IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.02.2008 CORAM THE HONOURABLE MR. JUSTICE S. MANIKUMAR W.P.No.32089 of 2002 Malliga .. Petitioner Versus 1. The State Transport Appellate Tribunal, Chennai-104. 2. The Regional Transport Authority, Vellore. .. Respondents The Writ Petition has been filed under Article 226 of the Constitution of India for issuance of Writ of Certiorari to call for the records of the first respondent made in Appeal No.37/2001 dated 18.06.2001, modifying the order of suspension from 15 days to 10 days with option to compound at Rs.1000/- by the second respondent in R.No.A1/31775/2000 dated 17.12.2000. For Petitioner : Mrs. Radha Gopalan For Respondents : Mr. A.Arumugam, Additional Government Pleader. ORDER The petitioner is a stage carriage operator operating the vehicle Tamil Nadu 23 B 9396. The said vehicle was checked by the Motor Vehicle Inspector of Vaniyambadi on 08.03.2000 and a check report was also issued. The number of the vehicle was shown as TN-23-B-9369. Subsequently, the cheque report was corrected mentioning the number of the vehicle as TN-23-B-9396 on 26.12.2000. Based on the check report, a charge memo was issued by the second respondent on 05.07.2000, for which the petitioner had submitted a detailed explanation denying the irregularities alleged to have been noticed by the Motor Vehicle Inspector, Vaniyambadi. The irregularities said to have been noticed are as follows: (1) Registration Certificate, Insurance certificate, Driver License, Conductor License were not carried in the vehicle at the time of checking. (2) Fair list not available in the vehicle. (3) No medicines were available in the first aid box. 2. The petitioner, by his explanation dated 08.09.2000 has brought to the notice of the authority, that the checking officer might have inspected a vehicle bearing registration No. TN-23-B-9369 belonging to some other person and subsequently changed the Registration Number as TN-23- B-9396, without any change in the name of the owner. The petitioner has further submitted in his explanation that if the Driver Licence and the Conductor Licence were not available at the time of check, the checking officer should have given a separate check report to the driver and conductor, who were very much available at the time of check. Not satisfied with the explanation offered by the petitioner, the second respondent suspended the permit for a period of 15 days, with option to compound at Rs.100/- per day. Aggrieved by the same, the petitioner has preferred an appeal to the first respondent in A.No.37 of 2001. The Tribunal on consideration of the materials, modified the order of suspension, by reducing the period to 10 days, with option to compound at Rs.1000/-. Left with no other alternative, the petitioner has preferred the present Writ Petition. 3. Mrs. Radha Gopalan, learned counsel for the petitioner submitted that the Tribunal has failed to note that the Registration Number of the vehicle mentioned in the check report was corrected subsequently, after three months from the date of check, without there being any change in the name of the owner and therefore she submitted that the vehicle TN-23-B-9396 was not at all involved in the violation of permit conditions, as alleged in the show cause notice. Placing reliance on a decision in "Swami Motor Transport Private Limited ..vs.. R.T.A. Tanjore", reported in "1963 (1) MLJ Short Notes Page 37" learned counsel for the petitioner submitted that the signature of the driver and conductor obtained in the check report could only be a proof of factum of check, and that should not taken as proof for the irregularities said to have been noticed by the checking inspector. She further submitted that the conclusion of the Tribunal that the charges are admitted by the holder of permit inasmuch as the Driver and Conductor had already affixed their signature on the check report is illegal and arbitrary. According to her mere affixture of signatures, does not amount to proof of irregularities. Placing reliance on yet another decision in "N.Chandrasekaran ..vs.. Regional Transport Authority, south Arcot" reported in "1986 MLJ page 171", learned counsel for the petitioner submitted that as no action was taken against the driver and conductor of the vehicle for non production of their licences, the respondents have no jurisdiction to initiate action against the holder of the permit for the omissions and commissions on the part of the crew of the vehicle. She further submitted that unless action is taken against them, it is not open to the respondent to proceed against the holder of the permit making him vicariously liable for the acts done by those persons. She also submitted that the punishment if any, imposed against the holder of the permit, should be kept in abeyance till appropriate action against them is taken and orders are passed thereon on merits. 4. Referring to rule 130 of the Motor Vehicle Act, 1988, learned counsel for the petitioner further submitted that if the documents were not carried along with the vehicle and produced at the time of check, the crew members can produce the same within 15 days from the date of demand and therefore, non production of the documents at the time of check will not lead to any violation of the permit conditions, warranting penalty. She also submitted that the charges levelled against the petitioner, such as non availability of fair list, route map and medicines in the First Aid box are not so grievous, warranting penalty of suspension for a period of 10 days with option to compound Rs.1000/- in lieu of suspension at the rate of Rs.100/- per day. For those reasons, she prayed that the impugned order has to be set aside by taking into consideration the unblemished recorded service of the permit holder. 