Back wages
Amar Chand Khatik
(Querist) 16 February 2012
This query is : Resolved
Dear Sir's
I am Amarchand Khatik working in The Cotton Corporation of India Limited. The Corporation was terminated from service on 13/08/2010 than I was goon to Bombay High Court to admitting petition in Bombay High Court challenging the termination order passed by the Corporation.
Hon’ble Bombay High Court have given order to The Cotton Corporation of India Limited in favour of petitioner to reinstate in Services without given back wages.
I want to know that my salary of termination to reinstate , how many possibilities reimbursement From to The Cotton Corporation.
I hereby enclosing a copy of Hon’ble Bombay High Court order for your ready reference in favour of me i.e. petitioner and what can I do or also shall go to Supreme Court.
Please treat as most urgent.
Thanking you,
Your’s Faithfully,
Amar Chand Khatik
Mobile No. 09224433178
Amar Chand Khatik
(Querist) 21 February 2012
I am atteching herewith copy of Hon'ble High Court Order Dated 07/12/2011 of Case No.2956/2011.
This is for your ready reference please.
Thanking you,
Amar Chand Khatik
Amar Chand Khatik
(Querist) 21 February 2012
ttm 1 wp2956-11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2956 OF 2011
Amarchand Gangaram Khatik, )
Age: 25 years, Occupation: Service, )
Residing at: Chamana, Bavri )
Sadar Bazar, Shahpura, )
District Bhilwara, Rajasthan ) .. Petitioner
Vs.
1. The Cotton Corporation of India )
2. Chief General Manager, )
(Disciplinary Authority) )
3. The Director (Marketing) )
Appellate Authority )
The Cotton Corporation of India Ltd., )
4. The Managing Director, )
Reviewing Authority, )
The Cotton Corporation of India Ltd., )
All having their office at )
Kapas Bhavan, Plot No.3A, )
ttm 2 wp2956-11
P.O.No.60, Sector No.10, )
CBD Belapur, Navi Mumbai – 614 ) .. Respondents
Mr.R.V.Desai, Senior Counsel with Mr. P.G.Kathane for the petitioner
Mr.Ajay Khaire for the respondents
CORAM : D.B.BHOSALE & K.K. TATED, JJ.
DATE : 07th DECEMBER, 2011
ORAL JUDGMENT (PER K.K.TATED, J) :
1. Rule. By consent, matter is taken on board for final hearing at the stage of
admission.
2. By this petition, under Article 226 of the Constitution of India, petitioner
challenges the orders dated 13.08.2010, 12.11.2010 and 25.02.2011 passed by
respondent nos.2 to 4 in appeal, revision.
A few facts of the matter are as under:
3. The petitioner was appointed as Junior Assistant on 16.07.2008 in the
establishment of respondent no.1 on probation of one year at the Head Office at
Navi Mumbai. Pursuant to the said appointment, petitioner joined the office of
respondent no.1 on 18.08.2008 and started working as Junior Assistant. As per
ttm 3 wp2956-11
the terms and conditions of appointment, petitioner submitted the attestation
form dated 04.08.2008 in which column No.12(I)(a)(b) and (f) are answered as
under:
“(a) Have you ever been arrested?
Ans. No
(b) Have you ever been prosecuted?
Ans. No
(f) Have you ever been convicted by a Court of Law for any offence?
Ans. No”
4. After completion of one year, petitioner enquired with the office of the
respondent in respect of his confirmation in service from time to time. The
Deputy General Manager (HRD) by his letter dated 12.03.2010 informed the
petitioner that the verification of his antecedents and character is under process
and same will take some time. Instead of confirming the petitioner, the
respondent issued a show cause notice dated 28.05.2010 to the petitioner calling
upon him to explain as to why action should not be taken against him as he
supplied false information in his attestation form in respect of column No.12(I)(a)
(b) and (f) i.e. non disclosure of arrest and conviction in some criminal case. The
ttm 4 wp2956-11
petitioner by his letter dated 10.06.2010 replied to the said show cause notice
and pointed out to the respondent that he did not suppress any material
information from the respondent. Without considering the petitioner’s reply,
respondent no.2 Chief General Manager (Disciplinary Authority) issued an order
dated 13.08.2010 dismissing the petitioner from services for non disclosure of
correct information in respect of Column 12 (I)(a)(b) and (f) of attestation form
dated 04.08.2008. Being aggrieved by the said order, petitioner preferred an
appeal before the appellate authority as per Cotton Corporation of India
(Employees Conduct, Discipline and Appeal) Rules, 1975. The Appellate
Authority by order dated 12.11.2010 dismissed the petitioner’s appeal.
