Madras High Court
V.Mathivanan vs State Bank Of India on 8 February, 2012
Author: Chitra Venkataraman
Bench: Chitra Venkataraman, R.Karuppiah
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08/02/2012 CORAM THE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMAN AND THE HONOURABLE MR.JUSTICE R.KARUPPIAH Writ Appeal (MD)No.1436 of 2011 and M.P(MD)No.1 of 2011 V.Mathivanan ... Appellant/ Petitioner Vs. State Bank of India, represented by Assistant General Manager (Administration)/ Disciplinary Authority (D.A), Disciplinary Proceeding Section, Zonal Office, Network - 2, Administration Unit, Madurai - 2. ... Respondent/ Respondent Prayer Appeal filed under Clause 15 of the Letter Patent against the order dated 19.09.2011 made in W.P(MD)No.9450 of 2011. !For Appellant ... Mr.A.Thirumurthy for Mr.P.Mahendran ^For Respondent ... Mr.T.R.Rajagopalan, Senior Counsel for Mr.S.Sethuraman * * * * * :JUDGMENT
(Judgment of the Court was delivered by CHITRA VENKATARAMAN,J.) The writ appeal is against the order of the learned Single Judge dated 19.09.2011 in W.P(MD)No.9450 of 2011, rejecting the writ petition filed by the writ petitioner seeking a Writ of Certiorarified Mandamus to quash the proceedings of the respondent dated 16.05.2011, wherein the respondent rejected the plea of the writ petitioner to engage an advocate in the course of the enquiry proceedings. The writ petitioner also seeks quashing of the proceedings dated 27.06.2011 rejecting the writ petitioner's request again to engage an advocate. In the light of the prayer thus made, the writ petitioner seeks a Mandamus to direct the respondent to permit the writ petitioner to avail the services of M.Rajarathinam, advocate, as defence Assistant in respect of the domestic enquiry conducted for the charge memo dated 14.02.2011.
2. A perusal of the affidavit filed before this Court shows that except for contending that the said M.Rajarathinam has the right to represent as per the provisions of the Advocates Act, 1961, nothing had been stated as to how the discretion had been wrongly exercised by the respondent in rejecting the plea of the writ petitioner.
3. Even before the learned Single Judge, except for highlighting the provisions of the Advocates Act and the decisions rendered regarding the right of representation, nothing had been contended before the learned Single Judge as to how the gravity of the charges levelled against the writ petitioner makes the right of representation through an advocate an absolute one.
4. Few facts before going into the case, have to be noted hereunder:
(i) The writ petitioner was appointed as Assistant on 06.06.1991 in State Bank of India, Valparai Branch in Coimbatore District under Ex-serviceman category and promoted as Senior Assistant in 2004. While he was working at Modagam Branch, he was placed under suspension on 20.07.2009 and was served with a charge sheet vide proceedings dated 11.09.2009 which contained 13 charges.
(ii) A bare perusal of the charge sheet dated 11.09.2009 reveals the allegations made against the writ petitioner that he forged the signatures of 64 Self Help Groups under brand SEVA TRUST and fabricated 64 non-existent Self Help Groups and that the petitioner had morphed photographs of Self Help Groups and the faces of President and Treasurer of each Self Help Group in unrelated group photo. In collusion with others, the writ petitioner has forged the documents to derive the pecuniary benefit through the loan amounts. Immediately, on receipt of the notice, the writ petitioner addressed a letter offering his explanation. The proceedings initiated in terms of the Memorandum of Settlement on 01.08.2002 listed out as many as 12 charges and being informed about the appointment of an Enquiry Officer, the writ petitioner is stated to have written a letter on 09.05.2011, wherein he sought for assistance of an Advocate in the enquiry proceedings. By proceedings dated 16.05.2011, the respondent rejected the said request on the ground that the present Officer engaged was not an Advocate, but an official.
(iii) Once again, the writ petitioner entered into a correspondence on 23.05.2011 contending that the right to defence is a fundamental right and accordingly, he should have the services of an Advocate in the enquiry proceedings. Contending that the letter written by the respondent is contrary to the Regulation and Instructions and the Memorandum of Settlement on Disciplinary Action Procedure for Workmen dated 01.08.2002, in particular, Clause 12(a)(iii) and violation of the Constitution of India, he sought for permission to have the assistance of an Advocate. On 25.05.2011, the respondent, however, refused such permission and pointed out that if the writ petitioner so desired, he might engage the service of a representative of Registered Trade Union of the Bank Employees as provided in the Memorandum of Settlement dated 10.04.2002 to defend his case.
