Fulmani Devi Vs. State of Jharkhand and ors.

Fulmani Devi vs State of Jharkhand and ors.

Disposition Application dismissed Court Jharkhand Decided Nov 20, 2008

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https://sooperkanoon.com/case/522126

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Citation: sooperkanoon.com/522126
Court: Jharkhand High Court
Judge: R.R. Prasad, J.
Decided On: Nov 20, 2008
Subject: Service
Disposition: Application dismissed

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
Outcome / disposition: Application dismissed

Parties & Advocates

Appellant / Petitioner

Fulmani Devi

Respondent

State of Jharkhand and ors.

Legal References

Cases Referred: Radha Kishun v. Union of India and Ors. (supra
Reported In: [2009(1)JCR126(Jhr)]

Excerpt

- 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 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]. .....letter dated 30.11.1995. on the basis of that report, office order was drawn and the age of the petitioner was entered into the service book and according to that entry, the petitioner was supposed to retire on 31.3.1998. however, according to the petitioner, the petitioner being illiterate was not aware about the date of retirement and, hence, she went on putting her services until 30.11.2004 when she was asked to vacate the post which she did and during this period, the petitioner did draw the salary. now the authority has sought to recover the amount which the petitioner has drawn for the period from 1.4.1998 to 30.11.2004 which is quite illegal as the petitioner was allowed to continue to discharge his duties without there being any misrepresentation.3. learned counsel appearing for the petitioner further submits that under the provision of police manual, the authority was required to intimate about the date of retirement to the petitioner 18 months before but admittedly no such information was given and the petitioner was allowed to continue to discharge her duties and in that event, the authority is not entitled to recover the amount which the petitioner has drawn in view of the ratio laid down in a case of narayan singh v. state of bihar and ors. .4. however, stand of the respondent is that on the basis of the age ascertained by civil surgeon, ranchi, the petitioner was to retire on 31.3.1998 which the petitioner was fully knowing but the petitioner continued her services even after attaining the age of superannuation without there being any order of the controlling authority though, under order as contained in memo no. 3/f-02/88 (part i)/1600 v (2) issued by the finance department, government of bihar on 1.4.1991, the petitioner was not supposed to continue after attaining the age of superannuation but the petitioner continued her services till 30.11.2004 and hence, salary drawn for aforesaid period is adjustable towards the amount of pension and gratuity.....

Full Judgment

R.R. Prasad, J.

1. This writ application is directed against the order as contained in pension payment order issued by the Accountant General vide memo No. Pen III-07-08-3980 dated 16.6.2007 (Annexure 1) whereby Rs. 3,60,954/- has been shown as Government dues and has been ordered tobe debited from the amount of pension. Further order as contained in memo No. 4231 dated 19.7.2007 issued by Senior Superintendent of Police, Ranchi has also been sought tobe quashed whereunder Senior Superintendent of Police directed the Treasury Officer, Ranchi to adjust Rs. 3,60,954/- from the amount of pension and gratuity of the petitioner.

2. It is admitted case of the partes that the petitioner was appointed against the post of Sweeper in the year 1964 but at the time of her appointment, her date of birth was not noted in the service book. However, when in the year 1994-95 the above defect was detected, the petitioner was sent to Civil Surgeon, Ranchi for assessment of her age. On examination, age of the petitioner was ascertained to be 56 years which was communicated by the Civil Surgeon, vide letter dated 30.11.1995. On the basis of that report, office order was drawn and the age of the petitioner was entered into the service book and according to that entry, the petitioner was supposed to retire on 31.3.1998. However, according to the petitioner, the petitioner being illiterate was not aware about the date of retirement and, hence, she went on putting her services until 30.11.2004 when she was asked to vacate the post which she did and during this period, the petitioner did draw the salary. Now the authority has sought to recover the amount which the petitioner has drawn for the period from 1.4.1998 to 30.11.2004 which is quite illegal as the petitioner was allowed to continue to discharge his duties without there being any misrepresentation.

