1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R 1. S.B.CIVIL WRIT PETITION NO.7110/2008 Satish Prakash Bhatt Vs. State of Bikaner & Jaipur & Ors. 2. S.B.CIVIL WRIT PETITION NO.7111/2008 Om Prakash Moghey Vs. State of Bikaner & Jaipur & Ors. Date of Order : : 08/12/2008 PRESENT HON'BLE MR. JUSTICE H.R. PANWAR Mr.K.K.Shah, for the the petitioners. Mr.P.K.Lohra, for the respondents. BY THE COURT: Reportable Both these writ petitions involve common question of law and facts and the order under challenge in both these writ petitions is one and same and therefore, with the consent of learned counsel for the parties, they are heard and decided together taking S.B.Civil Writ Petition No.7110/2008 as leading case. 2 Briefly stated facts to the extent they are relevant and necessary for the decision of these writ petitions are that the petitioner is an employee of the respondent-State Bank of Bikaner and Jaipur (for short “the respondent Bank” hereinafter). By order Annexure-1 dated 10th January, 2008, the respondent No.3 asked the petitioner for certain clarification within a period of seven days from the date of receipt of the order Annexure-1. The petitioner said to have submitted clarification on 21st January, 2008 vide Annexure- 2. By Annexure-3 dated 3rd June, 2008, the memorandum of charges were served on the petitioner. The petitioner submitted his reply on 20th June, 2008 vide Annexure-4. The respondent-Bank having not been satisfied with the reply/explanation of the petitioner initiated domestic enquiry by appointing Enquiry Officer on 17th July, 2008. The petitioner submitted the name of Shri L.N.Jalani as Defence Representative vide Annexure-5. On 12th August, 2008, the charges were read over to the petitioner and the enquiry was posted to 26th August, 2008. The Defence Representative was asked to inform the Enquiry Officer if he was defending more than two disciplinary cases including the one in hand. The Defence Representative has not denied that he is handling more than two cases defending the delinquent 3 employee of the respondent Bank but submitted that as per bipartite agreement dated 10th April, 2002, no such restriction is provided for the Defence Representative to defend two or more than two disciplinary cases at a time and therefore, declined to give undertaking to the Enquiry Officer to the effect that the Defence Representative is not representing the delinquent official employee in more than two disciplinary cases. The order Annexure-8 dated 4th April, 2006 under the caption “Award Staff-Disciplinary Action Proceedings Defence Assistant”, it provides that it has been decided to prescribe a ceiling in handling the number of cases in which an employee can act as defence assistant/representative and thereby, it has been decided that an employee can not take assistance or be defended by any representative/employee who has two pending disciplinary cases on hand in which he has to give assistance. Aggrieved by this restriction, the petitioners have filed these writ petitions making a challenge to the order Annexure-8 dated 4th April, 2006 by which a restriction has been imposed by the respondent-Bank for Defence Representative. A reply to the writ petition has been filed by the respondent-Bank inter alia contending that there is no infraction on the part of any of the legal rights of the 4 petitioner much less fundamental rights. The respondent- Bank came with a case that the respondent-Bank has never denied the petitioners for the assistance of a Defence Representative. The only restriction providing Defence Representative is that the Defence Representative could not have more than two disciplinary cases on hand in which he is giving assistance to the departmental enquiry. It is always open for the petitioner to have the Defence Representative others one, who has not two pending disciplinary cases on hand in which he is assisting as defence representative. In the instant case both the petitioners wanted to be assisted by one Defence Representative, namely, Shri L.N.Jalani, a Trade Union Leader, who is already having two enquiries in hand in which he has given assistance and therefore, the respondent- Bank categorically came with a case that since Shri L.N.Jalani, a Trade Union Leader is already representing in the disciplinary enquiry against Shri Kishore Singh, Daftari and Mr.Ghanshyam N.Agrawal, therefore, he cannot be permitted to be a Defence Representative in any other case unless the enquiry atleast one of the case is concluded. Contending the scope and ambit of para 12.3.3 of the Bipartite agreement, the respondent-Bank came with a case that underlined idea of issuing the impugned circular 5 Annexure-8 was to ensure expeditious disposal of the enquiry proceedings. In the reply, the respondent-Bank has cited certain decisions of Hon'ble Supreme Court in N.Kalindi & Ors. Vs. Tata Locomotive & Engineering Company Ltd., Jamshedpur, AIR 1960 SC 914, D.G.Railway Protection Force & Ors. Vs. K.Raghuram Babu, (2008) 4 SCC 406, Indian Overseas Bank Vs. Indian Overseas Bank Officers' Association & Anr.