The Management Of D.A.V. School vs Their Workmen on 28 January, 2022

[Cites 38, Cited by 0]

Jharkhand High Court

The Management Of D.A.V. School vs Their Workmen on 28 January, 2022

Bench: Kailash Prasad Deo

                                       1



      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 (Civil Writ Jurisdiction)
               W.P. (L) No. 1362 of 2009

The Management of D.A.V. School, Jamadoba, Dhanbad .... Petitioner
                            Versus
Their Workmen, Sri Ram Dahin Roy, D.A.V. School
Jamadoba, Dhanbad                                  .... Respondent

CORAM : HON'BLE MR. JUSTICE KAILASH PRASAD DEO
            (Through :- Video Conferencing)
                                   ............

For the Petitioner           : Mr. Indrajit Sinha, Advocate.
                               Mr. Vijay Kant Dubey, Advocate
For the Respondent           : Mr. Ramawatar Chamaria, Advocate.
                                      ........
13 / 28.01.2022.

1. Heard, learned counsel for the petitioner, Mr. Indrajit Sinha assisted by learned counsel, Mr. Vijay Kant Dubey and learned counsel for the respondent, Mr. Ramawatar Chamaria.

2. Learned counsel for the petitioner has submitted that the writ petition has been preferred by Management of M/s D.A.V. School, Jamadoba, Dhanbad against the award dated 07.09.2007 passed by learned Presiding Officer, Labour Court, Dhanbad in Reference Case No. 03/1998, whereby the reference has been made by Hon'ble Governor of Bihar, Patna vide Notification No.7/L-D-1602/98-L&E-3235 dated 03.08.1998 with a direction to adjudicate the following issue:-

"Whether not to give benefit of post and pay scale of Assistant Librarian to Shri Ram Dahin Roy, Tata D.A.V. School, Jamadoba is justified? If not, what relief the workman is entitled for ?"

3. Learned counsel for the petitioner has drawn attention of this Court towards, the order dated 01.12.2009 passed by the Coordinate Bench of this Court, wherein the Coordinate Bench while admitting writ petition has recorded as under -

"The petitioner is the employer, which in its written statement denied the existence of a post known as 'Library Assistant' or 'Assistant Librarian' and stated specifically that in the School where the workman was employed, there were only two posts in the Library namely, 'Librarian' and 'Junior Librarian' and for both these posts, the workman does not 2 fulfill the necessary minimum qualifications.

Before directing grant of designation of a particular post to a workman, the Labour Court had necessarily to record a clear finding that the said post exists in the establishment.

I do not find any such clear finding in the impugned award. The Labour Court cannot create a new post for a workman.

In the circumstances, as prayed, a counter affidavit may be filed within two weeks. List thereafter.

In the meantime, operation of the impugned award will remain stayed."

4. Learned counsel for the petitioner, Mr. Indrajit Sinha has further submitted, that learned Labour Court has passed Award beyond jurisdiction, as the learned Labour Court cannot create a post by an order passed in a reference.

5. Learned counsel for the petitioner, Mr. Indrajit Sinha has further submitted, that after commencement of the Jharkhand Education Tribunal Act, 2005, all the matters related to service condition as envisaged under Section 8 of the Jharkhand Education Tribunal Act, 2005 shall be adjudicated by the Jharkhand Education Tribunal and the learned Labour Court has no jurisdiction to adjudicate the same, as such, the order dated 15.05.2018 passed in L.P.A. No.174/2016 is binding upon this Court. Thus, the maintainability of the proceeding before the Labour Court is itself bad in law, as such, respondent may be directed to file application before the Jharkhand Education Tribunal for redressal of his grievances.

6. Learned counsel for the petitioner, Mr. Indrajit Sinha has further relied upon the recent judgment passed by the Apex Court in the case Neena Aneja and another Vrs. Jai Prakash Associates Ltd. reported in (2021) SCC Online SC 225. Para-67, 77 & 78 of the said judgment are quoted hereunder:-

67. In considering the myriad precedents that have interpreted the impact of a change in forum on pending proceedings and retrospectivity-a clear position of law has emerged : a change in forum lies in the realm of procedure. Accordingly, in compliance with the tenets of statutory interpretation applicable to procedural law, amendments on matters of procedure are retrospective, unless a contrary intention emerges from the 3 statute. This position emerges from the decisions in New India Assurance (supra), Maria Cristina (supra), Hitendra Kumar Thakur (supra), Ramesh Kumar Soni (supra) and Sudhir G Angur (supra). More recently, this position has been noted in a three judge Bench decision of this Court in Manish Kumar v. Union of India51. However, there was a deviation by a two judge bench decision of this Court in Dhadi Sahu (supra), which overlooked the decision of a larger three judge bench in New India Assurance (supra) and of a co-ordinate two judge bench in Maria Cristina (supra). The decision in Dhadi Sahu (supra) propounded a position that "no litigant has any vested right in the matter of procedural law but where the question is of change of forum it ceases to be a question of procedure only. The forum of appeal or proceedings is a vested right as opposed to pure procedure to be followed before a particular forum. The right becomes vested when the proceedings are initiated in the tribunal."

In taking this view, the two judge bench did not consider binding decisions. Dhadi Sahu (supra) failed to consider that the saving of pending proceedings in Mohd. Idris (supra) and Manujendra Dutt (supra) was a saving of vested rights of the litigants that were being impacted by the repealing acts therein, and not because a right to forum is accrued once proceedings have been initiated. Thereafter, a line of decisions followed Dhadi Sahu (supra), to hold that a litigant has a crystallized right to a forum once proceedings have been initiated. A litigant's vested right (including the right to an appeal) prior to the amendment or repeal are undoubtedly saved, in addition to substantive rights envisaged under Section 6 of the General Clauses Act. This protection does not extend to pure matters of procedure. Repeals or amendments that effect changes in forum would ordinarily affect pending proceedings, unless a contrary intention appears from the repealing or amending statute.

77. Section 6 of the General Clauses Act provides governing principles with regard to the impact of the repeal of a central statute or regulation. These governing principles are to apply, "unless a different intention appears". Clause (c) of Section 6 inter alia stipulates that a repeal would not affect "any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed". The right to pursue a validly instituted consumer complaint under the Act of 1986 is a right which has accrued under the law which was repealed. Clause (e) of Section 6 stipulates that the repeal will not affect, inter alia, any "legal proceeding or remedy" in respect of any such right...as aforesaid". Any such legal proceedings may be continued as if the repealing legislation had not been 4 passed. Clause (c) of Section 6 has the effect of preserving the right which has accrued. Clause (e) ensures that a legal proceeding which has been initiated to protect or enforce "such right" will not be affected and that it can be continued as if the repealing legislation has not been enacted. The expression such a right in clause (e) evidently means the right which has been adverted to in clause (c). The plain consequence of clause (c) and clause (e), when read together is twofold : first, the right which has accrued on the date of the institution of the consumer complaint under the Act of 1986 (the repealing law) is preserved; and second, the enforcement of the right through the instrument of a legal proceeding or remedy will not be affected by the repeal.

