Calcutta High Court
Prantosh Sinha vs State Of West Bengal & Ors. on 15 March, 2000
Equivalent citations: (2000)2CALLT208(HC), [2000(87)FLR162], 2000LABLC1536
Author: B. Ghosh
Bench: Barin Ghosh
JUDGMENT B. Ghosh, J.
1. Prantosh, an ex-employee of Kusum Products Limited (hereinafter referred to as the "employee") has filed W.P. No. 6553 (W) of 1999 in the Appellate Side of this Court seeking enforcement of an order dated 27th April, 1993 passed by the Joint Secretary, Government of West Bengal, under section 15 of the West Bengal Shops & Establishment Act, 1963: whereas Kusum Products Limited (hereinafter referred to as the "employer") has filed W.P. No. 1468 of 1999 in the Original Side of this Court challenging the validity and legality of the said order as well as vires of section 15 of the West Bengal Shops & Establishment Act, 1963.
2. The employee Joined the services of the employer on 8th August, 1965 and was confirmed on 8th February, 1966. Subsequent thereto the employee got several promotions. On 30th July, 1984 the employee became the Regional Sales Manager of the employer. On 11th May. 1991 the employee was granted a special Increment. On 22nd December, 1991 the employee was hospitalised for having suffered a heart attack. After release from the hospital the employee joined on 19th January, 1992. Subsequent thereto on 22nd February, 1992 the employee was advised bed rest, which advice was duly communicated to the Executive Director of the employer. On 25th February, 1992 the employee received a telegram whereby and where under his services were terminated. The employee then challenged such termination of service under section 15 of the West Bengal Shops & Establishment Act, 1963 (hereinafter referred to as the said "Act"), which challenge was contested by the employer and ultimately the order in question was passed. By that the employer was directed to reinstate the employee with full back wages.
3. The employer then filed a writ petition in this Court which was registered as Matter No. 1437 of 1993. In that writ petition same or similar prayers, as have been made in the aforementioned writ petition, of the employer, were made on almost Identical facts, circumstances, grounds and pleadings. In that writ petition certain Interim orders were passed. For non-grant of Interim orders to the satisfaction of the employer, it also preferred an appeal in connection with the said writ petition. In that appeal also from time to time certain Interim orders were passed. Ultimately, however, on 27th February, 1997 the said writ petition was dismissed for default. Despite knowledge of the said order of dismissal, no application was filed for recalling of the said order of dismissal and for restoration of the said writ petition. There is no dispute that when the said writ petition was dismissed, the employer was not granted any opportunity to file a fresh writ petition on the self-same cause of action.
4. The first question, therefore, is whether the present writ petition filed by the employer is at all maintainable?
5. In Hoshnak Slngh v. Union of India, , the appellant in a writ petition challenged the cancellation of permanent settlement of certain lands in favour of the appellant. That writ petition was dismissed in llmlne. The appellant thereupon under section 33 of the Displaced Persons (Compensation and Rehabilitation) Act. 1954 challenged the order cancelling the permanent settlement right conferred upon the appellant. That application was rejected, which was challenged by filing yet another writ petition. In that connection the Supreme Court in Its said judgment referred to Its earlier judgment in Virudhurtagar Steel Rolling Mills Ltd. v. Government of Madras, , wherein the Supreme Court rejected the contention that if the petition under Article 226 is dismissed without Issuing a notice to the other side, though by a speaking order, such a dismissal would not bar the subsequent petition for the same relief, holding that if the petition is dismissed in limlrte, but with a speaking order, which order itself Indicates that the petition was dismissed on merits, the absence of notice to the other side by itself would not be sufficient to negative the plea of res Judicate in a subsequent petition in respect of the same cause of action. The Supreme Court, however, as stated by it in Hoshnak Stngh's case, observed that while negativing the contentions on the facts of the case in Virundhunagar Steel Rolling Mills' case, it had reaffirmed that if the petition is dismissed in llmlne without passing a speaking order then such a dismissal cannot be treated as creating a bar of res Judlcata. In Tilokchand Motichand v. H.B. Munshl, , which was then referred by it in Hoshnak Sfftgh's case, a majority of the Judges of the Supreme Court held that if a petition under Article 226 is dismissed not on merit but because an alternative remedy was available to the petitioner or that the petition is dismissed in limlne without a speaking order such dismissal is not a bar to the subsequent petition under Article 32. In those circumstances the Supreme Court in Hoshnak Stngh's case observed that it must follow as a necessary corrollary that a subsequent petition under Article 226 would not be barred by the principles analogous to res Judlcata. It also observed that where a petition under Article 226 is dismissed in llmlne without a speaking order such a dismissal would not constitute a bar of res Judlcata to a subsequent petition on the same cause of action. It then added "more so, when on the facts in this case it appears that the petition was dismissed presumably because the petitioner had an alternative remedy by way of a revision petition under section 33 of the 1954 Act which remedy he availed of and after failure to get the relief he moved the High Court again for the relief." it then Justified such observation by stating "it would be incorrect in such a situation to dismiss the petition on the ground that the order made by the revislonal authority dismissing the revision petition had the effect of merging the original order against which the revision was preferred with the order made by the revlslonal authority and, therefore, the challenge on the fresh cause of action to the order made by the revlslonal authority would of necessity be a challenge to the original order also and the petition would be barred by the principles analogous to res judlcate as the first order had become final.'
