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TMI Blog1977 (3) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... these aspects, with the result that we will have to consider now in this judgment the full scope of Article. 226, as substituted by the 42nd Amendment and of Section 58 of that Amendment Act. 2. We may also point out that none of the above cases is under Article. 227 and so much so, no arguments have been advanced on the scope of Article. 227 of the 42nd Amendment. We are not, therefore, expressing any opinion on that particular provision. 3. It must be noted at the outset that the 42nd Amendment Act has not merely added to Article. 226 a new clause here or deleted an old clause there. Instead, by virtue of Section 38 of the Act a new Article. 226 is substituted. Further, some new articles have also been added which have great impact on the scope of Article. 226. Section 58 of the Amendment Act is not made a part of Constitution but has been enacted by the Parliament as a separate provision for pending petitions under Article. 226. Patently it is transitory provision laying down the guidelines according to which petitions pending on the appointed day viz., 1st February 1977 should be disposed of. The new Article. 226 Clause (1) starts with a non-obstante clause. It says that &qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the Constitutional validity of any Central law in any proceedings under that Article.." It may be immediately noticed that Article. 226-A reiterates what is provided under Article. 131-A. These are the specific exclusions from the High Court's jurisdiction under Article. 226. 5. Further, two new Articles - Article. 323-A and Article. 323-B - are introduced in the Constitution by Section 46 of the Amendment Act. Article. 323-A provides for the Constitution of Administrative Tribunal and enables the Parliament to make laws providing for the adjudication of service matters by Administrative Tribunals. Likewise, the appropriate legislature is empowered under Article. 323-B to make laws providing for adjudication or trial by Tribunals of disputes, complaints or offences with respect to all or any of the matters specified in Clause (2) thereof. If and when such laws are made Clause 2(d) of Article. 323-A and Clause 3(d) of Article. 323-B enable the Parliament or appropriate legislature to provide for the exclusion of the jurisdiction of all Courts, except the jurisdiction of the Supreme Court under Article. 136, with respect to the disputes or complaints referred to in Cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly in two respects. The first is in regard to the feature that the power under Article. 226 is now subject to the provisions of Article. 131-A and Article. 226-A, to which aspect we have already adverted. The second point of departure is that the words "and for any other purpose" in former Clause (1) are now absent in Clause (1) or for that matter, in the entirety of the Article.. Excepting in these two respects, Clause (1)(a) is the same as the old Clause (1) word by word. Therefore, it is not necessary to decide the nature of the writs, directions or orders which can be issued and against whom or which authorities they can be issued. The Parliament evidently intended to retain the law as it has stood and, as it has been construed and laid down by the Supreme Court and several High Courts in this behalf. 8. The main point of departure from the old Article. is the inclusion of sub-cls. (b) and (c) in Clause (1). They have been obviously introduced in the place of the words "for any other purpose". It is manifest that by introducing sub-cls. (b) and (c) the Parliament decided to specify the delineate regions of jurisdiction under Article. 226 in the place of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c) of Clause (1) do not cover the entire arena of the jurisdiction under Article. 226. What is stated in those sub-cl. is only illustrative of the power under Article. 226. This idea is illustrated by pointing out that aspects like violation of natural justice, any order being ultra vires, or any order suffering from lack of jurisdiction or being vitiated by error apparent on the face of the record are not mentioned anywhere in Article. 226. These omissions do not mean that the High Court cannot exercise writ jurisdiction under Article. 226 if any proceedings are vitiated by any of the features stated above. It has been consequently urged that none of the principles of writ jurisdiction have been given up by the Parliament. That is why the Parliament deliberately chose to retain the power of the High Court to issue all kinds of writs, directions and orders which were being issued so far. The word 'illegality' occurring in sub-cl. (c), it was stressed before us, is capable of taking in all that was contained in the words "for any other purpose". It has even been argued that despite Article. 37 writs can be sought and issued even to enforce directive principles. