Neshtar Kaur and Three ors. Vs. Arbail Singh and ors. - Court Judgment

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- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - that is why it has been clearly spelt out in the notification applies to all fees payable for filing or instituting cases or proceedings (underlining for emphasis). thus the inevitable conclusion is that court-fees are payable in the present appeals.a. pasayat, j. 1. appellants-petitioners (hereinafter referred to as the claimants) submit that they are not required to pay the court-fee for entertaining the appeal.2. claims were lodged by the claimants claiming compensation for untimely death of one atma singh (hereinafter referred to as. the 'deceased') and for injuries sustained by claimant neshtar. the second motor accidents claims tribunal, cuttack (in short, the 'tribunal') quantified the compensation at rs. 1,20,000/- for the death and rs. 60,000/- for the injuries, but directed the same to be paid by the owner of the vehicle (orb 6093). in these appeals under section 173 of the motor vehicles act, 1988 (in short, the 'act') apart from the question of correctness of the award, the claimants have taken a stand that the tribunal should have hold that the new india assurance co. ltd., (hereinafter referred to as the 'insurer') was liable to indemnify the award. court-fee payable as per the slab provided in the orissa motor vehicles (accidents claims tribunals) rules, 1960 (in short, the tribunals rules') is rs. 600/-for misc. appeal no. 260. of 1994, and rs. 225/-for misc. appeal no. 259 of 1994. the appeals were filed on 13-5-1994. stamp reporter pointed out that requisite court-fees are to be paid. but, reliance was placed by the learned counsel for claimants on a notification of the law department, govt. of orissa dated the 7th june, 19947 published in the extraordinary gazette no. 670 dated 10th june, 1994 to submit that court-fees are not payable. the said notification reads as follows :law departmentnotification the 7th june, 1994 s.r.o. no. 575/1994--in exercise of the powers conferred by section 35 of the court-fees act, 1870 (vii of 1870), the state government do hereby remit in the whole of the state of orissa all fees mentioned in schedules i and ii to the said act payable for filing or instituting cases or proceedings in any court in orissa by the following categories of persons, namely: (i) member of scheduled castes. (ii) member of scheduled tribes, (iii) women, (iv) minors, (v) physically, handicapped persons, (vi) persons whose annual income does not exceed twelve thousand rupees, and (vii) persons who are otherwise entitled to legal aid under the orissa state legal aid and advice scheme, 1981. explanation-for the purpose of this notification : (i) 'member of scheduled castes' means a member of any caste, race or tribe or part of or group within a caste, race or tribe specified as such with respect to the state of orissa under article 341 of the constitution of india, and (ii) 'member of scheduled tribes' mean a member of any tribe, tribal community or part of or group within a tribe or tribal community specified as such with respect to the state of orissa under article 342 of the constitution of india. (no. 8244-ii-j-15/1993-l.) by order of the governor p.k. panigrahi secretary to government.' placing reliance on the said notification it is stated that the claimants belong to exempted category of persons, and therefore are not required to pay any court-fee. the stamp reporter pointed out that the appeals were filed prior to the issue of notification, and therefore, court-fees are payable, 3. mr. b.k. misra, learned counsel for the claimants-appellants submitted that since the notification came to operation when the appeals were pending and court-fees had not been paid, the notification applied, and therefore, the court-fees are not to be paid. alternatively it is submitted that they may be exempted from payment of court-fees as provided in rule 22 of the tribunals rules.4. so far as applicability of notification to the facts of the present case is concerned, it is clear that the notification applies only to those cases or proceedings which are filed or instituted after the notification came into force. the notification makes it clear that persons belonging to the enumerated categories are entitled to remission of court-fees in respect of ail fees mentioned in schedules i and ii of the court-fees act, 1870 (in short, the 'court-fees act') payable for filing or instituting cases or proceedings in any court in orissa. the notification is applicable to cases filed or instituted after the notification came into force, and has no application so far as pending cases are concerned. any other interpretation may lead to anomalous situation. for example, two appellants may have filed appeals prior to the date on which the notification came into operation. one may have paid full court-fees payable, and the other may have applied for extension of time to make the payment. if he is allowed to get the benefit of remission he would get a benefit, and the one who has paid the court-fees does not get it. this is certainly not the intention of legislature. that is why it has been clearly spelt out in the notification applies to all fees payable for filing or instituting cases or proceedings (underlining for emphasis). thus the inevitable conclusion is that court-fees are payable in the present appeals.5. the residual question is whether rule 22. of the tribunals rules has any application. the said rule empowers the claims tribunals to exempt from payment of fee prescribed under sub-rule (1) thereof. where a claim of a party has been accepted by the claims tribunal, the party shall have to pay the prescribed fee exemption in respect of which has been granted initially before a copy of the judgment is obtained. though there is no specific provision for the appellate court, in view of aforesaid prescription in the tribunals rules, 1 exercise power to exempt the appellants-petitioners from payment of court-fee, on the general maxim that the appellate court can exercise same power as is being exercised by the trial court. the exemption from payment of court-fee in the appeals is subject to the proviso to sub-rule (2) of rule 22 of the tribunals rules.the miscellaneous cases are accordingly disposed of.