Case: The Shahabad Coop Sugar Mills Ltd Vs. Spl.Secretary To Govt.Of Haryana Cor&amp;Ors

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. 31. 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. 32. 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) 33. [See also State of Gujarat vs. Mirzapur Moti Kureshi Kassab Jamat and Others [(2005) 8 SCC 534] 34. 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. 35. 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. 36. It was also held that the inquiry was not properly conducted. 37. 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. 38. 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]16. 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 Farmersg Society Ltd. vs. State of Haryana through Secretary,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 they 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, 197024. 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 forn 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 jury25. 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 law27. 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 exercised29. We, therefore, are of the opinion that the order of the state Government having been passed without jurisdiction was a coram non judice34. 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 caseWe have been taken to the merit of the matter37. 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 ofshould 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 witness38. 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,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.