IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30/08/2002 CORAM THE HON'BLE MR.JUSTICE E.PADMANABHAN WRIT PETITION NO. 5969 of 2002 and WRIT PETITION NO. 5970 of 2002 and W.P.No. 5971 of 2002 AND WPMP.Nos: 8263 to 8367 2002 and WVMP.No:629 of 2002 K.Jagannathan ..Petitioner -Vs- 1. Indian Overseas Bank rep. by the Dy General Manager Disciplinary Authority, Conduct and Disciplinary Action cell Central Office, 763, Anna Salai, Chennai-2 2. A.S.Shanmuganathan The Presenting Officer Indian Overseas bank Conduct and Disciplinary Action cell Central Office, 763, Anna Salai, Chennai-2 3. K.Deivasigamani The Enquiry Officer, Indian Overseas bank Conduct and Disciplinary Action cell Central Office, 763, Anna Salai, Chennai-2 ..Respondents For petitioner:: Mr.K.Chandru Senior Counsel for Mr.S.Jayakumar For respondents: Mr.N.G.R.Prasad Writ Petitions are filed under Article 226 of The Constitution of India praying for the issue of a writ of Certiorarified Mandamus, as stated therein. :O R D E R The petitioner in W.P.No.5969 of 2002 has prayed for the issue of a writ of certiorarified mandamus calling for the records o the first respondent herein in his proceedings dated 7.2.2002 bearing Ref.NO.DO:DGM:(MRK):DAL:061:2002 and quash the same and consequently direct the 1st respondent to permit the petitioner to have the assistance of a lawyer or legally trained person in the enquiry to be conducted by the 2nd respondent. 2. The petitioner in W.P.No.5970 of 2002 has prayed for the issue of a writ of certiorarified mandamus calling for the records o the first respondent herein in his proceedings dated 7.2.2002 bearing Ref.NO.DO:DGM:(MRK):DA:061:2002 and quash the same and consequently direct the 1st respondent to make available to the petitioner or accord permission to visit the branch and Regional Office for perusing the records to submit explanation. 3. The petitioner in W.P.No.5969 of 2002 has prayed for the issue of a writ of certiorarified mandamus calling for the records o the first respondent herein in his proceedings dated 7.2.2002 bearing Ref.NO.DO:DGM:(MRK):DAL:061:2002 and quash the same and consequently direct the 1st respondent to order for a joint enquiry against other similarly placed co employees of the petitioner who have been issued with charge sheets on similar lines of the petitioner for the enquiry to be conducted by the 2nd respondent. 4. In the above Writ Petitions notice was ordered by K.P. Sivasubramaniam,J., while granting interim stay of all further proceedings dated 26th February 2002. The respondents have been served and they have entered appearance through Mr. N.G.R.Prasad. The respondents moved WVMP NO.629 of 2002 to vacate the order of interim stay. 5. Heard Mr.K.Chandru, learned senior counsel appearing for Mr.S. Jayakumar for the petitioner in all the writ petitions and Mr.N.G.R. Prasad, learned counsel appearing for the respondents in all the writ petitions. With the consent of either side, the writ petitions were taken up for final disposal when the application for stay came up for confirmation besides the application to vacate the interim stay. 6. All the above writ petitions were heard together as the contention advanced in all the writ petitions is identical. It would be sufficient to refer to the facts in one of the writ petition. The petitioner in W.P. No.5969 of 2002 was appointed in the first respondent bank on 10.4.1981 and confirmed on 10.10.1981. The petitioner worked at Suramangalam Branch during December, 1997 to June 1999. During the said posting, certain acts of omission and commission were alleged against the petitioner by the first respondent bank. The first respondent issued a charge sheet dated 2.9.2000. The petitioner was called upon to show cause in writing as to why disciplinary action should not betaken against him. The petitioner sought for extension of time to submit his explanation while seeking opportunity to inspect the documents. However, the respondents directed the petitioner to file his objections with the available materials within ten days. On 23.1 .2000, the petitioner sent a reply stating that without his being permitted to peruse the relevant documents/files relating to the alleged transaction, he will not be in a position to give his reply to the charge sheet dated 2.9.2000. Without granting time and without affording opportunity the first respondent ordered for enquriy to be conducted and appointed respondents 2 and 3 as the Presenting Officer and Enquiry Officer respectively by letter dated 21.1.2001. the first respondent had proceeded further with the enquiry without affording opportunity. By letter dated 9.5.2001, the petitioner