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

Appellant is a cooperative society registered under theAct. Respondent was appointed as Chief Accounts Officer in the Appellant mill. On the ground that he has committed misconduct, twos 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 25.5.963. 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 alsod 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.e 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 months 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 more4. However, there existed a dispute as to whether the 3rd respondent had found an alternative job or not5. 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 isg 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(c) Since F.I.R. has been quashed, as such one of the charges of the6. Aggrieved by and dissatisfied therewith, Appellant filed a writ petition before the High Court, which has been dismissed by reason of the impugned judgment.7. 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.

Reasoning: 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.