State of Bihar and ors. Vs. Dr. Kirti NaraIn Jha and ors.

State of Bihar and ors. vs Dr. Kirti NaraIn Jha and ors.

Disposition Appeal dismissed Court Jharkhand Decided Apr 01, 2003

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Citation: sooperkanoon.com/523029
Court: Jharkhand High Court
Judge: Gurusharan Sharma and; Amareshwar Sahay, JJ.
Decided On: Apr 01, 2003
Case Number: LPA No. 441 of 2002
Subject: Service
Disposition: Appeal 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: Appeal dismissed
Acts & sections: Service Law; Bihar Pension Rules, 1950 - Rule 43

Parties & Advocates

Appellant / Petitioner

State of Bihar and ors.

Advocate A. Allam, Adv.

Respondent

Dr. Kirti NaraIn Jha and ors.

Advocate V.P. Singh, Sr. Adv. and; Sat Prakash, Adv. for respondent No. 1

Legal References

Acts: Service Law; Bihar Pension Rules, 1950 - Rule 43
Reported In: [2004(1)JCR519(Jhr)]

Excerpt

.....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]. - we are satisfied that delay in filing the appeal has properly been explained. 1 has already received his retiral benefits, like pension etc......as he was already involved in so many criminal cases. mr. allam, therefore, submitted that, the impugned order dated 19.11.2001 is fit to be set aside.7. it is not in dispute that during the period (1.2.1992 to 31.10.1994) for which the promotion had to be given to the respondent no. 1, no case was lodged or was pending against him. he was already promoted after his retirement with retrospective effect from 1.2.1992 up to 31.10.1994, the date he retired. so far as arrears of his salary was concerned, it was to be paid after necessary order of the finance department. the approval of the finance department was given on 23.2.2000, but for no reason the respondent no. 1's name was not included in the said communication dated 23.2.2000. in our view, on account of pendency of the criminal case against the respondent no. 1, he cannot be deprived of the monetary benefits of his promotion, which was already approved by the finance department and if so required necessary orders be passed under section 43(b) of the bihar pension rules against him, in accordance with law.8. we find no reason to interfere with the impugned order/direction given by the learned single judge in wp (s) no. 4283 of 2001. there is no merit in the appeal. it is dismissed.

Full Judgment

ORDER

1. Heard the parties. This Letters Patent Appeal has been filed by the State of Bihar and others against the order dated 19.11.2001, passed by the learned Single Judge, in WP (S) No. 4283 of 2001, which was filed by the respondent No. 1. According to Stamp Report dated 11.6.2002, the limitation for filing the appeal expired on 19.12.2001, whereas it was filed on 3.9.2002. Hence I.A. No. 1573 of 2002 (at flag 'L') has been field by the appellants to condone the said delay, for the reason stated therein. We are satisfied that delay in filing the appeal has properly been explained. We, therefore, condone the delay in filing the appeal.

2. On 31.10.1994, the respondent No. 1 retired from the post of Regional Director, Department of Animal Husbandry, South Chotanagpur, Ranchi. By Notification dated 9.1.1996, the employees of the Animal Husbandry Department were allowed promotion to the revised scale of pay of Rs. 4100-5300/-, with retrospective effect from 1.2.1992. The respondent No. 1 also claimed the same benefit, but it was denied by the State Government on the ground that since he had already retired on 31.10.1994, he was not entitled thereto. He, therefore, filed WP (S) No. 4283 of 2001 in this Court and prayed for a direction to the respondents to give him the benefit of promotion, pursuant to the Notification dated 9.1.1996.

3. It is not denied that the name of respondent No. 1 figured at serial No. 30 of the said notification showing his date of promotion as 1.2.1992. It was indicated in the notification that the benefits would be allowed, after necessary approval of the Finance Department.

4. The respondent No. 1 has already received his retiral benefits, like pension etc. but the revised scale of pay in terms of the notification in question was not given to him. In the year 1996, the respondent No. 1 along with several others, including Dr. Brahma Shankar Sahay were made accused in the criminal cases of the department. However, no proceeding either under Rule 43(b) or (a) of the Bihar Pension Rules has been started against him after his retirement. Dr. Brahma Shankar Sahay filed CWJC No. 3696 of 2000 (R) in this Court, which was disposed of on 26.2.2001, with a direction to the respondents to fix his salary in the proper revised scale, taking into consideration the notification in question and pay the consequential benefits, including the arrears of salary.

5. Learned Single Judge, therefore, disposed of the writ petition of the respondent No. 1 by impugned order dated 19.11.2001 in terms of order dated 26.2.2001 passed in said CWJC No. 3696 of 2000 (R). His case was also remitted to the respondents with a direction to fix his salary in the proper revised scale for the period from 1.2.1992 to 31.10.1994, taking into consideration the notification dated 9.1.1996 and pay the consequential benefits including the arrears of salary. Respondents were also directed to revise the pension/ gratuity/leave encashment accordingly and pay rest of the dues.

6. Mr. A. Allam, counsel for the appellants submitted that the respondent No. 1 is accused in several criminal cases relating-to Fodder Scam of the department and the proceeding under Rule 43(a) of the Bihar Pension Rules has already been initiated against him. Further, the Finance Department had also not approved his case for the said benefit, as he was already involved in so many criminal cases. Mr. Allam, therefore, submitted that, the impugned order dated 19.11.2001 is fit to be set aside.

7. It is not in dispute that during the period (1.2.1992 to 31.10.1994) for which the promotion had to be given to the respondent No. 1, no case was lodged or was pending against him. He was already promoted after his retirement with retrospective effect from 1.2.1992 up to 31.10.1994, the date he retired. So far as arrears of his salary was concerned, it was to be paid after necessary order of the Finance Department. The approval of the Finance Department was given on 23.2.2000, but for no reason the respondent No. 1's name was not included in the said communication dated 23.2.2000. In our view, on account of pendency of the criminal case against the respondent No. 1, he cannot be deprived of the monetary benefits of his promotion, which was already approved by the Finance Department and if so required necessary orders be passed under Section 43(b) of the Bihar Pension Rules against him, in accordance with law.

8. We find no reason to interfere with the impugned order/direction given by the learned single Judge in WP (S) No. 4283 of 2001. There is no merit in the appeal. It is dismissed.

Same Court & Year Jharkhand · 2003 Same Parties State of Bihar and ors. vs Dr. Kirti NaraIn Jha and ors. Same Subject Service Same Judge Gurusharan Sharma and; Amareshwar Sahay, JJ. Acts & Sections Service Law; Bihar Pension Rules, 1950 - Rule 43

Service