addressed the respondents for permission to peruse the documents/files to give a meaningful reply to the charge memo. The petitioner also requested to conduct a joint enquiry since his colleagues were working with him and who are similarly placed were also being proceeded with the charge sheets for identical alleged charge of misconduct. On 4.2.2002, the petitioner requested the respondents to permit him to avail the assistance of an Advocate/legally trained person in view of the complexity of the issue involved and the seriousness of the charges framed against him, which will have direct relevance in respect of his service. The petitioner relied upon clause 5.21 of the Shastri Award. The respondent has not provided proper opportunity and the third respondent fixed the date of enquiry at the Branch premises. The petitioner has also been permitted to peruse the documents. The enquiry is posted on 27.2.2002. If the enquiry is proceeded, the petitioner apprehends that he will not get justice as it would be a pre determined disciplinary proceedings. The attitude of the respondents is amply proved by the letter of the respondent dated 9.2.2002 refusing to permit the petitioner to have the assistance of a Lawyer to defend him in the enquiry. Aggrieved by the rejection of the request dated 9.2.2002, the present writ petition has been filed. 7. W.P.No.5971 of 2002 has been filed by the very same petitioner seeking for the issue of a writ of certiorarified mandamus to call for the records of the first respondent dated 7.2.2002, quash the same and consequently direct the first respondent to order a joint enquiry against the petitioner and other similarly placed employees of the petitioner who has been issued with the charge sheet on similar lines of the petitioner for the enquiry to be conducted by the second respondent. Mr.K.Chandru, learned senior counsel appearing for the writ petitioner in this writ petition represented that this writ petition is not pressed as the proceedings against other co employees have already been completed and that he only addressed for orders in W.P.No.5 969 of 2002. In the light of the above statement made by Mr.K. Chandru, learned senior counsel for the petitioner, the writ petition No.59 71 of 2002 is dismissed. 8. In W.P.No.5970 of 2002, the very same petitioner K.Jagannathan, has prayed for the issue of a writ of certiorarified mandamus calling for the records of the first respondent in his proceedings dated 7.2.2002 bearing Ref.No.DO:DGM(MRK):DA:061:2002, quash the same and direct the first respondent to make available to the petitioner or accord permission to visit the Regional office to peruse the records and to submit his explanation. Inn this writ petition also no argument was advanced by Mr.K.Chandru and the learned senior counsel advanced arguments only in W.P.No.5969 of 2002. It is clear that the petitioner is not also pressing W.P.No.5970 of 2002 and therefore W.P.No:5970 of 2002 is also dismissed. 9. On behalf of the first respondent a counter has been filed. The first respondent while setting out details and service particulars of the petitioner has stated that between December 1997 to June 1999 when the petitioner was working in Suramangalam branch, Salem certain irregularities were noticed and he was placed under suspension on 18 .8.1999. The first respondent bank has also lodged a criminal complaint against the petitioner for alleged defraud and misappropriation of bank's funds to the tune of Rupees One Crore. The petitioner had made himself scarce. On 2.9.2000 a charge sheet was issued to the petitioner. The substance of the charge is that the petitioner fraudulently and dishonestly had passed credits to his account, his wife's account, brother-in-law's accounts maintained at UCO Bank, Salem through clearing from Indian Overseas Bank, Suramangalam Branch without debit to the respective accounts. AS a result of such acts on the part of the petitioner, the first respondent bank has lost to the tune of Rupees One Crore. All the staff involved in the alleged deal were served with the charge sheets. The petitioner is being charged with defrauding and making wrongful gain out of the Bank's money and in respect of others, the emphasis being negligence and non verification of the records properly. It is not necessary to hold a joint enquiry as separate charge sheets were framed against others. The petitioner refused to give explanation to the charge, unless the documents are permitted to be perused. The petitioner persisted with the said stand. The petitioner refused to submit his objection or explanation and he was informed that an enquiry has been