78. Having stated the above position, we need to harmonize it with the principle that the right to a forum is not an accrued right, as discussed in Part C of this judgement. Simply put, while Section 6(e) of the General Clauses Act protects the pending legal proceedings for the enforcement of an accrued right from the effect of a repeal, this does not mean that the legal proceedings at a particular forum are saved from the effects from the repeal. The question whether the pending legal proceedings are required to be transferred to the newly created forum by virtue of the repeal would still persist. As discussed, this Court in New India Assurance (supra) and Maria Christina (supra) has held that forum is a matter pertaining to procedural law and therefore the litigant has to pursue the legal proceedings at the forum created by the repealing act, unless a contrary intention appears. This principle would also apply to pending proceedings, as observed in Ramesh Kumar Soni (supra), Hitendra Kumar Thakur (supra) and Sudhir G Angur (supra). In this backdrop, what is relevant to ascertain is whether a contrary intent to the general rule of retrospectively has been expressed under the Act of 2019 to continue the proceedings at the older forum.

7. It has been further submitted by learned counsel for the petitioner, Mr. Indrajit Sinha that as per Section 6 of General Clauses Act, 1977, the pending proceeding before the Labour Court, ought to have been ceased, once the Jharkhand Education Tribunal Act, 2005 came into force, as such, it was incumbent upon the workman that he should have filed such application before the Jharkhand Education Tribunal under Section 8 of the Jharkhand Education Tribunal Act, 2005 for consideration of his grievances.

8. Learned counsel for the petitioner, Mr. Indrajit Sinha has further submitted that a question of law can be raised in a writ jurisdiction and this Court may decide the same on the ground of perversity of finding recorded by the Labour Court and also Labour Court has no jurisdiction to decide such issue, as such, impugned Award is bad in law.

9. Learned counsel for the petitioner, Mr. Indrajit Sinha has also relied upon the judgment passed by the Apex Court in the case of New India Assurance Co. Ltd. Vs. Smt. Shanti Mishra, Adult reported in (1975) 2 SCC 840. Para-5 of the aforesaid judgment reads as follows:-

5. On the plain language of Sections 110-A and 110-F there should be no difficulty in taking the view that the change in law was merely a change of forum i.e. a change of adjectival or procedural law and not of substantive law. It is a well-established proposition that such a change of law operates retrospectively and the person has to go to the new forum even if his cause of action or right of action accrued prior to the change of forum. He will have a vested right of action but not a vested right of forum. If by express words the new forum is made available only to causes of action arising after the creation of the forum, then the retrospective operation of the law is taken away. Otherwise the general rule is to make it retrospective. The expressions "arising out of an accident" occurring in sub-section (1) and "over the area in which the accident occurred", mentioned in sub-section (2) clearly show that the change of forum was meant to be operative retrospectively irrespective of the fact as to when the accident occurred. To that extent there was no difficulty in giving the answer in a simple way. But the provision of limitation of 60 days contained in sub-section (3) created an obstacle in the straight application of the well-established principle of law. If the accident had occurred within 60 days prior to the constitution of the tribunal then the bar of limitation provided in sub-section (3) was not an impediment. An application to the tribunal could be said to be the only remedy. If such an application, due to one reason or the other, could not be made within 60 days then the tribunal had the power to condone the delay under the proviso. But if the accident occurred more than 60 days before the constitution of the tribunal then the bar of limitation provided in sub-

section (3) of Section 110-A on its face was attracted. This difficulty of limitation led most of the High Courts to fall back upon the proviso and say that such a case will be a fit one where the tribunal would be able to 6 condone the delay under the proviso to sub-section (3), and led others to say that the tribunal will have no jurisdiction to entertain such an application and the remedy of going to the civil court in such a situation was not barred under Section 110-F of the Act. While taking the latter view the High Court failed to notice that primarily the law engrafted in Sections 110-A and 110-F was a law relating to the change of forum.

10. Learned counsel for the petitioner, Mr. Indrajit Sinha has also relied upon the judgment passed by the Apex Court in the case of Surup Singh and Another Vs. Union of India and Another, reported in (2011) 11 SCC 198. Para-21 to 24 of the aforesaid judgment reads as follows:-

21. The aforesaid position is well settled and not open for any dispute as the defect of jurisdiction strikes at the very root and authority of the court to pass decree which cannot be cured by consent or waiver of the parties. This Court in several decisions has specifically laid down that validity of any such decree or order could be challenged at any stage.

In Union of India v. Sube Ram [(1997) 9 SCC 69] this Court held thus: (SCC pp. 70-

71, para 5) "5. ... here is the case of entertaining the application itself; in other words, the question of jurisdiction of the court. Since the appellate court has no power to amend the decree and grant the enhanced compensation by way of solatium and interest under Section 23(2) and proviso to Section 28 of the Act, as amended by Act 68 of 1984, it is a question of jurisdiction of the court. Since courts have no jurisdiction, it is the settled legal position that it is a nullity and it can be raised at any stage."

22. In yet another case of Amrit Bhikaji Kale v. Kashinath Janardhan Trade [(1983) 3 SCC 437] this Court has held that when a tribunal of limited jurisdiction erroneously assumes jurisdiction by ignoring a statutory provision and its consequences in law on the status of parties or by a decision are wholly unwarranted with regard to the jurisdictional fact, its decision is a nullity and its validity can be raised in collateral proceeding.

23. In Balvant N. Viswamitra v. Yadav Sadashiv Mule [(2004) 8 SCC 706] this Court stated thus: (SCC p. 712, para 9) "9. The main question which arises for our consideration is whether the decree passed by the trial court can be said to be 'null' and 'void'. In our opinion, the law on the point is well settled. The distinction between a decree which is void and a decree which is wrong, incorrect, irregular or not in accordance with law cannot be overlooked or ignored. Where a court lacks inherent jurisdiction in passing a decree or making an order, a 7 decree or order passed by such court would be without jurisdiction, non est and void ab initio. A defect of jurisdiction of the court goes to the root of the matter and strikes at the very authority of the court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a court or an authority having no jurisdiction is a nullity. Validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings."

(emphasis supplied)

24. In Chiranjilal Shrilal Goenka v. Jasjit Singh [(1993) 2 SCC 507] this Court stated thus: (SCC pp. 517-18, para 18) "18. It is settled law that a decree passed by a court without jurisdiction on the subject-matter or on the grounds on which the decree made which goes to the root of its jurisdiction or lacks inherent jurisdiction is a coram non judice. A decree passed by such a court is a nullity and is non est. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the very authority of the court to pass decree which cannot be cured by consent or waiver of the party."

11. Learned counsel for the petitioner, Mr. Indrajit Sinha has further submitted that the question with regard to maintainability or jurisdiction has not been raised before the learned Labour Court, but the question of law that too of a jurisdiction of a Court can be raised even in the writ petition at any stage.

12. Learned counsel for the petitioner, Mr. Indrajit Sinha has further submitted, that so far the judgment, which has been placed reliance by the learned Presiding Officer, Labour Court in the case of Workmen Employed by Hindustan Lever Ltd. Vs. Hindustan Lever Limited, which has been cited as (1974) 3 SCR 510 the corresponding reference is (1984) 4 SCC 392, from perusal of the judgment, the contents which has been quoted in the impugned award is the reference and not finding of the Hon'ble Apex Court, which the learned Presiding Officer has wrongly considered.

13. Learned counsel for the petitioner, Mr. Indrajit Sinha has further submitted that an application was before the learned Apex Court with regard 8 to maintainability, but no such finding has been given by the Apex Court as it has been construed by the learned Presiding Officer, Labour Court, Dhanbad and referred in the impugned award by the learned Presiding Officer, Labour Court, Dhanbad.

