SUPERINTENDING ENGINEER OPERATION CIRCLE ANDHRA PRADESH STATE ELECTRICITY BOARD VISAKHAPATNAM Vs. LABOUR OFFICER SRIKAKULAM

JUDGEMENT

(1.) This is a petition under Article 226 of the Constitution for a writ in the nature of certiorari to quash the order of the Labour Officer and of the Labour Court in the proceedings before us. The facts of the case are that the third respondent was an employee of the petitioner, being a clerk on his establishment at Vijayanagaram, and his services were terminated on the 9th of April, 1971 after he had put in over six months of service. Contending that the termination of his service was not in accordance with the provisions of section 40 (1) of the Andhra Pradesh Shops and Establishments Act, 1966 (hereinafter referred to as 'the Act'), the present third respondent preferred ah appeal before the Labour Officer, Srikakulam, under section 41 (1) and (2) of the Act challenging the termination of his services. While that appeal was pending before the Labour Officer, on the 9th December, 1971, the State Government in exercise of the powers conferred upon it by section 64 (4) of the Act, by G.O.Ms. No. 1822 of that date exempted the establishment of the Andhra Pradesh State Electricity Board and its sub-offices in the State from all the provisions tf the Act. The Labour Officer after enquiry found that the termination of the services of the present third respondent was bad in Law and he by his order dated 9th July, 1973 directed the reinstatement of the present third respondent with back wages. From that order of the Labour Offcer, a second appeal under section 41 (3) of the Act, was preferred to the Labour Court by the present petitioner. One of the contentions advanced before the Labour Court was that the Labour Officer had ceased to have jurisdiction to hear the appeal before him when the Government Notification under section 64 (4) of the Act exempting the establishment of the State Electricity Board was published on the 9th of December, 1971. That contention was negatived by the Labour Court on the ground that the exemption in question was not retrospective in its operation, and the Labour Court after considering the facts of the case confirmed the order of the Labour Officer in regard to the order for rein- staterrent, but vacated his order in regard to back wages, holding that the present third respondent was not entitled to back wages in view of the fact that there was no material placed before the labour authorities by him that he had made any efforts to gain employment elsewhere. With that modification, the appeal before it was dismissed by the Labour Court. It is against that order of the Labour Court that the present writ petition is directed.

(2.) It may be mentioned, at the outset that the only point that was argued before us at the hearing of this writ petition was in regard to the jurisdiction, of the Labour Officer and the Labour Court to hear the proceedings pending before them in view of the notification of the State Government under section 64 (4) of the Act granting exemption to the establishment of the State Electricity Board from all the provisions of the Act, No other question was argued in the course of the hearing of this writ petition. The first thing which must be noted is the language of section 64 (4) of the Act. That section authorises the State Government, by notification, to exempt any establishment or persons from the provisions of the Act. The notification dated 9th December, 1971 published in exercise of the powers under the said Statutory provisions, makes it clear tha t what is exempted is the establishment of the State Electricity Board and all its sub-offices. It would follow from the plain language of section 64 (4) of the Act, read with the notification issued thereunder, that it is the establishment on which the exemption fastens, and not on any proceedings that may be pending. Apart from this interpretation of the language of section 64 (4) read with the notification in question, it is a fundamental principle, wellettled by authority, that a right of appeal to a particular forum is a substantive right which is not lost by alteration in the law, unless a provision is made expressly in that behalf, or a necessarv implication arises. This proposition has been stated in. so many words by the Supreme Court in its judgment in the case of Kasibai v. Mahadu, and has been affirmed in numerous other decisions to which it is unnecessary to refer. Neither the notification, nor section 64 (4) under which it is issued maks any provision, expressly or by necessary implication, taking awav the substantive right which the third respondent had acquired to have his appeal which was pending before the Labour Officer decided by him. or to have the second appeal decided by the Labour Court. As observed by Chagla, G.J., delivering the judgment of the Division Bench in the case of Sipahimalani v. Pidahussein, when a Court of appeal hears an appeal, the appeal constitutes a continuation of the suit, and the right of appeal is a vested and substantive right in the litigant. The position, therefore, is that the proceedings in first appeal before the Labour Officer, and in second appeal before the Labour Court, were in the nature of the continuation of the proceedings which started with the enquiry under section 40 of the Act read with rule 20 of the Rules framed thereunder, and once those proceedings had started, the third respondent had acquired a vested and substantive right to have his appeals decided by the forums constituted under the Act. As observed by the Supreme Court in the case of Mohd. Idris v. Sat Narain. if it is intended to take away the jurisdiction of an authority before whom a case is pending, a provision providing for the transfer of pending cases would commonly be found in a statute which takes away the jurisdiction of one tribunal and confers it on another. The fact that the notification published under section 64 (4) of the Act in the present case does not contain any such provision for transfer of pending appeals from the authorities under the Act tc any other authority, is, in my opinion, also a strong indication that those pending appeals were not intended to be affected by the exemption, which was brought in on. the 9th December, 1971.

(3.) There is yet another way of looking at this question. What is done by the notification dated 9th December, 1971, in granting the exemption to the State Electricity Board from all the provisions of the Act, is in effect, to repeal the Act, pro tanto, as far as the establishment of the State Electricity Board and its sub-offices are concerned. Viewed in that manner, the principle underlying section 8 (f) of the Andhra Pradesh General Clauses Act, is attracted. It is true that the said section would not, in terms, be applicable, for it deals only with the effect of the repeal of an enactment, but there is no reason why the principle underlying that section should not be applied to a case like the present one in which in the form of granting an exemption, what is sought to be done is in effect to repeal the Act, as far as the establishment of the State Electricity Board and its sub-offices are concerned. Applying that principle, we are led to the some conclusion, viz., that the appeal which was pending at the date when the exemption under section. 64 (4) was notified, as well as the subsequent appeal before the Labour Court, were not affected, and both the Labour Officer as well as the Labour Court continued to have jurisdiction to hear and dispose of the respective appeals before them. That being the only ground on which the writ petition was contested before us, I would, therefore, dismiss it. Jayachandra Reddi, J.-I agree. By the Court.-The writ petition is dismissed with costs, Advocates fee Rs. 100. Writ petition dismissed.