Decision

Decision for Nirwan Ltd

Published 19 May 2022

0.1 IN THE SOUTH EASTERN & METROPOLITAN TRAFFIC AREA

1. NIRWAN LIMITED

1.1 OK1132138 & OF2031245

2. TRANSPORT MANAGER – DALJEET SINGH NIRWAN

2.1 GOODS VEHICLES (LICENSING OF OPERATORS) ACT 1995

3. TRAFFIC COMMISSIONER’S WRITTEN DECISION

4. Background

DVSA received ‘intelligence’ that the Operator may have allowed two of its drivers, Daljit (the company owner) and ‘Mario’ to breach drivers’ hours regulations linked to driving analogue and digital vehicles; drivers swapping cards and using the details of drivers who have already left (see page 85 of the PI bundle). A follow up Traffic Examiner investigation commenced on 12 March 2021. The Examiner spoke sometime later to Mr Daljeet Singh Nirwan (sole Director and Transport Manager), explaining the reason for the investigation and providing details of the documents that would be required. A Section 99ZA letter was then sent on 30 April 2021 confirming the data, records and other documentation required for the period January 2021 to March 2021 inclusive. The Examiner did not receive all the requested data and some of the data he did receive was corrupted. Further contact was made with Mr Nirwan on two occasions, but still the full data was not supplied. Accordingly, an ‘in person’ appointment was made with Mr Nirwan for 4 June 2021. The investigation was ultimately marked ‘unsatisfactory’ for the following reasons: -

• Vehicle AS65ASB driven on 13 occasions between 6 March 2021 to 22 March 2021 but a driver card was only inserted on one occasion.

• No driver data supplied for Victor-Marian Herghelegiu – no evidence of checks carried out on the driver card or driving licence. No download of his driver card carried out before he started or left Nirwan.

• Only 23 analogue charts produced by the Operator for the two specified analogue vehicles on the licence.

• Missing (unaccounted) mileage found and the Operator failed to adduce evidence of investigating this.

• A lack of infringement reports generally.

• Failure to produce all driver and vehicle unit data and records.

• On the evidence that was produced there is a strong indication of two drivers, including the director, working day and night in digital and analogue vehicles.

During the investigation, Mr Nirwan told the Examiner that when he introduced a new remote download system, he failed to lock out the tacho heads with its company card. This was the reason why he did not have all the vehicle unit and driver card data. The Examiner asked why a manual download had not been carried out, but Mr Nirwan had no explanation.

The report from the Traffic Examiner considered the work of Gheorghe-Marius Arnautu who drove both an analogue vehicle (CU06NY0) and a digital vehicle (GD14JBU) in January 2021. Mr Arnautu also drove J333KTL on 26 January 2021, but the Examiner was not supplied with any data for this vehicle (which had been specified on the SEMTA Licence since 15 November 2020); he was only supplied with a missing mileage report. The Examiner explains that the lack of records provided by the Operator across the board made it difficult to carry out a full analysis of whether the ‘intelligence’ provided was accurate or even whether drivers were generally breaching the regulations in any given vehicle. The Examiner formed a view that the Operator may have attempted to hide unlawful activity by not keeping, or allowing access to, the full records.

On 5 August 2021 an application was made to add Mr Colin Evans as an additional nominated Transport Manager. Considering the adverse DVSA report, I determined to call the Operator and Transport Manager to a Public Inquiry. I listed the application to add Mr Evans to be considered at the same time.

5. Hearing

The Public Inquiry commenced on 11 October 2021 and was adjourned part heard. The Hearing concluded on 6 December 2021. Daljeet Singh Nirwan is the sole Director and Transport Manager. Mr Nirwan was present at both Hearings and represented by Mr Paul Mason, Solicitor. Mr Evans was only present at the first Hearing because he withdrew his Transport Manager nomination shortly after. Prior to 11 October 2021 the Traffic Examiner who conducted the original investigation, Mr Rossiter, was on sick leave. Traffic Examiner Olaru looked at some more recent evidence prior to 11 October 2021 and his colleague Traffic Examiner Dowling attended the Hearing on 11 October 2021 to assist with any queries arising. On 6 December 2021 Traffic Examiner Rossiter was back at work and gave oral evidence. All DVSA witnesses attended the hearings via Microsoft Teams. The Operator, other witnesses and Solicitor all attended in person at The Public Inquiry Room, 4th Floor, Ivy House, Ivy Terrace, Eastbourne, BN21 4QT on 11 October 2021. Mr Mason attended via Teams on 6 December 2021 as he was feeling unwell. At the conclusion of the evidence, I allowed a further period for Mr Mason to send in written closing submissions.

