WP(C) 4309/2007 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY JUDGMENT AND ORDER (ORAL) The proceedings in succession by the same petitioner, witness a challenge to her suspension, refusal of her request to be represented by a legal practitioner in the related departmental inquiry, as well as her posting at Staff Training Coll ege, Kolkata following revocation of her suspension in between. This Court by o rder dated 05.10.2007, passed in W.P(C) No. 4983/2007, had stayed the petitioner ’s transfer. Her suspension having, in the meantime, been revoked, the assailme nt stands confined in praesenti to the rejection of the petitioner’s prayer for representation by legal practitioner and her transfer to Kolkata. 2. I have heard Mr. AM Mazumdar, Senior Advocate assisted by Ms. D Borgohain and Mrs. M Borah, Advocates for the petitioner and Mr. S Dutta, learne d Standing counsel, United Bank of India for the respondents. 3. The pleadings of the parties outline their scripted assertions a nd are thus necessary to be traversed to appropriately appreciate the arguments founded thereon. The petitioner is a Senior Manager of the United Bank of India (hereafter for sh ort referred to as the ’Bank’), having joined the institution in the year 1987. According to her, she was promoted to the post of Deputy Manager in the year 19 99-2000 and also served as Deputy Chief Officer at the Zonal Office, Guwahati an d as Officer at the Regional Office, Guwahati of the Bank. She assumed the char ge of Senior Manager, Faculty, Staff Training Center, Guwahati in the year 2005 and monitored the training of the officers and clerks of the whole Region, in ad dition to taking classes in connection therewith. Following the dissolution of the Staff Training Centre, she coordinated the training classes at the Indian In stitute of Bank Management (IIBM). 4. By order dated 19.09.2006, she was placed under suspension, pend ing departmental proceedings for certain alleged acts of gross misconduct. The petitioner has asserted that the order of suspension was served upon her when sh e was seriously ill and on leave with effect from 28.08.2006. According to her, she underwent medical treatment at Guwahati and at the Apollo Hospital, Chennai and her ailment had been diagnosed to be Pulmonary Tuberculosis. Because of he r frail and diseased physical condition and the resultant mental anguish, she wa s rendered unable to impugn the order of suspension immediately. The respondent Bank as well, for the next 7 months, did not apprise her of the further steps t aken in this regard. It was only in the month of May, 2007, when the petitioner was still at Chennai, undergoing medical treatment that she received the letter dated 25.04.2007, issued by the Deputy General Manager (Personnel), United Bank of India, respondent No. 3, communicating to her about certain irregularities i n availing loan from the Bank. Thereby, the petitioner was required to reply th ereto, within seven days from the receipt thereof. On the petitioner’s request for time, she was allowed to submit her reply by 22.05.2007. She accordingly di d so by her letter dated 22.05.2007, providing the necessary clarifications, as sought for and denying the charges, as well. 5. In between, on 21.05.2007, the petitioner by her letter of the e ven date addressed to the respondent No. 3, sought the liberty to avail the serv ices of a legal practitioner to represent her in defence in the departmental inq uiry. This was, however, turned down by the aforementioned authority by his let ter dated 08.06.2007. The petitioner has asserted that due to her poor health f or quite some time, she was unable to attend to her case appropriately, so much so that she could not even visit the office to collect her subsistence allowance . According to her, the doctors as well, had advised her not to take any physic al strain. It was in this premise that she pleaded for being allowed to be repr esented by a legal practitioner in the departmental proceeding on human consider ations. The petitioner referring to Rule 7 of the United Bank of India Officer Employees’ (Discipline and Appeal) Regulations, 1976 (hereafter for short referr ed to as the ’Regulations’), has insisted that in terms thereof, as well as in c ompliance of the dictum of fairness in action, her request ought to have been ac ceded to and that the denial thereof, is per se, arbitrary, whimsical and uncons titutional. As the process remained in limbo to the prejudice of the petitioner, she being a ggrieved by the inexplicable delay, approached this Court with W.P(C) No. 4309/2 007, impeaching the order of suspension as well as the repudiation of her prayer for a legal practitioner as her defence assistant. The petitioner has averred that on issuance of notice on the said proceeding by this Court, the respondent Bank framed charges against her, as contained in the letter under Ref. No. PD/DI R/1375/6500/2007, dated 30.08.2007. Her suspension, however, was revoked on 01. 