Diwakar Giri Vs. the State of Jharkhand and ors. - Court Judgment

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]. - 4. on going through the records as well as the order of the learned single judge, we are of the considered view that the learned single judge, having held that the superintendent of police, muzaffarpur, bihar, has no jurisdiction to terminate the services of the petitioner as he joined the state of jharkhand, ought not to have confirmed the order of the superintendent of police, dhanbad, jharkhand, who merely passed an order of termination only on the strength of the termination order passed by the superintendent of police, muzaffarpur, bihar. the learned single judge has failed to consider that the order dated 8.6.2005 passed by the superintendent of police, dhanbad, is only a consequential order to the main order passed by the superintendent of police, muzaffarpur, bihar. in the sphere of public employment, it is well settled that any action taken by the employer against an employee must be fair, just and. as pointed out by the supreme court, it is- well settled that any action taken by the department against the police constable must be fair, just and reasonable. therefore, we hold that both the orders, namely, orders of the superintendent of police, muzaffarpur, bihar as well as the order, which is the consequential order, passed by the superintendent of police, dhanbad, jharkhand, ought to be held invalid.1. diwakar giri, the petitioner-appellant, was appointed as a constable in the year 1996 at muzaffarpur. thereafter, he was transferred to (sic) in 1997. he also took training in the year 1999. after bifurcation and on formation of the jharkhand state, he joined the cadre of police of jharkhand. when he was working in jharkhand state, the superintendent of police, muzuffarpur, bihar, issued a memo dated 28.5.2005 terminating the service of the petitioner. on the basis of the said memo, the s.p., dhanbad, also passed an order confirming the termination. these two orders were under challenge before the learned single judge in w.p (s) no. 7184/2005.2. after hearing the counsel for the parties, the learned single judge set aside the order passed by the superintendent of police, muzuffarpur, bihar, terminating the service of the petitioner mainly on the ground that the petitioner was posted under the superintendent of police within the territory of jharkhand and after re-organization of the state, the superintendent of police, muzaffarpur, bihar, had no jurisdiction to terminate his service. however, the learned single judge, in the very same order, sustained the order of the superintendent of police, dhanbad, dated 8.6.2005 on the ground that his original appointment in muzaffarpur was not in accordance with the procedure and since the statutory provisions of the bihar police manual were not followed for appointment of the petitioner, the termination of the service of the petitioner by the superintendent of police, dhanbad, has to be held valid.3. we have heard the counsel for the appellant and the counsel for the respondents.4. on going through the records as well as the order of the learned single judge, we are of the considered view that the learned single judge, having held that the superintendent of police, muzaffarpur, bihar, has no jurisdiction to terminate the services of the petitioner as he joined the state of jharkhand, ought not to have confirmed the order of the superintendent of police, dhanbad, jharkhand, who merely passed an order of termination only on the strength of the termination order passed by the superintendent of police, muzaffarpur, bihar. the learned single judge has failed to consider that the order dated 8.6.2005 passed by the superintendent of police, dhanbad, is only a consequential order to the main order passed by the superintendent of police, muzaffarpur, bihar. once the main order is set aside on the ground of lack of jurisdiction, the consequently, the second order passed by the superintendent of police, dhanbad, also would become invalid. in this context, it would be appropriate to refer the judgments rendered in the cases of gulzar singh v. sub-divisional magistrate and anr. : air1999sc3803 and basudeo tiwary v. sido kanhu university and ors. : (1999)illj200sc . the relevant portion of the judgment in basudeo tiwary : (1999)illj200sc is contained in para 8 and 9, which is reproduced below:8. several contentions have been addressed by learned counsel on either side. however, for the purpose of disposal of this appeal, it is suffice to consider only one aspect of the matter and that is, whether the appellant had been given an opportunity of being heard before terminating his services and in the absence of the same, whether such termination is valid. the high court took the view that the appointment of the appellant made by the syndicate of the university by its resolution dated 24-1-1986 is illegal and on that basis' took the view that the termination of the services was in order but did not examine the aspect with which we are concerned in the present case as to the non-observance of the rule of audi alteram partem.9. the law is settled that non-arbitrariness is an essential facet of article 14 pervading the entire realm of state action governed by article 14. it has come to be established, as a further corollary, that the audi alteram partem facet of natural justice is also a requirement of article 14, for natural justice is the antithesis of arbitrariness. in the sphere of public employment, it is well settled that any action taken by the employer against an employee must be fair, just and. reasonable which are the components of fair treatment. the conferment of absolute power to terminate the services of an employee is an antithesis to fair, just and reasonable treatment. this aspect was exhaustively considered by a constitution bench of this court in delhi transport corpn. v. d.t.c muzdoor congress.in the light of the observations made by the supreme court in the above case, it is clear that the issue whether the original appointment was (sic) made or not is not the point for consideration before the learned single judge. even assuming that the appointment was not made in accordance with the rules and regulations, the authority concerned should conduct an enquiry and give an opportunity to the persons concerned in order to enable him to establish that the appointment was legal. admittedly; no such opportunity has been given to the petitioner by the authority concerned before concluding that the appointment was illegal. as pointed out by the supreme court, it is- well settled that any action taken by the department against the police constable must be fair, just and reasonable. if the opportunity has not been given before holding that his appointment is irregular and unauthorized, it amounts to (sic) of natural justice. therefore, we hold that both the orders, namely, orders of the superintendent of police, muzaffarpur, bihar as well as the order, which is the consequential order, passed by the superintendent of police, dhanbad, jharkhand, ought to be held invalid. therefore, we set aside the same l.p.a. allowed.