ordered. The first respondent appointed an enquiry officer and presenting officer and the enquiry officer fixed the date for enquiry. The petitioner was informed that he can peruse the documents before 15.2.2002. The enclosure to the charge sheet also was served through the Branch besides it was contended that the same were furnished along with the charge memo. It is well open to the petitioner to come and peruse the documents mentioned in the list. 10. The petitioner's demand for assistance of a lawyer is not justified as the bipartite settlement provides a lawyer's assistance only with the permission of the Bank. The petitioner has no absolute right to engage a lawyer. The facts in this case are all simple relating to the debits, credits and day to day banking transaction of which the petitioner is well aware of. The presenting officer and enquiry officer are officers of the bank and they are neither legally trained, nor law graduates. The Apex Court in Harinarayan Srivatsav Vs. United Commercial bank and another reported in 197 (2) LLJ 620 held that when the allegations of the charge sheet are very simple and not complicated, right of representation through lawyer can be denied. The refusal to engage an Advocate is not violative of the principles of natural justice. 11. The petitioner cannot seek for assistance of a legal practitioner on the ground that no person in the Bank is willing to come and defend him. If the petitioner is to be allowed, then every other employee will demand assistance of a lawyer. It is difficult to believe that none of the co employees is willing to assist him. AS per the bipartite agreement entered into by the respondent bank with the majority Union the petitioner is entitled to have ;the assistance of a defence representative from within ;the Bank and that has never been denied to him. It is enough if he is afforded an opportunity to peruse the documents at the stage of enquiry which the petitioner has availed. The grievance regarding payment of subsistence allowance has been raised in W.P.133841 of 2001 an the same had been disposed of by order dated 3.8.2001. There is no justification to continue the order of interim stay in respect of the departmental enquiry proceedings and the order of interim stay has to be vacated. 12. Heard Mr.K.Chandru, learned senior counsel appearing for the petitioner and MR.N.G.R.Prasad, learned counsel appearing for the respondents 1 and 2. The points and substantial contentions advanced in W.P.No.5969 of 2002 being: "Whether the refusal to permit the petitioner to have the assistance of a legal practitioner/Advocate to assist him in the departmental proceedings is illegal, contrary to terms of bipartite settlement? (ii) Whether on facts the petitioner is entitled to have the assistance as requested by him as the imputations of misconduct being complicated and grievous warrants the assistance of a legal practitioner?" 13. The learned senior counsel appearing for the petitioner referred to the bipartite settlement dated 10th April 2002 and Clause 12 of the settlement is being pressed into service as according to the learned senior counsel, the petitioner is entitled to have the assistance of a lawyer and the first respondent should have granted permission as the charges/misconducts alleged or imputations detailed are grave in nature, While, Mr.N.G.R.Prasad, learned counsel appearing for the respondents stoutly opposed the said contention and contended that the charges are simple in nature and the petitioner, an employee of the Bank is well conversant with the banking transactions and the entries made in the books of accounts maintained in the Branch and therefore he is not entitled to have the assistance of a legal practitioner and he has been rightly denied permission to have the assistance of a lawyer, but he was permitted to have the assistance of a co employee or a representative of a registered trade union of the Bank. The respondent denies the averment that no trade union representative is willing to come forward to assist the petitioner after his suspension. There is no reason at all to disbelieve the version or the statement of the petitioner that no trade Union representative is willing to come forward to assist the petitioner and only on that basis further arguments advanced by the counsel on either side have to be considered. 