C.W.P. No.4922 of 1989 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (1) C.W.P. No.4922 of 1989 DATE OF DECISION: JULY 14, 2011 Jasbir Singh and others .....PETITIONERS Versus Commissioner (Appeals), Jalandhar Division and others ....RESPONDENTS Present: Mr. M.S. Bedi, Advocate, for the petitioners. Mr. Parveen Goyal, Addl. Advocate General, Punjab. Mr. D.V. Sharma, Sr. Advocate with Ms. Shivani Sharma, Advocate and Mr. Harit Sharma, Advocate, for respondents No.6,10,15,16,19,25,26,29,30 and 31. (2) C.W.P. No.14997 of 1989 Mehar Singh (dead) through LRs. .....PETITIONER Versus The State of Haryana and others ....RESPONDENTS Present: Mr.Surinder Singh, Advocate, for Mr.Gobinder Singh Sandhu, Advocate, for the petitioner. Mr. D. Khanna, Addl. Advocate General, Haryana. Mr. S.S. Dalal, Advocate, for respondent No.3. (3) C.W.P. No.3985 of 2011 Avtar Singh .....PETITIONER Versus Additional Registrar (Admn.) Cooperative Societies,Punjab, Chandigarh and others ....RESPONDENTS Present: Ms. Jagdeep Bains, Advocate, for the petitioner. Mr. Parveen Goyal, Addl. Advocate General, Punjab. C.W.P. No.4922 of 1989 -2- ... CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MR.JUSTICE M. JEYAPAUL HON'BLE MR.JUSTICE GURDEV SINGH --- SATISH KUMAR MITTAL, J. This judgment shall dispose of CWP Nos. 4922 of 1989, 14997 of 1989 and 3985 of 2011. CWP No.4922 of 1989 This writ petition has been filed by 86 petitioners, who are residents of village Bhagupura, Tehsil Patti, District Amritsar, challenging the order dated 24.8.1988, whereby the revision petition filed by some of the members of the Cheema Co-operative Agricultural Service Society Limited, who are residents of villages Cheema, Bhagupura and Barwala, against the order dated 30.10.1987 passed by the Assistant Registrar, Co- operative Societies, ordering the bifurcation of the Cheema Co-operative Agricultural Service Society Limited, was allowed by the Commissioner (Appeals), Jalandhar Division (exercising the powers of the State Government), setting aside the said order. In this case, the Assistant Registrar, Co-operative Societies, while exercising the powers of the Registrar, and in view of the Circular dated 19.8.1987 issued by the Registrar, Co-operative Societies, Punjab, for re- construction of Primary Co-operative Agricultural Service Society, passed the order of bifurcation of the Cheema Co-operative Agricultural Service Society Limited under Section 13(8) of the Punjab Co-operative Societies Act, 1961 (hereinafter referred to as `the Punjab Act') into two Societies, i.e., Cheema Co-operative Agricultural Service Society Limited, the area of C.W.P. No.4922 of 1989 -3- operation of which shall be in villages Cheema and Barwala; and the Bhagupur Co-operative Agricultural Service Society Limited, Bhagupur, the area of which shall be in villages Bhagupur, Assol and Sangwan. Some of the members of the parent Cheema Co-operative Agricultural Service Society Limited, who were having grouse against the above-said bifurcation order, challenged the said order by filing revision under Section 69 of the Punjab Act, before the State Government. The Commissioner, Appeals (exercising the powers of the State Government), allowed the said revision petition and set aside the order dated 30.10.1987 passed by the Assistant Registrar while coming to the conclusion that without calling and holding the General Body meeting of the parent Society and considering the objections filed by some of the members, the order of bifurcation could not have been passed. The said order was challenged in the aforesaid writ petition by some of the members, who are residents of village Bhagupur. At the time of motion hearing, while relying upon a Division Bench decision of this Court in Hardial Singh, Manager the Shahabad Farmers Co-operative Marketing-cum-Processing Society Ltd. v. State of Haryana through Secretary, Co-operative Socities, Haryana, Chandigarh and others, 1975(1) S.L.R. 55, a contention was raised that against the order of the Assistant Registrar, Co-operative Societies bifurcating the Society under Section 13(8) of the Punjab Act, no revision under Section 69 of the said Act was maintainable because under that Section, the revision is maintainable only on the application made by a person, who is party to a reference under Section 55 of the Punjab Act, and the Government cannot C.W.P. No.4922 of 1989 -4- suo motu exercise the revisional power on a revision filed by the persons, who are not party to the reference. The learned Division Bench, while considering some of the observations made by the Hon'ble Supreme Court in The Everest Apartments Co-operative Housing Society Ltd.. Bombay v. State of Maharashtra and others, AIR 1966 S.C. 1449, doubted the correctness of the view taken by the Division Bench in Hardial Singh's case (supra) and admitted the writ petition to the Full Bench, and passed the following order:- “ The revisional power contained in Section 69 of the Punjab Cooperative Socieities Act, 1961, appears to be very wide as per terms of the statute but that power has been restricted in Hardayal Singh vs State of Haryana, 1975 (1) S.L.R. 55, by a Divisional