THE RAJASTHAN MARUDHARA GRAMIN BANK (RMGB) & ANR. versus RAMESH CHANDRA MEENA & ANR.
[2022] 1 S.C.R. 182, Supreme Court of India, 2022
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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[2022] 1 S.C.R. 182
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THE RAJASTHAN MARUDHARA GRAMIN BANK (RMGB) &
ANR.
v.
RAMESH CHANDRA MEENA & ANR.
(Civil Appeal No. 7451 of 2021)
JANUARY 04, 2022
[M. R. SHAH AND SANJIV KHANNA, JJ.]
Rajasthan Marudhara Gramin Bank (Officers and Employees)
Service Regulation, 2010: Regn.44 – Misconduct – Departmental
inquiry – Permission to engage any legal practitioner or retired
employee of the bank as defence representative (DR) – Held: Regn.44
puts specific restriction on engagement of a legal practitioner and
it provides that for the purpose of an enquiry under Regulation,
2010, the officer or employee shall not engage a legal practitioner
without prior permission of the competent authority – Therefore,
even availing the services of legal practitioner is not permissible
without the leave of the competent authority – The Handbook of
Vigilance Administration and Disciplinary Action (Handbook
Procedure) has been approved by the Board of Directors and it is
applicable to all the employees of the Bank – Clause 8 of the
Handbook Procedure with respect to the D R specifically provides
that DR should be serving official/employee from the Bank – The
said Handbook Procedure is binding to all the employees of the
Bank – Handbook Procedure can be said to be supplementary –
Neither Regn.44 permits nor restricts engagement of an ex-employee
of the Bank to be DR – Therefore, Clause 8.2 cannot be said to be
in conflict with the provisions
of Regulation, 2010 – Provisions of
Regulation, 2010 and the provisions of Handbook Procedure are
required to be read harmoniously, the result can be achieved without
any violation of any of the provisions of Regulation, 2010 and the
Handbook Procedure – Not permitting the delinquent officer to be
represented through ex-employee of the Bank in the departmental
enquiry cannot be said to be in any way in breach of principles of
natural justice and / or it violates any of the rights of the delinquent
officer – The only requirement is that delinquent officer must be
given fair opportunity to represent his case and that there is no
absolute right in his favour to be represented through the agent of
his choice.
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Allowing the appeal, the Court
HELD: 1. Regulation 44 puts specific restriction on
engagement of a legal practitioner and it provides that for the
purpose of an enquiry under Regulation, 2010, the Officer or
Employee shall not engage a legal practitioner without prior
permission of the competent authority. Therefore, even availing
the services of legal practitioner is permissible with the leave of
the competent authority. However, Regulation does not specifically
provides that an employee can avail the services of any outsider
and/or ex-employee of the Bank as DR. The Handbook Procedure
has been approved by the Board of Directors and it is applicable
to all the employees of the Bank. Clause 8 is with respect to the
D R , it specifically provides that DR should be serving official /
employee from the Bank. The said Handbook Procedure is
binding to all the employees of the Bank. The High Court has
considered Regulation 44 of the Regulation, 2010, however has
not considered clause 8 of the Handbook Procedure on the ground
that the same cannot be said to be supplementary. However,
Handbook Procedure can be said to be supplementary. Neither
Regulation 44 permits nor restricts engagement of an ex-
employee of the Bank to be DR. Therefore, Clause 8.2 cannot
be said to be in conflict with the provisions of Regulation, 2010.
Provisions of Regulation, 2010 and the provisions of Handbook
Procedure are required to be read harmoniously, the result can
be achieved
without any violation of any of the provisions of
Regulation, 2010 and the Handbook Procedure. The objects of
Regulation 44 of Regulation, 2010 and Clause 8 of the Handbook
Procedure seem to be to avoid any outsider including legal
representative and / or even ex-employee of the Bank. There is
no absolute right in favour of the delinquent officer’s to be
represented in the departmental proceedings through the agent
of his choice and the same can be restricted by the employer.
[Para 7][194-C-D; 194-F-H; 195-A-C]
2. The Bank has justified its action of not permitting ex-
employee of the Bank as DR and according to the Bank, the ex-
employee who themselves may have been subject of a disciplinary
enquiry/ chargesheet / dismissed from service; the ex-employee
THE RAJASTHAN MARUDHARA GRAMIN BANK (RMGB) v.
