revoke any such licence. (2) Where an order under sub-section (1) is made, the holder of a driving licence shall forthwith surrender his driving licence to the licensing authority making the order, if the driving licence has not already been surrendered, and the licensing authority shall,— ( a ) if the driving licence is a driving licence issued under this Act, keep it until the disqualification has expired or has been removed; or (b) if it is not a driving licence issued under this Act, endorse the disqualification upon it and send it to the licensing authority by which it was issued; or https://hcservices.ecourts.gov.in/hcservices/ 4 (c) in the case of revocation of any licence, endorse the revocation upon it and if it is not the authority which issued the same, intimate the fact of revocation to the authority which issued that licence: Provided that where the driving licence of a person authorises him to drive more than one class or description of motor vehicles and the order, made under sub-section (1), disqualifies him from driving any specified class or description of motor vehicles, the licensing authority shall endorse the disqualification upon the driving licence and return the same to the holder. (3) Any person aggrieved by an order made by a licensing authority under sub-section (1) may, within thirty days of the receipt of the order, appeal to the prescribed authority, and such appellate authority shall give notice to the licensing authority and hear either party if so required by that party and may pass such order as it thinks fit and an order passed by any such appellate authority shall be final." 9. Section 20 of the Motor Vehicles Act, 1988 deals with the power of Court to disqualify driving licence, which reads as follows: "20.Power of Court to disqualify.—(1)Where a person is convicted of an offence under this Act or of an offence in the commission of which a motor vehicle was used, “ the Court” by which such person is convicted may, subject to the provisions of this Act, in addition to imposing any other punishment authorised by law, declare the persons so convicted to be disqualified, for such period as the Court may specify, from holding any driving licence to drive all classes or description of vehicles, or any particular class or description of such vehicles, as are specified in such licence: Provided that in respect of an offence punishable under section 183 no such order shall be made for the first or second offence. (2) Where a person is convicted of an offence under clause (c) of sub-section (1) of section 132, section 134 or section 185, the Court convicting any person of any such offence shall order the disqualification under sub-section (1), and if the offence is relatable to clause (c) of sub-section (1) of section 132 or section 134, such disqualification shall be for a period of not less than one month, and if the offence is https://hcservices.ecourts.gov.in/hcservices/ 5 relatable to section 185, such disqualification shall be for a period of not less than six months. (3) A Court shall, unless for special reasons to be recorded in writing it thinks fit to order otherwise, order the disqualification of a person— (a) who having been convicted of an offence punishable under section 184 is again convicted of an offence punishable under that section, (b) who is convicted of an offence punishable under section 189, or (c) who is convicted of an offence punishable under section 192: Provided that the period of disqualification shall not exceed, in the case referred to in clause (a), five years, or, in the case referred to in clause (b), two years or, in the case referred to in clause (c), one year. (4) A Court ordering the disqualification of a person convicted of an offence punishable under section 184 may direct that such person shall, whether he has previously passed the test of competence to drive as referred to in sub-section (3) of section 9 or not, remain disqualified until he has subsequent to the making of the order of disqualification passed that test to the satisfaction of the licensing authority. (5) The Court to which an appeal would ordinarily lie from any conviction of an offence of the nature specified in sub-section (1) may set aside or vary any order of disqualification made under that sub-section notwithstanding that no appeal would lie against the conviction as a result of which such order of disqualification was made." 10. Section 21 of the Motor Vehicles Act, 1988 deals with the suspension of driving licence in certain cases, which reads as follows: "21. Suspension of driving licence in certain cases.—(1) Where, in relation to a person who had been previously convicted of an offence punishable under section 184, a case is registered by a police officer on the allegation that such person has, by such dangerous driving as is referred to in the said section 184, of any class or description of motor vehicle caused the death of, or grievous hurt to, one or more persons, the driving licence held by such person shall in relation to such class or description of motor vehicle become suspended— https://hcservices.ecourts.gov.in/hcservices/ 6 (a) for a period of six months from the date on which the case is registered, or (b) if such person is discharged or acquitted before the expiry of the period aforesaid, until such discharge or acquittal, as the case may be. (2) Where, by virtue of the provisions of sub- section (1), the driving licence held by a person becomes suspended, the police officer, by whom the case referred to in sub-section (1) is registered, shall bring such suspension to the notice of the Court competent to take cognizance of such offence, and thereupon, such Court shall take possession of the driving licence, endorse the suspension thereon and intimate the fact of such endorsement to the licensing authority by which the licence was granted or last renewed. (3) Where the person referred to in sub- section (1) is acquitted or discharged, the Court shall cancel the endorsement on such driving licence with regard to the suspension thereof. (4) If a driving licence in relation to a particular class or description of motor vehicles is suspended under sub-section (1), the person holding such licence shall be debarred from holding or obtaining any licence to drive such particular class or description of motor vehicles so long as the suspension of the driving licence remains in force." 