1. This Full Bench has been constituted to resolve the controversy raised in this group of applications for compensation as to the true and correct interpretation of Section 12B of the Monopolies and Restrictive Trade Practices Act, 1969. In each compensation application a preliminary objection was raised by the respondents as to the maintainability of the applications. The contention is that Section 12B does not comprehend within its scope claims for compensation founded on restrictive trade practices alleged to have been indulged in by the respondent anterior to the insertion of Section 12B on the statute book. We have to examine the correctness of this contention.
2. When these compensation applications came up before different Division Benches of the Commission, applications were moved on behalf of the respondents urging that in view of the obvious importance of the question and its impact on a large number of cases that will be coming up before the Commission under Section 12B, it would be desirable if a Full Bench is constituted to deal with the preliminary objection. The request in each case was accepted by the Bench hearing the matter which passed an order referring all these compensation applications to a Full Bench. In pursuance of those orders, the present Bench has been constituted to answer the question.
3. All the above noted compensation applications were heard by us together on various dates, as the issue raised in each case was identical. By this order, we propose to dispose of the preliminary objection. Shortly stated, the preliminary objection raised by the respondents is that Section 12B of the Act having been inserted into the Monopolies and Restrictive Trade Practices Act by Act No. 30 of 1984, with effect from August 1, 1984, and the provision not having been made expressly or by necessary intend-ment retrospective in its operation, compensation cannot be claimed thereunder where it rests on allegations of restrictive trade practice said to have been indulged in prior to August 1, 1984.
4. We will elaborate this submission and various facets thereof a little latef. First the provision (Section 12B) itself. The section provides : "Power of the Commission to award compensation.--(1) Where, as a result of the monopolistic or restrictive, or unfair, trade practice, carried on by any undertaking or any person, any loss or damage is caused to the Central Government, or any State Government or any trader or class of traders or any consumer, such Government or, as the case may be, trader or class of traders or consumer may, without prejudice to the right of such Government, trader or class of traders or consumer to institute a suit for the recovery of any compensation for the loss or damage so caused, make an application to the Commission for an order for the recovery from that undertaking or owner thereof or, as the case may be, from such person, of such amount as the Commission may determine, as compensation for the loss or damage so caused.
(2) Where any loss or damage referred to in Sub-section (1) is caused to numerous persons having the same interest, one or more of such persons may, with the permission of the Commission, make an application, under that sub-section, for and on behalf of, or for the benefit of, the persons so interested, and thereupon the provisions of rule 8 of Order I of the First Schedule to the Code of Civil Procedure. 1908 (5 of 1908), shall apply subject to the modification that every reference therein to a suit or decree shall be construed as a reference to the application before the Commission and the order of the Commission thereon.
(3) The Commission may, after an enquiry made into the allegations made in the application filed under Sub-section (1), make an order directing the owner of the undertaking or other person to make payment, to the applicant, of the amount determined by it as realisable from the undertaking or the owner thereof, or, as the case may be, from the other person, as compensation for the loss or damage caused to the applicant by reason of any monopolistic or restrictive, or unfair trade practice carried on by such undertaking or other person.
(4) Where a decree for the recovery of any amount as compensation for any loss or damage referred to in Sub-section (1) has been passed by any court in favour of any person or persons referred to in Sub-section (1) or, as the case may be, Sub-section (2), the amount, if any, paid or recovered in pursuance of the order made by the Commission under Sub-section (3) shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance, if any, left after such set off." 5. It is pertinent to mention here that Section 12B was part of a comprehensive legislative exercise undertaken to give effect to the recommendation of a high-powered expert committee headed by Mr. Justice Rajender Sachar, the eminent Chief Justice of the Delhi High Court. The Committee made a deep and an extensive study of the various problems thrown up and loopholes discovered during the actual enforcement and administration of the law (Monopolies and Restrictive Trade Practices Act) for over a decade since its birth and after a considerable research of parallel antitrust laws operating in other advanced countries such as the United States, Great Britain, Germany, Canada, and other countries, suggested that the Commission ought to be armed with the powers of awarding compensation both to the Central or State Governments as well as others suffering damages by acts of monopolistic, restrictive and unfair trade practices committed by any trader, undertaking or corporations. It was also felt by the Committee that such a power and its exercise by the Commission in appropriate cases may have a deterrent effect on the erring traders prone to indulge in prohibited trade practices, quite apart from serving the obvious salutary purpose of suitably compensating the aggrieved party.
6. So important a bearing has this report on the present controversy that it will be useful to extract here the relevant conclusions reached by the Committee before us (in so far as relevant) : "21.34. .... At present, the only power with the Commission in regard to restrictive trade practice is to pass an order of 'cease and desist' under Section 37 of the Act. We have already recommended that a separate chapter be included to deal with unfair trade practices like false representations and misleading advertisements.
It is a well established principle of jurisprudence that for every wrong there must be a remedy. It is apparent that the prohibited practices, if indulged in, are likely to cause grave loss or damage to many consumers. But in the Act there is no provision for awarding damages to a person, a body or even the State and the Central Government against those who have indulged in any of the practices which are prohibited. This is a highly unsatisfactory state of affairs. A consumer may be compelled to pay higher prices as a result of monopolistic or restrictive trade practices or may be persuaded to buy goods not having the claimed advantages or suffer pecuniary loss because of other unethical practices indulged in by the sellers. And yet, as the Act at present stands, the only order which he may obtain is of 'cease and desist'. Such an order can at best be a preventive one for the future. It can obviously not compensate the injured party for the losses already suffered. Thus, unless a provision is made for damages, a party who suffers from the prohibited practice being indulged in by a producer or seller or supplier will hardly receive the benefit which the Act is supposed to confer on an average consumer. The injury to business or property caused as a result of prohibited practice calls for a remedy. The anomalous situation under the present Act, that even after the Commission has found that a prohibited practice has been indulged in by a party and even if it has further found that the complaining party has suffered serious injury and losses, it is powerless to compensate the injured party, must be remedied.
21.39. Power to award damages has quite frequently and liberally been used by courts in America, West Germany and elsewhere, when it has been fqund that any party has acted against competition and indulged in any of the prohibited practices. One of the most important cases relating to the award of damages in America relates to the Tetracycline case. In that case, the Federal Trade Commission charged three companies, viz., Pfizer, Cynamide and Bristol, for having monopolised and fixed the price of tetracycline and two chemically related antibiotics. Claims were filed by the cities and their political sub-divisions for reimbursement for purchases of the antibiotics made at a retail store by welfare patients. Ultimately, in 1969, the companies agreed to pay one hundred and twenty million dollars in final claims to the cities, States and others. One of the important cases decided by the US Supreme Court more recently relates to the treble damage suit brought in the United States by the Governments of India, Iran and Philippines for alleged price fixing by six major United States pharmaceutical companies, in respect of their sales of a broad range of antibiotic drugs (Pfizer Inc. v. Government of India (No. 76-749-11-1-78)). In this case, the United States Supreme Court has confirmed that foreign Governments damaged by restrictive business practices of United States enterprises contravening United States Restrictive Business Practices Legislation are entitled to sue for treble damages.
21.40. The provisions for claiming damages are thus an established principle. It is also logical and equitable to provide that any person who is affected by any prohibited practice should have a remedy to recover damages and compensation from the guilty party.
We, therefore, feel that a similar provision as in the Australian and Canadian Acts should be made in our Act to the effect that any person, authority, Central or State Government who has suffered loss or damage as a result of conduct of another, person having indulged in any of the prohibited practices, viz. monopolistic trade practices, restrictive trade practices and unfair trade practices, will be entitled to recover the amount of loss or damage including costs suffered by him from the party who has indulged in any of prohibited practices. We feel that such a provision in our country will have a salutary effect and that it may prevent the prohibited practices from being indulged in. The remedy by way of damages will act as a deterrent to these prohibited practices right from incipiency and motivate the producers and suppliers themselves to desist from indulging in such practices." 7. A simple comparison of these recommendations with the language and content of Section 12B would confirm that the Legislature accepted the report both in substance and spirit. Indeed the words and expressions used in the above-quoted extracts of the report have been bodily lifted and implanted into the Monopolies and Restrictive Trade Practices Act.
