IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.11.2010 CORAM: THE HONOURABLE MR.JUSTICE B.RAJENDRAN W.P.No.2665 of 2009 and MP.No.1 of 2009 R.Ganesan .. Petitioner vs. 1. The Licencing Authority Regional Transport Officer Vellore District, Vellore 2. Tamil Nadu State Transport Corporation (Salem) Ltd., Dharmapuri Region, Rep.by its General Manager Dharmapuri .. Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a writ of Certiorarified mandamus calling for the records relating to the order dated 01.12.2008 passed by the 1st respondent in Letter No.U3/87994/08, quash the same and consequently direct the 1st respondent to return the petitioner driving licence without any endorsement and direct the 2nd respondent to pay the petitioner wages and other benefits from 20.11.2008 and to provide the petitioner duty forthwith, Award costs. For petitioner : Mr.V.Ajay Khose For R1 : Mr. V.Arun Additional Government Pleader For R2 : Mr.M.Ravi Bharathi ORDER The petitioner was a driver in the Transport Corporation for 12 years and he was promoted as a Senior Driver. He was assigned duty on 20.10.2008 in route No.775-C. He took the bus on its trip from Pennagaram to Chennai. Near Vettuvanam bus stand, he saw a lorry stationed 50 feet away on the left side of the road. As there was no other traffic, according to the petitioner, he proceeded further. When the bus was nearing the lorry suddenly a lady along with her child emerged into the road, running from behind the stationary https://hcservices.ecourts.gov.in/hcservices/ lorry. Therefore, he applied brake but when the bus was about to come to a halt, the lady dashed with the bumper of the bus and fell down. Therefore, according to the petitioner, there was nothing wrong on his part and that he was no way responsible for the accident. But by order dated 21.10.2008, the second respondent placed him under suspension for 30 days. According to the petitioner, based on the F.I.R registered by the Sub Inspector of Police, Pallikonda in FIR No.514 of 2008, the first respondent issued a show cause dated 07.11.2008 and directed him to show cause as to why his driving licence shall not be revoked under Section 19 (1) (c) of the Motor Vehicles Act, 1988 for which he submitted an explanation on 20.11.2008 stating that he was not responsible for the accident. However, without considering his explanation, the impugned order has been passed on 01.12.2008 by suspending his driving licence for a period of six months from 29.10.2008 to 28.4.2009. According to the petitioner, the impugned order is a non speaking order. Further, according to the petitioner, the second respondent also issued a charge memo dated 03.12.2008 and proceeded with the Departmental enquiry, for which he submitted his reply. The Departmental enquiry and the criminal case are pending. Hence, in the writ petition he would challenge the impugned order of the first respondent dated 01.12.2008 suspending the licence for a period of six months only on the ground that the authority has not passed a speaking order. 2. Though sufficient time has been granted, both the respondents have not filed counter. But on behalf of the licensing authority, the Additional Government Pleader would contend that the procedure as contemplated under the Act has been duly followed and in fact 19 (1) (c) of the Motor Vehicles Act contemplate that if a driver used the vehicle for any cognizable offence, then action could be initiated and accordingly, after complying with all legal formalities and after issuing show cause notice a detailed order has been passed by the first respondent. He would specifically contend that time and again, the accident took place by the negligent driving of the drivers and to curtail such negligent driving, the first respondent has passed the order suspending the licence for a limited period. 3. The learned Additional Government Pleader would also rely upon the judgment of the Single Judge of this Court in A.SEKAR AND OTHERS V. THE REGIONAL TRANSPORT OFFICER, TIRUPPUR AND OTHERS (CDJ 2010 MHC 5291), wherein it is stated that when the drivers are involved in criminal case for commission of accident and due to which one person died, the order passed by the authority is valid. Therefore, he would only contend that the argument of the learned counsel for the petitioner that the impugned order is a non speaking order will not arise as the provision has been strictly followed by the first respondent. https://hcservices.ecourts.gov.in/hcservices/ 4. Insofar as the Transport Corporation is concerned, they would only contend that the claim, as made by the petitioner is not sustainable and insofar as his salary or otherwise is concerned, in view of the interim order, he was given back the licence and thereafter he was permitted to work. 5. At this juncture, learned counsel for the petitioner submitted that the petitioner is not making any claim as against the second respondent and he may be permitted to send a representation to the first respondent regarding the emoluments and other details. The said submission made by the learned counsel for the petitioner is recorded. 