5. Per contra, referring to the impugned order, Mr.A.Arumugam, learned Additional Government Pleader, submitted that the vehicle was checked by the officer on 08.03.2000 and that it was found that the Registration Certificate, Permit, Driver's Licence and Conductor's Licence were not available at the time of check and for the said irregularities, a show cause notice dated 05.07.2000 was given to the petitioner, as to why the permit of the vehicle should not be suspended under section 86(1) of the Motor Vehicle Act. Having considered the explanation in proper perspective, the Regional Transport Authority, Vellore District has found that the irregularities were proved and suspended the permit of stage carriage for a period of 15 days with an option the permit holder to compound the offence by paying Rs.1,500/- in lieu of the suspension at the rate of Rs.100/- per day. He further submitted that section 86(1) of the Motor Vehicles Act, does not contemplate any procedure of examining witnesses and what is called for from the checking officer is only the remarks as regards the factum of inspection. He further submitted that there is no provision under the Motor Vehicles Act to furnish a copy of the remarks of the checking officer to the permit holder before passing orders under section 86(1) of the Motor Vehicles Act and therefore, there is no violation of the principles of natural justice. In so far as the decision reported in "1963 (1) MLJ Short Notes Page 37" , learned counsel for the respondent submitted that the reported judgment relates to a case of overloading and having regard to the native of offence, this Court was constrained to hold that mere affixture of signature, is not proof of acceptance and therefore submitted that the above said judgment is not applicable to the case on hand. 6. He further submitted that the judgment in N.Chandrasekaran ..vs.. Regional Transport Authority, south Arcot, Cuddalore" reported in "1986 MLJ page 171", relied on by the petitioner is not applicable and the authorities are empowered to take action independently against the holder of the permit. Learned counsel for the respondent further submitted that as a holder of the permit, the petitioner is vicariously responsible for the contravention alleged and found to be true and therefore, there is no need to await for the outcome of any disciplinary action against the crew of the vehicle for the violation of the Motor Vehicles Act and the rules framed thereunder. 7. Section 86(1) of the Motor Vehicles Act contemplates cancellation and suspension of the permit, under these circumstances:- "86. Cancellation and suspension of permit :- (1) (a) on the breach of any condition specified in Section 84 or of any condition contained in the permit, or (b) if the holder of the permit uses or causes or allows a vehicle to be used in any manner not authorised by the permit, or (c) if the holder of the permit ceases to own the vehicle covered by the permit, or (d) if the holder of the permit has obtained the permit by fraud or misrepresentation, or (e) if the holder of the goods carriage permit, fails without reasonable cause, to use the vehicle for the purposes for which the permit was granted, or (f) if the holder of the permit acquires the citizenship of any foreign country: Provided that no permit shall be suspended or cancelled unless an opportunity has been given to the holder of the permit to furnish his explanation." 8. As per section 130 of the Motor Vehicles Act read with rule 374 of the Tamil Nadu Motor Vehicles Rules, 1989, the holder of the permit as well as the person incharge of the vehicle should produce the documents pertaining to the vehicle such as Registration Certificate, Insurance Certificate, Permit, Fitness certificate, Taxi token receipt and if it is a stage carriage, they should retain the fair list, the route map and medicines at the time of emergency in the first aid box. Section 113 of the Motor Vehicles Act, enables the State Government to prescribe the conditions for the issue of permits for transport vehicles by the State or Regional Transport Authority and such authorities may prohibit or restrict the use of such vehicles in any area or route. As per sub section 3 of the said section, no person shall drive or cause or allow to be driven in any public place any motor vehicle or trailer:- "(a) The unladen weight of which exceeds the unladen weight specified in the certificate of registration of the vehicle; or (b) the laden weight of which exceeds the gross vehicle weight specified in the certificate of registration." The facts of the case in decision "N.Chandrasekaran ..vs.. Regional Transport Authority, south Arcot, Cuddalore" reported in "1986 MLJ page 171" , are that during the interception of a stage carriage, the Motor Vehicle Authorities found that the vehicle carried 73 adult passengers as against the seating capacity of 53 and thus overloaded by 20 passengers; and the registration certificate, Insurance certificate, Permit, Driving Licence and conductor's licence were not kept in the vehicle at the time of check. Action was initiated against the holder of the permit to show cause as to why the permit should not be suspended under the then prevailing sections 60(1) and 60(3) of the Motor Vehicles Act. Finding that the explanations are not satisfactory, charges were held proved and the Regional Transport Authority suspended the permit for a period of one day with an option to compound at Rs.200/- per day in lieu of suspension. The said order was confirmed by the appellate authority. The order of suspension was challenged by way of revision under section 64(b) of the Motor Vehicles Act as amended by Tamil Nadu Act 16 (1971) read with 115 C.P.C., this Court having regard to the submissions of the counsel, observed that whenever contravention of the provision of the Motor Vehicles Rules occasioned, for which provision is made for taking action not only against the permit holders, but also against the crew of the vehicle, it would be open to the