Punjab-Haryana High Court
Harbans Lal vs State Of Punjab And Others on 9 December, 2013
Author: M.M.S. Bedi
Bench: M.M.S. Bedi
CWP No. 17001 of 1995 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CWP No. 17001 of 1995
Date of Decision: December 9, 2013
Harbans Lal
.....Petitioner
Vs.
State of Punjab and others
.....Respondents
CORAM: HON'BLE MR. JUSTICE M.M.S. BEDI.
-.-
Present:- Mr.M.S. Kang, Advocate
for the petitioner.
Mr. H.P. Verma, Addl. A.G., Punjab.
Mr.D.V. Sharma, Sr. Advocate with
Ms.Divya Khanna, Advocate
-.-
M.M.S. BEDI, J. (ORAL)
Through instant writ petition, the petitioner has invoked the writ jurisdiction of this Court under Articles/ 226/227 of the Constitution of India to challenge the order dated August 30, 1995 (annexure P-5) vide which Joint Secretary (Cooperation), Punjab, exercising the powers of the State Government had opted to remand the case to the Registrar, Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 17001 of 1995 [2] Cooperative Societies, Punjab, for deciding the controversy involved in the case.
The legal controversy which has been raised by the petitioner is that in view of the availability of a statutory remedy under Rule 15 (ii) of the Punjab State Cooperative Agricultural Services Societies Service Rules, 1986, of revision petition before the Deputy Registrar, could Joint Secretary take the matter to exercise his revisional powers purported to be an action taken suo motu.
Briefly stated the relevant facts material for the decision of the present case are that in the year 1988, the petitioner was working as Secretary of respondent No.8 Society-The Kokri Kalan Cooperative Agricultural Service Society Limited under Punjab Cooperative Societies Act, 1961, for short 'the Act'. There were seven Committee members. Respondents No.5 and 6 Surjit Singh and Gurcharan Singh respectively alongwith other committee member Hari Singh, vide resolution dated August 25, 1988 placed the petitioner under suspension and issued him charge-sheet. A meeting of the Committee of the Society was called on September 13, 1988 for September 29, 1988 in the office of the Society. Four members came present and a meeting was held under the Presidentship of Sh.Mehla Singh, Committee Member. After accepting the reply given by the petitioner to the show cause notice, he was re-instated by the Committee under the Presidentship of Mehla Singh. Respondents No.5 and 6 aforesaid alongwith another, held a meeting at a place other than the office of the Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 17001 of 1995 [3] Society and recorded a separate resolution on September 29, 1988 whereby the petitioner and Amar Singh, Peon-cum-chowkidar were removed from service. The said resolution was passed under the Presidentship of respondent No.5- Surjit Singh. Petitioner claims that the resolution passed by said members was never served upon him or Amar Singh. There were thus two resolutions of the same date i.e. September 29, 1988 one under the Presidentship of Mehla Singh and other under the Presidentship of Surjit Singh. The effect of the first resolution was that the petitioner was reinstated and the charge-sheet against the petitioner was dropped. The resolution dated September 29, 1988 passed under the Presidentship of Mehla Singh re-instating the petitioner and Amar Singh was challenged by Surjit Singh, respondent No.5 before Deputy Registrar, Cooperative Societies, Faridkot under Rule 80 of the Punjab Cooperative Societies Rules, 1963, for short 'the Rules' on the ground that it had been passed without any agenda. The resolutions passed by both the Committees on September 29, 1988 were rescinded by Deputy Registrar.