6. Documents and Evidence

Prior to commencing this written decision, I have reviewed the following: -

1. Public Inquiry Brief;

2. My contemporaneous handwritten notes for both Hearings;

3. DVSA pre Public Inquiry report dated 6 October 2021;

4. Operator’s documents sent in advance, paginated pages 1-50 (maintenance records);

5. Operator’s bundle of documents – invoices June to September 2021 paginated pages 1-54 received on 4 October 2021;

6. Email from Mr Mason to my office dated 10 October 2021 with further attachments and confirmation the original driver defect sheet for FN14LVS dated 22 July 2021 would be at the Hearing;

7. Case management directions issued on 11 October 2021; confirmed in writing and expanded upon dated 13 October 2021;

8. Section 9 Witness Statement Traffic Examiner Rossiter dated 18 October 2021 re evidence of unaccounted mileage document - introduced on 6 December 2021 marked exhibit “VEPI1”;

9. Email from Mr Mason to my office dated 3 November 2021 attaching documents required under my Case Management Directions with Witness Statement to follow together with the remaining employment records and invoices;

10. Email from Mr Mason to my office dated 10 November 2021 attaching outstanding documentation together with Mr Nirwan’s Witness Statement in both English and Punjabi and signed by him;

11. Companies House print out for Victor-Marian Herghelegiu printed on 6 December 2021;

12. Written closing submissions together with some additional information not previously produced to the Public Inquiry dated 13 December 2021 at 16:27;

13. South Bucks District Council and another V Porter(FC) (2004) UKHL33, English v Emery Reimbold & Strick Ltd [2002 EWCA Civ 605 and Bradley Fold Travel Limited & Peter Wright v Secretary of State for Transport [2010] EWCA Civ 695 in relation to written decisions generally;

14. Upper Tribunal Decisions and other guidance I consider relevant to this determination as listed elsewhere in this Decision; and

15. The Senior Traffic Commissioner’s Statutory Guidance and Statutory Directions (‘SGSD’) current versions as at the date of the hearings.

7. Issues

The Operator denies that drivers were swapping tachograph cards, using analogue vehicles to drive beyond the regulations or that it was using the details of drivers previously employed but now left. DVSA state that the failure by the Operator to produce all the data and documentation required has prevented a full investigation to determine one way or another. The Operator admits that its systems in relation to drivers’ employment, drivers’ hours, tachograph and working time directive and general record keeping on that side of the business were below standard - despite it having introduced automatic downloading. The contents of Mr Rossiter’s Section 9 Statement dated 18 October 2021 is challenged because it alleges the use of a driver’s name after he had already left the Operator.

The maintenance records produced for the Public Inquiry showed several shortcomings, which were accepted by Mr Nirwan. Of particular concern is:

• Driver detectable defects on Preventative Maintenance Inspection records with no corresponding driver sheet identifying the said defects.

• No evidence of Mr Nirwan auditing the maintenance records.

• Periods where no measured brake performance testing was undertaken due to equipment being repaired.

• PMIs with no brake performance testing even when the equipment was available.

• When measured brake performance testing was undertaken it was a mixture of outside the correct ISO week, unladen/insufficiently laden, imbalances and only passing on lock allowance.

• No evidence produced prior to 6 December 2021 that effective brake performance testing is now happening.

8. Consideration and Findings

8.1 Approach

From March 2020 Operators have been challenged (along with the rest of the nation) by the unique circumstances of Covid-19. On 17 March 2020, a full week before the national lockdown the Senior Traffic Commissioner issued an emergency SGSD setting out detailed legal and practical advice for Commissioners, Operators, Transport Managers, and those who support them. It includes the following:

What is physically possible may change during the course of the outbreak, but the Office of the Traffic Commissioner has issued additional guidance to operators throughout the course of the restrictions to date:

https://www.gov.uk/government/publications/advice-heavy-goods-and-public-service-vehicle-operators-covid-19

The Senior Traffic Commissioners directs that this must now form part of the decision-making process. In considering the positive and negative aspects of an operator’s approach during the lockdown and subsequent restrictions, traffic commissioners may also have regard to:

• the employment of effective management based on sound risk analysis for instance in the management of maintenance;

• a risk-based approach to the testing of vehicles in prioritising the inspection of older and/or historically problematic vehicles in the transition back to business as usual…

These should be supported by evidence.

There is clear and consistent case law from the Upper Tribunal that a Traffic Commissioner is entitled to treat the conduct of a sole director effectively as the conduct of the Limited Company and good repute or fitness is determined accordingly. Such an approach has received approval from the appellate tribunal on several occasions, such as 2013/008 Vision Travel International Limited and T2013/61 Alan Michael Knight. As well as the operator licensing obligations, a company director must exercise his or her statutory duties of demonstrating independent judgement, skill, care, and diligence, as per sections 173 and 174 Companies Act 2006). The allegations, failings, and admissions in this case impact equally to Mr Nirwan’s good repute as a Transport Manager and the Operator’s good repute. Adverse findings below should be read accordingly.