permit holder who has been proceeded against under the relevant provisions of the statue to raise the plea of discrimination under such circumstances, the only direction that could be issued was that the punishment against the holder of the permit has to be kept in abeyance till action is taken against the crew of the vehicle under the relevant provisions of the Act and only after completion of those proceedings, the impugned order of suspension can be implemented as against the permit holder. The above two decisions relied on by the learned counsel for the petitioner relate to a case of overloading, where the crew had affixed their signatures at the time of check. As per sub section (4) of Section 113, the presumption is drawn against the owner of the vehicle if there is any violation of the conditions, ie., driving the vehicle in any public place exceeding the maximum gross vehicle weight specified in the certificate of registration. Looking from the point of view of the consequences of admission of overloading by the crew, at the time of check report, this Court has held that mere affixture in the check report would not amount to admission of offence of over loading. If the affixture in the check report by the crew is treated as an admission of fact, then there is a possibility of concluding that the owner has also committed the offence for which he could be penalised. Therefore, under the said circumstances, this Court has held that mere affixture of signatures in the check report does not amount to the acceptance of the correctness or the truth of the submissions made in the report. 9. In the instant case, the irregularities noticed by the checking officer on 05.07.2000 were, non production of certain documents such as, Registration Certificate, Insurance Certificate, Permit, Driver Licence and Conductor Licence etc., as stated supra, for which, the Regional Transport Authority has awarded a penalty of suspension of permit after considering the explanation submitted by the petitioner. 10. What is contemplated under section 86(1) of the Motor Vehicles Act is that before cancellation or suspension, the holder of the permit should be given opportunity to submit his explanation. This Court in Dhanmull v. R.T.Authority reported in AIR 1959 Mad. 531, dealt with a question, as to whether Section 86 of the Motor Vehicles Act, 1939, contemplates examination of any witness before suspending the permit and at Paragraphs 7 to 10, held as follows: "7. The authorities proceeded against the petitioner for contravention of clause (b) of Section 60(1) of the Motor Vehicles Act. Sub-section (1) of section 60 enumerates six categories of matters and provides that, should a contravention occur in respect of any of these, the permit may be cancelled on suspended for such period as the appropriate authority deems fit. There is a proviso to this which runs : "Provided that no permit shall be cancelled, unless an opportunity has been given to the holder of the permit to furnish his explanation." It will be noticed that this section does not require that the authorities concerned should record any evidence. Therefore, it is not possible to say that, when the Secretary of the Regional Transport Authority declined to record the evidence of the constable whom the petitioner referred to, he contravened any provision of the statute. The next thing to remember is that the authorities referred to in this sub-section have not been given power to summon witnesses or to enforce their attendance. The omission in the statute in this respect suggests that it was not the intention of the legislature that the authorities in question should examine any witnesses. It may also be mentioned that the petitioner did not offer to produce the constable before the Secretary, Regional Transport Authority, for his examination. 8. Another circumstance may be mentioned here. All that the proviso to sub-s. (1) of Section 60 requires is that, before a permit is cancelled', the holder of the permit should be given an opportunity to furnish his explanation. The suspension of a permit is a less serious penalty than its cancellation. Even as regards cancellation, all that the statute requires is that the operator should be given an opportunity to furnish his explanation. It seems to stand to reason that in respect of the lesser penalty the statute could not have required that a more elaborate procedure should be followed. 9. When we examine the scheme of the Act, it will be found that contraventions of its provisions and of the rules made thereunder are placed in two categories. In one category is placed those contraventions, for which the offender may be prosecuted and punished in the ordinary criminal courts. Such matters are provided for in Chapter 9 of the Act. In respect of other contraventions what I may call departmental action is provided for. This is a very summary method, and all that the authorities concerned are required to do is to give the person proceeded against an opportunity to furnish his explanation. It follows that all that he required is that the person proceeded against should be notified what the allegations against him are and that he should be given an opportunity to explain them. 10. The further comment I would make is that the right of the petitioner to ply a stage carriage vehicle is derived under the Act. The extent of that right and the circumstances under which that right is liable to be curtailed, abridged or withdrawn are all provided for in the Act and the rules framed thereunder. And so long as these have been complied with the petitioner cannot properly complain. Rut this does not mean that the proper authorities are precluded from examining the witnesses and in a proper case they would be exercising a wise discretion if they do examine witnesses produced by a party. All that I would say at this stage is that, under the statute, a person placed in