Most. Jank Devi Vs. State of Jharkhand and ors.

- 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]. .....authority to pay the pensionary benefits could not issue the order for payment of pensionary benefits. a.g. has written letter no. pension cell-3/4-8, dated 2nd june, 2003 to the executive engineer, road construction division, godda.7. in spite of time allowed, no separate counter affidavit has been filed by the other respondents including the state of jharkhand or the state of bihar.8. from the impugned order dated 6th april, 2002 it will be evident that the time-bound promotion order was issued on 10th november, 1990. the employee was given benefits on such promotion and after his retirement certain objection was raised.9. there is nothing on the record to suggest that the deceased employee, premlal bhagat mis-represented to get the benefits of time-bound promotion. in this background and in view of decision of supreme court in case of sahib ram v. state of haryana reported in 1995 suppl. (1) scc 18, the respondent are directed not to recover any amount from the pensionary benefits to which the deceased employee was entitled or from the death benefits to which the widow is entitled. the order no. 3306, dated 6th april, 2002 is set aside and the case is remitted with direction to respondent to pay the petitioner death-cum-retiral benefits including the arrears of pension to which the deceased employee was entitled, family pension to which the widow is entitled, etc. with interest @ 5% per annum from the date of retirement of the employee in terms with order dated 16th january, 2002 passed by this court in w.p. (s) no. 383 of 2002 within a period of three months from the date of receipt/production of a copy of this order, failing which the respondents will be liable to pay interest @ 8% per annum in place of 5% and a cost of rs. 5000/-.10. the writ petition is allowed with aforesaid observation and direction.