RAMESH CHANDRA MEENA
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might be a part of vigilance or audit sections who come across a
lot of information of confidential nature and therefore, if they are
allowed to be DR in the departmental proceedings, which would
result in grave injustice; the solemn nature of proceedings is
taken away and would result in issues of orderliness as well as
decorum when a disgruntled ex- employee is enabled to act as
defence representative; they may adopt delay tactics in
departmental enquiry and may not permit completion of
department enquiry within six months as mandated by the CVC
Circular and as per Vigilance Handbook adopted by the Bank.
As per settled proposition of law in decisions referred to, the
only requirement is that delinquent officer must be given fair
opportunity to represent his case and that there is no absolute
right in his favour to be represented through the agent of his
choice. However, at the same time, if the charge is severe and
complex nature, then request to be represented through a counsel
can be considered keeping in mind Regulation 44 of Regulation,
2010 and if in a particular case, the same is denied, that can be
ground to challenge the ultimate outcome of the departmental
enquiry. However, as a matter of right in each and every case,
irrespective of whether charges is severe and complex nature or
not, the employee as a matter of right cannot pray that he may be
permitted to represent through the agent of his choice.
[Para
8][195-D-G]
P. Raghava Kurup & Anr. v. V. Ananthakumari & Anr.
(2007) 9 SCC 179 : [2007] 2 SCR 1058; N. Kalindi &
Ors. v. Tata Locomotive & Engg. Co. Ltd [1960] 3 SCR
407; National Seeds Corporation Limited v. K. V. Rama
Reddy (2006) 11 SCC 645 : [2006] 6 Suppl. SCR 725;
Bharat Petroleum Corporation Limited v. Maharashtra
General Kamgar Union & Ors. (1999) 1 SCC 626 :
[1998] 3 Suppl. SCR 517; Cipla Limited & Ors v. Ripu
Daman Bahnot & Anr. (1999) 4 SCC 188 : [1999] 2
SCR 582; Crescent Dyes & Chemicals Limited v. Ram
Naresh Tripathi (1993) 2 SCC 115 : [1992] 3 Suppl.
SCR 559; Indian Overseas Bank v. Indian Overseas
Bank Officer’s Association and Another (2001) 9 SCC
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540 : [2001] 3 Suppl. SCR 554; Dunlop Rubber Co.
(India) Ltd v. Workmen [1965] 2 SCR 139 – relied on.
Rakesh Singh v. Chairman and Disciplinary Authority
and Another in Writ Appeal No. 64711 of 2013 – held
inapplicable.
Case Law Reference
[2007] 2 SCR 1058
relied on
Para 3.4
[2001] 3 Suppl. SCR 554
relied on
Para 3.5
[1965] 2 SCR 139
relied on
Para 6.2
[1960] 3 SCR 407
relied on
Para 6.2
[1999] 2 SCR 582
relied on
Para 6.3
[1992] 3 Suppl. SCR 559
relied on
Para 6.4
[2006] 6 Suppl. SCR 725
relied on
Para 6.5
[1998] 3 Suppl. SCR 517
relied on
Para 6.5
CIVIL APPELLATE JURISDICTION: Civil Appeal No.7451 of
2021.
From the Judgment and Order dated 07.07.2021 of the High Court
of Judicature for Rajasthan, Jodhpur in D.B. Spl. Appl. Writ No.311 of
2021.
Rishabh Sancheti, Ms. Padma Priya, Anchit Bhandari, K. Paari
Vendhan, Advs. for the Appellants.
Ms. Rashmi Singh, Adv. for the Respondents.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1.0. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 07.07.2021 passed by the High Court of Judicature for
Rajasthan at Jodhpur in D.B. Special Appeal Writ No.311 of 2021, by
which, the Division Bench of the High Court has dismissed the said
Appeal and has confirmed the judgment and order dated 28.01.2021
passed by the learned Single Judge, by which, the learned Single Judge
allowed the writ petition preferred by the respondent herein (hereinafter
referred to as the “original writ
petitioner”) and directed the appellant
THE RAJASTHAN MARUDHARA GRAMIN BANK (RMGB) v.
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Bank to allow the original writ petitioner to be represented by a retired
employee of the Bank in the departmental inquiry, the Appellant Bank
has preferred the present appeal.
