ORDER
Lingraj Rath, J.
1. The sole question which falls for decision in this case is in the forum in which an appeal presented under Section 41(3) of the A.P. Shops and Establishment Act, 1966 was to be heard after the passing of the A.P. Shops and Establishments Act, 1988. The petitioner was appointed as Accountant under respondent No. 3 in January, 1985. His services were terminated on April 30, 1987 which he challenged by way of appeal under Section 41 of the A.P. Shops and Establishments Act. 1966, hereinafter referred to as “the 1966 Act”. The appeal was disposed of on July 30, 1988 refusing to reinstate him in service but directing payment of compensation in lieu thereof. The petitioner preferred an appeal against the order under Section 41(3) of the 1966 Act on February 3, 1989 but on March 21, 1989 respondent No. 1 before whom the appeal had been preferred, dismissed it as not maintainable holding that under the A.P. Shops and Establishments Act, 1988, hereinafter referred to as “the 1988 Act” the authority to hear second appeal under Section 48(3) of that Act had not been constituted.
2. The learned counsel for the 3rd respondent opposes the petition stating that as the petitioner had earlier come before this Court in W.P. No. 11134 of 1986 which was permitted to be withdrawn and was dismissed as such on April 16, 1987 and thereafter there was a reconciliation on October 30, 1986 between both the parties in which it was agreed that the petitioner was to be reinstated for nearly-six months after which he shall quit the service voluntarily receiving the terminal benefits, the appeal is not maintainable.
3. Admittedly such question as is raised by the 3rd respondent was before the first appellate authority and the validity of the defence has to be adjudicated also by the second appellate Court. I refrain from expressing any opinion on that.
4. There is no dispute that under the 1966 Act an appeal lay before respondent No. 1. The 1988 Act was published in the Gazette on July 26, 1988 but came into force on November 1, 1988. Section 48(3) of the 1988 Act provides that a second appeal against the first appellate order would lie to such authority as may be notified by the Government. Admittedly on the date of first appeal was decided the 1988 Act had not come into force. The limitation for filing the appeal under Section 48(3) was thirty days.
5. It is well settled in law that right of appeal is a vested right and is determined in accordance with the statutory provision relating to it as is obtained on the date of filing of the suit. The right so created inhers in the party before the Court till the right is actually exercised in pursuance of the orders passed in the original proceeding. The question was considered in the well known case of the Colonial Sugar Refining Company Limited, (1905) AC 369 which was followed by the Apex Court in the decision in Garikapatti Veerayya v. Subbiah Choudhary, holding that the right of appeal is not a mere matter of procedure but is substantive right. The right of appeal of the petitioner under the 1966 Act was thus a protected and substantive right which could not be defeated merely because of the passing of the new Act. But the forum before which the right of appeal has to be exercised as also the limitation for it are procedural rights are to be governed in accordance with the new enactment, as was decided in Maria Christine v. Maria Zurna, wherein the Court observed.
“This position has been made clear by clauses (b) and (c) of the proviso to S. 4 of the Central Act XXX of 1965 which substantially correspond to clauses (c) and (e) of S. 6 of the General Clauses Act, 1987. This position has also been settled by the decisions of the Privy Council and this Court (vide). The Colonial Sugar Refining Co. Ltd., v. Irving and Garikapatti Veerayya v. N. Subbiah Choudhury (supra) but the forum where such appeal can be lodged is indubitable a procedural matter and, therefore, the appeal, the right to which has arisen under a repealed Act, will have to be lodged in a forum provided for by the repealing Act.”
6. Even so, so far as the present case is concerned, admittedly by the time the occasion for filing the appeal arose i.e., the date of the passing of the first appellate order on July 30, 1988 the repealing Act had not come into force nor the second appellate authority had been notified. Thus for all the litigants who had the cause of action to file second appeal as on that date or till the Act came into force there was no forum for filing the appeal under the new Act. Consequently the appeal could only be filed in the forum as was stipulated under the old Act viz., with respondent No. 1. To hold the contrary would mean that even though no appellate forum had been created because of the Act having not been brought into force of that because the Government had not notified the authority, the right of appeal would itself get defeated. In the very Colonial Sugar case (supra) it was held :
“And therefore the only questions is, was the appeal to his Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested”.
7. In that view of the matter it must be held that the appeal preferred before the 1st respondent under Section 41(3) of the 1966 Act was maintainable before it and had to be decided as such. Consequently the impugned order passed on March 21, 1989 by respondent No. 1 is not sustainable in law and is quashed. The appeal is allowed and the matter is remanded to respondent No. 1 for adjudication on merits.
8. The matter being already old the respondents No. 1 is directed to dispose of the appeal within two months from the date of receipt of a copy of the order.
9. No costs.