Sushil Prasad Singh Vs. the State of Bihar and ors.

Sushil Prasad Singh vs The State of Bihar and ors.

Type Court Judgment Court Jharkhand Decided Aug 21, 2006

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Citation: sooperkanoon.com/521860
Court: Jharkhand High Court
Judge: Permod Kohli, J.
Decided On: Aug 21, 2006
Subject: Service

Case Summary

AI-generated summary - not the official court judgment text.

- MOTOR VEHICLES ACT, 1988 [C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal ...

Key legal issue: Service

Parties & Advocates

Appellant / Petitioner

Sushil Prasad Singh

Respondent

The State of Bihar and ors.

Legal References

Cases Referred: Mohan Singh v. State of Bihar and Ors.
Reported In: [2007(1)JCR255(Jhr)]

Excerpt

.....extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - this court is satisfied from a plain reading of the statutory provision that the father of the petitioner having retired from the state of bihar before the appointed..........1982 to 31st august, 1986 has been decided as admissible for allowances, already paid, and the period from 1st september, 1986 till the date of retirement has been treated as break in service.4. the last direction has been issued on account of the fact that the petitioner remained absent during this period. since the petitioner retired from service without taking final decision on the disciplinary proceedings, respondents had no option but to pass the order dated 16th december, 1999. this order has not been challenged by the petitioner in the present writ petition.5. in view of the above circumstances, there is no merit in this petition in so far the claim for full salary is concerned. subsistence allowance for the period 13th october, 1982 to 31st august, 1986, shall be paid to the petitioner in terms of the impugned order. however, petitioner shall be entitled to retiral benefits, as admissible under rule in the light of the order dated 16th december, 1999.6. learned counsel appearing for the state of bihar has vehemently argued that the liability for retiral benefits lies with the state of jharkhand, since the petitioner was residing and posted in the state of jharkhand at the time of reorganization of the state. however, learned counsel appearing for the state of jharkhand brought to my notice a division bench judgment of this court in c.wj.c. no. 2049 of 2000 (smt. bindhya basinl mishra v. the state of bihar and ors.) reported in 2006(2) jljr 208. wherein this court has issued following directions:5. we have a/so noticed that the husband of the petitioner died while in service of the erstwhile state of bihar. accordingly, we direct the successor state of bihar through the secretary, water resources department, govt. of bihar, patna, to pay the dues, though it will be open to it to adjust the amount at the time of apportionment of the assets and liabilities of the erstwhile state of bihar.7. in the present case, petitioner retired in the year 1997 i.e. before.....

Full Judgment

Permod Kohli, J.

1. Petitioner was posted as Co-operative Development Officer-cum-Member Secretary, Galudih Lamps, Kuchai Block. He was placed under suspension vide order dated 13th October, 1982. He was served with the chargesheet vide Memo No. 986 dated 14th May, 1984 issued by the Additional Registrar, Cooperative Society, South and North Chhotanagpur Division, Ranchi. He was directed to deposit Rs. 5,000/-. He was further directed to present before the Enquiry Officer and submit his reply to the charges. Latter he was served with Memo No. 4328 dated 14th July, 1994 to show cause why he be not removed from service. He finally replied thereto. Without taking any decision on the disciplinary proceedings by the respondents, petitioner was retired from service on 9th March, 1997 on attaining the age of superannuation.

2. Petitioner filed this petition claiming full salary for the period of suspension till the date of retirement i.e. i.e. October, 1982 to 9th March, 1997 and all retiral benefits of his service.

3. In the counter affidavit filed by Respondent No. 3 copy of order dated 16th December, 1999 has been placed on record, whereby suspension of the petitioner was revoked as on the date of his retirement. The period of suspension with effect from 13th October, 1982 to 31st August, 1986 has been decided as admissible for allowances, already paid, and the period from 1st September, 1986 till the date of retirement has been treated as break in service.

4. The last direction has been issued on account of the fact that the petitioner remained absent during this period. Since the petitioner retired from service without taking final decision on the disciplinary proceedings, respondents had no option but to pass the order dated 16th December, 1999. This order has not been challenged by the petitioner in the present writ petition.

5. In view of the above circumstances, there is no merit in this petition in so far the claim for full salary is concerned. Subsistence allowance for the period 13th October, 1982 to 31st August, 1986, shall be paid to the petitioner in terms of the impugned order. However, petitioner shall be entitled to retiral benefits, as admissible under rule in the light of the order dated 16th December, 1999.

6. Learned Counsel appearing for the State of Bihar has vehemently argued that the liability for retiral benefits lies with the State of Jharkhand, since the petitioner was residing and posted in the State of Jharkhand at the time of reorganization of the State. However, learned Counsel appearing for the State of Jharkhand brought to my notice a Division Bench judgment of this Court in C.WJ.C. No. 2049 of 2000 (Smt. Bindhya Basinl Mishra v. The State of Bihar and Ors.) reported in 2006(2) JLJR 208. wherein this Court has issued following directions:

5. We have a/so noticed that the husband of the petitioner died while in service of the erstwhile State of Bihar. Accordingly, we direct the successor State of Bihar through the Secretary, Water Resources Department, Govt. of Bihar, Patna, to pay the dues, though it will be open to it to adjust the amount at the time of apportionment of the assets and liabilities of the erstwhile State of Bihar.

7. In the present case, petitioner retired in the year 1997 i.e. before reorganization of the State and the order dated 16th December, 1999 was also passed by the unified State of Bihar.

8. A similar view has been expressed by the Patna High Court in C.WJ.C. No. 13456 of 2004 (Mithilesh Kumar Singh @ Mohan Singh v. State of Bihar and Ors.), reported In [2006(2) JCR 13 (Pat)]. In this judgment, the Court has observed as under:

This Court is satisfied from a plain reading of the statutory provision that the father of the petitioner having retired from the State of Bihar before the appointed day, the liability would rest with the State of Bihar.

9. Above observations were made by the Patna High Court after considering the provisions of Section 53 of the Reorganization Act, 2000 and 8th schedule appended thereto.

10. In view of the above legal position, the liability to pay retiral and other dues to the petitioner rest with the State of Bihar subject to adjustment. Accordingly, a direction is issued to the State of Bihar to pay all admissible retiral benefits in accordance with order dated 16th December, 1999 within a period of three months along with statutory interest wherever it is admissible.

11. This petition stands disposed of with above observations and directions.

Same Court & Year Jharkhand · 2006 Same Parties Sushil Prasad Singh vs The State of Bihar and ors. Same Subject Service Same Judge Permod Kohli, J.

Service