Girish Kumar Mehtani v. State Bank of India and Others

CWP-5318-2019o(O&M)o -1-o o 123o ooo INoTHEoHIGHoCOURToOFoPUNJABoANDoHARYANAo AToCHANDIGARHo o o oo o o o o o CWP-5318-2019o(O&M)o o o o o o DateoofoDecision:05.10.2023o o GIRISHoKUMARoMEHTANIoooo o oooooooooooooo.........oPetitionero o Versuso o STATEoBANKoOFoINDIAoANDoOTHERSo oooo.....oRespondentso o oo CORAM:oooHON'BLEoMR.oJUSTICEooJAGMOHANoBANSALo o Presento:o Mr.oRaghavoSharma,oAdvocateowithoo o o Mr.oSomoNathoAneja,oAdvocateoo forotheopetitioner.o o o o o o Mr.oKapiloKakkar,oAdvocateoo forotheorespondents.oo o o o o o o ****o o JAGMOHANoBANSAL,oJ.o(Oral)o o o

1.o o Theo petitionero througho instanto petitionero undero Articleso 226/227o ofo theo Constitutiono ofo Indiao iso seekingo settingo asideo ofo ordero datedo23.07.2018o(AnnexureoP-2)owherebyorespondentoNo.3ohasodeclinedo requestoofotheopetitionerotoopermitohimotooengageoanoadvocateotoodefendo hiso caseo ino theo departmentalo proceedingso ando ordero datedo 01.09.2018o (AnnexureoP-1)owherebyoappealoofotheopetitionerohasobeenodismissed.oo

2.o o Theo petitionero waso appointedo aso Cashiero cumo Clerko byo respondent-Banko ono 22.04.1993.o Theo petitionero waso appointedo ono probationoandoperiodoofoprobationowaso6omonths.oTheopetitionerocameotoo beosuspendedovideoorderodatedo14.09.2016o(AnnexureoP-5).oTheopetitionero wasocalledouponotooexplainohisoactoandoconductowhileoworkingoatoAMMo Branch,oBhiwanioasoSingleoWindowoOperatoro(SWO).oTheopetitionerofiledo CWP-5318-2019o(O&M)o -2-o o replyo too explanationo soughto byo theo respondent-Bank.o Theo respondent-Bankovideoorderodatedo19.09.2017odecidedotoocharge-sheeto(AnnexureoP-7)otheopetitioner.oTheopetitionerosubmittedohisoreplyodatedo10.01.2018otoo aforesaidocharge-sheet.oTheorespondent-BankoappointedoSatishoChandero Guptao aso ano Enquiryo Officero too conducto theo departmento enquiry.o Theo petitionerorequestedoEnquiryoOfficerotoopermitohimotooengageoanoadvocate,o however,o respondent-Banko declinedo requesto ofo theo petitioner.o Theo petitioneropreferredoano appealo whicho cameo toobeodismissedovideoordero datedo01.09.2018o(AnnexureoP-1).oo

3.o o Learnedocounseloforotheopetitionerointeroaliaocontendsothatoao MemorandumoofoSettlementodatedo10.04.2002ohasobeenoexecutedobetweeno theoManagementoofo52oBanksoasowelloasorepresentativesoofotheoIndiano BanksoAssociation.oAsoperoClauseo12oofotheoSettlementodatedo10.04.2002,o anoemployeeomayobeorepresentedobeforeotheoDisciplinaryoAuthorityobyoano advocate.oTheopetitionerohasorequestedorespondent-Bankotoopermitohimotoo engageo ano advocate,o however,o respondent-Banko withouto assigningo anyo reasonoandoinoaomechanicalomannerorejectedorequestoofotheopetitioner.oTheo Appellateo Authorityo haso followedo theo suit.o Theo Clauseo 12o specificallyo permitso petitionero too engageo ano advocate,o thus,o respondent-Banko haso wronglyorejectedorequestoofotheopetitioner.oo o o Theo petitionero ino supporto ofo hiso contentiono reliedo upono judgmento ofo Divisiono Bencho ofo Bombayo Higho Courto ino 'Antonioo B.o FurtadooVs.oChairmano&oManagingoDirector,oBankoofoIndia,oBombayo andoothers'o1985oSCCoOnlineoBomo141,oCalcuttaoHighoCourtoino'Khitisho ChandraoRabidasoVs.oUnionoofoIndiaoandoothers'o2004oSCCoOnlineoCalo 544oandothisoCourtoino'AniloBamaniaoVs.oManagingoDirector,oStateoBanko CWP-5318-2019o(O&M)o -3-o o ofoPatialaoandoothers'o2016oSCCoOnlineoP&Ho7248.oo o oooo