09.2007, but thereby she was directed to report for duty at the Staff Training C ollege, Kolkata. The petitioner has vouched that as she is suffering from pulmo nary tuberculosis and undergoing treatment in connection therewith, she requires family care for early recuperation. Further, she has a school going child in t he midst of her academic session and that in case the impugned order of transfer is enforced, not only the same would visit her with immense hardship, but the s ame would result in total disruption in the family. The petitioner has averred that being a patient of tuberculosis and other bronchial complications, her atte nding doctor has advised her not to indulge in stressful works. She has stated that in case, she is made to join at Staff Training Centre, Kolkata, she would n ot be able to perform her duties as a faculty member thereof, as this would inte r alia, involve rendering lectures at a stretch for several hours, which her pre sent health condition, would not permit. She has insisted that her posting at K olkata would further aggravate her bronchial ailments. The petitioner has asse rted as well, that her transfer to Kolkata, is not prompted any administrative e xigency. Being aggrieved, she has instituted W.P(C) No. 4983/2007, impugning h er posting at Kolkata on revocation of the order of suspension. As alluded here inabove, this direction remains in abeyance in terms of the order dated 05.10.20 07, of this Court. 6. The respondent Bank in its affidavit, while endorsing the impugn ed decisions, has insisted that the petitioner, having violated the provisions o f the Regulations in the matter of obtaining loans from it, a departmental proce eding thereunder, had been initiated rightly. Detailing its stand on the charge s, narration whereof, having regard to the compass of scrutiny herein, is inesse ntial, the answering respondent has abided by the posting order, contending that with the abolition of Regional Training Center in India, except the one at Kolk ata, it was considered that the posting of the petitioner with her experience, a s a faculty Member of the Staff Training Centre, Guwahati, would be in the best interest of the Bank. It categorically denied the allegation of mala fide and i nsisted that transfer being an incident of service, no interference is called fo r, in absence of any infraction of the Regulations or the professed guidelines o n the subject. The respondent Bank reiterated that the petitioner’s transfer at the Staff Training Centre, Kolkata, was with the objective of best utilization of her services and further, as a vacancy was available there to accommodate her . The assertions in the writ petition, bearing on the petitioner’s illness, tre atment in connection therewith and dislocation in the family comprising amongst others of a school going child presently in the midst of academic session, were dismissed as vague. The respondent Bank, has maintained that the petitioner’s r equest for being allowed to be represented by a legal practitioner, was not acce ptable in face of the bar under Clause 7 of the Regulations. 7. The petitioner in her reply affidavit, supplemented by additiona l pleadings, while generally reiterating the averments in the writ petition, has affirmed that though she had requested some officers/employees of the Bank to a ct as her defence assistant in the departmental proceeding, they had declined to appear against their employer. The retired Government officials when approache d by her, apprised her that the Regulations do not permit such engagement. Whil e contending that the respondent Bank had transferred her to Kolkata being fully aware of her serious ailment and the attendant medical treatment therefor, as a punitive measure, the petitioner has avowed that similarly placed officers with better experience and training, though available at Guwahati, she has been pick ed up on irrelevant considerations. In an interim application (registered as M. C. No. 4452/2007), the petitioner has complained as well, that her salary since the month of September, 2007, has not been released, for which she is in financ ial stringency, disabling her from adequately meeting the medical expenses. 