- (1.) THE owner of the stage carriage bearing registration no. TNF. 9922, which was operating on the route Tiruvannamalai to Sathanur Dam, is the petitioner herein. It was checked at 4 p. m. on 23. 10. 1981 and the following irregularities were noticed. ' ; i THE Vehicle, found to carry 73 adult passengers as against the seating capacity of 53 and thus overloaded by 20 passengers; and the ii, Registration Certificate, Insurance Certificate, permit, Driving Licence and Conductor' ; s licence were not carried.' ; Hence, a charge memo dated 2. 1. 1982 was issued to the petitioner to show cause as to why the permit of the vehicle should not- be suspended or cancelled under sections 60 (1) and 60 (3) of the Motor Vehicles act. He submitted his explanation on 6. 2. 1982, and as it was not satisfactory; and after receipt of the remarks of the Checking Officer, and again after getting the explanation of the petitioner dated 3. 8. 1982, the Regional transport Authority, Salem Region held that the charges have been proved and suspended the permit for a period of one day with an option to compund at rs. 200 per day in lieu of suspension. This order was confirmed by the Appellate authority, and therefore, this revision petition had been preferred under section 64-B of Motor Vehicles Act as amended by Tamil Nadu Act 16 of 1971 read with section 1!5, C. P. C.
(2.) MR. M. Krishnappan, learned Counsel for the petitioner, would first submit that there was no proof of overloading in the absence of tickets of the passengers being taken custody of by the Inspecting Officer, and that the statements given by the Conductor and the Driver admitting overload cannot be put as against the petitioner, because as per Rule 276 (b) of the Tamil Nadu motor Vehicles Rules (herein-after referred to as the Rules), they are bound to sign them, and hence the contents therein cannot be treated as voluntarily made. As for the absence of certain records like Registration Certificate, insurance Certificate, Permit, etc. , they were sent for paying quarterly tax on 23. 10. 1981; and regarding the charges of driving licence and conductor' ; s licence not being carried in the vehicle, it is only the concerned persons who could be proceeded against and not the petitioner. Yet another point he takes is that, in respect of the omissions which are put against the petitioner, the immediate responsibility being on driver and conductor, and when petitioner could be only vicariously held responsible; and they having not been proceeded against for the contraventions committed by them of the provisions of the Act and the rules framed thereunder, petitioner alone ought not to have been penalised and discrimination having been thus practised, the order is thereby vitiated. Rules 49 and 39 (zz) of the Rules pertain to conductor being made responsible for overloading and non-issue of tickets. Both the conductor and the driver were not carrying their respective licence. Mr. Krishnappan, learned Counsel for the petitioner, submits that no doubt petitioner is vicariously responsible for the omissions and commissions of his conductor and driver, but. when action is initiated for what they do, it could be not only against the permit-holder, but the driver and the conductor must also be proceeded against alongside, as they form one unit in so far as the contraventions alleged to have been committed. The Conductor having been issued a licence, is aware of the provisions of the Act and the Rules, which he is bound to comply with. For contraventions and omissions committed by him, he could be proceeded against, and dealt with appropriately. When the vehicle is put on the road, it is the Conductor, who is in exclusive charge of the vehicle, and controls the entry and exit of passengers. He is duty bound to issue tickets. Apart from the service conditions applicable to him, which would vary from management to management, in so far as the provisions of the Motor Vehicles Act and the Rules are concerned, every licensed conductor is bound to comply with these requirements. Like the permit-holder, he is bound to abide by the statutory conditions and stipulations. Omissions and commissions committed, and which are made out from particular set of facts and circumstances, cannot be differently applied between the permit-holder on one side and the conductor and the driver on the other side. As far as the contravention is concerned, it cannot be held that it is only the permit-holder, who had committed the contravention by overloading the vehicle; and that the conductor who had factually committed it, had not done anything contravening any of the relevant rules under which he cannot overload the vehicle, When three or four persons together commit an offence of theft, one or two cannot alone be proceeded with and other two let off either because they are favourites or belong to a section of Society which is leniently looked upon. It must be remembered that, as far as overloading or non-issue of tickets are concerned, it is the conductor who actually commits it and makes the permit-holder vicariously liable. To leave that person, who actually commits the contravention, but to proceed only against the permit-holder vicariously, not only leads to rank discrimination, but also results in gross omission by a public authority in not enforcing the provisions of the Act and the Rules. Mr. Krishnappan, refers to the decision in Vishnudas hundumal v. State of M. P. , (1981)2 S. C. C. 410= A. I. R. 1981 S. C. 1636 dealing with a case of discrimination relating to route nationalisation in which in respect of some stage carriage permits alone which overlap part of the notified routes, cancellation was resorted to, and in respect of some cases curtailment was ordered, whereas in respect of certain other similarly placed permit-holders, they were treated favourably by neither curtailment nor cancellation ordered; and therefore, the impugned orders were quashed and declared to be of no consequence, till all the operators including those excluded and similarly situated are similarly treated. This approach was made by Court to keep the nationalisation scheme in force. By way of analogy he would therefore submit that, when contravention is alleged and found as against the petitioner; unless and until the Conductor and the Driver are proceeded against, for what they have committed and for which petitioner is vicariously made liable; the order of suspension has to be kept in abeyance.
(3.) THIS plea is quite impressive and would rather go a long way in implementing what is intended to be achieved under the Act. Overloading would not only cause considerable inconvenience to travelling public, but also result in road accidents; and is detrimental to proper maintenance of the vehicle etc. Therefore, for what was committed, it would not be proper to confine action only against one of them responsible for what had happened. Rule 49-YY of the Tamil Nadu Motor Vehicle Rules states: ' ; The conductor of a Transport Vehicle- (1) shall not allow any person to be carried in any transport Vehicle in excess of the seating capacity specified in the permit of the vehicle.' ; Rule 49-ZZ states that ' ; The conductor shall - (i) issue to every passenger travelling or intending to travel in a stage carriage including every child over three years of age, and to every consignor or goods other than personal luggage, a printed ticket of the requisite denomination on receipt of the fare charged for carrying in the vehicle the passenger and his personal luggage, or the goods other than persona! luggage consigned, as the case may be;' ; Rule 49-GGG states that ' ; The conductor shall be responsible for exhibiting the proper boards and tor their illumination.' ; Hence, a conductor is thus prohibited from overloading a vehicle. As for the driver not carrying the licence, undoubtedly, he has to be proceeded against. Equally, the conductor had not carried his licence. Yet they had been left out, and for which no valid reason is given. ;