5. Being aggrieved by the order passed by appellate authority, the petitioner
preferred reviewing before the Review Authority. The same was also rejected on
25.02.2011 and hence, the present petition.
6. The learned Senior Counsel appearing on behalf of the petitioner submits
that the order dated 13.08.2010 passed by respondent no.2 and the order passed
by Appellate Authority as well as Reviewing Authority is against justice, equity
and good conscience and same is liable to be set aside. He submits that though
the show cause notice was issued by respondent authority under Column 12 (I)
(a),(b) and (f) of the attestation form, the Competent Authority passed the order
ttm 5 wp2956-11
removing the petitioner from service on the ground of antecedents and character.
He submits that at the time of filing attestation form, the petitioner disclosed all
the facts in respect of pending criminal cases. He submitted that though the
petitioner specifically stated in the said form that he was never arrested in any
criminal proceeding and / or convicted by any court of law, he specifically
disclosed the two cases in criminal court being case no.137 of 2002 and 277 of
2004. Therefore, there is no question of providing any false and / or incorrect
information at the time of filing attestation form. He submits that the petitioner
has never given any false information in the attestation form as the petitioner was
never arrested by the Police. At the relevant time, the petitioner was college
going student and the Sessions Court granted him Anticipatory Bail in criminal
case registered by the police against him and thereafter, the police never arrested
him. He submits that from the perusal of the attestation form, it is clear that the
petitioner had no intention to provide false information because at Column No.
12(1) (j)(ii), the petitioner had disclosed the pending case against him and
therefore, the contention of the learned Disciplinary Authority and the learned
Appellate Authority that the petitioner had provided false information in
attestation form cannot be sustained. He further submits that at the time of
registration of both the cases against the petitioner, the petitioner was minor and
therefore, he was granted benefit of section 3 of the Probation of Offenders Act.
ttm 6 wp2956-11
In fact, the person who is granted the benefit of section 3 of the Probation of
Offenders Act is not required to undergo any punishment. The probation period
is not a sentence but is a corrective measure prescribed under the law as per the
reformatory theory of punishment. However, this crucial aspect of the matter was
not considered by the learned Disciplinary Authority and this led to the wrong
finding that the petitioner hided the information and as such his services were
liable to be terminated.
7. On the basis of the above submissions, the learned Senior Counsel
appearing on behalf of the petitioner submits that the impugned order dated
13.08.2010 passed by respondent no.2 and order dated 12.11.2010 passed by the
Appellate Authority and order dt.25.2.2011 passed by Reviewing Authority are
liable to be set aside with a direction to the respondent to reinstate the petitioner
with full back wages with the benefit of continuity in service.
8. On the other hand, the learned counsel for the respondent appearing on
behalf of the respondent no.1 vehemently opposed the present petition. He
submits that there is a concurrent finding of both the authorities below and
therefore, there is no question of reappreciating
the evidence on record under
Article 226 of the Constitution of India and therefore, the present petition is liable
to be dismissed summarily with costs.
ttm 7 wp2956-11
9. Respondent no.1 filed their affidavit in reply dt.9.8.2011. In the said reply,
they contended that the petitioner provided false and incorrect information under
Column 12(I)(a),(b) and (f) regarding his arrest and prosecution. Therefore, the
action taken by the authority is absolutely according to law. In the
circumstances, the respondent issued show cause notice to the petitioner and after
considering the evidence on record, particularly, the information received from
police authority, Bhilwada (Rajasthan), they dismissed the petitioner from service.
10. The learned counsel appearing on behalf of the respondent further submits
that in the appointment letter, it was specifically stated in clause 1 that “You will
be placed on probation for a period of one year from the date of
appointment/joining, which may be extended or reduced at the discretion of the
appointing authority at any time”. It was also made clear vide clause 10 as
follows:
“10. Your appointment/confirmation is subject to (
i) Verification of genuineness of your caste certificate from
appropriate Authority
(ii) Confirmation from the Competent Authority that your
antecedents and character are satisfactory.”
ttm 8 wp2956-11
11. The learned counsel for the respondent submits that from the letter
received from the police authority, Bhilwada/Rajasthan, it is crystal clear that the
petitioner’s character is not satisfactory. Therefore, the action taken by the
authorities is according to law and the petition deserves to be dismissed with
costs.
