Gujarat High Court
Meeta J. Mehta vs Valsad-Dang Gramin Bank And Anr. on 27 November, 1995
Equivalent citations: (1996)2GLR517
Author: C.K. Thakker
Bench: C.K. Thakker
JUDGMENT C.K. Thakker, J.
1. At the request of the learned Counsel for the petitioner name of respondent No. 2, Inquiry Officer, is deleted. Original respondent No. 1 will now be the sole respondent. Rule. Mr. K.I. Shah, learned Advocate, appears for the respondent and waives service of rule. In the facts and circumstances of the case, the matter is taken up for final hearing today.
2. This petition is filed by the petitioners, for directing the respondent to allow the petitioner to engage a legal practitioner and only thereafter to proceed with the enquiry instituted against her.
3. It is the case of the petitioner that she was service as a Clerk-cum-Cashier in Valsad-Dang Gramin Bank at Vandervela Branch, Taluka Vansda, District Valsad. She was placed under suspension and was facing departmental enquiry for alleged misconduct. A charge-sheet was issued to her on September 1, 1995 wherein it was alleged that irregularities were committed by her in about 73 incidents when she was at Valsad Branch during her tenure in the years 1991 and 1992. Copy of the said charge-sheet is annexed with the petition. In connection with those allegations, departmental enquiry was instituted against her. The petitioner made an application on October 5, 1995. Annexure "B" to the petition, wherein a prayer was made to allow her to engage an Advocate. The grounds were also mentioned by her in the said application. The Chairman and Disciplinary Authority, vide his letter dated October 9, 1995, rejected the said application, inter alia, on two grounds :-
Firstly, it was mentioned that in accordance of the provisions of Valsad-Dang Gramin Bank (Staff) Service Regulation, 1994 and the provisions of Section 30 of the Regional Rural Bank Act, 1976, she cannot, as of right, claim representation through an Advocate. Under Clause (iii) of Regulation 30, the enquiry may be delegated to any Officer, as mentioned in the said Regulation. For the purpose of enquiry, the Officer or employee may not engage a legal practitioner.
The second reason which was given by the Chairman-cum-disciplinary Authority was that the Presenting Officer for the said case was also neither a legal practitioner nor legally trained person.
Being aggrieved by the aforesaid communication, the petitioner has approached this Court.
4. Mr. G.R. Udhwani, learned Counsel for the petitioner, raised various contentions. He submitted that there is an error apparent on the face of the record committed by the Authority in not considering the fact that there was no bar or prohibition in engaging an Advocate. The provisions of the Act or the Regulations did not enact that it is not permissible for the employee to engage an Advocate or that such person has no right to be represented through a lawyer. The provision merely lays down that an Officer or an employee cannot, as of right, claim representation through a legal practitioner. According to Mr. Udhwani when the regulation provides that an Officer or an employee may not engage a legal practitioner, it enjoins on the part of the Authority to apply its mind to the facts and circumstances of the case and to come to a conclusion whether in the facts and circumstances of the case, such a prayer should or should not be granted. In other words, according to the Counsel, "an Officer or an employee may not engage an Advocate" means he may engage an Advocate if the circumstances warrant such assistance need or help.
5. The counsel also contended that, in the instant case, considering the allegations bevelled against the petitioner, no reasonable man, in the facts and circumstances, would have rejected the prayer to be represented through a legal practitioner. More than 70 charges have been framed against the petitioner. Almost all of them had something to do with accounts and figures. An allegations is made that there was misappropriation on the part of the petitioner and considering the ledger book, general ledger book, cash book, vouchers, etc., it is not reflected and that any illegality or irregularity has been committed. The petitioner, who is a junior Clerk, having B. Com. degree may not be able to appreciate the niceties of law, which may arise while considering a number of questions, which may be put to her or to cross examine witnesses produced by the department. Again, it was contended that everything was done by the manager of the bank and, in fact, allegations have also been levelled against the Manager. In all probability, according to the learned counsel for the petitioner, it may happen that with a view to punish the petitioner, a superior officer, like the Manager, may be exonerated and the petitioner may be made a scapegoat. Relying upon various decisions of the Honourable Supreme Court and of other High Courts, it was contended that it is not that only when the statutory provision enables or authorises an applicant that an applicant can engage an Advocate. In fact, only in the absence of such statutory provisions that a Court may be called upon to decide such question. If a statutory provision is there, under which a person can engage an Advocate, neither a Court of law nor quasi-judicial body or Administrative authority can refuse such prayer, inasmuch as, under the statutory provision, he or she is entitled to be represented through a lawyer. It is only in absence of such specific provision that an authority mat be called upon to consider the facts and circumstances and after application of mind, decide the question one way or the other. Hence, the fact that under the Act or under the Regulations, the petitioner could not claim right of representation through a lawyer, is hardly relevant. It is no doubt true that the second reason put forward by the Authority is a germane consideration. That is, however, merely the beginning of consideration of the matter and not an end in itself. If the Presenting Officer is not a lawyer or well versed in law, in a given set of circumstances, a prayer made by an employee may be rejected but then the order must reflect as to why such a relief is not granted. Ordinarily, when a lady employee of Class III is facing a department enquiry of various nature and the allegations are such that if they are proved, may result in serious consequences, resulting into economic death penalty or substantive major punishment, like removal or other penalty of a major nature, it is not uncommon that an employee may be puzzled that she may not be in a position to defend herself properly and may not be able to cross-examine effectively the witnesses, who have deposed by or on behalf of the Department. Again, it also appears that some audit objection is also raised. It may be that in these circumstances, she might have to call for necessary record, cross-examine that Auditor or will have to produce an Expert as witness on her behalf. When she is facing such a serious enquiry, it is not expected of such an employee to coolly and calmly consider the case and to put all necessary questions which are expected in such proceedings. A number of documents are also involved. Lord Denning, M.R. in a leading case of Pett V. Grayhound Racing Association Ltd., (1968) 2 All ER 545, observed :-
"........ I should have thought, therefore, that when a Man's reputation or livelihood is at stake, he not only has a right to speak by his own mouth. He has also a right to speak by Counsel or Solicitor...."