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, bye-law, or other instrument made thereunder, or (c) for the redress of any injury by reason of any illegality in any proceedings by or before any authority under any provision referred to in sub-cl. (b) where such illegality has resulted in substantial failure of justice." In addition to the enforcement of any fundamental right, these are the grounds on which a writ, direction or order can now be issued. These grounds other than the enforcement of any of the fundamental rights are classified into two divisions, the first one being covered by sub-cl. (b) and the second one by sub-cl. (c). The broad classification under the two sub-cl. appears to be that sub-cl. (b) applies where there is a contravention of a provision of a substantive law while sub-cl. (c) applied where there is an illegality in proceedings before authorities. However, mere contravention of a provision of substantive law and an illegality in any proceedings by themselves are not sufficient for the issuance of a writ. Only those contraventions of law which have caused to a person, an injury of a substantial nature could provide basis for issuing a writ, direction or order. Similarly, occurrence of illeg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... follow or is imminent, then certainly it would be a case where injury of a substantial nature existed. Let us illustrate this by referring to a notice to a Co-operative Society managing Committee to show cause why it should not be superseded. If on an examination of the contents of the notice and the circumstances attending on the issuance of such notice the Court is satisfied that the supersession has been practically decided upon and that the notice was merely a formal compliance with the statutory requirement, then clearly the Court can treat it as a case of substantial injury. Needless to observe that a writ petition can be entertained and a writ can be issued only of the other requirements of Art. 226 are satisfied. What we are trying to point out at this juncture is that a mere threat should not always be excluded from the category of "injury of excluded from the category of injury of a substantial nature". The Court will have to examine each case in the light of its circumstances and facts. 13. Even in regard to procedural requirements which come under the ambit of sub-cl. (c) some of them may be so important that they could be held to be mandatory: "An ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g up sub-cl. (b) it applies when there has been a contravention of any provision of Constitution other than the provision in Part III thereof (this exclusion in sub-cl.(b) of the contravention of the provisions in Part III is because that is already provided in sub-cl. (a) or any provision of any enactment or Ordinance, or any order, rule, regulation, bye law or other instrument made thereunder. Lengthy arguments have been addressed before us in regard to the scope of the words "any order". It was said that since the word 'any' precedes the word 'order' they should be construed as taking in within their sphere not merely statutory orders but also executive orders or instructions. A number of decisions of the Supreme Court and the High Courts have been placed before us to show that on several occasions the Courts have exercised their extraordinary jurisdiction when there has been contravention of executive orders or directions. Dharakast rules and rules relating to admission into colleges etc., have been cited as illustrations in regard to which Courts have interfered under them causing injury to a person. It is unnecessary to refer to those decisions becau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the words 'made thereunder' govern not merely the words 'other instrument' immediately preceding them, but also any order, rule, regulation and bye-law'. If they are made under the Constitution or any enactment or Ordinance and if there is a contravention of them resulting in substantial injury, then it would be a ground for issuing a writ. Otherwise, the Parliament would not have used the word 'other' before the expression 'instrument made thereunder'. That word brings out the intention of the Parliament that any order, rule, regulation, bye-law are in the nature of instruments made under the Constitution any enactment or Ordinance. Since all of them belong to one genus the word 'other' has been used before the expression 'instrument'. That is to say, an order, rule, regulation or bye-law made under the Constitution any enactment or Ordinance are in the nature of instruments. 18. We may here usefully refer to what the learned author Craies has said in his book on Statute Law (seventh edition) at pages 302 and 303: "Statutory instruments are either (1) orders in Council or (2) other instruments which are variously des ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers conferred by the Constitution'. The natural meaning of the words 'made thereunder' is that any order, rule, regulation, bye-law or instrument, should be one which it made directly under the Constitution any enactment or Ordinance. For example a control order issued under the Essential Commodities Act is an 'order' made under an enactment. Likewise, rules, regulations, bye-laws made by the rule-making authority clearly under the provisions and for the purposes of the enactment are rules, regulations, bye-laws made under the Constitution. That is why it is called 'delegated legislation' and the orders, rules, regulations, bye-laws made in that fashion are also given the status of law. It would be doing violence to the language, if administrative instructions given by the executive authority are considered as instructions 'made under' Art. 73 or Art. 162 of the Constitution. 20. There are many instances where the Supreme Court has explained the scope of the power under Arts. 73 and 162 of the Constitution. We would do well to refer to one such case reported in G.J. Fernandez v. State of Mysore, [1967] 3 SCR 636 . At p. 1757 Wanchoo, C.J. in his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be for enforcement of a fundamental right or on a complaint of contravention of any other provision of the Constitution or a provision of any enactment or Ordinance. 