3. Learned Counsel appearing for the petitioner further submits that under the provision of Police Manual, the authority was required to intimate about the date of retirement to the petitioner 18 months before but admittedly no such information was given and the petitioner was allowed to continue to discharge her duties and in that event, the authority is not entitled to recover the amount which the petitioner has drawn in view of the ratio laid down in a case of Narayan Singh v. State of Bihar and Ors. .

4. However, stand of the respondent is that on the basis of the age ascertained by Civil Surgeon, Ranchi, the petitioner was to retire on 31.3.1998 which the petitioner was fully knowing but the petitioner continued her services even after attaining the age of superannuation without there being any order of the controlling authority though, under order as contained in memo No. 3/F-02/88 (Part I)/1600 V (2) issued by the Finance Department, Government of Bihar on 1.4.1991, the petitioner was not supposed to continue after attaining the age of superannuation but the petitioner continued her services till 30.11.2004 and hence, salary drawn for aforesaid period is adjustable towards the amount of pension and gratuity of the petitioner.

5. Mr. S. Srivastava, learned Counsel appearing for the Accountant General submits that the petitioner even after attaining age of superannuation went on discharging her duties without any order regarding her re-employment and in that event, she had no right to claim the salary and, therefore, office of Accountant General issued the order wherein excess amount drawn has been shown to be debitable from the amount of pension and gratuity of the petitioner.

6. Learned Counsel further submits that when similar point fell for consideration before the Hon'ble Supreme Court rendered in a case of Radha Kishun v. Union of India and Ors. : (1997)ILLJ 1165 SC the Apex Court found the order regarding recovery of the amount quite justifiable and in that view of the matter, this writ application is fit to be dismissed.

7. Having heard learned Counsel appearing for the parties, it does appear that when it was found that service book does not contain the date of birth of the petitioner, the authority sent the petitioner before the Civil Surgeon, Ranchi for assessment of her age and on examination, her age was found to be 56 years in the year 1996 and, accordingly, petitioner was supposed to get retired on 31.3.1998. but the petitioner went on discharging her duties till 30.11.2004 when she was asked to vacate the post, though, according to learned Counsel appearing for the petitioner, the authority in terms of the provision of Police Manual, was required to intimate about the date of retirement 18 months before the date of superannuation but the said provision of the Police Manual never gives any right a person to continue service even after attaining the age of superannuation, if no such communication has been made by the authority. Admittedly, the petitioner's age has been assessed by the Civil Surgeon, Ranchi and in that event, one can easily presumed that the petitioner must have knowledge about the date of superannuation and as such, any plea taken that the petitioner was not aware of the date of superannuation is not acceptable. Consequently, the argument advanced on behalf of the petitioner that the authority is not entitled to recover the amount which the petitioner has drawn in excess during the period from 1.4.1998 to 30.11.2004 is also not tenable as the petitioner had no right to continue in the service and to draw the salary after attaining the age of superannuation. This proposition has been categorically laid down by the Hon'ble Supreme Court in a case of Radha Kishun v. Union of India and Ors. (supra). However, learned Counsel has placed his reliance in a case of Narayan Singh v. State of Bihar and Ors. (supra), but the ratio laid down in that case is not applicable in the present case as in that case, certain amount was paid to the petitioner on account of second time bound promotion and also on the premise that he had passed Hindi Nothing and Drafting Examination but subsequently, it was found that the petitioner was not entitled to second time bound promotion from the date on which it was given and, therefore, excess amount drawn was sought to be recovered which order was held to be not tenable by this Court as time bound promotion and also salary enhancement on account of passing of Hindi Nothing and Drafting Examination was given without there being any misrepresentation.

8. So far this case is concerned, the petitioner was quite aware about the date of his superannuation, still she continued in service and drew salary to which she was not entitled to and under this situation, any order regarding recovery of the amount drawn in excess cannot in view of the ratio laid down in a case of Radha Kishun v. Union of India and Ors. (supra), be held to be illegal.

9. Accordingly, I do not find any merit in this application. Hence, this application is dismissed.

Same Court & Year Jharkhand · 2008 Same Parties Fulmani Devi vs State of Jharkhand and ors. Same Subject Service Same Judge R.R. Prasad, J.

Service