14. Learned counsel for the petitioner, Mr. Indrajit Sinha has further submitted, that so far the document, which has been brought on record by way of supplementary counter-affidavit dated 01.02.2012, some of the documents which have been brought on record are not related to the School of the petitioner and those documents have never been brought before the Presiding Officer, Labour Court, Dhanbad in Reference Case No. 03/1998, as such, the post which have never been created, the Labour Court cannot enlarge the scope of reference, as such, the finding recorded by learned Labour Court is perverse, as such, impugned order may be set aside.

15. Learned counsel for the petitioner, Mr. Indrajit Sinha has further submitted, that there is no such post as submitted in the written statement filed by the Management before the learned Labour Court and the learned Labour Court cannot create a post unless that post exists in the Management, as such, the finding recorded by the learned Labour court is bad in law as the Labour Court has not considered the case of the Management and thus arrived at a wrong conclusion. He has referred Written Statement (W.S.) at page no. 31 of the writ petition, Para-(V) to (VIII) and has submitted that without being any material on record with regard to pay scale of Assistant Librarian or sanctioned post exists for the post of Assistant Librarian, such finding is erroneous and cannot be considered and thus, the finding recorded by the learned Labour Court is perverse. Para-(V) to (VIII) of the written statement may be quoted hereunder:-

(V) That there is no post prescribed by the Central Board of Secondary Education as the Assistant Librarian or Library Assistant. (VI) That the workman concerned is not qualified for the post of Librarian.

(VII) That there is only two posts for the Library i.e. the Librarian and Junior Librarian.

(VIII) That the qualification prescribed for Librarian and Junior 9 Librarian are as under:

a) Librarian :

Graduation with Diploma in Library Science from a recognised Institute.

b) Junior Librarian :

Matriculation or equivalent with Certificate in Library Science from a recognised Institution.

16. Learned counsel for the petitioner, Mr. Indrajit Sinha has further placed reliance upon Annexure-5 of the writ petition, which is the office order dated 08.03.1991 issued by the then Director, whereby the respondent

- R.D. Roy, Library Attendant, DAV-Khalari has been transferred to D.A.V. School, Jamadoba on the request of Shri. P.D. Kapila and has submitted that this respondent was never an Assistant Librarian, rather he was Library Attendant, but he has filed application as a Library Assistant before the Principal and the Principal without application of mind has accepted him as Library Assistant. The original document showing that the respondent is Library Attendant has been brought in the writ petition, but not produced and exhibited in the learned Labour Court. The document which has been brought on record by way of supplementary counter-affidavit in this writ Court by the Respondent has no legal sanctity, as those documents have not been exhibited before the learned Labour Court as such, those documents may be discarded and the impugned award may be considered perverse and may be set aside.

17. Learned counsel for the petitioner, Mr. Indrajit Sinha has further submitted that the question of law can be raised at any stage as per Section 8 of the Jharkhand Education Tribunal Act, which reads as follows: -

8. Jurisdiction, power and authority of the Jharkhand Education Tribunal. - (1) Save as otherwise expressly provided in this Act, the Jharkhand Education Tribunal shall exercise on and from the appointed day, all the jurisdiction, power and authority exercisable immediately before that day by all Courts (Except the Jharkhand High Court and Supreme Court of India) regarding: -

(a) Matters concerning recruitment to any post in connection with the affairs of the educational institution;

(b) All matters concerning the service conditions of employees of the educational institutions;

(c) Grievances of the employees against the management of the educational institutions;

(d) Grievances of the guardians and parents of students against the management of the educational institutions regarding teaching standards, fee structure, infrastructural facilities, development works and allied matters related thereto;

(e) Such matters relating to educational institutions as may be referred to the Tribunal by the State Government by notification from time to time.

18. Learned counsel for the petitioner, Mr. Indrajit Sinha has further submitted that Section 8 of Jharkhand Education Tribunal Act is only with respect to matter pending in the Labour Court except the Hon'ble Jharkhand High Court and Hon'ble Supreme Court, as such, Section 8 read with Section 19 of Jharkhand Education Tribunal Act clearly state that the provisions of this Act shall have effect not-withstanding anything to the contrary contained in any other law for the time being in force or an instrument having effect by virtue of any law other than this Act. Further, the limitation under Section 10 (1)(a) of the Jharkhand Education Act, 2005 will only operate with regard to an order passed by any forum or any authority and in the present case, there is no such order, rather Section 14 of the Limitation Act, 1963 says exclusion of time of proceeding bonafide in court without jurisdiction, as such, the respondent can take remedy under the law by preferring an application before the Jharkhand Education Tribunal and the period consumed before the learned Labour Court or before this Court is well protected under Section 14 of the Limitation Act, as such, respondent is not without any remedy and for that learned counsel for the petitioner, Mr. Indrajit Sinha has placed reliance upon the judgment passed by the Apex Court in the case of BHEL Vs. Mahendra Prasad Jakhmola reported in (2019) 13 SCC 82. Para-26 of the said judgment may profitably quoted hereunder:-

"26. Ms Jain also pointed out three judgments of this Court in Calcutta Port Shramik Union v. Calcutta River Transport Assn. [Calcutta Port Shramik Union v. Calcutta River Transport Assn., 1988 Supp SCC 768 :

1989 SCC (L&S) 106], PepsiCo India Holding (P) Ltd. v. Grocery Market 11 & Shops Board [PepsiCo India Holding (P) Ltd. v. Grocery Market & Shops Board, (2016) 4 SCC 493 : (2016) 1 SCC (L&S) 685] and Harjinder Singh v. Punjab State Warehousing Corpn. [Harjinder Singh v. Punjab State Warehousing Corpn., (2010) 3 SCC 192 : (2010) 1 SCC (L&S) 1146] for the proposition that judicial review by the High Court under Article 226, particularly when it is asked to give relief of a writ of certiorari, is within well-recognised limits, and that mere errors of law or fact are not sufficient to attract the jurisdiction of the High Court under Article 226. There is no doubt that the law laid down by these judgments is unexceptionable. We may only state that these judgments have no application to the facts of the present case. The Labour Court's award being perverse ought to have been set aside in exercise of jurisdiction under Article 226."

19. Learned counsel, Mr. Ramawatar Chamaria appearing for the respondent-Sri Ram Dahin Roy has opposed the prayer and has submitted that writ jurisdiction under Articles 226 of the Constitution of India has a limited scope and Writ Court cannot act like a court of appeal. He has further submitted that in compliance of the order dated 01.12.2009 passed by Coordinate Bench of this Court, detail counter affidavits have already been brought on record vide counter affidavits dated 17.05.2010, 02.02.2012 and 13.04.2017.

20. Learned counsel, Mr. Ramawatar Chamaria appearing for the respondent has further submitted, that earlier this respondent was terminated from the School and against the same, Reference No. 05/1996 was preferred before the Presiding Officer, Labour Court, Dhanbad, which was decided in favour of the respondent in terms of Award dated 29.11.2004. The award dated 29.11.2004 passed in Reference Case No. 05/1996 was assailed by the Management, D.A.V. Public School, Dhanbad before learned Single Judge in W.P.(L) No.5989/2005, which was dismissed in terms of order dated 15.12.2005 by the Coordinate Bench of this Court. Thereafter, the Management preferred L.P.A. No.10/2006, which was also dismissed by Hon'ble Division Bench of this Court in terms of order dated 13.01.2009. Thereafter, the Management preferred SLP (C) No. 018657/2011, which was also dismissed on the ground of the delay, keeping open the question of law sought to be raised in this petition. However, those proceedings are with 12 regard to Reference No.05/1996, whereas the present proceeding is with regard to Reference No. 03/1998, as such, in this application the questions, which have been raised by learned counsel for the Management, have never been raised before the learned Labour Court, as such, in an application under Articles 226 of the Constitution of India, the petitioner cannot agitate the issues, which has not been agitated before the learned Labour Court.

