Full Judgment Text
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CASE NO.:
Appeal (civil) 4773 of 2006
PETITIONER:
The Shahabad Cooperative Sugar Mills Ltd
RESPONDENT:
Special Secretary to Govt. of Haryana Corp. & Ors
DATE OF JUDGMENT: 10/11/2006
BENCH:
S.B. Sinha & Dalveer Bhandari
JUDGMENT:
J U D G M E N T
(Arising out of SLP (C) No.24613 of 2005)
S.B. Sinha, J.
Leave granted.
Interpretation of Section 115 of the Haryana Co-operative Societies
Act, 1984 (for short, ’the Haryana Act’) calls for consideration in this appeal
which arises out of a judgment and order dated 12.9.2005 passed by the
Punjab & Haryana High Court in Civil Writ Petition No.19569 of 2003.
Appellant is a cooperative society registered under the Co-operative
Societies Act. Respondent was appointed as Chief Accounts Officer in the
Appellant mill. On the ground that he has committed misconduct, two
charge-sheets were issued to him containing the following charges :
"(a) He failed to check and control the Mill accounts,
which resulted into issuance of false receipts of
cheques/cash/demand drafts thus putting the Mill
into financial losses.
(b) Failing to control the Mills Funds resulting into
crores of rupees lying in cash credit limit thus
putting the Mill to huge financial losses.
(c) Removal of official records from the office for
personal use.
(d) Approval of tour programme of Security Guards
for the months of December, 1995, January, 1996
and February, 1996 without his signatures.
(e) Availing of leave from 23.3.95 to 25.3.96 on false
pretexts.
(f) Verifying that Smt. Veena Sharma was an
employee of the Mill entitling her to get benefits,
whereas she has never been the employee of the
Mill.
(g) Did not attend the hearing of Courts in criminal
complaints filed on behalf of the Mill under 138 of
Negotiable Instruments Act.
(h) Inspite of rejection of his leave, still remained
absent from duty w.e.f. 18.5.96 to 25.5.96."
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An Enquiry Officer was appointed to enquire into the correctness or
otherwise of the said charges. Before the said Enquiry Officer, Appellant
herein examined two witnesses on 18.11.1996 and 23.12.1996, who were
also cross-examined by the respondent No.3 herein. Resignation was
tendered by Respondent No.3 on 13.2.1997. Admittedly, the same had not
been accepted on the ground that disciplinary proceedings had already been
initiated against him. Non-acceptance of the said resignation was
communicated to him by a letter dated 1.3.1997. In his letter dated 4.3.1997
a contention was raised by him that he had already relinquished his charge.
In view of termination of contract of employment, only one month’s salary
is required to be deducted from the amounts due to him. He, further, by a
letter dated 1.7.1997, stated that after tendering resignation he had got
another job of much higher status and salary and he was not interested in the
job of the Mill any more.
However, there existed a dispute as to whether the 3rd respondent had
found an alternative job or not.
It is not in dispute that the 3rd respondent did not attend the
proceedings of enquiry on several days. He contends that no notice was
served on him and furthermore as he was put under arrest and therefore, he
could not attend. In his absence the Enquiry Officer proceeded to hold the
enquiry ex parte. A report was submitted by the Enquiry Officer on
21.10.1997. The Board of Directors issued a notice requiring the 3rd
respondent to show cause as to why he should not be dismissed from
service. The contention of the 3rd respondent in this behalf was that despite
request, neither a copy of the enquiry report nor the copies of the depositions
of witnesses, who were examined as ex parte by the Enquiry Officer, had
been supplied. He was dismissed from service by an order dated
26.12.1998. Relying on or on the basis of Section 114 of the Punjab Act, an
appeal was filed before the Registrar, Cooperative Societies, which was
dismissed by an order dated 9.2.2001. A revision petition filed thereagainst
before the State Government purported to be in terms of Section 115 of the
said Act was allowed by an order dated 29.10.2003, holding :
"(a) The inquiry was fixed on 9.7.97, 12.7.97, 16.7.97
and 25.7.97. It is difficult to believe that notices
would have been received by the Respondent
herein by post in time.
