THE CHAIRMAN, STATE BANK OF INDIA AND versus M. J. JAMES on 16 November 2021

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THE CHAIRMAN, STATE BANK OF INDIA AND ANOTHER

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v.

M. J. JAMES

(Civil Appeal No. 8223 of 2009)

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NOVEMBER 16, 2021

[L. NAGESWARA RAO AND SANJIV KHANNA, JJ.]

Bank of Cochin Service Code: Clause 22(ix)(a) Chapter VIII– Violation of – Disciplinary proceedings against the Bank Managerfor sanctioning advances in violation of the Head Office instructionscausing financial loss to the Bank – Bank manager not allowed tobe represented by an office bearer of an employees association ofanother organisation – Thereafter, Manager dismissed from service– Challenge to, after almost four and a half years – Both the SingleJudge as also the Division Bench of the High Court quashed thedisciplinary proceedings against the Bank Manager – On appeal,held: Observations and findings in the disciplinary proceedings onthe aspect of irregularities regarding exceeding his authority in thegrant of advances, clear and undisputed – Bank Manager was awarethat his request to be represented by a representative of his ownchoice had been rejected – Even then he took time and decided notto file an appeal before the Board of Directors against the order ofthe inquiry officer rejecting his request – On the alibi, the Managerdid not furnish any details or particulars of cases or instances andhad refused to lead evidence – As per Clause 22(ix)(a), an officercan also be permitted to be defended by a representative of aregistered union/association of ‘bank’ employees, which means anunion/association of the employees of the Bank of Cochin and notof any or other banks – Provision does not stipulate that theemployee requires permission from any authority or the inquiryofficer for representation – Furthermore, the dismissal orderremained unchallenged for more than four years – Though theService Code does not stipulate any time period within which theappeal may be preferred but it should be within a reasonable timedepending upon the facts and circumstances of each case – Rightnot exercised for a long time is non-existent – Doctrine of delayand laches as well as acquiescence are applied to non-suit suchlitigants – In the instant case, challenge to the order of dismissal CDEFGH373

Afrom service by way of appeal was after four years, which washighly belated and beyond justifiable time – Court is to consciouslyexamine whether a party has chosen to sit over the matter and haswoken up to gain any advantage and benefit – These facets, whenproven, must be factored and balanced, even when there is delayand laches on the part of the authorities – Studied silence of theBrespondent, was with an ulterior motive as he wanted to take benefitof the slipup though he had suffered dismissal – Thus, the judgmentpassed by the High Court is set aside and the order of dismissal isupheld – Service law.

Clause 22(ix)(a), 2(e) – Object of definition clauses – Held:CIs to avoid frequent repetition in describing the subject matter towhich the word or expression is intended to apply – This is usefulwhen the same word or expression is used more than once in thesame enactment – Definition can be with the intent to attract ameaning already established by law; expand the meaning by addingDa meaning; or narrow the meaning by exclusion – Repugnancy willarise when the definition meaning does not agree with the subjectin the context – On facts, repugnancy not indicated and does notarise in the context of Clause 22(ix)(a) by mere absence of article‘the’ in Clause 22(ix)(a) before the word ‘bank’.EInquiry: Domestic inquiry – Choice of representation – Rightof – Held: Right to be represented by a counsel or agent of one’schoice is not an absolute right but can be controlled or regulatedby law, rules, or regulations – However, if the charge is of severeand complex nature, then the request to be represented through acounsel or agent should be considered – Said proposition flowsFfrom the entitlement of fair hearing, applicable in judicial as wellas quasi-judicial decisions.

Conclusion

‘Acquiescence’ and ‘delay and laches’ – Distinction between– Held: Doctrine of acquiescence is an equitable doctrine whichapplies when a party having a right stands by and sees anotherGdealing in a manner inconsistent with that right – Acquiescencevirtually destroys the right of the person – However, both limitationand laches destroy the remedy but not the right – Laches likeacquiescence is based upon equitable considerations, but lachesunlike acquiescence imports even simple passivity – On facts,Hinactive acquiescence on the part of the Bank Manager can be inferred till the filing of the appeal, and not for the period postfiling of the appeal – Nevertheless, this acquiescence being in thenature of estoppel bars the Bank Manager from claiming violationof the right of fair representation.

