2006 Supreme(SC) 1096

2007(1) Supreme 889
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
S.B. Sinha and Dalveer Bhandari, JJ.
The Shahabad Co-operative Sugar Mills Ltd.—Appellant
versus
Special Secretary to Govt. of Haryana Corp. & Ors.—Respondents
Civil Appeal No. 4773 of 2006
(Arising out of SLP (C) No. 24613 of 2005)
Decided on 10-11-2006
Counsel for the Parties :
For the Appellant : Vinay Garg, Advocate.
For the Respondents : J.L. Gupta, Sr. Advocate, Ms. Anu Gupta, Ms. Nidhi Gupta, Mrs. Gouri Karma Das and Rajesh Singh, Advocates.

IMPORTANT POINT
State can not exercise its revisional jurisdiction if an appeal lies before it.

Headnote:Haryana Co-operative Societies Act, 1984—Section 115—Revisional jurisdiction of State—State can not exercise its revisional jurisdiction if an appeal lies before it—Respondent No.3 was appointed Chief Accounts Officer in appellant society mill—Charge-sheets were issued on ground that he committed misconduct—Respondent did not attend proceedings of enquiry and Enquiry Officer proceeded to hold enquiry ex-parte—Order of dismissal from srevice was after show cause—Respondent filed appeal before Registrar on basis of Section 114 of Punjab Act and appeal was dismissed—Respondent filed revision before State Govt. which was allowed—Appellant’s writ challenging revisional order was dismissed by High Court—Appeal—Whether State Govt. acted illegally and without jurisdiction in entertaining the revision? Yes.

       Held : 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.(Para 26)

       We, therefore, are of the opinion that the order of the State Government having been passed without jurisdiction was a coram non judice.(Para 28)

       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. (Para 33)

       The question which, however, arises is whether this Court shall mould the relief. We have been taken to the merit of the matter.(Para 34)

       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. (Para 35)

       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.(Para 36)