(2001)9 SCC 540, Cipla Ltd. & Anr. Vs. Ripu Daman Bhanot & Anr. (1999)4 SCC 188 and Crescent Dyes & Chemicals Ltd. Vs. Ram Naresh Tripathi, (1993) 2 SCC 115. Learned counsel for the petitioner has relied on the decisions of Hon'ble Supreme Court in Bharat Petroleum Corporation Ltd. Vs. Maharashtra General Kamgar Union & Ors. (1999) 1 SCC 626 and D.G.Railway Protection Force & Ors. Vs. K.Raghuram Babu (supra). I have heard learned counsel for the parties. It is contended by learned counsel for the petitioner that the service condition for bank employees has been prescribed and the condition No.12(a)(i)(x) provides that 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 6 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 permitted 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; (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. Thus, according to learned counsel for the petitioner, the rules indicate that a person against whom the departmental proceedings have been initiated will be entitled to avail the assistance of a Defence representative of his choice in those proceedings. Shri L.N.Jalani is the representative of a registered trade union of the employees of the Bank in which the petitioner is serving and therefore, the petitioner requested the Enquiry Officer to allow Shri L.N.Jalani, a Trade Union Leader to appear as Defence Representative but by the impugned circular Annexure-8, the right of the petitioner has 7 been taken away restricting the Defence Representative to the extent that one who has already handling two cases in disciplinary enquiry is not permitted to appear as a defence representative. It is also contended that circular cannot override the statutory provision of rules and regulations and according to the learned counsel, the service condition of the Bank employee is prescribed in Bipartite agreement, therefore, it is statutory force. Learned counsel appearing for the respondent- Bank submits that in a domestic enquiry, it is the delinquent official to appear before the domestic Enquiry Officer in person and in case the enquiries into a charge-sheet of misconduct against an employee is otherwise not fair, the workman concerned can challenge its validity by an industrial dispute. The law on the subject is by now settled since 1960 and the view taken by the Hon'ble Supreme Court in N.Kalandi & Ors. Vs. M/s Tata Locomotive & Engineering Co. Ltd. Jamshedpur (supra) has been followed uptill 2008. I have given my thoughtful consideration to the rival submission made by learned counsel for the parties. In N.Kalandi & Ors. Vs. M/s Tata Locomotive & Engineering Co. Ltd. Jamshedpur (supra), the Hon'ble Supreme Court observed as under:- 8 “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 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. The Hon'ble Supreme Court further observed as under:- “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 discretion can and may allow his employee to avail himself of such assistance.” Again this question came to be considered by Hon'ble Supreme Court in Crescent Dyes & Chemicals Ltd. Vs. Ram Naresh Tripathi (supra), the Hon'ble Supreme Court observed as under:- “A delinquent appearing before a Tribunal may feel that the right to representation is implied in the larger entitlement of a fair hearing based on 9 the rule of natural justice. He may, therefore, feel that refusal to be represented by an agent of his choice could 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 a different thing to say that such a right is an element of the principles of natural justice and denial thereof would invalidate the enquiry. Representation through counsel can be restricted by law as for example, Section 36 of the Industrial Disputes Act, 1947, and so also by certified Standing Orders. In the present case, the Standing Orders permitted an employee to be represented by a clerk or workman working in the same department as the delinquent. So also the right to representation can be regulated or restricted by statute. Such provisions in fact serve to underline the importance attached to the right to representation. Considering the various decisions of the English Court referred in para 11 of the judgment, the Hon'ble Supreme Court further observed as under:- “It seems clear 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 could be conceded. “ In para 13 of the judgment, it has been held that the law in India also does not concede an absolute right of representation as an aspect of the right to be heard, one of 10 the elements of principle of natural justice. After discussing the various decisions of the English Courts as well of the Hon'ble Supreme Court, the Hon'ble Supreme held that it is clear from the above case-law that the right to be represented through counsel or agent can be restricted, controlled or regulated by statute, rules, regulations or Standing Orders. A delinquent has no right to be represented through counsel or agent unless the law specifically confers such a right. The requirement of the rule of natural justice insofar as the delinquent's right of hearing is concerned, cannot and does not extend to a right to be represented through counsel or agent. In the instant case the delinquent's right of representation is regulated by the Standing Orders which permitted a clerk or a workman working with him in the same department to represent him and this right stood expanded on Sections 21 and 22(ii) permitting representation through an officer, staff-member or a member of the union, alibeit on being authorised by the State Government. The object and purpose of such provisions is to ensure that the domestic enquiry is completed with despatch and is not prolonged endlessly. Secondly, when the person defending the delinquent is from the department or establishment in which the delinquent is working