4.o o Perocontra,olearnedocounseloforotheorespondent-Bankosubmitso thato petitionero haso noo absoluteo oro vestedo righto too engageo ano advocateo duringo departmentalo proceedings.o Thereo iso noo complexo oro legalo issueo involvedoinotheodepartmentaloproceedings,othus,ocompetentoauthorityohaso rightlyo rejectedo requesto ofo theo petitionero too engageo ano advocate.o Theo petitioneroisorelyingouponoClauseo12oofotheoMemorandumoofoSettlemento executedobetweenoBankoandoemployees.oTheoClauseo12odoesonotocreateoao rightotooengageoanoadvocateoandoitoisodiscretionoofotheoBankotoopermitooro declineotooengageoanoadvocate.o o o Learnedocounseloforotheorespondent-Bankoinosupportoofohiso contentionoreliesouponoDivisionoBenchojudgmentoofoMadrasoHighoCourtoino 'V.o Mathivanano Vs.o Stateo Banko ofo India,o rep.o byo Assistanto Generalo Managero (Administration)/Disciplinaryo Authorityo (D.A),o Disciplinaryo Proceedingo Section,o Zonalo Office,o Network-2,o Administrationo Unit,o madurai-2'o2012o(1)oCWCo910,ojudgmentoofoHon'bleoSupremeoCourtoino 'TheoRajasthanoMarudharaoGraminoBanko(RMGB)oandoanotheroVs.o RameshoChandraoMeenaoandoanother'o2022o(3)oSCCo44.oo

5.o o Iohaveoheardotheoargumentsoofobothosidesoandowithotheoableo assistanceoofolearnedocounselsoperusedotheorecord.o

6.o o Fromotheoperusalooforecord,oitocomesooutothatoClauseo12oofo theoMemorandumoofoSettlementopermitsoaodelinquentoemployeeotooengageo anoadvocate,ohowever,osubjectotoopermissionoofotheoBank.oClauseo12oreadso as:o o o o "12.oo Theoprocedureoinosuchocasesoshallobeoasofollowso:-oo o (a)o Ano employeeo againsto whomo disciplinaryo actionoisoproposedoorolikelyotoobeotakenoshallobeogivenoao CWP-5318-2019o(O&M)o -3-o o charge-sheet clearly setting forth the circumstances appearing against him and a date shall be fixed for enquiry, sufficient time being given to him to enable him to prepare and give his explanation as also to produce any evidence that he may wish to tender in his defence. He shall be permitted to appear before the Officer conducting the enquiry, to cross-examine any witness on whose evidence the charge rests and to examine witnesses and produce other evidence in his defence. He shall also be permitted to be-defended -

(i) (x) by a representative of a registered trade union of bank employees of which he is a member on the date first notified for the commencement of the enquiry.

(y) where the employee is not a member of any trade union of bank employees on the aforesaid date, by a representative of a registered trade union of employees of the bank in which he is employed: OR

(ii) at the request of the said union by a representative of the state federation or all India Organisation to which such union is affiliated; OR

