Calcutta High Court (Appellete Side)
Dd Dhirendra Nath Mondal vs Chairman on 13 June, 2016
Author: Arindam Sinha
Bench: Arindam Sinha
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WP 6356 (W) of 2005
23 13.06.2016
dd Dhirendra Nath Mondal
Vs
Chairman, Hindusthan
Copper Limited & Ors.
Mr. A. K. Srivastava
Mr. Aditya Kr. Mukherjee
... ... For the petitioner
Mr. Soumya Mazumder
Mr. Indrajit Karfa
... ... For the HCL
The writ petition is further heard. While the petitioner
wants adjudication of his writ petition by this Court, Mr.
Mazumder, learned advocate appearing on behalf of HCL
submits, the same should be transferred to the Tribunal for
adjudication. He relies upon a judgment of the Supreme
Court in the case of L. Chandra Kumar vs. Union of India
& Ors. reported in (1997) 3 SCC 261 in particular to
paragraphs 93, 94, 17 and 19, in that order. He submits,
the declaration of law made by that judgment, in particular
under the said paragraphs, require that all actions
contemplated under Section 28 of the Administrative
Tribunals Act, 1985 must be placed for adjudication before
the Tribunal. Hence this writ petition should be transmitted
to the Tribunal for adjudication. He emphasizes what has
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been said in paragraphs 17 and 19 of L. Chandra Kumar
(supra). Paragraph 19 is quoted below :-
"19. Section 29 provides for the transfer to the
Tribunals under the Act, of all service matters pending
in every existing fora before their establishment. The
only exception carved out is in respect of appeals
pending before High Courts. Section 35 vests the
Central Government with rule-making powers and
Section 36 empowers the appropriate Government to
make rules to implement the provisions of the Act and
the matters specified in it. By virtue of Section 37, the
rules made by the Central Government are required to
be laid before Parliament and, in the case of rules
made by State Governments, before the State
Legislature(s) concerned."
Mr. Srivastava, learned advocate appearing on behalf of
the petitioner submits, the writ petition was filed in the year
2005 and, the notification including the respondent
Company, came in December, 2008. He too relies on L. Chandra Kumar (supra) to submit that thereby the power of the Supreme Court and High Courts under Articles 32 and 226 of the Constitution of India were upheld as not taken away by either the amendment to the Constitution bringing in Articles 323A and 323B or in upholding the provisions of the Administrative Tribunals Act, 1985, including Section 28 therein. He lays special emphasis on paragraph 94 of the said judgment which is reproduced 3 below :-
"94. The directions issued by us in respect of making the decisions of Tribunals amenable to scrutiny before a Division Bench of the respective High Courts will, however, come into effect prospectively i.e. will apply to decisions rendered hereafter. To maintain the sanctity of judicial proceedings, we have invoked the doctrine of prospective overruling so as not to disturb the procedure in relation to decisions already rendered."
He submits, the said Act of 1985 is not retrospective. In adjudicating a challenge to the vires of it the Supreme Court in L. Chandra Kumar (supra) had declared that the directions made by that Court were prospective to maintain the sanctity of judicial proceedings. He then relies on a later judgment of the Supreme Court in the case of Himachal Pradesh State Electricity Regulatory Commission & Anr. vs. Himachal Pradesh State Electricity Board reported in (2014) 5 SCC 219. In Himachal Pradesh State Electricity Regulatory Commission (supra) Section 6 of the General Clauses Act, 1897 was referred to which provision saved his client's petition to be heard by this Court.
Section 6 of the General Clauses Act, 1897 is quoted below :-
"6. Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, 4 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 respect 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, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed." In Himachal Pradesh State Electricity Regulatory Commission (supra) the Supreme Court upon grant of special leave was considering appeals arising from a common judgment passed by a learned Single Judge of the High Court of Himachal Pradesh which overturned a decision rendered by the Himachal Pradesh State Electricity Regulatory Commission. It is sufficient to note that under the Electricity Regulatory Commission Act, 5 1988 an appeal was maintainable before the High Court. Such appeal was preferred before the High Court of Himachal Pradesh. During the pendency of the appeal the 1998 Act was repealed and the Electricity Act, 2003 came into force which established appellate Tribunal for appeals to be heard. It was contented before the Supreme Court that the appeal before the High Court should have been transferred to the appellate Tribunal upon enactment of the 2003 Act. In the context the view taken and declaration made in paragraph 25 of Himachal Pradesh State Electricity Regulatory Commission (supra) are reproduced below :-
"25. At this stage, we may state with profit that it is a well-settled proposition of law that enactments dealing with substantive rights are primarily prospective unless they are expressly or by necessary intention or implication given retrospectively. The aforesaid principle has full play when vested rights are affected. In the absence of any unequivocal expose, the piece of legislation must exposit adequate intendment of legislature to make the provision retrospective. As has been stated in various authorities referred to hereinabove, a right of appeal as well as forum is a vested right unless the said right is taken away by the legislature by an express provision in the statute by necessary intention."
Mr. Mazumder will be heard further on the adjourned date. List this writ petition on 20th June, 2016. 6 (Arindam Sinha, J.) 7