6. In Hoshnak Stngh's case, therefore, the 2nd writ petition was held to be permissible because the 1st writ petition was dismissed as the writ petitioner had an alternative remedy by way of revision petition under section 33 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and because the order made by the revislonal authority dismissing the revision petition did not have the effect of merging the original order against which the revision was preferred with the order made by the revlslonal authority.
7. In Virudhunagar's case (supra) a writ petition was filed which was dismissed on merit without issuing a notice to the respondents. An appeal preferred against such order of dismissal was also rejected. Instead of preferring a special leave petition against the order rejecting the appeal, the petitioner filed a writ petition under Article 32 of the Constitution of India before the Supreme Court. A preliminary objection was taken to the maintainability of the said writ petition under Article 32 of the Constitution of India. The petitioner relying on Doryoo's case, , contended that only when notice had been Issued on a writ petition and it is decided on contest that the principle of res judfcate would apply and not otherwise. In those circumstances after construing the Judgment delivered in Daryao's case the Supreme Court observed "where therefore a writ petition is dismissed without notice to the other side but the order of dismissal is a speaking order and the petition is disposed of on merils, that would still amount to res judicata and would bar a petition under Article 32."
8. In Ttlokchand Motichand's case (supra) a writ petition was filled, which was dismissed on merit. The appeal preferred against the said order of dismissal was again dismissed on merit and without preferring a special leave petition against the order dismissing the appeal, a writ petition under Article 32 of the Constitution was filed. The Supreme Court found as a fact that the learned Judges of the High Court did not examine the merits of the contentions as regards the validity of the order of refund. In those circumstances the Supreme Court observed that it refrains from acting under Article 32 if the party has already moved the High Court under Article 226 with a similar complaint and for the same relief and failed, and Insists on an appeal to it and does not allow fresh proceedings. It then observed "In this the principle of res judicata is applied, although the expression is somewhat Inapt and unfortunate. The rule is based on public policy but the motivating factor is the existence of another parallel Jurisdiction in another Court. Where an order is not speaking or the matter has been disposed of on some other ground at the threshold, this Court in a suitable case entertains the application before itself." The Supreme Court thus held in that case that public policy demands the Supreme Court not to entertain a writ petition under Article 32 of the Constitution, if the party applied has failed in Its attempt under Article 226 of the Constitution of India unless there is substantial miscarriage of justice and there is no concept of res judicate or principles analogous thereto in relation to proceedings under article 226 and Article 32 of the Constitution of India. It is so, as it appears, because the right to approach the Supreme Court under Article 32 of the Constitution of India is a fundamental right and right to approach the High Court under Article 226 is a general right.