12. We have gone through the appointment letter issued by the respondent. A
copy of attestation form, order dt.13.08.2010 issued by Chief General Manager
(Disciplinary Authority), order dt.12.11.2010 passed by the appellate authority,
order dated 25.2.2011 issued by the Reviewing Authority and other documents on
record. One thing is clear that the respondent issued a show cause notice to the
petitioner under Column No.12(I)(a)(b) and (f) for providing false and incorrect
information regarding his arrest and prosecution. After going through the
attestation form placed on record filed by the petitioner, it is crystal clear that the
petitioner has disclosed in the said form, the criminal case numbers pending
against him at the time of appointment. The criminal case no.137 of 2002 was
under sections 143, 147, 148, 149, 308, 323, 379, 427 and 552 of the Indian
Penal Code. At that time, the petitioner was 15 years of age. The said case was
decided by the Sessions Court on 30.04.2002 and the court granted benefit of
section 3 of the Probation of Offenders Act as the petitioner was a juvenille at that
ttm 9 wp2956-11
time. The other criminal case number 227 of 2004 is pending, which is under
section 143 and 283 of the Indian Penal Code i.e. between the private parties.
13. Considering the information disclosed by the petitioner in his attestation
form, we do not find any substance in the submission made by the learned
counsel for the respondent that the petitioner has suppressed the material facts.
There is no question of reappreciation
of the evidence on the basis of which
concurrent finding of facts of the Authorities is based, as the Authorities below
failed to take into consideration the provisions of the Probation of Offenders Act,
which vitiated their finding which is perverse on the facts and circumstances of
the present case. The Apex Court recently in the matter of Commissioner of
Police and Others vs. Sandeep Kumar reported in (2011) 4 SCC 644 held that
the offence committed by the person of young age should not come in his future
career. The approach should be to condone minor indiscretions made by the
youth. Para 8 of the judgment reads thus:
“8. We respectfully agree with the Delhi High Court that the
cancellation of his candidature was illegal, but we wish to give our
own opinion in the matter. When the incident happened the
respondent must have been about 20 years of age. At that age,
young people often commit indiscretions, and such indiscretions can
often be condoned. After all, youth will be youth. They are not
expected to behave in as mature a manner as older people. Hence,
ttm 10 wp2956-11
our approach should be to condone minor indiscretions made by
young people rather than to brand them as criminals for the rest of
their lives.”
14. Considering the explanation given by the petitioner and the judgment of
the Apex Court in the matter of Commissioner of Police and Others vs. Sandeep
Kumar (Supra), we find that both the authorities erred in coming to the
conclusion that the petitioner has submitted false and incorrect information at the
time of his appointment in service. Not only that when the show cause notice was
issued only for the suppression of facts under column 12(I)(a)(b) and (f),
authority should not have considered the other grounds for upholding the order
dt.13.08.2010 by which the petitioner was removed from the service. There is no
question of considering the ground under clause 10 of the appointment letter as
reproduced here in above to hold that the disciplinary authority found the
petitioner unfit for employment on the basis of his character.
15. Considering the above mentioned facts and circumstances, we allow the
petition as under:
(a) The order dt.13.08.2010 passed by the Chief General Manager (Disciplinary
Authority), the order dated 12.11.2010 passed by the Appellate Authority and the
order dated 25.2.2011 passed by the Reviewing Authority are set aside.
ttm 11 wp2956-11
(b) Respondents are directed to reinstate the petitioner as Junior Assistant
immediately within one month from the receipt of copy of this order. Petitioner is
not entitled to wages for this period i.e. from 29.5.2010 till reinstatement. If the
respondent fails to reinstate the petitioner within one month from the receipt of
copy of this order, the petitioner shall be entitled to full back wages from the date
of termination till reinstatement.
(c) Petitioner to be treated as continued in service for all other benefits.
(d) Writ Petition is disposed of accordingly.
