Dhirendra Nath Mondal vs Chairman, Hindusthan Copper Limited

Arindam Sinha, J.—The petitioner has sought relief by issuance of mandamus commanding the respondents to forthwith correct and determine his pensionary benefits by amending circular dated 28th May, 2001 as per service contract and also to forthwith give him voluntary retirement. The writ petition was filed on 23rd March, 2005. The respondents are essentially the Government Company, Hindusthan Copper Limited.

By notification dated 1st December, 2008 there was an amendment made to Section 14 of the Administrative Tribunals Act, 1985 to the effect that 15th December, 2008 was specified as the date on and from which the provisions of sub-section (3) of Section 14 of the said Act shall apply to, inter alia, Hindusthan Copper Limited. This writ petition, for relief against such Company, has now come up for hearing.

Mr. Srivastava, learned advocate appearing on behalf of the of the petitioner submits, his client has since crossed the age of superannuation and hence is claiming only the relevant reliefs. Mr. Mazumder, learned advocate appears on behalf of the Company and submits, this writ petition should not be heard by this Court since by application of the provisions of Section 29 of the said Act, all service matters pending in every existing fora before the establishment of the Tribunals, after their establishment, must be transferred to it.

On the question of maintainability the writ petition was heard earlier and the submissions made on behalf of the parties recorded in order dated 13th June, 2016 as are reproduced below :-

"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 v. 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 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 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. v. 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, 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, 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 herein above, 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."

Today Mr. Srivastava argues by referring to paragraph 21 in Commissioner of Income Tax, Orissa v. Dhadi Sahu reported in 1994 Supp (1) SCC 257 which is quoted below :-

"21. It is also true 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 or the court of first instance and unless the legislature has by express words or by necessary implication clearly so indicated, that vested right will continue in spite of the change of jurisdiction of the different tribunals or forums."

He submits, the respondents are urging a change of forum and in Dhadi Sahu (supra) the Supreme Court declared that where the question is of change of forum it ceases to be a question of procedure only. When the Supreme Court in L. Chandra Kumar (supra) had held that Section 28 of the said Act was ultra vires the Constitution of India, Section 29 therein had to be read and interpreted in that context. The writ petition of his client is today up for hearing before this Court presided over by a Single Judge. A decision would provide a right of appeal to either party before a Division Bench of this Court as the final right of appeal which has also been declared to be a vested right of a litigant in Dhadi Sahu (supra). In the event this Court directs transfer of the matter to the Tribunal, his client would, if aggrieved by the order to be made by the Tribunal, have to approach this Court under Article 226 of the Constitution of India but before a Division Bench thereby losing his right to appeal. It is, therefore, his contention that in effect there has been a repeal of his right of appeal and as such Section 6 of the General Clauses Act, 1897 stood attracted to save the proceedings of this writ petition in this Court.

Mr. Mazumder responds by submitting, the Supreme Court in L. Chandra Kumar (supra) considering its earlier judgment in the case of S.P. Sampath Kumar v. Union of India reported in (1987) 1 SCC 124 had declared that the litigant must first approach the Tribunal and, thereafter went on to hold that all such decisions will be subject to the jurisdiction of the High Court under Article 226/227 of the Constitution before a Division Bench of the High Court within whose territorial jurisdiction the Tribunal concerned falls as will serve two purposes. While saving the power of judicial review of legislative action vested in the High Courts under Articles 226/227 of the Constitution, it will ensure that frivolous claims are filtered out through process of adjudication in the Tribunal. The High Court will also have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter. He submits, this is the legislative intent of the said Act as approved by the Supreme Court in declaring the procedure to be followed, as should be followed. Referring to Dhadi Sahu (supra) he submits, that judgment was rendered on the question of whether a certain authority was divested of jurisdiction by amendment relating to a pecuniary value. According to him, the intention of the legislature in amending Section 274(2) of the Income Tax Act, 1961 was not to provide for a change of forum. The divestation of jurisdiction of an authority by operation of the amended provision was a consequence unlike the interpretation of the legislative intent in promulgating the said Act to provide for transfer of all service matters from every fora to the Tribunal under Section 29 of the said Act. Therefore, according to Mr. Mazumder, Dhadi Sahu (supra) cannot be applied in contradiction to L. Chandra Kumar (supra).

This Court has been enriched in hearing the submissions made on behalf of the parties and appreciates the same. The submissions of Mr. Mazumder are accepted to be the judgment of this Court.

The writ petition is dismissed by reason of the said notification since the respondent Company has been specified to be one to which the provisions of sub-section (3) of Section 14 of the said Act applied on and from 15th December, 2008 which was during the pendency of the writ petition. The petitioner will be at liberty to approach the Tribunal with the selfsame cause. On the question of delay the Tribunal will exclude the period of pendency of this writ petition as may be done under Section 14 of the Limitation Act, 1963. The connected application also stands dismissed attracting the same liberty.

Urgent photostat certificate copy of this order, if applied for, be given to the learned advocates for the parties on usual undertakings.