21. Learned counsel for the respondent, Mr. Ramawatar Chamaria has further submitted that Reference No. 03/1998 was made vide notification dated 03.08.1998 by an order of the Hon'ble Governor of Bihar and Jharkhand Education Tribunal Act came into existence in the year 2005, but there is no such clear direction in the Jharkhand Education Tribunal Act that all the pending proceeding before the Labour Court with regard to service matter shall be transferred automatically to the Jharkhand Education Tribunal. As such, the workman cannot withdraw an application pending before the learned Labour Court after reference made by the Hon'ble Governor of Bihar nor the Labour Court has any jurisdiction to transfer cases suo-moto pending before them, as such, the judgment passed by the Division Bench in L.P.A. No. 174/2016 is not applicable in this case as the fact of both cases are different and this Court may consider this writ petition on merits.

22. Learned counsel for the respondent, Mr. Ramawatar Chamaria has submitted that the judgment passed by the Apex Court in the case of Neena Aneja and Another (Supra) is not applicable in the present case, as the fact of the case is that, this writ petition is arising out of award from the reference made by the then Hon'ble Governor of Bihar vide Reference Case No.03 of 1998, which was decided vide award dated 07.09.2007 and the same was pronounced on 20.11.2008 and against the same Award, the instant writ petition has been filed before this Court on 21.03.2009.

23. Learned counsel for the respondent, Mr. Ramawatar Chamaria has further submitted, that limitation as envisaged under Section 10 (1)(a) of the Jharkhand Education Tribunal Act, 2005, it appears that there is necessary condition that the grievances must be of any time during the period of 03 years immediately preceding the date of establishment of this Tribunal, 13 which cannot be waived off by this Hon'ble Court also. He has further submitted, that the grievance of the respondent-Workman is of the year, 1992 and the same has been referred by the then Hon'ble Governor of Bihar in the year, 1998, as such, this matter cannot be referred to the Jharkhand Education Tribunal as subsequent judgment passed by the Apex Court is not in the ratio that all the matters have to be referred to the Jharkhand Education Tribunal, as such the judgment cited by the learned counsel for the petitioner is not applicable in the facts and circumstances of the present case.

24. Learned counsel for the respondent, Mr. Ramawatar Chamaria has further submitted that the dispute is also not of the year, 1998 rather dispute has been raised in the year, 1992, as such, subsequent change or subsequent enactment of Jharkhand Education Tribunal Act, 2005 is not applicable in the present facts and circumstances of the case, as such, the objection raised by the petitioner-Management may be rejected and the writ petition may be heard on merits, as Section 10(1)(a) of the Jharkhand Education Tribunal Act, 2005 has limitation.

25. Learned counsel for the respondent, Mr. Ramawatar Chamaria has further submitted that as per Section 17 of the Industrial Disputes Act, 1947 every award, within a period of 30 days from the date of its receipt by the appropriate Government, be published in such manner as the appropriate Government thinks fit. Section 17 of the Industrial Disputes Act further states that subject to the provisions of Section 17-A of the Act, the award published under Sub-section (1) shall be final and shall not be called in question by any court in any manner whatsoever. Section 17-A of the Industrial Disputes Act, 1947 states that an award shall be enforceable on the expiry of 30 days from the date of its publication under Section 17, meaning thereby award can only be challenged within a period of 30 days from the date of its receipt by the appropriate Government.

26. Learned counsel for the respondent, Mr. Ramawatar Chamaria has placed Sections 17 & 17-A of the I.D. Act, 1947, which may profitably be quoted hereunder:-

17. Publication of reports and awards - (1) Every report of a Board or Court together with any minute of dissent recorded therewith, every arbitration award and every award of a Labour Court, Tribunal or National Tribunal shall, within a period of 30 days from the date of its receipt by the appropriate Government, be published in such manner as the appropriate Government thinks fit;

(2)Subject to the provisions of section 17-A, the award published under sub-section (1) shall be final and shall not be called in question by any Court in any manner whatsoever.

17-A. Commencement of the award- (1) An award (including an arbitration award) shall become enforceable on the expiry of thirty days from the date of its publication under section 17.

Provided that-

(a) if the appropriate Government is of opinion, in any case where the award has been given by a Labour Court or Tribunal in relation to an industrial dispute to which it is a party; or

(b) if the Central Government is of opinion, in any case where the award has been given by a National Tribunal, that it will be inexpedient on public grounds affecting national economy or social justice to give effect to the whole or any part of the award, the appropriate Government, or as the case may be, the Central Government may, by notification in the Official Gazette, declare that the award shall not become enforceable on the expiry of the said period of thirty days.

(2)Where any declaration has been made in relation to an award under the proviso to sub-section (1), the appropriate Government or the Central Government may, within ninety days from the date of publication of the award under Section 17, make an order rejecting or modifying the award, and shall, on the first available opportunity, lay the award together with a copy of the order before the Legislature of the State, if the order has been made by a State Government, or before Parliament, if the order has been made by the Central Government.

(3)Where any award as rejected or modified by an order made under sub- section (2) is laid before the Legislature of a State or before Parliament, such award shall become enforceable on the expiry of fifteen days from the date on which it is so laid; and where no order under sub-section (2) is made in pursuance of a declaration under the proviso to sub-section (1), the award shall become enforceable on the expiry of the period of ninety days referred to in sub- section (2).

(4) Subject to the provisions of sub-section (1) and sub-section (3) regarding the enforceability of an award, the award shall come into operation with effect from such date as may be specified therein, but where no date is so specified, it shall come into operation on the date when the award becomes enforceable under sub-section (1) or sub-section (3), as the case may be.]

27. Learned counsel for the respondent, Mr. Ramawatar Chamaria has further submitted, that this Award has already been notified and it has been referred to the learned Judicial Magistrate for enforcement and penalty for breach of settlement or award has been discussed under Section 29 of the Industrial Disputes Act, 1947.

28. Learned counsel for the respondent, Mr. Ramawatar Chamaria has further placed reliance upon the judgment passed in the case of Arindam Chattopadhyay & Ors., vs. State of West Bengal & Ors, reported in AIR 2013 (4) SC 1535 equivalent to 2013 (4) SCC 152 and has submitted that the facts of the present case is similar to the case which has already been adjudicated by the Apex Court. Para 13 of the said judgment may profitably be quoted hereunder :-

"13. Reverting to the facts of this case, we find that although the appellants were recruited as ACDPOs, the State Government transferred and posted them to work as CDPOs in ICDS projects. If this would have been a stop gap arrangement for few months or the appellants had been given additional charge of the posts of CDPO for a fixed period, they could not have legitimately claimed salary in the scale of the higher post, i.e., CDPO. However, the fact of the matter is that as on the date of filing of the Original Application before the Tribunal, the appellants had continuously worked as CDPOs for almost 4 years and as on the date of filing of the writ petition, they had worked on the higher post for about 6 years. By now, they have worked as CDPOs for almost 14 years and discharged the duties of the higher post. It is neither the pleaded case of the respondents nor any material has been produced before this Court to show that the appellants have not been discharging the duties of the post of CDPO or the degree of their responsibility is different from other CDPOs. Rather, they have tacitly admitted that the appellants are working as full-fledged CDPOs. since July, 1999. Therefore, there is no legal or other justification for denying them salary and allowances of the post of 16 CDPO on the pretext that they have not been promoted in accordance with the Rules. The convening of the Promotion Committee or taking other steps for filling up the post of CDPO by promotion is not in the control of the appellants. Therefore, they cannot be penalised for the Government's failure to undertake the exercise of making regular promotions."