(It is important to note here that 25.07.97 was
fixed on the personal request of the Respondent
himself. So far as 09.07.97, 12.07.97 & 19.07.97
the date of hearing is concerned, Respondent No.3
in his letter dated 13.8.97 has himself stated that he
could not attend the hearing on 9.7.97, 12.7.97 and
16.7.97 as he was out of station.)
(b) The Inquiry Report is non-speaking report and the
entire evidence has not been considered.
(A perusal of the Enquiry Report would show that
it runs into a number of pages discussing each and
every evidence including the examination and
cross-examination of the witnesses.)
(c) Since F.I.R. has been quashed, as such one of the
charges of the charge-sheet stands dropped."
Aggrieved by and dissatisfied therewith, Appellant filed a writ
petition before the High Court, which has been dismissed by reason of the
impugned judgment.
The principal contention raised before the High Court as also before
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us is that the State Government acted illegally and without jurisdiction in
entertaining the revision application filed by the 3rd respondent herein.
Mr. Vinay Garg, learned counsel appearing on behalf of Appellant
would submit that the State Government could not exercise its revisional
jurisdiction in the facts and circumstances of the case and thus, the order
impugned before the High Court, was a nullity, being wholly illegal and
without jurisdiction, and thus, the High Court committed a manifest error in
dismissing the writ petition.
Mr. Jawahar Lal Gupta, learned Senior Counsel appearing on behalf
of the 3rd respondent, on the other hand, urged that as the power of the State
Government to exercise its revisional power could have been exercised suo
motu, it is immaterial as to whether the same was entertained at the instance
of the 3rd respondent or otherwise. Reliance in this behalf has been placed
on Gurnam Kaur vs. State of Punjab & Ors. [1992 PLJ 658] and The
Punjab State Handloom Weavers Apex Society Ltd. vs. The State of
Punjab & Ors. [1995 PLJ 546].
It was further urged that from a perusal of the orders passed by the
State of Haryana as also by the High Court it would appear that the 3rd
respondent was made a scapegoat in the entire matter as the First
Information Report was lodged against the Managing Director of the
Cooperative Society. Our attention was moreover drawn to the fact that the
High Court had even quashed the First Information Report lodged as against
the 3rd respondent and in that view of the matter, this Court should not
exercise its discretionary jurisdiction under Article 136 of the Constitution
of India.
Haryana Act was enacted to consolidate and amend the law relating to
the cooperative societies. It is a self-contained Code. It received the assent
of the President of India on 20th September, 2004. Chapter XV of the
Haryana Act provides for settlement of disputes.
Section 102 thereof contains a non obstante clause in terms whereof if
any dispute touching the constitution, establishment management or the
business of a cooperative society between the society or its committee and
any past committee, any officer, agent or employee or any past officer, agent
or employee or the nominee, heirs or legal representatives of any deceased
officer, agent of employee of the society arises, the same shall be referred to
the arbitration of the Registrar for decision and no court shall have any
jurisdiction to entertain any suit or other proceedings in respect of such
dispute. In terms of Section 103 of the said Act, the Registrar is empowered
to either decide the matter himself or transfer the same to any person who
has been vested by the Government with the power in that behalf.
Chapter XVIII of the Act provides for appeals and revision. Section
114 provides for appeal in relation to a decision or award made under
Section 103 of the Act. Admittedly, the appeal preferred by the 3rd
respondent was determined by an Additional Registrar. Clause (c) of Sub-
Section (2) of section 114 provides that an appeal against any decision or
order made by the Additional Registrar or Registrar under Sub-Section (1)
shall lie to the Government.
