AzimuddIn Ansari Vs. Bharat Coking Coal Ltd. 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]. s.j. mukhopadhaya, j.1. this writ petition has been preferred by petitioner against the order as contained in letter no. bccl-pav/sc/superannuation/90-2167 -72 dated 20/28th march, 1993 whereby petitioner was informed that he will attain age of superannuation, 60 years, on 14th october, 1993 and will retire from the said date.further prayer has been made to direct the respondents to allow the petitioner to continue till 9th october, 1998 on the basis of actual/correct date of birth being 10th october, 1938.2. according to petitioner, his correct date of birth has been incorporated in the matriculation certificate as 10th october, 1938 which should be accepted by the respondents in preference to the date of birth allegedly appearing in the company's record without any basis.3. it appears that the petitioner was engaged as a ward boy in the central hospital, jagjiwan nagar. dhanbad in the year 1952 under the coal mines welfare organization, government of india. after ten years of appointment, he passed the matriculation examination held in 1962. therefore, the petitioner was appointed as junior clerk in 1963 and ultimately promoted to the post of senior clerk grade-i and then to the next higher post of special clerk.4. according to respondents, the petitioner having appeared in the matriculation examination after ten years of appointment, the date of birth recorded therein cannot be accepted. it has been brought to the notice of the court that at the time of initial appointment, the petitioner made it clear that he appeared in the test for appearance in the matriculation examination in the year 1952 from dhanbad academy and his date of birth is 15th october, 1933-he put his signature on 7th january, 1954 with designation ward boy, t.b. clinic, katras (annexure-a to the counter affidavit).in the service record where petitioner put his thumb and finger impressions, it was mentioned that his date of birth is 15th october, 1933 as accepted by the chief mining welfare commissioner vide his order dated 26th september, 1980. the deputy welfare commissioner. coal mines welfare organization, dhanbad put his signature on 31st january, 1981 with such note.in the year 1987, when the respondent-m/s. bccl forwarded a format showing details of his service history and asked him to put his signature with remarks, if any, the date of birth of petitioner was shown as 15th october, 1933. in the said format, the petitioner sighed on 20th september, 1987 and made no objection in the remarks column given in the format (annexure-e, to the counter affidavit).5. if the date of birth as per service record is accepted, then it is to be presumed that the petitioner was appointed at the age of 19 years in december, 1952. on the other hand, if the date of birth given by petitioner is accepted as 10th october, 1938, it is to be presumed that petitioner was appointed at the age of 14 years in december, 1952, which is doubtful.further, the date of birth of petitioner having recorded first in the year 1954 as 15th october, 1933, following by same date of birth recorded in the office of c.m.w.c. on 26th september, 1980, in the office of deputy welfare commissioner, dhanbad on 31st january, 1981 and shown in the format of m/s. b.c.c.l. in the year 1987, at the time of retirement of petitioner, it is not open for him to raise the disputed question of date of birth.6. the prayer as made by petitioner is rejected but the respondents are liable to pay the admitted retrial benefits to the petitioner as per interim order of this court dated 16th june, 2003 on the basis of date of retirement as shown by respondents.7. the writ petition is dismissed, with the aforesaid observations. however, there shall be no order, as to costs.