29. Learned counsel for the respondent, Mr. Ramawatar Chamaria has further submitted that the Apex Court in the judgment of Neena Aneja and Another (supra), in para 86, which is profitably quoted hereunder: -

"86. For the above reasons, we have come to the conclusion that proceedings instituted before the commencement of the Act of 2019 on 20 July 2020 would continue before the fora corresponding to those under the Act of 1986 (the National Commission, State Commissions and District Commissions) and not be transferred in terms of the pecuniary jurisdiction set for the fora established under the Act of 2019. While allowing the appeals, we issue the following directions:

(i) The impugned judgment and order of the NCDRC dated 30 July 2020 and the review order dated 5 October 2020, directing a previously instituted consumer case under the Act of 1986 to be filed before the appropriate forum in terms of the pecuniary limits set under the Act of 2019, shall stand set aside;

(ii) As a consequence of (i) above, the National Commission shall continue hearing the consumer case instituted by the appellants;

(iii) All proceedings instituted before 20 July 2020 under the Act of 1986 shall continue to be heard by the fora corresponding to those designated under the Act of 1986 as explained above and not be transferred in terms of the new pecuniary limits established under the Act of 2019; and

(iv) The respondent shall bear the costs of the appellant quantified at Rupees Two lakhs which shall be payable within four weeks."

30. Learned counsel for the respondent, Mr. Ramawatar Chamaria has further submitted that even the writ petitioner has not taken such plea in the writ petition and after 14 years of passing of the impugned award or 13 years of the institution of the writ petition, such verbal plea has been taken with regard to jurisdiction because of the different judgments passed by the Apex Court, thus in view of the fact and circumstances of the present case as submitted above under Section 10 (1)(a) of the Jharkhand Education Tribunal Act, 2005 and under Section 17 and 17-A of the Industrial Disputes Act, 1947 and the 17 ratio laid down by the Apex Court in the case of Neena Aneja and Another (supra) maintainability question raised by the petitioner- Management may be rejected.

31. Learned counsel for the respondent, Mr. Ramawatar Chamaria has further relied upon the General Clauses Act, 1977 and referred Section 6 of the General Clauses Act, which reads as follows:-

"6. Effect of repeal- Where this Act, or any Act made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-

(a)revive anything not in force or existing at the time at which the repeal takes effect; or

(b)affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder ; or

(c)affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

(d) affect any penalty forfeiture or punishment incurred in repsect of any offence committed against any enactment so repealed; or

(e)affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, any any such penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed."

32. Learned counsel for the respondent, Mr. Ramawatar Chamaria has further submitted that in the Jharkhand Education Tribunal Act, 2005, there is no repeal clause, that this Act repeals all the acts with regard to the service condition of the person like respondent- workman.

33. Learned counsel for the respondent, Mr. Ramawatar Chamaria has further submitted that in the Jharkhand Education Tribunal Act, 2005 there is no provision that pending proceeding shall be transferred and as per Section 10 (1)(a) of the Jharkhand Education Tribunal Act, 2005, where the limitation has been prescribed, such cases cannot be transferred to the Jharkhand Education Tribunal, as such, in view of Sections 17 and 17-A of the Industrial Disputes Act, the award is binding, as such, technical plea raised by the learned counsel for the petitioner is non est in the eyes of law 18 and that may be rejected and the case may be heard on merits.

34. Learned counsel for the respondent, Mr. Ramawatar Chamaria has further submitted that the case of the petitioner-Management before this Court is contrary to the pleading before the learned Labour Court. He has further submitted, that in the Writ Petition, petitioner- Management has taken a plea that respondent-Workman, Sri Ram Dhani Roy was working as Peon and he has not worked as In-charge Librarian, which is contrary to the material available on record, which has been brought on record by way of supplementary counter affidavit dated 02.02.2012 as Annexure-A Series, where the office order dated 09.07.1990 showing that Mr. R.K. Mahapatra and Mr. S. K. Panda will conduct Library verification from today. The verification will be held under the In-chargeship of Mr. R.D Roy, Mr. Rajendra Prasad, Peon will also help during the verification. This document / office order has already been brought on record before the Labour Court as Exhibit-W-24, which shows that this respondent-Workman was at least working as incharge of the Library prior to issuance of this office order on 09.07.1990 and the Principal of the School, acknowledged the same.

35. Learned counsel for the respondent, Mr. Ramawatar Chamaria has further submitted that Exhibit W-29 also shows that vide Reference No. DAV(D)/243/89 dated 17.04.1989, a certificate has been issued by the then Principal of the School, stating therein that this is to certify that Shri Ram Dahin Roy has been working in this organization since 02.04.1984, as Library Assistant. He has been holding the charge of Librarian. His performance is up to the desired standard. I wish him success in all his future pursuits.

36. Learned counsel for the respondent, Mr. Ramawatar Chamaria has further submitted that office order dated 18.07.1985, shows that consolidated monthly salary of the following members of the non-teaching staff with effect from 01.07.1985 will be as under and the name of the respondent- Workmen, Ram Dahin Roy appears at serial no.2 showing Library Assistant having salary of Rs.600/- per month, and the same has also been brought on record in the same supplementary counter-affidavit which has been brought on record before the learned Labour Court as Exhibit W-25. Similarly is 19 Exhibit W-37 where the Principal of the School has counter-signed as this respondent has taken charge as per the order of the Principal, the charge of the Library is being handed over by Mr. K.K. Sharma and the same is taken over by Mr. R.D. Roy as on 20.03.1991. Similarly Exhibit W-28, which has also been brought on record by way of the same supplementary counter- affidavit, it has been certified that respondent, Shri Ram Dahin Roy has been working in this organization since 02.04.1984, as Library Assistant. He has been holding the charge of the Librarian. This certificate has been granted by the Principal on 06.01.1989.

37. Learned counsel for the respondent, Mr. Ramawatar Chamaria has further placed reliance upon an application filed on 11.03.1991 before the Principal, Tata DAV Jamadoba, Dhanbad, stating therein that he has been directed by Hon'ble Director to join in Tata DAV School, Jamadoba, Dhanbad as Library Assistant, please allow to join duty and oblige. As such, from the date of joining of the respondent, Sri Ram Dahin Roy in DAV School, Jamadoba, Dhanbad, his joining has been accepted as Librarian Assistant and there is no controversy with regard to the same, which has been brought on record by way of same supplementary counter-affidavit and nothing contrary to the same has been brought on record by the School or Management before the learned Labour Court.

38. Learned counsel for the respondent, Mr. Ramawatar Chamaria has further submitted, that by way of supplementary counter-affidavit, document has been brought on record with regard to the Ministerial staff and existing pay structure and the Revised Scale, Pay Band and Grade Pay where at Srl. no.6, Present scale as 5000-150-8000 is the salary for Assistant / Lab & Lib. Assistant's Sr. Scale, as such, the same has been revised as Rs.9,300/- to 34,800/- in PB-2 in Grade Pay of Rs.4200/-.