Section 115 of the Act provides for a revisional power of the
Government in the following terms :
"115. Revision \026 The Government may suo motu or on
an application of a party to a reference under Section
102, call for and examine the record of any proceedings
in which no appeal lies to the government under Section
114 for the purpose of satisfying itself as to the legality
or propriety of any decision or order passed and if in any
case it shall appear to the Government that any such
decision or order should be modified, annulled or
revised, the Government may, after giving the persons
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affected thereby an opportunity of being heard, pass such
order thereon as it may deem fit."
We would hereafter notice the provisions of the Punjab Co-operative
Societies Act, 1961 (Punjab Act), which are said to be in pari materia to the
Haryana Act. Section 68 of the Punjab Act provides for appeals. By reason
of Clause (c) of Sub-Section (2) of Section 68, however, against an order
made by the Additional Registrar an appeal lies to the Registrar. Section 69
provides for a revisional jurisdiction both in the State Government as also
the Registrar in the following terms :
"69. The State Government and the Registrar may, suo
motu or on the application of a party to a reference, call
for and examine the record of any proceedings in which
no appeal under Section 68 lies to the Government or the
Registrar, as the case may be, for the purpose of
satisfying itself or himself as to the legality or propriety
of any decision or order passed and if in any case it
appears to the Government or the Registrar that any such
decision or order should be modified, annulled or
revised, the Government or the Registrar, as the case may
be, may, after giving persons affected thereby an
opportunity of being heard, pass such order thereon as it
or he may deem fit."
Interpretation of Section 69 of the Punjab Act came up for
consideration in some cases before the Punjab and Haryana High Court. The
earliest one being a decision rendered by a Division Bench of the said Court
on 24.12.1970 in Hardial Singh, Manager, the Shahabad Farmers Co-
operative Marketing-cum-Processing Society Ltd. vs. State of Haryana
through Secretary, Co-operative Societies, Haryana, Chandigarh &
Ors. [1975 (1) SLR 55], wherein it was opined :
"This section gives revisional powers to the State
Government in cases where no appeal lies under section
68 of the Act and the power is exercisable either suo
motu or on the application of a party to a reference.
There is no dispute that the State Government did not act
suo motu but passed the impugned order on the
application of the Manager. From the plain reading of
this section, it is clear that such an application could be
filed only by a party to a reference. In the instant case,
admittedly there was no question of the reference of any
dispute for decision to any authority under the Act. The
Society or the Manager were not parties to any such
reference. It was a simple case where the petitioner-
Society took disciplinary action against the Manager
(Petitioner) who filed an appeal under rule 36 of the
Rules on which the Joint Registrar passed an order on 5th
March, 1970."
A learned Single Judge followed the decision in Amritsar Central
Co-operative Bank Ltd., Amritsar & Anr. vs. State of Punjab & Ors.
[1971 PLJ 572].
A different note, however, was struck in Jaswant Singh vs. The State
of Punjab & Ors. [1986 Punjab Legal Reports and Statutes (Vol.1) 314],
S.S. Sandhawalia, J., (as the learned Chief Justice, then was) opined that the
State Government can exercise its jurisdiction suo motu even if an
application is filed by a person aggrieved, stating :
"A bare reference to the above-said provision
would show that the revisional authority can among other
things apart always act suo-motu. Mr. Kaushal very
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fairly conceded that if the State Government so acts,
there would be no defect of jurisdiction or objection to
the same. I hence fail to see how the position would
become diametrically different if the matter is brought to
the notice of the revisional authority (which is clothed
with wide powers) by one of the parties to the dispute.
The State Government is not a natural person and has no
personal knowledge of its own and matters are thus
brought to its notice either directly by its employees or
by others and no fatality can attach to an order on the
hyper-technical ground that if the State Government had
acted suo-motu, its action would have been unassailable
but merely because the action is taken on proceedings
brought to its notice by another the self-same action
would become totally vitiated."