he would be well conversant 11 with the working of the department and the relevant rules and would, therefore, be able to render satisfactory service to the delinquent. Thirdly, not only would the entire proceedings be completed quickly but also inexpensively. In Cipla Ltd. & Ors. Vs. Ripu Daman Bhanot & Anr. (supra), this contention was raised that though the service Rules allow the assistance of a co-representative in the departmental enquiry, the respondent therein, nevertheless, was entitled to be represented by a practising advocate in the departmental proceedings as the questions involved in those proceedings were complicated which could not be tackled by the respondent therein as he was not aware of the basic principles of legal proceedings or their implications, or, for that matter, the manner in which those proceedings were to be conducted. Relying on the decisions of Hon'ble Supreme Court in N.Kalandi's case (supra), Dunlop Rubber Co.(India) Ltd. Vs. Workmen, AIR 1965 SC 1392 and Crescent Dyes & Chemicals Ltd.'s case (supra) wherein it has been laid down that the right to be represented in the departmental proceedings initiated against a delinquent employee can be regulated or restricted by the management or by the Service Rules, the Hon'ble Supreme Court held that the right to be represented by an advocate in the 12 departmental proceedings can be restricted and regulated by statutes or by the Service Rules including the standing orders, applicable to the employee concerned. The whole case-law was reviewed by this Court in Bharat Petroleum Corpn. Ltd. Vs. Maharashtra General Kamgar Union (supra) wherein it was held that a delinquent employee has no right to be represented by an advocate in the departmental proceedings and that if a right to be represented by a co- workman is given to him, the departmental proceedings would not be bad only for the reason that the assistance of an advocate was not provided to him. In Indian Overseas Bank Vs. Indian Overseas Bank Officers' Association & Anr. (supra), the question came up for consideration before the Hon'ble Supreme Court in which Bank had their own regulations for regulating the conduct, discipline and appeals pertaining to their officers and employees. Those Regulations contained a provision enabling an officer-employee to take the assistance of any other officer-employee to defend him in any disciplinary proceedings. That was sought to be amended by a circular order providing for the addition of a note to the relevant Regulation in the following terms:- 13 “Note- The officer-employee shall not take the assistance of any other employee who has two pending disciplinary cases on hand in which he has to give assistance.” The Note in the case of Indian Overseas Bank's case (supra) and the circular Annexure-8 impugned in the instant writ petitions are almost identical. By circular Annexure-8 also, a restriction has been imposed on Defence Representative to the extent that the employee cannot take the assistance of any other employee as a defence representative, who has two pending disciplinary cases on hand in which he has to give assistance. The Hon'ble Supreme Court in para 6 and 7 observed as under:- “6. We have carefully considered the submissions made as above. The issue ought to have been considered on the basis of the nature and character or the extent of rights, if any, of an officer-employee to have, in a domestic disciplinary enquiry, the assistance of someone else to represent him for his defence in contesting the charges of misconduct. This aspect has been the subject-matter of consideration by this Court on several occasions and it has been categorically held that 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. (xxxxxxx) Irrespective of the desirability or otherwise of giving the employee facing charges of misconduct in a disciplinary proceeding to ensure 14 that his defence does not get debilitated due to inexperience or personal embarrassments, it cannot be claimed as a matter of right and that too as constituting an element of principle of natural justice to assert that a denial thereof would vitiate the enquiry itself. “7. In our view, the serious fallacy underlying the reasoning adopted by the learned Judges in the High Court seems to be the assumption that an omission to correspondingly fix such a ceiling in respect of the engagement of the presenting officers confers any right as such on the management to flout the said norm or standard when it comes to them and have their own way in nominating the presenting officers who even held more than two pending disciplinary cases in their hands. It is on such an assumption only that the laudable object of averting inordinate delay in completion and ensuring an expeditious finalisation of the disciplinary proceedings, which really motivated the cause for the amendment under challenge, came to be viewed with suspicion and not capable of being really achieved. The grievance entertained with reference to the invidious nature of an alleged and assumed discrimination also proceeded on such a surmise based on the fact that the ceiling imposed was only in respect of the appointment of a defence officer leaving otherwise a free hand to the management in the appointment of a presenting officer. In the process of such assumption the High Court seems to have overlooked the realities of the fact situation specifically noticed by the Government of India of one defence officer holding