JUDGMENT S.B. Sanyal. J. - By this writ application the petitioner-State Bank of India seeks quashing of Annexure-8 dated 31-10-1986 by which the respondent-Presiding Officer, Labour Court, and an authority under the Bihar Shops and Establishment Act, 1953 has allowed the complaint of respondent no. 3 made under section 26 of the Bihar Shops and Establishment Act (hereinafter to be referred as the Act) and directed State Bank of India to re-instate the complainant on the post from which he was dismissed and be paid all the back wages and benefits including yearly increments up to date putting him on the same position on which he would have been placed today had he not been dismissed from service. 2. The facts relevant for appreciating the points canvassed before me falls in a short compass. Respondent no. 3 joined the service of the Bank at Balasore some time in February, 1966. In August, 1968, he came on transfer to Muzaffarpur and worked for about four years. On 25-2-1972 the then Agent of the Muzaffarpur Branch asked the complainant to explain about the detention of some cheques in contravention of the Bank's Rule for unduly long period. His reply not being satisfactory, without framing any charge the complainant was suspended on 1-8-1972. Ten months thereafter the complainant was served with charge sheet dated 26-5-1973 asking him to show cause as to why action should not be taken against him for being negligent in duty and for fraudulently removing fourteen demand draft cheques. The departmental enquiry was completed some time on 11-7-1977 and on 1-8-1977 the Regional Manager passed an order of dismissal (Annexure-5). As against that the complainant resorted to an internal remedy by filing an appeal as provided under sub-paragraph no. 12 of paragraph no. 521 of the Shashtry Award which was ultimately dismissed. The order of dismissal of the appeal (Annexure-6) without a speaking order by giving reasons was communicated to the complainant on 24-3-1978. The respondent no. As against that the complainant resorted to an internal remedy by filing an appeal as provided under sub-paragraph no. 12 of paragraph no. 521 of the Shashtry Award which was ultimately dismissed. The order of dismissal of the appeal (Annexure-6) without a speaking order by giving reasons was communicated to the complainant on 24-3-1978. The respondent no. 3 filed a complaint under section 26 (2) of the Act on 26-6-1978 along with a petition for condonation of delay alleging that he had not been guilty of any misconduct as held by the employer and the so called departmental inquiry was sham and in complete violation of the principle of natural justice inasmuch as he was not provided with copies of important documents connected with the charge for which copies were sought for. 3. Both parties led oral and documentary evidence under section 26 (5) (a) of the Act before the Authority constituted under the Act. On a thorough consideration of all the materials the Authority recorded the following finding on merit. "On the detailed discussion above I now find and hold that the opposite party has totally failed in proving that the applicant was ever negligent with working as Clerk in D.D.R. Section in Muzaffarpur Branch of the Bank in detaining D.D. Cheques and in detaining lists of originating debits of D.D.R. bills and that he ever did any thing against the instruction of the Bank. The opposite party has also failed to prove that the applicant had. ever removed the 14 D.D. Cheques mentioned in the first charge and that he had ever waived or charged less over the interest knowingly or wilfully. The opposite party has also failed to prove that the applicant had ever derived any illegal personal gains by any act on his part while working in D.D.R. Section of the Bank. The result is that I have no alternative but to conclude that the two sets of charges framed against the applicant by the opposite party (Exts. 23 and 23/a) are frivolous and baseless and, therefore, they must be rejected outright." 4. Mr. Basudeva Prasad, appearing on behalf of the Bank, did not assail the finding on merit recorded by the authority. 23 and 23/a) are frivolous and baseless and, therefore, they must be rejected outright." 4. Mr. Basudeva Prasad, appearing on behalf of the Bank, did not assail the finding on merit recorded by the authority. The only two points urged before me are: (a) On publication of notification dated 13.8.1985 under section 4 (2) of the Act excluding application of all provisions of the Act to the Branches of public Sector Banks situated in the State of Bihar, the authority under the Act had ceased to have any jurisdiction to render the impugned Judgment dated 31.10.1986. (b) The complaint was barred by limitation having been filed beyond ninety days of the receipt of the order of dismissal and, therefore, the complaint under section 26 of the Act was not entertain able by the Authority. Mr. Ganguly, learned Advocate appearing on behalf of the complainant, submitted that the authority has considered and decided both the points correctly by holding that the Notification is prospective and there was sufficient cause for delay to be condoned. 