Madras High Court
P.Kasinathan vs State Of Tamil Nadu on 30 November, 2010
Author: K.Chandru
Bench: K.Chandru
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30/11/2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD).No.2773 of 2008 W.P.(MD).No.5011 of 2008 W.P.(MD).No.6554 of 2008 and M.P.(MD)Nos.1,1 and 1 of 2008 P.Kasinathan ... Petitioner in W.P.(MD)No.2773/2008 T.Ramesh ... Petitioner in W.P.(MD)No.5011/2008 T.Kathiresan ... Petitioner in W.P.(MD)No.6554/2008 Vs. 1.State of Tamil Nadu, Represented by its Secretary to the Government, Department of Transport, Fort Saint George, Chennai-600 009. 2.Regional Transport Officer/Licensing Officer, Madurai South, Madurai-10. 3.General Manager, Tamil Nadu Government Transport Corporation Ltd., Madurai Zone, Madurai. ... Respondents in all W.Ps. COMMON PRAYER Writ Petitions are filed under Article 226 of the Constitution of India for the issue of a Writ of Declaration to declare the Section 19(1)(c) of the Motor Vehicles Act as ultra vires, unconstitutional, illegal and null and void abinitio insofar as the petitioners are concerned. !For Petitioners ... Mr.M.Mohammed Ibrahim Ali ^For Respondents 1 and 2... Mr.S.C.Herold Singh Government Advocate For Respondent No.3 ... Mr.Royce Emmanuvel ****** :COMMON ORDER
********* In W.P.(MD)No.2773 of 2008, challenge of the petitioner was for a declaration that Section 19(1)(c) of the Motor Vehicles Act, 1988 [hereinafter referred to as "the Act"] is ultra vires of the Constitution, insofar as the petitioner was concerned.
2. Notice regarding admission was given in the first Writ Petition [W.P.(MD)No.2773 of 2008] on 26.03.2008. Pending the Writ Petition, this Court granted an order of interim injunction restraining the respondents, State of Tamil Nadu and its Subordinate Officers from taking any steps in pursuant to the order passed by the Regional Transport Officer, Madurai (South), Madurai, dated 12.02.2008, under Section 19(1)(c) of the Act, for a limited period and it was extended from time to time.
3. In W.P.(MD)No.5011 of 2008, the petitioner has made an identical prayer. In that Writ Petition, notice of motion was ordered on 11.06.2008. Pending notice, no interim order was granted in M.P.(MD)No.1 of 2008.
4. In W.P.(MD)No.6554 of 2008, the petitioner has made a similar prayer. Notice of motion was ordered on 29.07.2008 and pending notice, an order of interim injunction was granted from taking any further steps in pursuant to the notice issued by the Regional Transport Officer, Madurai (South), Madurai, vide order dated 28.02.2008.
5. On notice from this Court, the second respondent has filed a counter-affidavit dated 20.04.2009 in W.P.(MD)No.6554 of 2008, together with the supporting documents.
6. The facts set out in the three Writ Petitions are almost similar. In W.P.(MD)No.2773 of 2008, the petitioner was a driver -cum- Conductor in the third respondent Tamil Nadu State Transport Corporation Limited, Madurai. While he was driving the bus on 02.01.2008, when a passenger was attempted to board the bus, the petitioner did not stop the bus and the passenger along with the child fell down and the child also succumbed to the injuries. A case under Section 304(A) IPC was registered by the Chekkanoorani Police Station in F.I.R.No.1 of 2008 and the second respondent Regional Transport Officer issued a notice on 08.01.2008 calling for his explanation and subsequently, on 12.02.2008, suspended his driving licence for six months from 01.03.2008 to 31.08.2008. The said order came to be exercised in terms of Section 19(1) of the Act.
7. In W.P.(MD)No.5011 of 2008, the petitioner was a reserved driver in the same State Transport Corporation. On 30.03.2008, when he was driving the bus in Mela Veli Veethi, a cyclist, who came from the Sambantha Moorthi Street, dashed at the left side of the bus and fell down and sustained injuries and the said person was hospitalized. A First Information Report was registered in Crime No.71 of 2003 under Sections 279 and 337 IPC by the Karimedu Police Station. The petitioner was given a show cause notice by the Regional Transport Officer, Madurai South, on 04.04.2008 and after getting the petitioner's representation, the driving licence was suspended for six months from 05.05.2008 to 04.11.2008.
8. In W.P.(MD)No.6554 of 2008, the petitioner was a driver in the State Transport Corporation and on 18.02.2008, the bus met with an accident and when a professor, by name Mr.Sivakumar was attempted to board the bus, he fell down, as the bus did not stop. He was admitted to the Government Hospital and died even before the admission and a case under Section 304(A) IPC was registered in F.I.R.No.38 of 2008 by the Karimedu Police Station. A show cause notice was given on 28.02.2008 asking as to why his driving licence should not be suspended temporarily under Section 19(1) of the Act.
9. In the counter filed by the second respondent in W.P.(MD)No.6554 of 2008, it was indicated that subsequent to the show cause notice, by an order dated 24.04.2008, his driving licence was suspended from 24.03.2008 to 23.09.2008 for a period of six months. That order is not under challenge. It was also stated that Section 19(1) of the Act enables a licensing authority to temporarily suspend the licence of any licence holder by driving the motor vehicles.
10. Mr.M.Mohammed Ibrahim Ali, learned counsel for the petitioners submitted that when the petitioners are having a valid licence for the period indicated in the licence, the same cannot be suspended in terms of Section 19(1) of the Act. The criminal cases registered against the petitioners have not fructified into any final conviction and, therefore, suspending the licence pending investigation was invalid. The petitioners are thus prevented from exercising the fundamental rights because of the suspension and hence, the provision authorizing the licensing authority under Section 19(1)(c) of the Act to suspend the licence is arbitrary, ultra vires of the Constitution, more particularly, Articles 14 and 19 of the Constitution of India.