Mehla Singh and others preferred an appeal to the Commissioner (Appeals) under Section 69 of the Act against the order of Deputy Registrar, Cooperative Societies. The Commissioner had set aside the order and remanded the case back to the Deputy Registrar for a fresh decision. Both the resolutions passed on September 29, 1988 came up for adjudication before Deputy Registrar, Cooperative Societies, Faridkot, who on November 26, 1990, decided that the meeting held on September 29, Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 17001 of 1995 [4] 1988, October 8, 1988 and October 28, 1988 were wrong and illegal as such the decisions taken in the said meetings were set aside without referring to the other proceedings. It is apt to record that the Deputy Registrar, Cooperative Societies, Faridkot after hearing both the parties by his order dated April 20,. 1992 (annexure P-1) arrived at a conclusion that agenda of meeting for September 29, 1988 had been sent to all the seven Committee Members on September 29, 1988. Two parallel meetings had been held, in one meeting under the Presidentship of Mehla Singh, the petitioner alongwith other employee had been re-instated whereas in the other meeting held under the Presidentship of Surjit Singh, they were dismissed from service. When the two meetings being held, it could not be ascertained as to which meeting was legally conducted at the appropriate time and place. Operative part of the order dated November 20, 1992 is reproduced hereunder for ready reference:-
"An opportunity was given to the concerned parties to express their views. A resolution of the Coop. Societies can be set aside, only when, it does not comply with the requirements of Special Rule 80 (ia) which lays down that atleast 15 days clear notice specifying, the date, place, time and agenda for the meeting of Managing Committee shall be given to all the members of the committee. Further special Rule 80 empower the Registrar to declare the proceeding of the meeting as Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 17001 of 1995 [5] invalid if the proper agenda is not issued and if the meeting was not conducted at the appropriate time. In this present case an agenda was issued by Sh.Surjit Singh President of the Kokri Kalan CASS on 13.9.1988. As per agenda the meeting was to be held on 29.9.88 at 10 a.m. in the office of the society in which the decision of the charge sheet served to Sh.Harbans Lal, Salesman HO and Amar Singh Sevadar was to be taken. The agenda was sent to all the members of the Managing Committee but on 29.9.1988 two parallel meetings were held. In one meeting the employees were reinstated whereas in the other meeting they were dismissed. With the two meetings, being held it could not be ascertained that which meeting was legally conducted at the appropriate place and time. Relying on these facts the order dated 26.11.1990 was passed by the Deputy Registrar, Coop. Societies, Faridkot. The copy of the decision be sent to the Hon'ble Commissioner (Appeals) Jalandhar Division and Cooperation Department Punjab.
Announced. Sd/-Dharamjit Singh Grewal
20.4.1992 Deputy Registrar, C/S, Faridkot,"
A perusal of the above said order indicates that after recording the uncertainty, decision had been sent to the Commissioner (Appeals), Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 17001 of 1995 [6] Jalandhar Division. Mehla Singh again approached Commissioner (Appeals) under Section 69 of the Act for reviewing the earlier order passed by him on October 30, 1991 for modification of the decision rendered by Deputy Registrar, Cooperative Societies, Faridkot vide order dated April 20, 1992. The said request for modifying the earlier order was declined vide order annexure P-2 dated August 23, 1993. In view of both the resolutions dated September 29, 1988 having been set aside vide annexure P-1, the petitioner continued to work with the Society till October 1991 but the Society stopped paying him and Amar Singh salary without assigning any reason and did not permit both of them to work w.e.f. October 1991 and May 1, 1991, respectively. The petitioner approached Deputy Registrar, Cooperative Societies, Faridkot against the action of the members of the Society disallowing him to join service during the pendency of the charge- sheet against him. The Deputy Registrar, Cooperative Societies vide his order dated May 15, 1995 disposed of the same by passing the following order:-
"After hearing the arguments of both the counsels and carefully considering the decision rendered earlier I conclude that both the resolutions passed on 29.9.88 were set aside. After the orders of Hon'ble Commissioner (A) Punjab dated 30.10.1991 the orders of DRCS Faridkot, dt. 20.4.1991 setting aside both the resolutions are final. Counsel for the respondents cannot Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 17001 of 1995 [7] rightly take advantage of the order dt. 23.8.1993 passed by Commissioner (A) whereby he had clearly refused to review his earlier order dated 30.10.1991. Therefore, order of the Hon'ble Commissioner (A) dt. 30.10.1991 directed the DRCS Faridkot to reconsider his decision regarding resolution dated 29.9.1988. Complying this order the DRCS Faridkot vide his order dt. 20.4.92 set aside both the resolutions and it is clear that neither Shri Harbans Lal in service nor he has been dismissed specially when he has already received full pay upto 30.4.1991, this is proved by resolution of the respondent society dt. 31.3.1990 which is on the file.