5. Before I embark to consider the rival contentions, it would be useful to quote the provision relied upon as well as the Notification made thereunder. "4 (2). Notwithstanding anything contained in this Act, the provisions thereof specified in the third column of the Schedule shall not apply to the establishment, employees and other persons referred to in the corresponding entry in the second column: Provided that the State Government may by notification, add to, omit or alter any of the entries in the Schedule in respect of one or more areas of the State and on the publication of such notification, the entries in either column of the Schedule shall be deemed to be amended accordingly." "S. O. In exercise of the powers conferred by the proviso to sub-section (2) of Section 4 of the Bihar Shops and Establishments Act, 1953 (Bihar Act VIII of 1954) the Governor of Bihar is pleased to make the following amendment in the schedule appended to the said Act. AMENDMENT In the said schedule- 1. Serial no. 35 and its entries shall be deleted. 2. For serial no. 33 and its entries, the following shall be substituted, namely- 33. All Branches of the Public Sector Banks situated in the State of Bihar". No. 10/86-1019/85 L & E By order of the Governor of Bihar". AMENDMENT In the said schedule- 1. Serial no. 35 and its entries shall be deleted. 2. For serial no. 33 and its entries, the following shall be substituted, namely- 33. All Branches of the Public Sector Banks situated in the State of Bihar". No. 10/86-1019/85 L & E By order of the Governor of Bihar". Sd/-Akhila Nand Lall Under Secretary to Govt." 6. According to Mr. Basudeo Prasad, the proviso, referred to above, raises a fiction allowing the State Government to make a Notification which can be retrospective in operation affecting pending cases. In short according to the learned counsel, the 'words deemed to be amended accordingly' would mean deemed to have been deleted altogether from the Act from its inception and the words in the notification "the following shall be substituted" to mean as always been there in the Act. The Executive authority, according to the learned counsel, therefore, was vested with the power to make a Notification retrospective in character and effect. In exercise of the said power, the State Government also passed the Notification making it retrospective in operation taking away all vested right by wiping away all pending cases against the Schedule Commercial Banks. The authority, therefore, ceased to exist to pass any order after 13.8.1985, the date of notification. In support of this submission, learned counsel for the petitioner strongly relied upon the cases of Lakshmi Narayan Guin & ors. vs. Niranjan Modak (AI.R. 1985 Supreme Court 111) and the case of M/s Bhikusa vs. Sangamner A.T.B.K. Union (A.I.R. 1960 Bombay 299). 7. It is now well established that legislature can enact laws which has retrospective operation and the Courts will not ascribe retrospectivity to new laws affecting rights unless by express words or necessary implication it appears that such was the intention of the legislature. If the new Act affects the substantive rights of a person, it will not be held to apply to proceedings which have already, commenced unless a clear intention to that effect is manifested Express words are not essential in order that statute may apply to pending actions or proceedings. If the new Act affects the substantive rights of a person, it will not be held to apply to proceedings which have already, commenced unless a clear intention to that effect is manifested Express words are not essential in order that statute may apply to pending actions or proceedings. If the object of the Act itself requires that the Act should apply to pending proceedings, it will be so applied unless there is a saving clause in the Act itself to the effect that it would not apply to pending proceeding (See Sibnath v. Porter A.I.R. 1943 SC 377; Ouilter 'So Mapleson, (1882) O.B.D. 672). At times if an Act is designed to protect the public against acts of harmful character or against some evil or abuse, the Statute may be construed retrospectively, if the language admits such an interpretation even though it may equally have a prospective meaning (See Craise on Interpretation of Statute 7th Edition 396 & A.I.R. 1961 Supreme Court 307 at 309). 8. The legislature can also delegate its legislative power within the recognised limits. "It will depend on the language employed in the statutory provision which may, in express terms or by necessary implication empower the authority concerned to make a rule or regulation with retrospective effect but where no such language is to be found it has been held by the Courts that the person or authority exercising subordinate legislative functions cannot make a rule, regulation or bye-laws which can operate with retrospective effect." (See Income-tax Officer, Alleppey v. M.C. Ponnoose A.I.R. 1970 Supreme Court 385). Same is the view expressed in the case of Hukum Chandra vs. Union of India (A.I.R. 1972 Supreme Court 2427) where it was held that there is nothing in section 40 of the Displaced Person Compensation and Rehabilitation Act, 1954 empowering the Central Government either expressly or by necessary implication to make a rule retrospectively. In this case an 'explanation' was added to rule 49 of the Rules under the said Act and the amendment of the rule was given retrospective effect by providing that the explanation was to be deemed always to have been inserted vide amendment no. dated February 11, 1960 made by the Central Government acting under section 40 of the Act. In this case an 'explanation' was added to rule 49 of the Rules under the said Act and the amendment of the rule was given retrospective effect by providing that the explanation was to be deemed always to have been inserted vide amendment no. dated February 11, 1960 made by the Central Government acting under section 40 of the Act. It was held that "there was nothing in the language of section 40 to empower the Central Government either expressly or by necessary implication, to make a rule retroactively, the Central Government would be acting in excess of its power if it would give retrospective effect to any rule." This explanation added to rule 49 was held to be only prospective in operation. The under-lying principle is that the subordinate legislation has to act within the limits of its power and cannot transgress the same. The subordinate law making body is bound by the terms of its delegated or derived authority. The power to modify, cancel or vary must be exercised within the limits prescribed by the provisions conferring the said power. (See A.I.R. 1959 Supreme Court 609 at 617). 