The law laid down in Pett's case (supra) has been followed by our Supreme Court in C.L. Subramaniam v. The Collector of Customs, Cochin, AIR 1972 SC 2178. Similar view was also taken by the Supreme Court in The Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni & Ors., AIR 1983 SC 109.
6. My attention was, however, pointed out by the learned Counsel for the respondents to a decision of the Supreme Court in the case of Krishna Chandra Tandon v. The Union of India, AIR 1974 SC 1589. In that case, some assessment order were passed by the Appellate Income-Tax Officer. Departmental proceedings were instituted against him. He made an application, permitting him to engage an Advocate. That application was turned down. When the matter went to the Supreme Court, it was argued on his behalf that the prayer was wrongly refused. It was contended that having regard to the intricacies of the case, as also the ill - health of the petitioner, assistance of the Advocate ought to have been given so as to enable him to put his case effectively. Denial of assistance of lawyer resulted into non-affording of reasonable opportunity of being heard and the action of rejecting the application, confirmed by the High Court was illegal. Repelling the contention and conferring the order passed by the High Court, the Honourable Supreme Court observed :-
".... The appellant was not entitled under the Rules to the assistance of an Advocate during the course of the enquiry. The learned Judges were right in pointing out that all that the appellant had to do in the course of the enquiry was to defend the correctness of his assessment orders. Clear indications had been given in the charges with regard to the unusual conduct be displayed in disposing of the assessment cases and the various flaws and defaults which were apparent on the face of the assessment records themselves. The appellant was the best person to give proper explanations. The circumstance in the evidence against him were clearly put to him and he had to give his explanation. An Advocate could have hardly helped him to this. It was not a case where oral evidence was recorded with reference to accounts and the petitioner required the services of a trained lawyer for cross-examining the witnesses. There was no legal complexity in the case. We do not, therefore, accede to the contention that the absence of a lawyer deprived the appellant of a reasonable opportunity to defend himself..."
The Counsel for the respondent contended that, in the instant case also, allegation have been levelled against the petitioner. The petitioner is the best person to deny them to put forward her defence in connection with such entries. The case, is therefore, directly covered by the ratio decidendi laid down by the Supreme Court in Krishna Chandra's case (supra). I am afraid the ratio decidendi laid down in the above case instead of supporting in the case of the respondent supports the petitioner. In that case, the orders were passed by the appellant and, therefore, he was the best person to say something about those orders. In the instant case, that is not the position. Various documents and account books have also been referred. It is, therefore, necessary on the part of the petitioner to get help of an Expert. Again paragraph 17 itself, on which reliance is placed by the respondent, in no uncertain terms states that, it was not a case where oral evidence was recorded with reference to accounts and the petitioner required the services of a trained lawyer for cross-examining the witnesses. In the instant case, that will be the position. In fact, looking to audit objection, it is clear that the so-called irregularities had come out. Therefore, if the petitioner wants to put forward her case, the deposition alone is not enough. She must have to effectively cross-examine the witnesses and may be that, she may have to put an Expert as her witness. Again, considering the fact that some allegations have also been levelled against the Bank Manager, and that even against the Bank Manager, some enquiry is instituted. It was also expected of the authority to apply its mind as to whether her grievance or her apprehension that she might be made a scapegoat is or is not well-founded. Ultimately, as it is well established, justice should not only be done, but manifestly and undoubtedly be seen to be done and if legal assistance will be denied to the petitioner, it may be that justice may be done, but there may be apprehension in the mind of the petitioner that justice might be done to her. Thus, taking into account the totality of the facts and circumstances of the case, in my opinion, the Authority has committed an error of law apparent on the face of the record, in rejecting the application of the petitioner to be represented through a lawyer. The said action, therefore, requires to be interfered with by this Court.
7. In the result, the petition is allowed, the letter dated October 9, 1995, addressed by the Chairman and Disciplinary Authority of respondent No. 1 Bank is quashed and set aside. It is directed that the respondent authorities will allow the petitioner to be represented through a lawyer. It is therefore, clarified that the petitioner will not cause any delay because of non-availability or otherwise of her Advocate. She will co-operate with the hearing, as expeditiously as possible. It is also clarified that it is open to the respondent authorities either to engage an Advocate as Presenting Officer or to appoint any person, who has legal training or well versed in law. Rule is made absolute to the above extent, with no order as to costs.
8. Rule made absolute.