8. Mr. Mazumdar, in the above state of pleadings, has emphatically urged that it being permissible under Clause 7 of the Regulations to provide the assistance of a legal practitioner to an officer/employee of the Bank as the de fence assistant in a departmental proceeding, the denial of the petitioner’s req uest to the said effect in the facts and circumstances of the case, is not only in contravention of the letter and spirit of the Regulations, but also is per se , arbitrary, unfair and unreasonable. According to the learned Senior counsel, the concerned authority of the Bank being endowed with the discretion to permit such representation on a dispassionate evaluation of the prevailing facts and ci rcumstances, the impugned decision of rejecting her request for representation b y a legal practitioner on the plea of an absolute bar, in the Regulations, is an abuse of the administrative power and is thus liable to be adjudged illegal and unconstitutional. 9. Mr. Mazumdar has urged that the refusal to provide the petitione r with the assistance of a legal practitioner, tantamounts to denial of procedur al fairness in the departmental inquiry and betrays bias and a predetermined min d of the Bank. In view of the uncontroverted assertion of the petitioner that n o official employee is willing to extend assistance to her in the departmental p roceeding, appropriate writ and/or direction ought to be issued by this Court fo r redressal of her grievances, he urged. The learned Senior counsel, argued tha t though normally on revocation of an order of suspension, the incumbent concern ed is reinstated in the same post at the same station, in the case in hand, the impugned direction to post the petitioner at Kolkata, is patently unfair and is addressed by a penal element. The respondent Bank, though cognizant of the fact that the petitioner with her p resent physical condition, would be unable to discharge her duties at the traini ng centre at Kolkata, has sought to further discredit her thereby, apart from st ymieing her from effectively pursuing the departmental proceeding at Guwahati. As because of her frail health condition following the bout of pulmonary tubercu losis and other bronchial complications, the petitioner had been medically advis ed to avoid works, her posting at Kolkata would precipitate fatal consequences, and thus the impugned transfer order being obviously inconsiderate and unjust, i s liable to be interfered with, by this Court in the interest of justice, he urg ed. Mr. Mazumdar, asserted that posts are available at Guwahati to accommodate the petitioner. He also contended that non payment of her salary from September , 2007, following the revocation of her suspension being wholly unjustified in f ace of the interim order by this Court, an appropriate direction also be issued for the release thereof, forthwith. He rested his submissions on the decisions of the Apex Court in Board of Trustees of the Port of Bombay Vs. Dilipkumar Ragh avendranath adkari & Ors., (1983) 1 SCC 124, Director of School Education, Madra s & Ors. Vs. O Karuppa Thevan & Anr., (1994) 2 SCC 666 and that of the Andhra Pr adesh High Court in State of Andhra Pradesh through the District Collector, Warr angal Vs. Mohammed Sarwar, 1971 (1) SLR 507. 10. Mr. Dutta, as against this, has urged that as the presenting off icer for the Bank in the proposed departmental proceeding, is not a legal practi tioner, the request made by the petitioner to the said effect, is not entertaina ble in the teeth of the bar under clause 7 of the Regulations. Further, the ple aded assertions, expressing the disinclination of the officers/employees of the Bank to act as her defence assistant being wholly vague, the discretion under Cl ause 7 of the Regulations is not exercisable, he urged. While maintaining that there is no vacant post at Guwahati to accommodate the petitioner, Mr. Dutta, re jected the plea of mala fide or extraneous considerations, as baseless. He cont ended that transfer being an incident of service and the petitioner’s posting at Kolkata being in administrative exigency, no interference is called for. The l earned counsel sought to buttress his arguments relying on the decision of the A pex Court in Rajedra Roy Vs. Union of India & Anr., (1993) 1 SCC 148, NK Singh V s. Union of India & Ors., (1994) 6 SCC 98, Mohd. Masood Ahmad Vs. State of UP & Ors., (2007) 8 SCC 150. 11. The rival pleadings and the competing arguments have received th e due consideration of this Court. Having regard to the issues demanding resolu tion, dilation on the charges and the contesting stand of the parties, thereon i s avoidable. Suffice it to state that the petitioner is facing allegations of i rregularities and anomalies in availing loans from the Bank. From the reply sub mitted by the petitioner, the imputations are prima facie, not admitted by her a nd hence the departmental proceeding, the Bank being unconvinced by her explanat ions. That the proceeding is governed by the Regulations, is admitted. Clause 7 thereof, which dwell on the aspect of defence assistant of a delinquent office r/employee, being of pivotal significance, vis-à-vis the debate on this facet of the lis deserves extraction as hereunder: - (7) The officer Employee may take the