CASE ANALYSIS – State of Bihar Vs. Pawan Kumar


CIVIL APPEAL NOS. 3661-3662 OF 2020
STATE OF BIHAR …..Appellant
PAWAN KUMAR……..Respondent

BENCH- R Sahay, S katriar

  1. In light of the conclusions in (a), (b), and (c) above, we direct the State to do more research in order to prepare a new DSR for the Banka district.”
  2. Because the DEIAA is no longer operational as a result of the Tribunal’s decision in Satendra Pandey (supra), the DSR must be prepared by a consultant(s) accredited by the National Accreditation Board of Education and Training/Quality Control Council of India in accordance with the MoEF & CC’s O.M. dated 16.03.2010.
  3. The District Magistrate will only check the DSR in respect of significant facts pertaining to the district’s physical and geographical features, which will be separate from scientific conclusions based on the parameters prescribed in the SSMMG­ 2016. After such verification, the District Magistrate shall transmit the DSR to the State Expert Appraisal Committee (SEAC), which is comprised of technical/scientific experts, for review and appraisal. If the report meets all scientific/technical requirements, the SEAC will transmit it to the SEIAA for evaluation and approval.
  4. The MoEF and the CC Accredited Agency/Consultant must adhere to the procedure and parameters set forth in the SSMMG­2016 and EMGSM­2020 read in tandem when creating the DSR.”
  5. Shri Mukul Rohatgi, learned Senior Counsel appearing on behalf of the applicant, stated that the applicant was a successful bidder in the auction held for the Kishanganj District, and that the respondent’s action in cancelling the LoI and issuing a new NIT for the Kishanganj District is therefore unsustainable in law. It is claimed that the applicant’s bid was significantly greater than the respondent’s offer for Kishanganj District, which was received by the Bihar State Mining Corporation (hereinafter referred to as the “Corporation”).
    • I.A. No. 2059 of 2013 has been filed in order to excuse the 131-day delay in submitting the appeal. I.A. No. 2060 of 2013 requesting a stay of the appealed judgment’s implementation. We have heard from the parties’ counsel and have decided to forgive the delay. We don’t need to give a separate decision on the stay application because we’re hearing the appeal for final orders.
    • The current appeal stems from an order dated September 26, 2012, in MJC No. 930 of 2012, disposing of the case with certain directions. The respondent had filed CWJC No. 8883 of 1996, which was dismissed on November 21, 2008. Regularization was sought on the grounds that he had worked on a daily wage from 8.2.1989 to 5.5.2001. The claim’s main anchor was an agreement allegedly signed between the State Government and drivers in the Madhubani district for individuals who have the required qualifications and have worked for 240 days. It is believed that eleven of them have been regularised. The respondent appealed the judgement denying him regularisation dated 23.6.2011. The Court returned the case to the Collector of Madhubani to determine whether there was a vacancy in 1996 and to consider regularisation if a vacancy in the general category was available when other similarly situated people were regularised. Directions were provided in the contempt application emanating from the claimed non-compliance to examine regularisation based on seniority rather than vacancy category.
    • The respondents’ learned counsel raised a preliminary objection, claiming that the appellant’s only recourse against the order entered in the jurisdiction under Article 215 of the Constitution is to file an appeal under Section 19 of the Contempt of Courts Act, and that the current LPA under the Court’s Letters Patent Appellate Jurisdiction was unsustainable.
    • We can only cite paragraph 11(v) of (2006) 5 SCC 399: AIR 2006 SC 2190 (Midnapore Peoples’ Co-op. Bank Ltd. v. Chunilal Nanda), which was cited by Counsel for the appellant: —
    “11(v) If the High Court, for whatever reason, decides an issue or issues a direction in a contempt process relevant to the merits of the dispute between the parties, the aggrieved person is not without remedy.” An intra-court appeal (where the order was made by a learned Single Judge and there is a provision for an intra-court appeal) or a special permission to appeal under Article 136 of the Constitution of India (in other situations) can be used to challenge such an order.”
    • Learned Counsel for the respondent claimed that he had been appointed to a regular sanctioned, empty post and had served for 240 days, as required by the appellants. We are not convinced by this argument. Under the Industrial Disputes Act, completion of 240 days in service may be valid for certain purposes, but it is not a basis for regularisation. Given the consideration in (2005) 2 SCC 470 (Dhampur Sugar Mills Ltd. v. Bhola Singh) on this topic, we don’t need to go any farther with this issue.
    • We directed that Counsel for the respondent bring a copy of CWJC No. 8883 of 1996 before us for our review. We discover that the claim for engagement was based on a certificate dated 30.6.1990 stating that he was employed on a daily rate. Apart from that, there is no evidence that the respondent was appointed to a vacant and sanctioned job through a competitive selection procedure in accordance with Article 14 of the Constitution. With the decision in Secretary, State of Karrcataka v. Uma Devi, (2006) 4 SCC 1: [2006 (2) PLJR (SC) 363], the law on regularisation experienced a significant modification.
    • As a result, we believe it is appropriate to replace the following directives for the ones issued by the Tribunal in its judgement and order dated 14th October 2020:

i) The exercise of preparing DSR for the purpose of mining in the State of Bihar in all districts shall be repeated. The sub­divisional committees, which include the Sub­Divisional Magistrate, officers from the Irrigation Department, the State Pollution Control Board or Committee, the Forest Department, and a geological or mining officer, will create the draught DSRs.The same shall be prepared by undertaking site \svisits and also by using modern technology.The stated draught DSRs must be completed in a timely manner period of 6 weeks from the date of this order.The District Magistrate of the affected District shall transmit the draught DSRs to the SEAC for scrutiny and evaluation when they have been compiled.The SEAC must examine it within 6 weeks after receiving it, and its report must be delivered to the SEIAA within the same time frame. Following that, the SEIAA will consider granting permission to such DSRs within 6 weeks of receiving them;
ii) It goes without saying that while creating DSRs and having them appraised by SEAC and SEIAA, rigorous adherence to the procedure and parameters outlined in the January 2020 policy should be followed.
iii) We allow the State Government to continue mining operations until additional orders are issued through the Bihar State Mining Corporation, which may enlist the help of contractors. However, while doing so, the State \sGovernment shall ensure that all environmental \sconcerns are taken care of and no damage is \scaused to the environment.

Aishwarya Says:

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