6. Heard all the parties concerned. This is an extraordinary case, wherein the licence of the driver of the Transport Corporation has been suspended for a period of six moths for violation of the Motor Vehicles Rules. The petitioner was a driver, who drove the Transport Corporation vehicle. According to him, he was driving the vehicle in a proper manner and after seeing the vehicle, namely, the lorry, halted on the left side of the road, as there was no traffic, he proceeded further. But when he was nearing the lorry, two persons including the child came behind the lorry towards road. Therefore, to avoid accident, he applied brake. According to him, when the vehicle was about to be stopped, a lady who came and dashed against the vehicle and she died. It is hard to believe such a statement made by the petitioner. Whereas in the FIR, registered on the basis of a compliant given by one Sivakami, it is recorded as follows: ",d;W Rkhh; kjpak; 2/40 kzpf;F v';fSld; te;jth;fs; (1) gpuk;kh W/o Rf;FU mtuJ kfs; ntwkyjh Mfpa ,uz;L ngUk; tlf;fpypUe;J ntY}h; nehf;fp te;j muR ngUe;J mjd; Xl;Ldh; tz;oia mjpfntfkhft[k;. m$hf;fpuijahft[k; Xl;o te;J gpuk;kh kPJk; ntwkyjh kPJk; lkhh; vd;W ,oj;J ,UtUk; fPnH tpGe;J tpl;ldh; ,jpy; gpuk;khtpw;F jiyapy; fhak; gl;Lk;. Ntwkyjhtpw;F kh;k cWg;g[ mUfpy; ,uj;j fhaKk; Vw;gl;lJ/ clnd Mk;g [yd;!; tutiHj;J mjpy; Vw;wp ntY}h; muR kUj;Jt kidf;F mDg;gpndhk;/" 7. Therefore, the theory put forward by the petitioner that the old lady without following the road regulations came and dashed against the vehicle and thereby caused the death is prima facie not acceptable. It is also pertinent to point out here that the Department has initiated action against the petitioner and he was suspended and thereafter Departmental action is pending. Similarly, a criminal case is initiated as against the petitioner and that is also pending. Pending these proceedings, the first respondent issued a show cause notice dated 07.11.2009 to the petitioner calling upon to him to show cause as to why action should not be initiated as against him under Section 19(1) (c) for the accident which took place https://hcservices.ecourts.gov.in/hcservices/ on 20.10.2008. The petitioner sent a reply on 20.11.2009, wherein he would contend that " ehd; brd;w ghij njrpa beL";rhiy 4 tHpg;ghij ahFk; ehd; vd;Dila ghijapy; bry;Yk; nghJ btl;L thdk; ngUe;J epiyak; mLj;J Rkhh; 50 mo bjhiytpy; yhhp epd;W ,Ue;jJ/ ehd; vd;Dila ghijapy; bry;Yk; nghJ yhhp kiwtpy; ,Ue;J vjph;ghhuhj epiyapy; bgz;kzp Fhe;ija [ld; Xo tUtij fz;L ehd; rld; gpnuf; nghl;L epWj;jpndd; ,Ue;Jk; ngUe;j Xo te;J bgz;kzp kPJ ngUe;J epw;Fk; epiyapy; ,oj;J epd;W tpl;lJ ,J jhd; ele;j cz;ik rkgtk; MFk;/. nkw;go tpgj;J bgz;kzp yhhp kiwtpy; ,Ue;J jp O h; vd rhiyapd; FWf;nf Xo te;jjhy; Vw;gl;l tpgj;J " 8. Pursuant to the above reply, the impugned order was passed on 01.12.2008. In the impugned order, it has been very clearly stated that the explanation given by the petitioner is not acceptable and taking into consideration that the police authority has also stated that the petitioner had driven the vehicle in a rash and negligent manner, his licence was suspended for a period of six months commencing from 29.10.2008 to 28.4.2009 which is under challenge in this writ petition. 9. The only ground of attack made by the petitioner is that the impugned order has been passed without considering the explanation given by him. But in the impugned order, the first respondent has clearly stated that the explanation submitted by the petitioner is not an acceptable explanation and,therefore, the order of rejection came to be passed. In this context, it is relevant to refer to Section 19(1)(c) of the Motor Vehicles Act, 1988 reads as follows: (c) is using or has used a motor vehicle in the commission of a cognizable offence; or 10. In this case, a cognizable offence is made out as against the petitioner under Section 304 (A) of Cr.PC. i.e. by virtue of carelessly driving a vehicle, which resulted in the death of a person. Therefore, the Act contemplates initiation of action after following the principles of natural justice. In this case, a show cause notice was issued and after getting explanation from the petitioner, a final order has been passed. The pendency of the criminal case or the Departmental enquiry will not be an embargo for the first respondent from taking action based on the explanation given by the petitioner to the show cause notice. Here, the explanation submitted is that a lady, who came from behind the vehicle, namely, lorry, and dashed against the vehicle and in that process she died. The explanation submitted by the petitioner https://hcservices.ecourts.gov.in/hcservices/ cannot be accepted as, Prima facie, such an explanation is not a plausible explanation. Therefore, the first respondent has rightly come to the conclusion that the explanation is not acceptable. I do not find any irregularity or illegality in the impugned order passed by the first respondent and the petitioner cannot now contend that the impugned order is illegal especially when the principles of natural justice is not followed. 