M.G. Malhotra Vs. Secretary, State Transport Authority - Court Judgment

Excerpt:

.....be told, the specific instances of the violation. a mere cataloguing of various numbers can hardly be described as compliance of the proviso. a notice in this behalf, in order to be effective should be definite... section 86(1) (a) to (f) connotes specific instances of the violations. the several acts resulting in such violation should be separately set out, and then alone, one can say that there has been a compliance of the requirements of the proviso to section 86(1} of the act... it cannot be stated that the procedure to be adopted by the respondent before passing the impugned order must be fair and reasonable... it may be noted that the order impugned is made appealable. in such a case, it is essential that the order passed by the original authority adverts to the facts of the case, the defence urged, the materials relied on to arrive at the findings challenged. - [p.d. dinakaran, c.j.; v.g. sabhahit, j.] karnataka civil services (appointment on compassionate grounds) rules, 1996 - rule 6(4) -permissibility to make fresh appointment to a different post -compassionate appointment - application for the post of second division assistant - pending consideration of the..........should not be taken against the petitioner. in the show cause notice it catalogued 16 cases which according to the respondents necessitated the notice and action.2. the petitioner submitted annexure-b explanation pointing out that the show cause notice is vague and does not contain the details of the alleged violations.3. it may be noted that section 86 contemplates that the transport authority which grants permit may cancel the permit or suspend it on any of the specific grounds mentioned namely clause (a) to (e) that are enumerated therein. the petitioner, according to therespondent had been supplied with check report which discloses thealleged infringement. annexure-a notice which is in a prescribedformat, catalogued, a series of entries which apparently refers to thecheck report. the show cause notice read as follows: 'show cause notice-cum-hearing notice sri m.m. malhotra permit holder of motor vehicle no.ka-04-528 covered by permit no. 30/90 valid upto 14.9.95 has used or allowed to be used in a manner not authorised by permit and thus rendered himself liable for action under section 86 of the m.v. act, 1988.he is therefore called upon to show cause in writing within.....

Judgment:

ORDER

Mohan Kumar, J.

1. Issue Rule.

The petitioners herein impugn Annexures C to R, the orders issued by the respondent in exercise of the powers conferred under Section 86 of the Motor Vehicles Act. Annexure-A, is the show cause notice, issued by the first respondent alleging that the petitioner used his motor vehicle No.KA-04/578 covered by permit No. 30/90 valid upto 4.9.1995 in a manner not in accordance with law and has thus rendered himself liable to be proceeded under Section 86 of the Karnataka Motor Vehicles Act. The notice sent called upon the petitioner to show cause within 7 days as to why action should not be taken against the petitioner. In the show cause notice it catalogued 16 cases which according to the respondents necessitated the notice and action.

2. The petitioner submitted Annexure-B explanation pointing out that the show cause notice is vague and does not contain the details of the alleged violations.

3. It may be noted that Section 86 contemplates that the Transport Authority which grants permit may cancel the permit or suspend it on any of the specific grounds mentioned namely clause (a) to (e) that are enumerated therein. The petitioner, according to therespondent had been supplied with check report which discloses thealleged infringement. Annexure-A notice which is in a prescribedformat, catalogued, a series of entries which apparently refers to thecheck report. The show cause notice read as follows:

'SHOW CAUSE NOTICE-CUM-HEARING NOTICE

Sri M.M. Malhotra permit holder of Motor Vehicle No.KA-04-528 covered by permit No. 30/90 valid upto 14.9.95 has used or allowed to be used in a manner not authorised by permit and thus rendered himself liable for action under Section 86 of the M.V. Act, 1988.

He is therefore called upon to show cause in writing within seven days from this date, as to why action should not be taken to suspend the permit.

Further he is directed to appear before the Secretary, KSTA at the meeting hall of the Koramangala Regional Transport Office, Bangalore-Central, Complex on 5/6-1-94 at 11 A.M. for being heard in the matter.

Failure to comply with above without valid reason the cases wilt be disposed Exparte on the merit of the case.'

