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Chandra Prakash Gupta v. Nideshak (Kshetriya Gramin Bank) & Ors. - WRIT - A No. 75265 of 2005  RD-AH 7649 (16 December 2005)
- Lawyer- As a defence nominee in D.E. A.F.R.
COURT NO. 34
CIVIL MISC. WRIT PETITION NO. 75265 OF 2005
Chandra Prakash Gupta ------ Petitioner
Nideshak (Kshetriya Gramin Bank), & 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 issuing directions to the respondents to permit the petitioner to engage a legal practitioner to defend him in departmental proceedings.
The facts and circumstances giving rise to this case are that petitioner, who was appointed on the post of Field Officer in 1982, has been served with the charge-sheet dated 16.8.2004 contending the allegations that he did not observe the responsibility of his post and committed serious irregularities jeopardising the interest of the Bank and made recommendations for the undeserving loans. It may be pertinent to mention here that prior to the initiation of the disciplinary proceedings by issuing the charge-sheet dated 16.8.2004, an F.I.R. had also been lodged against the petitioner on 20.5.2003, and the Crime Case No. 442 of 2003 is still pending. Petitioner made an application under the provisions of Regulation No. 43 of the Kisan Gramin Bank, Budaun Revised Officer and the Employees' Service Regulations, 2000 (hereinafter called the Regulations), which permits the representation of the delinquent employee by the professional lawyer, if the competent authority so permits. However, his application was rejected vide order dated 30.7.2005 observing that he can take the services of any Bank employee for that purpose. The petitioner being aggrieved against the order dated 30.7.2005 preferred the appeal, which has also been rejected vide order dated 28.11.2005 by the respondent no. 2. Hence this petition.
Shri U.C. Mishra, learned counsel appearing for the petitioner has submitted that initiation of the criminal prosecution as well as the disciplinary proceedings is at the behest of one Shri Narendra Nath Dwivedi, the then Branch Manager, against whom an order under Section 156 (3) Cr.P.C. has been passed by the Chief Judicial Magistrate, Budaun, and the said order has been passed by the Court on the basis of the deposition made by the petitioner as PW2. Thus, the whole proceedings are mala fides and rejection of the application of the petitioner for engaging a lawyer is arbitrary, unreasonable, and therefore, the orders passed by the respondent-authority are liable to be quashed.
We have considered the submissions made by Shri U.C. Mishra, learned counsel for the petitioner, but we are not convinced that the disciplinary proceeding or the criminal prosecution has been launched against the petitioner at the behest of said Shri Narendra Nath Dwivedi, nor such averments can be taken into consideration as he is not a party before us. More so, the order has been passed by the Court under Section 156 (3) Cr.P.C. on 10th May, 2005. While the F.I.R. has been lodged against the petitioner on 20.5.2003, the charge-sheet in disciplinary proceedings had been issued on 16.8.2004, i.e., much before the passing of the order by the Court. Shri Narendra Nath Dwivedi is merely a Branch Manager, and thus, it is difficult to assume that he is so powerful that he could get the petitioner involved in those proceedings and the competent authority was acting at his behest. As he has not been impleaded as a party, allegations of mala fides cannot be taken into considerations. (Vide State of Bihar & Anr. Vs. P.P. Sharma, I.A.S. & Anr, 1992 Suppl (1) SCC 222; Dr. J.N. Banavalikar Vs. Municipal Corporation of Delhi & Anr., AIR 1996 SC 326; All India State Bank Officers Federation & Ors Vs. Union of India & Ors., JT 1996 (8) SC 550; I.K. Mishra Vs. Union of India & Ors., (1997) 6 SCC 228; Federation of Officers Association Vs. Union of India & Ors, 2003 AIR SCW 1764).
The issue involved herein is no more res integra as the same has been considered by the Courts time and again.
In N. Kalandri & Ors. Vs. M/s Tata Locomotive & Engineering Ltd., AIR 1960 SC 914; and the Dunlop Rubber Co. (India) Ltd. Vs. Their Workmen, AIR 1965 SC 1392, the Hon'ble Supreme Court held that in domestic enquiry, right of the delinquent employee of being represented by a Lawyer or other employee would depend upon the Certified Standing Orders of the Employer or the Rules applicable in such a case. There is no right to representation as such unless the company, by its Standing Order, recognised such right.
