Karnataka High Court
All India Vijaya Bank Officers ... vs Vijaya Bank And Anr. on 18 June, 2004
Equivalent citations: 2004(6)KARLJ256, (2005)ILLJ756KANT
Author: R. Gururajan
Bench: R. Gururajan
ORDER R. Gururajan, J.
1. All India Vijaya Bank Officers' Association and the Officer Employees of the Vijaya Bank have filed these petitions seeking to quash the departmental enquiry initiated against them and to permit them to be defended by Sri Ranjan Shetty, Manager, Vijaya Bank, Devarayasamudra Branch or any other officer mentioned in their representation or by an Advocate in the enquiry being held against them and to grant all consequential benefits.
2. The facts are same or similar in all these petitions. At the time of arguments learned Counsel for the petitioners referred to me W.P. Nos. 40855 and 40856 of 2003 for the purpose of consideration of the case.
3. According to petition averments the first petitioner-association is a recognised trade union of officer employees working in the Bank. At the industry level it is affiliated to All India Bank Officers' Confederation. The service conditions of the employees are negotiated and settled between the Bank management represented by the Indian Banks' Association and Banks Officers represented by the All India Bank Officers' Confederation. Insofar as disciplinary actions against officer employees are concerned, they are governed by the statutory regulations called Vijaya Bank Officer Employees' (Discipline and Appeal) Regulations, 1981. The other petitioners are the members of the first petitioner. Certain disciplinary proceedings were initiated against the petitioners by way of charge-sheet, petitioners denied the charges. An enquiry was ordered to be conducted. According to petition averments Regulation 6(7) of the Regulations entitles an officer employee facing disciplinary proceedings to be defended by any other officer employee of the Bank subject only to the condition that such officer whose assistance is sought to be taken shall not have more than two pending disciplinary cases on hand. Petitioners also refer to a circular dated 20-12-2002 which lays down the procedure for availing the defence assistance. Petitioners submitted their representation for defence assistance by Branch Heads. The second respondent declined their request. A further representation was made. The same was rejected by a subsequent endorsement. Another representation was made seeking to reconsider. The said representation was also rejected. A joint meeting was held on 12-7-2003 and on 13-7-2003, the central committee of the first petitioner-association met at Bangalore and resolved that the management should withdraw the present restrictions to the effect that Branch Managers cannot defend officers in the disciplinary inquiries as it is contrary to the regulations and as it results in negation of statutory rights. Bank rejected the request of the union.
4. Notice was issued and Bank has entered its appearance. The Bank in its objections statement justified its endorsement. The Bank says that a policy decision taken by the Bank not to permit the Heads to act as defence representatives in departmental enquiry does not deprive a charge-sheeted officer of the assistance of defence representative, since a very small class of officers who hold an important post heading branches and who are entrusted with various responsibilities for business development and simultaneously benefited monetarily by allowances and perks attached to the post of Branch Heads have alone been restricted from taking up additional assignments as defence representatives in the larger interest of the institution and the general public. The same being only a reasonable restriction and the Bank being well-within its powers to utilise the services of such officers fully for discharge of their functions attached to their posts for Bank's benefits cannot be said to be objectionable. It is equally well-settled that no person has any legal right to be defended only by a particular individual of his choice in a departmental enquiry. They also say that petitioners have not been denied an opportunity to defend their case but they were only advised by the Disciplinary Authority to seek the assistance of any co-officer who is not a Branch Head considering the fact that it was not possible to spare the services of Branch Heads to act as defence representatives as it would hamper the smooth functioning of the branches thus affecting the Bank's business and ultimately affecting the public at large. They justify their action.
5. Learned Counsel for the petitioner took me through the pleadings to contend that in terms of Regulation 6(7), the only restriction is one of prevention of assistance by an officer employee, who has two pending disciplinary cases on hand in which he has to give assistance. So long as an officer employee has no pending cases, the charge-sheeted employee can take defence assistance of the said officer employee. Learned Counsel also says that any restriction is not only in violation of Regulation 6(7) but also would be an arbitrary decision. He further says that Regulation 6(7) is mandatory and the defence assistance is fundamental in disciplinary proceedings. Several judgments have been pressed into service by the petitioner.
