Joint Director of Agriculture (Engg.) Vs. Banambar Routray - Court Judgment

Excerpt:
- state financial corporations act, 1951 [63/1951]. section 29; [p.k. tripathy, a.k. parichha & n.prusty, jj] discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. -- state financial corporations act, 1951. section 29; discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. - on the conduct of the petitioner we are satisfied that there is absolutely no force in the stand taken on the merit of the dispute, namely, that the tribunal has no jurisdiction to entertain the dispute in question as it is not an industrial dispute.order1. this writ application under articles 226 and 227 of the constitution is directed against an order of the industrial tribunal refusing to set aside an ex pane award made by it on the ground that there is no provision under the industrial disputes act or the rules made thereunder for restoration of a dispute by setting aside the ex parte award. the tribunal is a party to present writ application though we have been asked to issue writ directing the presiding officer of the industrial tribunal, orissa to hear the petition afresh. under the rules framed by this court the tribunal was a necessary party. in the absence of the tribunal this writ application would not be maintainable.2. even upon merit we do not think the petitioner has a case. the opposite party was appointed as a foreman in the central work-shop-cum-implement production centre, bhubaneswar. over the termination of service of the opposite party a dispute arose and a conciliation proceeding followed. the petitioner participated. then the state government made a reference treating this to be an industrial dispute to the tribunal for determination. before the tribunal the petitioner participated. but on the date of hearing there was a default. under rule 23 of the orissa industrial disputes rules, 1959, the proceeding was conducted ex parte and an ex parte award followed. an application for restoration of the industrial dispute by setting aside the award was made but belatedly. that application has not been entertained by the tribunal on the ground that he has no jurisdiction to reopen the matter. the present writ application was directed against this order of the tribunal. we do not propose to decide as to whether the tribunal had jurisdiction to reopen the matter. on the conduct of the petitioner we are satisfied that there is absolutely no force in the stand taken on the merit of the dispute, namely, that the tribunal has no jurisdiction to entertain the dispute in question as it is not an industrial dispute. the petitioner had participated at different stages in the proceeding both before and after the reference. before the tribunal in the written statement this plea had not at all been raised. for the first time in the writ petition this objection is being raised. the objection as such cannot be disposed of without determination of certain facts and if the challenge had been made before the tribunal, facts relevant for the purpose would have been found. in the circumstances, we do not propose to interfere in this matter. we would accordingly dismiss the petition. there would be no order as to costs.

Judgment:
ORDER

1. This writ application under Articles 226 and 227 of the Constitution is directed against an order of the Industrial Tribunal refusing to set aside an ex pane award made by it on the ground that there is no provision under the Industrial Disputes Act or the Rules made thereunder for restoration of a dispute by setting aside the ex parte award. The Tribunal is a party to present writ application though we have been asked to issue writ directing the Presiding Officer of the Industrial Tribunal, Orissa to hear the petition afresh. Under the Rules framed by This Court the Tribunal was a necessary party. In the absence of the Tribunal this writ application would not be maintainable.

2. Even upon merit we do not think the petitioner has a case. The opposite party was appointed as a foreman in the Central Work-shop-cum-implement Production Centre, Bhubaneswar. Over the termination of service of the opposite party a dispute arose and a conciliation proceeding followed. The petitioner participated. Then the State Government made a reference treating this to be an industrial dispute to the Tribunal for determination. Before the Tribunal the petitioner participated. But on the date of hearing there was a default. Under Rule 23 of the Orissa Industrial Disputes Rules, 1959, the proceeding was conducted ex parte and an ex parte award followed. An application for restoration of the industrial dispute by setting aside the award was made but belatedly. That application has not been entertained by the Tribunal on the ground that he has no jurisdiction to reopen the matter. The present writ application was directed against this order of the Tribunal. We do not propose to decide as to whether the Tribunal had jurisdiction to reopen the matter. On the conduct of the petitioner we are satisfied that there is absolutely no force in the stand taken on the merit of the dispute, namely, that the Tribunal has no jurisdiction to entertain the dispute in question as it is not an industrial dispute. The petitioner had participated at different stages in the proceeding both before and after the reference. Before the Tribunal in the written statement this plea had not at all been raised. For the first time in the writ petition this objection is being raised. The objection as such cannot be disposed of without determination of certain facts and if the challenge had been made before the Tribunal, facts relevant for the purpose would have been found. In the circumstances, we do not propose to interfere in this matter. We would accordingly dismiss the petition. There would be no order as to costs.