A Full Bench of the Punjab & Haryana High Court in Gurnam Kaur
vs. State of Punjab etc. [1992 PLJ 658 : 1992 (102) PLR 746] overruled
Hardial Singh (supra), stating :
".......The opening words of Section 69 reproduced above
with respect to "suo motu" or "on application of the
parties to the reference" are explanatory in nature. They
are neither superfluous nor redundant. Even in the
absence of phraseology used in the remaining context of
the provision referred to above still would clothe the
Revisional Authority to exercise the power as would be
seen from such like provisions in different statutes,
reference to which would be made later. It is immaterial
when revisional power is exercised as to whether, the
action was initiated at the instance of interested party or
suo motu. The order passed would be within jurisdiction.
This exercise of powers is not dependent on the action of
the party concerned. This view expressed in Hardial
Singh’s case (supra) that since action was not initiated by
the competent party concerned the same could not be
treated valid exercise of jurisdiction under Section 69 of
the Act, reproduced above, is not tenable in law. Even if
the action was taken by a party who was not aggrieved,
in other words not a person competent, the exercise of
powers in modifying, annulling or revising the order of
the subordinate authority will not be without
jurisdiction."
The said decision was followed by a Division Bench of the Punjab &
Haryana High Court in Punjab State Handloom Weavers Apex Society
Ltd. vs. State of Punjab & Ors. [1995 PLJ 546 : 1996-1 PLR (Vol.112)
83], stating :
"A perusal of the above provision shows that the
State Government as well as the Registrar have been
empowered to examine the legality or propriety of any
decision or order passed by a Society. They can do so
either suo motu or on the application of a party to a
reference. The power is not subject to any provision of
the rules or the bye-laws. It is in the nature of a
supervisory jurisdiction conferred on the government and
the Registrar. In the very nature of things where an order
has been passed by the Registrar, the power vests in the
State Government."
The decision of the High Court rests on the latter category of the
decisions, referred hereinbefore.
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The revisional jurisdiction is akin to the appellate jurisdiction.
In Shankar Ramchandra Abhyankar vs. Krishnaji Dattatraya
Bapat [AIR 1970 SC 1], this Court held :
"It would appear that their lordships of the Privy
Council regarded the revisional jurisdiction to be a part
and parcel of the appellate jurisdiction of the High Court.
This is what was said in Nagendra Nath Dey v. Suresh
Chandra Dey, 59 Ind.App. 283 at p.287=(AIR 1932 PC
165 at p.167):
"There is no definition of appeal in the Code of
Civil Procedure, but their Lordship have no doubt that
any application by a party to an Appellate Court, asking
it to set aside or revise a decision of a subordinate Court,
is an appeal within the ordinary acceptation of the
term...."
Similarly in Raja of Ramnad v. Kamid Rowthen and
Ors., 53 Ind App 74=(AIR 1926 PC 22) a civil revision
petition was considered to be an appropriate form of
appeal from the judgment in a suit of small causes nature.
A full bench of the Madras High Court in P.P.P.
Chidambara Nadar v. C.P.A. Rama Nadar and Ors.