11. Before proceeding to deal with the contentions raised by the learned counsel for the petitioners, it is necessary to extract Section 19 of the Act, which reads as follows:-
"Section 19 of the Motor vehicles Act, 1988 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
(b)is a habitual addict to any narcotic drug or psychotropic substance within the meaning of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 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
(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."
[Emphasis added]
12. Therefore, the said provision not only enables the authority to suspend a licence but also Section 19(3) provides for an appeal against the order of suspension. The petitioners have not availed any such appeal remedies. The petitioners have also not questioned the procedure adopted by the second respondent in ordering the temporary suspension of the licence.
13. Therefore, the only question is whether Section 19(1)(c) of the Act is unconstitutional, as contended by the petitioners. It must be noted that the petitioners' driving licence are only issued in terms of the Motor Vehicles Act, 1988 and the rules framed thereunder. The petitioners have not been given any fundamental right to drive vehicles without having a valid licence issued in terms of the Act. Once a licence was issued, the conditions appended therein will automatically apply as prescribed under the Act and rules framed thereunder and the power of suspension is provided in the Act itself under the certain contingencies.
14. Further, the Act also provides for a procedure and the petitioners were heard before an order was passed. The power to exercise Section 19 of the Act to disqualify a holder of a driving licence or revoking licence can be made for the reasons stated in the Section itself. Further, Section 19(1)(c) of the Act provides the licencing authority to suspend a licence, in case the motor vehicle is involved in the commission of cognizable offence.
15. When a right to drive a vehicle is circumscribed to the provisions of the Act and the licensing authority is empowered to grant licence subject to the conditions and any such statutory conditions are violated, the authority has got power to impose a suspension of the licence or ultimately, revocation of the licence for the reasons set out in the Act itself. Such a power has to be exercised after observing the principles of natural justice and on hearing the affected party. The Act also provides for an appeal remedy. Hence, it cannot be said that the provision is arbitrary and unconstitutional. The right to carry on an avocation found under Article 19(1) of the Act is not an unrestricted right and it is circumscribed by a reasonable restriction. Besides, even if any arbitrary orders are passed either by the licensing authority or by the authority under Section 19(3) of the Act, the power under Article 226 of the Constitution of India to judicially review such an order is completely safeguarded. Hence, such a provision cannot be said to be unconstitutional. When a similar issue came to be considered by the Hon'ble Supreme Court in Workmen vs. Meenakshi Mills Ltd. reported in 1992(3) SCC 336, the Supreme Court, while upholding the validity of Section 25-N of the Industrial Disputes Act, held that if the provision contains satisfaction by the authority and reasoned order to be passed, then even if there is no appeal provided, the safeguard of judicial review under Article 226 is sufficient to uphold the provision. Therefore, the attack made against Section 19(1) of the Act is clearly misconceived and the said provision does not suffer from any constitutional infringement.
16. It is also useful to refer to a recent judgment of N.PAUL VASANTHAKUMAR, J, in W.P.No.18042 and 18490 of 2010, dated 16.09.2010 [A.Sekar vs. The Regional Transport Officer, Tiruppur South]. It is worthwhile to refer the following paragraphs as found in paragraph Nos.14 to 16 of the said judgment:-
" 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
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YEAR 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
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N A : No of Accidents 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 DURING THE YEAR 2009 (FROM JANUARY '2009 TO DECEMBER '2009) State : TAMIL NADU
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NUMBER OF ROAD ACCIDENTS ACCORDING TO CAUSES
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Types of Causes Fatal Grievous Minor Non Total Injury Injury Injury Accidents N.A N.P.K N.A N.P.I N.A N.P.I N.A
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Fault of Driver 11494 12438 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
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N A-NO. OF ACCIDENTS.
N P K - NO. OF PERSONS KILLED.
N P I - NO. OF PERSONS INJURED Source: DGP, Chennai"
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.
15.The Division Bench judgment cited supra nowhere states that unless a person is convicted by a criminal court no suspension of licence be ordered. The said judgment only states that prior to the order of suspension notice shall be given to the licensee and his objection shall be considered. The said procedure is stated in Section 19(1) of the Act. Strict implementation of the provisions of the Motor Vehicles Act, 1988, by the authorities concerned will have deterrent effect on the drivers in future and definitely they will be careful in future, which will in turn minimise the number of accidents. Therefore it should be treated as a right decision by the authorities concerned.
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 period of six months after issuing notice and considering their explanation are declared valid and there is no illegality in the said orders."
17. In the present case, the petitioners have not attacked the orders of suspension of the licences and it is unnecessary to go into the merits or demerits of the same. Undoubtedly, the petitioners are involved in an accident, in which, criminal cases are pending and due to the accident, there was a loss of human life. A temporary suspension of licence is akin to a suspension pending enquiry in the service and labour jurisprudence. Therefore, one need not wait for the outcome of the final verdict in the criminal case. Hence, the petitioners are not entitled for any relief from this Court.
18. In view of the above, all the Writ Petitions are dismissed. Consequently, the connected miscellaneous petitions are closed. However, there will be no order as to costs.
SML To
1.The Secretary to the Government, Department of Transport, Fort Saint George, Chennai-600 009.
2.The Regional Transport Officer/Licensing Officer, Madurai South, Madurai-10.
3.The General Manager, Tamil Nadu Government Transport Corporation Ltd., Madurai Zone, Madurai.