2.0. The facts leading to the present appeal in nutshell are as
under:
2.1. That the respondent herein – original writ petitioner was
working as Cashier – cum- Clerk (office Assistant). While working as a
Branch Manager is alleged to had committed certain irregularities
amounting to misconduct. A show cause notice was issued by the Bank
dated 24.4.2019 whereby it was stated that while working at Rawastar
Branch, he had committed irregularities while granting loans to farmers
/ villagers under the loan scheme and he did not take adequate precautions
and without written mandates of borrowers, he transferred the loan
amount in favour of another person and had thus committed misconduct.
One another similar show cause notice was issued on dated 24.6.2019.
Departmental Inquiry was initiated against him. A chargesheet dated
1.11.2019 was served upon the original writ petitioner by the Bank in
terms of Rajasthan Marudhara Gramin Bank (Officers and Employees)
Service Regulation, 2010 (hereinafter referred to as the “Regulation,
2010”). A written reply was submitted by the original writ petitioner to
the chargesheet issued. He denied the charges leveled against him. Not
satisfied with the reply, the Bank initiated departmental inquiry. One Shri
K.C.
Gupta was appointed as an Enquirer Officer. An opportunity was
afforded to the original writ petitioner to take assistance of a defence
representative (hereinafter referred to as “DR”) in accordance with
Regulation, 2010 as also in accordance with guidelines issued by the
Bank. However, the original writ petitioner informed the Enquiry Officer
that he may be allowed to defend himself in the inquiry through a legal
practitioner. Keeping in view the restrictions under Regulation 44 of the
Regulation, 2010 on engagement of legal practitioner during the inquiry,
vide communication dated 17.3.2020, his request permitting him to defend
himself through a legal practitioner came to be declined by the Enquiry
Officer. A request was made to the Disciplinary Authority by the original
writ petitioner permitting him to engage a legal practitioner as his DR.
Having considered that no complicated legal question has been involved
in the matter and the Presenting Officer appointed by the Disciplinary
Authority is neither Law Officer nor a legal practitioner and keeping in
mind the Regulation 44 of Regulation, 2010 on engagement of legal
practitioner during the inquiry, the request to permit him to represent
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through legal practitioner came to be declined by the Disciplinary
Authority, which was communicated to him vide communication dated
27.5.2020. Again a request was made by the original writ petitioner to
permit him to engage a legal practitioner as his DR in the inquiry
proceedings, which again came to be rejected. During the inquiry
proceedings on 11.08.2020, the original writ petitioner submitted a consent
letter of one Shri Mahesh Kumar Atal to be engaged as his DR. The
said request was turned down. Again a request was made to permit him
to engage any legal practitioner or any retired officer from the Bank as
his DR, which again came to be turned down by the Disciplinary
Authority. Aggrieved by the order passed by the Disciplinary Authority
dated 19.08.2020, the original writ petitioner approached the High Court
by way of SB Civil Writ Petition No.8363 of 2020 inter alia, praying that
he may be permitted to engage any legal practitioner or retired officer of
the Bank as his DR. The said writ petition was opposed by the Bank.
Regulation 44 of Regulation, 2010 and the Circular dated 31.01.2014 as
also the guidelines issued by the Bank in respect of disciplinary proceeding
that no outsider, not associated with the Bank can be permitted to act as
a DR were pressed into service. That by judgment and order dated
28.1.2021, the learned Single Judge allowed the said writ petition and
directed the Bank to permit the original writ petitioner to be represented
through retired officer of the Bank in the disciplinary proceedings. Feeling
aggrieved and dissatisfied with the judgment and order passed by the
learned Single Judge, the Bank preferred appeal before the Division
Bench of the High Court. By impugned judgment and order, the Division
Bench of the High Court has dismissed the said appeal mainly on the
ground that since circular dated 31.1.2014 and the Regulation 8.2 did not
prohibit the utilization of the services of ex- employee of the Bank,
therefore, judgment and order passed by the learned Single Judge is not
to be interfered with.
2.2. Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court directing the Bank to permit the
original petitioner to be represented through retired officer of the Bank
in the disciplinary proceedings, the Bank has preferred present appeal.
