Letters Patent Appeal No.863 OF 2002 ******* Against the order dated 26.6.2002 passed in CWJC no. 8766 of 2001. ******* RAMDEO SINGH-------------------------Appellant Versus SIWAN KSHETRIYA GRAMIN BANK & ORS---Respondents ******* For the Appellant : M/s Vinod Kanth & Ram Hriday Prasad For Respondents : Mr. Ajay Kumar Sinha ******* P R E S E N T THE HON'BLE MR. JUSTICE BARIN GHOSH THE HON'BLE MR. JUSTICE C.M.PRASAD Barin Ghosh & C.M. Prasad, JJ. In view of the pleadings culminating in by filing affidavits up to today, we think it would not be appropriate to proceed with the trial on evidence, inasmuch as it is now an accepted position that there were two persons by the name Mahesh Prasad Singh, one an active member of the Council of Indian 2 Trade Union and the other a lawyer, who is dead. According to the appellant, he wanted to engage the member of CITU as his counsel in the departmental proceeding. 2. The subject matter of the present appeal is a judgment and order rendered in a writ petition whereby the writ petition was dismissed. The subject matter of the writ petition was an order passed in a disciplinary proceeding initiated against the appellant upon issuance of a charge sheet. The charge sheet was replied by the appellant, when charges were dendied. The Enquiry Officer fixed a date for hearing. On the first date of hearing the appellant requested the Enquiry Officer to permit him to engage Sri Mahesh Prasad Singh, the member of CITU, as his defence counsel. The request was turned down holding out that an outsider cannot be engaged as defence 3 counsel. The request of the appellant to allow him to engage Sri Mahesh Prasad Singh was rejected on 16th January, 1997, and the enquiry was completed ex-parte on 07th February, 1997. The Disciplinary Authority accepted the report of the Enquiry Officer and by his order dated 11th March, 1997, dismissed the appellant from service. The appellant preferred an appeal before the appellate authority but the same was rejected by an order dated 24th September, 1997. Appellant then approached this Court in CWJC no. 11008 of 1997 when this Court, noticing that the appellate authority has failed to pass a reasoned order, quashed the same and remitted back the matter to the appellate authority. Thereupon the appellate authority once again rejected the appeal by his order dated 12th June, 2001, but while doing so did not at all address 4 itself to the grievance of the appellant that he was not permitted to defend himself before the Enquiry Officer without any just reason. Appellant once again approached this court in its constitutional writ jurisdiction. While dealing with the writ petition the writ court found, as a fact, that the request of the appellant to engage his defence counsel was rejected and no sooner such rejection was made the appellant filed a petition for time and the same was allowed but on the next date too the appellant applied for time. The court found that on the adjourned date the appellant did not turn up and, accordingly, the enquiry proceeded ex-parte. The writ court did not find substance in the grievance of the appellant that he was disallowed to be represented by some one, since the proposed 5 representative was not an employee of the Bank. 3. The rules have been produced before us, which debar engagement of a lawyer as defence counsel, but do not debar engagement of a non-employee of the Bank. That being the position of law by which the disciplinary proceeding as well as the Enquiry proceeding were governed, the Bank purported to contend in the counter affidavit filed to the writ petition that Mahesh Prasad Singh was an advocate, although no such contention was made before the Enquiry Officer. For the reasons, already indicated above, it may not now be possible for the Bank to contend so any longer. In those circumstances, and in as much as there was a substantial infraction of procedural rules to conclude the disciplinary proceeding affecting the right 6 of the delinquent to defend, the disciplinary proceeding, at the very day of commencement of the enquiry proceeding, stood vitiated. 4. In those circumstance, the appeal is allowed, the judgment and order under appeal is set aside and the writ petition is allowed by quashing the order of the disciplinary Authority dated 13th March, 1997, as well as the enquiry report with a direction upon the disciplinary Authority to conclude the disciplinary proceeding within six months from the date of service of a copy of this order upon him. In the event it is necessary to replace the Enquiry Officer, the disciplinary Authority shall do so upon notice to the appellant not more than fifteen days from the date of service of a copy of this order upon him. It is made clear that the disciplinary Authority 7 shall ensure compliance by him and by the Enquiry Officer the relevant rules framed by the Bank for concluding disciplinary proceedings. Let subsistence allowances be paid to the appellant from today, until conclusion of the disciplinary proceeding. It is made clear that in the event the appellant, ultimately, succeeds in the disciplinary proceeding, he shall be paid, in addition to his other entitlement, subsistence allowances from the date of the order of dismissal dated 11th March, 1997 until yesterday. (Barin Ghosh, J.) (Chandra Mohan Prasad, J.) Patna High court, The 09th September, 2008. AAhmad/(NAFR). 8