9. In the Workmen of Cochin Port Trust v. The Board of Trustees of the Cochin Port Trust, . the Tribunal gave an award in favour of the workmen. The employer filed a special leave petition against that award, which was dismissed without giving any reason. The employer, thereafter filed a writ petition. The question that cropped up was whether, in those circumstances, dismissal of the special leave petition by the Supreme Court operate as res judlcala in the entertainment of the writ petition? in that background the Supreme Court observed "It is well-known that the doctrine of res judicata is codified in section 11, CPC but it is not exhaustive. Section 11 generally comes Into play in relation to civil suits. But apart from the codified law the doctrine of res Judicata or the principle of res Judicala has been applied since long in various other kinds of proceedings and situations by Court in England, India and other countries. The rule of constructive resjudlcata is engrafted in explanation IV of section 11 and in many other situations also principles not only of direct res judicata but of constructive res judicata are also applied. If by any Judgment or order any matter in issue has been directly and explicitly decided the decision operates as res judicata and bars the trial of an identical issue in a subsequent proceeding between the same parlies. The principle of res judicata also comes into play when by the judgment and order a decision of a particular issue is implicit in ft, that Is, it must be deemed to have been necessarily decided by implication; then also the principle of res Judicata on that Issue is directly applicable. When any matter which might and ought to have been made a ground of defence or attack in a former proceeding but was not so made, then such a matter in the eye of law, to avoid multiplicity of litigation and to bring about finality in it, is deemed to have been constructively in issue and. therefore, is taken as decided. In the Instant case the award of the Tribunal, no doubt, was challenged in the special leave petition filed in this Court on almost all grounds which were in the subsequent writ proceeding agitated in the High Court. There is no question, therefore, of applying the principles of constructive res judicata in this case. What Is, however, to be seen in whether from the order dismissing the special leave petition in llmine it can be Inferred that all the matters agitated in the said petition were either explicitly or implicitly decided against the respondent. Indisputably nothing was expressly decided. The effect of a non-speaking order of dismissal without anything more indicating the grounds or reasons of its dismissal must, by necessary implication, be taken to have decided that it was not a fit case where special leave should be granted. It may be due to several reasons. It may be one or more. It may also be that the merits of the award were taken into consideration and this Court felt that it did not require any interference. But since the order is not a speaking order, one finds it difficult to accept the argument put forward on behalf of the appellants that it must be deemed to have necessarily decided implicitly all the questions in relation to the merits of the award. A writ proceeding is a different proceeding. Whatever can be held to have been decided expressly, implicitly or even constructively while dismissing the special leave petition cannot be re-opened. But the technical rule of res judicata, although a wholesome rule based upon public policy, cannot be stretched too far to bar the trial of Identical issues in a separate proceeding merely on an uncertain assumption that the Issues must have been decided. It is not safe to extend the principle of res Judlcata to such an extent so as to found it on mere guesswork." in Workmen of Cochin Port Trust's case, therefore, the Supreme Court held that when a special leave petition is dismissed without giving reasons it should be held that the Court decided that the case was not fit for grant of special leave to prefer an appeal before the Supreme Court. Such a decision, it held, would not be prudent to bar a right of a person to challenge the merit of a matter in a forum available to him. While so doing it expressly held that if without giving reasons a special leave petition is dismissed, such a dismissal cannot be re-opened. Same is the view of the Supreme Court in the case of Ahmedabad Manufacturing and Calico Printing Co. Lid. v. The Workmen and Another, .
10. On the other hand in Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior, , a writ petition was dismissed as withdrawn without any leave to file a fresh writ petition and the later writ petition was rejected on the ground that no 2nd writ petition lies for the self-same relief on self-same grounds and accordingly a question cropped up whether the 2nd writ petition was maintainable. To answer that question the Supreme Court observed "The principle underlying R.1 of XXIII of the Code should be extended in the Interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res Judlcata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to Invoke the extraordinary Jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution since such withdrawal does not amount to res Judlcata, the remedy under Article 226 of the Constitution should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission."