In C.L.Subramaniam Vs. The Collector of Customs, Cochin, AIR 1972 SC 2178, the Hon'ble Supreme Court held that right of being represented by a lawyer had to be considered in the light of the Statutory Rules. In that case, the Court dealt with the provisions of Sub-rule (5) of the Central Civil Services (Classification, Control & Appeal) Rules, 1967, which provided as under:-
"The Disciplinary Authority may nominate any person to present the case in support of the charges because the Authority enquiring into the charges, the Government servant may present his case with the assistance of any Government servant approved by the Disciplinary Authority, he may not engage a legal practitioner for the purpose unless the person nominated by the Disciplinary Authority, as aforesaid, is a legal practitioner or unless the Disciplinary Authority, having regard to the circumstances of the case, so permits." (Emphasis added).
In the said case, the representative of the employer though was not a legal practitioner but was a legally trained prosecutor. The Hon'ble Supreme Court came to the conclusion that as the employer's case was handled by the trained prosecutor, the delinquent should have been allowed to be represented by the lawyer for the reason that in such circumstances the cause of the delinquent may seriously be prejudiced and it may amount to denial of reasonable opportunity to defend himself. The Court further held that such an opportunity may be provided when a person is charged with the breach of the rule entailing serious consequences, and is not likely to be in a position to present his case as best as it should be. The accusation against the appellant threatened his very livelihood. Any adverse verdict against him was bound to be disastrous to him as it had proved to be. In such situation, he cannot be expected to act calmly with deliberation. That is why, rule 15 (5) has provided for representation of the Government servant charged with dereliction of duty or with contravention of the rule by another Government servant and in appropriate cases by a legal practitioner.
In H.C. Sarin Vs. Union of India & Ors., AIR 1976 SC 1686, while interpreting the provisions of Rule 1730 of the Railways Establishment Code, the Apex Court took aid of the notes attached to the said Rules and held that in absence of the Statutory provision, the delinquent was not entitled for the assistance of a lawyer. While deciding the said case, the Court placed reliance on the judgment in R Vs. Secretary of State for the Home Department Ex-parte Mughal, (1973) 3 All ER 796, where it had been held as under:-
"The rules of natural justice must not be stretched too far. Only too often the people who have done wrong seek to invoke ''the rules of natural justice' so as to avoid the consequences."
In Sunil Kumar Banerjee Vs. State of West Bengal & ors., AIR 1980 SC 1170, the Supreme Court considered the similar issue and observed as under:-
"The other circumstances were that (Enquiry Officer) did not permit the appellant to engage the lawyer and that he allowed the Presenting Officer to introduce extraneous matters. The rule gives a discretion to the Enquiry Officer to permit or not to permit a delinquent officer to be represented by a lawyer. In the present case, the appellant cross-examined the prosecution witnesses and also examined the defence witnesses. Thereafter when the matter was posted for argument and was adjourned at least once at the instance of the appellant, the appellant came forward with an application seeking permission to engage a lawyer. The Enquiry Officer rejected the application and noticed that it was made at a very belated stage. We think, he was right in doing so; nor is it possible for us to infer bias from the circumstances that the Enquiry Officer did not allow the appellant to engage the lawyer. We cannot conceive of any prejudice resulting to him by denial of a lawyer."
In Board of Trustees of Port of Bombay Vs. Dilipkumar Raghavendranath Nadkarni & ors., AIR 1983 SC 109, the Apex Court held that fair play in action requires that in a domestic inquiry, when the delinquent officer is pitted against a legally trained mind and if he seeks permission to appear through a legal practitioner, the refusal to grant this request would amount to denial of a reasonable opportunity to defend himself. The Court was interpreting the provisions of regulation 12 (8) of the Bombay Port Trust Employees Regulations, 1976, which was amended providing the assistance of a lawyer during pendency of the inquiry.