Compare, for example, Section 12B(1) with clause 21.40 of the report.
In Mithilesh Kumari's case [1989] 177 ITR 97 ; AIR 1989 SC 1247 the Supreme Court ruled "where a particular enactment or amendment is the result of the recommendation of the Law Commission of India, it may be permissible to refer to the relevant report as an external aid of construction." Applying the dictum, reference to the Sachar Committee's Report would seem quite in order, and, indeed, helpful in determining the controversy at hand.
8. Put in a nut-shell, the Sachar Committee's recommendation was that there is an obvious loophole in the Monopolies and Restrictive Trade Practices Act, in that there is a conspicuous absence of any remedial provision in the statute to compensate the aggrieved, whether it be the Central or State Government or any trader or consumer who may have suffered a loss or damage caused by the monopolistic or restrictive or unfair trade practices carried on by any undertaking or any person. It was, therefore, to fulfil this long felt need that Section 12B was inserted in the Act. Parliament accepted the recommendation that like all the antitrust law agencies the world over, the Commission should be armed with the power to award compensation to the aggrieved party, in addition to the power it possessed to pass a "cease and desist" order.
9. The next thing to be noticed is that this additional remedy or forum is without prejudice to the right of the aggrieved Government, trader or person to institute a suit for compensation for the loss or damage so caused. Put in different words, the Legislature has by the enactment of Section 12B designated an additional forum for dealing with claims for compensation. Previously a party which suffered any loss or damage as a result of any monopolistic or restrictive trade practices carried on by any undertaking or any person could only go to the civil court for the recovery of compensation for the loss or damage so caused.
After the enactment of Section 12B, the aggrieved party can seek his remedy and claim compensation by means of a simple application under Section 12B before the Commission itself with his right of suit fully preserved. The application does not require any court-fee stamps nor any other expensive and cumbersome formalities that accompany institution of civil suits. It is a simple, cheap and expeditious remedy.
10. In the Statement of Objects and Reasons to amending Act No. 30 of 1984, one finds a clear reference to the recommendation of the Sachar Committee which had reviewed the working of this Act. It states that the Bill represents the second and final instalment of the amendments arising as a result of the recommendations made by the Sachar Committee. So there should be no difficulty in presuming that Section 12B was enacted to fill in the gap in the statute arising from the absence of any jurisdiction in the Commission to award compensation also, if it comes to the conclusion that the aggrieved party has suffered loss or damage as a result of any of the practices specified in Section 12B of the Act.
11. With that premise we proceed to examine the main controversy debated at the Bar. For the respondents, it was urged that Section 12B enacts a substantive provision in that it creates a liability under the Monopolies and Restrictive Trade Practices Act for the first time on the undertaking alleged to have indulged in a monopolistic or restrictive or unfair trade practice. Prior to this, the erring party could not be proceeded against for payment of compensation under the Monopolies and Restrictive Trade Practices Act. The liability to pay compensation, it was argued, under the Monopolies and Restrictive Trade Practices Act has been cast for the first time. It was further urged that inasmuch as Section 12B creates a new forum and casts a new liability, it must be held to be a provision of substantive nature.
That being so, Section 12B cannot have retrospective operation there being no indication in the amending Act No. 30 of 1984 that the provision shall have retrospective operation.
12. We are unable to agree. Section 12B does not create any new liability or obligation. It simply provides an additional forum to the aggrieved party. Previously a person suffering any loss or damage as a result of any monopolistic and restrictive trade practices indulged in by any trader, could only institute a civil suit to claim compensation.
That remedy is still available. It has been expressly preserved under Section 12B which states that a right to receive compensation under Section 12B is "without prejudice to the right of such Government, trader or class of traders or consumer to institute a suit for recovery of any compensation for the loss or damage so caused . . ." This conclusion is reinforced by Sub-section (4) of Section 12B which provides for a set-off. It states that if any amount is paid or recovered in pursuance of an order made by the Commission under Sub-section (3) it shall be set off against the amount payable under a decree for recovery of any amount as compensation for loss or damage referred to in Sub-section (1). This provision completely negatives the respondent's contention that the section creates any fresh or new liability or confers any right which was not in existence before.
13. The right to receive compensation for any loss or damage caused to any consumer as a result of monopolistic or restrictive trade practices was thus already in existence from the inception of the Monopolies and Restrictive Trade Practices Act. If there was any doubt it stands dispelled by the express words used in Sub-section (1) of Section 12B ; only, previously, the aggrieved party had but one remedy by way of a civil suit. Now he has an additional orum, much cheaper and speedier than that under a civil suit. One of the most salutary principles of jurisprudence is that for every wrong there must be a remedy. To hold, therefore, that prior to the enactment of Section 12B an aggrieved consumer had no right to claim compensation in regard to restrictive trade practices would be a negation of one of the most firmly established principles of law. We, therefore, reject the contention that Section 12B enacts any substantive provision.
14. Having found that Section 12B simply provides an additional remedy or forum for recovery of compensation the right to receive which being already in existence, there is little difficulty in reaching the conclusion that the provision deals merely with a matter of procedure.
Judicial precedents and texts abound in favour of the view that changes of law with regard to procedure including forum, limitation, evidence and execution, etc., belong to the realm of adjectival or processual law and not substantive law. As regards change in forum, there is a direct decision of the Supreme Court in the case of New India Insurance Co. Ltd. v. Smt. Shanti Misra, AIR 15. The Motor Vehicles Act, 1939, was amended inserting Sections 110A to 110F whereby the jurisdiction of the civil courts was ousted in regard to claims for compensation arising out of motor accidents and in its place Claims Tribunals were constituted under those provisions. The question raised before the Supreme Court in New India Insurance Co.
Ltd.'s case [1977] 47 Comp Cas 453 was whether recourse could be had to the Claims Tribunals constituted under the Motor Vehicles Act with respect to accidents which had taken place prior to the amendment whereby Sections 110A and 110F were inserted. On an exhaustive consideration of the issue, their Lordships of the Supreme Court ruled that the change in law was merely a change of forum, and, therefore, the change must be held to relate to adjectival or procedural law and not the substantive law. It was observed in paragraph 5 of the judgment at page 240 (at page 457 of 47 Comp Cas): "On the plain language of Sections 110A and 110F there should be no difficulty in taking the view that the change in law was merely a change of forum, i.e., a change of adjectival or procedural law and not of substantive law. It is a well-established proposition that such a change of law operates retrospectively and the person has to go to the new forum even if his cause of action or right of action accrued prior to the change of forum. He will have a vested right of action but not a vested right of forum. If by express words the new forum is made available only to causes of action arising after the creation of the forum, then the retrospective operation of the law is taken away. Otherwise, the general rule is to make it retrospective. The expressions 'arising out of an accident' occurring in Sub-section (1) and 'over the area in which the accident occurred', mentioned in Sub-section (2), clearly show that the change of forum was meant to be operative retrospectively irrespective of the fact as to when the accident occurred." (emphasis added) 16. Further on, in paragraph 6 (at page 240) of the same judgment, the Supreme Court made observations which seem to have a direct bearing on the controversy we are dealing with. Their Lordships summed up the law thus (at page 458 of 47 Comp Cas) : "In our opinion in view of the clear and unambiguous language of Sections 110A and 110F it is not reasonable and proper to allow the law of change of forum give way to the bar of limitation provided in Sub-section (3) of Section 110A. It must be vice versa. The change of the procedural law of forum must be given effect to. The underlying principle of the change of law brought about by the amendment in the year 1956 was to enable the claimants to have a cheap remedy of approaching the Claims Tribunal on payment of a nominal court fee whereas a large amount of ad valorem court fee was required to be paid in the civil court. It is legitimate to think that the Legislature did not think it necessary to affect the pending suits but wanted the cheap remedy to be available as soon as the Tribunal was constituted by the State Governments, in all cases irrespective of the date of the accident, provided the remedy of going to the court was not barred on the date of the constitution of the Tribunal. Then, how is the difficulty of limitation in such cases to be solved is the question." 17. These observations leave no manner of doubt that Section 12B enacts a law pertaining to procedure rather than substantive rights. It is a cardinal principle of Construction of every statute that statutes dealing with substantive rights are presumed to be prospective in operation, unless the statute provides, either expressly or by necessary intendment, that it shall have retrospective operation. The general rule universally accepted is that where the object of the statute affects vested rights or imposes new burdens or impairs existing obligations, it is presumed to be prospective in its operation, unless, of course, there are words in the statute sufficient to show that the intention of the Legislature was to touch existing rights too.