(iv) Subsequent thereto, once again, on 14.06.2011, the writ petitioner wrote a letter informing the respondent about engaging the services of M.Rajarathinam, Advocate and contended that under Section 30 of the Advocates Act, 1961, the Advocates can practice as a matter of right in all "Courts", "Tribunals" or any "Quasi-judicial authority". In these circumstances, the writ petitioner prayed that suitable letter be issued to his Advocate. The respondent replied on 27.06.2011 that the terms of Bi-partite settlement is binding on both sides. In these circumstances, the respondent refused permission to have the assistance of an Advocate, instead, they informed the writ petitioner that he can engage a Defence Representative from the Union as per the Bank's guidelines/Bi-partite settlement.
(v) With the correspondences thus going between the parties therein, not satisfied of the reply given by the respondent, the writ petitioner approached this Court challenging the said order refusing permission to have the assistance of an Advocate.
(vi) Contending that Bi-partite agreement provided for engaging the services of an Advocate, the petitioner reiterated his contentions as regards the amendment to Section 30 of the Advocates Act, 1961, as has been stated in the earlier correspondence and contended that he had nominated M.Rajarathinam, a practising lawyer, as Defence Assistant who has the right to practise in all Courts, Tribunals and other Quasi-Judicial authorities notified on 09.06.2011.
(vii) A perusal of the order of the learned Single Judge shows the detailed consideration as regards the right of a delinquent officer to have the assistance of an Advocate in a domestic enquiry. Referring to the decision relied on by the writ petitioner dated 16.07.2007 in W.P.No.7999 of 2005, wherein this Court rejected the plea of the charged official seeking engaging of the services of M.Rajarathinam, Advocate on the ground that the defence representative belonged to officer category, learned Single Judge held that the said judgment cannot be cited as the precedent regarding engaging the services of a lawyer as defence representative in a domestic enquiry as a matter of right and that it is only at the discretion of the Bank that the charged official could have the services of a lawyer as a defence representative.
(viii) Learned Single Judge, however, rejected the contention of the writ petitioner holding that permitting the Advocate to represent a charged official, is a matter of discretion for the Bank to decide. Thus, the claim of the writ petitioner could not be granted. In so considering the issue on right to claim legal assistance, learned Single Judge referred to the decisions in (i) Bharat Petroleum Corporation Ltd., v. Maharashtra General Kamgar Union and others reported in (1999) 1 SCC 626; (ii) National Seeds Corpn., Ltd. v. K.V.Rama Reddy reported in 2006(11) SCC 645; (iii) D.G., Railway Protection Force and others v.K.Raghuram Babu reported in 2008(4) SCC 406, holding that there is no right to representation in the disciplinary proceedings by another person unless the Service Rules specifically provided for the same and thus, ultimately came to the conclusion that the writ petitioner cannot seek as a matter of right a representation through a Counsel or through any person unless the statute or rules/Standing Orders provided for such a right.
5. Learned Counsel for the appellant/writ petitioner while placing reliance on the Memorandum of Settlement dated 10.04.2002, submitted that considering the charges levelled against the writ petitioner which may lead to serious consequences on his service with the Bank, the respondent should have considered his plea for representation through an Advocate.
6. He further pointed out that considering the binding nature of the agreement, in fairness to the compliance of the principles of natural justice, the learned Single Judge should have considered the request of the writ petitioner to quash the impugned order and thereby, permitted the said M.Rajarathinam to represent him in the Disciplinary proceedings.
7. In so contending, learned Counsel for the appellant/writ petitioner pointed out that the right to represent through an Advocate is so fundamental to his case that in the guise of exercising of discretion as available under the Settlement, the Bank had unjustifiably rejected the permission sought for.
8. It must be noted herein that the arguments now projected by the learned Counsel for the appellant/writ petitioner before this Court is mainly on the aspect of seriousness of the charges levelled against the writ petitioner and he had not argued anything either about the stand taken before the learned Single Judge as per the provisions of Section 30 of the Advocates Act, 1961 or about the line of arguments taken therein as regards his right claimed as a matter of course to have the assistance of an Advocate. It is not denied by the writ petitioner that it is a matter of record that the terms of the Memorandum of Settlement is absolute in its operation and no discretion is available with the respondent to permit an Advocate to be engaged by the delinquent official.