6. Per contra, learned Standing Counsel invites my attention to the material facts to contend that Regulation 6(7) does not provide any absolute right and Bank has every right to restrict in the matter of defence representation. Learned Counsel also says that Bank's interest and public interest is paramount and that interest cannot be curtailed as sought to be argued by the petitioner. Learned Counsel for the Bank also relies on several judgments. Even otherwise it is argued before me that there are several other officers who are available and the insistence of a particular officer would show the intention of the petitioner. Learned Counsel also places before me the various benefits being made available to a defence representative.
7. Admitted facts would reveal that Bank has denied the assistance on the ground that the petitioners have sought the defence assistance of Branch Heads and that there services cannot be provided. Parties are governed by Vijaya Bank Officer Employees' (Discipline and Appeal) Regulations, 1981. It provides for a detailed procedure in the matter of disciplinary proceedings. An Officer employee has been defined in terms of Regulation 3(j) as under:
"Officer employee" means a person who holds a supervisory, administrative or managerial post in the Bank or any other person who has been appointed and is functioning as a officer of the Bank, by whatever designations called and includes a person whose services are temporarily placed at the disposal of the Central Government or a State Government or any other Government undertaking or any other public sector Bank or the Reserve Bank of India, or any other organisation, but shall not include casual, work charged or contingent staff or the award staff".
A public servant is defined in terms of Regulation 3(m) as under:
"Public Servant" means a person as defined as public servant in Section 21 of the Indian Penal Code (45 of 1860)".
Regulation 6(6) reads as under:
"Where the Disciplinary Authority itself enquiries or appoints an inquiring authority for holding an inquiry it may, by an order, appoint a public servant to be known as the 'Presenting Officer' to present on its behalf the case in support of the articles of charge".
Regulation 6(7) reads as under:
"The officer employee may take the assistance of any other officer employee but may not engage a legal practitioner for the purpose, unless the Presenting Officer appointed by the Disciplinary Authority is a legal practitioner or the disciplinary authority, having regard to the circumstances of the case, so permits.
Note.-The officer employee shall not take the assistance of any other officer employee who has two pending disciplinary cases on hand in which he has to give assistance".
An officer employee is defined under Regulation 2(j) meaning a person who holds a supervisory administrative or managerial post in the Bank or any other person who has been appointed and is functioning as an officer of the Bank, by whatever designations called and includes a person whose services are temporarily placed at the disposal of the Central Government or a State Government or any other Government undertaking or any other public section Bank or the Reserve Bank of India or any other organisation, but shall not include casual, work charged or contingent staff or award staff.
8. Therefore what is clear to this Court from this provision is that a Bank can have a public servant as a 'Presenting Officer' to present its case on its behalf and an 'Officer Employee' may take the assistance of any other officer employee but may not engage a legal practitioner for the purpose, unless the Presenting Officer appointed by the Disciplinary Authority is a legal practitioner or the disciplinary authority, having regard to the circumstances of the case, so permits. There is a further restriction that an officer employee shall not take the assistance of any other officer employee who has two pending disciplinary cases on hand in which he has to give assistance.
9. Elaborate arguments have been advanced with regard to the scope of Regulation 6(7). In all these cases in terms of the various circulars and endorsements, the Bank has ruled that the petitioners cannot have the Branch Heads as defence representatives. In all these cases the petitioners have sought defence assistance from the Branch Heads. The Bank has refused to consider the defence by Branch Heads. Courts have considered the scope of defence assistance in enquiries.
9.1 In C.L. Subramaniam v. The Collector of Customs, Cochin, , is a leading judgment. In the said case, the Supreme Court has ruled that Rule 15 of the Central Civil Services (Classification, Control and Appeal) Rules, 1967 is a mandatory rule. The Court ruled that any penalty imposed contravening Rule 15(5) is unsustainable in law.