11. It appears in Daryao's case, , a five Judge Bench of the Supreme Court was called upon to decide finally whether a petition under Article 32 of the Constitution is maintainable, when the petitioner had moved the High Court for a similar writ under Article 226 of the Constitution and the High Court rejected the said petition. In that case, the Supreme Court observed that the basis on which the rule of res Judlcate rests is founded on considerations of public policy as in the Interest of public at large a finality is required to be attached to the binding decisions pronounced by Courts of competent Jurisdiction and also in the public interest demands that individuals should not be vexed twice over with the same kind of litigation. It then observed that there is no difference to the application of the rule of res judicata on the grounds that the decision on which the plea of res Judicata is raised is a decision not of Supreme Court but of a High Court exercising Its Jurisdiction under Article 226. Such observation was made despite holding that granting of an appropriate relief under Article 32 of the Constitution is not discretionary and the citizens are ordinarily entitled to appropriate relief under Article 32 once it is shown that their fundamental rights have been Illegally or unconstitutionally violated. It then clarified that if a writ petition filed by a parry under Article 226 is considered on merits as a contested matter and is dismissed the decision thus pronounced would continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings permissible under the Constitution and it would not be open to such a party to Ignore such pronouncement and move the Supreme Court under Article 32 by an original petition made on the same facts and for obtaining the same or similar orders or writs. It then added if the petition filed in the High Court under Article 226 is dismissed not on merits but because of the laches of the party applying for the writ or because it is held that the party had an alternative remedy available to it, then the dismissal of the writ petition would not consulate a bar to a subsequent petition under Article 32, except in cases where and if the facts thus found by the High Court may themselves be relevant even under Article 32. The Supreme Court then added "If a writ petition is dismissed in timine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would be a bar: if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not be a bar. except in cases which are already Indicated. If the petition is dismissed in limlne without passing a speaking order than such dismissal cannot be treated as creating a bar of res Judicata. It is true that, prima facie, dismissal in limlne even without passing a speaking order in that behalf may strongly suggest that the Court took the view that there was no substance in the petition at all, but in the absence of a speaking order it would not be easy to decide what factors weighed in the mind of the Court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res Judicata against a similar petition filed under Article 32."
12. In short, therefore, in Daryao's case the Supreme Court decided, as was re-affirmed subsequently by the Judgments referred to above, that a petition under Article 226 and a petition under Article 32 are two different proceedings, but while dealing with such proceeding the High Court exercises substantially the same Jurisdiction as that of the Supreme Court and accordingly if the matter has been decided on merits by the High Court, unless such decision is modified or reversed, such a decision, public policy demands, would prevent a new proceeding under Article 32 for the self-same relief on self-same grounds, but if the same has not been decided on merit or it is not possible to decipher whether the same was in fact decided on merits. It would not be proper to take away the right of a citizen to exercise one of its fundamental rights to initiate a proceeding under Article 32 of the Constitution.
13. From the aforementioned judgments of the Supreme Court it appears to me that if in order to seek certain reliefs a proceeding is initiated in a Court and if such proceeding is decided on merits, public policy demands that the same should be accepted as final and no-one should be permitted to re-open the same by Initiating another proceeding of the same nature for the self-same purpose and on the self-same grounds as public policy would not permit one to be vexed twice over with the same kind of litigation. Then again, if to seek a certain relief on certain grounds Initiation of two separate proceedings is permissible, I.e. (1) under Article 226 and (11) under Article 32, then if the matter is decided in any of the proceedings on merit, the other proceeding would not be maintainable for the self-same reason. If a proceeding has been terminated with an order of dismissal without giving reasons, the same cannot be re-opened by Initiating a similar proceeding as public policy would not permit the same, but, however, if two proceedings are permissible and one of them has resulted in dismissal without reason, the public policy would not demand that the other proceeding should also be dismissed without considering the merit. If one is not permitted to file a proceeding after withdrawal of a same or similar proceeding without leave to file a fresh one, for the same would permit bench-hunting, I see no reason why a person would be permitted to file a fresh proceeding when by reason of his deliberate laches his earlier proceeding seeking same relief on identical grounds has been dismissed for default as the same would also entail bench-hunting. In fact in case of Workmen of Cochin Port Trust (supra) the Supreme Court consciously conveyed that when a special leave petition is dismissed without giving reasons, such a decision cannot be re-opened, obviously by filing another special leave petition by the self-same person on the self-same ground as that loo would tantamount to bench-hunting.
14. This writ Court is, therefore, has no other option but to held that the writ petition of the employer under consideration is not maintainable.
15. The West Bengal Shops & Establishment Act, 1963 (hereinafter referred to as the said "Act") came into effect on 2nd April, 1963. The objects for enacting the said Act have been stated thus :--
"An Act to regulate holidays, hours of work, payment of wages and leave of persons employed in Shops and Establishments."
16. The original section 15 of the Act was substituted by the West Bengal Shops and Establishments (A.M.) Act, 1988 to the effect as follows :--
'Section 15. Notice of termination of service.--(1) The services of a person employed in any shop or establishment, who has been in continuous service for not less than one year in such shop or establishment, shall not be terminated without giving him one month's notice, in writing, showing the reasons of such termination and until the period of notice has expired or until he has been paid, in lieu of such notice, wages for the period of such notice.