On the basis of the above, I Ganga Ram, DRCS, Faridkot decide that Administrator of the Society should take a decision on the reply submitted by Sh.Harbans Lal on 24.9.1988 to the charge-sheet dt. 9.9.1988 in accordance with rule within one month. Order which was kept reserved on 5.5.95 has been written down today on 15.5.95. Parties be informed and file be entrusted to record keeper.
Dated: 15.5.1995 Sd/-Ganga Ram, Dy.Registrar, C/S, Faridkot."
Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 17001 of 1995 [8] A perusal of the above order indicates that a direction was given to the Administrator of the Society to take a decision on the reply filed by the petitioner on September 24, 1988 to the charge sheet dated September 9, 1988 in accordance with the Rules (service Rules governing the service conditions of the petitioner) within one month. It is relevant to observe here that the service conditions of the petitioner are governed by statutory rules framed under the Registrar Cooperative Societies, Punjab, called Punjab State Cooperative Agricultural Service Societies Service Rules, 1986 which were later on amended from time to time. The aforesaid Rules deal with mode of suspension of the employee against whom disciplinary proceedings are contemplated or are pending. Rule 14 prescribes penalties for misconduct. Rule 15 deals with right of an employee to file appeal against order of penalties specified in Rule 14. Rule 15 (ii) provides for a revision to the Joint Registrar, Cooperative Societies, against an order of Deputy Registrar passed in appeal. The said Rules have been framed under Rule 28 of the Punjab Cooperative Societies Rules, 1963. Petitioner claims that without imposing any punishment or serving any order of any punishment under the Rules, he was denied salary but he admits that an order had been passed placing him under suspension on August 25, 1988 i.e. prior to the date of resolution dated September 29, 1988. It is averred by the petitioner that he made several applications to the concerned authorities but despite the directions given by Assistant Registrar/ Deputy Registrar, he was not granted justice. He had served a Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 17001 of 1995 [9] notice dated September 21, 1993 for payment of salary with interest but it was not replied to. Petitioner claims that he had approached Deputy Registrar, Cooperative Societies, Faridkot, as per the provisions of the service Rules claiming that he should be taken on duty during the pendency of the disciplinary proceedings. The order annexure P-3 which has been referred to hereinabove, was passed on May 15, 1995. After the Deputy Registrar Cooperative Societies passed the order dated May 15, 1995, annexure P-3, aforesaid, the inquiry was conducted into the charges against the petitioner by Gulzar Singh, Inspector, Cooperative Societies, Kokri Kalan. On the basis of his inquiry, he submitted an inquiry report to the Administrator of the Society. The Administrator vide resolution dated June 26, 1995 ordered the reversion of the petitioner to the post of Salesman and stopped his two annual increments. Copy of the resolution dated June 26, 1995 passed by the Administrator has been appended with the writ petition as annexure P-4. The resolution is also reproduced hereunder for ready reference:-
"Today/ meeting was held under the Chair of Sh.Jant Singh Administrator and following proceedings were taken:-
Authority to write todays proceedings is given to Shri Harbans Lal.
Proposed and resolved that complying with orders of ARCS Moga vide office letter No. 3670 dt. 21.6.1995 Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 17001 of 1995 [10] Shri Harbans Lal is posted as Salesman as punishment and his two yearly increments are stopped as punishment. Shri Harbans Lal should take charge immediately and start his work. The pay of the employee would be as per instructions of RCS Punjab. Copy of this resolution be sent to A.R., Moga."
The petitioner, pursuant to the abovesaid resolution was taken on duty. The order annexure P-4 was not challenged by any one before any forum. The petitioner appears to have accepted the order of punishment of his reversion and stoppage of his two increments. It is averred by the petitioner that the Managing Committee of the Society was placed under suspension in proceedings under Section 27 of the Act on the allegations of mismanagement leading to embezzlement. The Managing Committee had filed an appeal before the Appellate Authority which was also dismissed. The Managing Committee did not challenge the same. The term of the Administrator was initially for three months which was extended vide order dated June 7, 1995.
