IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 9TH OCTOBER 2009 / 17TH ASWINA 1931 WP(C).No. 5999 of 2007(L) -------------------------------------- PETITIONER(S): -------------------- 1. G.MOHANAN, HEAD CASHIER-I, UNION BANK OF INDIA, KALYANTHANI BRANCH, (NOW ON DEPUTATION KATTAPPANA BRANCH). 2. UNION BANK OF INDIA EMPLOYEES FEDERATION (KERALA), REG.NO.527/77 REPRESENTED BY IT'S GENERAL SECRETARY, M.T.THOMAS, SPECIAL ASSISTANT, UNION BANK OF INDIA, KOTTAYAM BRANCH. BY ADV. MR.K.GOPALAKRISHNA KURUP RESPONDENT(S): ------------------------- 1. UNION BANK OF INDIA REPRESENTED BY IT'S ASSISTANT GENERAL MANAGER, UNION BANK OF INDIA, REGIONAL OFFICE, STATUE JUNCTION, THIRUVANANTHAPURAM. 2. THE CHIEF MANAGER, (DISCIPLINARY AUTHORITY), H.R.M. DEPARTMENT, UNION BANK OF INDIA, NODAL REGIONAL OFFICE, ERNAKULAM. 3. SHRI.R.PRABHAKAR, THE SENIOR MANAGER (ENQUIRY OFFICER), H.R.M. DEPARTMENT, UNION BANK OF INDIA, NODAL REGIONAL OFFICE, ERNAKULAM. ADV. SRI.A.S.P.KURUP, SC, UBI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C) NO.5999/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE CHARGE SHEET DTD. 28.6.06 ISSUED BY THE 2ND RESPONDENT TO THE IST PETITIONER. P2:- COPY OF THE NOTICE DTD. 8.7.06 ISSUED TO THE IST PETITIONER BY THE 3RD RESPONDENT. P3:- COPY OF THE LETTER DTD. 17.8.06 SUBMITTED BY THE PETITIONER. P4:- COPY OF THE LETTER DTD. 21.8.06 ISSUED BY THE 2ND RESPONDENT. P5:- COPY OF THE REPRESENTATION SUBMITTED BY THE IST PETITIONER. P6:- COPY OF THE LETTER DTD. 30.8.06 FROM THE 3RD RESPONDENT TO THE IST PETITIONER. P7:- COPY OF THE LETTER DTD. 6.9.06 ISSUED BY THE 2ND RESPONDENT TO THE IST PETITIONER. P8:- COPY OF THE REQUEST SUBMTITED BY THE IST PETITIONER. P9:- COPY OF THE PROCEEDING OF THE ENQUIRY FROM 29.11.06 TO 10.2.07 GIVEN TO THE IST PETITIONER. TRUE COPY P.A. TO JUDGE tss ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.5999 OF 2007 (L) -------------------------------------------------- Dated this the 9th day of October, 2009 J U D G M E N T Ist petitioner is a Head Cashier Grd.I, working under the first respondent Bank. Ext.P1 is a charge sheet that was issued to the petitioner alleging certain misconducts and appointing an enquiry officer to conduct enquiry against him. During the course of the enquiry, petitioner made a request that he be permitted to be represented by an Advocate of his choice. By Ext.P4 communication, that request was turned down by the Disciplinary Authority on the ground that a delinquent could be represented only by a Trade Union representative. He sought a review of Ext.P4 by filing Ext.P5. That was rejected by the Enquiry Officer by Ext.P6 order. While so, as per communication dated 5.11.2006, the Union Bank of India Employees' Federation Union, the trade union of which the petitioner is a member, intimated the respondent Bank that Mr. Dinesh Mathew Muricken, Advocate whose assistance was sought to be WPC .No.5999/07 :2 : availed of by the petitioner, was co-opted as the Honorary Member and the Executive Committee Member of the Union. Enclosing the said communication and also the consent of the said Advocate, the petitioner thereafter filed Ext.P8 request before the Enquiry Officer requesting that he be permitted to be assisted by the said Advocate. Ext.P9, the proceedings of the Enquiry Officer, show that when the petitioner made the above request, on the ground that the disciplinary authority had already turned down his request on an earlier occasion the Enquiry Officer declined the prayer made by the petitioner. It is also seen recorded that though the lawyer himself had appeared before the Enquiry Officer, he too was denied permission to represent the petitioner. 2. The Enquiry Officer thereafter proceeded to record the evidence let in by the Management, and without anything further closed the evidence. The proceedings were adjourned for submission of the written arguments of both the management representative and the delinquent. It was at WPC .No.5999/07 :3 : that stage the petitioner filed this writ petition praying to quash Ext.P9 to the extent it declined him permission to avail of the assistance of an Advocate and to direct respondents 2 and 3 to permit the petitioner to be represented by the Advocate, to reopen the proceedings and conclude the enquiry on that basis. 3. The writ petition was admitted and an interim order staying further proceedings in the enquiry was passed and the position continues as such. The Management entered appearance and filed a detailed counter affidavit contending that lawyer cannot be permitted to appear in the enquiry. The relevant portion of Sastri award providing for representation of a delinquent in a disciplinary proceedings is contained in clauses 19-11 and 19-12 of Chapter XIX. Similar provision is incorporated in the bi-parte settlement dated 10.4.2002 as well. In terms of the said provision a right of the delinquent to be represented in a disciplinary proceedings is provided as follows; WPC .No.5999/07 :4 : “(x) by a representative of a registered trade union of bank employees of which he is a member of 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. (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. (iii) with the Bank's permission, by a lawyer.” 4. In this case, since the issue is in relation to the refusal of the Bank to permit representation by a lawyer, who is also an office bearer of the Union, the issue need be considered only in the light of clause (x) quoted above. A reading of the said provision shows that the delinquent is entitled to be defended 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. WPC .No.5999/07 :5 : In this case, admittedly, the petitioner was a member of Union Bank Employees Federation on the date first notified for the commencement of the enquiry. As is seen from communication dated 5.11.2006 issued by the aforesaid union Mr. Dinesh Mathew Muricken, an Advocate, has been coopted as a Honorary member and Executive Committee member as well. If that be so he is a representative of the union of which the petitioner is a member and consequently he is entitled to represent the petitioner before the Enquiry Officer. However, from Ext.P9 it would appear that the Enquiry Officer has dealt with the request made in Ext.P9 as if the request made was to be represented by an Advocate and not by a trade union representative. On the other hand, a reading of Ext.P8 show that the request was one for being represented by a representative of the trade union. Therefore, the rejection of the request made by the delinquent as per Ext.P8 as reflected in Ext.P9 is clearly erroneous and is liable to be interfered with. WPC .No.5999/07 :6 : 5. Accordingly, that part of Ext.P9 proceedings of the enquiry officer declining permission to the delinquent to be represented by a union representative is set aside. Respondents 2 and 3 are directed the permit the petitioner to be represented by the Union representative as sought for in Ext.P8, reopen the evidence in the enquiry, and conclude the enquiry allowing the petitioner and his representative to participate in the same. Writ Petition is disposed of as above. (ANTONY DOMINIC) JUDGE vi/