(2) The person as aforesaid shall have the right to appeal to such authority and within such period as may be prescribed, either on the ground that there is no reasonable cause for terminating his services or on the ground that he has not been guilty of any misconduct, provided his services have been terminated on such ground.
(3) The decision of the appellate authority on such appeal shall be final."
17. Section 2 of the said Act read with sub-section (II) thereunder stands as follows :--
"Section 2. Definitions : in this Act unless there is anything repugnant in the subject or context :
(11) 'prescribed' means prescribed by rules made under this Act."
18. There is no dispute that as yet by Rules made under the Act no-one has been designated as the authority before whom an appeal would He in terms of sub-section (2) of section 15 of the said Act. The short question, therefore, is whether the subject order can be treated to be an order passed under section 15 of the Act?
19. By section 25 of the said Act the State Government has been empowered to make Rules for the purpose of carrying out the purposes of the Act. Section 25 of the said Act is as follows:--
"Section 25. Power to make rule.--(1) The State Government may. after previous publication, make rules for carrying out the purpose of this Act.
(2) in particular, and without prejudice to the generality of the foregoing power, such rules may provide for-
(a) any matter which may be or is required to be prescribed under this Act;
(b) the manner of appointment and qualifications of Inspectors appointed under section 19.
(c) Any rule made under this section may provide that any person committing a breach thereof shall on conviction be punishable with fine, which may extend to one hundred rupees, and where the beach is a continuing one, with a further fine which may extend to twenty-five rupees, for every day, after the first, during which the breach continues."
20. The requirement of the Act, therefore, is that the State Government by the Rules to be made by it under the Act shall prescribe an authority to whom the person agreed by a termination without one month's notice or with notice but without payment for the notice period may take his grievances by way of an appeal.
21. The order in question has been passed by Sri P.K. Dey, Joint Secretary, Labour Department, Government of West Bengal. It appears from the said order that the employer before the Authority, who passed the order, contended, Inter atta, that since no authority for hearing the appeal had been prescribed by the Rules, the authority, who passed the order, was not competent to hear the appeal. This contention was answered by the authority, who passed the order, in the following manner :--
"Again, the undersigned was appointed by the Labour Minister to hear the appeal of the petitioner. In absence of any prescribed Rule Government has the inherent right to appoint any officer of the Government to hear the appeal."
22. Therefore, to find out whether the order in question can be treated to be an order passed under section 15 of the said Act, one has to consider without in absence of any prescribed rule, Government has the Inherent right to appoint any officer of the Government to hear the appeal. Various judgments were cited for and against the said proposition which I shall consider hereafter. Before, however, adverting to those Judgments I feel it would be prudent to keep in mind that if a statute requires a thing to be done in a manner prescribed by It, it must be done by following the prescribed manner and not by any other manner; and also that if a legislative field is left vacant by the legislature, the same may be supplied by the executive Government.
23. In Surajtnull Nagarmull v. Commissioner of Income Tax, , a Special Bench of this Court was considering the provisions of section 37 of the Income Tax Act, 1922 which authorised any Income Tax Officer specially authorised by the Commissioner to do certain things "subject to any rules made in this behalf." No rule was made and the Special Bench held that doing of the acts as mentioned in the said section by the Income Tax Officer is permissible even without any rules. This judgment takes us to nowhere. By section 37 of the Income Tax Act, 1922 certain powers to do certain acts had been conferred. By using the words "subject to any rules made in this behalf, such powers were intended to be curtailed to the extend the rules to that effect made.
24. No such question having even a remote resemblance to the question in the Instant case cropped up either in Sambhunath Ghosh v. Bejoy Lakshmt Cotton Mills Ltd. or in the case of Emperor v. Shlbnath Banerji, or in the case of Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation, or in the case of GullppalU Nageswara Rao v. State of Andhra Pradesh, . Those judgments dealt with the powers of the Government to be exercised in what manner in terms of the Rules of Business. However, emphasis was given on the observations of the Supreme Court in paragraph 28 of Its Judgment in the case of Guppapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation, and also on the observations made by the Supreme Court in paragraph 8 of Its judgment in the case of GuIlappalH Nageswara Rao v. State of Andhra Pradesh, . In the earlier observation the Supreme Court clarified that since quasi-Judicial act is not wholly Judicial, by the Rules, the Governor is authorised to make, he can regulate his own acts as well as the acts of his subordinates in relation thereto. By section 15(2) of the Act the State Government has not been vested with any quasi-judicial power. Pure judicial power has been vested in the authority and the Governor or the State Government has been authorised to prescribe such authority. It Is, therefore, a power to nominate. The statute, however, says that such nomination must be made by rules. In that matter of making such rules or in the matter of nominating such appellate authority, the Governor of the Slate does not exercise any quasi-Judicial authority. The later observation is confined to hearing given by a governmental authority, in support of the objections the Government had Invited in exercise of a power vested on the Government by a Statute. Those observations throw no light to answer the questions involved in this case.