3.0. Shri Rishabh Sancheti, learned counsel appearing for the
appellant has vehemently submitted that in the facts and circumstances
of the case, the High Court has committed a grave error in directing the
appellant Bank to permit the respondent original writ petitioner to be
represented through retired officer of the Bank in the disciplinary
THE RAJASTHAN MARUDHARA GRAMIN BANK (RMGB) v.
RAMESH CHANDRA MEENA [M. R. SHAH, J.]
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proceedings.
3.1. It is submitted that the High Court has not at all adverted to
Regulation 8.2 of the Handbook of Vigilance Administration & Disciplinary
Action (hereinafter referred to as the “Handbook Procedure”) which
has been duly approved by the Board of the Bank and applicable to all
kind of matters.
3.2. It is vehemently submitted that Regulation 8.2 of the Handbook
Procedure specifically provides that the defence representative should
be serving official / employee from the Bank. It is submitted that the
provisions of Handbook Procedure are binding on all the employees and
applicable to all kind of matters. It is submitted that even there was no
challenge to Regulation 8 of the Handbook Procedure by the original
writ petitioner.
3.3. It is further submitted that High Court has not properly
appreciated the fact that provisions of Regulation, 2010 are to be read
with Handbook provisions in a harmonious manner.
3.4. It is further submitted that High Court has erred in construing
Regulation 44 as permitting outsiders into a disciplinary inquiry. It is
submitted that in fact Regulation 44 restricts legal practitioner to be DR
without prior permission. It is submitted that Regulation 44 can in no
manner can be construed to mean that it permits all outsiders except
lawyers. It is submitted that this is so, since 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
provides for the same. It is submitted that right to representation is
available only to the extent specifically provided for in the Rules. Reliance
is placed on the decisions of this Court in the case of P. Raghava Kurup
& Anr. v. V. Ananthakumari & Anr. reported in (2007) 9 SCC 179;
N. Kalindi & Ors. v. Tata Locomotive & Engg. Co. Ltd reported in
(1960) 3 SCR 407; National Seeds Corporation Limited vs. K.V.
Rama Reddy reported in (2006) 11 SCC 645 and Bharat Petroleum
Corporation Limited v. Maharashtra General Kamgar Union &
Ors. reported in (1999) 1 SCC 626.
3.5. It is submitted that right to representation in the inquiry can
be restricted, controlled or regulated by the Statute, Service Rules,
Regulations or Standing Orders and the extent of representation in any
enquiry has to be in accordance with the Statute, Service Rules,
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Regulations or Standing Orders etc. In support of above submission,
reliance is placed on the decision of this Court in the case of Cipla
Limited & Ors v. Ripu Daman Bahnot & Anr. reported in (1999) 4
SCC 188; in the case of Crescent Dyes & Chemicals Limited v.
Ram Naresh Tripathi reported in (1993) 2 SCC 115 and in the case of
Indian Overseas Bank vs. Indian Overseas Bank Officer’s
Association and Another reported in (2001) 9 SCC 540.
3.6. It is further submitted that as held by this Court in the case of
Bharat Petroleum Corporation Limited (supra) there should be
minimum intervention of any outsider / legal practitioner in departmental
proceedings and the choice, if granted by the Statute, Service Rules,
Regulations or Standing Orders, cannot be allowed to travel beyond the
Statutes / Service Rules/ Regulations/ Standing Orders.
3.7. It is submitted that in the present case the service conditions
of the employee of the bank are governed by Regulation, 2010, which do
not contain any provision enabling the Candidate under the enquiry to
have any defence representative outside the employees of the Bank. It
is submitted that the object and purpose of Regulation 44 was to keep a
check on frivolous and unnecessary request made for legal practitioner
if the facts and situation do not demand so. It is submitted that Handbook
Procedure issued by the Vigilance Department of the Bank which was
duly approved by the Board also do not allow the employee to choose
any
outsider or a legal practitioner as his defence representative and the
same is expressly provided under Clause 8 of Chapter VIII of the
Handbook Procedure.
3.8. It is submitted that the impugned judgment and order has
created an anomalous situation where:
I.
Ex-employees who themselves may have been subject of a
disciplinary enquiry/ chargesheeted / dismissed from service
are also enabled to act as Defence Representatives.
II.
Ex-employees who were part of Vigilance or Audit Sections
who come across a lot of information of confidential nature
are enabled to act as Defence Representatives, which would
result in grave injustice.
III.