9. Referring to the decisions in Ram Naresh Tripati v. S.D.Rane and others reported in 1992-II-L.L.J. 519 and G.V.Aswathanarayana v. Central Bank of India reported in 1993-I-L.L.N. 689, learned Counsel for the appellant/writ petitioner submitted that even in the absence of any provision granting the delinquent officer the right to engage a representative as per the rules and regulations, such a right is available to the delinquent officer as a matter of compliance of the principles of natural justice and ultimately, the question as to whether the delinquent officer has to have the assistance of an Advocate, is the matter to be viewed on the seriousness of the allegations and consequences that may flow therefrom.
10. He also relied on the decision in The Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni and others reported in 1983-I- L.L.J. 1, wherein the Honourable Apex Court considered the principles of natural justice and the reasonable opportunity to defend to be granted to an employee in a domestic enquiry. Thus, when the rules are absolute, the provisions in the Settlement allowing the discretion to the Management, would have to be read as a positive mandate to have the assistance of an Advocate.
11. Per contra, by pointing out to various communications from the appellant, learned Senior Counsel appearing for the respondent pointed out that it is not the case of the appellant/writ petitioner throughout in his correspondence that the nature of the charges levelled against the appellant warranted the services of an Advocate to represent him in the course of the enquiry proceedings. In any event, he pointed out that when there is a discretion reserved with the respondent as per the Memorandum of Settlement on Disciplinary Action Procedures for Workmen dated 01.08.2002, the same is binding on the writ petitioner/appellant.
12. Secondly, he further pointed out that even as per the Settlement reached, the delinquent officer has the right to represent him through a representative of Registered Trade Union of Bank Employees and even where he is not a member of any Trade Union on the date of enquiry, a representative of a Registered Trade Union of Bank Employees in which the employee is working, could represent his case. The only area where the discretion is given to the Bank is as regards the delinquent official seeking permission to engage an Advocate as defence representative in the enquiry proceedings. He pointed out that neither the enquiry officer is the legal practitioner nor the employer represented through a legal practitioner to grant the relief to the writ petitioner to have the assistance of an Advocate. In any event, given the fact that in none of the correspondences, the writ petitioner had voiced any difficulty in the matter of conduct of the proceedings and when there is no denial of the fact that the respondent had informed the writ petitioner about his right to engage any one of the Trade Union representatives to represent him, the question of violation of Settlement does not arise.
13. Quite apart, the contention of the writ petitioner throughout in the writ petition related only to the provisions of the Advocates Act, 1961 and it is not now open to the writ petitioner to claim as a matter of right that he be represented through an Advocate.
14. Learned Senior Counsel appearing for the respondent placed reliance on the decisions of the Honourable Apex Court in (i) Crescent Dyes and Chemicals Ltd., v. Ram Naresh Tripathi reported in (1993) 2 Supreme Court Cases 115; (ii) N.Kalindi and others v. M/s.Tata Locomotive and Engineering Co., Ltd., Jamshedpur reported in AIR 1960 SUPREME COURT 914, a decision consistently followed till this date; (iii) M/s.CIPLA Ltd., and others v. Ripu Daman Bhanot and another reported in AIR 1999 SUPREME COURT 1635; (iv) Bharat Petroleum Corporation Ltd., v. Maharashtra General Kamgar Union and others reported in AIR 1999 SUPREME COURT 401; (v) Indian Overseas Bank v. Indian Overseas Bank Officers' Association reported in AIR 2001 SUPREME COURT 4007; (vi) State Bank of India, rep. by Assistant General Manager (Personnel & HRD), Chennai v. Presiding Officer, Industrial Tribunal, Madras and another reported in 2007-II- L.L.J. 968 (Mad), only to insist on the contention that adequate opportunity is provided under the Settlement and granting of assistance through an Advocate is the matter of discretion. He further pointed out that the right of representation is only a restricted right which has been recognised in the Settlement between the Management and the employee. In these circumstances, no grievance could be raised herein on the letters issued.
15. Before going into the case between the Management and the workman, the provisions of the Memorandum of Settlement on Disciplinary Action Procedure for Workmen dated 01.08.2002 need to be seen.