(iii) with the Bank's permission, by a lawyer. He shall also be given a hearing as regards the nature of the proposed punishment in case any charge is established against him. [Emphasis Supplied] '.o o )toisosettledopropositionoofolawothatoever2oa#thorit2ovestedo witho powero iso s#pposedo too e.erciseo powero ino j#dicio#so manner.o Noo a#thorit2ohasorightotooe.erciseopoweroinoanoar1itrar2oorowhimsicalomanner.o Recordingooforeasonoisohearto1eatoofoever2oorder.oAnoorderoiso1adoinotheo e2eoofolawoiforeasonsoareonotorecorded.oRepresentationo12oanoadvocateoiso CWP-5318-2019o(O&M)o -5-o o neitheroanoa1sol#teonorovestedoright,ohowever,oitoma2o1eoaorightoifocreatedo 12o theo r#leso oro standingo order.o "heo 5anko haso ever2o righto too declineo re3#esto ofo ao delin3#ento emplo2eeo too engageo ano advocate,o however,o competentoa#thorit2oisos#pposedotooappl2oitsomindowhileorecordingotheo reasonso ando reasonso sho#ldo 1eo germaneo too theo iss#eo involved.o Powero cannoto1eoe.ercisedoinoaomechanicaloandowhimsicalomanner.ooo ,.o o "heorespondentoisorel2ingo#ponoparao!4/$!oofotheoj#dgmento ofoMadraso>igho(o#rtoinoV.oMathi1anano-s#pratiowhichoareoreprod#cedoaso 1elow:o "19. In D.G., Railway Protection Force and others v. K.Raghuram Babu reported in AIR 2008 SUPREME COURT 1958, the Apex Court reiterated the principles following the earlier decisions. In paragraphs 10 and 11, it is held as follows: "10. Following the above decision it has to be held that there is no vested or absolute right in any charge-sheeted employee to representation either through a counsel or through any other person unless the statute or rules/standing orders provide for such a right. Moreover, the right to representation through someone, even if granted by the rules, can be granted as a restricted or controlled right. Refusal to grant representation through an agent does not violate the principles of natural justice.

¶11In the present case, Rule 153(8) only provides for assistance to a charge-sheeted employee by an agent. Thus, a restricted right of representation has been granted by Rule 153(8). Even if no right of assistance had been granted by the rules, there would be no illegality or unconstitutionality. How then can it be said that CWP-5318-2019o(O&M)o -6-o o when a restricted right is granted, the said restricted right is unconstitutional."

¶20Thus, the law laid down by the Honourable Apex Court shows that the doctrine of principles of natural justice in the matter of a domestic enquiry has to be understood in the context of the specific provisions contained in the rule or regulation. Ordinarily, a delinquent officer has to conduct his case on his own in a domestic/departmental enquiry as the same is not a criminal trial or a suit where a party has the right to be represented by an Advocate. In D.G., Railway Protection Force and others v.K.Raghuram Babu reported in 2008(4) SCC 406, the Apex Court pointed out that there is no absolute or vested right in any charge-sheeted employee to make representation either through a Counsel or through any person unless the Statutes or the rules provided for the same. Thus, even if such a right is granted, it can be a controlled/restricted right reserving the discretion with the employer to consider the said request. The Honourable Apex Court clarified this by further saying that if the charge is serious and complex nature, the delinquent's request to be represented through a counsel or agent could be conceded. The Apex Court referred to the decisions of the House of Lords, particularly, Lord Denning who held that "in a domestic enquiry, justice can often be done in them better by a good layman than by a bad lawyer".

¶21In the context of these decisions of the Honourable Apex Court and this Court, it is clear that no such absolute right has been given under the Memorandum of Settlement for a delinquent officer to have a representation through a lawyer. Where the regulations provide for a representation through a representative of a Registered Trade Union granting permission for engaging a lawyer, thus left to the CWP-5318-2019o(O&M)o -7-o o discretionoofotheoemployer,oweodoonotofindoanyoviolationo ofoprinciplesoofonaturalojustice."o

9.o o Fromotheoperusaloofoaboveoquotedojudgment,oitocomesoouto thatoMadrasoHighoCourtohasoreiteratedotheoopinionoexpressedobyoSupremeo Courto ino differento judgments.o Supremeo Court,o ino allo theo judgmentso aso noticedoinotheoaforesaidojudgment,ohasoconcludedothatorightotooengageoano advocateo ino departmentalo proceedingso iso neithero ano absoluteo oro vestedo right.oInotheoabsenceoofospecificoprovision,oanoemployeeocannotoengageoano advocateoandoinosuchocircumstancesodenialotooengageoanoadvocateodoeso notoamountotooviolationoofoprinciplesoofonaturalojustice.oInocaseoaoruleooro standingoorderopermitsotooengageoanoadvocateosubjectotoopermissionobyo competentoauthority,oitoisodiscretionoofotheoauthorityotoopermitoorodenyotoo engageoanoadvocate.oTheoCourtohasonotoheldothatocompetentoauthorityoiso noto supposedo too recordo reasonso oro noto too passo ao speakingo ordero oro competentoauthorityocanodenyorequestoinoeveryocase.oo

