Om Prakash Pandey Vs. State of Jharkhand Through the Secretary, Human Resources Department 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]. orderr.r. prasad, j.1. learned counsel appearing for the petitioner is permitted to implead the deputy commissioner, deoghar as party respondent no. 7 in this case.2. heard learned counsel appearing for the petitioner and learned counsel appearing for the respondents.3. learned counsel appearing for the petitioner submits that earlier when it was brought to the notice of the patna high court in a writ application, bearing cwjc no. 6819 of 1991 that certain teachers have been illegally appointed and have been working since long, the court, vide its order dated 23.11.1992 passed an order directing the director, secondary education, government of bihar, patna to take a decision in the matter after giving due opportunity of hearing to the affected persons and thereupon, the director passed an order, vide annexure 2 whereby services of the respondent no. 6 along with others were terminated under memo no. 1389 dated 7.12.1993 but in spite of that, respondent no. 6 is still in service and authorities have kept silence in the matter, though the petitioner brought to the notice of all the respondents but no decision on that matter has been taken.4. in view of the facts and circumstances, as stated above, this writ application is disposed of with a direction to the petitioner to file a fresh representation in this regard before the deputy commissioner, deoghar, respondent no. 7 within a period of one month and on getting such representation, respondent no. 7 shall pass an order after hearing the concerned person, le., respondent no. 6 within a period of six weeks.5. with the aforesaid direction/observation, this writ petition is disposed of.

Judgment:
ORDER

R.R. Prasad, J.

1. Learned Counsel appearing for the petitioner is permitted to implead the Deputy Commissioner, Deoghar as party respondent No. 7 in this case.

2. Heard learned Counsel appearing for the petitioner and learned Counsel appearing for the respondents.

3. Learned Counsel appearing for the petitioner submits that earlier when it was brought to the notice of the Patna High Court in a writ application, bearing CWJC No. 6819 of 1991 that certain teachers have been illegally appointed and have been working since long, the Court, vide its order dated 23.11.1992 passed an order directing the Director, Secondary Education, Government of Bihar, Patna to take a decision in the matter after giving due opportunity of hearing to the affected persons and thereupon, the Director passed an order, vide Annexure 2 whereby services of the respondent No. 6 along with others were terminated under memo No. 1389 dated 7.12.1993 but in spite of that, respondent No. 6 is still in service and authorities have kept silence in the matter, though the petitioner brought to the notice of all the respondents but no decision on that matter has been taken.

4. In view of the facts and circumstances, as stated above, this writ application is disposed of with a direction to the petitioner to file a fresh representation in this regard before the Deputy Commissioner, Deoghar, respondent No. 7 within a period of one month and on getting such representation, respondent No. 7 shall pass an order after hearing the concerned person, le., respondent No. 6 within a period of six weeks.

5. With the aforesaid direction/observation, this writ petition is disposed of.