Madras High Court
M.Thangapandian vs The Deputy General Manager (B & O) on 11 July, 2014
Author: K.K.Sasidharan
Bench: K.K.Sasidharan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11.07.2014 CORAM THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN W.P.(MD)No.6553 of 2014 M.Thangapandian : Petitioner Vs. 1.The Deputy General Manager (B & O) State Bank of India, D.P Cell Administrative Office, Mc.Donald's Road, Thiruchirappalli, Pin-620 001. 2.The Chief Manager, State Bank of India, Tirunelveli. 3.The Chief Manager/Inquiry Officer, State Bank of India, V.O.C.Nagar, Thanjavur, Pincode:613 009. : Respondents PRAYER Writ Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorarified Mandamus to call for the records and quash the order dated 12.3.2014 passed by the 3rd respondent herein in his proceedings DIS/CON/VOC/2014-15/1 stating that the petitioner's Defence Representative engaged by the petitioner to defend his case in the Disciplinary Proceedings initiated against the petitioner is not competent to represent the petitioner as he is an Award Staff and not an officer as contemplated Under Rule 68(2) (vii) of the State Bank of India Officer's Service Rules and the consequential Order passed by the 3rd respondent in his proceedings no. DIS/CON/2014-15/1 dated 1.4.2014 and consequently permit the petitioner to avail the services of Mr.K.Rajendran, Senior Assistant/Award Staff as the petitioner's Defence Representative in the domestic enquiry conducted in pursuance of the said Disciplinary Proceedings initiated against the petitioner in respect of the Charge Memo dated 13.01.2014 in DIS/CON/393 issued against the petitioner by the 1st respondent herein. !For Petitioner : Mr.P.Mahendran ^For Respondents : Mr.S.Sethuraman :ORDER
The petitioner challenges the proceedings dated 12.03.2014 on the file of the Inquiry Authority appointed for the purpose of conducting disciplinary proceedings against him and the notice dated 1.04.2014, calling upon him to attend the enquiry on 16.04.2014 along with his Defence Representative, as stipulated under the State Bank of India Officer's Service Rules.
BRIEF FACTS:
2.The petitioner joined the service of State Bank of India as a Clerk cum Cashier. Later, he was promoted as Deputy Manager and Assistant Manager.
While he was working as Deputy Manager (Cash) in the Cadre of Officer in Tirunelveli, he was placed under suspension with effect from 05.03.2013 by the first respondent. Thereafter, a charge memo was issued by the first respondent dated 13.01.2014 containing six charges. Since the explanation was not satisfactory, the first respondent appointed the third respondent as the Inquiry Officer. The petitioner engaged the services of one Mr.K.Dass, who was working as Manager, SMECC, Ekkathuangal Branch (Officer Cadre) as Defence Representative. The petitioner along with Mr.K.Dass, an officer of the State Bank of India conducted the proceedings. After the retirement of Mr.K.Dass, the petitioner engaged Thiru.K.Rajendran, who is working as Senior Assistant/Award Staff to function as Defence Representative. The Inquiry Officer permitted Thiru.K.Rajendran to conduct the proceedings on behalf of the petitioner.
3.Whileso, the Inquiry Authority issued the impugned proceedings in DIS/CON/VOC/2014-15/1, dated 12th March 2014, informing the petitioner that Thiru.K.Rajendran is not an Officer and as such, he is not eligible for appointment as Defence Representative. The third respondent in the very same order made it clear that without knowing the true position, he permitted Mr.K.Rajendran to function as Defence Representative and as such, all the proceedings recorded with the ineligible Defence Representative would be removed. The third respondent called upon the petitioner to engage another Defence Representative in the rank of an Officer to assist him. The third respondent thereafter issued a notice dated 1st April 2014 intimating the petitioner that the enquiry would be conducted at 10.30 a.m on 16.04.2014 at VOC Nagar Branch, Thanjavur and it is open to him to appear along with Defence Representative. The proceedings dated 12th March 2014 and the subsequent notice dated 01.04.2014 are under challenge in this writ petition.