(e) No order as to costs.
(f) Rule discharged accordingly.
(K.K. TATED, J.) (D.B. BHOSALE, J.)
Kirti Kar Tripathi
(Expert) 21 February 2012
sill it was not opened, you can copy and paste the order
Amar Chand Khatik
(Querist) 21 February 2012
I am attaching copy and paste the Order and also visited Bombay High Court case status, Case No.2956/2011 (CIVIL)Petitionar Name: -AMARCHAND GANGARAM KHATIK
Thanking you,
ttm 1 wp2956-11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2956 OF 2011
Amarchand Gangaram Khatik, )
Age: 25 years, Occupation: Service, )
Residing at: Chamana, Bavri )
Sadar Bazar, Shahpura, )
District Bhilwara, Rajasthan ) .. Petitioner
Vs.
1. The Cotton Corporation of India )
2. Chief General Manager, )
(Disciplinary Authority) )
3. The Director (Marketing) )
Appellate Authority )
The Cotton Corporation of India Ltd., )
4. The Managing Director, )
Reviewing Authority, )
The Cotton Corporation of India Ltd., )
All having their office at )
Kapas Bhavan, Plot No.3A, )
ttm 2 wp2956-11
P.O.No.60, Sector No.10, )
CBD Belapur, Navi Mumbai – 614 ) .. Respondents
Mr.R.V.Desai, Senior Counsel with Mr. P.G.Kathane for the petitioner
Mr.Ajay Khaire for the respondents
CORAM : D.B.BHOSALE & K.K. TATED, JJ.
DATE : 07th DECEMBER, 2011
ORAL JUDGMENT (PER K.K.TATED, J) :
1. Rule. By consent, matter is taken on board for final hearing at the stage of
admission.
2. By this petition, under Article 226 of the Constitution of India, petitioner
challenges the orders dated 13.08.2010, 12.11.2010 and 25.02.2011 passed by
respondent nos.2 to 4 in appeal, revision.
A few facts of the matter are as under:
3. The petitioner was appointed as Junior Assistant on 16.07.2008 in the
establishment of respondent no.1 on probation of one year at the Head Office at
Navi Mumbai. Pursuant to the said appointment, petitioner joined the office of
respondent no.1 on 18.08.2008 and started working as Junior Assistant. As per
ttm 3 wp2956-11
the terms and conditions of appointment, petitioner submitted the attestation
form dated 04.08.2008 in which column No.12(I)(a)(b) and (f) are answered as
under:
“(a) Have you ever been arrested?
Ans. No
(b) Have you ever been prosecuted?
Ans. No
(f) Have you ever been convicted by a Court of Law for any offence?
Ans. No”
4. After completion of one year, petitioner enquired with the office of the
respondent in respect of his confirmation in service from time to time. The
Deputy General Manager (HRD) by his letter dated 12.03.2010 informed the
petitioner that the verification of his antecedents and character is under process
and same will take some time. Instead of confirming the petitioner, the
respondent issued a show cause notice dated 28.05.2010 to the petitioner calling
upon him to explain as to why action should not be taken against him as he
supplied false information in his attestation form in respect of column No.12(I)(a)
(b) and (f) i.e. non disclosure of arrest and conviction in some criminal case. The
ttm 4 wp2956-11
petitioner by his letter dated 10.06.2010 replied to the said show cause notice
and pointed out to the respondent that he did not suppress any material
information from the respondent. Without considering the petitioner’s reply,
respondent no.2 Chief General Manager (Disciplinary Authority) issued an order
dated 13.08.2010 dismissing the petitioner from services for non disclosure of
correct information in respect of Column 12 (I)(a)(b) and (f) of attestation form
dated 04.08.2008. Being aggrieved by the said order, petitioner preferred an
appeal before the appellate authority as per Cotton Corporation of India
(Employees Conduct, Discipline and Appeal) Rules, 1975. The Appellate
Authority by order dated 12.11.2010 dismissed the petitioner’s appeal.
5. Being aggrieved by the order passed by appellate authority, the petitioner
preferred reviewing before the Review Authority. The same was also rejected on
25.02.2011 and hence, the present petition.
