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N.K.SRIVASTAVA versus DEPUTY GENERAL MANAGER PUNJAB NATIONAL BANK AND OTHERS

High Court of Judicature at Allahabad

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N.K.SRIVASTAVA v. Deputy General Manager Punjab National Bank And Others - WRIT - A No. 42226 of 2004 [2004] RD-AH 1077 (7 October 2004)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

COURT NO. 34

CIVIL MISC. WRIT PETITION NO. 42226 OF 2004

N.K. Srivastava       -------------    Petitioner              

    Versus.

Deputy General Manager,

Punjab National Bank,

Lucknow & Ors.       -------------  Respondents

_________

Hon'ble Dr. B.S. Chauhan, J.

Hon'ble Dilip Gupta, J.

(By Hon'ble Dr. B.S. Chauhan, J.)

This writ petition has been filed for quashing the order dated 14.9.2004 (Annex. 9 to the writ petition), passed by the respondent no.1, rejecting the application of the petitioner for providing the  assistance of a legal practitioner as a defence nominee and for quashing the supplementary charge-sheet.

The facts and circumstances giving rise to this case are that petitioner is an employee of the Punjab National Bank, Gumti No. 5, Kanpur City. He was served a charge-sheet on 31.5.2004, and a supplementary charge-sheet dated 10.6.2004. He moved an application for withdrawing the supplementary charge-sheet and permitting him the assistance of a legal practitioner which has been rejected vide impugned order dated 14.9.2004. Hence this petition.

Shri K.S. Rathor, learned counsel for the petitioner submits that there is no provision in the Statute for providing a supplementary charge-sheet. However, the submission made by the learned counsel for the petitioner has no merit, for the reason that even in a criminal trial, charges can be modified/altered/added/subtracted during the proceeding of the trial, and even in the disciplinary proceeding, there can be no bar in giving a supplementary charge-sheet, if the circumstances so require.

So far as the issue of appointing the legal practitioner as a defence nominee is concerned, it has been submitted by Shri Rathor that the petitioner required the services of a defence lawyer to defend him properly. Non-acceptance of his prayer amounts to violation of the principles of natural justice. Therefore, the impugned order denying to give assistance of a legal practitioner as defence nominee to the petitioner is liable to be set aside.

On the contrary, it has been submitted by Shri Tarun Varma,  learned counsel for the respondents that petitioner is a Deputy Manager in the Branch of the Punjab National Bank in Kanpur City. He is not a lay man. The Presenting Officer on behalf of the Department is neither a lawyer nor a Law Officer, nor an expert in law. Therefore, petitioner cannot claim that his case would be prejudiced if the services of the practising lawyer is not provided to him. The Regulation 6 (7) of the Punjab National Bank Officer Employees' (Discipline and Appeal) Regulations, 1977 (hereinafter called the Regulations 1977) does not permit the assistance of the lawyer in such circumstances. Thus, the relief sought for by the petitioner cannot be granted.

We have considered the rival submissions made by the learned counsel for the parties on this issue and perused the record.

Clause 7 of Regulation 6 of Regulations 1977 reads as under:-

"The officer employee may take 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."

The language of the aforesaid Regulations 1977 is crystal clear that services of a legal practitioner is permissible only in case the Presenting Officer appointed by the Disciplinary Authority is a legal practitioner. The issue involved herein is no more res integra; it has been considered time and again by the Hon'ble Apex Court.

In The Board  of Trustee of the Port of Bombay Vs.  Dilip Kumar  Raghavendranath Nadkarni & Ors., AIR 1983 SC  109;   and  Bhagat Ram Vs.   State  of Himachal Pradesh & Ors., AIR 1983 SC 454, it  has been held by the Hon'ble Supreme Court that a delinquent has  a right to be represented by an officer  of his  choice. The Hon'ble  Supreme Court placed reliance on its earlier judgments in  C.L. Subramaniam Vs. The Collector  of Custom, Cochin, AIR 1972 SC 2178, wherein it  had been held that when the Department was   being  represented  by   a trained Prosecutor, the delinquent must have been given  an opportunity to be represented by a  legal  practitioner to defend him, lest the scale would be weighed against him.