9.2 In Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni, is again a judgment of the Supreme Court. In the said case, request of an employee to be represented by a Lawyer was refused. The Supreme Court ruled that there is denial of reasonable opportunity of hearing to the said employee.
9.3 In AIR 1991 SC 412 (sic), the Supreme Court ruled that an employee defending himself may tend to become 'nervous' or 'tongue tied'.
9.4 In T. Muniswamy v. State of Mysore, 1963(2) Mys. L.J. 1 (DB), this Court has ruled as under:
"Where the refusal of the permission sought by the Government servant for appointment of Counsel in defence was not preceded by a consideration of any of the relevant circumstances of the case and the impeachment was by a police inspector, refusal of that opportunity results in disobedience to the constitutional mandate under Article 311(2) and vitiates the punishment imposed".
9.5 In Balbir Kaur v. Steel Authority of India Limited, , the Supreme Court ruled that statutory obligation cannot be left high and dry on the whims of the employer irrespective of the factum of the employer being an authority within the meaning of Article 12 or not.
9.6 In Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, , the Supreme Court has ruled as under:
"There is no substantial difference between a rule and a regulation inasmuch as both are subordinate legislation under powers conferred by the statute. A regulation framed under a statute applies uniform treatment to every one or to all members of same group or class. The Oil and Natural Gas Commission, the Life Insurance Corporation and Industrial Finance Corporation are all required by the statute to frame regulations inter alia for the purpose of the duties and conduct and conditions of service of officers and other employees. These regulations impose obligation on the statutory authorities. The statutory authorities cannot deviate from the conditions of service. Any deviation will be enforced by legal sanction of declaration by Courts to invalidate actions in violation of rules and regulations".
10. The respondent-management has referred to the following judgments:
10.1 In ILR 1995 Kar. 2736 (sic), this Court has ruled as under:
"It is now well-settled that the Doctrine of Natural Justice as applied to enquiries consists of the following three principles (a) no person shall be the judge of his own cause; (b) no person shall be condemned unheard; and (c) there should not be any procedural unreasonableness in the enquiry".
10.2 In Crescent Dyes and Chemicals Limited v. Ram Naresh Tripathi, , has ruled as under:
"10. The doctrine of natural justice embodies two principles, namely (i) no one can be a judge in his own case, and (ii) a judicial or quasi-judicial Tribunal ought not and shall not condemn any person unheard. In the present case we are not concerned with the first principle and must, therefore, confine ourselves to the second which recognises the right to be heard. The second principle envisages that the right to be heard in order to be effective must be preceded by notice as to the exact charge which a delinquent is called upon to meet. Does then the right to be heard include the right to be represented through Counsel or agent of the choice of the delinquent? If a domestic Tribunal refuses permission to a delinquent appearing before it to be represented by an agent would that amount to infringement of the rule of natural justice? There can be no doubt that a delinquent must be given an opportunity of presenting his case in such way suitable to the character of the enquiry which would ensure a fair hearing resulting in fair dispensation of justice. But does that extend to the right to be represented through Counsel or agent is the question which we are called upon to answer".
10.3 In K.L. Tripathi v. State Bank of India, , the Supreme Court has considered the scope of natural justice.
11. It is well-accepted in law that a reasonable opportunity has to be provided even administrative matters in the event of that order resulting in civil consequences. Officer employees facing enquiry are therefore provided defence representatives in terms of the regulations/rules, to defend them and such representation forms part of natural justice. There cannot be any quarrel over this proposition and the case-laws also accept such proposition. The argument of the petitioner is that in the light of the case-laws made available to this Court it is sacrosanct and nobody can object to defence and any objection would be in violation of the law laid down by the Supreme Court. This very question with regard to the right being absolute or not has been considered by the Supreme Court in Crescent Dyes case as under:
"12. From the above decision of the English Courts it seems clear to us that the right to be represented by a Counsel or agent of one's own choice is not an absolute right and can be controlled, restricted or regulated by law, rules or regulations. However, if the charge is of a serious and complex nature, the delinquent's request to be represented through a Counsel or agent could be conceded.