The solemn nature of proceedings is taken away and would
result in issues of orderliness as well as decorum when a
disgruntled ex-employee is enabled to act as a Defence
THE RAJASTHAN MARUDHARA GRAMIN BANK (RMGB) v.
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Representative. CVC Circular no.19.9.2021 dated
6.10.2021 prescribes the time limit for completion of
departmental enquiry within 6 months and the same has
adopted in the Vigilance Handbook page no.55 para 7.2. If
an outsider gets permitted completion of departmental
inquiry within prescribed time limit shall be a problem.
IV.
It is a matter of record that presently in almost all the
pending Disciplinary enquiries, most of the Employees-
under- enquiry are now asking for retired officials to act as
Drs.
3.9. It is submitted that aforesaid aspect has not at all been
considered by the High Court while permitting the respondent employee
to allow ex-employee as his DR.
Making the above submissions, it is prayed to allow the present
appeal.
4.0. Learned counsel appearing for the respondent has submitted
that Regulation 44 of the Regulation 2020 do not bar engagement of
retired employee of the Bank to act as a DR. It is submitted that the only
bar under the Rules and the Regulation is with regard to appointment of
legal practitioner as a DR without permission of the Bank. It is submitted
that therefore, the High Court has rightly directed the Bank to permit the
respondent employee to avail service of the retired employee of the
Bank as defence representative.
4.1. It is submitted that Handbook of Vigilance Administration
and Disciplinary Action dated 15.3.2019 are not binding rules or guidelines
and are merely directory in
nature.
4.2. It is submitted that on conjoint reading of Clause 7.2 and
Clause 8.2 of Handbook Procedure would mean that only officer who is
junior to the presenting officer and Enquiry Officer can be appointed as
DR. It is submitted that this would result in gross miscarriage of justice
and in violation of principles of natural justice.
4..3. It is submitted that judgments cited by the learned counsel
for the appellant shall not be applicable to the facts of the present case
as every bank has its own Rules and Regulations. It is submitted that in
the present case there is no specific bar in the service regulation in
engaging retired employee of the Bank as defence representative. It is
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submitted that therefore, in absence of any specific bar and considering
the Regulation 44, the High Court has not committed any error.
4.3. It is submitted that similar question came up for determination
before the High Court of Allahabad in the case of Rakesh Singh vs.
Chairman and Disciplinary Authority and Another in Writ Appeal
No. 64711 of 2013 wherein the High Court has held that in absence of
any specific bar in the Regulation, the denial of the right to engage a
retired employee of the Bank as defence representative is not justified.
It is submitted that said judgment of the Allahabad High Court has been
affirmed by this Court and the SLP against the said judgment and order
has been dismissed.
Making the above submissions and relying upon the above
decisions, it is prayed to dismiss the present appeal.
5.0. Heard the learned counsel for the respective parties at length.
By the impugned judgment and order, the High Court has permitted the
respondent employee who is facing disciplinary proceedings to represent
through ex-employee of the Bank. While permitting the respondent
employee, the High Court while construing Regulation 44 of Regulation,
2010 has observed that the Regulation 44 only restricts representation
by a legal practitioner, and even that too is permissible of course with the
leave to the competent authority, and there is no complete or absolute
bar even on engaging a lawyer, the employee cannot be restrained from
availing services of
retired employee of a Bank. However, it was the
specific case on behalf of the Bank that in view of circular dated
31.01.2014 and clause 8.2 of the Handbook Procedure, the DR should
be a serving official / employee from the Bank. Therefore, the short
question which is posed for consideration of this Court is whether the
respondent employee, as a matter of right is entitled to avail the services
of an Ex- employee of the Bank as his DR in the departmental
proceedings ?
6.0. While considering the aforesaid issue, few decisions of this
Court on the right of the employee to make representation in the
Departmental Proceedings are required to be referred to.
6.1. In the case of Kalindi and Ors (supra), it is observed and
held that ordinarily in inquiries before domestic tribunals the person
accused of any misconduct conducts his own case and therefore, it is
not possible to accept the argument that natural justice ex-facie demands
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that in the case the enquiries into a chargesheet of misconduct against a
workman he should be represented by a member of his Union; though
of-course an employer in his discretion can and may allow his employee
to avail himself of such assistance. The dictum of this decision has been
subsequently elucidated.