Petitioner claims that after his reversion by way of punishment vide order annexure P-4, the respondents opted to challenge the order annexure P-3 under Section 69 of the Act on the ground that the resolution passed under the Presidentship of Surjit Singh was never set aside, therefore, the petitioner stands dismissed w.e.f. September 29, 1988 and that no appeal against his suspension was competent. The Joint Secretary took Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 17001 of 1995 [11] cognizance of the matter and stayed the operation of order annexure P-3 dated May 15, 1995 and also the order of Assistant Registrar, Cooperative Societies extending the tenure of the Administrator dated June 7, 1995. Vide annexure P-5, the Joint Secretary (Cooperation) exercising the powers of the State Government under Section 69 of the Act had set aside the order dated May 15, 1995 and remanded the case to the Registrar, Cooperative Societies, Punjab, Chandigarh to decide the same himself. He gave direction to the Registrar to examine as to whether the appeal filed before the Deputy Registrar, Cooperative Societies, Faridkot, was competent under any provision of the law. Copy of the order passed by the Joint Registrar dated August 30, 1995 has been appended with the petition as annexure P-5. The operative part of the order passed by the Joint Secretary (Cooperation) reads as follows:-
"I have heard the Ld. Counsel for the parties and gone through the record. I find that vide his resolution dated 29.9.1988 the services of respondent No.3 stood terminated. Respondent No.3 admittedly never challenged those orders. There was another resolution of 29.9.1988 vide which respondent No.3 was ordered to be reinstated in the service by a group led by Sh.Mehla Singh. The resolution passed under the Chairmanship of Sh.Mehla Singh dated 29.9.1988 was declared to be invalid by the DRCS. These orders were upheld by the Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 17001 of 1995 [12] Govt. and the matter had gone twice before the Govt. in revision petition. Even otherwise, there was no occasion to hold a separate meeting on the same day by Sh.Mehla Singh once a duly elected President had held a meeting on 29.9.1988 and if there were any divergence of views, the same could have been reflected by way of resolution passed under a duly elected President. Sh.Harbans Lal, respondent No.3 having not challenged the orders dated 29.9.88, had accepted the same. The filing of appeal without mentioning any provision of law for the finalization of the charge-sheet and his reply before the DRCS after a period of 6 years was nothing but abuse of the process of the law. The DRCS also seem to have not applied his mind while passing his order dated 15.5.1995. From Ann. P/4, it is clear that the Administrator was appointed on 2.6.1995 but in the impugned orders dated 15.5.1995 the DRCS is referring to the Administrator. This shows that the appointment of the Administrator in the society was also designedly made in order to stall the society from challenging the orders of the DRCS. The law is now well settled in 1992 PLJ Page 658 that any body can bring any illegality to the notice of the government for exercising its powers. I Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 17001 of 1995 [13] find it to be one such case where if the powers is not exercised the Government will be failing in its duties. Therefore, I accept the revision petition and set aside the order dated 15.5.1995. Since I find that the orders dated
2.6.1995 passed by the ARCS, Moga are also the result of some conspiracy as is evident from the orders dated 15.5.1995, I deem it fit to remand the case to the Registrar, Cooperative Societies, Punjab, Chandigarh to decide the same himself. The Registrar should also examine as to whether appeal filed by respondent No.3 which was decided by DRCS, Faridkot, on 15.5.1995 was competent under any provision of law and as to whether appeal after 6 years was justifiable in the facts and circumstances of the case. The resultant appointment of Administrator may also be examined at his level.
Announced.
Chandigarh dated, the 30th August, 1995 Sd/-Jt.Secy., Coop.(A), Pb."
The order dated August 30, 1995 has been challenged by the petitioner through the instant writ petition, mainly on the ground that the above said order has been passed without application of mind and without any jurisdiction. It is claimed by the petitioner that Joint Secretary Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 17001 of 1995 [14] (Cooperation) was not vested with any jurisdiction to exercise the powers of the Government on an application filed by Surjit Singh and others as the remedy of revision petition was available to the other party under the specific service Rules i.e. under Rule 15 (ii) before the Joint Registrar, Cooperative Societies but the same had not been filed. The Joint Secretary (Cooperation) could not have assumed revisional jurisdiction, purported to be a jurisdiction vested with him to interfere suo motu despite the fact that a statutory alternative remedy under Rule 15 (ii) of the Service Rules aforesaid was maintainable before the competent authority i.e. Joint Registrar, Cooperative Societies. Besides this, it has been argued that Joint Secretary (Cooperation) has usurped his jurisdiction while giving presumptive finding pertaining to the rights of the petitioner.