18. In contrast, statutes dealing with matters of procedure are presumed, to be retrospective in operation, unless the statute by express words or necessary implication, points to the contrary direction, i.e., against retrospectivity. The celebrated Master of the Rolls, Lord Denning, stated the principle with his characteristic simplicity thus: "The rule that an Act of Parliament is not to be given retrospective effect only applies to statutes which affect vested rights. It does not apply to statutes which only alter the form of procedure, or the admisibility of evidence, or the effect which the courts give to evidence." See Blyth v. Blytk [1966] 1 All ER 524, 535 (HL).
19. The courts in India including the Supreme Court have also been reiterating the above principle time and again and it is unnecessary to burden this judgment with all those pronouncements except to mention that the apex court has quoted with approval the rule of reason as expressed in Maxwell : "No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the court in which the case is pending, and if by an Act of Parliament the mode of procedure is altered, he has no right other than to proceed according to the altered mode." 20. That being so, Section 12B in so far as the restrictive trade practices are concerned must have retrospective operation. That means, the provision comprehends within its fold not only claims for compensation based on allegations of restrictive trade practices committed after the insertion of Section 12B but also those relating to such practices indulged in prior to the introduction of the provision.
We have found nothing either in the Amending Act of 1984 or in the words used by the Legislature in enacting Section 12B that may point against the rule of retrospectivity.
21. That apart, even the words used "... no loss or damage is caused .
. ." on which Shri Nariman, learned counsel, who led the arguments for the respondents, placed so much stress are not words indicating the point of time when the trade practices referred to in Sub-section (1) of Section 12B were carried on or loss or damage was caused thereby, but were used merely to describe the situation or state of affairs which must be proved to justify a claim for compensation under Section 12B. In the case in Ruston and Hornsby (India) Ltd. v. T. B. Kadam, AIR 1975 SC 2025, their Lordships of the Supreme Court were considering the question whether Section 2A, inserted in the Industrial Disputes Act, 1947, was retrospective in its operation, i.e., whether an individual workman who was dismissed or discharged from service prior to the insertion of Section 2A raised an industrial dispute by itself.
Answering the question in the affirmative their Lordships observed (at page 2028) : "When the section uses the words 'where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman' it does not deal with the question as to when that was done. It refers to a situation or a state of affairs. In other words where there is a discharge, dismissal, retrenchment or termination of service otherwise the dispute relating to such discharge, dismissal, retrenchment or termination of service becomes an industrial dispute. It is no objection to this to say that this interpretation would lead to a situation where the disputes would be reopened after the lapse of many years and referred for adjudication under Section 10. The question of creation of new rights by section2A is also not very relevant. Even before the introduction of Section 2A a dispute relating to an individual workman could become an industrial dispute by its being sponsored by a labour union or a group of workmen. Any reference under Section 10 would be made only sometime after the dispute itself has arisen. The only relevant factor for consideration in making a reference under Section 10 is whether an industrial dispute exists or is apprehended. There cannot be any doubt that on the day the reference was made in the present case, an industrial dispute as defined under Section 2A did exist."Sree Bank Ltd. v. Sarkar Dutt Roy and Co., AIR 1966 SC 1953, is another instance where the Supreme Court recognised this rule of inter- pretation. The question raised therein was whether Section 45-O(1) of the Banking Companies Act, 1949, as amended by Act 52 of 1953, has retrospective operation, i.e., whether the provision also deals with the companies wound up before the commencement of the Amending Act of 1953. Answering the question in the affirmative, their Lordships ruled that for the application of Sub-section (1) of Section 45-O, two things were necessary (at page 1967) : (ii) that a suit is instituted or an application is made by such a banking company, and if, these two things exist the period commencing from the date of presentation of the petition for winding up is to be excluded in computing the limitation prescribed for such a suit or application.
23. It was further observed that there was nothing in the language of Sub-section (1) of Section 45-O to limit the words, "on the companies being wound up" to those companies with respect to which winding up orders are made subsequent to December 30, 1953. Numerous English precedents and texts on what is now a well-settled principle were noticed and commented on. The principle enunciated is that just because a part of the requisites for the application of a statute is drawn from a time antecedent to the passing of the statute, it does not necessarily make it retrospective so as to attract the rule against retrospectivity. The principle applies with greater validity to the problem at hand. Sub-section (1) of Section 12B merely lays down and describes the requisites which must be established for an application under that provision.
24. Applying the ratio of these cases, we hold that the words used in Section 12B(1) of the Monopolies and Restrictive Trade Practices Act are perfectly consistent with the position that even if the restrictive trade practices were carried on prior to the 1984 amendment an application could be preferred under Section 12B. All that is required to be established for a claim for compensation under Section 12B is that the undertaking must have carried on restrictive trade practices as a result of which the claimant suffered damage or loss. The point of time as to when that loss or damage was caused and when were the restrictive trade practices indulged in have not been indicated in the provision.In State of Bombay v. Vishnu Ramchandra, AIR 1961 SC 307, 310, the Supreme Court held that the words "if a person has been convicted" would include even past convictions anterior to the Act. Similarly, the words "when a person dies" were construed to include even a person who died prior to the coming into force of the Act (see J. N. Sharma v. H. H.Vijayakunverba 26. It will thus be seen that the language of the statute is not the sole or conclusive guide for determining whether the statute would also apply to facts or events anterior to its introduction. We think the real issue in each case would be what is the dominant intention of the Legislature and this shall have to be gathered from the language used, the object intended, the nature of rights affected and the circumstances under which the law was enacted.
27. We have already commented extensively on the basic objective which Section 12B was designed to subserve and it is unnecessary to state it all over again. In brief, Section 12B was inserted to fill in a lacuna in the Act. Till the amendment of 1984, there was no provision in the Act for awarding compensation for the loss or damage suffered on account of restrictive trade practices. All that the Commission could previously do was to pass a "cease and desist" order under Section 37.
The restrictive trade practices were, however, actionable wrong/right from the inception of the Act. Only, for compensation for the loss suffered, one could go only to the civil courts by way of a suit. That anomaly stands removed. The Commission itself is now armed with the power to award compensation.
28. Shri Nariman, however, quoted extensively from Salmond's Jurisprudence in support of his contention that as a rule a statute, expressed in general terms and in the present tense, should be given prospective effect, particularly where the statute imposes new obligations or creates new liabilities. He also cited a passage from Crawford (at page 567) stating that a statute should not be given a construction which will give it retroactive effect where such a construction will destroy or impair vested rights or impose or create new liabilities or obligations. It was argued that the rule is founded on the proposition that every citizen is presumed to know the law and to enter into business engagements in accordance with that law.
Consequently, it would be unjust and unfair to allow the enactment of such a legislation to operate in retrospection.
29. In the abstract, the argument seems to carry considerable conviction, and, may even be unexceptionable. But the principles canvassed by learned counsel have no application in the present case.
As already observed above, Section 12B neither creates any liability nor confers any new right on the claimant. Neither does it burden the trader with new obligation. As noted above, the right to claim compensation for the loss or damage suffered on account of such trade practices by way of a suit was already there. So it is not that the traders enjoyed any immunity from being proceeded against for compensation which the amendment takes away. The only change brought about by the insertion of Section 12B is that now the Commission too is empowered to entertain claims for compensation. So Shri Nariman could derive no assistance from the principles relied on by him.
30. We next turn to a decision of the Supreme Court in the case of Workmen of Firestone Tyre and Rubber Co, of India Pvt. Ltd. v.Management, AIR 1973 SC 1227 ; [1973] 43 FJR 315, on which Shri Nariman placed great emphasis and reliance. The Supreme Court was considering the question whether Section 11A (inserted in 1971) of the Industrial Disputes Act, 1947, has any application to disputes referred for adjudication before December 15, 1971, the date on which the Amending Act inserting Section 11A came into force.
