1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19.09.2011 CORAM: THE HONOURABLE MR. JUSTICE S. MANIKUMAR W.P.(MD)No.9450 of 2011 M.P.(MD)Nos.1 and 2 of 2011 V.Mathivanan ... Petitioner Versus The State Bank of India, Assistant General Manager (Administration), Disciplinary Authority (DA), Disciplinary Proceeding Section, Zonal Office, Network-2, Administration Unit, Madurai-2. ... Respondent Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorarified Mandamus, to call for the concerned records, from the respondent and to quash the orders of the respondent bearing No.DIS/CON/79, dated 16.05.2011, DIS/CON/98, dated 25.05.2011 and another order DIS/CON/151, dated 27.06.2011, and consequently, direct the respondent to permit the petitioner to avail the services of Mr.M.Rajarathinam, advocate as defence Assistant in respect of the domestic enquiry conducted for the charge memo, dated 14.02.2011, bearing No.DIS/CON/470. For Petitioners .. Mr.M.Rajarathinam For Respondent .. Government Advocate ORDER Mr.M.Rajarathinam, whose assistance is sought for, in a domestic enquiry, by the State Bank of India, Sattur Branch, Madurai, against a Senior Assistant, himself is the counsel, who has entered appearance on behalf of the petitioner and submitted that as per Clause 12(a)(iii) of the Memorandum of Settlement, dated 10.04.2002 and as per Section 30 of the Advocates Act, the petitioner is entitled to have a legal assistance, as a matter of right in all the Courts, Tribunal or any Quasi-Judicial Authority or any other Authority notified in the Central Government Gazette, dated 09.06.2011. 2.According to the learned counsel for the petitioner, the Bank is a Quasi-Judicial Authority and therefore, he should be permitted to defend the petitioner. He further submitted that the impugned orders, dated 16.05.2011, 25.05.2011 and 27.06.2011 of the https://hcservices.ecourts.gov.in/hcservices/ 2 respondent-bank should be set aside and that the petitioner should be permitted to have a legal assistant. In support of the above, he placed reliance on a judgment of this Court in W.P.No.7999 of 2005, dated 16.07.2007 and also took this Court to Section 30 of the Advocates Act. 3.Heard the learned counsel for the parties and perused the materials available on record. 4.On 11.09.2009, a charge memo has been issued by the Assistant General Manager (Administration), Disciplinary Authority (DA), respondent herein. An amended charge memo, dated 14.02.2011, containing as many as 12 charges, has been issued by the same authority. On 05.05.2011, the General Manager, Thirumangalam Branch, has been appointed as an enquiry officer. On receipt of the same, the petitioner has made a representation on 09.05.2011, to engage an Advocate on his behalf. The respondent, vide letter, dated 16.05.2011, has sent a reply, stating that as the Presenting Officer, engaged by the Bank was not an Advocate, but an official of the bank, and therefore, the Bank was unable to allow engaging a legal practitioner, as petitioner's defence assistant. 5.Pointing out the codified staff circular and the memorandum of settlement on disciplinary action procedure for workman, dated 01.08.2002 and in particular, Clause 12(a)(iii), the petitioner has sought for permission to engage a lawyer as defence assistant. The said request has been rejected on 25.05.2011, by the respondent, reiterating the position, stated supra. However, the petitioner was given liberty to to engage the services of a defence representative of a Registered Trade Union of Bank Employees, as provided in the Memorandum of Settlement, dated 10.04.2002 to defend him in the enquiry. 6.When a similar request has been made on 14.06.2011, citing Section 30 of the Advocates Act, the respondent, by letter, dated 27.06.2011, has sent a reply, stating that as the Bank is not a quasi-judicial authority and the Bi-parte Settlement is binding on both the parties, they are unable to accede to the request of the petitioner to engage an advocate. However, they have permitted the petitioner to engage a defence representative, as per the bank's guidelines and bi-parte settlement to defend the case. 7.Section 30 of the Advocates Act, 1961, deals with the right of an Advocate to practice and it is extracted hereunder: “30. Right to advocates to practice:- Subject to provisions of this Act, every advocate whose name is entered in the State roll shall be entitled as of right to practise through out the territories to which this Act extends,- (i) in all courts including the Supreme Court; (ii) before any tribunal or person legally authorised to take evidence; and https://hcservices.ecourts.gov.in/hcservices/ 3 (iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise.” 8.Sub-Sections (i) and (ii) of the abovesaid Section are not applicable to the case of the petitioner, but the thrust of the argument is that the Bank falls under the expression “any other authority” and therefore, the Advocate is entitled to appear and defend the charged official. Such contention is not tenable for the reason that as per Sub-Clauses (iii) of Clause 12(a) of the bi-parte settlement entered into between the employees, the engagement of legal assistance is not automatic, but it is only discretionary, with the permission of the Bank. 9. Though the learned counsel for the petitioner has submitted that the functions of the disciplinary/appellate/appointing authority are quasi-judicial in nature and therefore, engagement of a lawyer in the domestic enquiry is automatic, reading of Section 30(iii) of the Advocates Act, makes it clear that a lawyer can practice before any other authority or person before whom such advocate is by or under any law for the time entitled to practice. There is no statutory provision, under