11.Section 184 of of the Motor Vehicles Act is extracted hereunder: "184. Driving Dangerously. - Whoever drives a motor vehicle at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case including the nature, condition and use of the place where the vehicle is driven and the amount of traffic which actually is at the time or which might reasonably be expected to be in the place, shall be punishable for the first offence with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, and for any second or subsequent offence, if committed within three years of the commission of a previous similar offence with imprisonment for a term which may extend to two years, or with fine which may extend to two thousand rupees or with both." 12.It is worthwhile to extract the meaning of the word, "suspension" given in the Dictionaries. https://hcservices.ecourts.gov.in/hcservices/ 7 "Suspension, as per Wharton’s Law Lexicon, 14th Edn., is a temporary stop or hanging up as it were of a right for a time, also a censure on ecclesiastical persons, during which they are forbidden to exercise their office or take the profits of their benefices. 'Suspension' means, "action of debarring or state of being debarred, especially, for a time, from a function or privilege; temporary deprivation of one's office or position, or again, state of being temporarily kept from doing or deprived of something. Suspension as per Black's Law Dictionary: 7th Edn. Pg.1460 means, (1) to interrupt; postpone; defer (2) to temporarily keep a person from performing a function, occupying an office, holding a job or exercising a right or privilege. As per Stroud's Judicial Dictionary, “Suspension’ or ‘Suspense’ is a temporal, ie., temporary, “Stop of Mans' Right (Cowel). Suspension, as per Bauvier’s Law Dictionary, Vol.II, means a temporary stop of right, of a law, and the like. As per the Ramanatha Iyer's Dictionary, suspension means temporary intervention or cession of something (as) office, work or labour. The act of debarring for a time from a function or privilege”. It means a temporary deprivation of once office or position. [K.J. Aiyar’s Judicial Dictionary, 14th Edn.] Suspension, according to Oxford Dictionary, means, “The action of suspending or condition of being suspended, the action debarring especially for a time from, a function or privilege, temporary deprivation of one’s office or position or again, state of being temporarily kept from doing or deprived of something. Suspension is, to defer; to debar from any privilege, office employment, et., for a time being. [Ref. Hemanth Kumar v. S.N.Mukherjee reported in AIR 1954 Cal. 340] Suspension cannotes temporary cessation of something as right, work or labour. The basic idea underlying the root word, “suspend” and all its derivatives is that a person while holding an office and performing its functions of holding a position or privilege should be interrupted in https://hcservices.ecourts.gov.in/hcservices/ 8 doing so and debarred for the time being from further functioning in the office or holding the position and privilege. He is intercepted in the exercise of his functions of his employment of the privilege and put aside, as it were, for a time, excluded during the period from his functions or privileges. Such is the concept of a suspension order. Reference can be made to the decision in Abid Mohd. Khan v. State of M.P. reported in AIR 1958 MP 44. "A conditional withholding, interruption, or delay; as, the suspension of a payment on the performance of a condition." 13.In V.Seetharaman Vs. The Regional Transport Officer, Madurai South reported in (2008-3-L.W 433), the licence of the petitioner therein has been suspended after issuing show-cause notice. The show-cause notice reads as follows:- "Report dated 07.12.2007 of the Motor Vehicle Inspector, Grade-I, Madurai South. Whereas, the Motor Vehicle Inspector, Grade-I, had recommended for revocation of the licence granted to you for causing a fatal accident. You are hereby called upon to show cause as to why your license should not be revoked or suspended within 7 days of this nootice. Failing which, it will be considered that you do not have any cause to show and without further intimation your license will be revoked or suspended under Section 19(1) of the Motor Vehicles Act." 14.The petitioner therein submitted his explanation disputing the manner in which the accident occurred. After considering the explanation, by an order dated 08.01.2008, under Section 19(1) of the Motor Vehicles Act, 1988, the licence was suspended from 01.02.2008 to 31.07.2008, by the licensing authority, Madurai South. The holder of the licence was directed not to drive any motor vehicles. 15.The grounds of challenge of the order of suspension were as follows:- a. The authority has filed to see that mere involvement of the petitioner in a fatal accident case does not per se attract disqualification, unless the driver, by his previous conduct as driver of Motor vehicle has shows that his driving is likely to be attended with danger to the public as per the mandate of section 19(a)(d) of the Motor Vehicles Act, 1988. b. The impugned order did not reflects the total non-application of mind by the authority and does not reflect the subjective satisfaction required to be made under the said Section. https://hcservices.ecourts.gov.in/hcservices/ 9 c. The motor vehicle report was not furnished and that there was violation of principles of natural justice. 16.Considering the grounds raised, Hon'ble Mr.Justice S.Nagamuthu, passed an order dated 14.02.2008, in W.P.