6. The learned Senior Counsel appearing on behalf of the petitioner submits
that the order dated 13.08.2010 passed by respondent no.2 and the order passed
by Appellate Authority as well as Reviewing Authority is against justice, equity
and good conscience and same is liable to be set aside. He submits that though
the show cause notice was issued by respondent authority under Column 12 (I)
(a),(b) and (f) of the attestation form, the Competent Authority passed the order
ttm 5 wp2956-11
removing the petitioner from service on the ground of antecedents and character.
He submits that at the time of filing attestation form, the petitioner disclosed all
the facts in respect of pending criminal cases. He submitted that though the
petitioner specifically stated in the said form that he was never arrested in any
criminal proceeding and / or convicted by any court of law, he specifically
disclosed the two cases in criminal court being case no.137 of 2002 and 277 of
2004. Therefore, there is no question of providing any false and / or incorrect
information at the time of filing attestation form. He submits that the petitioner
has never given any false information in the attestation form as the petitioner was
never arrested by the Police. At the relevant time, the petitioner was college
going student and the Sessions Court granted him Anticipatory Bail in criminal
case registered by the police against him and thereafter, the police never arrested
him. He submits that from the perusal of the attestation form, it is clear that the
petitioner had no intention to provide false information because at Column No.
12(1) (j)(ii), the petitioner had disclosed the pending case against him and
therefore, the contention of the learned Disciplinary Authority and the learned
Appellate Authority that the petitioner had provided false information in
attestation form cannot be sustained. He further submits that at the time of
registration of both the cases against the petitioner, the petitioner was minor and
therefore, he was granted benefit of section 3 of the Probation of Offenders Act.
ttm 6 wp2956-11
In fact, the person who is granted the benefit of section 3 of the Probation of
Offenders Act is not required to undergo any punishment. The probation period
is not a sentence but is a corrective measure prescribed under the law as per the
reformatory theory of punishment. However, this crucial aspect of the matter was
not considered by the learned Disciplinary Authority and this led to the wrong
finding that the petitioner hided the information and as such his services were
liable to be terminated.
7. On the basis of the above submissions, the learned Senior Counsel
appearing on behalf of the petitioner submits that the impugned order dated
13.08.2010 passed by respondent no.2 and order dated 12.11.2010 passed by the
Appellate Authority and order dt.25.2.2011 passed by Reviewing Authority are
liable to be set aside with a direction to the respondent to reinstate the petitioner
with full back wages with the benefit of continuity in service.
8. On the other hand, the learned counsel for the respondent appearing on
behalf of the respondent no.1 vehemently opposed the present petition. He
submits that there is a concurrent finding of both the authorities below and
therefore, there is no question of reappreciating
the evidence on record under
Article 226 of the Constitution of India and therefore, the present petition is liable
to be dismissed summarily with costs.
ttm 7 wp2956-11
9. Respondent no.1 filed their affidavit in reply dt.9.8.2011. In the said reply,
they contended that the petitioner provided false and incorrect information under
Column 12(I)(a),(b) and (f) regarding his arrest and prosecution. Therefore, the
action taken by the authority is absolutely according to law. In the
circumstances, the respondent issued show cause notice to the petitioner and after
considering the evidence on record, particularly, the information received from
police authority, Bhilwada (Rajasthan), they dismissed the petitioner from service.
10. The learned counsel appearing on behalf of the respondent further submits
that in the appointment letter, it was specifically stated in clause 1 that “You will
be placed on probation for a period of one year from the date of
appointment/joining, which may be extended or reduced at the discretion of the
appointing authority at any time”. It was also made clear vide clause 10 as
follows:
“10. Your appointment/confirmation is subject to (
i) Verification of genuineness of your caste certificate from
appropriate Authority
(ii) Confirmation from the Competent Authority that your
antecedents and character are satisfactory.”
ttm 8 wp2956-11
11. The learned counsel for the respondent submits that from the letter
received from the police authority, Bhilwada/Rajasthan, it is crystal clear that the
petitioner’s character is not satisfactory. Therefore, the action taken by the
authorities is according to law and the petition deserves to be dismissed with
costs.