which, the petitioner is seeking for legal assistance and the only provision, relied on by him is sub-Clauses (a)(iii) of Clause 12 of the Memorandum of Settlement, executed between the employees. Memorandum of Settlement is only an agreement entered into between the Management and the employees and it cannot be said to be the law. The terms and conditions of such agreement can vary depending upon the consensus arrived at by the parties and at any stretch of imagination, it cannot be said to be law which confers any legal or statutory right to the employee to seek for the assistance of a legal practitioner as a matter of right. In this context, it is worthwhile to consider few decisions, wherein the word, 'law',in certain statutory and constitutional provisions has been explained; (i) According to the Mukherjea J, the word 'law' in art 21 means a state-made law: AK Goplan v. State of Madras [1950] SCR 88, but it must be a valid and binding law having regard not merely to the competency of the legislature and the subject it relates to, but it must not also infringe any of the fundamental rights guaranteed under Part III of the Constitution of India. According to Bose, 'law' as used in art 14 does not mean the 'legal precepts' which are actually recognised and applied in the tribunals of a given time and place but the more general body of doctrine and tradition from which those precepts are chiefly drawn, and by which we criticise them. [Dean Pound 34, 34 Harvard Law Review 449, p 452; State of West Bengal v anwar Ali Sarkar AIR 1952 SC 75, pp 89. (ii) It is, manifest that the law must satisfy two tests before it can be a valid law, namely: https://hcservices.ecourts.gov.in/hcservices/ 4 (i) that the appropriate legislature has competency to make the law; and (ii) that it does not take away or abridge any of the fundamental rights enumerated in Part III of the Constitution of India. It follows that the law depriving a person of his property will be an invalid law if it infringes either art 19(1)(f) or any other Articles of Part III. [Kavalappara Kottarathil Kochuni alias Moopil Nayar v states of Madras and Kerala AIR 1960 SC 1080, pp 1092-1097]. (iii) An order to be law must have the characteristics of law, that is, of a binding rule of conduct as the expression of the will of the sovereign, which does not derive its authority from mere consensus of mind of two parties entering into a bargain. However, law may be defined, be it the comdand of the supreme legislature as some jurists have put it or, be it a 'body of rules laid down for the determination of legal rights and duties which courts recognise. [Maharaja Shree Umail Mills Ltd v. Union of India AIR 1963 SC 953]. (iv) Stated broadly, a law generally is a body of rules which have been laid down for determining legal rights and legal obligations which are recognised by courts [Rajkumar Nursingh Pratap Singh Deo v State of Orissa AIR 1964 SC 1793. (v) A law must follow the customary forms of law making and must be expressed as a binding rule of conduct. There is generally an established method for the enactment of laws and the laws when enacted, have also a distinct form. It is not every indication of the will of the ruler, however expressed, which amounts to law. An indication of the will meant to bind as rule of conduct and enacted with some formality either traditional or specially devised for the occasion, results in a law, but not an agreement to which there are two parties one of which is the ruler. [Nagpur Cotton Mills Ltd v Board of Revenue Madhya Pradesh AIR 1964 SC 888. (v) The test of law is, whether the act in question embodies the command of the sovereign prescribing a binding rule of conduct determining legal rights and obligations. Law is the emanation of the will of the sovereign which prescribes a binding rule of conduct for observance in future and affecting legal rights and obligations of persons subject to his power. https://hcservices.ecourts.gov.in/hcservices/ 5 [Kudi Municipality v New Chhotalal Mills Co Ltd AIR 1965 Guj 993]. 10. There is a reference to the expression, "for the time being in force". To understand the meaning of the above expression, it is useful to refer to the following decisions: (i) The phrase 'law in force' as used in art 20 (1) of the Constitution of India must be understood in its natural sense as being the law in fact in existence and in operation at the time of the commission of the offence as distinct from the law deemed to have become operative by virtue of the power of legislature to pass retrospective lws. [Shiv Bahadur Singh v State of VP, AIR 1953 SC 394. (ii) The expression 'law of force' in art 20 of the Constitution of India means 'law actually in force and not law deemed to be in force by retrospective operation of an amendment.' [Rama Shankar Tiwari v State, AIR 1954 AII 562. (iii) The words 'law in force' as used in art 372 of the Constitution of India are wide enough to include not merely a legislative enactment but also any regulation or order which has the force of law. But an order must be a legislative and not an executive order before it can come within the definition of alw. [Edward Mills Co Ltd., Beawar & Ors v State of Ajmeer &Anor AIR 1955 SC 25, p 31] (iv) In art 13(3)(a) of the Constitution of India, the definition of the phrase 'laws in force' is an inclusive definition and is intended to include laws passed or made by a legislature or other competent authority before the commencement of the Constitution of India, irrespective of the fact that the law or any part thereof was not in operation in particular areas or at all. In other words, laws, which were not in operation, though on the statute book, were included in the phrase 'law in force'. But