Basant Kumar Vs. Bihar State Electricity Board 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]. .....in the notice (annexure-b) it is stated that in 1992-93 some explanation was sought for from the petitioner for the non-supply of power in the patna city. it is further mentioned in the letter that petitioner's explanation was found satisfactory and he was exonerated from the charges. it is also alleged in the notice that petitioner submitted connection report of one consumer at a belated stage sometime in the year 1992 thereby board sustained a loss of rs. 1,85,731/- and that charge was prima facie found true'. the board therefore decided to proceed under rule 139 of the bihar service code. thee is nothing mentioned in the said notice that for the omission or commission any charge-sheet was issued or a departmental proceeding was initiated in the year 1992 or even thereafter till the date of superannuation of the petitioner.6. as noticed above, petitioner retired on 31.3.2001 and when leave encashment and commutation of pension amount was not paid, petitioner filed writ petition, after serving copy of the same to the counsel appearing for the respondent-board. copy was served on 11.2.2003. it is therefore clear that after receiving copy of the writ petition and having knowledge of filing of writ petition by the petitioner claiming leave encashment and commutation of pension, the impugned notice was issued on 7.4.2003. this shows the illegal and mala fide intention of the respondent-board to harass the petitioner. the said notice (annexure-b) has been challenged by the petitioner by filing a petition for amendment of the writ petition.7. taking into consideration the entire facts of the case, i am of the opinion that issuance of notice by the respondent-board purported to be under rule 139 of the bihar service code that too 3-4 years after superannuation is wholly unjustified.8. for the reasons aforesaid, this writ application is allowed and the impugned notice and so-called proceeding initiated by the respondent-board against the petitioner is quashed......