brief in 50 pending matters, which necessarily called for such specific ceiling vis-a-vis the defence officer for the reason that the selection and choice of which is inevitably with the officer-employee concerned and that in the absence of such a stipulation, the management would suffer a serious handicap in observing such a rule or principle to so regulate to the surprise of the officer-employees both facing enquiries and 15 those to be drafted for defence. So far as the management is concerned, it can always observe the same while considering the need for choosing a presenting officer in an individual case even in the absence of a stipulation therefor. The mere possibility or otherwise of any action which may result in differential standard or norm being adopted in a given case, cannot be assumed to provide sufficient ground or reason to undermine the right of the management to make a regulation or standing order of the nature in question or militate against the reasonableness or justness of the said provision, whatever may be the scope available for ventilating otherwise a grievance in an individual case of any adoption of differential standards or norms to the detriment of the officer- employee concerned. Further, we are also of the view that a stipulation of the nature under consideration, apart from paving the way for expeditious on the part of a defence officer holding too many engagement on his hand finding difficult to coordinate his appearance in various proceedings, would equally go a long way to ensure that no monopoly is created in a chosen few for such purposes and that the services of the proposed defence officers are equally available in proper measure to the institutions which employ them in greater public interest. The Banks in question being nationalised banks with a wide network of units at national level, there could be no concrete basis for an assumption that many employees, who are well versed in the administrative procedures and conversant with the functioning of the Board and the Rules, Bye-laws and Regulations would not be available to be chosen for defending the officer-employees facing enquiries and consequently there is no reason or justification whatsoever to erase the amendment from the rule-book on a mere apprehension that, otherwise, it is likely to prejudice and adversely affect the officers facing charges in effectively defending themselves.” 16 On the aforesaid premises, the Hon'ble Supreme Court held that the circumstances which necessitated the amendment on the suggestion emanating from the Government of India in consultation with Reserve Bank of India, appear to be not only genuine and reasonable but the amendment made is also just, proper and necessary in public interest and such amendment do no suffer from the vice of Article 14 of the Constitution of India. In D.G.Railway Railway Protection Force & Ors. Vs. K.Raghuram Babu (supra), the Rule 153.8 of the Railway Protection Force Rules, 1987 came to be considered by the Hon'ble Supreme. The Hon'ble Supreme Court observed as under:- “5. Rule 153.8 of the Rules states: “153.8. The enrolled member charged shall not be allowed to bring in a legal practioner at the proceedings but he may be allowed to take the assistance of any other member of the Force (hereinafter referred to as 'friend') where in the opinion of the inquiry officer may, at the request of the party charged, put his defence properly. Such 'friend' must be a serving member of the Force of or below the rank of Sub-Inspector for the time being posted in the same division or the battalion where the proceedings are pending and not acting as a 'friend' in any other proceedings pending anywhere. Such 'friend' shall, however, not be allowed to address the inquiry officer nor to cross- examine the witnesses.” “9. It is well settled that ordinarily in a domestic/departmental enquiry the person accused 17 of misconduct has to conduct his own case vide N.Kalindi v. Tata Locomotive and Engg.Co.Ltd. Such an inquiry is not a suit or criminal trial where a party has a right to be represented by a lawyer. It is only if there is some rule which permits the accused to be represented by someone else, that he can claim to be so represented in an inqury vide Brooke Bond India (P. Ltd. V. Subba Raman.” “11. Following the above decision it has to be held that there is no vested or absolute right in any charge-sheeted employee to representation either through a counsel or through any other person unless the statute of rules/standing orders provide for such a right. Moreover, the right to representation through someone, even if granted by the rules, can be granted as a restricted or controlled right. Refusal to grant representation through an agent does not violate the principles of natural justice.” “12. In the present case, Rule 153.8 only provides for assistance to a charge-sheeted employee by an agent. Thus, a restricted right of representation has been granted by Rule 153.8. Even if no right of assistance had been granted by the Rules, there would be no illegality or unconstitutionally. How then can it be said that when a restricted right is granted, the said restricted right is unconstitutional?” On the premises as observed above, the Hon'ble Supreme Court upheld the constitutional validity of Rule 153.8. In the instant case, though the petitioner is not a member of the Trade Union of Bank Employees but he being an employee of the bank seeks to be represented