the second definition does not in any way restrict the ambit of the word 'law in the first clause as extended by the definition of that word. it merely seeks to amplify it by including something which, but for the second definition, would not be included by the first definition. There are compelling reasons why custom and usage having in the territory of India the force of the law must be held to be contemplated by the expression 'all https://hcservices.ecourts.gov.in/hcservices/ 6 laws in force'. [Sant Ram v Labh Singh AIR 1965 SC 314. (v) A law cannot be said to be in force unless it is brough into operation by legislative enactment, or by the exercise of authority by a delegate empowered to bring it into operation. The theory of a statute being 'in operation in a constitutional sense' though it is not infact in operation has no validity. [State of Orissa v Chandrasekhar Singh Bhaoi AIR (1970) 1 SCJ 375. (vi) The bye-laws of a co-operative society framed in pursuance of the provisions of the Andhra Pradesh Co-operative Societies Act 1964, cannot be held to be law or to have the force of law. The bye-laws tht are contemplated by the Act can be merely those which govern the internal management, business or administration of a society. They may be binding between the persons affected by them, but they do not have the force of a statute. In respect of bye-laws laying down conditions of service of the employees of a society, the bye-laws would be binding between the society and the employees just in same manner as conditions of service laid down by contract between the parties in fact, after such bye-laws laying down the conditions of service are made and any person enters the employment of a society, those conditions of service will have to be treated as conditions accepted y the employee when entering the service and will thus bind him like conditions of service specifically forming part of the contract of service. The bye-laws that can be framed by a society under the Act are similar in nature to the articles of association of a company incorporated under the Companies Act 1956 and such articles of association have never been held to have the force of law [Co-operative CB Ltd v AIT, Andhra Pradesh AIR 1970 SC 245. 11. In W.P.No.7999 of 2005, dated 16.07.2007, relied on by the learned counsel for the petitioner, the charged official has sought for engagement of Mr.M.Rajarathinam, the present counsel in this writ petition, as defence assistant. The said request was turned down on the ground that as the defence representative belonged to an officer category, the charged official should engage some other award staff. The said objection alone has been overruled by this Court, at Paragraph 7, which is extracted hereunder: “A reading of the relevant paragraph in the said settlement does not make any distinction if the petitioner choses to have a representative of the Trade Union which includes any other member of the https://hcservices.ecourts.gov.in/hcservices/ 7 said Trade Union or an office bearer of the said Trade Union. The petitioner's defence Assistant was always a member of the said Trade Union and currently its Deputy General Secretary. Therefore, there is no violation of any term or the settlement. The interpretation given by the respondent Bank that he ceased to be a workmen cannot change his character as representative in the domestic enquiry. Further, the engagement of Rajarathinam was permitted even at that time when the said Rajarathinam belonged to an officer Cadre. In any event, it is not a case where the Bank had terminated a settlement and subsequently barred the representation by an officer in an enquiry conducted against an Award staff. Hence, the impugned order is legally unsustainable as it contravenes the term of settlement between the parties.” The abovesaid judgement made in W.P.No.7999 of 2005, dated 16.07.2007, is not a precedent, regarding engagement of a lawyer, as defence representative, in a domestic enquiry, as a matter of right. There is no enactment, permitting a lawyer to represent a charged official of the bank. As stated supra, it is only the discretion of the bank. Some of the decisions relating to the claim of legal assistance and the orders passed thereon, are extracted hereunder: 12. In Bharat Petroleum Corporation Ltd., v. Maharashtra General Kamgar Union and others reported in (1999) 1 SCC 626, the Supreme Court, considered a question as to whether a delinquent has got any absolute right to be represented by any person or a lawyer. After considering, the statutory provisions and Industrial Employment (Standing Orders) Central Rules, 1946, the Apex Court held 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 provide for the same. The right to representation is available only to the extent specifically provided for in the Rules. 13. In National Seeds Corpn., Ltd., v. K.V.Rama Reddy reported in 2006 (11) SCC 645, where the delinquent sought for engagement of a legal practitioner to defend the disciplinary proceedings. The reasons for seeking assistance of a legal practitioner were that (a) amount alleged to have been misappropriated was Rs.63.67 lakhs, (b) a number of documents and number of witnesses were relied on by the respondent. 14. The prayer for availing the services of an retired employee was rejected by the department and the respondent was unable to get any assistance from any other able co-worker. The High Court accepted the plea that there was a legal right for engaging a legal practitioner and taking into consideration, the factual scenario, permitted engagement of a legal practitioner. Rule 31(7) of the National Seeds Corporation Conduct (Discipline and Appeal) Rules, https://hcservices.ecourts.gov.in/hcservices/ 8 1992, which was pressed into service, before the Abstract reads as follows: “31.