Bench of this Court. It is undisputed that if State Government exercises suo moto powers of revision then it can do so but if the aggrieved party brings the matter to the notice of the State Government by way of revision and the State Government acts on that without mentioning in the order that it is taking suo moto action, according to the aforesaid Division Bench judgment, the order would be without jurisdiction. Similar provision in the Maharashtra Co- operative Societies Act came up for consideration before the Supreme Court in AIR 1966 S.C. 1449. Therein, it was observed that the Government should welcome an application because an aggrieved party can draw the attention of the Government to the acts in some of which Government may be interested to entertain. Even if the aggrieved party labelled his application as a revision under Section 69 of the Act, prima facie if the Government were to interfere, it would be exercising the revisional jurisdiction under Section 69 of the C.W.P. No.4922 of 1989 -5- Act, on the basis of information given by the aggrieved party, through the application labelled as a revision, and such an exercise of revisional jurisdiction would amount to taking suo moto action. Since prima facie, the decision of the Division Bench seems to run counter to the statutory provision and the Supreme Court decision, we admit this writ petition to Full Bench. Since matter is of importance and is likely to arise in large number of cases, we direct that papers of this case be placed before Hon'ble the Chief Justice for constituting a Full Bench as early as possible. No stay." CWP No.14997 of 1989 This writ petition was filed by one Mehar Singh (since deceased) challenging the order dated 21.8.1989 passed by the Commissioner & Secretary to Government, Haryana (exercising the powers of the State Government), whereby the revision petition filed by the petitioner under Section 115 of the Haryana Co-operative Societies Act, 1984 (hereinafter referred to as `the Haryana Act') against the order dated 23.1.1989 passed by the Registrar, Co-operative Societies, was dismissed being not maintainable. In this case, petitioner Mehar Singh was working in the Karnal Central Co-operative Bank Limited. He was charge-sheeted on certain allegations regarding submission of false certificate of Matriculation examination while taking employment, and embezzlement of funds of Israna Co-operative Credit and Service Society Limited, Karnal. On the basis of the report of the Enquiry Officer, a show-cause notice was served on him for dismissal of his services. After giving personal hearing, the Managing C.W.P. No.4922 of 1989 -6- Director of the Central Co-operative Bank dismissed him from the services vide order dated 10.3.1988. The petitioner challenged the said order by filing an appeal before the Registrar, Co-operative Societies under the Common Cadre Rules i.e. Haryana State Central Co-operative bank's Staff Service (Common Cadre) Rules, 1975. The Registrar vide order dated 23.1.1989 dismissed the said appeal. Against the said order, the petitioner filed a revision petition under Section 115 of the Haryana Act before the State Government which was dismissed by the impugned order dated 21.8.1989 being not maintainable. The said order was challenged by the petitioner in the instant writ petition which was admitted to be heard with CWP No.4922 of 1989. CWP No.3985 of 2011 This writ petition has been filed by Avtar Singh challenging the order dated 31.3.2010 passed by the Additional Registrar (Admn.), Co- operative Societies, Punjab (exercising the powers of the Registrar), whereby the revision petition filed by the petitioner under Section 69 of the Punjab Act, against the inaction of the Punjab State Co-operative Supply and Marketing Federation Limited, to consider and decide his representation for assignment of his seniority in accordance with the MARKFED Common Cadre Rules, and consequently for promotion to the Technical Officer, has been dismissed being not maintainable. The said writ petition was also admitted to be heard with CWP No.4922 of 1989. While admitting this writ petition, the learned Single Judge passed the following order:- “ The petitioner is aggrieved by an order dated 31st March, 2010(Annexure 11)passed by the Additional Registrar (Admn.), C.W.P. No.4922 of 1989 -7- Co-operative Societies, Punjab, rejecting his revision petition under Section 69 of the Punjab Co-operative Societies Act, 1961 (for short the `1961 Act') being not maintainable in the light of a Division Bench judgment of this Court dated 3.9.2009 passed in CWP NO.18007 of 2008 (Dr.S.P.Gupta versus State of Punjab and others, 2010(1) RCR (Civil) 548. It is urged that one of the Division Bench decisions of this Court restricting the revisional powers contained in Section 69 of the 1961 Act, was doubted by a Co- ordinate Bench way back vide order dated July 20, 1989 passed in Civil Writ Petition No.4922 of 1989 referring the matter to a Full Bench. Learned counsel for the petitioner states that pursuant thereto, the matter is being heard by a Full Bench comprising Hon'ble Mr.Justices S.K.Mittal, Jeyapaul and Gurdev Singh and