39. Learned counsel for the respondent, Mr. Ramawatar Chamaria has thus, submitted that in view of such documents brought on record before the learned Labour Court as well as some of the records brought before this Hon'ble Court on affidavit and in view of the award passed by the learned Labour Court directing the petitioner-Management to pay the benefits of post and pay scale of Assistant Librarian to respondent-Workman, Sri Ram 20 Dahin Roy, Tata DAV School, Jamadoba, Dhanbad, who was working as a Library Assistant since 02.04.1984, the respondent is entitled for wage and other benefits of Library Assistant from the date of working i.e. 02.04.1984 till the date of superannuation. As such, this Court may not interfere with the award, which is binding under Section 17A of the Industrial Disputes Act, 1947 and this Court cannot sit like a Court of appeal under Article 226 of the Constitution of India in a Labour matter. The Writ Court has very limited jurisdiction in view of the judgment passed by the Apex Court in the case of Cox & Kings (Agents) Ltd. vs. Workmen, reported in 1977 (2) SCC 705 and also in the case of D.P. Maheshwari vs. Delhi Admn., reported in 1983 (4) SCC 293. As such, this Court may also grant interest because of non- compliance of the award, which has caused monetary loss to the respondent- Workman because of the pendency of the writ petition before this Court preferred by the writ petitioner on frivolous ground, as such, interest may also be awarded @ 7.5% in view of the judgment passed by the Apex Court in the case of Dharampal & Sons Vs. U.P. Transport Corporation, reported in 2008, JCR 4 79 SC/ (2008) 12 SCC 208.

40. Learned counsel for the respondent, Mr. Ramawatar Chamaria appearing for the respondent has further submitted that the judgment passed by the Apex Court in the case of Workmen Employed by Hindustan Lever Ltd. Vs. Hindustan Lever Limited, (1984) 4 SCC 392 as referred in the impugned award as (1974) 3 SCR 510 is the same reported in (1984) 4 SCC 392 and in the recent judgment passed by the Apex Court in the case of Arindam Chattopadhyay (Supra) (para-13 & 14), the same view has been concurred by the Apex Court, as such, the finding recorded by the learned Labour Court is justified, which does not require any interference by this Court under Article 226 of the Constitution of India and the writ petition is fit to be dismissed.

41. Learned counsel for the respondent, Mr. Ramawatar Chamaria has submitted that so far qualification possessed by the respondent is concerned, Exhibit - W-13 shows that respondent was intermediate passed, Exhibit - W- 26 shows that Principal, DAV Public School has recommended the Coalfields Library Association, Dhanbad for experience certificate in favour 21 of respondent and thus Exhibit -W-14 Certificate in Library and Information Science was issued in favour of the respondent, which has been considered by the DAV for appointment on the post of Library Assistant, as such a person, who has performed the duty of Library Assistant to the satisfaction of the Principal, his benefit of salary cannot be denied by the Management and cannot be asked to work as a Library Attendant on the basis of document, which has never been exhibited before the learned Labour Court and the same cannot be looked into by this Court, as it has rightly been stated by learned counsel for the petitioner that the document, which has not been exhibited in the Labour Court cannot be looked into under Article 226 of the Constitution of India in writ court arising out of award passed by learned Labour Court.

42. Learned counsel for the respondent, Mr. Ramawatar Chamaria has referred Para-9 of the impugned award, where the Headmaster of Tata DAV School Jamdoba has deposed that Ram Dahin Roy was working in his school as Library Attendant. He joined in his school after being transferred from another school. The workman has produced the following documents which have been marked exhibits without any objection. Ext. W-12 is the Certificate No. DAV(D)/1021/89 dated 6.1.89, which has been issued by Sr. R. Mandal, Principal of DAV Public School. According to the Principal, the workman had been working as a Library Assistant and also holding the charge of Librarian since 2.4.1984. His performance was up to the desired standard.

43. So far the order which has been barred under Section 10 (1)(a) of the Jharkhand Education Tribunal Act is concerned, Mr. Ramawatar Chamaria has submitted that the dispute, has been raised by the respondent - Ram Dahin Roy and complaint has been made before the Hon'ble Governor. The Hon'ble Governor of Bihar has issued reference vide Notification No. 7/L-D- 1602/98-L&E-3235 dated 03.08.1998, which reads as follows:-

"Whether not to give benefit of post and pay scale of Assistant Librarian to Shri Ram Dahin Roy, Tata D.A.V. School, Jamadoba is justified? If not, what relief the workman is entitled for ?"

As such, it is an order, which has limitation of 03 years under Section 10 (1)(a) of the Jharkhand Education Tribunal Act, 2005 and the learned Labour Court has rightly passed an award granting benefit of post and pay scale of Assistant Librarian to Mr. Ram Dahin Roy, which cannot be said to be a perverse finding, as such the Management should be fair enough to grant post of Assistant Librarian to Sri Ram Dahin Roy and the pay scale to the Ram Dahin Roy as they have not disclosed the pay scale of any employees by not bringing any material on record by the Management. If a fact is suppressed by the Management, then the Labour Court has rightly passed an order to assess the same as per the prevalent document and if still the Management is suppressing the fact, then as per the current pay, they have to consider that what was the corresponding pay before the revision and accordingly, the benefits has to be granted.

44. Learned counsel for the petitioner, Mr. Indrajit Sinha has further submitted that so far the judgment relied by the learned counsel for the respondent in the case of Arindam Chattopadhyay (Supra) is concerned, the same is not applicable in the present case, as there was post identified, whereas in the present reference, no such post of Assistant Librarian has been identified, as such, the judgment is not applicable in the present case in the facts and circumstances of the case.

45. Learned counsel for the petitioner has submitted that so far the case of D.P. Maheshwari (supra) is concerned, the same is not applicable in the present case as it relates to interlocutory and preliminary objection raised by the Management before the learned Labour Court, which has been deprecated by the Supreme Court, but the scope of Article 226 of the Constitution of India is not limited. Thus, on the ground of jurisdiction, the impugned Award is bad in law and on the count of merit, the finding recorded by the learned Labour Court in award is perverse, as such, impugned Award may be set aside.

46. After hearing learned counsel for the parties and considering the submissions made on behalf of the parties and perusing the materials brought on record, it appears that the writ petition has been filed against the award passed in Reference Case No. 03/1998, which was referred by 23 Hon'ble Governor of Bihar, Patna vide Notification No. 7/L-D-1602/98- L&E-3235 dated 03.08.1998, which is as follows: -

"Whether not to give benefit of post and pay scale of Assistant Librarian to Shri Ram Dahin Roy, Tata D.A.V. School, Jamadoba is justified? If not, what relief the workman is entitled for?"

The award was pronounced in the open court on 20.11.2008 by the Presiding Officer, Labour Court. If the judgment is pronounced on 20.11.2008, it means that it is the judgment/award date 20.11.2008, as such, typographical mistake i.e., date 07.09.2007 mentioned at page no. 1 and page no. 10 of the impugned award is hereby ignored and it is considered to be Judgment/award dated 20.11.2008, for which the writ petition has been filed before this Court on 21.03.2009. The main contention in the writ petition was with regard to the maintainability, because of the subsequent judgment passed by the Apex Court, the question has also been raised regarding the maintainability of a reference before the learned Labour Court after commencement of Jharkhand Education Tribunal Act, 2005. Much reliance has been placed upon the judgment passed by the Division Bench of this Court in the case of St. Xavier's School Vs. Kunjal Kumar passed in LPA No. 174/2016 and the judgment passed by the Apex Court in the case of Neena Aneja & Another (supra).