11. The learned counsel for the petitioner relied on the decision of the Division Bench of this Court reported in P.SETHURAM VS. THE LICENSING AUTHORITY, THE REGIONAL TRANSPORT OFFICER, THE REGIONAL TRANSPORT OFFICE, DINDIGUL for the proposition that the respondents cannot seize the licence and suspend it without notice. In that judgment, the Division Bench held that the licence of the appellant was impounded by the police immediately after the accident and actually, the impounding of the licence has preceded before issuing the show cause notice. Therefore, the Division Bench held that the impounding and suspending of licence was improper. Further, in the decision rendered by a learned single judge of this Court in A.Sekar and others vs. The Regional Transport Officer, Tiruppur and others (WP.No.18042 of 2010 dated 16.9.2010) CDJ 2010 MHC 5291, the power of the licensing authority to suspend the licence was analysed and held that the suspension was ordered after issuance of a notice to the petitioners and calling for their explanation and therefore, it is valid. In this case also the Division Bench was referred and the facts and circumstances of the present case and the case reported in CDJ 2010 MHC 5291 are different as there is valid notices in these cases. 12. In this case, the petitioner was given sufficient opportunity by issuing a notice under Section 19(1) (c) of the Motor Vehicles Act and the first respondent, after satisfying with the provisions of Sections 19 (a) to (f) of the Act and the fact that the vehicle has been involved in commission of a criminal case which resulted in the death of a person and after getting an explanation from the petitioner, passed the impugned order. In the decision relied on by the counsel for the petitioner reported in (P.Sethuram v. The Licensing Authority, The Regional Transport Officer, The Regional Transport office, Dindigul) the Division Bench found that the principles of natural justice was not adhered to and therefore, the order of the authority was held invalid. In the instant case, as mentioned supra, the impugned order was preceded by a show cause notice and, therefore, the decision of the Division Bench of this Court mentioned above cannot be made applicable to the facts of this case and that the facts of this case is identical with that of the facts of the case in A.Sekar and others vs. The Regional Transport Officer, Tiruppur and others (WP.No.18042 of 2010 dated 16.9.2010 CDJ 2010 MHC 5291. https://hcservices.ecourts.gov.in/hcservices/ 13. The accident data issued by the Government of Tamil Nadu is shocking. Such a data was extracted in the judgment of this Court reported in A.SEKAR AND OTHERS V. THE REGIONAL TRANSPORT OFFICER, TIRUPPUR AND OTHERS ( CDJ 2010 MHC 5291), which reads as follows: 14. It is the fact that number of accidents and death due to the accidents are increasing year after year due to several factors, including careless and indisciplined driving; drunken driving; using cell phone while driving; sleepy driving; etc. The statistics available regarding road accidents from 1993 to 2009 in the State of Tamil Nadu are as follows: "GOVERNMENT OF TAMIL NADU State Transport Authority ROAD ACCIDENT DATA FROM 1993 TO 2009 TAMIL NADU -------------------------------------------------------------- Fatal Grevious Injury Minor Injury Non-Injury Total N.A N.P.K N.A N.P.I N.A N.P.I N.A Accidents 1993 6528 7349 3562 5100 17957 27226 6878 34925 1994 7027 7798 4199 6091 18950 28789 6861 37037 1995 7974 8773 4440 6380 21661 31922 7610 41685 1996 8079 9028 4474 7383 22151 31198 7493 42197 1997 7947 8755 4542 6567 23362 34010 8352 44203 1998 8510 9801 6562 8525 23862 33970 7789 46723 1999 8734 9653 5276 7287 27231 34157 6845 48086 2000 8269 9300 5278 8496 29137 44910 6239 48923 2001 8579 9571 5442 8354 30963 45928 6994 51978 2002 9012 9939 5830 8697 32183 46433 6478 53503 2003 8393 9275 5163 8557 31600 46685 5869 51025 2004 8733 9507 4875 7642 33222 49641 5678 52508 2005 8844 9760 5214 7815 34669 54152 5151 53878 2006 10055 11009 4630 6833 36262 57508 4198 55145 2007 11034 12036 4498 6873 39494 64226 4114 59140 2008 11813 12784 4426 6696 39193 63555 4977 60409 2009 12727 13746 4448 6721 39676 63783 3943 60794 -------------------------------------------------------------- N.A: No of Acci ents N P K : No of persons killed N P I : No of persons Injured Source: DGP, Chennai" The number of road accidents and the causes for such accidents during the year 2009 in the state of Tamil Nadu are as follows: "Government of Tamil Nadu State Transport Authority NUMBER OF ROAD ACCIDENTS ACCORDING TO CAUSES https://hcservices.ecourts.gov.in/hcservices/ DURING THE YEAR 2009 (FROM JANUARY '2009 TO DECEMBER '2009) State : TAMIL NADU -------------------------------------------------------------- NUMBER OF ROAD ACCIDENTS ACCORDING TO CAUSES -------------------------------------------------------------- Types of Causes Fatal Grevious Minor Non Total Injury Injury Injury Accidents N.A