6.2. In the case of the Dunlop Rubber Co. (India) Ltd v.
Workmen reported in (1965) 2 SCR 139, after considering its earlier
decision in the case of Kalindri and ors (supra), it is observed and held
that there is no per se right to representation in the departmental
proceedings through a representative through own union unless the
company by its Standing Order recognized such a right. It is observed
that refusal to allow representation by any Union unless the Standing
Orders confer that right does not vitiate the proceedings. It is further
observed that in holding domestic enquiries, reasonable opportunity should
be given to the delinquent employees to meet the charge framed against
them and it is desirable that at such an enquiry the employee should be
given liberty to represent their case by persons of their choice, if there is
no standing order against such a course being adopted and if there is
nothing otherwise objectionable in the said request. It is further observed
that denial of such an opportunity cannot be said to be in violation of
principles of natural justice.
6.3. In the case of Cipla Ltd. and Ors
(supra), it is observed and
held as under:
“13. In N. Kalindi v. Tata Locomotive & Engg. Co Ltd, it was
held that a workman against whom a departmental enquiry is
held by the Management has no right to be represented at
such enquiry by an outsider, not even by a representative of
his Union though the Management may in its discretion allow
the employee to avail of such assistance. So also in Dunlop
Rubber Company vs. Workmen, 1965 (2) SCR 139 = AIR 1965
SC 1392 = 1965 (1) LLJ 426, it was laid down that an
employee has no right to be represented in the disciplinary
proceedings by another person unless the Service Rules
specifically provided for the same. A Three-Judge Bench of
this Court inCrescent Dyes and Chemicals Ltd. vs. Ram Naresh
Tripathi, (1993) 2 SCC 115 = 1992 Suppl. (3) SCR 559, laid
down that the right to be represented in the departmental
proceedings initiated against a delinquent employee can be
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regulated or restricted by the Management or by the Service
Rules. It was held that the right to be represented by an
advocate in the 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 Corporation Ltd. vs. Maharashtra Genl. Kamgar
Union & Ors., (1999) 1 SCC 626, and 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.”
6.4. In the case of Crescent Dyes and Chemicals Ltd. (supra),
it is observed and held that in the departmental proceedings 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 case before this Court, the delinquent’s right to representation
was regulated by the Standing Orders which permitted a clerk or a
workman
working with him in the same department to represent him
and said right stood expanded permitting representation through an officer,
staff-member or a member of the Union, on being authorised by the
State Government. Holding that the same is permissible and cannot be
said to be in violation of principles of natural justice, it is observed that
the object and purpose of such provisions are 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 with the working of that department and the relevant rules
and would, therefore, be able to render satisfactory service to the
delinquent. In the present case also clause 8 permits representation through
serving officials / employee from the Bank.
6.5. A similar view has been expressed by this Court in the case
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of Bharat Petroleum Corporation Limited (supra) as well as in the
case of National Sees Corporation Limited (supra).
6.6. In the case of Indian Overseas Bank (supra), it is observed
and held that law 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, specifically recognize such a right and
provide for such representation.
7.0. Applying law laid down by this Court in the aforesaid decisions
to the facts of the case on hand, the respondent employee / respondent
delinquent has no absolute right to avail the services by ex-employee of
the Bank as his DR in the departmental proceedings. It is true that
Regulation 44 puts specific restriction on engagement of a legal
practitioner and it provides that for the purpose of an enquiry under
Regulation, 2010, the Officer or Employee shall not engage a legal
practitioner without prior permission of the competent authority.