(MD)No.1266 of 2008, rejecting the contentions and at para 4, it has been held as follows:- "4. A perusal of the order would go to show that a show cause notice was issued on 07.12.2007, for which the petitioner has submitted his explanation on 27.12.2007. He has not asked for copy of any document. There is also no dispute that the vehicle driven by him met with an accident. Under Section 19(1) Sub Clause (c) of the Motor Vehicles Act, if the motor vehicle driven by a driver has been involved in the commission of cognizable offence, certainly, the authorities have got power to disqualify the person, after recording the reasons. Thus, I do not find any merit in the argument that the order is not a speaking order and that the principles of natural justice have not been followed. In any even, the impugned orders appealable to the authority as prescribed under Section 19(3) of the said Act. When the petitioner has an alternative efficacious remedy, the writ petition cannot be maintained before this Court under Article 226 of the Constitution of India. " 17.When the matter was challenged by way of an appeal in W.A.(MD) No.205 of 2008, it was inter alia contended that even though an offence under Section 304-A IPC is cognizable, the language of the section indicates that the offence is committed when there is a rash and negligent driving and a person, who is alleged to have committed an offence under Section 304-A by rash and negligent driving, cannot be said to have "used the motor vehicle in the commission of a cognizable offence". 18.According to the appellant therein, the provisions contained in Section 19(1)(c) would be applicable only, where, the person concerned deliberately used the Motor Vehicle in the commission of offence and not where the cause of rash and negligent driving of motor vehicle, under Section 304-A is committed. Rejecting the contention, a Division Bench, cited supra, at paragraph 10, has held as follows:- "The power to revoke the licence is granted to the authority with a view to prevent a person unworthy of driving a vehicle from driving temporarily or even permanently. If the interpretation suggested by the learned counsel for the appellant is accepted, even a person, who drives https://hcservices.ecourts.gov.in/hcservices/ 10 a vehicle negligently and recklessly and causes death, will continue to drive the vehicle in futre3 with impunity with the existing licence. Such interpretation would give rise to starting consequences and defeat the very purpose of incorporating Section 19 of the Motor Vehicles Act. Therefore, the interpretation suggested by the learned counsel for the appellant, is not acceptable." 19.The dictum laid down in the above said judgment is that when there is rash and negligent driving and when the petitioner alleged to have committed an offence under Section 304-A, the competent authority, with a view to prevent a person from continuing to drive the vehicle in favour of the existing licence, can resort the suspension. 20.In P.Sethuram V. The Licensing Authority, The Regional Transport Officer, Dindigul reported in (2010 Writ L.R.100) In the above reported judgment, the Division Bench was pleased to quash the order of suspension on the ground that there was no allegation either in the notice or in the impugned order made in the above writ petition that the appellant therein was a habitual criminal or habitual drunkard so as to attract Clause (a) of Section 19 of the Act. 21.The Division Bench has further observed that the Licensing Authority has pre-concluded the issue that the appellant therein was guilty of rash and negligent, even before the criminal court or the Motor vehicles claims Tribunal went into the case. There is absolutely no quarrel over the judgment that the licencing authority cannot hold the licence as guilty of rash and negligent driving, when it is the function of the Court of competent jurisdiction or the claims Tribunal to adjudicate the aspect of rash and negligent driving. Also, when the show-cause notice or the impugned order, does not impute the appellant with any of the ingredients, necessary under clause (b) to (h) of Sub-Section (1) of Section 19 of the Act., the Division Bench has set aside the order of suspension. 22.Though the Division Bench, tested the correctness of the order of suspension, with due respect, this Court is of the view that the issue as to whether, the licence can be directed to surrender the licence, under Section 19(2) of the Act, pending proceedings under 19 (1) was not raised and answered. Section 19(2) reads as follows:- "19(2). Where an order under sub-Sectiion(1) is made, the holder of a driving licence shall forthwith surrender his driving licence to the licensing authority making the order, if the driving licence has not already been surrendered, and the licensing authority shall,- (a) if the driving licence is a driving licence issued under this Act, keep it until the disqualification was expired or has been removed; or (b) if it is not a driving licence issued under this Act, endorse the disqualification upon https://hcservices.ecourts.gov.in/hcservices/ 11 it and send it to the licensing authority by which it was issued: or (c) in the case of revocation of any licence, endorse, the revocation upon it and if it is not the authority which issued the same, intimate the fact of revocation to the authority which issued that licence. Provided that where the driving licence of a person authorities him to drive more than one class or description of motor vehicles and the order, made under sub-section (1), disqualifies him from driving any specified class or description or motor vehicles, the licensing authority shall endorse the disqualification upon the driving licence and return the same to the holder." 23.Section 19 empowers the competent authority to pass an order under Sub-section 19 and when an order sub-section 1 is made, the holder of the driving lincence shall forthwith surrender his driving licence to the licensing authority making the order, if the driving licence has not already been surrendered. Thus, reading of the Section makes it clear that surrendering of the licence is done at two stages, when he is called upon to do so, before