In Bhagat Ram (supra), the Hon'ble Supreme Court held as under:-

"Where the Department is represented  by Presenting Officer, it would be the right of  the delinquent officer   more particularly where  he  is  a  Class  IV Government Servant whose educational equipment  is  such as would lead  to  an inference that he may not be aware of the technical  rules  prescribed for  holding the inquiry,  that he is entitled to  be defended by another Government Servant of his  choice. If the Government  servant declines to avail of the opportunity, the inquiry   could  proceed. But if  the delinquent officer is not informed of his right and an over-all view of the inquiry shows that the   delinquent Government servant was at a comparative disadvantage compared to  the Disciplinary Authority represented by the Presiding Officer and as  in  the  present   case, a  superior officer, co-delinquent, is  also represented by an officer of his  choice to  defend him, the absence of any one to assist such a Government servant belonging to the lower echelons  of service  would unless it is so that  he had  not suffered any prejudice,  vitiate the inquiry."

In J.K. Aggarwal Vs. Haryana  Seeds Development Corporation Ltd.  & Ors., AIR 1991 SC 1221, the Hon'ble Apex Court placed reliance upon the judgments  in  Pett Vs. Greyhound Racing Association Ltd., 1969 (1) QB 125; Pett. Greyhound Racing  Association Ltd., (1970) 1  QB 46;  Pharmauticals  Society of Great Britain & Anr., Vs Dickson, 1970  AC  403 on  the  issue  and interpreted   the relevant   rule  observing  as under:-

"Where the charges are so serious as to entail  a  dismissal from  service,  the Enquiry Authority may permit the services of   a Lawyer.   This   rule   vests   a discretion.  In the matter of exercise of this  discretion,  one  of  the  relevant factors  is whether there is a likelihood of  combat  being unequal and  telling  a miscarriage  or failure of justice and a denial of real and reasonable opportunity for defence by reason of appellant being pitted against a Representing Officer who is  trained  in law.......  In  the  last analysis, a decision has to be reached to the   case  based  on   the   situational particulars  and the special  requirement of  the  justice  of  the  case.   It  is unnecessary, therefore,  to go into  the larger  question whether 'as a squeal to an   unadverse  verdict  in  a  domestic enquiry,  serious  civil   and  pecuniary consequences  are  likely  to  ensure  in order  to  enable a person so likely to suffer such consequences with a view  to give  him  a  reasonable  opportunity  to defend himself, on his request, should be permitted to  appear   through  a  legal practitioner."

In A.R.Singh, P.S.I., Mehmedabad Vs. District Superintendent of Police, Kheda & Ors., (1994) 2 SLR 747, a Division Bench of Gujarat High Court held that the defence assistance is permissible as per the statutory provisions and the Presiding Officer must permit the assistance of defence nominee as per the exigency and the wishes of the delinquent. However, that does not mean that the delinquent could act/demand "unreasonably and unrealistically." More so, complaint can be made, provided there is a substantial breach of the rules which resulted in manifest injustice or prejudice to the delinquent.

In H.C. Sarin Vs. Union of India & Ors., AIR 1976 SC 1686, the Hon'ble Supreme Court held that not providing the services of a lawyer to the delinquent in a domestic inquiry would not violate the principles of natural justice, nor denial to the delinquent, who was not entitled to the services of a lawyer, according to the statutory provisions, would amount to arbitrary exercise of power in this regard.

In N. Kalindi & Ors. Vs. M/s. Tata Locomotive and Engineering Co. Ltd., Jamshedpur, AIR 1960 SC 914, the Hon'ble Apex Court held that it will depend upon the statutory provisions as to whose assistance would be provided to the delinquent. If the Rules/Regulations do not provide even the assistance of other employee; it cannot be claimed as a matter of right. The Court held as under:-

"When the general practice adopted by domestic tribunals is that the person accused conducts his own case, we are unable to accept an argument that industrial dispute demands that in the case of inquiry into a charge-sheet of misconduct against a workman he should be represented by a member of his union. Besides, it is necessary to remember that if any inquiry is not otherwise fair, the workman concerned can challenge its validity in an industrial dispute.

