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2008 DIGILAW 966 (JHR)

Bihar State Seeds Corporation v. Durga Ram

2008-08-20

D.K.SINHA, GYAN SUDHA MISRA

body2008
Order This appeal has been preferred by the Bihar State Seeds Corporation Limited against the order dated 7.1.2008 passed in Civil Review No. 86 of 2003 by which the Review Petition filed by the Appellant-Corporation was dismissed. 2. The Review Petition had been filed against the order dated 31.10.2002 passed In C.W.J.C. No. 445 of 2001 by which the writ petition filed by the respondent who had been appointed a night guard by the Appellant-Corporation was allowed. Consequently, the impugned order of his termination from the service of the Appellant-Corporation was quashed and the Appellant-Corporation was directed to reinstate the respondent in service immediately with all consequential benefits. As already stated, the Appellant-Corporation had filed Review Petition against the order passed in that writ petition which was also dismissed and thereafter this appeal has been preferred. 3. Assailing the order passed by the learned Single Judge in the Review Petiton as also in the Writ Petition, it was first of. all .submitted, controverting the office objection, that this appeal is maintainable against the order passed in a Review Petition as it is a continuation of the proceedings, which arose out of a Writ Petition filed under Article 226 of the Constitution. In so far as the merit of the matter is concerned, it was contended that a cut-off date had not been fixed for regularization of those persons, who had been appointed after 1.8.1985 on daily wages and only those persons, who had been appointed prior to 1.8.1985 could be made regular in service. Since the appointment of the respondent was made on 1.10.1985, according to the appellant organization, he was not entitled for regularization. Counsel for the respondent, on the other hand, submitted that the appeal against the order passed in the Review Petition ought not to have been held maintainable and, in order to establish this position, he has relied on Rule 203 of the -High Court of Jharkhand Rules, 2001. However, we have noticed that Rule 203 of the High Court of Jharkhand Rules, 2001 did not even, remotely, indicate any bar for an appeal against an order passed in a review petition and it merely indicates the circumstance under which a review petition can be filed as also the procedure in this regard. However, we have noticed that Rule 203 of the High Court of Jharkhand Rules, 2001 did not even, remotely, indicate any bar for an appeal against an order passed in a review petition and it merely indicates the circumstance under which a review petition can be filed as also the procedure in this regard. On the contrary, the counsel for the appellant-Corporation has invited the attention of this Court to Clause 10 of the High Court of Jharkhand Rules, 2001 read with Section 141 of the Code of Civil Procedure (Explanation) indicating that the procedure provided in the Code of Civil Procedure will be applicable in regard to suits in all proceeding in any Court of civil jurisdiction, but the proceeding will not include any proceeding under Article 226 of the Constitution. Thus, on perusal of the Explanation to Section 141 of the Code of Civil Procedure, it clearly emerges that even if Letters Patent Appeal were held to be barred against an order passed in a Review Petition, the same would be applicable only in regard to such Review Petition which arises out of suit and will not include any proceeding which arises out of Article 226 of the Constitution. As the impugned order, in this appeal, had been passed in a Review Petition arising out. of a proceeding under Article 226 of the Constitution, the question of bar of maintainability of the Letters Patent Appeal do not arise at all. Hence, the Office Object, as also the contention of the counsel for the respondent in this regard is overruled. 4. In so far as the merit of the appeal is concerned, we have noticed that the appellant had been appointed as night guard, way back in the year 1985 and after 14 years he was saddled with the order that his appointment was not as per the procedure adopted and, therefore, he was removed from service. The appellant organization had failed to appear before the learned Single Judge in spite of service of notice and, therefore, it is not open for the appellant, at the stage of appeal, to straightaway contend that the appointment of the respondent was a backdoor entry without having availed the opportunity to establish that the appointment was a backdoor entry. 5. The appellant organization had failed to appear before the learned Single Judge in spite of service of notice and, therefore, it is not open for the appellant, at the stage of appeal, to straightaway contend that the appointment of the respondent was a backdoor entry without having availed the opportunity to establish that the appointment was a backdoor entry. 5. In the circumstances, if the order of termination was set aside, we find no reason to interfere with the same and, hence, we refrain from quashing the order passed by learned Single Judge. 6. However, we have further noticed that the "learned Single Judge had been pleased to pass an order for reinstatement of the respondent with all consequential benefits for which there was no material available before the learned Single Judge to infer that the respondent succeeded in making out a case in his favour and that he was entitled to all consequential benefits also alongwith reinstatement. 7. The counsel for the appellant organization, on the other hand, has submitted that the appellant organization was running into losses due to which it was on the verge of closure. Finally the appellant Corporation has been entrusted to Birsa Agricultural University, which is making an endeavour to revive this Corporation. Learned counsel, therefore, tried to impress upon this Court that the order of reinstatement would be difficult to be carried out. However, we feel that the plea in regard to financial constraint of the organization, in absence of any evidence to that effect, would be hard to accept. Even if the organization suffers from financial hardship, it cannot get away from paying compensation in case the order of reinstatement could not be implemented for any reason. The appellant organization, having never raised the issue that the organization has been closed, so that the order of re1nstatement could not be implemented, cannot be accepted at the stage of appeal specially when the plea of closure is refuted by the appellant. The appellant organization, having never raised the issue that the organization has been closed, so that the order of re1nstatement could not be implemented, cannot be accepted at the stage of appeal specially when the plea of closure is refuted by the appellant. But, in so far as the question of consequential benefits are concerned, we find that there is complete lack of evidence in regard to the grant of consequential benefits and the same has been granted by way of a blanket order, although the respondent had failed to lead any evidence as to why his claim of consequential benefits be sustained in absence of any evidence that he was not gainfully employed during the period he was out of service. 8. Hence, the order impugned, in so far as the grant of consequential benefit is concerned, stands quashed and set aside, but the order of reinstatement shall remain intact. Thus, the appeal filed by the appellant-Corporation stands partly allowed without any order as to costs.