The claim of the petitioner has been contested on the ground that the petitioner has raised disputed question of facts in the writ petition which cannot be considered by this Court.
The facts mentioned in the petition have not been seriously disputed but a preliminary objection has been taken by the Society that the services of the petitioner were terminated on September 29, 1988 by the Society. The petitioner did not challenge the same for six years, however, the petitioner filed an appeal on February 21, 1995 before the Deputy Registrar, Cooperative Societies who directed the Administrator of the Society to take disciplinary action against the petitioner as per Rules and consequently the order of the Deputy Registrar dated May 15, 1995 was Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 17001 of 1995 [15] rightly set aside by respondent No.2 vide order dated August 30, 1995 (annexure P-5) remanding the case to the Registrar to consider the maintainability of the appeal filed by the petitioner which was decided by the Deputy Registrar, Cooperative Societies, Faridkot as it was not competent under the provisions of law to decide the same. The resolution passed by the Society under the Presidentship of Surjit Singh on September 29, 1988 was claimed to be in accordance with the Rules and procedure.
Counsel for the petitioner, Mr. Kang has vehemently urged that the Deputy Registrar, Cooperative Societies, while passing order annexure P-3 was competent to pass said order on the ground that he is the Supervisory Authority under the Act as well as under the provisions of Punjab State Cooperative Agricultural Service Societies (Service) Rules, 1986. He has referred to Rule 13 of the said Rules contending that an employee of Society can be kept under suspension only for a period of two months under Rule 13 (ii) and in exceptional circumstances the suspension period can be extended with the prior approval of the Deputy Registrar under Rule 13 (iii) of the said rules. Since the petitioner was under
suspension and approval of the Deputy Registrar to put him under suspension had not been obtained, the appeal/ representation was maintainable before the Deputy Registrar.
I have heard learned counsel for the petitioner, counsel for the respondents and gone through the facts and circumstances of the case. The factual matrix in the present case is not disputed to the extent that the Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 17001 of 1995 [16] petitioner had been suspended on August 25, 1988 by a resolution which was passed under the Presidentship of Surjit Singh. The matter of termination of services of petitioner was considered in two parallel meetings on September 29, 1988, one under the Presidentship of Mehla Singh and another under the Presidentship of Surjit Singh. In the meeting held by the Managing Committee under the Presidentship of Mehla Singh, petitioner was ordered to be re-instated in service. In the other meeting under the Presidentship of Surjit Singh, on the same day, a resolution was passed regarding the removal of the petitioner.
The legal status of the above said two resolutions has to be examined in the light of the statutory provisions. A resolution is governed by the Punjab Cooperative Societies Rules, 1963. Under Rule 8, Part B of Appendix B to the said Rules, a meeting of the Committee is required to be summoned by the President. Part C provides that the quorum at a Committee meeting shall be 1/3rd of the total members of the Committee. Once the quorum is complete, meeting can be held under the Chairmanship of the members present. The Rules do not provide that any meeting cannot be held without the Chairmanship of elected President. Rule 80 (i) and (ia) of Punjab Cooperative Societies Rules, 1963 provide for calling meeting of the Committee and general body. Rule 80 (ia) enables a Registrar to set aside any resolution passed in violation of the mandatory conditions in Rule 80 on its own or on a reference made to it. Rule 80 of the Rules reads as follows:-
Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 17001 of 1995 [17]
"80. xxx xxx xxx