the said case is now listed for hearing on 11.3.2011. It would be expedient if this matter be also listed before the Hon'ble Full Bench along with the aforesaid matter on the date fixed to enable learned counsel for the petitioner to assist the Full Bench. Admit. To be heard along with Writ Petition No.4922 of 1989 on 11.3.2011." In these writ petitions, learned counsel for the parties made detailed submissions with regard to the scope of the revision under Section 69 of the Punjab Act as well as under Section 115 of the Haryana Act while referring to various judgments rendered by the Hon'ble Supreme Court, this Court as well as other High Courts. Before we refer to and deal with those judgments and the various contentions raised by the learned counsel, it will be appropriate to quote the aforesaid provisions and the amendments made C.W.P. No.4922 of 1989 -8- therein from time to time. Section 69 of the Punjab Act is reproduced below:- " 69. Revision- 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 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 [(Substituted by Punjab Act No.26 of 1969 Section 15 w.e.f. 10.9.1969)." (Emphasis supplied) It is submitted that prior to the Punjab Act No.26 of 1969, the words "or the Registrar" were not existing in this provision and these words were added by the said Amending Act while amending the provisions w.e.f. 10.9.1969. After this amendment, the State Government and the Registrar, exercise the revisional powers concurrently. According to these provisions, the State Government or 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. Section 68 of the Punjab Act specifically provides against which order of the Registrar/Deputy Registrar or a Co-operative Society or the Liquidator an appeal lies. Section 115 of the Haryana Act, which confers the revisional power on the State Government before its amendment made by the Haryana C.W.P. No.4922 of 1989 -9- Co-operative Societies (Amendment ) Act, 2006, is reproduced below:- "” 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 hereby an opportunity of being heard, pass such order thereon as it may deem fit." After the amendment in 2006, in place of words and figures, "a party to a reference under Section 102" the words "an aggrieved party" have been substituted and after the words "of any proceedings", the words "under this Act and the rules framed thereunder" have been inserted. After the amendment, this provision reads as under:- " 115. Revision-The Government may suo motu or on an application of an aggrieved party, call for and examine the record of any proceedings under this Act and the rules framed thereunder 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 hereby an opportunity of being heard, pass such order thereon as it may deem fit." (Emphasis supplied) This Section also provides that the Government may suo motu or on an application of aggrieved party can call for the record of any proceedings under the Act and the Rules framed thereunder in which no C.W.P. No.4922 of 1989 -10- appeal lies to the Government under Section 114 of the Haryana Act. Section 114 of the Haryana Act again specifies the order passed by the Assistant Registrar/Additional Registrar/Registrar, decision taken by the Co-operative Society, against which an appeal lies to the authority as provided under Section 114(2)(c) or if the order is passed by the Registrar, then to the Government. In Hardial Singh's case (supra), a question came up for consideration before a Division Bench of this Court, whether a revision petition filed by the Society, which is not a party to a reference, challenging the order of the Registrar, Co-operative Societies passed under Rule 36 of the Service Rules, partly accepting the appeal of Hardial Singh, whereby he was reinstated, however, a penalty of stoppage of four increments with cumulative effect was imposed and the suspension period of Hardial Singh was ordered to be treated as duty period, which made him entitled to 50% of the pay, was maintainable or not. On the revision filed by the Society under Section 69 of the Punjab Act, the said order was set aside. In the writ petition, Hardial Singh raised the issue that the order passed by the Government under Section 69 of the Punjab Act was without jurisdiction as no revision under the said Section by the Society was maintainable. On behalf of Hardial Singh, it was argued that from the plain reading of Section 69, it is clear that a revision could only be filed by a party to a reference. The Society or the Manager, who filed the revision, was not party to any such reference, therefore, the State Government in exercise of the suo motu power should not have set aside the order of the Appellate Authority on the revision filed by the Society. The Division Bench, after making reference to C.W.P. No.4922 of 1989 -11- the provisions of Section 69 of the Punjab Act, has held as under:- “ .....After giving our thoughtful consideration to the entire matter, we are of the view that there is considerable force in this contention of the learned counsel. Section 69 of the Act, under which revision was filed is in the following terms:- " 69. Revision " - The Government 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 lies to the Government under Section 68 for the purpose of satisfying itself as to the legality and 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 pass such order thereon as it may deem fit." This section gives revision 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 (copy Annexure `B' to the petition). 