assistance of any other Officer Employee but may not engage a legal practitioner for the purpose unless the presenting of ficer appointed by the disciplinary authority is a legal practitioner or the dis ciplinary authority, having regard to the circumstances of the case, so permits. The officer employee shall not take the assistance of any other officer employ ee who has two pending disciplinary cases on hand in which he has to give assist ance. 12. Reading between the lines, an absolute bar on the engagement of a legal practitioner by an officer/employee, is not discernible. Though, ordina rily an officer/employee would not be permitted to engage a legal practitioner a s his or her defence assistant in a disciplinary proceeding, unless the presenti ng officer appointed by the disciplinary authority is a legal practitioner, a di scretion has been left with the disciplinary authority to allow such officer/emp loyee to avail the services of a legal practitioner, having regard to the circum stances of the case. The plea of an implacable bar in this regard, as advanced by the respondent Bank, in face of the unambiguous and determinate language empl oyed in Clause 7 of the Regulations, does not commend for acceptance. 13. The provision for guaranteeing a defence assistant of the Office r/employee’s choice to represent him/her in a departmental proceeding for contes ting the charges, is a wholesome constituent of the procedural safeguards compre hended to ensure fairness and transparency in the exercise, proof of the indictm ents wherein, may visit the delinquent with disastrous consequences. The proced ure delineated from the stage of framing of the charges till the culmination of the departmental proceeding at every stage envisages grant of reasonable opportu nity to the charged officer/employee in accordance with the norms of natural jus tice and fair play in action. The provisions of the Regulations governing the c onduct of a disciplinary proceeding, are therefore, indubitably attuned to the m andates of the above edict of justness and propriety. Any digression from the l etter and spirit of the scheme of the Regulations devised to attain the said avo wed objective being influenced by extraneous or non germane consideration or in disregard of the relevant determinants, is impermissible lest the very purpose t hereof, is frustrated. The discretion conceptualized by the Regulations enablin g the disciplinary authority to permit representation of an officer/employee by a legal practitioner in deserving circumstances, is an unassailable index of the unreserved concern for fairness and legitimacy of the departmental inquiry. 14. The recorded facts do not as such establish the Bank’s categoric al denial of the petitioner’s illness from pulmonary tuberculosis and other bron chial manifestations, protracted treatment in connection therewith and her prese nt fragile physical frame. The assertions in her pleadings coupled with the doc uments annexed, reasonably corroborate her averments to the said effect. Her pl eaded assertion that the employees of the Bank, inspite of her requests, have de clined to act as her defence assistant in the departmental proceedings, though r efuted as vague by the Bank, has not been assertively controverted as untrue. I ndeed the Bank’s resilience against engagement of a legal practitioner, is found ed on an insurmountable bar in Clause 7, which is not decipherable therefrom. That a departmental proceeding has to indispensably informed with procedural fai rness to be valid, is no longer res integra. The pleadings and the documents av ailable on records, do not disclose any endeavour of the disciplinary authority to analyse the circumstances, more particularly, on the touchstone of the petiti oner’s illness and the consequential impediments to evaluate the tenability of h er prayer to the above effect. The exercise of the discretion to permit an offi cer/employee to avail the services of a legal practitioner, as Clause 7 reveals, is apparently not contingent solely on the engagement of a legal practitioner a s a presenting officer. Such a conditional discretion would then be wholly illu sory. The disciplinary authority is empowered by Clause 7 to exercise the discr etion on an impartial appreciation of the circumstances of each case to decide o n the permissibility of representation of an officer/employee by a legal practit ioner. Such a consideration has to be independent and impartial and not hide bo und by any non existent or impertinent criteria. The discretion lodged in Claus e 7, arms the disciplinary authority to relax the shackles thereof, to effectuat e a meaningful representation by an officer/employee through a legal practitione r in a demanding fact situation. Clause 7, thus visualizes such prerogative to advance the cause of its endowment rather mechanical circumscription thereof, re ndering it otiose. 