31. Upon a construction of this provision, particularly the proviso to Section 11A, the Supreme Court came to the conclusion that the provision is entirely prospective in its operation, that is, it applies only to disputes referred for adjudication on or after the date of the coming into force of the Amending Act.
32. As Shri Nariman made this decision the sheet-anchor of his arguments, we will have a closer look at the relevant statutory provisions as well as the nature of the rights affected by the amendment. The Statement of Objects and Reasons records that, prior to the insertion of Section 11A, the settled legal position was that the Industrial Tribunals had only a restricted power of review with regard to the decisions of the management to dismiss, discharge or terminate the services of a workman. The Tribunal could not thus act as a court of appeal and substitute its own decision for that of the management.
The Tribunal's power was attracted only when there was want of good faith, victimisation, unfair labour practice, etc., on the part of the management. The International Labour Organisation, however, recommended that a workman aggrieved by termination of his employment should be entitled to appeal against the termination to a neutral body, a court or tribunal without being inhibited by any such restrictions.
Parliament accepted this recommendation and introduced Section 11A which reads as follows : "11 A. Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen.-- 'Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workmen including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require : Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter." 33. The amendment completely altered the existing law in that, for the first time, it abridged the substantive right of the management vis-a-vis its workman by conferring power on the Industrial Tribunals to differ with the management both on the findings of misconduct as well as the quantum of punishment imposed by the management.
Curtailment of the disciplinary powers of the management to deal with erring employees and to award the quantum and nature of punishment clearly amounted to a change of substantive law. In paragraph 58 of the aforesaid decision their Lordships of the Supreme Court have observed thus at page 1248 of AIR 1973 SC ; page 346 of 43 FJR : "That means that the law, as laid down by this court over a period of years, had recognised certain managerial rights in an employer.
We have pointed out that this position has now been changed by Section 11A. The section has the effect of altering the law by abridging the rights of the employer inasmuch as it gives power to the Tribunal for the first time to differ both on a finding of misconduct arrived at by an employer as well as the punishment imposed by him. Hence in order to make the section applicable even to disputes, which had been referred prior to the coming into force of the section, there should be such a clear, express and manifest indication in the section. There is no such express indication," 34. Two conclusions clearly flow from the above observations. First, the amendment introduced by way of Section 11A has the effect of curtailing substantive rights of the management in the matter of its power to deal with erring employees and to award punishment considered appropriate by it. Inasmuch as under Section 11A, the Tribunals have for the first time been clothed with the power not only to interfere with the conclusions reached by the management on the facts but also to review the quantum of punishment proposed by the management ; second, the proviso to Section 11A stating "in any proceeding under this section" contained a clear indication that the power conferred under Section 11A could be exercised only with regard to the proceedings initiated under that provision and that could be possible only after the enforcement of the amendment. On both the grounds, therefore, the Supreme Court reached the conclusion that Section 11A was intended to have prospective application. There can be little doubt that the amendment under consideration before the Supreme Court touched substantive rights and privileges enjoyed by the management until the introduction of Section 11A. That being so, in the absence of words, clear and unambiguous enough to point to the contrary, the statute must have operation in future.
35. That, however, is not the position here. Neither the object nor the language employed by Parliament in inserting Section 12B bears any similarity with the provision under scrutiny before the Supreme Court in Workmen of Firestone Tyre and Rubber Co. of India Pvt. Ltd.'s case [1973] 43 FJR 315 ; AIR 1973 SC 1227. The decision relied on by Shri Nari-man is hence clearly distinguishable and lends no support to the respondent.
36. In this connection it must be remembered that Section 12B of the Monopolies and Restrictive Trade Practices Act is a beneficial piece of legislation enacted in the interest of consumers, traders or the Governments which may have suffered loss or damage as a consequence, inter alia, of restrictive trade practices carried on by erring undertakings. In construing such statutes, the universally accepted rule is that the courts must adopt a beneficent rule of interpretation.
That is to say, if the statute reasonably admits such a construction, the interpretation which furthers the policy and the object of the Act must be preferred to the construction which will defeat the object.
Section 12B is undoubtedly such a piece of legislation enacted to remove the anomaly arising from a conspicuous absence of any provision in the Act giving power to award compensation to persons approaching the Commission with complaints against undertakings indulging in restrictive trade practices. A simple but effective remedy has been provided to compensate consumers and others suffering from the harmful effects of prohibited trade practices.
37. Yet another established canon of interpretation is that remedial statutes ought to be construed liberally and the rule against retrospectivity should be applied with less insistence in respect thereof--See Bharat Singh v. New Delhi Tuberculosis Centre [1986] 69 FJR 129 ; AIR 1986 SC 842, Ruston and Hornsby (India) Ltd. v. T. B.Kadam, AIRSree Bank Ltd. v. S. D. Roy and Co., AIR 1966 SC 1953 (headnote B). The principle enunciated in all these decisions applies with full force to the present case.
38. The upshot of the foregoing discussion is that Section 12B is applicable alike to past as well as future acts or omissions constituting restrictive trade practices. An application for compensation can, therefore, be maintained under that provision even in regard to restrictive trade practices resulting in loss or damage to the applicant carried on prior to the insertion of that provision. All that Section 12B requires is that the applicant must have suffered loss or damage as a result of restrictive trade practices, whether carried on before or after the 1984 amendment. In that sense Section 12B may be construed as having restrictive operation.
39. The question is whether the retrospectively which Section 12B is supposed to have, is without any restriction so as to admit even old and stale claims for compensation based on restrictive trade practices carried on long before the insertion of Section 12B. The answer, in our considered opinion, must be in the negative and it is furnished by the decision of the Supreme Court in the case of New India Insurance Co.
Ltd. v. Smt. Shanti Misra, AIR 1976 SC 237, 241 ; [1977] 47 Comp Cas 453, 459. In that case, as already noticed hereinabove, there was a change of forum for claiming compensation from the civil courts to the Claims Tribunals. Pending suits were, however, left untouched. While attempting to harmonize different considerations arising from the change of law and forum, the Supreme Court observed as follows : "(2) Even though by and large the law of limitation has been held to be a procedural law, there are exceptions to this principle.
Generally, the law of limitation which is in vogue on the date of commencement of the action governs it. But there are certain exceptions to this principle. The new law of limitation providing a longer period cannot revive a dead remedy. Nor can it suddenly extinguish a vested right of action by providing for a shorter period of limitation." 40. The law laid down is that if a right of action has become extinguished by limitation, it is not automatically revived by a change in the law of limitation. The dictum applies squarely to the present problem. The alteration in the forum ought not, in the absence of any indication in the amending statute, to have the effect of reviving claims for compensation which have been extinguished on or before the enforcement of the amendment. The aggrieved party had a remedy by way of suit at all times. Having allowed that remedy to lapse, he cannot and ought not to be allowed to maintain an application under Section 12B. To hold otherwise would be unjust to the erring traders. The reasonable interpretation to come to would, therefore, be to hold that the change of law brought about by the insertion of Section 12B would not have the effect of reviving claims which had already been extinguished and become barred by the Limitation Act by August 1, 1984--the date on which Section 12B was inserted.
41. The interpretation suggested by us shall have the advantage of excluding actions under Section 12B which are too stale to merit our consideration. Claims which the aggrieved parties have allowed to lapse on account of the bar of limitation imposed for civil suits would justly stand excluded. Equity helps only those who are vigilant in protecting their rights. We are fully aware of the fact that no limitation has been prescribed for actions under the Monopolies and Restrictive Trade Practices Act, including compensation applications under Section 12B. We are, however, attempting to reconcile the conflicting interests of both the aggrieved parties as well as the traders sought to be proceeded against under Section 12B. As between the unrestricted retrospectivity which may enable even old and stale claims to be brought under Section 12B and the interpretation suggested by us whereby claims which have become barred by limitation prescribed for a suit are excluded, we would much rather prefer the latter for the obvious reason that it would protect the interest of both the aggrieved as well as the undertaking sought to be proceeded against. The aggrieved shall have the right to approach the Commission under Section 12B even if the cause of action arose before the insertion of that provision, provided the claim has not become barred by limitation for a suit. The traders on the other hand shall stand protected against dead and stale claims which have already lapsed.
