Jharkhand High Court
Shyam Deo Prasad Singh Aged About ... vs State Of Jharkhand Through The ... on 17 October, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 272 of 2022
With
I.A. No. 5807 of 2022
Shyam Deo Prasad Singh aged about 66 years son of Late Alakh
Deo Singh, resident of Mohalla-Harischandra Stadium, Near Arvind
Press, Mamta Hospital, Nawada, P.O. and P.S.-Nawada, District-
Nawada (Bihar) ... ... ... ... Appellant
Versus
1. State of Jharkhand through the Secretary/Principal Secretary,
Department of School Education and Literacy, Government of
Jharkhand, MDI Building, P.O. and P.S. Dhurwa, District-Ranchi
2. Deputy Commissioner, Koderma Cum Chairman District Education
Establishment Committee, Koderma, P.O. and P.S.-Koderma,
District Koderma
3. District Superintendent of Education Cum Sub Divisional Education
Officer, Koderma, P.O. and P.S.-Koderma, District Koderma
4. Block Education Extension Officer Cum Enquiry Officer/Conduction
Officer, Satgawan, having office at P.O. and P.S. Satgawan,
District Koderma.
... ... ... ... Respondents
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CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Appellant: Mr. Sumeet Gadodia, Advocate
Mr. Ritesh Kumar Gupta, Advocate
Mr. Binod Kumar Jha, Advocate
Mr. Jitendra Kumar, Advocate
Mr. Prakash Narayan, Advocate
For the Respondents: Mr. Rohit, A.C. to A.A.G.-I
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Oral Order
04/Dated: 17.10.2022
I.A. No. 5807 of 2022
Heard the parties.
This Interlocutory Application has been filed for condoning the
delay of 865 days, which has occurred in preferring this appeal.
No counter affidavit has been filed opposing the prayer for
condoning the delay.
Having regard to the averments made in this application, we are
of the view that the appellant was prevented by sufficient cause from
preferring the appeal within the period of limitation.
In the result, this Interlocutory Application is allowed and delay
of 865 days in preferring this appeal is condoned.
L.P.A. No. 272 of 2022
Heard the parties.
Perused the issue regarding maintainability of the appeal.
In view of the peculiar facts of the case that the appellant had
challenged the order passed by the learned Single Judge in an earlier
proceeding being L.P.A. No. 729 of 2019 on the ground that no
concession was given by him, wherein the learned Single Judge had
recorded in his order dated 22.07.2019 in W.P.(S) No.5153 of 2017
especially in paragraph 2 as under:-
"2. Mr. Rahul Kumar, learned Counsel appearing for the petitioner
assisted by Ms. Apoorva Singh very fairly submits that petitioner confines
his prayer for payment of gratuity which has been illegally withheld by
the respondents on the ground that during the pendency of the criminal
case, the petitioner is not entitled for gratuity. Learned Counsel places
heavy reliance on the Full Bench judgment of Patna High Court in case
of "Arvind Kumar Singh vrs. The State of Bihar through the Chief
Secretary, Govt. of Bihar, Patna & Ors.", reported in 2018 SCC OnLine
Pat. 749 as well as Full Bench of this Court in case of "Dudhnath
Pandey vrs. State of Jharkhand", reported in 2007(4) JCR page 1 (Jhr.)
and also Apex Court in the case of "State of Jharkhand vrs. Jitendra
Kumar Srivastava", reported in 2013 (3) JLJR (SC) 537. Learned
Counsel further submits that in view of ratio laid down in the aforesaid
case, the respondents are precluded from withholding the amount of
gratuity and as such a direction be given to the respondents to release the
amount of gratuity."
When the aforesaid earlier appeal was being heard by this
Court, it was very difficult for the Division Bench to come to a
conclusion if actually such concession was given or not. Thus, we
permitted the appellant to withdraw L.P.A. No. 729 of 2019 so that
Civil Review application could be filed because it was ultimately the
learned Single Judge who had to hold as to whether such
confinement of prayer was made by the learned counsel or not.
However, learned Single Judge has again dismissed the review
application holding that there is no ground for interference. It definitely
means to us that such concession was given in W.P.(S) No.5153 of
2017, but at the same time, if the appeal is not permitted to be filed
and held not maintainable, then the petitioner/appellant would become
remediless against that order of review.
In above view of the matter, since the Civil Review application
was not filed Under Order XLVII Rule 7 or Section 115 of the C.P.C.,
rather it was a writ proceeding rightly filed under Article 226 of the
Constitution of India, in the peculiar facts and circumstances of the
case, we would hear the matter on merit.
Having heard the parties and in view of the facts that the
learned Single Judge has found no ground for interference and the
only ground which was raised and in view thereof liberty was granted
by us in the order passed in L.P.A. No. 729 of 2019 to file a Civil
Review, was the issue of giving concession by the learned counsel for
the petitioner as the learned Single Judge would have been the best
Judge to decide the issue. He has decided the same in negative and,
therefore, we cannot now interfere with the order. However, it is also
written in the order impugned that if the petitioner is still aggrieved, he
may file fresh petition as and when cause of action arises.
Learned counsel for the appellant has fairly submitted that the
writ petition being W.P.(S) No. 324/2020 was also filed after that but
later on withdrawn in view of the fact that the writ petition would not be
maintainable because no fresh cause of action had arisen. However,
he has admitted that the aforesaid writ petition was withdrawn without
seeking any leave or informing the learned Single Judge that the
appeal is contemplated to be filed against the order passed in Civil
Review application.
In above view of the matter, we find no merit in this Letters
Patent Appeal and the same is, hereby dismissed.
(Dr. Ravi Ranjan, C.J.)
(Sujit Narayan Prasad, J.)
Manoj/VK