In Bhagat Ram Vs. State of Himalchal Pradesh & ors., AIR 1983 SC 454, the Apex Court examined the issue and came to the conclusion That delinquent employee should not be at a comparative disadvantageous position when compared to the Disciplinary Authority represented by the Presenting Officer of a very high rank or much superior from the delinquent. The test to determine whether reasonable opportunity is given or not, is to be determined/considered whether the employee himself was able to understand as what was the charge against him and was able to defend himself.
In J.K. Aggarwal Vs. Haryana Seeds Development Corporation Ltd. & ors., AIR 1991 SC 1221, the Apex Court held as under:-
"It would appear that in the inquiry, the Respondent-Corporation was represented by its personnel and Administrative Manager who is stated to be a man of law. The rule itself recognizes that where the charges are so serious as to entail a dismissal from service the inquiry authority may permit the services of a lawyer. This rule vests discretion. In the matter of exercise of this discretion one of the relevant factors is whether there is likelihood of the combat being unequal entailing a miscarriage or failure of justice and a denial of a real and reasonable opportunity for defence by reason of the appellant being pitted against a presenting officer who is trained in law......... On a consideration of the matter, we are persuaded to the view that the refusal to sanction the service of a lawyer in the inquiry was not a proper exercise of the discretion under the rule resulting in a failure of natural justice; particularly, in view of the fact that the Presenting Officer was a person with legal attainments and experience. It was said that the appellant was no less adept having been in the position of a Senior Executive and could have defended, and did defend, himself competently; but as was observed by the learned Master of Rolls in Pett's case that in defending himself one may tend to become ''nervous' or ''tongue tied'. Moreover, appellant, it is claimed, has had no legal back-ground. The refusal of the service of a lawyer, in the facts of this case, results in denial of natural justice."
In Crescent Dyes and Chemicals Ltd. Vs. Ram Naresh Tripathi, (1993) 2 SCC 115, the Apex Court held as under:-
"A delinquent appearing before the Tribunal may feel that the right to representation is implied in the larger entitlement of a fair hearing based on the rule of justice. He may, therefore, feel that refusal to be represented by an agent of his choice would tantamount to denial of natural justice. Ordinarily, it is considered desirable not to restrict this right of representation by counsel or an agent of one's choice, but it is different thing to say that such right is an element of principles of natural justice and denial thereof would invalidate the inquiry. Representation through counsel can be restricted by law."
The Court further held that it seems 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 should be conceded.
In Bharat Petrolium Corporation Ltd. Vs Maharashtra General Kamgar Union & Ors. AIR 1999 SC 401, the Hon'ble Supreme Court, after considering this issue in detail and after considering a large number of its judgments, held as under:-
"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. The right to representation is available only to the extent specifically provided for in the Rules."
Similar view has been reiterated by the Hon'ble Supreme Court in CIPLA Ltd. & ors. Vs. Ripu Daman Bhanot & Anr., AIR 1999 SC 1635.
Rule 16 (5) of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 reads as under:-
"The Disciplinary Authority may nominate any person to present the case in support of the charges before the authority inquiring into charges (hereinafter referred to as the Inquiring Authority). The Government servant may present his case with the assistance of any other Government servant (or retired Government Servant) approved by the Disciplinary Authority, but may not engage a legal practitioner for the purpose unless, the person nominated by the Disciplinary Authority is a legal practitioner or unless the Disciplinary. Authority, having regard to the circumstances of the case, so permits."
While interpreting the said provisions, in State of Rajasthan Vs. S.K. Dutt Sharma, 1993 Supp (4) SCC 61, the Hon'ble Apex Court held that the delinquent could not claim the assistance of the lawyer as a matter of right. More so, the gravity of the charges should also be taken into consideration in such a case as to whether the delinquent would be able to contest the charges.
While interpreting the said rule in case if Judicial Officers, a Division Bench of the Rajasthan High Court in Ravindra Nath Vs. State, 1986 RLR 757, held that the Presenting Officer who is directly recruited to the RHJS from the bar stands on a better footing than a judicial officer who was promoted to the RHJS from the subordinate judiciary, in the matter of competence. In case the petitioner felt that a directly recruited judicial officer would be in a better position to represent his case he should have requested the disciplinary authority to appoint such an officer as the defence nominee. It cannot be said that the disciplinary authority has committed an error in rejecting the application of the petitioner to engage a legal practitioner and that the said refusal of the disciplinary authority to permit the petitioner to engage a legal practitioner has caused any material prejudice to the petitioner in defending himself.