8.2 Allegations of Fraud/Serious Misconduct

I remind myself that the more serious the allegation the more cogent the evidence needs to be, as per Re H and R (Minors) CA 1994. The Operator admits that it failed to produce all relevant data and records for various reasons such as leaving analogue tachographs in vehicles when sold, or confusion over whether data was downloaded when the company card was not locked in. Where an Operator fails to produce all relevant records and information to DVSA and/or the Traffic Commissioner that is a very serious matter. There are mandatory periods for records to be retained without fail. Where an Operator/Transport Manager fails in this most basic of duties it leaves itself open to adverse findings – the rules are not ‘red tape’ but protect Operators, Transport Managers, Drivers and all those impacted by the transport operations are not exposed to risks to their health or safety.

8.3 ‘Termination letter – Victor’

Considering the challenges arising, it is not surprising that a significant period of the Public Inquiry was taken up assessing whether the disciplinary letter produced by the Operator dated 27 March 2021 (addressed to Mr Herghelegiu for driving without a card) was genuine, both in terms of whether he was driving at all and whether the letter was created after the event, i.e. a fraudulent document. It is common ground that to produce a missing mileage report the vehicle unit data is required. Mr Nirwan only produced infringement reports created against the driver cards.

During his investigation Traffic Examiner Rossiter found 13 occasions between the 6 March 2021 and the 22 March 2021 when vehicle AS65ASB was driven without a driver card save on one occasion (page 84 PI bundle). Mr Nirwan identified the driver for the remaining 2125kms as Mr Herghelegiu and in reply to the TEVR report Mr Nirwan sent TE Rossiter a copy of a letter headed “Termination Letter – Victor” dated 27 March 2021 (see PI bundle page 164). In his Section 9 Statement dated 18 October 2021 Mr Rossiter sets out the basis upon which he believes the letter is factually inaccurate and therefore fabricated after the event. There are several indicators which suggest, on balance, that Mr Herghelegiu was not driving and that the letter is fraudulent: -

• Mr Herghelegiu was a director of Darius Spedition Ltd. The accounts filed at Companies House prior to dissolution suggest that he was invoicing Nirwan (and anyone else) for his services as a lorry driver. The only asset is cash at bank and nearly all earnings are withdrawn as staff costs. The first strike off notification at Companies House is the 17 November 2020 and the company was dissolved on 23 March 2021.

• Mr Herghelegiu’s Facebook profile indicates that he started a new business in Romania or started driving there because the profile confirms (i) he lives in Bucharest; and (ii) he set up DRS Spedition Trans Services SRL in May 2020. This is supported by a free google search of Romania’s Companies House equivalent which shows turnover for 2020 of €19,920:

https://www.romanian-companies.eu/drs-spedition-trans-services-srl-42531768/

• The Operator failed to produce to DVSA any evidence of online driver card or driving licence checks for Mr Herghelegiu or that his driver Digi card had been downloaded prior to or during employment. The only evidence is one undated hard photocopy of the physical driver licence card. During the investigation Mr Nirwan said he was checking drivers’ licences online but not keeping any evidence. This is contradicted by the fact that Mr Nirwan did produce print out online driver licence checks for other drivers on 3 November 2021 dating back to September 2020 – but not for Mr Herghelegiu. Mr Nirwan sought to clarify this in later evidence by saying he had forgotten to print off the one check for Mr Herghelegiu.

• The download overview for vehicle AS65ASB sent on 3 November 2021 confirms VDU lock in at 09:38 on 2 May 2021. It also confirms that the VDU was locked out by the previous owner on 5 March 2021 at 15.55.

• Vehicle AS65ASB was specified on the Licence from 9 March 2021. The data Mr Rossiter requested in the section 99ZA letter dated 30 April 2021 was not received until shortly after that date (04 – 06 May 2021) and only in part. Mr Nirwan accepts that the vehicle unit was not locked in to Nirwan Limited or downloaded until 2 May 2021, some 4-5 weeks after the alleged termination letter (see page 2, number 3 question and response and number 5 on page 3 in the s.9 statement dated 18 October 2021).