42. That disposes of the discussion in regard to the interpretation of Section 12B vis-a-vis restrictive trade practices. Unfair trade practices are, however, a different cup of tea. These trade practices came to be prohibited for the first time by the same amendment by which Section 12B was inserted, Chapter V of the Monopolies and Restrictive Trade Practices Act was split in two parts--A and B. Under Part B were inserted Sections 36A to 36D. Section 36A defines unfair trade practices and lays down various practices to be regarded as unfair trade practices. Section 36B deals with the procedure prescribed for enquiring into complaints of such trade practices, while Section 36D outlines the powers which may be exercised by the Commission in regard to unfair trade practices.
43. It will thus be seen that unfair trade practices as defined under the Act with respect to which applications for compensation could be filed under Section 12A were themselves defined and enacted by the same Amendment Act XXX of 1984. Unlike restrictive trade practices, therefore, there was no pre-existing right to claim compensation on account of unfair trade practices as defined under the Act prior to the coming into force of the Amendment Act, The considerations which weighed with us for holding that Section 12B shall have retrospective operation in regard to restrictive trade practices are hence not available in the case of claims for compensation on account of unfair trade practices as both the right to claim compensation on that account as well as the remedy provided therefor came into existence simultaneously.
44. Section 12B cannot, therefore, apply to claims for compensation founded on unfair trade practices carried on prior to August 1, 1984.
We are fortified in our opinion on this aspect by a Full Bench decision of this Commission in the case of Godrej and Boyce Mfg. Co. Ltd., In re [1991] 70 Comp Cas 224 (MRTPC). The Full Bench was called upon to consider the question whether Section 36A of the Monopolies and Restrictive Trade Practices Act is prospective in its operation.
Answering the question in the affirmative the Full Bench ruled that the Commission has no jurisdiction to fake action under the Monopolies and Restrictive Trade Practices Act in regard to unfair trade practices carried on prior to the coming into force of the Amending Act. With respect, we entirely agree with that decision. It must follow from the decision, as a necessary corollary, that Section 12B shall not be available for claiming compensation founded on grounds of unfair trade practices carried on prior to August 1, 1984.
45. To sum up, we hold that in so far as restrictive trade practices are concerned Section 12B is retrospective in operation in the sense that even if the impugned trade practices were carried on prior to the insertion of that provision, claims for compensation in respect thereto would be maintainable, provided that the claims had not become barred by the limitation prescribed for a suit for compensation prescribed under the Limitation Act prior to the insertion of Section 12B.46. The provision (Section 12B) shall, however, have prospective operation in the case of unfair trade practices and, shall, therefore, apply only to those claims for compensation which relate to unfair trade practices carried on subsequent to the introduction of Section 12B. The preliminary objection is answered accordingly.
47. Before concluding, we must record our appreciation of the valuable assistance which the Commission received from Shri O. P. Dua, learned senior counsel for the Director-General, Shri Rohinton F. Nariman, Shri M. L. Sachdev and Shri Aditya Narain for the respondents and Shri Jeevan Prakash for the complainant/applicant, all of whom argued the case with considerable ability.
48. I have had the benefit of going through the order proposed by the Hon'ble Chairman and concurred by my learned brother, Shri Sardar Ali (the majority order), in these connected matters. The legal question referred to the Full Bench of this Commission pertains to the correct interpretation and scope of Section 12B introduced by the Central Amendment Act No. 30 of 1984 in the Monopolies and Restrictive Trade Practices Act, 1969 (for short, "the Act"). With great respect, I am unable to agree with the conclusion arrived at in that order.
49. In all the five applications, apart from the factual controversy, a preliminary question was raised as to whether the compensation applications are maintainable at all since they relate to compensation said to have arisen out of restrictive trade practices indulged in by the respondent's at a time prior to the date of coming into force of the said amendment, i.e., August 1, 1984. The dispute in relation to those claims has arisen out of the prohibited practices prior to the said date. As stated in paragraph 3 of the majority order, the preliminary objection is that "section 12B of the Act having been inserted in the Monopolies and Restrictive Trade Practices Act with effect from August 1, 1984, and the provisions having not been made expressly or by necessary intendment retrospective in operation, compensation cannot be claimed thereunder where it rests on allegation of restrictive trade practice said to have been indulged in prior to August 1, 1984." "In so far as restrictive trade practices are concerned Section 12B is retrospective in operation in the sense that even if the impugned trade practices were carried on prior to the insertion of that provision, claim for compensation in respect thereto would be maintainable, provided that the claims had not become barred by the limitation prescribed for a suit for compensation prescribed under the Limitation Act prior to the insertion of Section 12B." 51. It has been further held that such provisions in Section 12B shall have retrospective operation only in relation to the restrictive trade practices and shall apply only to those claims for compensation which relate to unfair trade practices carried on subsequent to the introduction of the said provisions. In my view, the question for consideration in the preliminary objection is not to be confined to compensation arising out of restrictive trade practices alone but it necessarily includes within its ambit claims arising out of monopolistic trade practices and unfair trade practices also because this section expressly and without any implication to the contrary, equally refers to all the three types of practices, monopolistic trade practices, restrictive trade practices and unfair trade practices.
Therefore, considerations which apply to restrictive trade practices will ipso facto apply to the other two types of practices as well.
According to the majority order, this section is retrospective as regards claims "for compensation arising out of restrictive trade practices, but not so, if it arises out of unfair trade practices--even though this section as such does not make any such distinction. Since the majority order makes a distinction only between restrictive trade practices and unfair trade practices and does not specifically talk of monopolistic trade practices, it is to be presumed that the same logic shall apply to a claim for compensation arising out of monopolistic trade practices as well.
52. The discussion that follows is based on the following major premises: (i) Section 12B of the Monopolies and Restrictive Trade Practices Act expressly or by necessary intendment is not retrospective in operation. In the absence of such express language or necessary intendment, there is a presumption against retrospectivity in the operation of legal provision.
(ii) Section 12B creates a substantive right to claim compensation arising out of monopolistic, restrictive or unfair trade practices for the first time. This provision is not in the realm of procedural laws.
(iii) The Full Bench of the Commission has earlier held in Godrej and Boyce MFG. Co. Ltd.'s case [19911 70 Comp Cas 224 that the provision relating to unfair trade practices introduced by the same Central Act 30 of 1984 is not retrospective but prospective in effect. Both the logic and conclusion of that decision are admitted to be correct and binding in the majority order. Therefore, the provision of Section 12B cannot be construed as retrospective in effect.
(iv) Section 12B dealing with the three types of prohibited practices, namely, monopolistic trade practices, restrictive trade practices and unfair trade practices cannot be interpreted differently in respect of these practices in the absence of any express distinction made therein.
53. First of all, we have to examine and analyse the provisions of Section 12B which read as under : "Power of the Commission to award compensation.--(1) Where, as a result of the monopolistic or restrictive, or unfair, trade practice, carried on by any undertaking or any person, any loss or damage is caused to the Central Government, or any State Government or any trader or class of traders or any consumer, such Government, or, as the case may be, trader or class of traders or consumer may, without prejudice to the right of such Government, trader or class of traders or consumer to institute a suit for a recovery of any compensation for the loss or damage so caused, make an application to the Commission for an order for the recovery from that undertaking or owner thereof or, as the case may be, from such person, of such amount as the Commission may determine, as compensation for the loss or damage so caused.
(2) Where any loss or damage referred to in Sub-section (1) is caused to numerous persons having the same interest, one or more of such persons may, with the permission of the Commission, make an application, under that sub-section, for and on behalf of, or for the benefit of, the persons so interested, and thereupon the provisions of Rule 8 of Order I of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908), shall apply subject to the modification that every reference therein to a suit or decree shall be construed as a reference to the application before the Commission and the order of the Commission thereon.
(3) The Commission may, after an inquiry made into the allegations made in the application filed under Sub-section (1), make an order directing the owner of the undertaking or other person to make payment, to the applicant, of the amount determined by it as realisable from the undertaking or the owner thereof, or, as the case may be, from the other person, as compensation for the loss or damage caused to the applicant by reason of any monopolistic or restrictive or unfair trade practice carried on by such undertaking or other person.