25. The observation of the Supreme Court in Rat Sahib Ram Jawaya Kapoorv. State of Punjab, to the effect that executive power of the State is not confined for carrying out laws only, by the same includes power of the executive Government to carry on trade and business even without specific legislation to that effect, is of no help to answer the question Involved in this case.
26. In Colonial Sugar Refining Company v. truing, reported in (1905) AC 369, after the Judiciary Act, 1903 came Into force an appeal was preferred before Her Majesty in Council when such appeal lay before the High Court of Australia. The appeal was entertained and it was observed that there is no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal and in either case there is Interference with existing rights contrary to the well-known general principal that statutes are not to be held to act retrospectively unless a clear Intention to that effect is manifested. In so observing it was thought that the appeal was preferred before Judiciary Act, 1903 had come Into force, as it was observed by the Court that to deprive a suitor in a pending action of an appeal to a superior tribunal, which belonged to him as of right, is very different thing from regulating procedure. There cannot be any quarrel to the proposition that an existing right cannot be taken away unless the statute taking away such right clearly denotes the same. In the Instant case a right of appeal has been granted but not to before a known forum. The forum is to be decided. Until such time the forum is decided it cannot be said that the complete right has been given to prefer an appeal.
27. Similar observation was made by the Supreme Court in Garikapati v. Subbiah Choudhury. to the effect that the vested right of appeal can be taken away only by a subsequent enactment if it so provides expressly or necessary Intendment and not otherwise. This is therefore not of any help to answer the question raised in this writ petition, as the question is whether a complete right of appeal vested at any point of time in favour of the petitioner.
28. When a right of appeal has been given under sub-section (2} of section 15 of the Act, it is required to be seen what right has been given. The Act says such appeal will lie before an authority to be prescribed. Can it be said that before sucb an authority has been prescribed, a complete right of appeal has been given? I do not think so. Till such time the Appellate Forum is prescribed, before whom the appeal would be preferred, it can not be said that a complete right has been given. Therefore, until such time the Appellate Forum has been prescribed, no complete right of appeal has been conferred. Such conferment would be complete, the moment the Appellate Authority would be prescribed.
29. The legislature though Intended to confer a right of appeal but it did not complete the conferment of such right and directed that such conferment would be completed as and when the Appellate Authority would be prescribed. In so doing, however, it did not leave any legislative field vacant. It gave a direction that such prescription must be made by a rule and such rule must be published. The power to prescribe by rules wllh an obligation to publish the rule made for that purpose was left wllh the State Government. If the legislature had not said that such an Appellate Authority shall be prescribed by the rules and such rule should be published, then, of course, such vacancy could be supplied by the executive Government in exercise of Its legislative power. But as aforesaid no vacancy was left by the legislature. The executive Government had and has no power to act in a manner in consistent with the legislative mandate governing the field. In the instant case the legislature though conferred a right of appeal but did not complete such conferment and left it to be completed by the executive Government by prescribing the Appellate Authority by the publish rules to be made by It. The right of appeal under section 15(2) of the Act Is. therefore, incomplete until the Appellate Authority is prescribed by publish rules to be made by the executive Government. The Executive Government having not yet prescribed such Appellate Authority by any publish rules, section 15(2) of the Act is Inoperative and there is no complete right even to prefer an appeal.
I, therefore, have no other option but to hold that the order in question is not an order under section 15(2) of the Act and accordingly in unenforceable.
In the result I dismiss both the writ petitions without, however, any order as to costs.
Let urgent xerox certified copies of this judgment, if applied for, be delivered to the learned Advocates for the Parties.
30. Petition dismissed