• Mr Rossiter e mailed his analysis to Mr Nirwan on 12 May 2021, including the driving off card in AS65ASB. Mr Nirwan wrote to Mr Rossiter by e mail on 16 May 2021 that Mr Herghelegiu worked for him for two weeks and then left without presenting his card to be downloaded. This response includes: “I was not aware that Victor has not used his card. Following your e mail (my emphasis) I tried to contact Victor but there was no answer to the number I had” – see quote in red on page 3 of the s.9 statement dated 18 October 2021. This is repeated in his response to the TEVR dated 15 June 2021 (page 158 of the PI bundle): “Driver had failed to insert his driver’s card for the short period of time that he worked with us. I accept that I did not download his driver card because of the auto download system and was unaware of this issue until I was notified by the DVSA”.

• The follow up meeting to discuss all the analysis was arranged for 4 June 2021. The earliest evidence of any assessment of this vehicle and related drivers by the Operator is on 13 May 2021 - the analysis at page 165 of the PI bundle attached to Mr Nirwan’s response to Mr Rossiter’s e mail of 12 May 2021 (also see page 2 Section 9 Witness Statement 18 October 2021).

• The termination letter suggests a timeliness of addressing issues which is absent from the rest of Mr Nirwan’s work. Further, the letter does not say that Mr Herghelegiu failed to turn up after 21 March 2021, failed to respond to requests to work further or that he was owed any money – some of the reasons Mr Nirwan gave during the Inquiry as to why he went to look at Mr Herghelegiu’s online driver data in the lead up to 27/3/21. Mr Herghelegiu was not an employee, but self-employed and therefore the whole context of a letter allegedly sacking for gross misconduct is out of context.

• The Examiner checked the Operator’s Working Time Directive records from 7 December 2020 until 4 April 2021 and there is no evidence that Mr Herghelegiu was set up on the system.

• At the meeting on 4 June 2021, Mr Nirwan blamed his failure to lock in the company card on AS65ASB as the reason why not all the driver and vehicle data had been sent. Harry Kapoor, his tachograph consultant, was at the meeting as well and did not suggest any prior analysis or data could be sent. This strongly indicates that as at the 4 June 2021, Mr Nirwan believed that the failure to use the driver card information was not available until after 2 May 2021.

• For the Hearing on 6 December 2021 the Operator produced evidence from the software company saying that you can still see driver card data even if the company card is not locked in. This has limited weight because the statement to Traffic Examiner Rossiter on 4 June 2021 and the chronology above indicates that this was not known to Mr Nirwan.

The indicators that Mr Herghelegiu drove in March 2021 and that the dismissal letter is genuine are fewer: -

• By e mail dated 29 October 2021, Mr Kapoor tells Mr Mason that Mr Nirwan did have access to the driver data in March 2021 and after a few days noted that Victor had not used his card. Mr Kapoor continues: ‘Daljeet Nirwan questioned to which victor had no reply. Based on this information a letter of dismissal was served on him’. However, this directly contradicts what was written on 16 May 2021 and repeated on 4 June 2021.

• Mr Herghelegiu retained a current UK driving licence as at 6 December 2021. It has not been exchanged back for a Romanian licence. However, there is no apparent requirement to do so until renewal, subject to Romanian local rules.

• Mr Nirwan did have a photocopy of the driver card, albeit there is no way of knowing when that photocopy was taken.

• The warning letter was sent to an address other than the one on the driver licence. I give this limited consideration as that may have been an address given by Mr Herghelegiu for forwarding any communications after he returned to Romania, such as fixed penalty notices.

• English is not Mr Nirwan’s first language. Again, I give this limited weight because it is for Operators to ensure that if their language skills are not sufficient that they seek effective assistance from a friend of business acquaintance to assist. Mr Nirwan suggests that his daughter misinterpreted what he wanted to say in the written response to DVSA – after ‘I was not aware’ she should have included ‘at the time’. However, the lack of knowledge around Mr Herghelegiu’s suggested failure to use his card is repeated at the ‘in person’ meeting. Mr Nirwan told the Examiner that Mr Herghelegiu had left before the card was downloaded.

On balance I find that it is more likely than not that the letter dated 27 March 2021, was deliberately created after the event to mislead the Traffic Examiner into believing (i) it was Mr Herghelegiu driving rather than being linked to the ‘intelligence’; and (ii) the Operator’s systems were more robust than the initial response to the section 99ZA letters suggested. For this reason, the other alleged disciplinary letter produced (see page 163 of the PI bundle) is something I cannot give any material weight to. My finding corroborates part of the DVSA intelligence, namely using the details of drivers who have already left the company. This is a serious matter.

The Operator’s failure to produce records and the reasons for it. To include whether to hide working when drivers should be at rest.

The Examiner alleges that Mr Nirwan repeatedly, deliberately failed to supply (i) all digital data in an uncorrupted, readable format; (ii) all analogue charts and (iii) other records, to prevent DVSA uncovering the full extent of any wrongdoing. Throughout Mr Nirwan maintained that the failure to fully comply with the s.99ZA letters was due to mistakes around the changeover to automatic downloads and inadvertently giving away some analogue charts when the related vehicles were sold.