(4) Where a decree for the recovery of any amount as compensation for any loss or damage referred to in Sub-section (1) has been passed by any court in favour of any person Or persons referred to in Sub-section (1) or, as the case may be, Sub-section (2), the amount, if any, paid or recovered in pursuance of the order made by the Commission under Sub-section (3) shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance, if any, left after such set off." 54. This provision is sub-divided into four sub-sections. The first subsection deals with the rights of aggrieved persons to claim compensation for damage caused to the Central Government, to any State Government or any trader or class of traders or any consumer as a result of any of the aforesaid practices. The phrase appearing in this sub-section, viz., "without prejudice to the right of such Government, trader or class of traders or consumer to institute a suit for the recovery of any compensation for the loss or damage so caused" cannot be interpreted to mean that this sub-section as such confers a right upon any such aggrieved person to file a civil suit and on that ground, Section 12B as a whole cannot be considered to be a provision of additional forum. The phrase in question by way of abundant caution saves the right of an aggrieved person to file a, suit, if any lies. It cannot be interpreted to mean that a civil suit for such a purpose lies because of this provision. Even otherwise, prior to the enactment of the Monopolies and Restrictive Trade Practices Act, it is doubtful; nay--highly improbable, if a civil court could entertain a suit for recovery of damages simply on the ground that the cause of action springs out of a monopolistic, restrictive or unfair trade practice as such. The concept of these distinct practices came into being only after the enactment of this Act. It is a different matter that the same facts which may constitute a monopolistic trade practice, restrictive trade practice or unfair trade practice under the Act may also give rise to a claim of civil nature in terms of Section 9 of the Code of Civil Procedure. Such facts might possibly constitute a breach of contract or a breach of an established civil right or be actionable as a tort. Only thus, the civil court will have jurisdiction to award compensation for such a civil wrong.
55. Sub-section (2) of Section 12B confers a distinct right of representative action in respect of a claim arising in favour of a large number of persons out of such prohibited practices on the lines of provisions contained in Order I, rule 8 of the Civil Procedure Code.
Sub-section (3) fixes the responsibility of the persons who are liable to make payment in respect of such claims arising out of the foresaid prohibited practices. Both these sub-sections are not relevant in the context of present consideration. Sub-section (4), however, states that if a decree for recovery of any amount of compensation for loss or damage referred to in Sub-sections (1) and (2) has been passed by a court, then any amount paid or recovered in pursuance of any order made by the Commission under Sub-section (3) has to be set off against the amount payable under such decree in execution. This provision envisages that after a decree is passed by the Commission, it may be that a person may file a suit for compensation arising out of a civil wrong based on the same facts--the civil wrong as distinct from monopolistic trade practices, restrictive trade practices or unfair trade practices, and in that event, the amount paid or recovered in pursuance of an order of the Commission will have to be set off. Admittedly, the provision as such is not expressed to be retrospective in effect. I would defer the further analysis of this provision to determine whether under the rules of interpretation and in the light of the judicial decisions, it is possible to give retrospective effect to its operation, as a whole or in part.
56. The fundamental rule of law is that no statute shall be construed to have retrospective operation unless such a construction clearly appears in terms of the Act or arises by necessary and distinct implication. The most well-known statement of the rule regarding retrospectivity is contained in the passage from the judgment of R. S.Wright J. in Athlumney, In re [1898] 2 QB 547, at pages 551-552. It reads : "Perhaps no rule of construction is more firmly established than this-that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only." 57. A discussion on the subject of retrospectivity appears in Maxwell on the Interpretation of Statutes, XII edition, edited by P. St. J.Langam, at pages 215-227. A number of cases have been cited in this well-known book while dealing with the question of retrospective effect of a statutory provision. The fundamental statement of law on the subject as above is the starting point. During the course of arguments before us, many cases were cited on behalf of both the parties. It is not necessary to refer to those cases in extenso because each decision proceeds on its own facts. However, it cannot be disputed that the presumption against retrospectivity of statute is legally very strong and this has been so expressed in numerous decisions of our own Supreme Court. It would suffice to say that the above statements of law have been quoted with approval by the Hon'ble Supreme Court in Govinddas v.ITO [1976] 103 ITR 123, 132 ; [1976] 1 SCC 906 at page 914 (para 11).
58. While the above rule is undisputed, it is often argued that the provisions of a particular statute do not pertain to substantive law but fall within the realm of procedural law. It is well said that a person may have a vested right but he does not have any such right to be governed by a particular procedure. Therefore, any statutory provision pertaining to procedural law becomes operative immediately when it is enacted even in respect of pending matters. The question as to whether a particular provision pertains to procedural law or substantive law is not always free from difficulty. The majority order takes note of certain decided cases to support the view that Section 12B of the Act is a part of procedural law because it only creates a new forum for enforcement of a pre-existing right. It is difficult to agree with this premise. This provision creates a distinct new right of compensation arising out of monopolistic trade practices, restrictive trade practices or unfair trade practices which were conceptualised for the first time under the Monopolies and Restrictive Trade Practices Act. The Supreme Court in the case of Nani Gopal Mitra v. State of Bihar, AIR 1970 SC 1636, has dealt with the subject of retrospectivity in the matter of law relating to procedure. I would do no better than quote the observations, of the hon'ble court as under (at page 1639) : "As a general rule the amended law relating to procedure operates retrospectively. But there is another equally important principle, viz., that a statute should not be so construed as to create new disabilities or obligations or impose new duties in respect of transactions which were complete at the time the amending Act came into force." 59. It hardly facilitates us in distinguishing in a given case whether the subject of controversy concerns procedural or substantive law. The reason for this appears obvious, because substantive law deals with a right and is fundamental while procedure is concerned with legal process involving actions and remedies, which Salmond defines "as that branch of law which governs the process of litigation", or to put it in another way, substantive law is that which we enforce while procedure deals with rules by which we enforce it. We are tempted in this regard to cite a picturesque aphorism of Therman Arnold when he says "substantive law is canonized procedure, procedure is unfrocked substantive law." 60. The aphorism of Therman Arnold appearing in the above passage is a clear pointer that the difference between the substantive law and the procedural law is somewhat blurred, and we have to analyse the given statutory provision to determine whether the Legislature intended to give retrospective effect to the provision even though there are no such express words therein to that effect.
61. The majority judgment has relied heavily on the text of the Sachar Committee Report, particularly paras 21.34, 21.39, 21.40 in support of the proposition that even prior to the enactment of Section 12B, there was, at least presumed to be, a right with the aggrieved person to claim for the loss arising from the prohibited practices from the civil court. Paragraph 21.40 in particular has been quoted with added stress thereon. For facility of reference, the same is quoted below : "The provisions for claiming damages are thus an established principle. It is also logical and equitable to provide that any person who is affected by any prohibited practice should have a remedy to recover damages and compensation from the guilty party.
We, therefore, feel that a similar provision as in Australian and Canadian Acts should be made in our Act to the effect that any person, authority, Central or State Government who has suffered loss or damage as a result of the conduct of another person having indulged in any of the prohibited practices, viz., monopolistic trade practices, restrictive trade practices and unfair trade practices, will be entitled to recover the amount of loss or damage including costs suffered by him from the party who has indulged in any of prohibited practices. We feel that such a provision in our country will have a salutary effect and that it may prevent the prohibited practices from being indulged in. The remedy by way of damages will act as a deterrent to these prohibited practices right from incipiency and motivate the producers and suppliers themselves to desist from indulging in such practices." (emphasis* added) 62. I am afraid, it is difficult to read anything in this paragraph to support the said premise. This paragraph only emphasizes the need for a provision in the Monopolies and Restrictive Trade Practices Act to arm the Commission to allow compensation for loss or damage arising out of any of the above prohibited practices--but not retrospectively. We cannot forget that well recognised legal presumption is against retrospectivity and not in its favour. In fact this recommendation was made on the analogy of legal provisions as available to the courts in America, West Germany and elsewhere, within the jurisdiction of anti-trust laws. It may be relevant to point out that in those countries the right to award compensation for damage or loss arising out of the prohibited practices lies with the common law courts and not with any Tribunal, distinct from the civil court as in the case in India. Therefore, the proposition that Section 12B of the Act creates only an additional forum as a part of procedural law is unacceptable.