22. Now coming to sub-cl. (c). broadly stated, it would apply to illegalities in proceedings. The words "under any provision referred to in sub-cl. (b). occurring therein refer and govern "proceedings by or before any authority". That is to say, the illegality will have to occur in any proceeding by or before any authority provided under any provision of the Constitution, any enactment, Ordinance or under any order, rule, regulation, bye-law made under the Constitution or enactment or Ordinance. If a particular proceeding before a certain authority is provided by any provision referred to in sub-cl. (b)and if any illegality resulting in substantial failure of justice occurs therein, the matter comes under sub-cl. (c). The illegality in order to attract sub-cl.(c) need not necessarily be in the course of the proceedings before the concerned authority. Even if the order, decision or adjudication given by the authority in such proceeding is vitiated by any illegality, then also it comes within the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, that could also be 'illegality' provided the particular statute under which the proceedings have been taken by the authority concerned specifically excludes the application of the principles of natural justice. Unless there is such express exclusion or exclusion by necessary intendment, it must be taken that the principles of natural justice would apply to all proceedings before authority. Several times if these principles are violated it would result in grave miscarriage of justice causing substantial injury to persons. Therefore, it can be safely concluded that unless a particular statute or provision of law specifically or by necessary implication excludes the application of the principles of natural justice, it would be 'illegality' if in the proceedings any principle of natural justice has been violated and if it has resulted in substantial failure of justice. Needless to say that each case will have to be tested in the light of its own facts. 24. Clause (2) of the new Article. 226 is verbatim the same as Clause 1 (A) of the earlier Article.. In this behalf the old law continues totally. 25. Clause (3), however, introduces a new feature in the exercise of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; provided under any other law. It was also sought to be pointed out that a suit is not a public law remedy while Article. 226 deals only with public law remedy. Even if a suit is considered to be another remedy available to the aggrieved person, the Court cannot straightway refuse to entertain a writ petition if any itself the material facts can be found and decided by the High Court. The decision of the Supreme Court in Century Spinning & Manufacturing Co. Ltd. v. Ulhasnagar Municipality, [1970] 3 SCR 854 was mentioned in this connection. It was also pointed out that the word 'remedy' by itself postulates that it should be adequate and efficacious. 'Remedy' was said to be a particular relief sought, while redress is general in connotation. Therefore the 'other remedy' should be real and not illusory. 'Law' means only statutory law and if a statute itself provides for filing a suit to get a redress, that could become 'other remedy', since it is provided under the law in force. Another argument was that injury is wider than right. The old laws are preserved by Article. 372 of the Constitution. Therefore, common law continues to be in force in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eferred to the decisions of the Supreme Court in State of Madhya Pradesh v. Bhailal Bhai [1964] 6 SCR 261 (supra), Orient Paper Mills v. Union of India, 1973 ECR 1(SC) and that of the Madras High Court in In re Thippaswami, AIR 1952 Mad 112 . Learned standing counsel also contended that the Government could object to the maintainability of the writ petition even at the stage of final disposal since it could not intervene at the admission stage. Learned Advocate-General appearing for the State endeavoured to construe the word 'such redress' as the redress postulated by Clause (b) or (c). He pointed out that the concept of sufficiency, efficacy and speediness does not come into the picture in view of new Clause (3). The mere existence of a remedy is sufficient. The objection to the maintainability of the writ petition can be raised at any stage of the writ petition. Suit is not ruled out as an alternative remedy. Law in force takes in common law also. 27. Having noticed all these contentions raised on both sides, we must once again point out that the position as to the bar to the maintainability of writ petitions will have to be examined and stated only on the basis of the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being in force. A suit cannot be excluded from this wide amplitude of the 'other remedy'. We seek support to this view from State of Madhya Pradesh v. Bhailal Bhai ( [1964] 6 SCR 261 ) (supra), Thamsingh v. Superintendent of Taxes, [1964] 6 SCR 654 and Tata Engineering and Locomotive Co., Ltd, v. Asst. Commissioner of Commercial Taxes, [1967] 2 SCR 751 . 29. Care must be taken to clarify another aspect. Mere existence of what is called 'another remedy' provided under the same law for the time being in force cannot always be said to be a remedy which is capable of giving such redress as is provided under sub-cl. (b) or sub-cl. (c). The other remedy provided under other law shall not be illusory. That should be real. We may give an example to bring home this aspect. Supposing there is an appeal provided against the decision of a particular authority under a statute, the breach of which is complained of. But if it is manifest from the record that the primary authority has acted under the instructions or directions of the higher authority, which is also the appellate authority, then there is no point in saying that a writ petition would not be available because there i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . But this position no more obtains in view of the recent amendment to the Civil Procedure Code which also came into force on 1-2-1977. Section 141 Civil Procedure Code says that the procedure provided in the code in regard to suits shall be followed as far as it can be made applicable, in all proceedings in any Court of Civil Jurisdiction. Now by virtue of the new amendment to the Civil Procedure Code, an explanation is added to this Section which says that any proceeding under Article. 