(i) At least fifteen days' clear notice, specifying the date, place, time and agenda for a meeting of a general body/ committee and at least seven days' clear notice for a meeting of any smaller body set up by either of them, whether convened by the Registrar, the President or otherwise, shall be given to all the members of the general body/ committee or smaller body, as the case may be;
Provided that a shorter notice may be given to all the members of the general body/ committee or smaller body, as the case may be, with the permission of the Registrar or under his direction. (ia) The Registrar may, of his own motion or on a reference made to him, declare the proceedings of the meeting referred to in clause (i) as invalid, if he is satisfied that the meeting was held without proper notice or without all the members having received the notice for the meeting or if the meeting was not conducted at the appropriate place and time and;
Xx xxx xxx"
Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 17001 of 1995 [18] Rule 80 (ia) clearly lays down that a Registrar has got jurisdiction to set aside any resolution. It is also an admitted fact that vide annexure R-8/7, the resolution passed under the Presidentship of Mehla Singh was held to be invalid by Sh.Charan Singh Sandhu on March 15, 1989. The said order was challenged before Deputy Registrar, Cooperative Societies. The Deputy Registrar Cooperative Societies vide order dated April 20, 1992 observed that it could not be ascertained as to which meeting was legally conducted at the appropriate time and place as such both the meetings held on September 29, 1988 were set aside. In order dated April 20, 1992, a reference has also been made to an order dated November 26, 1990 passed by the Deputy Registrar, Cooperative Societies. A perusal of the order dated April 20, 1992 indicates that the Deputy Registrar Cooperative Societies had a jurisdiction to examine the legality and validity of both the resolutions. It is also a fact that after both the resolutions dated September 29, 1988 having been found invalid for uncertainty, the petitioner was left with the remedies available to him in the capacity as an employee of the Cooperative Society to seek relief under the Punjab State Cooperative Agricultural Service Societies Service Rules, 1986, for short the 'Service Rules', framed under Rule 28 of the Punjab Cooperative Societies Rules, 1963. Legally he was put in the status existing prior to the resolutions dated September 29, 1988. As the petitioner had been put under suspension, he had a legal right to challenge his suspension, if it was Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 17001 of 1995 [19] contrary to Rule 13 of the Service Rules dealing with suspension. Rule 13 of the Service Rules reads as follows:-
"Rule 13: Suspension:
i) The Committee may place under suspension an
employee against whom disciplinary proceedings under these rules are anticipated.
ii) No employee in any case shall be kept under suspension for more than two months.
iii) The Committee of a Society may, in exceptional circumstances, extend the suspension period with the prior approval of the Deputy Registrar.
iv) An employee under suspension shall be paid a subsistence allowance equal to 50% of his salary." As no employee can be kept under suspension for more than two months without the prior approval of Deputy Registrar, Cooperative Societies and both the resolutions i.e. removing him from service and setting aside the disciplinary proceedings against him had been held invalid, the petitioner opted to file an appeal before the Deputy Registrar Cooperative Societies. The Deputy Registrar Cooperative Societies has got an authority to consider the appeal under Rule 15 of the Service Rules. Rule 15 of the Service Rules reads as under:-
"Rule 15. Appeal:
Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 17001 of 1995 [20]
i) An employee shall have a right to file an appeal against an order imposing any of the penalties specified in Rule 14 of the Deputy Registrar.
ii) Revision.
A revision petition can be filed against the order of the Deputy Registrar within 60 days of the date of the order before the Joint Registrar, Coop. Societies, of the Division whose decision shall be final, binding and conclusive."