16. As the caption to the Memorandum suggests, the Settlement arrived at covers wide areas, as regards the disciplinary issue, clause 12 of the Settlement lays down the procedure as regards the assistance that the delinquent employee may have. It reads as under:
"11. When it is decided to take any disciplinary action against an employee, such decision shall be communicated to him within three days thereof.
12. The procedure in such cases shall be as follows:-
(a) An employee against whom disciplinary action is proposed or likely to be taken shall be given a 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."
17. In the background of the said provision contained in the Settlement, the question as to whether the delinquent officer would be entitled to have, as a matter of right, a representative to defend him, needs to be seen.
18. In the decision in State Bank of India, rep. by Assistant General Manager (Personnel & HRD), Chennai v. Presiding Officer, Industrial Tribunal, Madras and another reported in 2007-II-L.L.J. 968 (Mad) relied on by the learned Senior Counsel for the respondent, this Court considered the issue, particularly with reference to a bank employee charged with misappropriation where the employee abandoned the enquiry after certain stage. In considering the issue as to whether the employee has a right to have the representation through a lawyer, this Court referred to the decision in Management of National Seeds Corporation Ltd., v. K.V.Rama Reddy reported in 2007-II-L.L.J. 30 referring to the decision in Indian Overseas Bank v. Indian Overseas Bank Officers' Association and another reported in AIR 2001 SC 4007, to point out that the basic principle is that an employee has no right to representation in the departmental proceedings by another person or a lawyer unless the Service Rules specifically provide for the same; and that the right to representation is available only to the extent specifically provided for in the Rules. Thus, in the context of the law declared, no employee can claim assistance or representation by a legally trained person as of right. This Court also referred to the decision in Chairman and Managing Director, Hindustan Teleprinters Ltd., Chennai v. M.Rajan Isaac reported in (2005) 2 MLJ 119 and held that in the enquiry proceedings, a workman is not entitled to have the assistance of a lawyer of his choice. In the absence of specific provisions either in by-laws, guidelines, etc., enabling the workman to have the legal assistance, this Court rejected the plea of the delinquent officer.
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.
11. In 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 when a restricted right is granted, the said restricted right is unconstitutional."
20. Thus, 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".
21. In 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 discretion of the employer, we do not find any violation of principles of natural justice.
22. Learned Counsel for the appellant/writ petitioner placed reliance on as much as 17 decisions of various Courts including this Court and the Apex Court. In the decision in Navinchandra Shakerchand Shah v. Ahmedabad Co- operative Department Stores Ltd., reported in 1979-I-L.L.J. 60, the Gujarat High Court referred to the compliance of principles of natural justice and the right of an employee on the aspect of being informed about his rights and pointed out that considering the nature of allegations made therein where the permission is sought for by a delinquent employee for having an assistance from the legal representative, the enquiry would stand vitiated on account of a lapse in not informing the delinquent employee about his right of cross-examining another party.
23. As far as the decision in Ghatge Patil Transport Pvt. Ltd., v. B.K.Etale and others reported in 1984-II-L.L.J. 121, of the Bombay High Court relied on by the learned Counsel for the appellant is concerned, it dealt with the right of a delinquent employee to be represented by a well-wisher or a union representative or a legal practitioner. A perusal of the judgment of the Bombay High Court shows that it held the view that in a domestic enquiry, if an employee is refused a fair opportunity of being represented by an outsider or a union representative or a legal practitioner, this cannot be termed only as a technical defect. However, the question has to be decided on the facts and circumstances of each case. The Bombay High Court pointed out that one of the basic principles of natural justice is that the enquiry should be fair and impartial. Even if there is no provision in the Standing Orders or in law, where, in an enquiry before the domestic tribunal, the delinquent is pitted against a legally trained mind, if he seeks permission to appear through a legal practitioner, the refusal to grant his request would amount to a denial of reasonable request to defend himself and the essential principles of natural justice would stand violated.
24. So too in the decision in Ram Naresh Tripati v. S.D.Rane and others reported in 1992-II-L.L.J. 519, the Bombay High Court reiterated the said view and held that for the domestic enquiry to be fair and impartial, it is very much necessary that the delinquent workman should be allowed to be represented by a person of his choice and if an employee is refused such a fair opportunity, it would amount to violation of principles of natural justice.