Our conclusion, therefore, is that a workman against whom an inquiry is being held by the management, has no right to be represented at such inquiry 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."

In Cipla Ltd. Vs. Ripu Daman Bhanot & Anr., (1999) 4 SCC 188, a similar issue was considered and it was held that right to be represented by an advocate in the departmental proceeding can be restricted and regulated by the statute or by the service rules including the standing orders applicable to the employee concerned. A similar view has been reiterated in Bharat Petroleum Corporation Ltd. Vs. Maharashtra General Kamgar Union & Ors., (1999) 1 SCC 626.

In Crescent Dyes and  Chemicals Ltd. Vs. Ram Naresh Tripathi, (1993) 2 SCC 115, the Hon'ble Supreme Court considered the issue at length and held that ordinarily it is considered desirable not to restrict the delinquent's right to be represented by counsel or an agent of his choice but it is different thing to say that such a right is an element of the principles of natural justice and denial thereof would invalidate the inquiry. The right to be represented by counsel or agent can be restricted, controlled or regulated by statutes, rules regulations or standing orders. A delinquent has no right to be represented through counsel or agent unless the law specifically confers such a right upon him. The requirement of rules of industrial dispute in so far as the right of hearing of the delinquent is concerned, cannot and does not extend to a delinquent to be represented through counsel or agent.

In R. Jeevaratnam Vs. State of Madras, AIR 1966 SC 951, the Hon'ble Apex Court held that refusal to grant the help of a lawyer is to be examined on the touchstone of the doctrine of prejudice and it cannot be claimed in contravention to the statutory rules. In The Dunlop Rubber Co. (India) Ltd. Vs. Their Workmen, AIR 1965 SC 1392, dealing with a similar issue the Hon'ble Apex Court held that in a domestic inquiry, reasonable opportunity should be given to the delinquent employee to meet the charge framed against him, and it is desirable that in such an inquiry employee should be given liberty to be represented by a person of his choice if there is standing order against such a course being adopted and if there is nothing otherwise objectionable in the request made by him. But, in a case where the standing order of the employer company provides that in domestic inquiry, only a representative of a union which is registered under the Trade Unions Act and is recognised by the Company Act, there can be no denial of natural justice if the request of the workman, who insisted to be assisted by a representative of his own unrecognised union with the object of indirectly obtaining recognition to their union, is rejected.

In  view  of the aforesaid settled  legal propositions,  it  is not necessary that in  every case the   assistance  of   defence  nominee is necessarily permitted.  It depends upon the facts of an individual case. However, such facility is required  to  be  given where on  assessing situational  facts  the Authority comes  to  the conclusion  that the delinquent was likely to be in a comparatively  disadvantageous position if such facility is not provided for and it would prejudice his cause. More so, such an assistance cannot be claimed as a matter of right, nor in contravention of the statutory provisions or standing orders applicable to the employee is there.

The instant case requires to be examined in view of the aforesaid settled legal propositions. It has not been contended that the petitioner was not able to defend himself or present his case or he is a lay man or a class III or IV employee. He is a Deputy Branch Manager of the Punjab National Bank. The Presenting Officer of the department is not a man having special skill in law or a man of high legal acumen neither he is a law officer of the Bank nor a practising lawyer. Nor it is submitted by the learned counsel for the petitioner that the charges framed against the petitioner are so complicated that he is unable to understand the same and it would cause prejudice to him by not providing the lawyer's assistance to defend. The statutory provisions specifically bars the engagement of a lawyer as defence  nominee unless special circumstances exist. No such special circumstances have been brought to our notice which may warrant the assistance of a lawyer to defend the petitioner.

The petition is devoid of any merit, and accordingly, dismissed.

7.10.2004

AKSI


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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