47. Another question which has been assailed by the learned counsel for the petitioner is with regard to merit, as such, it would be appropriate for this Court to adjudicate the maintainability of the proceeding before the Labour Court after the commencement of the Jharkhand Education Tribunal Act, 2005.

48. For deciding the issue of maintainability, it is pertinent to look into the Section 8 and Section 10(1)(a) of Jharkhand Education Tribunal Act, 2005 which has been emphasized by the learned counsel for the petitioner. The provisions of Section 8 and Section 10(1)(a) of Jharkhand Education Tribunal Act, 2005 read as follow:-

8. Jurisdiction, power and authority of the Jharkhand Education Tribunal. - (1) Save as otherwise expressly provided in this Act, the Jharkhand Education Tribunal shall exercise on and from the appointed 24 day, all the jurisdiction, power and authority exercisable immediately before that day by all Courts (Except the Jharkhand High Court and Supreme Court of India) regarding:-

(a) Matters concerning recruitment to any post in connection with the affairs of the educational institution;

(b) All matters concerning the service conditions of employees of the educational institutions;

(c) Grievances of the employees against the management of the educational institutions;

(d) Grievances of the guardians and parents of students against the management of the educational institutions regarding teaching standards, fee structure, infrastructural facilities, development works and allied matters related thereto;

(e) Such matters relating to educational institutions as may be referred to the Tribunal by the State Government by notification from time to time.

10. Limitation. - (1) A Tribunal shall not admit an application, unless-

(a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date of the establishment of this Tribunal; and

(b) no proceeding of the redressal of such grievance had commenced before the said date before any High Court.

(2) Besides cases admissible for adjudication under sub-section (1), an application may be admitted within a period of six months from the date of the issue of the order by an educational institution. This limitation may be condoned by the Tribunal if it is satisfied that there exists sufficient cause for not making the application within such period.

49. From the bare perusal of Section 8 of the Jharkhand Education Tribunal Act, 2005 (JET Act, 2005), it appears to this court that the jurisdiction, power and authority of the Jharkhand Education Tribunal is exercisable immediately from the date of commencement i.e. 14.08.2005 and from such date of commencement any matters arising with regard to the educational institutions shall be referred to the Tribunal by the state Government for the adjudication.

50. Section 10(1)(a) of Jharkhand Education Tribunal Act, 2005 states about the period of Limitation for admitting an application before the Jharkhand Education Tribunal. The Sub Clause (a) of Clause (1) of section 10 of the Act, prescribes the Limitation period of three years for admitting an application, if such application made within a period of three years immediately preceding the date of commencement of the Jharkhand Education Tribunal Act. It appears to this court that the under Section 10(1)

(a) of Jharkhand Education Tribunal Act, 2005 the jurisdiction of Tribunal to admit any application or order which arises during the period of three years of such application or order and reckons immediately preceding the date of commencement of the Act.

51. It is admitted fact that the Reference No. 03/1998 was made vide notification dated 03.08.1998 and Jharkhand Education Tribunal Act came into existence in the year 2005, but there is no such clear direction and provision in the Jharkhand Education Tribunal Act, 2005 that all the pending proceeding or the matter adjudicated before the Labour Court with regard to service matters shall be transferred automatically to the Jharkhand Education Tribunal. Even, the workman cannot withdraw an application pending before the learned Labour Court after reference made by the Hon'ble Governor of Bihar nor the Labour Court has any jurisdiction to transfer cases suo-moto pending before them.

52. It is pertinent to mention here that the questions with regard to jurisdiction i.e. the plea with regard to the Jharkhand Education Tribunal Act, 2005 has not been raised before the learned Labour Court at the time of adjudication and the award passed accordingly. However, from the submission of the counsels it came to the notice of this court that the award has already been notified and referred to the learned Judicial Magistrate for enforcement and penalty, under Section 29 of Industrial Disputes Act,1947.

53. It also appears from Section 10(1)(a) of Jharkhand Education Tribunal Act, 2005 that there is necessary condition that the grievances must be of any time during the period of three years immediately preceding the date of establishment of the Tribunal, which cannot be waived off by this Court also. The grievance of the respondent-Workman is of the year, 1992 and the same 26 has been referred by the then Hon'ble Governor of Bihar in the year, 1998, as such, this matter cannot be referred to the Jharkhand Education Tribunal as subsequent judgments passed is not in consonance to the submission of the writ petitioner that all the matters have to be referred to the Jharkhand Education Tribunal.

54. The bare perusal of para-86 of the judgment of Neena Aneja and Another (supra), it is evident that the apex court while dealing the issue of fora corresponding with regard to the Consumer Protection Act of 1986, clearly held that the proceedings instituted before the commencement of the Act of 2019 on 20 July, 2020 would continue before the fora corresponding to those under the Act of 1986 pending before the National Commission, State Commissions and District Commissions and not be transferred.

55. At this juncture, it is pertinent to mention that statute can be given retrospective effect where the statute itself expressly provides the same for such reference. The Apex court in the case of Mohd. Rashid Ahmad v. State of U.P., reported in (1979) 1 SCC 596 has held that the court shall give such enactment into operation where the enactment expressly states that it shall be given retrospective effect. The para 27 and 28 which is quoted herein: -

27. Perhaps no rule of construction is more firmly established than this -- that retrospective operation is not to be given to a statute so as to impair an existing right or obligation other than as regards the matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in a language which is fairly capable of either interpretation, it ought to be construed as prospective only. But where, as here, it is expressly stated that an enactment shall be retrospective, the courts will give it such an operation.

It is obviously competent for the legislature in its wisdom, to make the provisions of an Act of Parliament retrospective. That is precisely the case here. In Quinn v. Prairiedale [(1958) 25 WWR 241] where a subsequent enactment provided that the relevant section should be deemed never to have been contained in the earlier statute, it was held to be sufficient to rebut the presumption against retrospectively. [ Craies on Statute Law, 6th Edn., p. 390 and Maxwell on Interpretation of Statutes, 12th Edn., p. 216]

28. In State of Punjab v. Mohar Singh [AIR 1955 SC 84 : (1955) 1 SCR 893] and in Indira Sohanlal v. Custodian of Evacuee Property, Delhi [AIR 1956 SC 77 : (1955) 2 SCR 1117] this Court had to consider the effect of repeal of an enactment followed by re-enactment in the light of Section 6 of the General Clauses Act, 1897. The line of enquiry, as 27 observed in Mohar Singh case, would be not whether the new Act expressly keeps alive old rights and liabilities, but whether it "manifests an intention to destroy them". It was held that Section 6 of the General Clauses Act was not entirely ruled out when there was a repeal of the enactment followed by a fresh legislation unless the new legislation manifested an intention to the contrary. Such incompatibility had to be ascertained from a consideration of all the relevant provisions of the new law and the mere absence of a saving clause was, by itself, not conclusive.

56. The judgment upon which much reliance has been placed by the counsel for the petitioner as well as counsel for the respondent in the case of Neena Aneja and Another (supra) at para 77 in which Section 6 (c) of the General Clauses Act has been placed, which reads as follows:-

6. Effect of repeal.- where this Act, or any act made after commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not -

57. This court after the bare reading of the Section 6 of the General Clauses Act is of view that it provides governing principles with regard to the impact of the repeal of a central statute or regulation. Section 6 of the General Clauses Act is applicable where any central act or regulation made after commencement of General clauses Act, repeals any enactment act. These governing principles are to apply unless a different intention appears. Clause (c) of Section 6 inter alia stipulates that a repeal would not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed.

