Mrs. Tapaswini Devi Vs. State of Jharkhand and ors.

Mrs. Tapaswini Devi vs State of Jharkhand and ors.

Type Court Judgment Court Jharkhand Decided Nov 28, 2002

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Citation: sooperkanoon.com/523137
Court: Jharkhand High Court
Judge: Tapen Sen, J.
Decided On: Nov 28, 2002
Case Number: WP (S) No. 4161 of 2001
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 21

Parties & Advocates

Appellant / Petitioner

Mrs. Tapaswini Devi

Advocate Arshad Hussain, Adv.

Respondent

State of Jharkhand and ors.

Advocate G.N. Chandra, Adv. for Respondents No. 2 to 5 and; A. Banerjee, JC to GA

Legal References

Acts: Service Law; Constitution of India - Article 21
Reported In: [2003(1)JCR408(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]. - chandra, learned counsel however drew attention of this court to paragraph 11 of the counter affidavit wherein it has been stated that the financial position of the..........been working since 29.6.1994 on daily wages after she had been given compassionate appointment on account of the death of her husband, subodh chandra mishra who was working as an assistant in the bank and who died on 26.34.1993. the aforementioned fact relating to the working of the petitioner in the status of a daily wager has not been denied by the respondents. on the contrary, at paragraph 7 there is an admission that it is true that the petitioner had been appointed on the post of peon on compassionate grounds on daily wages.4. mr. g.n. chandra, learned counsel for the respondents nos. 2 to 5 has drawn the attention of this court to paragraph 10 of the counter affidavit and has submitted that this particular bank is facing financial crisis and that there is already an order in cwjc no. 5466 of 1992 holding that in no case appointments shall be made in any co-operative institution which is facing financial crisis.5. however, what is important to note is that in the entire counter affidavit, nothing in detail has been stated in support of the submissions of mr. g.n. chandra to the effect that the bank is facing financial crises. therefore, no reliance can be made to the aforementioned submissions which remains only a submission made before this court without any positive statement recorded in the counter affidavit.6. mr. chandra, learned counsel however drew attention of this court to paragraph 11 of the counter affidavit wherein it has been stated that the financial position of the bank is not good but inspite thereof and on the basis of the representation of the petitioner, a committee was formed and it was decided that the petitioner was over-age and at present she was 40 years of age and so her case was not considered by the committee as being time barred. no supportive document has been supplied nor any statement has been given as to when was the decision taken. such a decision was necessary to find out as to when did the petitioner cross the age of 40.....

Full Judgment

ORDER

Tapen Sen, J.

1. Heard Mr. Arshad Hussain, learned counsel for the Petitioner and Mr. G.N. Chandra, learned counsel for the Respondent Nos, 2 to 5 Mr. Atanu Banerjee, learned Junior Counsel to the Government Advocate is also present in Court representing respondent No. 1.

2. At the very outset, Mr. Arshad Hussain, learned counsel for the Petitioner craves leave of this Court to be allowed to implead the Registrar, Co-operative Societies, Government of Jharkhand, Ranchi as respondent No. 6. He is permitted to do so.

3. The petitioner has been working since 29.6.1994 on daily wages after she had been given compassionate appointment on account of the death of her husband, Subodh Chandra Mishra who was working as an Assistant in the Bank and who died on 26.34.1993. The aforementioned fact relating to the working of the Petitioner in the status of a daily wager has not been denied by the respondents. On the contrary, at paragraph 7 there is an admission that it is true that the petitioner had been appointed on the post of peon on compassionate grounds on daily wages.

4. Mr. G.N. Chandra, learned counsel for the respondents Nos. 2 to 5 has drawn the attention of this Court to paragraph 10 of the counter affidavit and has submitted that this particular bank is facing financial crisis and that there is already an order in CWJC No. 5466 of 1992 holding that in no case appointments shall be made in any Co-operative Institution which is facing financial crisis.

5. However, what is important to note is that in the entire counter affidavit, nothing in detail has been stated in support of the submissions of Mr. G.N. Chandra to the effect that the Bank is facing financial crises. Therefore, no reliance can be made to the aforementioned submissions which remains only a submission made before this Court without any positive statement recorded in the counter affidavit.

6. Mr. Chandra, learned counsel however drew attention of this Court to paragraph 11 of the counter affidavit wherein it has been stated that the financial position of the bank is not good but inspite thereof and on the basis of the representation of the petitioner, a committee was formed and it was decided that the Petitioner was over-age and at present she was 40 years of age and so her case was not considered by the committee as being time barred. No supportive document has been supplied nor any statement has been given as to when was the decision taken. Such a decision was necessary to find out as to when did the petitioner cross the age of 40 years.

7. It is the admitted case of the parties that the petitioner had been appointed on 29.6.1994. The counter affidavit has been filed in the year 2002 and it has not been stated as to when did the petitioner has cross the age of 40 years. Additionally, the age bar does not appear to be a reasonable ground taking into consideration the circular of the Government of Bihar which has been brought on record by the writ petitioner as Annexure 4.

8. This Court also does take note of the fact that the petitioner has been working uninterruptedly as a daily wager since 29.6.1994 and she certainly therefore does have a legitimate expectation of having a fair deal at the hands of the respondents. The right to life as enshrined in Article 21 of the Constitution of India includes the right to live decently and a legitimate expectation of the petitioner to the effect that after a certain period of time her services would be regularized and she would be given a regular pay scale cannot be said to be an unreasonable expectation. However, this Court is not the appointing authority of the petitioner and therefore this Court cannot issue a letter regularizing the services as this has to be done at the hands of the respondents themselves. It is stated by Mr. G.N. Chandra that the respondents after considering her case inspite of financial difficulties appointed her on the post of peon on daily wages and that is not arbitrary. This Court does not understand the import of the aforementioned statement inasmuch it is a mere bald submission saying that inspite of financial difficulties they considered it appropriate to appoint the petitioner and by having appointed the petitioner as peon, such an appointment as daily wager is not arbitrary. Such a stand runs counter to the job security.

9. Considering the facts and circumstances of this case and also taking into consideration the limitations of this Court under Article 226 of the Constitution of India, this Court considers it desirable that an opportunity should be given to the respondents to look into the matter and pass an order in accordance with law after taking into consideration the observations made herein. The Petitioner is given liberty to file a fresh representation annexing all documents which she wants to rely upon within three weeks from the date of receipt of the certified copy of this order before the Respondent No. 6. Since this matter has been pending for such a long time, it is expected that the Registrar (respondent No. 6) will dispose off the representation with all expedition at its disposal but not beyond the period of six months from the date of receipt of the representation.

10. With the aforementioned observations and directions, this Writ Application is disposed off. However, there shall be no order as to costs.

11. Let a copy of this order be handed over to Mr. G.N. Chandra, learned counsel for the respondent Nos. 2 to 5.

Same Court & Year Jharkhand · 2002 Same Parties Mrs. Tapaswini Devi vs State of Jharkhand and ors. Same Subject Service Same Judge Tapen Sen, J. Acts & Sections Service Law; Constitution of India - Article 21

Service