25. In the decision in J.K.Aggarwal v. Haryana Seeds Development Corporation Ltd. and others reported in 1991-II-L.L.J. 412, the Apex Court reiterated that where the legally trained mind represented an employer in a domestic enquiry, the refusal to grant an opportunity to the employee would amount to denial of a reasonable request to defend himself and violation of essential principles of natural justice.
26. A perusal of the decisions thus cited and relied on by the learned Counsel for the appellant/writ petitioner shows that these decisions rest on the peculiar facts and circumstances of the case and the relevant provisions of the rules or regulations therein. The consistent view that one can deduce is that where the enquiry is conducted through a legally trained mind, denial of assistance of similarly qualified persons to a delinquent officer would be fatal to the proceedings. The charges levelled against the delinquent officer and the constitution of the enquiry tribunal, hence, have to have its weightage given in the matter of considering the right of an employee to have the assistance of a lawyer.
27. As far as the present case is concerned, it is not denied by the appellant/writ petitioner that the Memorandum of Settlement dated 10.04.2002 specifically dealing with the conduct of disciplinary proceedings, is binding on the writ petitioner herein and it provides for a wide range, including representation through a defence representative in the enquiry proceedings. There is no denial of the fact that as per clause 12 of the Memorandum of Settlement, the delinquent employee can have the defence representation through the Registered Trade Union of Bank Employees of which the delinquent officer is a member and even if he is not a member in any Trade Union, he is entitled to have the assistance of a representative of the Trade Union of the Bank Employees or Federation or All India Organisation to which the same is affiliated. The only area where the Bank has the discretion is in the matter of considering the request of a delinquent employee to have the assistance of a lawyer. In so providing such a discretion, we do not find any violation of either constitutional right or principles of natural justice.
28. As already pointed out, the question of relevancy of the Advocates Act, 1961, does not hold water and rightly so, the learned Counsel for the appellant/writ petitioner did not canvass the issue before us.
29. As already pointed out, the only ground argued by the learned Counsel for the appellant/writ petitioner is that when the delinquent officer seeks the assistance of a lawyer, as a matter of right, the same should have been granted. Secondly, the gravity of the charges should be looked into.
30. It is not denied by the writ petitioner that neither the enquiry officer nor the representative of the Bank and the Management are legally trained persons in the enquiry proceedings. On the admitted fact that the Settlement does not provide for engaging a lawyer as a matter of right and that the Bank itself have not appointed the enquiry officer as a lawyer nor the representative of the Management to be a lawyer, we do not find any justification in accepting the case of the appellant/writ petitioner that the appellant/writ petitioner is entitled to have the assistance of a lawyer.
31. As already pointed out, learned Senior Counsel for the respondent submitted that in none of the correspondences, any averment is made as regards the nature of the charges which required the assistance of a lawyer in the course of the proceedings before the enquiry officer.
32. Learned Counsel for the appellant/writ petitioner rightly does not deny as a matter of fact that there are no averments in the writ petition as regards the compelling necessity of engaging of a lawyer or on the gravity of the charges levelled, to accept the case of the appellant herein. Thus, going by the contentions now made, we do not find any ground to accept the request of the appellant/writ petitioner to have the assistance of a lawyer.
33. Learned Counsel for the appellant/writ petitioner pointed out that M.Rajarathinam, Advocate, whose help is sought for by the writ petitioner was originally the staff of the Bank alone and that there could be no serious objection from the Bank. We do not find any grounds to accept this. Given the fact that the Memorandum of Settlement made provides for engaging the services of the representative of the Trade Union which is in compliance of the principles of the natural justice and in any event, when no grievance is made at any point of time as to why the writ petitioner should not engage a representative of a Trade Union and no arguments had been taken before the learned Single Judge in this regard that the discretion had not been properly exercised, we do not find any justification in the plea of the appellant/writ petitioner. Whatever might have been the status of M.Rajarathinam previously as on the date of enquiry, admittedly he is a practising Advocate and the claim is not made rightly by the appellant that as an employee, M.Rajarathinam is entitled to represent him.
34. In these circumstances, going by the well settled principles of law on the right of representation in the enquiry proceedings and the Memorandum of Settlement on disciplinary proceedings to have the representation through the representative of a Registered Trade Union, we reject the case of the appellant/writ petitioner and thereby, confirm the view of the learned Single Judge.
35. Accordingly, the writ appeal stands dismissed. Consequently, the connected Miscellaneous Petition is dismissed. No costs.
rsb