A.I.R. 1937 Mad. 385 had to decide whether with
reference to Article 182(2) of the Limitation Act, 1908
the term "appeal" was used in a restrictive sense so as to
exclude revision petitions and the expression "appellate
court" was to be confined to a court exercising appellate,
as opposed to, revisional powers. After an exhaustive
examination of the case law including the decisions of
the Privy Council mentioned above the full bench
expressed the view that Article 182(2) applied to civil
revisions as well and not only to appeals in the narrow
sense of that term as used in the Civil Procedure Code. In
Secretary of State for India in Council v. British India
Steam Navigation Company (1911) 13 Cal LJ. 90 and
order passed by the High Court in exercise of its
revisional jurisdiction under Section 115, Code of Civil
Procedure, was held to be an order made or passed in
appeal within the meaning of Section 39 of the Letters
Patent, Mookerji, J., who delivered the judgment of the
division bench referred to the observations of Lord
Westbury in Attorney General v. Sillem (1864) 10 HLC
704 and of Subramania Ayyar, J., in Chappan v. Moidin
(1898) ILR 22 Mad. 68 at p.80 (FB) on the true nature of
the right of appeal. Such a right was one of entering a
superior Court and invoking its aid and interposition to
redress the error of the court below. Two things which
were required to constitute appellate jurisdiction were the
existence of the relation of superior and inferior Court
and the power on the part of the former to review
decisions of the latter. In the well known work of Story
on Constitution (of United States) vol. 2, Article 1761, it
is stated that the essential criterion of appellate
jurisdiction is that it revises and corrects the proceedings
in a cause already instituted and does not create that
cause. The appellate jurisdiction may be exercised in a
variety of forms and, indeed, in any form in which the
legislature may choose to prescribe. According to Article
1762 the most usual modes of exercising appellate
jurisdiction, at least those which are most known in the
United States, are by a writ of error, or by an appeal, or
by some process of removal of a suit from an inferior
tribunal. An appeal is a process of civil law origin and
removes a cause, entirely subjecting the fact as well as
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the law, to a review and a retrial. A writ of error is a
process of common law origin, and it removes nothing
for re-examination but the law. The former mode is
usually adopted in cases of equity and admiralty
jurisdiction; the latter, in suits at common law tried by a
jury."
Provisions for appeal or revision provide for statutory remedies. The
Appellate Authority or the Revisional Authority can exercise its appellate or
revisional jurisdiction provided it would be maintainable in law.
We have noticed hereinbefore the provisions of the Punjab Co-
operative Societies Act and Haryana Act. Relevant provisions of Haryana
Act are somewhat different from the Punjab Act. Under the Haryana Act, an
appeal and revision is maintainable from an Award made by an Arbitrator
appointed in terms of Section 102 of the Act. The party to a reference under
Section 102 would mean a party to arbitration for reference. Section 103
provides for an appeal from an award which may be passed by the Arbitrator
appointed in terms of Section 103 of the Act. The party to reference under
Section 102 would mean a party to arbitration for reference. Section 103
provides for an appeal from an Award, which may be passed by the
Arbitrator appointed in terms of Section 103 of the Act. It does not appear
that there exists a similar provision in the Punjab Act. Another difference of
significance between the two Acts is that whereas an appeal against an order
passed by the Additional Registrar under the Punjab Act is maintainable
before the Registrar, under the Haryana Act it would be maintainable only
before the State Government. Revisional power under the Punjab Act is
vested both in the Registrar as also the State Government, whereas under the
Haryana Act the revisional power is vested only in the State Government.
The State cannot exercise its revisional jurisdiction if an appeal lies
before it. If an appeal lies, a revision would not lie. Admittedly, the 3rd
respondent preferred an appeal before the Registrar. Such an appeal was
purported to have been filed from an order passed by the Board. The 3rd
respondent did not invoke the provision for arbitration. We have noticed
hereinbefore that the disputes and differences between the Society and an
employee is referable to arbitration in terms of Section 102 of the Haryana
Act. An appeal is maintainable against an award of the Arbitrator before the
State. On this ground alone the revision petition was not maintainable.