4.The first respondent filed a detailed counter affidavit in answer to the contentions raised in the affidavit filed in support of the writ petition. According to the first respondent, Mr.K.Dass being an officer of the Bank was eligible to function as Defence Representative and therefore, he was allowed to represent the petitioner. Subsequently, the petitioner appointed Thiru.K.Rajendran, who is not an officer of the Bank. The third respondent, without knowing the statutory provisions permitted Thiru.K.Rajendran to function as Defence Representative. The third respondent thereafter found that Rule 68(2) of the State Bank of India Officers Service Rules contains a clear provision that only those who are functioning as Officers are eligible to function as Defence Representative, in case the delinquent is also an Officer. Accordingly, the first respondent justified the impugned proceedings and the notice.
SUBMISSIONS:
5.The learned counsel appearing for petitioner contended that Thiru.K.Rajendran is functioning as the Zonal Secretary of State Bank of India, Dr.Ambedkar Trade Union and therefore, he is entitled to represent the petitioner, who is also a member of Trade Union. The learned counsel further contended that notice was not issued to the petitioner before issuing the impugned proceedings dated 12th March 2014. Since the order dated 12.03.2014 would result in civil consequence to the petitioner, prior notice should have been given to him.
6.The learned Standing Counsel for the Bank justified the impugned proceedings dated 12.03.2014, as according to him, it was issued in accordance with Rule 68(2) (vii) of the State Bank of India Officers Service Rules.
ANALYSIS:
7.The substantial challenge in this writ petition is to the proceedings dated 12th March 2014, whereby and whereunder the third respondent cancelled the permission given to the Defence Representative and eschewed the evidence recorded during the currency of engagement of Thiru.K.Rajendran as Defence Representative.
8.There is no dispute that originally the petitioner appointed Thiru.K.Dass, who is an Officer of the Bank as his Defence Representative to conduct the disciplinary proceedings. According to the petitioner, it was only after the retirement of Thiru.K.Dass, he engaged Thiru.K.Rajendran as Defence Representative. The engagement of Thiru.K.Rajendran as Defence Representative was approved by the third respondent. Thiru.K.Rajendran conducted the enquiry on behalf of the petitioner on 04.03.2014, 10.03.2014 and 11.03.2014. It was only thereafter, the third respondent issued the impugned proceedings dated 12th March 2014, withdrawing the permission given to Thiru.K.Rajendran to function as Defence Representative.
9.This writ petition raises two questions of substantial importance.
(i)Whether the third respondent was correct in withdrawing the permission given for engagement of Thiru.K.Rajendran as Defence Representative?
(ii)Whether the third respondent was correct in eschewing the evidence recorded during the currency of appointment of Thiru.K.Rajendran?
10.The first respondent initiated disciplinary proceedings against the petitioner in accordance with the provisions of State Bank of India Officers Service Rules. The service rules are applicable to the petitioner as well as the Bank. Rule 68(2)(vii) of the State Bank of India Officers Service Rules provides that in case of disciplinary proceedings, the delinquent Officer is entitled to take the assistance of an Officer as defined in clause (m) of rule 3, but, shall not engage a legal practitioner for the purpose. As per Clause 3(m) of Rule 68(2 (vii) of the State Bank of India Officers Service Rules, an Officer means a person fitted into or appointed to or promoted to any of the grades specified in rule 4 and shall also include any specialist or technical person so fitted or promoted or appointed and any other employee or adviser to whom the provisions of the rules have been made applicable under rule 2. The rule is very clear that only an officer can be appointed as a Defence Representative in a disciplinary proceeding initiated against an Officer of the Bank.
11.The petitioner knowing very well that only an Officer of the Bank can be appointed as Defence Representative, rightly appointed Mr.K.Dass as his Defence Representative to conduct the proceedings. Thereafter, the petitioner appointed Thiru.K.Rajendran, who is only a Senior Assistant as Defence Representative. The third respondent without reference to Rule 68(2)(vii) of the State Bank of India Officers Service Rules approved the said appointment. It was only thereafter, the third respondent realized the mistake and cancelled the approval. The rules framed by the State Bank of India and more particularly Rule 68(2) (vii) of the State Bank of India Officers Service Rules, are not under challenge. The fact that the third respondent earlier permitted Thiru.K.Rajendran to function as Defence Representative notwithstanding Rule 68(2) (vii) of the State Bank of India Officers Service Rules would not give a right to the petitioner to contend that the said Defence Representative should be permitted to conduct the proceedings through out. In view of Rule 68(2) (vii) of the State Bank of India Officers Service Rules, the third respondent was fully justified in ordering withdrawal of engagement of Thiru.K.Rajendran as Defence Representative. The first point is accordingly decided against the petitioner.