Therefore, even availing the services of legal practitioner is permissible
with the leave of the competent authority. However, Regulation does
not specifically provides that an employee can avail the services of any
outsider and / or ex- employee of the Bank as DR. Therefore, Regulation,
2010 neither restricts nor permits availing the services of any outsider
and / or ex-employee
of the Bank as DR and to that extent Regulation is
silent. If the reasoning of the High Court is considered, the High Court is
of the opinion that as there is no complete or absolute bar even on
engaging a lawyer, it is difficult to accept that a retired employee of the
Bank cannot be engaged to represent a delinquent officer in the
departmental inquiry. However, the High Court has not appreciated the
effect of the Handbook. As per Clause 8 of the Handbook Procedure
which has been approved by the Board of Directors and it is applicable
to all the employees of the Bank and Clause 8 is with respect to the
defence representative, it specifically provides that DR should be serving
official / employee from the Bank. The said Handbook Procedure which
has been approved by the Board of Directors of the Bank is binding to
all the employees of the Bank. The High Court has considered Regulation
44 of the Regulation, 2010, however has not considered clause 8 of the
Handbook Procedure on the ground that the same cannot be said to be
supplementary. However, we are of the opinion that Handbook Procedure
can be said to be supplementary. The same cannot be said to be in
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conflict with the Regulation 44 of Regulation, 2010. As observed herein
above, neither Regulation 44 permits nor restricts engagement of an
ex-employee of the Bank to be DR. Therefore, Clause 8.2 cannot be
said to be in conflict with the provisions of Regulation, 2010. Provisions
of Regulation, 2010 and the provisions of Handbook Procedure are
required to be read harmoniously, the result can be achieved without any
violation of any of the provisions of Regulation, 2010 and the Handbook
Procedure. The objects of Regulation 44 of Regulation, 2010 and Clause
8 of the Handbook Procedure seem to be to avoid any outsider including
legal representative and / or even ex-employee of the Bank. At the cost
of repetition, it is observed that there is no absolute right in favour of the
delinquent officer’s to be represented in the departmental proceedings
through the agent of his choice and the same can be restricted by the
employer.
8.0. As per the Bank there is a justification also to permit the
delinquent officer to be represented in the departmental proceedings
through serving official / employee from the Bank only. The Bank has
justified its action of not permitting ex-employee of the Bank as DR and
according to the Bank, the ex-employee who themselves may have been
subject of a disciplinary enquiry/ chargesheet / dismissed from service;
the ex-employee might be a part of vigilance or audit sections who come
across a lot of information of confidential nature and
therefore, if they
are allowed to be DR in the departmental proceedings, which would
result in grave injustice; the solemn nature of proceedings is taken away
and would result in issues of orderliness as well as decorum when a
disgruntled ex-employee is enabled to act as defence representative;
they may adopt delay tactics in departmental enquiry and may not permit
completion of department enquiry within six months as mandated by the
CVC Circular and as per Vigilance Handbook adopted by the Bank. For
all the aforesaid reasons not permitting the delinquent officer to be
represented through ex-employee of the Bank in the departmental enquiry
cannot be said to be in any way in breach of principles of natural justice
and / or it violates any of the rights of the delinquent officer. As per
settled proposition of law and as observed herein above, in decisions
referred to herein above, the only requirement is that delinquent officer
must be given fair opportunity to represent his case and that there is no
absolute right in his favour to be represented through the agent of his
choice. However, at the same time, if the charge is severe and complex
nature, then request to be represented through a counsel can be considered
THE RAJASTHAN MARUDHARA GRAMIN BANK (RMGB) v.
RAMESH CHANDRA MEENA [M. R. SHAH, J.]
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SUPREME COURT REPORTS
[2022] 1 S.C.R.
keeping in mind Regulation 44 of Regulation, 2010 and if in a particular
case, the same is denied, that can be ground to challenge the ultimate
outcome of the departmental enquiry. However, as a matter of right in
each and every case, irrespective of whether charges is severe and
complex nature or not, the employee as a matter of right cannot pray
that he may be permitted to represent through the agent of his choice.
9.0. Now so far as reliance placed upon the decision of the
Allahabad High Court in the case of Rakesh Singh (supra) by the
learned counsel for the respondent is concerned, it is required to be
noted that at the time when the High Court decided the matter no such
Clause 8 of the Handbook Procedure was in force. Handbook Procedure
has been adopted by the Board of Directors in its meeting held on
15.3.2019. Therefore, the said decision shall not be applicable to the
facts of the case on hand.
10. In view of the above and for the reasons stated above, the
High Court has committed an error in permitting respondent delinquent
officer to be represented in the departmental enquiry through ex-employee
of the Bank. The view taken by the learned Single Judge confirmed by
the Division Bench is unsustainable.
Accordingly, present appeal is allowed and the impugned judgment
and order passed by the learned Single Judge confirmed by the Division
Bench permitting the respondent delinquent officer to be represented in
the
departmental proceedings through ex-employee of the Bank is hereby
quashed and set aside. Present appeal is accordingly allowed. In the
facts and circumstances of the case, there shall be no order as to costs.
Devika Gujral
Appeal allowed.