Faced with such a situation, Mr. Gupta contended that no appeal was
maintainable before the Registrar. The said contention of Mr. Gupta cannot
be accepted for more than one reason. The 3rd respondent himself took
recourse to the said remedy. Having taken recourse to the said remedy and
having himself invoked Appellate jurisdiction before the Registrar, it does
not lie in his mouth to contend that no appeal was maintainable. Before the
revisional authority he primarily questioned the order passed by the
disciplinary Authority, as also order passed by the Appellate Authority. It
had never been the contention of the 3rd respondent that the revision
application was filed by him directly against the order passed by the Board
of Directors. No revision application would have even then been
maintainable. Even if it would be so, the appellant herein was entitled to
raise the contention that having regard to the provisions of Section 102 of
the Haryana Act, an appeal or a revision was not maintainable. It is now
well settled that if an appeal lies, the revisional jurisdiction could not be
exercised. {See A.M. Chengalvaroya Chetty vs. The Collector of
Madras & Ors. [AIR 1965 Mad. 376].}
If the revision application was not maintainable, a’ fortiori suo motu
power could not also be exercised. Even otherwise if suo motu power is to
be exercised, it has to be stated so. In M/s. D.N. Roy & Ors. vs. State of
Bihar & Ors. [AIR 1971 SC 1045], this Court opined :
"It is true that the order in question also refers to
"all other powers enabling in this behalf". But in its
return to the writ petition the Central Government did not
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plead that the impugned order was passed in exercise of
its suo moto powers. We agree that if the exercise of a
power can be traced to an existing power even though
that power was not purported to have been exercised,
under certain circumstances, the exercise of the power
can be upheld on the strength of an undisclosed but
undoubted power. But in this case the difficulty is that at
no stage the Central Government intimated to the
appellant that it was exercising its suo moto power. At all
stages it purported to act under Rules 54 and 55 of the
Mineral Concession Rules, 1960. If the Central
Government wanted to exercise its suo moto power it
should have intimated that fact as well as the grounds on
which it proposed exercise that power to the appellant
given him an opportunity to show cause against the
exercise of suo moto power as well as against the
grounds on which it wanted to exercise its power. Quite
clearly the Central Government had not given him that
opportunity. The High Court thought that as the Central
Government had not only intimated to the appellant the
grounds mentioned in the application made by the 5th
respondent but also the comments of the State
Government, the appellant had adequate Opportunity to
put forward his case. This conclusion in our judgment is
untenable. At no stage the appellant was informed that
the Central Government proposed to exercise its suo
moto power and asked him to show cause against the
exercise of such a power. Failure of the Central
Government to do so, in our opinion, vitiates the
impugned order."
(Emphasis supplied)
.
We, therefore, are of the opinion that the order of the state
Government having been passed without jurisdiction was a coram non
judice. {See MD, Army Welfare Housing Organisation vs. Sumangal
Services (P) Ltd. [(2004) 9 SCC 619], Zahira Habibullah, Sheikh & Anr.
vs. State of Gujarat & Ors. [(2004) 4 SCC 158], Harshad Chiman Lal
Modi vs. DLF Universal Ltd. & Anr. [(2005) 7 SCC 791] and
Gyanmandir Mahavidhyalaya Samity vs. Udailal Jaroli & Anr. [(2005)
10 SCC 603].}
Applicability of doctrine of stare decisis, which Mr. Gupta persuades
us to accept in view of the decisions of this Court in S. Brahmanand &
Ors. vs. K.R. Muthugopal (Dead) & Ors. [(2005) 12 SCC 764] and Shri
Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha
Utpadak Sanstha & Anr. vs. State of Maharashtra & Ors. [(2001) 8 SCC
509], also is not applicable.
In those decisions it has been held that if the decisions which were
operating for a long time should not be disturbed, unless shown palpably
wrong. We have noticed hereinbefore that the Punjab Act and Haryana Act
are not in pari materia. They contain different provisions. The purport and
object of the revisional jurisdiction of the State Government under the
Haryana Act is in effect and substance are different from those of the Punjab
Act.
Furthermore, the doctrine of stare decisis does not contain an
inflexible rule. In State of Maharashtra vs. Milind & Ors. [(2001) 1 SCC
4], a Constitution Bench of this Court opined :
".....The rule of stare decisis is not inflexible so as to
preclude a departure therefrom in any case but its
application depends on facts and circumstances of each
case. It is good to proceed from precedent to precedent
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but it is earlier the better to give quietus to the incorrect
one by annulling it to avoid repetition or perpetuation of
injustice, hardship and anything ex facie illegal, more
particularly when a precedent runs counter to the
provisions of the Constitution. The first two decisions
were rendered without having the benefit of the decisions
of this Court, that too concerning the interpretation of the
provisions of the Constitution. The remaining decisions
were contrary to the law laid down by this Court. This
Court in Maktul v. Manbhari adopting the statement of
law found in Halsbury and Corpus Juris Secundum
observed thus:
"But the supreme appellate court will not
shirk from overruling a decision, or series of
decisions, which establish a doctrine plainly
outside the statute and outside the common law,
when no title and no contract will be shaken, no
persons can complain, and no general course of
dealing be altered by the remedy of a mistake."