The Section 99ZA letters dated 30 April 2021 (p.168 – 171) require documents, data, records, and reports for the SEMTA and ETA Licences. The response was to cover all vehicles and drivers for January, February, and March 2021 with a deadline of 7 calendar days. This should have been straightforward for a long-established Standard Licence holder. The chronology of effort taken to receive the limited response is detailed in Mr Rossiter’s PI and section 9 statements. There is no good reason for this bearing in mind the clear undertakings with regards to record keeping on the Licences. I therefore must ask myself whether the explanation provided by Mr Nirwan to Mr Rossiter and the Public Inquiry is credible.

On 4 June 2021 Mr Nirwan specifically tells Mr Rossiter he missed various driver and vehicle downloads after introducing a remote system without the relevant company card lock in. He had no explanation for failing to do manual downloads. Mr Nirwan denied day and night driving. Mr Nirwan did not originally send the analogue tachographs but a re-read of the s.99ZA letter show that the analogue records were not requested on 30 April 2021, only digital data. They may have been required in subsequent requests, but these are not exhibited.

At the meeting on 4 June 2021, Mr Nirwan did produce analogue records. There were 22 charts for the two vehicles for just over a 2 month period - vehicle CU06NYO was removed from the Licence on 3 March 2021 and vehicle DL03HBP was removed on 9 March 2021. The last chart for DL03HBP is dated 14/2/21 and for CU06NYO it is 30/1/21. One chart for DL03HBP is dated 19 December 2020, which pre-dates the original requested period, but confirms by odometer reading that the vehicle was not used between that date and 12 January 2021. It is unclear when Mr Nirwan first realised that there were any missing charts. When asked about the small number of charts, Mr Nirwan said (i) the vehicles were of specialist design and of limited use; and (ii) he must have given some charts with the vehicles when sold. Mr Nirwan confirmed that as at the meeting he had made no attempts to retrieve the missing charts. On 10 October 2021 Mr Mason lodged a letter from CVE London Limited confirming purchase and collection of the analogue vehicles on 9 March 2021. The letter is not dated until 23 September 2021. The writer confirms that folders were with the vehicles and the contents discarded but not what the actual contents were.

The analogue charts that were produced are for Mr Gheorghe-Marius Arnautu (the Mario referred to in the intelligence report), Mr Nirwan and a Mr Sukwinder Singh (2 charts). Mr Rossiter did his best to cross reference the limited analogue charts with the limited digital data available and missing mileage reports, but it was too fragmented to make firm conclusions. However, from a full review of the evidence available to the Inquiry, the said records do identify:

• There is a chart missing for vehicle DL03HBP between 03 and 04 February 2021 covering 88kms (see pages 112 and 113 of the PI bundle). Mr Nirwan is the only driver of this vehicle on the charts produced. The missing chart prevents analysis on whether rest was interrupted.

• Mr Nirwan drove DL03HBP and LK65CHF on 20/21 January 2021. Mr Nirwan finished duty in the analogue vehicle at 01.15 on 20 January 2021 and starts duty the same day in the digital vehicle with his card in slot 1 from 20.43. Mr Nirwan put his card in slot 2 from 20.23 for a period including driving 5.2kms and then appears to have realised his error.

• Mr Nirwan’s duty ended at 00.30 on 21 January 2021 in the digital vehicle. He then ‘records’ 9 hours rest until commencing duty in the analogue vehicle at 09.30. However, the analogue ‘V’ trace suggests that he commenced work sooner/rest interrupted.

• Between 07.35 on 21 January 2021 and 12:40 on 22 January 2021 two vehicles have missing mileage – CU06NYO and GD14JBU – which indicate that Mr Arnautu created false records to show rest when he was in fact working. At the very least insufficient daily rest and possibly between 24 hour periods appear to have been committed. Unfortunately, Mr Arnautu was not interviewed under caution.

• As above between 22.18 on 24 January 2021 and 13.15 on 25 January 2021.

• In addition, on the face of the records working time directive offences and a number of EU Hours offences which may be ‘mode switch’ related.