9. It becomes, therefore, necessary to consider (a) whether section 4 (2) proviso of the Act confers on the subordinate authority, namely, the State Government to make a Notification retrospective in character, and (b) whether the Notification either expressly or by necessary indentment purports to be retrospective in nature. Section 4 (7) proviso confers power upon the State Government by issuance of Notification add to, omit or alter any of the entries in the schedule in respect of one or more areas of the State and on the publication of such Notification the entries in either column of the schedule shall be deemed to be amended accordingly. The question is whether the word 'deemed' creates a statutory fiction if so what is the fiction. When a thing is to be deemed something else, it is to be treated as that something else with the attendant consequence. But as observed by Per Windener. J. in Hunter Douglas Australia Pty vs. Perm. Blinds (1970) 44 Australian law Journal and Reports 157 at 26 (2), there is presumption still less any rule that whenever the word 'deemed' appears in a Statute it demonstrates a fiction or some abnormity of terminology. But as observed by Per Windener. J. in Hunter Douglas Australia Pty vs. Perm. Blinds (1970) 44 Australian law Journal and Reports 157 at 26 (2), there is presumption still less any rule that whenever the word 'deemed' appears in a Statute it demonstrates a fiction or some abnormity of terminology. It may "State the effect or meaning which some matter or thing has, the way the thing has to be adjudged. This need not import artificiality or fiction". Therefore, whenever the word deemed is made it need not always create a legal fiction but state the effect or meaning of the matter. However when it creates legal fiction, it means 'that a position which otherwise would not obtain is deemed to obtain under these circumstances. (See 1948 Supreme Court 687 at 695 Kamraj Nadar Vs. Kunju Theva). 10. The Schedule of section 4 (2) forms part of the Act and a reference to that effect is to be found in the section itself. Section 4 (2) cannot fully be understood and appreciated without reference to the Schedule. Therefore, any variation in the schedule by issuance of a Notification by the Government is in effect an amendment of the Act. Normally amendment of an Act is a legislative action. Section 4 (2) proviso empowers the State Government to vary and modify the schedule by adding, omitting or altering the same which is required to be treated to be an amendment of the Schedule by the State Government. The word 'deem' in the context, to my mind appears more to be statement of an undisputed conclusion of the effect of the variation or modification of the third column of the schedule i.e. "deemed to be amended accordingly". I am unable to appreciate the argument of the learned counsel for the petitioners that the conferment of power to amend the schedule carries with it the power to do so by the subordinate authority by giving it retrospective effect. Nothing of that kind could be discerned from the proviso by the use of the expression "the schedule shall be deemed to be amended accordingly". There is no express word or any intendment that the amendment should be deemed to be always there. The general rule in case of such amendment is, it would come into operation from the date it has been so effected. There is no express word or any intendment that the amendment should be deemed to be always there. The general rule in case of such amendment is, it would come into operation from the date it has been so effected. I am, therefore, of firm opinion that the power to make amendment of the schedule is conferred on the subordinate authority only to do so prospectively. 11. Now, coming to the Notification dated 13th August, 1985, itself I fail to find any express or implied intendment making it to be retrospective in character. The Notification requires for serial no. 33 and its entries (Vide S.O. 800 dated 22.8.1985) the following shall be substituted, namely, All branches of the public sector Banks situated in the State of Bihar" exempted from All provisions. There has been a further amendment of serial no. 33, by S.O. 419 dated 25.3.1986 and the entry now stands as follows:- 33. All branches of the Scheduled Commercial Bank including Public Sector Banks and Regional Rural Banks situated in the State of Bihar—All Provisions. The words in the Notification, strongly relied upon by the learned counsel for the petitioner are "the following shall be substituted" is to mean always to have been substituted and/or inserted. This is difficult to accept. The Notification does not, by its own term, make its operation retrospective and it would be extravagant to claim that by necessary implication it has retrospective operation. In Moon vs. Durdan (1948 2 Ex. 22) Baron Parke held that the fact the legislation contained no saving of the pending litigation was of itself something which went to show that it was not intended to be retrospective. As a general rule Statute does not affect pending proceedings unless a clear intention to that effect is manifest. I am, therefore, of the opinion that the proviso to section 4 (2) do not confer on the subordinate authority, namely, the State Government, to make a Notification amending the Schedule retrospectively nor the Notification either expressly or by necessary implication purport to be retrospective in nature. 