The petitioner preferred an appeal which was apparently barred by time. The point of limitation was considered by the Deputy Registrar Cooperative Societies and it was held that since the petitioner had been paid full wages uptill April 30, 1991, a direction was given to the Administrator of the Society to take a decision on the reply filed by the petitioner to the charge-sheet in accordance with Rules within a period of one month. On the basis of the order dated May 15, 1995, the Administrator had vide order dated June 21, 1995 imposed punishment on the petitioner reverting him to the post of Salesman and stopped his two annual increments and directed that he should take charge of the Salesman immediately. Copy of the resolution dated June 26, 1995 passed by the Cooperative Society has been placed on record as annexure P-4 showing that the petitioner had been re- instated on a lower post and his two increments had been stopped. The resolution dated June 26, 1995 appears to have not been challenged. The Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 17001 of 1995 [21] resolution annexure P-4 is the result of orders passed on May 15, 1995 by the Deputy Registrar Cooperative Societies, Faridkot (annexure P-3). The order annexure P-3 dated May 15, 1995 passed by the Deputy Registrar was implemented and the petitioner, after disciplinary proceedings had been awarded punishment as mentioned hereinabove. The order annexure P-3 dated May 15, 1995 has been passed by an authority competent under law. The order annexure P-3 passed by the Deputy Registrar Cooperative Societies could have been challenged under Rule 15 (ii) of the Service Rules before the Joint Registrar Cooperative Societies within a period of 60 days. No revision under Rule 15 (ii) of the Service Rules was preferred by anyone as such the order annexure P-3 had attained finality. The order annexure P-3 though was not challenged by filing a statutory revision under Rule 15 (ii) of the Service Rules, but Surjit Singh and others had approached Joint Secretary (Cooperation) (Appeal) Punjab, challenging the propriety of the order passed by Deputy Registrar Cooperative Societies invoking his suo motu powers under Section 69 of the Punjab Cooperative Societies Act, 1961, for short 'the Act'. The suo motu powers have been exercised on the application of Surjit Singh and others by the Joint Secretary (Cooperation) (Appeals), Punjab, Chandigarh, exercising the powers of the State Government under the Act and setting aside the order dated May 15, 1995 requiring the Registrar, Cooperative Societies to examine whether the appeal filed by the petitioner which was decided by Deputy Registrar Cooperative Societies, Faridkot, on May 15, 1995 was Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 17001 of 1995 [22] competent under any provision of law and as to whether the appeal was maintainable after 6 years. The appointment of Administrator was also ordered to be examined vide order dated August 30, 1995. The Joint Secretary (Cooperation) did not appreciate the fact that Service Rules framed under Rule 28 of the 1963 Rules had authorized the Deputy Registrar Cooperative Societies to approve the suspension under Rule 13
(iii) of the Service Rules and that an appeal under Rule 15 (i) of the Service Rules and a revision petition was also maintainable under Rule 15 (ii) of the Service Rules, before the Deputy Registrar and the Joint Registrar Cooperative Societies of the Division respectively. The Joint Secretary assumed the jurisdiction to set aside the order passed by the Deputy Registrar Cooperative Societies, annexure P-3.
Since this Court is required to determine the competence of the State Government to pass an order dated August 30, 1995, it will be relevant to have a look at Section 69 of the Act which reads as follows:-
"SECTION 69 Revision:- The State Government and the Registrar may, suo moto 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 Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 17001 of 1995 [23] 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."
The provisions of Section 69 of the Act indicate that 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 do so either suo motu or on the application of a party to a reference. It is the supervisory jurisdiction conferred on the Government as well as the Registrar to examine the legality and propriety of any decision against which no appeal lies under Section 68 of the Act. It is apparent that the power is not subject to any provision of the Rules or the bye-laws but the general overall supervisory authority can be exercised if there is no provision of appeal. In the present case, the service conditions of the petitioner are governed by service rules which provide independent regulatory and supervisory authority vested in the Deputy Registrar and the Joint Registrar of the particular Division in which the Society exists.
Mr.D.V. Sharma, learned senior counsel for the respondents has laid emphasis on the powers of the Joint Secretary (Cooperation) exercising the powers of the State Government by relying upon the judgment of Gurnam Kaur Vs. State of Punjab and others, 1992 PLJ 658 laying down that revision by a person who is not even a party to a reference is Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 17001 of 1995 [24] competent. It was held in the said case that revisional jurisdiction can be exercised irrespective of the fact whether action is taken suo motu or at the instance of aggrieved or concerned party. A revisional authority, if comes to the conclusion after going through the records of the case pending or decided by subordinate authority that such order need modification or annulment and hence modifies or annuls such order, such orders passed would be within revisional jurisdiction. He has also referred to the Full Bench judgment of this Court in Jasbir Singh and others Vs. Commissioner (Appeals) Jalandhar Division and others, 2011 (3) PLR 545, wherein the law laid down in Gurnam Kaur's case (supra) was reiterated. It was also laid down that remedy of revision is not barred in those cases where the aggrieved person has a right of appeal under the statutory Service Rules or Common Cadre Rules, as no remedy of appeal has been provided under Section 68 of the Punjab Act or Section 114 of the Haryana Act.