the position of the petitioner has no right to insist that his witnesses should be examined when he is being proceeded against for a transgression of any of tile matters enumerated in Sub- section (1) of Section 60." In matters relating to suspension of permit, being a less serious penalty, for contravention of permit conditions and for violation of the Motor Vehicles Act, this Court has held that the procedure to be followed by the authorities is purely summary in nature and it is suffice that the holder of the permit is given an opportunity to explain the irregularities noticed at the time of check. The remarks of the checking officer are called for only to ascertain the factum of check and it is not the sole basis for arriving at the conclusion that the holder of the permit, has contravened the conditions of permit or violated any of the provisions of the Motor Vehicles Act and the rules framed thereunder. The show cause notice contains the details of the alleged violations / irregularities committed by the holder of the permit, for which explanation is called for. The remarks of the checking officer are called by the Regional Transport Authority, only to ascertain the factual aspects as regards the violations noticed in the check report and non-furnishing of copy of the checking officer's remarks to the holder of permit before passing an order under section 86(1) of the Motor Vehicles Act does not amount to violation of the principles of natural justice. Under the land Acquisition Act, rule 3(b) contemplates that the remarks of the requisitioning body has to be furnished to the owner of the land, to putforth his objections against the proposed acquisition. Courts have upheld that the right being statutory, failure to do so amounts to violation of the rules and natural justice. In the absence of any statutory provisions warranting furnishing of the copy of the remarks of the checking officer, it is not obligatory on the part of the Regional Transport Authority, to furnish the same to the petitioner and call for further explanations from the holder of the permit. Courts have no authority to direct the quasi judicial authorities or bodies to adopt a procedure, which is not contemplated under the statute, and the rules framed thereunder. As the procedure to be followed in matters of suspension being summary in nature, Courts have to see whether there is substantial compliance of the principles of natural justice and whether a fair and reasonable opportunity is given to the holder of the permit, to explain the allegations in the show cause notice, where action is contemplated for suspension or cancellation of the permit. 11. Rule 172 of the Tamil Nadu Motor Vehicles Rules reads as follows: " (1) It shall be the condition of every permit that the vehicle or vehicles specified in it shall not be used on any public road after the expiry of the period prescribed in rule 7 of the Tamil Nadu Motor Vehicles Taxation Rules, 1974, until such time the tax in respect of such vehicle or vehicles has been paid in accordance with the provisions of the Tamil Nadu Motor Vehicles Taxation Act, 1974 (Tamil Nadu Act 13 of 1974) and the rules and notifications issued thereunder. (2) It shall be a condition of every permit that the vehicle or vehicles specified in it shall not ply without a certificate of fitness. (3) It shall be a condition of every permit to use a transport vehicle that there shall not be present in the vehicle even when it is stationary any class or description of goods, the conveyance of which contravenes any law or any rule, by-law or order made thereunder prohibiting or regulating the import, export or transport of such goods, or mica for which royalty has not been paid. (4) (a) It shall be a condition of every permit of a transport vehicle other than a motor cab that the dates of expiry of the permit and of the certificate of fitness and the particulars of the insurance policy number, date of expiry and full addresses of the insurance company shall be exhibited exteriorly on the left side of the body of the cabin in the case of goods carriage, and exteriorly on the left side of the body above the position of the rear left wheel and as near the rear entrance as possible in the case of stage carriages in the manner prescribed for weights of the vehicle in rule 93. (b) In the case of a motor cab permitted to ply in the Madras City, it shall be a condition of every permit that the dates of expiry of the permit and the certificates of fitness and the particulars of the insurance policy number, date of expiry and full address of insurance company shall be exhibited on the exterior of the left half of the rear glass bottom most portion above and parallel to the rubber beeding or on the dash board. 5. It shall be a condition of every permit of a transport vehicle that the vehicle shall carry a first-aid box containing the following articles:- (i) a copy of the first aid leaflet. (ii) twenty four sterilized finger dressings; (iii) Twelve sterilized hand or foot dressings; (iv) Twelve sterilized large body dressings; (v) One extra large, two large and three small sterilized burn dressings; (vi) two fifteen grams packets of sterilized cotton wool; (vii) A bottle of 2 percent tincture of iodine; (viii) A bottle of sal volatile; (ix) An empty bottle fitted with cork and camel hair brush for eye drop; and (x) Fifty milli litres medicine glass. 12. In so far as the contention of the petitioner that unless action is taken against the crew of the vehicle under the relevant provisions of the Act and the rules made thereunder, suspension of permit has to be kept in abeyance, I am of the considered view that so long as the Motor Vehicles Act and the rules framed thereunder, permit the authorities to take separate action against them for non production of the Driver Licence or Conductor Licence, the penalty of cancellation or suspension need not be kept