12.The learned counsel for the petitioner has taken up a contention that Thiru.K.Rajendran, being an Office Bearer of the Trade Union is entitled to represent a member of Trade Union in disciplinary proceedings, as per the Trade Union Act. The enquiry is governed by the State Bank of India Officers Service Rules. The State Bank of India Officers Service Rules is a self-contained Code. The initiation of proceedings, conduct of such proceedings, appointment of Inquiry Officer, engagement of Defence Representative, the procedures to be followed during the course of inquiry proceedings, issuance of second show-cause notice, imposition of punishment etc., are all provided under the Service Rules. There is no question of invoking the provisions of Industrial Disputes Act, in a matter covered by the rules framed by the Bank. In view of the mandate given under Section 43 of the State Bank of India Act, 1955, the State Bank of India Officers Service Rules have statutory force. Therefore, I reject the contention taken by the petitioner on the basis of the provisions of Trade Union Act.
13.The learned counsel for the petitioner placed reliance on the order dated 16.07.2007 made in W.P.(md).No.7999 of 2005 in support of his contention that the representative of a Registered Trade Union is entitled to function as Defence Representative. In Mr.Raja vs. State Bank of India, (order dated 16.07.2007 made in W.P.(md).No.7999 of 2005), this Court found that the petitioner was an Award Staff and there was a binding settlement dated 10.04.2002 with regard to the disciplinary proceedings and related matters. The settlement arrived at between the Bank and employee contained a provision permitting the representative of registered Trade Union of Bank employees to conduct the proceedings, on behalf of its members. The writ petitioner therein by exercising the right conferred under the settlement engaged the Office Bearer of the Trade Union as his Defence Representative. It was only under the said circumstances, this Court allowed the writ petition rejecting the contention taken by the Bank that the Trade Union members are not eligible to act as Defence Representatives.
14.However, the facts of the present case are entirely different. There is no settlement arrived at between the Bank and the Trade Union. In the absence of any such settlement, necessarily the statutorily rule has to be followed. The petitioner is therefore not correct in placing reliance on the decision cited supra.
15.The impugned order dated 12.03.2014 is challenged primarily on the ground that the third respondent was not correct in removing the proceedings recorded during the currency of engagement of Thiru.K.Rajendran. I do find considerable force in the said challenge.
16.The third respondent permitted Thiru.K.Rajendran to function as Defence Representative. It is true that the engagement was made notwithstanding Rule 68(2)(vii) of the State Bank of India Officers Service Rules. However, the question is as to whether the third respondent was correct in eschewing the evidence sofar recorded during the currency of appointment of Thiru.K.Rajendran. The third respondent wanted the petitioner to engage another Defence Representative in the place of Thiru.K.Rajendran. However, there is no provision to eschew the evidence recorded earlier.
17.The appointment of Thiru.K.Rajendran should be considered as an irregular appointment and not an illegal appointment. The irregularity is now rectified by cancelling the appointment of Thiru.K.Rajendran. However, that would not give right to the third respondent to eschew the evidence sofar recorded during the currency of the appointment of Thiru.K.Rajendran as Defence Representative. I am not in a position to agree with the third respondent that the proceedings recorded with the ineligible Defence Representative should be removed from records. The disciplinary proceedings should continue by changing the Defence Representative and not by eschewing the evidence sofar recorded. Therefore, to this limited extent, the petitioner should succeed.
18.In the result, the impugned order dated 12.03.2014 insofar as it cancels the appointment of Thiru.K.Rajendran as Defence Representative is upheld. The further direction that the proceedings recorded during the currency of appointment of Thiru.K.Rajendran would be eschewed from file is set aside. The petitioner is given time till 31.07.2014 to engage another officer of the Bank as his Defence Representative. The third respondent is directed to reschedule the enquiry, after the appointment of Defence Representative by the petitioner.
19.The writ petition is allowed in part as indicated above. No costs.
To
1.The Deputy General Manager (B & O) State Bank of India, D.P Cell Administrative Office, Mc.Donald's Road, Thiruchirappalli, Pin-620 001.
2.The Chief Manager, State Bank of India, Tirunelveli.
3.The Chief Manager/Inquiry Officer, State Bank of India, V.O.C.Nagar, Thanjavur, Pincode:613 009.