10.o o Theo respondent-Banko haso furthero reliedo upono judgmento ofo SupremeoCourtoinoTheoRajasthanoMarudharaoGraminoBanko(RMGB)o andoanothero(supra).oLearnedocounselohasopointedooutoparaso6.3otoo7.0oofo theoaforesaidojudgmentowhichoareoreproducedoasobelow:o "6.3.o Ino theo caseo ofo Ciplao Ltd.o ando Orso (supra),o ito iso observedoandoheldoasounder:o "13.o Ino N.o Kalindio v.o Tatao Locomotiveo &o Engg.o Coo Ltd,o ito waso heldo thato ao workmano againsto whomo ao departmentaloenquiryoisoheldobyotheoManagementohasonoo rightotoobeorepresentedoatosuchoenquiryobyoanooutsider,o noto eveno byo ao representativeo ofo hiso Uniono thougho theo Managementomayoinoitsodiscretionoallowotheoemployeeotoo availo ofo sucho assistance.o Soo alsoo ino Dunlopo Rubbero Companyovs.oWorkmen,o1965o(2)oSCRo139o=oAIRo1965o SCo1392o=o1965o(1)oLLJo426,oitowasolaidodownothatoano CWP-5318-2019o(O&M)o -8-o o employee has no right to be represented in the disciplinary proceedings by another person unless the Service Rules specifically provided for the same. A Three Judge Bench of this Court in Crescent Dyes and Chemicals Ltd. vs. Ram Naresh Tripathi, (1993) 2 SCC 115 = 1992 Suppl. (3) SCR 559, laid down that the right to be represented in the departmental proceedings initiated against a delinquent employee can be regulated or restricted by the Management or by the Service Rules. It was held that the right to be represented by an advocate in the departmental proceedings can be restricted and regulated by statutes or by the Service Rules including the Standing Orders, applicable to the employee concerned. The whole case law was reviewed by this Court in Bharat Petroleum Corporation Ltd. vs. Maharashtra Genl. Kamgar Union & Ors., (1999) 1 SCC 626, and it was held that a delinquent employee has no right to be represented by an advocate in the departmental proceedings and that if a right to be represented by a coworkman is given to him, the departmental proceedings would not be bad only for the reason that the assistance of an advocate was not provided to him." xxxx xxxx xxxx

7.0. Applying law laid down by this Court in the aforesaid decisions to the facts of the case on hand, the respondent employee / respondent delinquent has no absolute right to avail the services by exemployee of the Bank as his DR in the departmental proceedings. It is true that Regulation 44 puts specific restriction on engagement of a legal practitioner and it provides that for the purpose of an enquiry under Regulation, 2010, the Officer or Employee shall not engage a legal practitioner without prior permission of the competent authority. Therefore, even availing the services of legal practitioner is permissible with the leave of the CWP-5318-2019o(O&M)o -9-o o competent authority. However, Regulation does not specifically provides that an employee can avail the services of any outsider and / or ex employee of the Bank as DR. Therefore, Regulation, 2010 neither restricts nor permits availing the services of any outsider and / or exemployee of the Bank as DR and to that extent Regulation is silent. If the reasoning of the High Court is considered, the High Court is of the opinion that as there is no complete or absolute bar even on engaging a lawyer, it is difficult to accept that a retired employee of the Bank cannot be engaged to represent a delinquent officer in the departmental inquiry. However, the High Court has not appreciated the effect of the Handbook. As per Clause 8 of the Handbook Procedure which has been approved by the Board of Directors and it is applicable to all the employees of the Bank and Clause 8 is with respect to the defence representative, it specifically provides that DR should be serving official / employee from the Bank. The said Handbook Procedure which has been approved by the Board of Directors of the Bank is binding to all the employees of the Bank. The High Court has considered Regulation 44 of the Regulation, 2010, however has not considered clause 8 of the Handbook Procedure on the ground that the same cannot be said to be supplementary. However, we are of the opinion that Handbook Procedure can be said to be supplementary. The same cannot be said to be in conflict with the Regulation 44 of Regulation, 2010. As observed herein above, neither Regulation 44 permits nor restricts engagement of an exemployee of the Bank to be DR. Therefore, Clause 8.2 cannot be said to be in conflict with the provisions of Regulation, 2010. Provisions of Regulation, 2010 and the provisions of Handbook Procedure are required to be read harmoniously, the result can be achieved without any violation of any of the provisions of Regulation, 2010 and the Handbook CWP-5318-2019o(O&M)o -10-o o Procedure.oTheoobjectsoofoRegulationo44oofoRegulation,o 2010oandoClauseo8oofotheoHandbookoProcedureoseemotoo beotooavoidoanyooutsideroincludingolegalorepresentativeo ando/ooroevenoexemployeeoofotheoBank.oAtotheocostoofo repetition,oitoisoobservedothatothereoisonooabsoluteorightoino favouroofotheodelinquentoofficer'sotoobeorepresentedoino theodepartmentaloproceedingsothroughotheoagentoofohiso choiceoandotheosameocanobeorestrictedobyotheoemployer."oo