63. Section 12B talks of compensation award for the loss or damage arising out of any one of the prohibited practices mentioned therein.
The concept of unfair trade practices was for the first time introduced in August, 1984, by inserting Sections 36A to 36E, vide Part B of Chapter V. If so, this provision (section 12B) cannot be interpreted to mean as if it recognised the right of any aggrieved person to claim compensation for the loss arising out of unfair trade practices vesting in the civil court prior to August 1, 1984. There is nothing in the Sachar Committee Report to suggest that it recognised any such right vested in the civil court and Section 12B being introduced only to provide an additional forum which might be construed as a part of procedural rather than substantive law.
64. In this context, it will be helpful to refer to the decision of the Full Bench of the Commission in Godrej and Boyce Mfg. Co, Ltd., In re [1991] 70 Comp Cas 224. It was held therein that the concept of unfair trade practices having been introduced with effect from August 1, 1984, a claim arising out of breach of a warranty in respect of a refrigerator purchased in April, 1984, would not lie even on the ground that though the warranty was given at the time of purchase of the refrigerator, i.e., before this provision came into effect, yet the warranty continued and the cause of action arose only when the seller failed to fulfil its warranty by not carrying out the necessary repairs--an event which occurred after the said date, i.e., August 1, 1984. The contention before the Commission was that even though this refrigerator was purchased in April, 1984, yet one year's warranty accompanying the sale was available till August 1, 1985, and, therefore, if there is a breach of warranty after the said date, the claim was maintainable. This contention was repelled and it was held that the unfair trade practice in question consisted in giving a sham warranty which was not intended to be performed and this took place before August 1, 1984. It is not a breach of warranty but the factum of falsehood which is the unfair trade practice. The Commission observed : "Therefore, the coming into existence of the evidence or circumstances for showing that the said falsehood does not constitute unfair practice cannot be allowed to relate to the date of purchase which was prior to coming into force of the provision of Section 36A on August 1, 1984."Bashiruddin Ashraf v.Bihar Subai Sunni Majlis-Awaqf, AIR 1965 SC 1206, State of Bombay (now Jivabhai Purshottam v. Chhagan Karson, AIR 1961 SC 1491, the Full Bench held that the provisions of Section 36A of the Act pertaining to unfair trade practices cannot be given retrospective operation. The majority order accepts both the reasoning and the findings in the said Full Bench decision as correct. If so, the provisions of Section 12B introduced along with the provisions of Section 36A by the Central Amendment Act, i.e., No. 30 of 1984, cannot be treated differently in the matter of giving retrospective effect to one of them and not to the other, in the absence of any express words or necessary implication in support of such a view.
66. An important limb of the argument in support of the view expressed in the majority order is that the law would not normally create a "right without a remedy". In other words, if there is a right, the law must be construed to have provided expressly or otherwise some remedy and effort should be made to unearth such an intention supposedly hidden in the language used or circumstances surrounding the enactment of the statute. The argument has been extended to surmise that the restrictive trade practice was already on the statute book prior to August 1, 1984, and the Commission had the right to enquire into it and pass a "cease and desist" order against the person who indulged in it and, therefore, the right to claim compensation arising out of such a restrictive trade practice which expressly came into effect on August 1, 1984, must be construed as being available even prior to that date.
I have said enough to conclude that prior to August 1, 1984, a civil court was not competent to allow any compensation, treating it as a claim arising from any of the prohibited practices. The concept of restrictive trade practice and/or monopolistic trade practice has a special connotation and has been devised on the analogy of antitrust laws operating in the western world. The bedrock for this concept is the acceptance that the free competition in the market leads to efficiency all round resulting in availability of better service, excellent goods, timely delivery at competitive and, therefore, reasonable prices.
67. This concept was not prevalent in the countries of the Communist Bloc nor so recognised in the less developed countries which had not borrowed wholesale the ideas and ideologies prevalent in the Western world. Therefore, the legal provision describing various trade practices as prohibited practices on the ground that they were anti-competitive in nature came into being for the first time when the Act came into being in 1969. It follows that prior to that, a civil court could not award any compensation for a claim arising out of a given set of circumstances on the mere ground that the facts constituted a restrictive or monopolistic trade practice in terms of this Act. In any case, prior to August 1, 1984, there was a right to be saved from the ill effects of restrictive trade practices/ monopolistic trade practices and the remedy was available in the shape of a "cease and desist order". At that time there was no right to be compensated for a possible loss arising from such practices. This right was created for the first time in 1984 to be enforced under the amended Act. So the theoretical proposition of "right under remedy", in my humble opinion, is not relevant for the present consideration.
68. Needless to repeat a civil court has no jurisdiction in respect of restrictive trade practices. The facts which constitute a restrictive trade practice may also amount to a breach of contract as well or may amount to a specific tort for which remedy lies in claiming damages arising therefrom ; but merely because the defendant in a civil case was found guilty of indulging in restrictive trade practice simpliciter will not create a liability to pay damages on that account.
69. I may now briefly consider the decisions and other considerations referred to in the majority order. First of all, inter alia, reliance has been placed on the statement of objects and reasons relating to this enactment. In my view, even this is not helpful in the matter. The same, so far as relevant for the present purpose, reads as follows : "3. At present, there are no specific provisions in the Act for regulating unfair trade practices, like misleading advertisements, bargain selling, etc. The Sachar Committee had, inter alia, recommended that the scope of the Act should be enlarged to cover unfair trade practices. The legislative history of the United States, the United Kingdom and other democratic and progressive countries of the world also shows that they have specified legal provisions for regulating unfair trade practices in order to supplement and bolster the law relating to restrictive trade practices. In the United Kingdom, the law relating to consumer protection via maintenance of competition has ... in this regard for the protection of the consumer." 70. There is nothing in the statement to suggest that it was intended to give retrospective effect to any existing or newly introduced provisions to make them more effective. I wonder if it can be argued that a provision can be construed to have retrospective effect simply because the provision is for the protection of consumer. Protection is intended to be provided from the date the provision comes into effect.
It does not call for a case of inherent retrospectivity in it. This is apart from the consideration that statement of objects and reasons for an enactment cannot be legally relied upon to give retrospective effect to a particular provision unless the language used therein is so capable.
71. Reliance has also been placed in the majority order on the case of New India Insurance Co. Ltd. v. Smt Shanti Misra, AIR 1976 SC 237 ; [1977] 47 Comp Cas 453 to support the view that the provision of Section 12B can be given retrospective effect in regard to the claims arising out of the restrictive trade practices. This was a case pertaining to the interpretation of Section 110 of the Motor Vehicles Act where it has no doubt been held that the plain language of Sections 110A and 110F indicates a change" of forum, i.e., a change of adjectival and not substantive law. It is a well-established principle that such a change of law operates retrospectively, in respect of pending matters also. The jurisdiction of an ordinary civil court stood ousted as soon as a Claims Tribunal was constituted under the said provision. In that case, the court observed as under (at page 457 of 47 Comp Cas) : "On the plain language of Sections 110A and 110F there should be no difficulty in taking the view that the change in law was merely a change of forum, i.e., . . . fact as to when the accident occurred." 72. It was a clear case relating to change of forum alone and was rightly held as part of procedural law. The case was decided on the express language of Section 110A and the same furnishes no guide for the decision of the question before us pertaining to the interpretation of Section 12B of the Monopolies and Restrictive Trade Practices Act.
It is because in the present case, there is no change or substitution of forum. A new right to claim compensation has been created and new forum has been devised which creates a substantive right. I have taken pains to emphasise that here is not the case of "altered mode". Prior to August, 1984, there was no right to claim compensation arising out of the aforesaid prohibitive practices. Even the civil court had no right to consider and allow compensation for any such claim. This right was created for the first time and as such there can be no presumption of retrospectivity in respect of the operation of the provision.