226 of the Constitution does not come within the meaning of the word 'proceedings' occurring in Section 141. Therefore, it is no more possible to say, relying on the procedure of the Civil Procedure Code, that service on the learned Government Pleader is service on the Government which is generally the party against whom a writ petition is filed. 31. Furthermore Clause (4) patently seeks to introduce a rule that interim orders shall not be passed unless material papers are furnished to the party and it is given an opportunity to be heard in the matter. This newly introduced requirement is in all probability based on the apprehension expressed several times that before interim orders are pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is filed against them also, they must also have been furnished with the material papers and have been afforded an opportunity to be heard in the matter. It was argued that such private persons are not parties against whom a writ is sought and therefore they need not be furnished with copies. We are unable to accept this contention in an unqualified manner. We have already referred to motor transport cases, village officers cases etc. In such matters the relief really is against the private person and not the Government, though in pursuance of the order given by the High Court a public authority will have to conduct itself. But the really affected party on account of such interim order in such cases would be the private person. Therefore, such persons, whose rights and positions would be affected by an interim order, would be parties who should also be furnished with material documents before any interim order is passed. But that does not mean that necessarily all the respondents should have been furnished with such copies. If the Court is satisfied that a particular respondent is a formal one and that he will not be in any way affected by any interim order that may be passed, then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-cl. (c) of Clause (4) are mandatory, but also that the power of passing interim orders in writ petitions is now very much circumscribed. Hypothetical questions were raised by some learned counsel as to what should happen if the party against whom the petition has been filed, cannot be served before the expiry of the fourteen days or if he evades to take notice. It was also suggested that such difficulties could be got over by filing fresh applications seeking an exceptional order under Clause (5) . It is not necessary to adjudicate upon all these hypothetical contingencies which may arise before Courts. The Court will and shall deal with the situations as they arise in the light of these provisions of Article. 226. Suffice it to say that even though the requirements of Clause (4) are not satisfied the Court can still pass an interim order as an exceptional measure, if it is satisfied that the loss that would be otherwise caused to the petitioner cannot be adequately compensate in money, and that such an order would be in force only for fourteen days. It may be granted if the other requirements are satisfied. 35. Clause (6) is another restrictive provision relating to interim o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d any interim order (whether by way of injunction or stay or in any other manner) made on, or in any proceedings relating to such petition before that day shall be dealt with in accordance with the provisions of Article. 226 as substituted by Section 38. (2) In particular, and without prejudice to the generality of the provisions of Sub-section (1), every pending petition before a High Court which would not have been admitted by the High Court under the provisions of Article. 226 as substituted by Section 38 if such petition had been made after the appointed day, shall abate and any interim order (whether by way of injunction or stay or in any other manner) made on, or in any proceeding relating to, such petition shall stand vacated; Provided that nothing contained in this Sub-section shall affect the right of the petitioner to seek relief under any other law for the time being in force in respect of the matters to which such petition relates and in computing the period of limitation, if any, for seeking such relief, the period during which the proceedings relating to such petition were pending in the High Court shall be excluded. (3) Every interim order (whether by way of in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section says that the appointed day means the day on which Section 38 comes into force. It is under Section 38 that the new Article. 226 is substituted in the place of the old one. It has been declared now that Section 38 would come into force on and from 1st February, 1977. The word used here is 'made' while the word 'admitted' is used in Sub-section (2). We have already noted that in Clause (3) of Article. 226 the bar is against 'entertainment' of a writ petition. Thus Article. 