(emphasis supplied)
13. The law in India also does not concede an absolute right of representation as an aspect of the right to be heard, one of the elements of principle of natural justice. It has been ruled by this Court (i) N. Kalindi v. Tata Locomotive and Engineering Company Limited, Jamshedpur, ; (ii) Brooke Bond India (Private) Limited v. S. Subba Raman, 1961-II-LLJ-417 (SC) and (iii) Dunlop Rubber Company (India) Limited v. Their Workmen, , that there is no right to representation as such unless the company by its Standing Orders recognises such a right.
14. ... This Court therefore, concluded that a workman against whom an enquiry is being held by the management has no right to be represented at such enquiry by a representative of his union though of course an employer in his discretion can and may allow his employee to avail himself of such assistance".
Therefore it cannot be said that a representative of one's own choice can be equated to be an absolute right without conditions. The Supreme Court has stated in unmistakable terms that the right to be represented by a Counsel or agent of one's own choice is not an absolute right and can be controlled, restricted or regulated by law, rules or regulations.
12. In fact at this stage, I must also notice a judgment of the Supreme Court in Indian Overseas Bank v. Indian Overseas Bank Officers' Association and Anr., . In the said case Banks brought out amendment to the Rule that enables the employees to take assistance of any other officer employee to defend him in disciplinary proceedings by which 'employee' who has already two pending disciplinary proceedings on hand in which he has to defend the charge-sheeted employees, was barred from taking the third case. In writ filed by Association of employees, this amendment was struck down by the High Court. In appeal by the Bank, the Supreme Court ruled as under:
"...The amendment of the nature under consideration, apart from paying way for expeditious culmination of disciplinary proceedings by avoiding unnecessary delays on the part of the defence officer holding too many engagements on his hand finding difficult to co-ordinate his appearance in various proceedings, would equally go a long way to ensure that no monopoly is created in a chosen few for such purposes and that the services of the proposed defence officers are equally available in proper measure to the Institution which employ them in greater public interest".
In the same judgment the Apex Court ruled that:
"Further, we are also of the view that a stipulation of the nature under consideration, apart from paving way for expeditious culmination of the disciplinary proceedings by avoiding unnecessary delays on the part of a defence officer holding too many engagements on his hand finding difficult to co-ordinate his appearance in various proceedings, would equally go a long way to ensure that no monopoly is created in a chosen few for such purposes and that the services of the proposed defence officers are equally available in proper measure to the Institutions which employ them in grater public interest. The Banks in question, being nationalised with a wide network of units at national level there could be no concrete basis for an assumption that many employees, who are well-versed in the administrative procedures and conversant with the functions of the Board and the rules, bye-laws and regulation would not available to be chosen for defending the officers employees facing enquiries. . .".
13. The same logic is to be applied to the present situation and all that the Bank wants is that the Branch Heads are not be provided and they have given sufficient reasons as to why the same is not permissible in the given circumstances. Courts cannot forget that ultimately the Banks are there for public welfare and public interest has to be given equally a prime place in the larger interest of economy. Therefore the rejection of defence assistance by Branch Heads, cannot be considered to be in violation of natural justice or in violation of Regulation 6(7) as contended by the petitioners.
13.1 It is not as though the Bank has totally prohibited the defence assistance to these officers. It is also not possible for this Court to accept that in the event of denial of defence by Branch Heads, the petitioners are so helpless as sought to be argued by their learned Counsel. These officers are fairly well-educated and they can get themselves defended by another non-branch heads. I must also notice that in the event of any adverse order they have a right of remedy before this Court. In these circumstances, it cannot be said that the denial is so harmful and destructive of a right given to an employee in terms of Regulation 6(7) of the Act. A reasonable reading would show that some discretion is available to the management and that discretion is exercised by circular instruction in the larger interest of public by prohibiting defence by branch heads. That is the only reasonable understanding that can be arrived at in the larger interest of the Bank's functioning as a public body.
