Smt. Champa KamIn Vs. Employees in Relation to the Management of Tegulmari Colliery - 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]. - 2. from the facts recorded in the impugned order as also in the award passed by the industrial tribunal, it is clear that the appellant-workman had not complained against the entry in regard to her date of birth in the service record as her date of birth at the time of entry into the service was recorded on the basis of an oral assertion to which she never objected and only after 25 years of service she came up with a case that her age be assessed by a medical board.1. this appeal has been preferred against the order dated 13.5.2c08 passed by the learned single judge in w.p. (l) no. 5019 of 2003, by which the learned single judge had been pleased to allow the writ petition preferred by the respondent-employer by setting aside the award passed by the central industrial tribunal, dhanbad which had directed the management to assess the age of the concerned workman-smt. champa kamin, at the fag end of her service.2. from the facts recorded in the impugned order as also in the award passed by the industrial tribunal, it is clear that the appellant-workman had not complained against the entry in regard to her date of birth in the service record as her date of birth at the time of entry into the service was recorded on the basis of an oral assertion to which she never objected and only after 25 years of service she came up with a case that her age be assessed by a medical board. a reference in this regard was therefore initiated and although the reference was decided in favour of the appellant-workman and the tribunal appears to have granted the relief to the appellant-workman, the same was granted without any evidence to the effect that her date of birth had been wrongly recorded.3. learned counsel for the employer-respondent invited the attention of this court to the fact that although the appellant raised a dispute regarding the entry of her date of birth in the service record, the fact of the matter is that in pursuance to a circular issued by the employer-bccl, the date of birth was communicated to the appellant and thereafter objections also were invited from all concerned to the effect that if any correction was required, the same be raised at the earliest. this notice was issued to the appellant way back in the year 1987 but she did not raise any objection and yet a plea has been raised on her behalf before the court below that she had been taken unawares regarding the entry of her date of birth, which has no legal basis. the stand of the respondent-bccl thus gets fortified by the fact that she has raised a dispute regarding correction of her date of birth for the first time after 25 years of her service.4. we have perused the impugned order passed by the learned single judge and it could be noticed therein that the appellant-workman had requested for assessment of her age by a medical board after discharging the services for more than 25 years. the learned single judge, therefore, appears to be correct in observing that there is no such provision allowing a workman to challenge the entry of date of birth at the fag end of her service or after such a long lapse of 25 years. the learned single judge, therefore, has rightly set aside the order passed by the tribunal, which had directed that the age of the appellant be assessed by a medical board, although no evidence or explanation had been offered by the appellant-workman as to why she could not challenge the entry in regard to her date of birth for more than 25 years and what was the occasion to challenge the same only when the date of superannuation arrived.5. under the circumstance, the impugned order requires no interference. consequently, the appeal is dismissed at the admission stage itself.