226 and Section 58, in between themselves, deal with different aspects of dealing with a writ petition. The word 'made' used in Sub-section (1) when read in contradistinction with the expressions 'admitted' and 'entertained' used in Section 58(2) and Article. 226(3) respectively, makes it manifest that even petitions which have been formally presented and not yet admitted before the appointed day would also be pending petitions within the meaning of Section 58. 40. Sub-section (1) lays down that such pending petitions and all interim orders made therein will have to be dealt with in accordance with the new Article. 226. Thus Sub-section (1) governs all the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the new Article. 226, then the writ petition would abate. When a writ petition abates, any interim order made therein would stand vacated. 42. The proviso to Sub-section (2), however, says that the abatement of a writ petition will not affect the right of the petitioner to seek the relief under any other law for the time being in force. It goes further and says that in computing the period of limitation for pursuing the other remedy, the time spent in the High Court for seeking relief under Article. 226 shall be excluded. This provision is obviously made in the interests of justice to see that the other remedies available to the petitioner are not barred because his writ petition has abated by virtue of the new Article. 226. 42-A. Sub-section (3) and Sub-section (4) are in respect of interim orders. If an interim order has already been made and it is in force on the appointed day, it will be operative only for a period of one month from the appointed day, if in the meanwhile the copies of the pending petition and the document relating to the interim order are not furnished to the party against whom the interim order has been made. If this is not complied with within one mont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the orders disposing of writ petitions before the appointed day. The learned counsel for the petitioners and the appellants contended that Section 58 does not apply to such writ appeals. The provisions of Section 58 have only very limited retrospective effect confined to the petitions which have been made and are pending on the appointed day. If the writ petition has already been finally disposed of before the appointed day. Section 58 has no application since it does not make any provision in respect of such matters. On the other hand, it was argued for the Government that the provisions of Section 58 would apply to pending writ appeals as well. 46. It should be first noted that writ appeals are filed under Clause (15) of the Letters Patent. They are always treated as a separate category from writ petitions and interlocutory petitions in writ petitions. It is impossible to say that the Parliament was not aware that writ appeals have been preferred and several of them are pending in different High Courts. Still it did not make any provision or even reference to them in Section 58, while in fact it did make a specific provision for appeals and even cross appeals in Article. 329-A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) applies to pending writ appeals and leave applications, then it must necessarily follow that Sub-section (2) also would apply to writ appeals. In such an eventuality writ appeals arising out of writ petitions which would not have been admitted under the provisions of the new Article. 226 must be held to have abated. Such a conclusion would have a very startling result, the result of wiping out the decision of the High Court which has already been rendered in the writ petition. It is well established that no legislation can wipe out a judicial pronouncement though it may remove the defects pointed out by such pronouncements. 48. Further, there was a right to the affected person to prefer an appeal and that right has been exercised or will have to be exercised. That vested right of appeal, which is a substantive right and not merely a procedural right cannot be taken away even by the Parliament excepting by way of an express provision or by necessary intendment. Certainly there is no express provision affecting the right of appeal or affecting the writ appeals which have already been filed. The only other question is whether Section 58 by necessary intendment affects the right of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght to enter the superior Court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced, such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal. This vested right of appeal can be taken away only by a subsequent enactment if it so provides expressly or by necessary intendment and not otherwise. Further, S. R. Das, C. J. who delivered the majority opinion, held that in construing the articles of the Constitution Courts must bear in mind a cardinal rule of construction that statutes should be interpreted, if possible, so as to respect vested right. The golden rule of construction is that in the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed. In the next place, Courts must take into account the surrounding circumstances that existed at the time when t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he point is that the law which was the basis of the decision must be altered and then, the foundation failing, the binding value of the decision fails when the non obstante clause is superadded." The second principle was stated in the words of Bowen, L.J. in Reid v. Reid (1886) 31 Ch D 402 at page 408 thus: "A section in a statute which is to a certain extent retrospective, we ought to nevertheless to bear in mind the maxim that is, except in special cases, the new law ought to be construed so as to interfere as little as possible with vested rights) as applicable whenever we reach the line oat which the words of the section cease to be plain. That is a necessary and logical corollary of the general proposition that you ought not to give a larger retrospective power to a section, even in an Act which is to some extent intended to be retrospective, than you can plainly see the Legislature meant". 