Vimla Devi Vs. 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]. - k roy learned counsel for the respondents on the basis of the averments made in the counter affidavit filed by the managing director, central cooperative bank limited, hazari-bagh has submitted that from the report of district audit officer which was published on 8.11.2000 some defalcation was detected against the late husband of the petitioner and the district audit officer had recommended for prosecution and therefore, retiral benefits of late husband of the petitioner has been withheld by the bank.orderamareshwar sahay, j.1. this writ application is by the widow of late uma shankar prasad who died in harness on 4.4.1999 while he was posted as branch manager in central cooperative bank, kuju (hazaribagh), for a direction to the respondents for payment of gratuity and leave encashment along with interest @ 18% per annum, which according to her, has not been paid by the respondents illegally inspitc of the fact that she made several representation to the respondents but to no effect,2. mr. c.s. prasad learned counsel for the petitioner has submitted that in view of the decision in the case of rebati raman kanth v. chairman, bihar state electricity board and ors., reported in 2000(1) pljr 192 and in the case of godawari devi v. the state of bihar and ors., reported in 1997(1) pljr 538 the petitioner is entitled to gratuity and leave encashment as legal due.3. on the other hand mr. m.k roy learned counsel for the respondents on the basis of the averments made in the counter affidavit filed by the managing director, central cooperative bank limited, hazari-bagh has submitted that from the report of district audit officer which was published on 8.11.2000 some defalcation was detected against the late husband of the petitioner and the district audit officer had recommended for prosecution and therefore, retiral benefits of late husband of the petitioner has been withheld by the bank.4. a vague statement has been made in paragraphs 14 and 16 of the counter affidavit that the award case being case no. 1 of 2002 was filed by the bank for a sum of rs. 2,87,621/- including interest up to 31.12.2001 before the joint registrar, cooperative society, north chhotanagpur division.5. nothing has been stated as to how the said award case is connected with the grievance of the petitioner. nowhere it has been stated that in the award case the petitioner is a party. no document of any kind has been annexed with the counter affidavit in support of the statements made therein.6. having heard the learned counsel for the parties and relying on the decision in the case of rebati raman kanth v. chairman, bihar state electricity board and ors., reported in 2000(1) pljr 192 and in the case of godawari devi v. the state of bihar and ors., reported in 1997 (1) pljr 538, i find that the respondents have illegally withheld the gratuity and leave encashment of the late husband of the petitioner which she is entitled to receive after death of her husband. i also find that widow has been deprived with the said amount for more than four years.7. in view of my discussions and findings above this application is allowed. respondents authorities are directed to pay gratuity and leave encashment amount legally payable to the petitioner within the period of two months from the date of receipt/production of a copy of this order. since the petitioner has been sufficiently harassed at the hands of respondents and therefore, in my opinion, she is entitled to cost which is assessed at rs. 2000/-. the amount of cost shall be paid to the petitioner along with the amount of gratuity and leave encashment within time specified above.

Judgment:
ORDER

Amareshwar Sahay, J.

1. This writ application is by the widow of late Uma Shankar Prasad who died in harness on 4.4.1999 while he was posted as Branch Manager in Central Cooperative Bank, Kuju (Hazaribagh), for a direction to the respondents for payment of gratuity and leave encashment along with interest @ 18% per annum, which according to her, has not been paid by the respondents illegally inspitc of the fact that she made several representation to the respondents but to no effect,

2. Mr. C.S. Prasad learned counsel for the petitioner has submitted that in view of the decision in the case of Rebati Raman Kanth v. Chairman, Bihar State Electricity Board and Ors., reported in 2000(1) PLJR 192 and in the case of Godawari Devi v. The State of Bihar and Ors., reported in 1997(1) PLJR 538 the petitioner is entitled to gratuity and leave encashment as legal due.

3. On the other hand Mr. M.K Roy learned counsel for the respondents on the basis of the averments made in the counter affidavit filed by the Managing Director, Central Cooperative Bank Limited, Hazari-bagh has submitted that from the report of District Audit Officer which was published on 8.11.2000 some defalcation was detected against the late husband of the petitioner and the District Audit Officer had recommended for prosecution and therefore, retiral benefits of late husband of the petitioner has been withheld by the Bank.

4. A vague statement has been made in paragraphs 14 and 16 of the counter affidavit that the Award case being case No. 1 of 2002 was filed by the Bank for a sum of Rs. 2,87,621/- including interest up to 31.12.2001 before the Joint Registrar, Cooperative Society, North Chhotanagpur Division.

5. Nothing has been stated as to how the said award case is connected with the grievance of the petitioner. Nowhere it has been stated that in the award case the petitioner is a party. No document of any kind has been annexed with the Counter affidavit in support of the statements made therein.

6. Having heard the learned counsel for the parties and relying on the decision in the case of Rebati Raman Kanth v. Chairman, Bihar State Electricity Board and Ors., reported in 2000(1) PLJR 192 and in the case of Godawari Devi v. The State of Bihar and Ors., reported in 1997 (1) PLJR 538, I find that the respondents have illegally withheld the gratuity and leave encashment of the late husband of the petitioner which she is entitled to receive after death of her husband. I also find that widow has been deprived with the said amount for more than four years.

7. In view of my discussions and findings above this application is allowed. Respondents authorities are directed to pay gratuity and leave encashment amount legally payable to the petitioner within the period of two months from the date of receipt/production of a copy of this order. Since the petitioner has been sufficiently harassed at the hands of respondents and therefore, in my opinion, she is entitled to cost which is assessed at Rs. 2000/-. The amount of cost shall be paid to the petitioner along with the amount of gratuity and leave encashment within time specified above.