12. We have gone through the appointment letter issued by the respondent. A
copy of attestation form, order dt.13.08.2010 issued by Chief General Manager
(Disciplinary Authority), order dt.12.11.2010 passed by the appellate authority,
order dated 25.2.2011 issued by the Reviewing Authority and other documents on
record. One thing is clear that the respondent issued a show cause notice to the
petitioner under Column No.12(I)(a)(b) and (f) for providing false and incorrect
information regarding his arrest and prosecution. After going through the
attestation form placed on record filed by the petitioner, it is crystal clear that the
petitioner has disclosed in the said form, the criminal case numbers pending
against him at the time of appointment. The criminal case no.137 of 2002 was
under sections 143, 147, 148, 149, 308, 323, 379, 427 and 552 of the Indian
Penal Code. At that time, the petitioner was 15 years of age. The said case was
decided by the Sessions Court on 30.04.2002 and the court granted benefit of
section 3 of the Probation of Offenders Act as the petitioner was a juvenille at that
ttm 9 wp2956-11
time. The other criminal case number 227 of 2004 is pending, which is under
section 143 and 283 of the Indian Penal Code i.e. between the private parties.
13. Considering the information disclosed by the petitioner in his attestation
form, we do not find any substance in the submission made by the learned
counsel for the respondent that the petitioner has suppressed the material facts.
There is no question of reappreciation
of the evidence on the basis of which
concurrent finding of facts of the Authorities is based, as the Authorities below
failed to take into consideration the provisions of the Probation of Offenders Act,
which vitiated their finding which is perverse on the facts and circumstances of
the present case. The Apex Court recently in the matter of Commissioner of
Police and Others vs. Sandeep Kumar reported in (2011) 4 SCC 644 held that
the offence committed by the person of young age should not come in his future
career. The approach should be to condone minor indiscretions made by the
youth. Para 8 of the judgment reads thus:
“8. We respectfully agree with the Delhi High Court that the
cancellation of his candidature was illegal, but we wish to give our
own opinion in the matter. When the incident happened the
respondent must have been about 20 years of age. At that age,
young people often commit indiscretions, and such indiscretions can
often be condoned. After all, youth will be youth. They are not
expected to behave in as mature a manner as older people. Hence,
ttm 10 wp2956-11
our approach should be to condone minor indiscretions made by
young people rather than to brand them as criminals for the rest of
their lives.”
14. Considering the explanation given by the petitioner and the judgment of
the Apex Court in the matter of Commissioner of Police and Others vs. Sandeep
Kumar (Supra), we find that both the authorities erred in coming to the
conclusion that the petitioner has submitted false and incorrect information at the
time of his appointment in service. Not only that when the show cause notice was
issued only for the suppression of facts under column 12(I)(a)(b) and (f),
authority should not have considered the other grounds for upholding the order
dt.13.08.2010 by which the petitioner was removed from the service. There is no
question of considering the ground under clause 10 of the appointment letter as
reproduced here in above to hold that the disciplinary authority found the
petitioner unfit for employment on the basis of his character.
15. Considering the above mentioned facts and circumstances, we allow the
petition as under:
(a) The order dt.13.08.2010 passed by the Chief General Manager (Disciplinary
Authority), the order dated 12.11.2010 passed by the Appellate Authority and the
order dated 25.2.2011 passed by the Reviewing Authority are set aside.
ttm 11 wp2956-11
(b) Respondents are directed to reinstate the petitioner as Junior Assistant
immediately within one month from the receipt of copy of this order. Petitioner is
not entitled to wages for this period i.e. from 29.5.2010 till reinstatement. If the
respondent fails to reinstate the petitioner within one month from the receipt of
copy of this order, the petitioner shall be entitled to full back wages from the date
of termination till reinstatement.
(c) Petitioner to be treated as continued in service for all other benefits.
(d) Writ Petition is disposed of accordingly.
(e) No order as to costs.
(f) Rule discharged accordingly.
(K.K. TATED, J.) (D.B. BHOSALE, J.)
Kirti Kar Tripathi
(Expert) 21 February 2012
The order of High Court is very clear as it has specifically directed the respondent to reinstate the petitioner within one month and petitioner shall not be entitled for back wages from the date of termination i.e. from 29.5.2010 till reinstatement. Thus this order is binding on both the parties. In case, you are arrived by this order, you can challenge the same to the extent of denial of back wages. Similarly the respondent have a right to challenge your reinstatement. But keeping in view of the circumstances of the case, normally courts in appeal do not interfere in this type of order.However, you can try.