Administrative law: Statutory authority – Non-performanceof duty – Defence of delay and laches – Held: When the statutoryauthority does not perform its duty within a reasonable time, thesame cannot be justified by taking the plea that the person deprivedof his rights has not approached the appropriate forum for relief –Statutory authority cannot take the defence of laches and delay.

Allowing the appeal, the Court

HELD: 1.1 The judgment under challenge seems to haveoverlooked the implications of clause 2(e) of the Bank of CochinService Code. The objective of definition clauses is to avoidfrequent repetition in describing the subject matter to which theword or expression is intended to apply. This is useful when thesame word or expression is used more than once in the sameenactment. The raison d’etre behind the definition clause is thatwhile interpreting a provision, the defined word or expressionwould carry the same meaning as the defined words or expressionare employed and used by the maker in the sense appropriate tothe definition. The definition can be with the intent to attract ameaning already established by law; expand the meaning byadding a meaning; or narrow the meaning by exclusion. Thisgeneral rule of construction laid down by the enactment is subjectto the context. Albeit, the interpreter, to deviate from the definedmeaning, should record reasons to show that the word/expressionin that particular provision carries a different meaning. Contrarycontext is not to be assumed or accepted easily, in the absenceof indication and reason to differ from the defined meaning. Therepugnancy will arise when the definition meaning does not agreewith the subject in the context. Repugnancy is not indicated anddoes not arise in the context of Clause 22(ix)(a) of Chapter VIIIof the Service Code by mere absence of article ‘the’ in Clause22(ix)(a) before the word ‘bank’, as held in the impugnedjudgment. This is too weak and feeble a reason to discard andover–ride the defined meaning which is the general norm, andnot an exception that has to be justified. Deficiency of ‘the’ does A

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Anot disclose abandonment of the express definition of ‘bank’ videclause 2(e) of the Service Code. Absurdity or even ambiguity isnot obvious or even palpable. The word ‘bank’ in Clause 22(ix)(a)can be validly and effectively interpreted as per the definitionclause as referring to the Bank of Cochin Ltd., and not any orother bank(s). Therefore, the reasoning solely predicated on non–Bexistence of article ‘the’ before ‘bank’ in Clause 22(ix)(a) of theService Code does not justify inference of repugnancy in thecontext of the subject– matter, including the intent behind Clause22(ix)(a) of the Service Code. [Para 18, 19][389-E-H; 390-A-E]

Nahalchand Laloochand Private Ltd. v. Panchali Coop.CHousing Society Ltd. (2010) 9 SCC 536 : [2010] 10SCR 804; Bhagwati Developers Pvt. Ltd. v. PeerlessGeneral Finance and Investment Co. Ltd. & Anr. (2013)9 SCC 584 : [2013] 7 SCR 547; Crescent Dyes andChemicals Ltd. v. Ram Naresh Tripathi (1993) 2 SCCD115 : [1992] 3 Suppl. SCR 559; National SeedsCorporation Ltd. v. K.V. Rama Reddy (2006) 11 SCC645 : [2006] 6 Suppl. SCR 725; Dharampal SatyapalLtd. v. Deputy Commissioner of Central Excise, Gauhatiand Others (2015) 8 SCC 519 : [2015] 6 SCR 437;A.K. Kraipak and Others v. Union of India and OthersE(1969) 2 SCC 262 : [1970] 1 SCR 457; State Bank ofPatiala and Others v. S.K. Sharma (1996) 3 SCC 364 :[1996] 3 SCR 972; M.C. Mehta v. Union of India andOthers (1999) 6 SCC 237 : [1999] 3 SCR 1173; S.L.Kapoor v. Jagmohan and Others (1980) 4 SCC 379 :F[1981] 1 SCR 746; State of U.P. v. Sudhir Kumar Singhand Others (2020) SCC Online SC 847 – referred to.

Bennion on Statutory Interpretation, Indian Reprint,Sixth Edition – referred to.