14 . Clause 12 of the settlement reads thus:- "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 per mitted 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 Organization to which such union is affiliated. OR (iii)with the Bank's permission, by a lawyer. He shall also be given a hearing as regards the nature of the proposed punishment in case any charge is established against him." 15. As seen from above clause in the bipartite settlement the petitioner shall be permitted to be defended by a representative of a registered trade union of bank employees of which trade union he is a member or if he is not a member of any trade union of bank employees on the date of first notified for commencement of the enquiry by a representative of a registered trade union in which he is employed or at the request of the union by a representative of a State Federation or All India Organisation to which such Union is affiliated, or with the bank's permission the delinquent shall be permitted to be defended by a lawyer. 16. According to Mr.K.Chandru when no union representative or trade union or representative falling under Clause 12(a)(i) (x)(y) or (ii) is willing to come forward and when the charges are complicated and grave in nature and the imputations have grave implication, the respondents ought not to have rejected the request for permission to have the assistance of a lawyer. As seen from the order impugned the first respondent has rejected the petitioner's request in the following lines: "Regarding defending the case, you may have the assistance of representative of a registered trade union as per the Bipartite settlement. Considering the facts of the case, I am unable to consider your request to have the assistance of an advocate/legally trained person to present your case in the enquiry" 17. In other words the request of the petitioner has been rejected on the premise or on the view that the facts of the case do not warrant the assistance of a legally trained person. Mr.K.Chandru, learned senior counsel also contended that respondents 2 and 3 are officers in the respondent Bank who are in charge of Conduct and Disciplinary Action Cell, Central Office, and therefore they have rich experience even though they may not be legally trained or they may not posses the legal qualification and it is rather too difficult for the petitioner to face such experienced officers. Mr.Prasad, learned counsel for the respondents also points out that the respondents 3 and 4 are not legally qualified persons, nor they are legally trained, but they are bank officers and therefore it is not necessary to grant permission and no interference is called for with the order declining to grant permission to have assistance of a lawyer. Mr.Prasad, learned counsel contended that the imputations or charges are simple and hey are not complicated while Mr. Chandru, learned senior counsel contended that the charges are grave, complicated and the implications as well as ramifications or the imputations being grave in nature and consequences will be serious, the petitioner should have been granted permission. Hence, it has to be examined whether the charges are simple in nature? or whether the charges are grave or complicated? or whether it requires the assistance of a legal practitioner for the petitioner being defended? 18. Taking up the first point this court has to examine as to whether the charges framed are simple or complicated or grievous. It is essential to refer to the imputations and they read as hereunder:- "You have fraudulently introduced the following five S.B. Acounts at Suramangalam Branch: R.Pushpammal (S.B.14000) S.Periaswamy (S.B.1478 3), R.Radhakrishnan (15215), V.Rajagopal (S.B.16090) and R.Sadasivam (S.B.16268); You had fraudulently and dishonestly obtained cheques bearing Nos.0660451, 0660475, 0007431, and 0007440 issued by the S.B. Account holders 14783 and 15215; You have fraudulently got the cheques issued by the S.B.account holder 14783 and S.B.14584 favouring your wife and brother-in-law; You got these cheques sent for collection through UCO Bank, Salem where you were maintaining SB A/c.7629 apart from your wife R.Pushpammal and brother-in-law R.Sadasivam were maintaining S.B.Account Nos.7763 and 7823 respectively; On receipt of those cheques at Suramangalam branch through clearing, the same were stealthily removed and destroyed by you without debiting to the respective accounts but got credits passed on to accounts maintained by your wife and your brother-in-law with UCO Bank, Salem and thus you had defrauded the Bank to the tune of Rs.17 lakhs covered by ten cheques; xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx You have fraudulently got the cheques issued from R.Radhakrishnan S. B.A/c No.15215 at Suramangalam branch favouring your wife and brother-in-law and you have on various dates got presented the cheques totalling to Rupees ten lakhs in clearing through UCO Bank, Salem; On receipt