On the reverse of this notice, it catalogued a series of following entries:

'(1) 29.1.91 B.N.

(2) 21.10.90 Kodagu

(3) 14.5.91 Dk

(4) 26.10.90 Mandya

(5) 11.8.91 Dk

(6) 8.3.92 B gm

(7) 2C.3.92 B gm

(8) 13.5.92 B gm

(9) 13.5.92 -

(10) 21.8.92 Dk

(11) 19.5.92 (illegible)

(12) 18.11.92 Dk

(13) 29.x.92 B gm

(14) 3.1.92 B gm

(15) 30.1.93 B am

(16) 21.11.92 Dk.'

According to the respondent these entries and the notice in the above Form is sufficient compliance of the requirement of Section 86.

4. In this behalf it may be noticed that the Proviso to Section 86(1) clearly states that no permit shall be suspended or cancelled unless an opportunity is given to the holder of the permit to furnish his explanation. Granting of an opportunity to furnish an explanation can be effective and meaningful only if the details of the indictment is made known to the person proceeded against. The rule audi alteram partem is engrafted by the introduction of the Proviso and in order that the opportunity be effective, the permit holder should be told, the specific instances of the violation. A mere cataloguing of various numbers can hardly be described as compliance of the Proviso referred to above. A notice in this behalf in order to be effective should be definite. The knowledge by the person issuing notice of the infraction of the statute committed by the person proceeded against, is not sufficient. Section 86(1)(a) to (f) connotes specific instances of the violations. The several acts resulting in such violation should be separately set out, and then alone, one can say that there has been a compliance of the requirement of the Proviso to Section 86(1) of the Act. Annexure-A does not contain any details of the alleged infraction of the Rule. Therefore it cannot be stated that the petitioner had an effective opportunity to show cause against the action proposed to be taken.

5. The orders Annexure-C to R are verbatim same and it only substitutes the numbers. It does not disclose as to whether the authority who passed the order while dealing with the case had applied his mind to Annexure-B. There is no reference at all to the explanation offered by the petitioner. His complaint that the notice was vague regarding the allegations against him and other objections raised by him in Annexure-B have not even been adverted to. It cannot be stated that the procedure to be adopted by the respondent before passing the impugned order must be fair and reasonable. Dehors proviso to Section 86(1), since the action proposed to be taken against the petitioner visits with civil consequence, there was inbuilt duty cast on the authority to proceed in a manner which is free from arbitrariness. The person affected must be informed of the case against him, the evidence in support thereof and a fair opportunity be afforded to him to meet the allegations. Absence of the compliance of the requirements goes to the root of the matter and hence even it there is a remedy by way of an appeal, I am of the view that as there is no compliance of the mandatory requirement of the Proviso to Section 86(1) of the Act the impugned orders are vitiated by errors apparent on the face of record and the petitioner need not be directed to prosecute the alternative remedy.

6. The learned Government Pleader strenuously urged that offences made mention in Annexure-A refers to the check report issued to the petitioner as and when he committed the offence. May be, that may be the reason why the authority did not dilate the same but nevertheless when the statute ordains the authority to grant an opportunity of being heard it is expected that such hearing is real and before proceeding further, details of the allegations should be set out with sufficient precision.

7. There is yet another circumstance vitiating the orders. It may be noted that the order impugned is made appealable. In such a case, it is essential that the order passed by the original authority adverts to the facts of the case, the defence urged, the materials relied on to arrive at the findings challenged. Such details will disclose the mind of the original authority and will assist the appellate authority in a given case to assess the validity of the action taken without recourse to further factual matrix and further delay. Further, as stated earlier, the petitioner should be apprised of the indictment against him so that he can answer them effectively. The authority is expected to reveal the materials on which he intends to take action under Section 86, In this view of the matter it is not possible for this Court to sustain the impugned order'. I, therefore, quash Annexures C to R orders Nevertheless, I make it clear that it is open to the authority to issue fresh notices in accordance with law and proceed against the petitioners after complying with the requirement of Section 86 of the M.V. Act.

Rule made absolute.