(7) The employee may take the assistance of any other employee working in the particular unit where the employee is working/was working at the time of happening of alleged charges to which the inquiry relates of where the inquiry is being conducted to present the case on his behalf 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.” 15.After considering a catena of decisions, the Supreme Court, rejected the contentions of the employee, who sought for legal assistance on the above said grounds. While reiterating the law relating to engagement of a legal practitioner, the Supreme Court, after extracting various decisions, at paragraphs 7, 8 and 10 held as follows: “7.The law in this country does not concede an absolute right of representation to an employee in domestic enquiries as part of his right to be heard and that there is no right to representation by somebody else unless the rules or regulation and standing orders, if any, regulating the conduct of disciplinary proceedings specifically recognise such a right and provide for such representation: see Kalindi v. Tata Locomotive & Engg. Co., Ltd., reported in AIR 1960 SC 914, Dunlop Rubber Co. Ltd., v. Workmen reported in AIR 1965 SC 1392, Crescent Dyes and Chemicals Ltd. v. Ram Naresh Tripathi reported in 1993 (2) SCC 115 and Indian Overseas Bank v. Officers' Assn., reported in 2001 (2) SCC 540. 8.”27.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. For example, Rule 1712 of the Railway Establishment Code provides as under: 'The accused railway servant may present his case with the assistance of any other railway servant employed on the same Railway (including a railway servant on leave preparatory to retirement) on which he is working' 28.The right to representation, therefore, has been made available in a restricted way to a delinquent employee. He has a choice to be represented by another railway employee, but the https://hcservices.ecourts.gov.in/hcservices/ 9 choice is restricted to the Railway on which he himself is working, that is, if he is an employee of the Western Railway, his choice would be restricted to the employees working on the Western Railway. The choice cannot be allowed to travel to other Railways. 29.Similarly, a provision has been made in Rule14(8) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, where too, an employee has been given the choice of being represented in the disciplinary proceedings through a co-employee. 30.In Kalindi's case a three-judge Bench (of this court) observed as under: (SCR pp.409-10) 'Accustomed as we are to the practice in the courts of law to skilful handling of witness by lawyers specially trained in the art of examination and cross-examination of witnesses, our first inclination is to think that a fair enquiry demands that the person accused of an act should have the assistance of some person, who even if not a lawyer may be expected to examine and cross-examine witnesses with a fair amount of skill. We have to remember however in the first place that these are not enquiries in a court of law. It is necessary to remember also that in these enquiries, fairly simple questions of fact as to whether certain acts of misconduct were committed by a workman or not only fall to be considered, and straightforward questioning which a person of fair intelligence and knowledge of conditions prevailing in the industry will be able to do will ordinarily help to elicit the truth. It may often happen that the accused workman will be best suited, and fully able to cross- examine the witnesses who have spoken against him and to examine witnesses in his favour. It is helpful to consider in this connection the fact that ordinarily in enquiries before domestic tribunals the person accused of any misconduct conducts his own case. Rules have been framed by Government as regards the procedure to be followed in enquiries against their own employees. No https://hcservices.ecourts.gov.in/hcservices/ 10 provision is made in these rules that the person against whom an enquiry is held may be represented by anybody else. 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 natural justice demands that in the case of enquiries 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 enquiry 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 enquiry is being held by the management has no right to be represented at such enquiry by a representative of his Union; though of course an employer in his direction can and may allow his employee to avail himself of such assistance.' 31.In another decision, namely, Dunlop Rubber Co. case it was laid down that there was no right to representation in the disciplinary proceedings by another person unless the Service Rules specifically provided for the same. 32.The matter again came to be considered by a three-judge Bench of this Court in Cresent Dyes case and Ahmadi, J.(as he then was) in the context of Section 22 (ii) of the Maharashtra Recognition of Trade Unions and Unfair Labour Practices Act, 1971, as also in the context of domestic enquiry, upheld the statutory restrictions imposed on the delinquent's choice of representation in the domestic enquiry through an agent. ... 33.The earlier decisions in Kalindi case, Dunlop Rubber Co. case and Brooke Bond India (P) Ltd. v. Subba Raman (S.) were followed and it was held that the law in this country does not concede an absolute right of representation to an employee as part of his right to be heard. It was further specified that there is no right to representation as such unless the company, by its Standing Orders, recognises such a right. In this case, it was also laid down that a delinquent employee has no right to