A Division Bench of the Rajasthan High Court in Ugam Raj Bhandari Vs. State, 1979 WLN 737, held that where Presenting Officer was a District Judge and Assisting Officer was a Civil Judge of 12 years standing, held no prejudice was caused in refusing to engage a lawyer.
In Indian Overseas Bank Vs. Indian Overseas Bank Officer's Association & Anr., (2001) 9 SCC 540, a similar view has been reiterated by the Hon'ble Supreme Court observing that no such claim can be made as a right, however, it may be examined as not permitting the assistance of the lawyer, the cause of the delinquent is going to be prejudiced and adversely affected as the Charged Officer may not be able to effectively defend himself.
Even otherwise, unless in a given situation, the aggrieved party makes out a case of prejudice or injustice, mere infraction of law will not vitiate the order/inquiry/selection.
In view of the above the law can be summarised that, claim to have the legal assistance of a trained lawyer cannot be claimed as a matter of right. Whether the delinquent can ask for it depends upon the Statutory Rules/Standing Orders, applicable in the case. More so, the competent authority has to examine as to whether the delinquent employee would be able to defend himself properly, and for that purpose, it is relevant to examine as what is the gravity of the charges, and what kind of legal issues are involved.
Another point of paramount consideration for the authority to consider is, as who is the presenting officer on behalf of the employer. If he is a trained lawyer or a law officer, or any person having good legal acumen, it may not be possible for the delinquent to defend himself. More so, if the presenting officer is of a very high rank and the delinquent belongs to the lower category of the service, he may not be able to put his case freely, and it further requires to be considered that if the lawyer's assistance is not provided, as to whether the delinquent employee's cause is going to be prejudiced or adversely affected.
The instant case requires to be considered in the light of the aforesaid settled legal propositions.
The provisions of the aforesaid Regulation 43 reads as under:-
"Restriction of engagement of a legal practitioner- for the purpose of Enquiry Officer or employee shall not engage a legal practitioner without prior permission of the competent authority."
It empowers the competent authority to permit the assistance of a lawyer in the light of the aforesaid settled legal propositions. The disciplinary authority as well as the appellate authority has rejected the application of the petitioner for assistance of the lawyer. However, the delinquent employee has been given liberty to seek assistance of any employee of the Bank. The petitioner is working in the Bank as a Field Officer since 1982. The charges framed against him in the disciplinary proceedings are of not very grave nature, as allegations are only not working with sincerity and responsibility, while making recommendation for grant of loans. The officer representing the employer is merely an Inspector of the Bank. Thus, he is neither a lawyer nor a legally trained person, nor it has been stated that he is a person of legal acumen, in strict legal sense, nor there is much difference in them in the cadre of hierarchy that petitioner may not be able to represent his case in his presence.
In spite of our repeated queries, Shri Mishra, learned counsel appearing for the petitioner could not point out as to why the petitioner feels to be not competent to defend himself. A parrot like reply came repeatedly that the petitioner does not want to defend himself. That is all. Such a plea, if permitted to be taken, is not enough to meet the requirement of law.
We are of the considered opinion that petitioner's cause is not going to be prejudiced or adversely affected by not giving him the assistance of the lawyer. The Competent authority had given him liberty to take assistance of any Bank employee, and he can still avail it.
The supplementary affidavit filed today in the Court reveals that the Bank employees, whose names were given by the petitioner to be his defence nominee, have refused to do so only and only on the ground that they would not be able to spare two days in a week, as the inquiry had been fixed for two days in every week, i.e., Friday and Saturday. It is not his case that nobody was ready to defend. There is nothing on record to show that the petitioner ever requested the competent authority to fix the inquiry only for one day in a week.
In such a fact-situation, no case is made out for interference in discretionary writ jurisdiction. Petition is devoid of any merit and is accordingly dismissed.
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