Mr Rossiter sent a further section 99ZA letter on 16 June 2021 requesting further data to which he would run analysis for an ‘open’ period from 1/1/20. The purpose was to verify the explanation Mr Nirwan provided for missing data linked to the remote download system. The only readable data was a partial speed trace, and odometer start and finish readings. When he tried to run daily and monthly reports for the 3 vehicles the system repeatedly stated there was no data for the period requested. In his TEVR response Mr Nirwan moved from his initial denial of day and night driving to admitting some limited driving day and then night shifts, but he tried to ensure that everyone took 9 hour breaks between shifts (page 159 of the PI bundle). The Examiner signed off a section 9 statement in relation to the investigation dated 16 July 2021, shortly after his work concluded. He states that (see page 102 PI Bundle): “From the lack of records for analogue vehicles, lack of digital data that is not corrupted or unreadable, limited infringement reports, and none from analogue vehicle use, no investigation of missing mileage reports, and very limited checks on the data the Operator does have, would indicate that the allegations of day and night driving by the two named drivers, in analogue and digital vehicles is most likely true and accurate.”

In NT/2014/02 Mrs Janet Lyons t/a Lyons Haulage at paragraph 28 the Upper Tribunal said: “At first sight and taken out of context a failure to produce tachograph records may not appear to be particularly serious. However, it should always provoke the question: ‘why were the records not produced?’ The use of tachographs makes an important contribution to road safety and the safety of the public. In particular it provides a record of a vehicle’s speed and a check on whether the driver has taken proper rest breaks. Where failure to produce tachograph records results in a conviction it suggests that there is no innocent explanation for the no-production of the records. That in turn prompts the question: ‘what is the operator trying to hide?’”

In his written response to the TEVR (page 158/9) Mr Nirwan’s narrative is a confusing mix of assurances and ignorance:

All digital vehicles fitted with auto download since the middle of 2020 but Mr Nirwan claims to be unaware he needed to lock in with the company card. His TEVR response includes ‘As I am not really great with computers, I have now learnt the workings of the system installed…’

Mr Nirwan contradicts himself by saying AS65ASB was not locked in as the vehicle proved defective and was potentially being returned to the dealer. If he did not know the card had to be locked in, then it would not be in his mind? The vehicle was added to the fleet on 9 March 2021 and is still on fleet. Whilst there are periods it is not on the road, it is used extensively in between the given VOR periods and driven by Mr Nirwan (pages165 to 167). Either he knew the tacho head should be locked in or not for the vehicle to be in use.

Mr Nirwan says with hindsight as sole director, transport manager and driver across 4 operating centres he became overstretched and made mistakes. On the records produced Mr Nirwan drove on 19 occasions across 3 months (1 – 2 times per week, a mix of digi and analogue). All 4 operating centres are in proximity and the work is the same.

Although ‘not really great with computers..’ Mr Nirwan: -

• Has been the sole transport manager since March 2016.

• Claims to have checked driver licences online before allowing new individuals to drive.

• Relied on quarries to assign and route vehicles but trackers on its vehicles meant he was able to deal reactively with any issues arising.

• Allegedly, checked tacho data online and saw no card insertion for the period of missing mileage at the end of March 2021.

• Only obtained the assistance of a transport consultant after DVSA took an interest.

Mr Nirwan states that he did check the analogue charts but if he did, how did he miss the chart for 88kms missing between 3 & 4 February 2021 (para 23 above) – there were only 12 charts for that vehicle, and he was the only apparent driver in the relevant period.

Mr Nirwan used the opportunity to amend his oral statement on 4 June 2021 to clarify operations around day and night shifts. However, the diligence suggested of ensuring limited day driving and proper rest is not supported because there is no evidence he was doing so, even if it were possible, since at least mid-2020.

Mr Nirwan confirmed that he now had assistance from an external transport consultant. They introduced new policies and were implementing a new training programme after the DVSA investigation. However, Mr Nirwan passed his CPC as recently as 2015 and when OK1132138 was granted he had the benefit of an experienced external CPC holder (and O Licence holder), Surjit Singh Sidhu, to learn from. The VOL record shows Mr Nirwan has instructed a transport consultant previously to assist with a variation application (2016) and therefore he was fully aware that external help is available before the DVSA investigation. I balance the limited data and records produced with the information lodged on 3 November 2021 that there were 16 different drivers (see driver shift schedule) across the 11 vehicles operated over the relevant period. The email from Descartes dated 29 October 2021 specifically confirms that the remote driver digital card download happens regardless of company card lock in. That being the case Mr Nirwan has failed to produce to DVSA complete driver data for 16 drivers and 11 vehicles across a 3-month period. If it was inadvertently missing or unavailable, it would have been patently obvious.