N.P.K N.A N.P.I N.A N.P.I N.A -------------------------------------------------------------- Fault of Driver 11494 2438 4091 6216 35636 57593 3731 54952 Fault of Passenger Other than Driver 261 287 73 94 857 1202 64 1255 Fault of Pedestrian 464 479 150 187 1695 2561 20 2329 Fault of Mechanical Defect 103 108 38 56 446 697 34 621 Bad Road 117 121 46 86 404 647 47 614 Bad Weather 9 13 6 6 65 109 8 88 Others 279 300 44 76 573 974 39 935 Total 12727 13746 4448 6721 39676 63783 3943 60794 -------------------------------------------------------------- N A-NO. OF ACCIDENTS. N P K - NO. OF PERSONS KILLED. N P I - NO. OF PERSONS INJURED Source: DGP, Chennai" 14. In the said judgment, the learned single Judge, has further held as follows: 15. The above data indicate gradual increase of fatal and grievous injury accidents. The percentage of accidents caused by the drivers' negligence is 90.31%. Thus, strict implementation of the provisions of the Motor Vehicles Act, 1988 is the present day requirement not only at the time of issuing driving licence, but also even after the licence is issued. 16. Since the petitioners are involved in criminal case for the commission of accident, due to which one person each died, the order passed by the respondent in these writ petitions suspending the licence of the petitioners for a https://hcservices.ecourts.gov.in/hcservices/ period of six months after issuing notice and considering their explanation are declared valid and there is no illegality in the said orders. There are no merits in the writ petitions and the same are dismissed. No costs. Connected miscellaneous petitions are also dismissed." 15. It is also pertinent to point out here because of the inordinate number of accident, the public at large has put into peril. Such accident took place only due to the inability of the driver and that itself would indicate that the authorities should be very strict in future in regulating the system. In fact all over the world, once the accidents take place, the licence of the driver is suspended especially in the case of a death of a person. Though these rules are available, this has been seldom invoked in our country. It is a high time that this law has to be followed in the strict sense. No doubt, a person cannot be immediately put into peril or hardship by suspending his licence. That is why the law clearly states that notice has to be issued and, after getting explanation, the orders have to be passed. The argument of the learned counsel for the petitioner that still the criminal case and the Departmental enquiry are pending cannot be an answer to this case as the action can be taken up only for the incident. There might be a criminal case which ultimately ends in acquittal and that does not prohibit the authority from simultaneously taking Departmental action in respect of the same offence or even in the extreme step, when the criminal case ended in acquittal, yet the authority can proceed further in the departmental proceedings. The Department is empowered under 19(1) (c) to take necessary action dehors the pendency of the criminal case and the pendency of the departmental enquiry subject to the condition that they have to issue notice and seek for explanation and then pass orders in accordance with law. If the explanation sought for is not properly answered or it is not an acceptable explanation, definitely an order suspending the licence can be passed and especially taking into consideration the statistics of accidents which has been issued by the Government of Tamil Nadu. In fact the accidents are increasing year after year due to the rash and negligent driving of the vehicles by drivers. 16. In this connection, the learned counsel for the petitioner would state that the drivers of the Transport Corporation are over burdened and they are not given sufficient rest time. It is a high time for the Government to look into the difficulties of such drivers, who have been over burdened or not given proper rest. Unless rest is given to the drivers, they may sleep and such drivers should not be allowed to drive. Therefore, the Government also has to take into consideration the grievance of the drivers. At the same time, it is for the drivers to drive the vehicle with utmost care and due diligent. https://hcservices.ecourts.gov.in/hcservices/ 14. In any view of the matter, the impugned order of the respondent suspending the licence of the petitioner is correct, legal and hence, it does not warrant any interference. The writ petition is dismissed. No costs. Consequently, connected Miscellaneous petitions are closed. ga Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Regional Transport Officer The Licencing Authority Vellore District, Vellore. 2.the General Manager, Tamil Nadu State Transport Corporation Corporation(Salem) Ltd., Dharmapuri Region, Dharmapuri. 1 cc To Mr.M.Ravi Bharathi, Advocate, SR.79438 1 cc To Mr.V.Ajay Khose, Advocate, SR.79586 1 cc To The Government Pleader, SR.79675 W.P.No.2665 of 2009 nsm(co) pmk.24.12.2010 https://hcservices.ecourts.gov.in/hcservices/