(From Halsbury)
"Previous decisions should not be followed
to the extent that grievous wrong may result; and,
accordingly, the courts ordinarily will not adhere
to a rule or principle established by previous
decisions which they are convinced is erroneous.
The rule of stare decisis is not so imperative or
inflexible as to preclude a departure therefrom in
any case, but its application must be determined in
each case by the discretion of the court, and
previous decisions should not be followed to the
extent that error may be perpetuated and grievous
wrong may result."
(From Corpus Juris Secundum)"
[See also State of Gujarat vs. Mirzapur Moti Kureshi Kassab
Jamat and Others [(2005) 8 SCC 534]
For the reasons aforementioned we are of the opinion that the High
Court was not correct in holding that the State of Haryana was entitled to
exercise its revisional jurisdiction in the facts of the present case.
The question which, however, arises is whether this Court shall mould
the relief. We have been taken to the merit of the matter. We are satisfied
that the High Court was right in opining :
"...The petitioner has been facing the departmental
proceedings since 1996. Even otherwise, it is to be
noticed that FIR registered against the petitioner has been
quashed by this Court in Crl. Misc. 144 of 2001 in its
order dated 11.05.2001. The petitioner has not cared to
challenge the aforesaid order before the Supreme Court.
In such circumstances, it would be wholly inequitable at
this stage to remand the matter back to the enquiry
officer. Mr. Malik, then submitted that even if enquiry
proceedings are to be quashed, the Respondents could not
have been directed to be re-instated in service with full
back wages. Respondent No.3 had himself stated that he
had got a much better job with better emoluments, status
and salary. Learned Counsel for Respondent No.3 has,
however, pointed out that on getting the aforesaid job, he
had submitted the resignation to the Managing Director
of the petitioner. The same was rejected, as such
Respondent No.3 was not able to accept the job."
It was also held that the inquiry was not properly conducted.
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The 3rd respondent has already joined his services pursuant to the
judgment of the High Court. He, in the meanwhile, has also superannuated.
The questions as to whether during the interregnum he had been gainfully
employed or not; or his resignation was rightly refused to be accepted and
despite submission of resignation, he did not, in fact, get a job and never
joined anywhere else, should, in our opinion, be determined by an
appropriate authority. We, therefore, in exercise of our jurisdiction under
Article 142 of the Constitution of India direct that the Registrar of Co-
operative Societies should arbitrate in the matter and exercise its jurisdiction
under Section 102 of the Haryana Act, as if the 3rd respondent has invoked
the said jurisdiction. The parties hereto shall file their respective documents
before the Registrar within four weeks from the date. The Registrar shall fix
a date of hearing and intimate the same to the parties, on which date they
may produce their witnesses before him. The 3rd respondent will be entitled
to examine himself as a witness.
The Registrar shall consider the matter afresh without in any way
being influenced by the report of the Enquiry Officer, the appellate order
passed by the Additional Registrar or the revisional order passed by the
State. The Registrar, Co-operative Societies is requested to make an Award
within eight weeks from the date of entering into the reference. We
furthermore direct that irrespective of the result of the dispute between the
appellant and the 3rd respondent, no recovery shall be effected from the 3rd
respondent in respect of any salary or emoluments paid to him during the
period from 1.10.2005 to 30.6.2006 when he joined his services pursuant to
the order of the High Court and date of his superannuation.
This appeal is allowed with the aforementioned observations and
directions. However, in the facts and circumstances of the case, the parties
shall pay and hear their own costs.