Mr Rossiter went to some lengths to assist Mr Nirwan and understand his stated issued, as per paragraph 25 above. The credibility of Mr Nirwan’s explanation in relation to company card lock in and remote download is further undermined by the lock in dates for all digital vehicles on the Licences during the relevant period (as required in my case management directions of 13/10/21). The print outs received on 3 November 2021 confirm that LK65GGX, LK65CHF and LKCYG were all locked into Nirwan Limited between 16.12.19 and 19.1.20 using the same company card ending in **00. Two vehicles specified on 30 January 2020 (FN14LVR and FN14LVS) and GD14JBU (specified on 12.4.20) were not locked in until May 2021. All 6 vehicles were on fleet prior to installing remote download. All 7 vehicles locked in between 2nd and 20 May 2021 were done so with company card **10. On balance there appears to have been a positive decision by Mr Nirwan not to lock in vehicles after 19 January 2020 and at some point, he had to apply for a new company card to address the DVSA investigation.

The finding that he knowingly producing a false document at paragraph 18, potentially undermines the other evidence given by Mr Nirwan to DVSA and the Public Inquiry namely that the significant absence of data for January 2021 to March 2021 is due to an innocent mistake and negligence. Either data and reports exist, or they do not. The inability to produce to DVSA the volume of data and reports that should have been available of itself undermines the credibility of suggested inadvertence. For the avoidance of doubt, even if I had not made the finding at paragraph 18, Mr Nirwan’s explanations, and clarification are not credible on failing to produce all records in the context of my analysis above. The detailed analysis supports the DVSA view of deliberate actions, or if I am a wrong on that at the very least a high degree of recklessness. Whether deliberate or reckless, both have a starting point of SEVERE for Regulatory action as per Annex 4 of SGSD No. 10.

9. Determination

I have considered the oral and written evidence for the Operator and DVSA. At a basic level, Mr Nirwan admits failing to exercise quality, monitoring, and control of the transport operations as a director. Mr Nirwan admits failing to exercise continuous and effective management of the transport operations as the Transport Manager. However, this case is more complicated than a series of straightforward admissions. It is disappointing that Mr Nirwan was not interviewed under caution by DVSA but then these are not ordinary times. However, it means that I have given careful consideration as to whether all the data and documentation that was disclosed, some of it at my direction on 13 October 2021, supports Mr Nirwan’s version of events. I have not found Mr Nirwan to be a truthful witness after considering his communications since April 2021. As a result, I have made two serious findings above: (1) Creating a false document; and (2) Deliberately or recklessly failing to make and/or keep and/or produce records since January 2020, noting the dates in paragraph 28 and not just the original investigation period. In addition, vehicle maintenance failings remained to be addressed.

There are positives to weigh in the balance. This is the Operator’s first Public Inquiry and there is no previous adverse history. Mr Nirwan completed a two-day Transport Manager CPC Refresher on 29 and 30 June 2021, albeit the Operator accepts that this does not appear to have produced a significant improvement, particularly in vehicle maintenance. Mr Nirwan engaged a transport consultant to assist with the DVSA investigation. He also nominated a second Transport Manager in August 2021. The drivers hours tachographs and working time directive records produced prior to the Hearing on 11 October 2021 demonstrated an improving picture in that there were no issues with the digital data for two specified vehicles and two reports produced show that missing mileage was being checked. There were no significant periods of driving without a card. Driver summary reports for three drivers showed four apparent working time directive infringements and two drivers hours infringements. The Director was responsible for one drivers’ hours infringement and two working time directive infringements from that list. No evidence of disciplinary action was produced because no behaviours reached the points-based system used by the Operator. However, it remains unclear how much of this improvement was down to Mr Evans, who resigned and withdrew his transport manager nomination having reflected on hearing day one’s evidence. The DVSA report dated 6/10/21 says that ‘Mr Evans has implemented a fully digital system in which he and the Operator can have instant access….’. Mr Nirwan is struggling to find an alternate new/additional transport manager due to the Public Inquiry.

In 2006/277 Fenlon the then Transport Tribunal stated “It has been said on many occasions that trust is one of the foundation stones of operator licensing. Traffic Commissioners must be able to trust operators to comply with all the relevant laws, rules and regulations because it would be a physical and financial impossibility to police every aspect of the licensing system all day and every day. In addition, operators must be able to trust other operators to observe the relevant laws, rules and regulations. If trust between operators breaks down and some operators believe that others are obtaining an unfair commercial advantage by ignoring laws, rules or regulations then standards will inevitably slip, and the public will suffer.”

Where an Operator’s standards fall after a period of compliance then the steps taken to raise and maintain standards afterwards are a starting point as to whether an Operator can be trusted moving forward. Where this Operator sits in relation to this as at the date of this decision is set out in paragraph 32. At the same time, deciding when to comply is not a lifestyle choice. As per paragraph 45 of SGSD 10: The licensing regime exists to promote road safety and fair competition. The jurisdiction of traffic commissioners is ‘preventative’ in nature…traffic commissioners are not required to wait and then react after some serious event has occurred. Other operators, with knowledge of the case, might be tempted to look at the circumstances and say to themselves that the operator in question appears to be getting away with it so why should we bother to incur the expenditure of time, trouble and money to run a compliant operation. It only needs one or two operators to adopt this approach to lead to a greater risk that the operator licensing system, which contributes to road safety, being fatally undermined.

