The Shahabad
Cooperative Sugar Mills Ltd Vs. Special Secretary To Govt. Of Haryana Corp.
& Ors [2006] Insc 785 (10 November 2006)
S.B.
Sinha & Dalveer Bhandari
(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."
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 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 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 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
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.
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 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 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 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.
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.
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