12. The case of Lakshmi Narayan Guin (supra) relied upon by learned counsel of the petitioner is of no assistance. 12. The case of Lakshmi Narayan Guin (supra) relied upon by learned counsel of the petitioner is of no assistance. In this case the protection available to a tenant under section 13 (1) from eviction by landlord under the West Bengal Premises Tenancy Act was extended to a place known as Memari after the trial Court judgment evicting the tenant was ordered but at the time the Act was extended an appeal by the tenant against his eviction was pending against the said judgment before the appellate court. The question arose whether the tenant having undergone a judgment against himself is entitled to the protection of the Act. The command of section 13 (1) of the West Bengal Premises Tenancy Act was "Notwithstanding anything to the contrary in any other law, no order or decree for recovery of possession of any premises shall be made by any Court in favour of landlord except on one or more grounds..." and then follow the specific grounds. It was held that the Act operated "when the decree for recovery of possession will have to be passed and did not refer back to the date of institution of the suit" and words any Court meant all courts including appellate Court. It was as such held that the "legislative command deprived the Court of its unqualified jurisdiction to make such order or decree". It is true even though there was no express words of retrospectivity but there was necessary intendment to that effect. The object of the Act itself required that it shall apply to pending proceeding as it was designed to protect a large segement of the Public against the abuse or evil of profiteering by the unscrupulous landlord. The Court, therefore, was divested of its jurisdiction to pass decree for recovery of possession on grounds other than specified in the Act from the date of its enforcement. This case, therefore, is clearly distinguishable. The next case relied upon by the petitioner's counsel is Bhikusa vs. Sangamner (supra). This was a case dealing with State Government's power to issue notification under section 26 (2) or Minimum Wages Act saying that certain provisions of the Act shall not apply to certain industries situated within certain area. This case, therefore, is clearly distinguishable. The next case relied upon by the petitioner's counsel is Bhikusa vs. Sangamner (supra). This was a case dealing with State Government's power to issue notification under section 26 (2) or Minimum Wages Act saying that certain provisions of the Act shall not apply to certain industries situated within certain area. In pursuance of that power the State Government in the first instance issued Notification that the Act shall not apply to certain areas, then extended the said exemption from time to time and ultimately withdrew the exemption. It was contended in that case that the Act must be deemed to have been repealed so far as those areas and industries are concerned. Negativating the said submission, the Court held that "the granting of an exemption from the operation of the Act is not and cannot be equivalent to a repeal of the Act." It only means suspension of the operation of the Act for certain area for some time. This case too is of no help to the petitioner. 13. In the instant case there do not appear to have any such legislative command. The subordinate authority, namely, the State Government, further was not empowered under the Act to issue a notification retrospective in character. I am, therefore, of the opinion that the authority retained jurisdiction to adjudicate complaints filed under section 26 of the Act prior to amendment of 1985. The impugned order is not vitiated on that account. 14. So far as the question of limitation is concerned, the authority hold that ninety days have to be counted from the date of receipt of the final order of dismissal. There being a departmental remedy for preferring an appeal against the original order of termination; the original order of termination merges in the appellate order, which is the final order of termination communicated to the petitioner on 24.3.1978. The Court had also power to condone the delay under section 26 (4) of the Act. The Court has found "sufficient cause" for not making the application within the prescribed time and thus allowed the petition for condonation of delay. I hold that the court below has exercised its discretion on correct principle of law and the finding recorded by it cannot be interfered with in writ jurisdiction. The discretion has been exercised on relevant considerations. The Court has found "sufficient cause" for not making the application within the prescribed time and thus allowed the petition for condonation of delay. I hold that the court below has exercised its discretion on correct principle of law and the finding recorded by it cannot be interfered with in writ jurisdiction. The discretion has been exercised on relevant considerations. I, therefore, find no force in the second point of the learned counsel for the petitioner that the complaint being time barred it could not have been entertained by the authority. 15. No other point has been raised before me. 16. In the result, the writ application is dismissed with costs. Hearing fee is assessed at Rs. 250/-.