15. Expatiating on the import and essence of discretion Lord Halsb ury in Sharp Vs. Wakefield, [1891] SC 173, ruled thus:- . . .’discretion’ means when it is said that something is to be done within th e discretion of the authorities that that something is to be done according to t he rules of reason and justice, not according to private opinion: Rooke’s Case; according to law and not humour. It is to be, not arbitrary, vague, and fancifu l, but legal and regular. And it must be exercised within the limit, to which a n honest man competent to the discharge of his office ought to confine himself. 16. The refusal to the request of a police officer to engage a legal practitioner in a departmental proceeding initiated against him, in the facts a nd circumstances of the case, was held to be in improper exercise of the discret ion of the authority concerned in State of Andhra Pradesh through the District C ollector, Warrangal (Supra). It was observed therein that though the question o f granting or refusing the request to engage a lawyer, is in the discretion of t he inquiry officer but the same has to be exercised judicially and not in a capr icious manner. 17. Discretion vested in any authority, must therefore, be exercised on reasonable grounds. No uncontrolled or unfettered discretion is envisaged i n a system governed by law. Not only the authority concerned cannot disregard o r overlook relevant considerations available to guide his discretion, he must st eer clear of any inappropriate and collateral considerations. For his act of di scretion to be valid, it has to be informed with reason and relevance. Failure to invoke the discretion so vested on reasons, purported and non existent would invalidate the resultant decision. 18. In the facts of the instant case, the concerned authority of the Bank in the opinion of this Court, had totally failed to address itself to the existing facts and circumstances, bearing on the petitioner’s request for repres entation through a legal practitioner. The refusal to grant the prayer, is on a patent misreading of Clause 7. The materials on record evince that the authori ty failed to take note of the relevant considerations and exercise the discretio n, as required of it under the Regulations. The available facts and the documen ts on the ground of petitioner’s subsisting illness and disinclination of other employees of the Bank to be her defence assistant in the estimate of this Court entitles her to a direction to sanction representation in the departmental proce eding by a legal practitioner of her choice. The obstinate and unsustainable st and of the Bank in the existing factual premise, in the face of the Constitution al mandate of procedural fairness in inquiries of such nature, cannot receive ju dicial approval. The respondent Bank, would thus permit the petitioner to engag e a legal practitioner of her liking to be her defence assistant in the impugned disciplinary proceeding. 19. The Bank’s authority and dominion on the issue of transfer of th e petitioner, does not admit of any doubt. That transfer is a condition of serv ice, binding on her, is obvious. The petitioner’s assertion of her ailment of p ulmonary tuberculosis and other bronchial accompaniments has not been seriously disputed by the Bank. The medical documents available on records, bear out the averments in this regard. The Bank has endorsed the petitioner’s transfer to th e Staff Training Centre, Kolkata as a step ensuring best utilization of her serv ices in administrative exigency. The petitioner is categorical in her avowal th at with her subsisting weak condition of health, she is not in a physical state to efficiently discharge her duties as expected. She has pleaded as well, that other more experienced officers at Guwahati, are available to be detailed with t he said role at the Staff Training Centre, Kolkata. It is unlikely that the Ban k is unaware of the ailments from which the petitioner suffers as on date. The p etitioner, before this Court, has referred as well, to the consequential family dislocation, contending inter alia, that her school going child is presently in the midst of her academic session. Neither the order of her transfer nor the Ba nks pleadings reveal any consideration in this regard. The materials on record, do not disclose either that following the revocation of her suspension and tran sfer to Kolkata, the petitioner had submitted any representation before the conc erned authority of the Bank, ventilating her inconveniences and the distress tha t she would suffer. 20. While, the ultimate authority to evaluate the organizational nee ds for placement of the employees rests with the employer, no unfettered exercis e of discretion and power in this regard