6. In an effort to support the impugned order, it was contended by Mr. Mittal, learned counsel for the State that the C.W.P. No.4922 of 1989 -12- impugned order was not liable to be quashed as it should be deemed to have been passed in exercise of the suo motu powers of the State. We are unable to agree with the learned counsel as admittedly the impugned order has been passed on the revision filed by the Society under section 69 of the Act. The proceedings were started at the instance of an aggrieved party as is evident from the opening part of the order wherein it is stated thus :- “ This is a revision petition under section 69 of the Punjab Co-operative Societies Act, 1961, filed by Shri Kanwarjit Singh, President of the Sahabad Farmers Co- operative Marketing Cum Processing Society Ltd. Sahabad Markanda against the order dated 5-3-70 of Joint Registrar, Co-operative Societies, Haryana, Chandigarh." In the impugned order it is nowhere said that the action was being taken suo motu. If we accept the contention of the learned counsel for the State, then no difference would remain in the action taken by an appropriate authority suo motu and the one taken on the application of an aggrieved party. It could never be the intention of the legislature to treat both on the same footing. Thus we are of the considered view that no revision lay under section 69 of the Act to the State Government against the order of the Joint Registrar dated 5th March, 1970 and that the impugned order of the Minister is obviously without jurisdiction." There are other decisions of this Court which are on the similar lines. These are The Amritsar Central Co-operative Bank Ltd., Amritsar and another v. The State of Punjab and others, 1971 PLJ 572; The Gurdaspur Central Co-operative Bank Ltd. v. Under Secretary to Government, Punjab, C.W.P. No.4922 of 1989 -13- Cooperation Department, and another, 1973 PLJ 232 and Dharam Singh Rao alias D.S. Rao v. The State of Haryana and others, 1974 PLJ 278. In Gurnam Kaur v. State of Punjab and others, 1992(2) PLR 746, a Division Bench of this Court doubted the correctness of the view taken by the Division Bench in Hardial Singh's case (supra) and referred the matter to the Full Bench while observing as under:- “.................It is rare that the revisional authority would come to know of the orders passed by the lower authority of its own. The occasion to exercise the suo motu power can, therefore, arise only when an aggrieved person brings the order to the notice of the authorities. Also, there is nothing in the statute which debars an aggrieved person from moving the revisional authority to invoke its suo motu powers. The moment it is accepted that an aggrieved person can move for invoking the suo motu powers of the revisional authority, it would not matter whether it is stated in the order or not that suo motu powers are invoked for passing the order because it is well established that if there is power with the authority, the order passed can always be ascribed to it even though there is no mention that the same is being passed in exercise of that power." The Full Bench of this Court reported as 1992 PLJ 658, after considering the aforesaid issue and in view of the observations made by the Supreme Court in Everest Apartments' case (supra) and the decision of the Privy Council in The Commissioner of Income Tax, West Punjab v. The Tribune Trust, Lahore, (1948) 16 ITR 214 (P.C.), has held that the view taken by the Division Bench in Hardial Singh's case (supra) does not lay down the correct position of law with regard to interpretation of Section 69 of the Punjab Act, and has C.W.P. No.4922 of 1989 -14- held as under:- " 6. The revisional power as contemplated under Section 69 of the Co-operative Societies Act or any other statute generally is to send for the records of the case pending or decided by the Subordinate authorities to examine the same and to pass appropriate orders modifying, annulling or reversing the same. Such power can be exercised when the Revising Authority comes to know about the legality or propriety of passing such orders. Further, this knowledge can be acquired either at the instance of the Revising Authority itself or at the instance of aggrieved or interested party. 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 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 is 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. The 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." xxx xxx xxx xxx C.W.P. No.4922 of 1989 -15- 8. From perusal of the judgments referred to above; one of the Supreme Court in Everest Apartments' case (supra) and that of the Privy Council in The Tribune Trust's case (supra), it is quite clear that action to exercise revisional jurisdiction