Mr Nirwan’s deliberate, and reckless acts, which undermine road safety/prevent an effective assessment of risk over a sustained period, are so serious that they cannot be cast aside as some temporary aberration. These behaviours inform me about the underlying honesty and integrity of the individual. Dishonesty and reckless self-interest are not behaviours that can be unlearnt on a 2-day course; they are inherent. Mr Nirwan’s conduct strikes at the heart of road safety and fair competition; casting aside the requirement of adherence to high standards daily both as Operator and Transport Manager. I accept that there are systemic improvements across areas of compliance, but it is telling that brake testing was not resolved by 6 December 2021 and the improvements were mainly when Mr Nirwan knew he was being reported to OTC. Mr Nirwan also had the benefit of an external Transport Manager in the period leading up to the Inquiry.

Mr Nirwan acknowledges it is unlikely I will allow the Licence to continue with him as sole Transport Manager. In my judgement, the gravity of this case in terms of Mr Nirwan’s conduct is such that he cannot be trusted moving forward at all and revocation is the only possible proportionate outcome. The Operator’s loss of good repute and Mr Nirwan’s loss of good repute as Transport Manager are essential to maintain the professional standing of the Operator Licencing regime. Accordingly, I have reached the Decision set out in paragraphs 1 and 2 above.

9.1 Disqualification

The relevant case law and principles are set out in Chapter 13 of the Upper Tribunals Digest of Traffic Commissioner Appeals (2021) and Statutory Document No. 10 paragraphs 60 – 64 and 102 – 104. The case law indicates a general principle that at the time the disqualification order is made that the operator cannot be trusted to comply with the regulatory regime and that the objectives of the system, the protection of the public and fairness to other operators, requires that the operator be disqualified. Each case must turn on its own merits: 2009/011 Katherine Oliver and J W Swan & Partners, Catch22 Bus Limited, Philip Higgs v The Secretary of State for Transport [2019] EWCA Civ 1022.

Disqualification is a potentially significant infringement of rights, and the Upper Tribunal has indicated that whilst there is no ‘additional feature’ required to order disqualification the Operator/individual are entitled to know the reasons. In 2010/29 David Finch Haulage the then Transport Tribunal said:

“The principles that derive from these and other cases on the point can be simply stated. The imposition of a period of disqualification following revocation is not a step to be taken routinely, but nor is it a step to be shirked if the circumstances render disqualification necessary in pursuit of the objectives of the operator licensing system. Although no additional feature is required over and above the grounds leading up to revocation, an operator is entitled to know why the circumstances of the case are such as to make a period of disqualification necessary. Additionally, periods of disqualification can range from comparatively short periods to an indefinite period, and can be confined to one traffic area or be extended to more than one”.

Mr Nirwan has demonstrated that he cannot be trusted to comply with the regulatory regime. He produced a fake dismissal letter after receipt of the TEVR and held it out as legitimate to DVSA and throughout my Inquiry. Mr Nirwan ensured statutory records were not kept or if they were kept not produced in full to DVSA. Mr Nirwan failed to give proper attention to the roadworthiness of vehicles over many months and this remained the case as of 6 December 2021. Failing to properly brake test 32t multi axle vehicles in the face of the 2015 Bath tipper tragedy involving a vehicle of the same size is stupefying, especially as it is the year this Licence was granted. For these reasons, the objectives of the system, the protection of the public and fairness to other operators, requires that this Operator and Mr Nirwan are disqualified for a period. This is the Operator’s first Public Inquiry and therefore falls into a starting point of 1 – 3 years. The disingenuous behaviours and significant risk posed place it at the top end of that band.

SGSD No.10 at paragraph 63 includes: The Upper Tribunal had regard to a decision of the Transport Tribunal and that a traffic commissioner must “ensure that the purpose of an order is not undermined or defeated by a disqualified person becoming involved with the management of another operator’s licence.” This will be even more important where a traffic commissioner is concerned regarding the risk of “fronting”. Mr Nirwan uses numerous self-employed drivers, any of whom might be tempted/persuaded to ‘obtain’ a Licence for Mr Nirwan. It is for this reason I have made it clear that the disqualification includes the prohibition of Mr Nirwan being engaged in the “management, administration or control”, as provided for in 2005/457 Leslie John Ings. Accordingly, I have reached the decision set out in paragraph 3 above.

Miss Sarah Bell

Traffic Commissioner

5 May 2022