Vijay Kumar Das Vs. Union of India (Uoi) 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]. ordern.n. tiwari, j.1. in this writ application the petitioner has sought a direction on the respondents to dispose of his representation which has been made praying mutual reallocation of the cadre with his counterpart. it has been stated that after the allocation of cadre, the petitioner and his counterpart who was allocated jharkhand cadre made representation for mutual exchange of the cadre before the principal secretary, road construction department, jharkhand, but till date no order has been passed and in the meanwhile the petitioner has been ordered to be relieved with effect from 5.11.2006 after handing over the charge. the grievance of the petitioner is that in the similar circumstance the exchange of cadre has been allowed to several employee, but without any reason the said respondent has not disposed of the petitioner's representation till date and the petitioner is still under threat of his release (relieving) by virtue of notification no. 4595(5) dated 20.10.2006.2. learned counsel appearing on behalf of the state of jharkhand submitted that the principal secretary, road construction department, jharkhand has to pass order on the said representation and to send the same to his counterpart of the government of bihar. the petitioner has recently approached the said authority and without waiting for any order on his representation, he has filed this writ petition. it has been stated that the petitioner's representation shall be considered and appropriate order shall be passed by the concerned authorities.3. considering the submissions made by the learned counsel and in the circumstance of the case, this writ petition is disposed of, directing the principal secretary, road construction department, jharkhand to consider the petitioner's representation and pass appropriate order and send the same with all the necessary papers to his counterpart of the state of bihar within a period of two weeks from the date of receipt/production of a copy of this order. thereafter, the competent authority of the state of bihar shall consider the same and pass an appropriate order within a period of four weeks. it has been assured by learned counsel, for the state of jharkhand that the petitioner will not be disturbed in the meanwhile.

Judgment:
ORDER

N.N. Tiwari, J.

1. In this writ application the petitioner has sought a direction on the respondents to dispose of his representation which has been made praying mutual reallocation of the cadre with his counterpart. It has been stated that after the allocation of cadre, the petitioner and his counterpart who was allocated Jharkhand Cadre made representation for mutual exchange of the cadre before the Principal Secretary, Road Construction Department, Jharkhand, but till date no order has been passed and in the meanwhile the petitioner has been ordered to be relieved with effect from 5.11.2006 after handing over the charge. The grievance of the petitioner is that in the similar circumstance the exchange of cadre has been allowed to several employee, but without any reason the said respondent has not disposed of the petitioner's representation till date and the petitioner is still under threat of his release (relieving) by virtue of Notification No. 4595(5) dated 20.10.2006.

2. Learned Counsel appearing on behalf of the State of Jharkhand submitted that the Principal Secretary, Road Construction Department, Jharkhand has to pass order on the said representation and to send the same to his counterpart of the Government of Bihar. The petitioner has recently approached the said authority and without waiting for any order on his representation, he has filed this writ petition. It has been stated that the petitioner's representation shall be considered and appropriate order shall be passed by the concerned authorities.

3. Considering the submissions made by the learned Counsel and in the circumstance of the case, this writ petition is disposed of, directing the Principal Secretary, Road Construction Department, Jharkhand to consider the petitioner's representation and pass appropriate order and send the same with all the necessary papers to his counterpart of the State of Bihar within a period of two weeks from the date of receipt/production of a copy of this order. Thereafter, the competent authority of the State of Bihar shall consider the same and pass an appropriate order within a period of four weeks. It has been assured by learned Counsel, for the State of Jharkhand that the petitioner will not be disturbed in the meanwhile.