14. Learned Counsel for the petitioner further contends that impugned circular is in violation of Regulation 6(7) and his further argument is that it cannot be adopted at all.
14.1 Several judgments have been relied upon by the learned Counsel for the petitioner.
14.2 Balbir Kaur's case is pressed into service. In the said judgment, the Supreme Court has noticed in para 15 that the statutory mandate is unequivocal and unambiguous in nature and runs to the effect that the gratuity is payable to the heirs of or the nominees of the concerned employees but by the introduction of the family pension scheme, this mandate stands violated and as such the same cannot but be termed to be illegal in nature.
14.3 In (2003)5 SCC 482 (sic), the Supreme Court has noticed that the settled position of law is that no Government order, notification or circular can be a substitute of the statutory rules framed with the authority of law.
14.4 In K. Kuppusamy v. State of Tamil Nadu, , the Supreme Court ruled that statutory rules cannot be overriden by executive orders or executive practice.
14.5 In 2003 SCC (L and S) 765, the Supreme Court has ruled that there cannot be any manner of doubt that the provisions of statutory rules cannot be taken away by a suggestion of the executive until and unless the rules are appropriately amended.
14.6 In Balu Laxman Khatik (dead through L. Rs v. Biru Ramchandra Kotmire, , the Supreme Court has ruled that exercise of power of dismissal by the appellant has to be in accordance with the statutory regulations and with the approval of the statutory body.
14.7 All these judgments would show that an executive cannot in the guise of exercising power, pass any order contrary to the statute. An executive order has to be in consonance with the statute. The statute is given a paramount place. In the light of the law on the subject let me see as to whether the circular is in any way violative of Regulation 6(7) of the Regulations. I have ruled in the earlier paragraphs that in terms of Regulation 6(7) and in the light of the judgments of the Supreme Court discretion is available to the management. The present circular is nothing but a discretionary circular. The discretion is reasonable in terms of the banking business and in terms of the public policy. Therefore, notwithstanding the strong objection by the petitioner I am unable to find any unreasonableness or arbitrariness or want of power in the discretion exercised by circular instruction on the facts of this case.
15. Learned Counsel for the petitioners in the course of arguments argued that the Bank has been given a wide discretion of appointment of a presenting officer of its choice but the said discretion is denied to the petitioners. Much arguments are placed in this regard. The answer to this question would be found in the ruling of the Supreme Court in Indian Overseas Bank's case, as under:
"So far as the management is concerned, it can always observe the same while considering the need for choosing a presenting officer in an individual case even in the absence of a stipulation there for. The mere possibility or otherwise of any action which may result in differential standard or norm being adopted in a given case, cannot be assumed to provide sufficient ground or reason to undermine the right of the management to make a regulation or standing order of the nature in question or militate against the reasonableness of justness of the said provision, whatever may be the scope available for ventilating otherwise a grievance in an individual case of any adoption of differential standards or norms to the detriment of the officer-employee concerned".
16. In W.P. Nos. 40855, 40856, 49511 and 52913 of 2003, petitioners have sought for an alternative prayer of assistance by an Advocate. In this regard, I must again notice Regulation 6(7). It provides for discretion to the disciplinary authority in the matter of engagement of a legal practitioner in the event of a presenting officer being appointed as legal practitioner or having regard to the circumstances of the case. In W.P. Nos. 40855, 40856, 49511 and 52913 of 2003, legal assistance is denied without reasons. Therefore, what I deem it proper is that though I have upheld the denial of providing defence assistance by Branch Heads, the Bank is directed to reconsider with regard to legal assistance in terms of Regulation 6(7) in such cases where legal assistance is sought for by the petitioner and pass orders if circumstances so demand, in accordance with law within two weeks from the date of receipt of a copy of this order. To that extent petitions are to succeed.
17. In the result, these petitions are partly allowed. Rejection of defence assistance by Branch Heads is accepted. Denial of legal assistance is set aside. The matter is remitted for fresh consideration in terms of my order in para 16, in accordance with law. No costs.