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CASE NO.: Appeal (civil)  4773 of 2006

PETITIONER: The Shahabad Cooperative Sugar Mills Ltd

RESPONDENT: Special Secretary to Govt. of Haryana Corp. & Ors

DATE OF JUDGMENT: 10/11/2006

BENCH: S.B. Sinha & Dalveer Bhandari

JUDGMENT: J U D G M E N T   (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."            

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       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

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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 \026 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

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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

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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.

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       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

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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

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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

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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.  

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       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.