73. There is a considerable discussion (paras 20-25 of the majority order at page 291 supra) to support the proposition that the words used in Section 12B. ". . . Any loss or damage is caused. . ." are not the words to indicate the point of time when the trade practices referred to in Sub-section (1) of Section 12B were carried on and loss or damage was caused thereby, but are introduced to merely describe the situation or state of affairs which must be proved to justify a claim of compensation under Section 12B. With reference to certain judgments, it was sought to be proved that these words cannot be interpreted to relate to the time when loss or damage occurs or is caused but only describe the condition of such loss or damage having been caused. I am inclined to agree to this proposition but, to my mind, this is not a pertinent consideration to decide the point in issue. The question to be seen is whether the provision of Sub-section (1) of Section 12B can be interpreted to have any retrospective effect when there is no such effect by express words and by virtue of the words used in the provision the same has to be interpreted prospectively. In fact, we are concerned to find out whether in the absence of express words, there is any necessary intendment which compels us to give retrospective effect to these provisions. The onus on the person who seeks to hold that the provision should be interpreted with retrospective effect is indeed very heavy and I am unable to find any circumstance, much less any solid justification, for bestowing such a construction on the provision.
74. Reliance has also been placed on the case of Firestone Tyre and Rubber Co. of India Pvt. Ltd. v. Management, AIR 1973 SC 1227 ; [1973] 43 FJR 315. It was held therein that Section 11A inserted in the Industrial Disputes Act, 1947, in the year 1971, is prospective in its operation, i.e., to say, it applies only to disputes referred for adjudication on or after the date of its coming into force (discussion appeared in paras 28-32 of the majority order at page 294 supra). I need not go into its details since the aforesaid provision of law discussed therein was held to be not retrospective but prospective in operation.
75. It has been further argued in para 33 of the majority order that the provision of Section 12B is a beneficial piece of legislation in the interest of consumers, traders or the Governments which may have suffered loss or damage as a consequence, inter alia, of restrictive trade practice carried on by erring undertakings and the court must adopt a beneficial rule of interpretation so as to give the maximum benefit to the persons for whose benefit it is enacted. It is all right as a theoretical proposition but would this justify the conclusion that perforce a legal provision should be construed, to have some hidden element of retrospectivity which is to be discovered to give the extensive benefits of the provision The answer is clearly in the negative. I need not repeat that this provision is not of adjectival or procedural nature. It confers a specific right to claim compensation for a loss arising out of prohibited practices and the jurisdiction to allow such a claim has, for the first time, been conferred on the Commission. There is no element of retrospectivity, apparent or hidden, in the words of this provision.
76. It has been argued (para 34 of the majority order at page 296 supra) that as a recognised rule of interpretation the remedial statutes ought to be construed liberally and the rule against retrospectivity should be applied with less insistence in respect thereof. Support in this behalf is sought from the decisions cited in Bharat Singh v. New Delhi Tuberculosis Centre [1986] 69 FJR 129 ; AIR 1986 SC 842, Ruston and Hornsby (India) Ltd. v. T. B. Kadam, AIR 1975 SC 2025 and Sree Bank Ltd, v. S. D. Roy and Co., AIR 1966 SC 1953. I am afraid, the so-called liberal construction does not in any way affect the established maxim pertaining to retrospective-operation of statutes. These cases are concerned with interpretation of certain provisions appearing in different enactments. I need not discuss all these rulings which proceed on the express language used and the circumstances just preceding and succeeding the particular enactment in question. It would suffice to discuss Sree Bank Ltd. v. S. D. Roy and Co., AIR 1966 SC 1953. It deals with the interpretation of Section 45-O(1) and Section 45-O(3) of the Banking Companies Act, 1949, as amended by the Central Act 52 of 1953. In effect, it was held in that judgment that Section 45-O(1) applies to suits or applications for which limitation had expired before enforcement of the amending Act.
This case was decided on the language used in the said legal provision with a view to avoid the situation of complete negation of enforcement of a claim as would be clear from the following passage (headnote) : "For the application of Sub-sections (1) and (3) of Section 45-O two things are necessary : (i) that a company is being wound up, and (ii) that a suit is instituted or an application is made by such a banking company. When these two things are there, the period commencing from the date of presentation of the petition for winding up has to be excluded in computing the period of limitation prescribed for such a suit or application. The condition of the company being wound up would be satisfied by all companies with respect to which winding up orders had been made either prior to the commencement of the Amending Act of 1953 or there- after. The language of the sub-section does not limit the expression 'companies being wound up' to those companies with respect to which winding-up orders are made subsequent to December 31, 1953. There appears to be no good reason for imposing such a limitation on this expression.
The provisions of Sub-section (3) of Section 45-O support this construction of Sub-section (1)".
77. There is no such negation of rights or compulsion in the situation before us. Hence the said ruling is not applicable in the present case.
78. In the light of the above discussion, I have no doubt in my mind that the provision of Section 12B cannot be given retrospective effect on the basis of any established principle of interpretation and in the absence of any express words or necessary intendment of this provision to that effect. It would be too much to say that simply because there is no constraint of paying court fees or applying the strict rules of evidence and law of limitations while enforcing claims under the Monopolies and Restrictive Trade Practices Act, such as those prevailing in matters before the civil courts, the provision of Section 12B should be given a forced interpretation about its retrospective operation to help the persons who might have suffered as a result of any of those prohibited trade practices prior to the date of enactment.
Moreover, it will be anachronistic to interpret Section 12B to say that a claim of compensation arising from a restrictive trade practice or monopolistic trade practices would be retrospective in operation while that arising from unfair trade practices will be prospective only. This dichotomy is hard to reconcile. There is no imperative reason to justify the construction or interpretation of the legal provision in a fashion which compels us to adopt self-contradictory approaches while dealing with unfair trade practice on the one hand and restrictive/monopolistic trade practices on the other.
79. One final consideration which has prevailed with me in recording this dissent is the likely, somewhat anomalous, situation arising from the conclusion arrived at in the majority order. If a loss or damage arises out of an unfair trade practice indulged in prior to August 1, 1984, a compensation application from a person suffering such a loss is not maintainable. An application for loss or damage arising out of restrictive trade practices (and pro tanto, monopolistic trade practices) even prior to the said date will be maintainable provided such a claim has not become barred under the law of limitation--say three years--as applicable to suits prior to the said date. In other words, a claim of compensation arising from restrictive trade practices or monopolistic trade practices at any time within three years from the said date--say from August 2, 1981, onwards can be enforced by filing application under Section 12B at any time even five or 10 years later than the date when cause of action arose. It is so because the provisions of the Limitation Act do not apply to proceedings before the Commission. As a matter of fact, all the six compensation applications before us have been filed in the year 1989 in respect of claims arising out of some restrictive trade practices at any time prior to August 1, 1984. If these applications are maintainable, there is no good reason why such compensation applications cannot be filed in the year 1990 or 1992 provided the claim to be enforced arose at any time after August 2, 1981. To say that such belated claims can be shut out on the ground of laches is not an answer to the legal maintainability of such claims.
The ground of laches is a mixed question of law and fact depending on the given circumstances of an individual case. It is difficult to presume that Legislature might have intended to create such a situation in the absence of any express words or necessary intendment of the provisions contained in Section 12B. In fact, there is a presumption against bestowing legitimacy on belated claims in the absence of the clearest words in support of such intention.
80. For all these reasons, I hold that Section 12B is not capable of being interpreted retrospectively and the question referred to the Full Bench as above, is answered accordingly.
81. In view of the opinion expressed by the majority of the Bench, the preliminary objection raised in this bunch of compensation applications is disposed of as follows : 1. Section 12B of the Monopolies and Restrictive Trade Practices Act is, in so far as restrictive trade practices are concerned, retrospective in operation in the sense that applications for compensation under Section 12B shall be competent and maintainable even in regard to restrictive trade practices carried on prior to the insertion of that provision provided the claim had not become barred by limitation prescribed for a suit under the Limitation Act prior to the insertion of Section 12B. 2. Section 12B shall, however, have prospective operation in the case of unfair trade practices and shall, therefore, apply only to those claims for compensation which relate to unfair trade practices carried on subsequent to the introduction of Section 12B.82. With these answers, the cases shall be listed before the Benches and on dates to be indicated later for dealing with rest of the issues and matters.
83. A copy of this order shall.be placed on the file of each of the compensation applications referred to above.