54. Now applying this principle laid down by Hidayatullah , C.J. and Bowen, L.J. and adopted by the Supreme Court in Chintamani Dora's case, [1974]2SCR655 , we find that S. 58 in so many words gives a very limited retrospective effect. In express terms it states that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a rehearing of the petition. Therefore when S. 58 speaks of pending petitions, that expression necessarily takes in writ appeals also. This argument appears to us to be unacceptable. There is no reason why the Parliament did not refer to pending writ appeals also in S. 58, when it specifically referred to pending writ petitions and interim orders. The omission becomes more significant when the Parliament clearly referred to appeals as well as cross appeals in Cl. (5) of Article. 329-A which was introduced only very recently. A fair reading of S. 58 appears to us to show that the Parliament did not deliberately include writ appeals and the appeals before the Supreme Court. If we are to accept the contention urged on behalf of the Government that S. 58 takes within its sweep writ appeals pending in High Courts then as we have already pointed out, it would lead to preposterous result that while appeals before the Supreme Court are not affected and will have to be decided on the basis of old Art. 226, writ appeals before the High Court will have to be decided on the basis of the new Art. 226. Further, the Parliament could never have intended to make a legislation which would have the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. But there are more than one distinguishing feature in Dayavati's case ( [1966]3SCR275 )(supra). Section 6 of the Amending Act there was specifically made for giving retrospective effect to all matters pending and which may be instituted after the commencement of the Act. The intendment of the Legislature was patent that it should affect all pending matters. Further it conferred a valuable right to relief which was made available to all debtors and that relief was sought to be given even in appeal against a preliminary decree. Moreover, Hidayatullah, J. ( as he then was) pointed out at p. 1426: "Matters of procedure are however, different and the law affecting procedure is always retrospective. But it does not mean that there is an absolute rule of inviolability of substantive rights. If the new law speaks in language which, expressly or by clear intendment, takes in even pending matters, the Court of trial as well as the Court of appeal must have regard to the intention expressed and the Court of appeal may give effect to such law even after the judgment of the Court of first instance. The distinction between laws affecting vested rights does not matter when the Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellate Court to give effect to the substantive provisions of the Amending Act whether the appeal before it is one against a decree granting premption or one refusing that relief. There, the Supreme Court was of the opinion that the language of the amended provision was plain that the appellate Court also should give effect to the substantive provisions of the Amending Act. 63. We are, therefore of the opinion that these decisions do not really detract form the view which we have expressed above. A writ appeal in a sense, may be continuation of a writ petition and involve re-hearing of the writ petition. But the question is whether the Parliament has either by express provision or by necessary intendment provided that appeals against decisions in writ proceedings rendered before the appointed day should also be governed by the provisions of S. 58 and of the new Art. 226. We have given our view that there is no such intention expressed in S. 58. Therefore, we are of the opinion that S. 58 does not affect writ appeals, which are already pending or which may be filed after 1-2-1977 against the decisions rendered before 1-2-1977 disposing of the proceedings. All such writ appeals will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discretion whether to refer a dispute or not to the Industrial Tribunal. Therefore, the possibility of a dispute being raised before the Industrial Tribunal cannot be considered to be 'other remedy' within the meaning of Cl. 3 of Art. 226. We cannot accede to this contention. The Industrial Disputes Act has provided a clear remedy for adjudication of the disputes by Labour Courts and Industrial Tribunals, once a dispute is raised and the same has been referred to them. If, in any particular case, the Government acts arbitrarily or contrary to law in refusing to refer a dispute to the Tribunal or Labour Court then such a refusal may be a ground for filing a writ petition. But one cannot postulate that the Government may not refer a dispute to the appropriate forum created by the statute and then entertain a writ petition. Therefore we cannot accept this contention. 67. Now having expressed our opinions on the different questions raised, we do not propose to go into the merits of each case posted before us. We direct that these matters shall be posted before the appropriate Division Bench or learned Single Judge for their disposal in the light of principles we have laid dow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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