11.o o Fromo theo perusalo ofo aboveo quotedo paragraphso ofo theo judgment,oitocomesooutothatoHon'bleoCourtohasonotoheldothatoaodelinquento employeeocannotobeorepresentedothroughoaolegalopractitioneroifothereoiso specifico ruleo orostandingo orderopermittingo too engageoano advocate.o Theo Hon'bleoCourtohasoreiteratedoitsoearlieroopinionotootheoeffectothatoinotheo absenceo ofo specifico provision,o denialo too engageo ano advocateo doeso noto amountotooviolationoofoprinciplesoofonaturalojustice.oAnoemployeesocarrieso neithero absoluteo noro vestedo righto too engageo ano advocateo ino theo departmentaloproceedings.oo

12.o o TheopetitionerohasoreliedouponojudgmentoofoDivisionoBencho ofoBombayoHighoCourtoino'AntoniooB.oFurtadoo(supra)owhereosimilaro provisiono haso beeno consideredo ando Courto haso heldo thato requesto ofo ao delinquento employeeo cannoto beo rejectedo ino ano arbitraryo oro whimsicalo manner.oTheoDisciplinaryoAuthorityoisorequiredotooapplyoitsomind.oTheo CourtohasoevenorejectedocontentionoofotheoBankothatopermissionotooengageo ano advocateo wouldo openo floodo gates.o Theo relevanto extractso ofo theo judgmentoreadoas:o "Undisputably,ounderotheosaidoPara.o19.12,oaodelinquento employeeo cano beo representedo ino ao domestico enquiryo eitherobyoaorepresentativeoofoaoregisteredotradeounionoofo banko employees,o oro byo ao representativeo ofo theo Stateo federationooroalloIndiaoorganisationotoowhichosuchouniono CWP-5318-2019o(O&M)o -11-o o is affiliated, or with the permission of the bank by a lawyer. It is thus clear that under the aforesaid agreement, the representation of a delinquent employee by a lawyer in departmental inquiry proceedings is permissible, though subject to the prior permission of the bank. It appears that ordinarily, such representation should be by a representative of the trade union, but there is nothing in the said Para. 19.12 as to imply that only when the representative of the union is not available, the representation by lawyer can be permitted. It is clear to us that the said Para. 19.12 leaves the question open and it is for the bank in its discretion to grant, in any given case, permission to a delinquent employee to be represented by lawyer in the departmental inquiry proceedings. Hence, the question that arises is whether this discretion can be used according to the whims of the bank management. Manifestly, the answer is in the negative, for while dealing with an application of a delinquent employee seeking such permission, the bank management should not act arbitrarily, but should on the contrary, be reasonable and fair. Apparently, however, this approach did not find favour with the respondents. We say so, because in the course of his arguments, Sri P. Mulgaokar, the learned counsel representing respondents 1 to 5, while making a feeble attempt to justify the rejection of the petitioner's request, merely contended that if such permission is granted, it will open the "floodgates" and so, in each and every case delinquent employees will ask as of right for permission to be represented by lawyers. Obviously, there is no merit in this submission of the learned counsel, for if discretion is properly used and permission is given in deserving cases, the question of opening the "floodgates" does not at all arise. But such submission is an eye opener and we may point out that in the present case it is apparent that CWP-5318-2019o(O&M)o -12-o o the respondents were bent to refuse the petitioner's request for that reason only and no other." !$.!o o o"heopetitionerohasof#rtheroreliedoj#dgmentoofoo(alc#ttao>igho (o#rtoino'(hitishoChandrao)abidaso-s#prati.o"heorelevantoe.tractsoofotheo j#dgmentoreadoas:o "16. The decision of the bank does not show the reasons why it decided not to permit the petitioner to be defended by a lawyer. Clause 12 of the settlement provides that in the situations specified the employee proceeded against shall be permitted to be defended by a lawyer. It appears from the provision that granting permission would rather be the rule, and refusal an exception. When the provision does not specify the cases fit for permission, or the grounds on which permission is to be refused, the disciplinary authority cannot refuse it in the absence of compelling reasons for refusal. The fact situation of the petitioner's case warranted a liberal consideration, of his prayer. The bank, however, proceeded casually. Hence I am of the view that the disciplinary authority should consider afresh the petitioner's prayer for engaging a lawyer in the enquiry to defend him.Bo o o "hiso (o#rto ino o Ani&o Bamaniao -s#pratio whileo dealingo witho sameo provisiono haso permittedo theo petitionero thereino too engageo ano advocate.o"heorelevantoe.tractsoofotheoj#dgmentoreadoas:o "10. In the present case, disciplinary action has been initiated against the petitioner on the allegation that on the original call letter for written examination, the thumb impression and signatures did not match with the signatures/thumb impression of the petitioner. During domestic inquiry, respondents have examined Vikram Raj Singh Chauhan hand-writing and finger-print expert. Since the expert has been examined by the respondents during inquiry proceedings, petitioner was liable to be CWP-5318-2019o(O&M)o -13-o o granted permission to enable him to engage hand-writing and finger-print expert so as he could cross-examine Vikram Raj Singh Chauhan expert examined by the Bank. It would not be possible for a layman to cross-examine the expert on various technical aspects. The case of the petitioner was that he was unable to get assistance of office bearer of the Union/Association and none of the leaders had consented to represent him during inquiry proceedings. Due to this reason, he was feeling handicapped and wanted to engage a lawyer for his defence during inquiry proceedings. The said aspect of the submission made by the petitioner was however, not considered by the Bank while passing the order Annexure P.

