Upendra Pandey and ors. Vs. State of Bihar and ors.

Upendra Pandey and ors.;upendra Pandey and ors.;baijnath Mahto and ors. vs State of Bihar and ors.;state of Jharkhand and ors.;state of Bihar and ors.

Type Court Judgment Court Jharkhand Decided Dec 23, 2003

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Citation: sooperkanoon.com/522837
Court: Jharkhand High Court
Judge: M.Y. Eqbal, J.
Decided On: Dec 23, 2003
Case Number: CWJC No. 2324 of 1998 and 3268 of 1999 with Cont. Case Civil No. 659 of 2002
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
Acts & sections: Service Law; Constitution of India - Article 226

Parties & Advocates

Appellant / Petitioner

Upendra Pandey and ors.;upendra Pandey and ors.;baijnath Mahto and ors.

Advocate Prakash Chandra, Adv.

Respondent

State of Bihar and ors.;state of Jharkhand and ors.;state of Bihar and ors.

Advocate I.Sen,Choudhary, Adv.

Legal References

Acts: Service Law; Constitution of India - Article 226
Reported In: [2004(1)JCR390(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]. .....for the petitioners and mrs. i. sen choudhary, learned counsel appearing for the respondents.6. admittedly the petitioners are engages for a period of 4-5 months in every year under the special malarial eradication programme for the purpose of spray of ddt. however, it has not been disputed by the respondents that these petitioners were earlier getting salary and other allowances at par with the regular employees of the department.7. so far absorption/regularization of the services of the petitioners is concerned this court cannot issue mandamus directing their absorption/regularization in the facts and circumstances of the case. however, having regard to the fact that the respondents have been taking work from the petitioners every 4-5 months in a year for the last 19-20 years, the cases of the petitioners shall be considered as and when regular appointments are made and further their past experience and age relaxation shall be given due weightage.8. so far payment of salary at par with the regular employee is concerned it is stated in the show cause filed by the respondents in cont. case no. 659/2002 that the ddt spray workers are paid daily wages from 1997-98 prior to filing of cwjc 2324/1998 and cwjc 2440/2000. in that view of the matter, this court cannot direct the respondents to pay the salary to the petitioners as and when they are engaged at par with the regular employees.9. having regard to the facts and circumstances of the case cwjc no. 2324/ 1998 (r) is disposed of with the aforesaid direction. in view of the show cause filed in cont. case no. 659/2002 there is no need to proceed any further in the matter.

Full Judgment

M.Y. Eqbal, J.

1. These writ petitions involving common question of law and fact have been heard and disposed of by this order. In CWJC No. 2324 of 1998 the petitioners have prayed for issuance of appropriate writ directing the respondents to absorb them permanently on the basis of panel and after completing the procedure of appointment on the vacant and sanctioned Class III and Class IV posts and in the alternative regularize their services and further for quashing the letter dated 28.12.1996 issued by respondent No. 4, the Chief Malaria Officer, Govt. of Bihar, Patna whereby a direction was issued to make payment of wages to the petitioners as daily wages worker instead of salary DA and other allowances.

2. It is the admitted case of the petitioners that the respondents are taking work from them every five months in a year on the post of Superior Field Worker and Field Worker since 1977- 78 and they were receiving the payment of salary and DA and other allowances. It appears that when the petitioners were not paid salary for the period November 1999 to April 2000 and May 2000 to September 2000 they filed another writ petition being CWJC No. 4240 of 2000. In that writ petition the petitioners besides regularization also challenged the decision of the respondents contained in the letter dated 28.12.1996 whereby a proposal was made to change the pay scale and mode of payment to the petitioners who have been working on daily wages basis. The writ petition was disposed of on 19.12.2000 with a direction to the petitioners to raise all the points in the earlier writ petition being CWJC No. 2324 of 1998. So far non payment of salary/ wages Is concerned this Court directed the respondents to make payment of salary, if the petitioners have worked, within a period of two weeks from the date of receipt of copy of the order. The petitioners thereafter filed a Contempt petition being MJC No. 219 of 2000 and Cont. case No. 659 of 2002 for the non-compliance of the aforesaid direction.

3. Similar is the case in CWJC No. 3268/1999 wherein prayer has been made by the petitioners to regularize their services and absorb them permanently against the sanctioned vacant post. These petitioners also engaged as Superior Field Worker and Field Worker every year as seasonal worker for few months to carry out the work of spraying DDT.

4. The respondents case in the counter affidavit is that the petitioners are the seasonal spray workers. They are engaged as per the requirement and technical guidance of National Malaria Education Programme, Govt. of India, depending upon the endemicity of malaria. Their services are utilized during the transmission season of the year which never exceeds five months in a year and thereafter their services are automatically terminated. The respondents further stated that the spray staff of malaria affected areas were paid from establishment where as similarly situated staff of Kalazar affected district were paid on daily basis as per the rates approved by the Labour Department.

5. I have heard Mr. Prakash Chandra, learned counsel appearing for the petitioners and Mrs. I. Sen Choudhary, learned counsel appearing for the respondents.

6. Admittedly the petitioners are engages for a period of 4-5 months in every year under the special malarial eradication programme for the purpose of spray of DDT. However, it has not been disputed by the respondents that these petitioners were earlier getting salary and other allowances at par with the regular employees of the department.

7. So far absorption/regularization of the services of the petitioners is concerned this Court cannot issue mandamus directing their absorption/regularization in the facts and circumstances of the case. However, having regard to the fact that the respondents have been taking work from the petitioners every 4-5 months in a year for the last 19-20 years, the cases of the petitioners shall be considered as and when regular appointments are made and further their past experience and age relaxation shall be given due weightage.

8. So far payment of salary at par with the regular employee is concerned it is stated in the show cause filed by the respondents in Cont. Case No. 659/2002 that the DDT spray workers are paid daily wages from 1997-98 prior to filing of CWJC 2324/1998 and CWJC 2440/2000. In that view of the matter, this Court cannot direct the respondents to pay the salary to the petitioners as and when they are engaged at par with the regular employees.

9. Having regard to the facts and circumstances of the case CWJC No. 2324/ 1998 (R) is disposed of with the aforesaid direction. In view of the show cause filed in Cont. Case No. 659/2002 there is no need to proceed any further in the matter.

Same Court & Year Jharkhand · 2003 Same Parties Upendra Pandey and ors.;upendra Pandey and ors.;baijnath Maht... Same Subject Service Same Judge M.Y. Eqbal, J. Acts & Sections Service Law; Constitution of India - Article 226

Service