Brundaban Padhi Vs. State of Orissa

.....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]. - 2. law is well settled that if the punishment tentatively proposed against a civil servant is of a lesser kind, but after hearing his representation he is awarded a.....g.k. misba, c.j.1. the petitioner was an aniin in the hirakud land organisation. certain charges were framed against him alleging misconduct. after the enquiry was over. government in the political and services department communicated their tentative decision to discharge the petitioner from service and he was asked to show cause. the petitioner showed cause. ultimately, however, the petitioner was dismissed by the order of the collector dated 20-3-65, and a direction was also issued to realise rs. 343-85 from him representing half the misappropriated amount.the writ application has been filed under articles 226 and 227 of the constitution saying that the order so passed was without jurisdiction and must be set aside.2. law is well settled that if the punishment tentatively proposed against a civil servant is of a lesser kind, but after hearing his representation he is awarded a graver form of punishment, there is non-compliance with the provisions of article 311(2) of the constitution. 'discharge' has been accepted as a punishment lesser than 'dismissal'. (see dayanidhi rath v. b.s. mohanty, air 1955 orissa 33). this has been followed in s.k. pandey v. state of bihar, 1967 bljr 58.3. on the accepted position that the proposed punishment was one of discharge, but the ultimate punishment inflicted was one of dismissal the order cannot be supported. the impugned order is accordingly set aside and the writ application is allowed with costs. hearing fee rs. 100/- (one hundred).b.n. misra, j.4. i agree.