¶11Since the Bipartite settlement permits an employee to seek assistance of a lawyer in domestic proceedings with Bank's permission, in the facts and circumstances of the present case, the Bank should have permitted the petitioner to be defended/represented by a lawyer as it was the case of the petitioner that none of the Union leaders had consented to represent him in inquiry proceedings. Thus, respondents fell in error while rejecting the application (Annexure P-8) moved by the petitioner vide the impugned orders.Bo !*.o o @romotheoconspect#moofoimp#gnedoorderodatedo$*.+'.$+!,o -Anne.#reoP/$0ofollowedo12oorderodatedo+!.+4.$+!,o-Anne.#reoP/!0,oito cano1eogleanedothatoneitherooriginaloa#thorit2onoroAppellateoA#thorit2ohado recordedoreasonsowhileorejectingore3#estoofotheopetitionerotooengageoano advocate.o "heo imp#gnedo orderso areo lia1leo too 1eo seto asideo ono theo soleo gro#ndothatorespondentsohaveopassedoorderowitho#torecordingoreasons.o)to appearsothatodiscretionar2opowerohaso1eenoe.ercisedoinoaocas#alorathero thanoj#dicio#somanner.o"heoa#thoritiesowereo1o#ndotooappl2otheiromindo andorecordotheoreasons.oAsotheoimp#gnedoordersohaveo1eenopassedowitho#to CWP-5318-2019o(O&M)o -14-o o recordingoreasons,othisoCourtoisoofotheoconsideredoopinionothatoimpugnedo ordersodeserveotoobeoquashedoandoaccordinglyoquashed.oo

15.o o Theopetitioneroisoatolibertyotoomoveofreshoapplicationowhicho wouldobeodecidedobyorespondentoinoaccordanceowitholaw.oo

16.o o PendingoMisc.oapplication(s),oifoany,oshallostandodisposeoof.oo o o o o o o o o o o (oJAGMOHANoBANSALo) o o o o o o o o ooooooJUDGEo

05.10.2023o Alio Whetherospeaking/reasonedo Yes/Noo WhetheroReportableo Yes/Noo