58. It appears from the fact of the case, that it started with a Reference of Hon'ble Governor of Bihar, Patna vide Notification No. 7/L-D-1602/98- L&E-3235 dated 03.08.1998 under the Industrial dispute Act 1947, much earlier before the enactment of the Jharkhand Education Tribunal Act, 2005 and even after or before the subsequent enactment i.e. Jharkhand Education Tribunal Act, 2005, no such repealment or amendment has been made in Industrial dispute Act 1947 and JET Act,2005 which shall affect the remedy or the proceedings or the award granted with respect to the Reference made in the present case and the same has been discussed by the Apex court at 28 para 28 of Mohd. Rashid Ahmad(supra).

59. So far, the judgment of the Division Bench of this Hon'ble Court relied by the learned counsel for the petitioner is concerned, this Court is of the opinion that the Division Bench judgment passed in St. Xavier's School (Supra) is not applicable in the present case as the fact of that case is different from the fact of the present case in hand. The case of St. Xavier's School (Supra) was of the year 2011 after commencement of Jharkhand Education Tribunal Act, 2005, whereas the present case is Reference Case No. 03/1998 made by Hon'ble Governor dated 03.08.1998 and an order for the above reference has been made under section 10 of Industrial Disputes Act,1947.

60. On the basis of submission made by the respondent and relying on the judgment passed by the Apex Court in the case of Sarup Singh and Another (Supra), wherein the Apex court has held that the question of law can be raised at any stage.

61. In view of Section 6 of the General Clauses Act coupled with the judgment passed in the case of Neena Aneja (Supra) and perusing the various provisions of the Jharkhand Education Tribunal Act, 2005 and Industrial Disputes Act, 1947, this court is of the opinion that the question of maintainability as question of law raised by the learned counsel for the petitioner is not sustainable in view of the facts and thus negate the same also in view of the judgment of Mohd. Rashid Ahmad (Supra). Accordingly, the objection raised by the petitioner with regard to maintainability is overruled.

62. So far merit of the case is concerned with regard to qualification possessed by respondent Ram Dahin Roy and the post, which has never been sanctioned, cannot be created by the Labour Court or any Court by a judicial order, this Court has considered the entire materials on record. From perusal of the record, it appears that the Management has taken a plea in the written statement that Ram Dahin Roy was a Librarian Attendant, but while adducing the evidence before the learned Labour Court, the Management has only examined one witness i.e. MW-1, Headmaster of Tata DAV School and except that no document or any other witness has been examined on behalf 29 of the Management. So far the respondent Ram Dahin Roy is concerned, he has examined himself as WW-1 and also exhibited a large number of documents up to Exhibit-W-71.

63. Learned counsel for both the parties have placed documents, which have been exhibited before the learned Labour court and also placed some documents, which have not been exhibited before the learned Labour court, but this Court cannot look into those documents which have not been exhibited before the learned Labour Court and as such, this Court is of the opinion that except the oral testimony of MW-1, Headmaster of Tata DAV School, there is no evidence on behalf of the Management to prove the pleadings made in the written statement, as it has been pointed out during the argument that MW-1 has accepted that workman had been working as a Library Assistant and also holding the charge of Librarian since 02.04.1984 and his performance was up to the desired standard. There is no reason for this Court to look into the documents, which have not been exhibited.

64. So far the documents, which have been considered by the learned Labour Court particularly, Exhibit-W-13 is the Certificate issued by the Bihar Intermediate Education Council, Patna, Exhibit-W-14 is the Coalfields Library Association Certificate issued to the respondent pursuant to Exhibit- W-26 issued by Principal, DAV Public School, Exhibit-W-15 is the Class 10 Certificate issued by Bihar School Examination Board and various other documents such as Exhibit-W-12 is the Certificate issued by Principal, Sri K. Mandal on 06.01.1989 certifying that "Sri Ram Dahin Roy has been working in this organization since 02.04.1984 as Library Assistant and he has been holding the charge of Librarian and his performance is up to the desired standard." Exhibit-W-16 is a letter for constituting a Grievance Committee to look into the grievances of the staff. Exhibit-W-19 is the letter dated 17.08.1991 issued by Director, N.D. Grover to one of the teachers, wherein it is admitted that report of the Grievances Committee has been implemented in letter and spirit. Exhibit-W-20 is the letter of the Principal, DAV School dated 05.08.1987 to the Director, DAV Public Schools regarding enhancement of salary-staff admitting that "Sri Ram Dahin Roy has been working as Library Assistant on temporary basis. He joined duties on a 30 consolidated salary of Rs. 550/- on 02.04.1984. His salary was Rs. 600/- w.e.f. 01.07.1985. Mr. Roy has been holding the charge of Library and collection of fee in the school. I would like to inform that Sri Roy has been trying to put in his best to improve his abilities in order to discharge his duties more efficiently. Of late, he has also been showing a sense of sincerity in discharging his duties. In the light of above and in view of his family circumstances, it is recommended that his salary be enhanced by Rs. 200/- w.e.f. 01.07.1987. The initial salary of the corresponding regular employee of the school, according to the new pay scale, works out to be Rs." Exhibit - W-23 is office order dated 07.08.1990, which reads that "The following Committee of the Staff-Members will finalise the sale of newspaper and magazine and reading room materials of Library (upto July 1990 for Newspaper) and Answer Books of Examination Deptt. (upto 1988-89 Session) and in that Office order, Sri Ram Dahin Roy has been shown as Library In-charge.", and the same is with regard to Exhibit-W-24. In Exhibit-W-25, the respondent Ram Dahin Roy has been admitted and accepted as Library Assistant by the Principal, DAV Public School. Exhibit- 26, 27, 28, 29, 30, 31, 32 and other documents, brought on record amply shows that respondent Ram Dahin Roy was working as a Library Assistant, but the Management has deliberately not produced any document so as to controvert the same. Thus the question of creation of post by judicial order is unnecessarily raised, as the Exhibit W-19 itself shows that report of the Grievance Committee has already implemented.

65. So far the judgment passed by the Apex Court in the case of Arindam Chattopadhyay (Supra) (para-13 & 14), it is applicable in the case of the respondent if the Management is suppressing the fact and taking the work of Library Assistant, it is incumbent upon the Management to pay equal salary.

66. So far the qualification required or creation of post as submitted by learned counsel for the petitioner is concerned, this submissions are not acceptable to this Court in view of the admission made by MW-1 Headmaster of Tata DAV School and the documents exhibited on behalf of the Workman (Exhibit-W-24 & W-25) as once the work is being taken by the School and documents are not brought by the Management before the 31 learned Labour Court, it only signifies that pursuant to the report of the Grievances Committee (Exhibit-W-16) and reply made by the Director, DAV Public School vide Exhibit-W-19, the post has already been created, the respondent has already been working on the same and thus he is entitled for the salary of the post, as such, I do not find any perversity in the impugned award passed by the learned Labour Court.

67. Under the aforesaid circumstances, the finding recorded by the learned Labour Court with regard to the reference does not require any interference by this Court.

68. Accordingly, the writ petition is hereby dismissed.

69. Both the pending I.As. i.e. I.A. No. 2648/2011 and I.A. No. 266/2022 stand closed.

(Kailash Prasad Deo, J.) Sunil/

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