Mr. M.S. Kang, on the other hand has relied upon the judgment of the Apex Court in Shahbad Cooperative Sugar Mils Ltd. Vs. Special Secretary to Government of Haryana and others, AIR 2007 SC 340 (1). In the said case, Section 69 of the Punjab Cooperative Societies Act, 1961 and Section 115 of the Haryana Cooperative Societies Act were taken into consideration. It was held as follows:-
"28. If the revision application was not maintainable, a' fortiori suo motu power could not Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 17001 of 1995 [25] 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 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 to exercise that Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 17001 of 1995 [26] 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) On the basis of the said judgment, Mr. Kang has argued that the Joint Secretary (Cooperation) could not have exercised the revisional power to set aside an order passed by Deputy Registrar, Cooperative Societies in exercise of Appellate jurisdiction.
Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 17001 of 1995 [27]
I have considered the contentions of learned counsel for both the parties in context to the law cited and I am of the opinion that there is no dispute regarding the power and authority of the State to exercise as revisional jurisdiction and examine the legality and propriety of an order passed by the Subordinate Authorities in case no appeal is maintainable under Section 68 of the Act. It is also not disputed that the said power can be exercised suo motu or on an application filed by the aggrieved party but the judicial propriety demands that where an alternative remedy of revision under the Service Rules is maintainable before Joint Registrar, the said remedy should be availed. There is no bar for the Joint Secretary (Cooperation) in the exercise of powers under Section 69 of the Act to even set aside an order passed by the revisional authority exercising the powers under Rule 15 (ii) of the Service Rules. Whenever any administrative authority or quasi judicial authority takes up a cognizance of a matter, the element of reasonableness should not be ignored.
In the present case the State Government has taken up the task to exercise revisional jurisdiction to refer matter to the Registrar, Cooperative Societies to determine whether appeal filed by the petitioner decided by Deputy Registrar, Cooperative Societies, Faridkot on May 15, 1995 was competent under any provision of law. Setting aside an order and referring the matter to the Registrar for determining the legal competence of the Deputy Registrar, Cooperative Societies could have easily been determined by the Joint Secretary (Cooperation) (Appeals) himself by Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 17001 of 1995 [28] scanning through the provisions of law which entitle especially Rules 13 and 15 of the Service Rules which give power of appeal to the Joint Registrar to hear an appeal to redress the grievance of an employee of Cooperative Society. Every action of an administrative authority should pass test of reasonableness. The order dated August 30, 1995 is an order though within the competence of the Joint Secretary (Cooperation) (Appeals) but not sustainable being unreasonable, illegal and having not been passed by judicious application of mind. The said order has been passed in contravention of the patent statutory provisions of law. Whether an appeal was maintainable after 6 years has been considered by the Deputy Registrar, Cooperative Societies in annexure P-3 and explained the reasons as to why the appeal had been entertained. Even otherwise, it was open to the private respondents to approach the Joint Registrar, Cooperative Societies invoking the jurisdiction under Section 69 of the Act. A reference made by the Joint Secretary (Cooperation) (Appeals) to the Registrar on August 30, 1995 to determine an issue regarding which there is no legal requirement is an act which is not sustainable in the eyes of law and is an exercise in futility. Even otherwise, no valid reasons have been given by Joint Secretary (Cooperation) to set aside the well reasoned order dated May 15, 1995 which stands already implemented after resolution annexure P-4 imposing punishment of reversion on the petitioner and stopping his two increments. The order annexure P-5 is hereby set aside. The order annexure P-3 dated May 15, 1995 is upheld. The petitioner will be entitled to be treated in Gupta Sanjay 2013.12.21 13:03 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 17001 of 1995 [29] service pursuant to the resolution dated June 26, 1995. He would be entitled to all the consequential benefits accruing from the resolution annexure P-4.
Disposed of.
Since the petitioner has not worked against even the reverted post, he would not be entitled to the salary for the period for which he has not worked but he will be deemed to be in continued service for the purpose of retiral benefits.
December 9, 2013 (M.M.S.BEDI)
sanjay JUDGE
Gupta Sanjay
2013.12.21 13:03
I attest to the accuracy and
integrity of this document
High Court Chandigarh