of the cheques at Suramangalam Branch through clearing the cheques were stealthily removed and destroyed by you without the cheques being debited to the respective accounts but got credits passed on to accounts maintained by your brother in law, your wife and thus you have defrauded he Bank to the tune of Rs.10 lakhs; You have also fraudulently got the cheques issued by G.Savithri known to you presented cheques or Rs.8 lakhs and got it cleared through UCO Bank, Salem where your wife and brother-in-law were maintaining accounts and thus you have defrauded to the tune of Rs.8 lakhs, which cheques were stealthily removed. Identical imputations are made with respect to Savings Bank Account holders R.Radhakrishnan, S.Sumathi, K.Parthasarathy and it is alleged that to the tune of Rs. 43.52 lakhs; You have fraudulently got the cheques issued and he ha defrauded he Bank. So also by fraudulently obtaining the cheques from persons known to you have have defrauded to the tune of Rs.8.48 lakhs. Xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx Further, to avoid detection of the fraud/to cover up the fraud you have fraudulently, dishonestly made alterations/manipulations in the various books of accounts during the year 198 in respect of various S.B.Accounts Day Book. To avoid detection of fraud on 28.7.1998 you have manipulated Rs.20 lakhs in G.L. Balance book on 23.6.1998 by wrong arrival of totals; you have posted in the SB Progressive register for SB Ledger No.35 as Rs.5,33,985 instead of Rs.133985.85 on 13.4.1 998. So also posting in various other registers and ledgers; you have fraudulently altered the opening balance, closing balance and C.O summary to the tune of Rs.100 lakhs; you have fraudulently recorded the wrong figures in CO summary in respect of opening and closing of balances of CO accounts while preparing the CO summaries to cover up the fraud committed by you. Xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx The number of such frauds runs to 42; you have misused your official position and availed loans in the name of your close relatives for your benefit; you have also given to Soman David and S.Jagadish persons know to you U.S $8350 and got the same encashed in rupees through them on 15.12.1998 in influencing the Manager of Suramangalam Branch and also got issued encashment certificates in their names; you have caused damage to the properties of the Bank and thereby committed grave misconduct within the meaning of para 17.5(d) of the Bipartite settlement dated 14.12.19966 between the Bank and its workmen as amended upto date; the above acts are prejudicial to the interest o of the Bank and it is a misconduct. xx xx xx xx." 19. In the considered view of this court the charges are not simple or so simple as sought to be contended by Mr.Prasad, learned counsel appearing for the respondents, but they are not only complicated, but also grave in nature. Act of fraud, act of manipulation, fabrications of very many number of accounts, stealthily removing cheques and destruction of cheques are innumerable in numbers and acts of defrauding of substantial amount running to a crore of rupees cannot be stated as not grave and it is definitely requires legal assistance without which the petitioner though he is conversant with the banking transaction will not be in a position to defend himself, much less effectively. The petitioner is also facing criminal misconduct and prosecution is being continued. This court is inclined to sustain the contention of Mr.K.Chandru, learned senior counsel, that the charges are grave, complicated and it is not one or two instance or transaction, but it runs to hundreds and leading to substantial sum and it may if established warrant major punishment of dismissal or removal or alike. In respect of various accounts and dealings with various banks, besides fraud and destruction of records, manipulation of accounts and criminal intent as well. This court holds that the charges are not only grave but also complicated and the petitioner will not be in a position to defend himself effectively without the assistance of a lawyer. 20. As regards the second part of the legal contention that the petitioner is not entitled to legal assistance, learned counsel on either side relied upon various pronouncements. It is essential to refer to some of them at least. 21. In H.Srivatsav Vs. UCO Bank and another reported in 1997 II LLJ (SC) 218 the Apex Court held that denial of assistance of an Advocate is not violation of principles of natural justice as on the facts of that case the High Court held that the facts are not complicated and the assistance of an Advocate is not