1.2 The right to be represented by a counsel or agent ofGone’s choice is not an absolute right but one which can becontrolled, restricted, or regulated by law, rules, or regulations.However, if the charge is of severe and complex nature, then therequest to be represented through a counsel or agent should beconsidered. The said proposition flows from the entitlement of H

fair hearing, which is applicable in judicial as well as quasi-judicialdecisions. [Para 20][391-C-E]

1.3 The respondent was aware that his request to berepresented by a representative of his own choice had beenrejected. Even then he took time and decided not to file an appealbefore the Board of Directors against the order of the inquiryofficer rejecting his request. He allowed the inquiry proceedingsto continue and then filed an application for production ofdocuments. When asked about relevancy, his stance was he hadhis own reasons on how the documents were relevant. In spite ofample opportunity, the respondent did not adduce evidence orexamine witnesses, and abruptly stood up and walked out.Observations and findings in the disciplinary proceedings on theaspect of irregularities regarding exceeding his authority in thegrant of advances, acceptance of discovery bills and the issue ofbank guarantees etc. are clear and remain uncontroverted. Therespondent’s defence in the form of alibi that he had followed theoral instructions of the then Chairman and the Director, which isof questionable merit, is to be rejected as unproven. On this aspectsomewhat reflecting on merits, the Single Judge had observedthat the allegations if proven constitute gross misconduct,warranting punishment of dismissal. The Division Bench has notcommented on this aspect, but has made observations assumingprejudice was caused, which reasoning cannot be sustained. Thejudgments under challenge do not consider the effect of thedefence pleaded by the respondent and whether there was noeffective denial. Conduct of the respondent, including theopportunities granted during the departmental proceedings, havegone unnoticed. On the alibi, the respondent did not furnish anydetails or particulars of cases or instances and had refused tolead evidence. Clause 22(ix)(a), as worded, envisages that anemployee against whom disciplinary action is proposed would beserved with memorandum of charges, be given sufficient time toprepare and present his explanation and produce evidence whichhe may wish to render in his defence. He is permitted to appearbefore the officer conducting the inquiry, cross–examine thewitnesses and produce other evidence in his defence. Further,the officer can also be permitted to be defended by arepresentative, who must be a representative of a registered AB

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Aunion/association of ‘bank’ employees, which means an union/association of the employees of the Bank of Cochin and notassociation of employees of any or other banks. Notably, theprovision does not stipulate that the employee requirespermission from any authority or the inquiry officer forrepresentation by a representative of a registered union orBassociation of the Bank of Cochin. Such permission is required ifan employee wants a lawyer to represent him/her in thedisciplinary proceedings. In this case, contrary to the observationsin the impugned judgment by the Division Bench, the respondenthad never prayed or sought permission to be represented by aClawyer. This is despite the respondent being aware of theprofessional status of the inquiry officer and the presenting officer.[Para 26][396-B-H; 397-A-C]

1.4 The dismissal order passed on 18.04.1985 remainedunchallenged for more than four years, as the appeal to the ChiefDGeneral Manager of the State Bank of India was filed on20.09.1989. The respondent, however, relies on Clause 22(x) ofthe Service Code relating to appeals. Undoubtedly, the ServiceCode does not stipulate any time period within which the appealmay be preferred to the Board of Directors whose decision is tobe final, but it is well settled that no time does not mean anyEtime. The assumption is that the appeal would be filed at theearliest possible opportunity. However, the appeal should be filedwithin a reasonable time. What is a reasonable time is not to beput in a straitjacket formula or judicially codified in the form ofdays etc. as it depends upon the facts and circumstances of eachFcase. A right not exercised for a long time is non–existent.Doctrine of delay and laches as well as acquiescence are appliedto non–suit the litigants who approach the court/appellateauthorities belatedly without any justifiable explanation forbringing action after unreasonable delay. In the instant case, challenge to the order of dismissal from service by way of appealGwas after four years and five months, which is certainly highlybelated and beyond justifiable time. Without satisfactoryexplanation justifying the delay, it is difficult to hold that the appealwas preferred within a reasonable time. Pertinently, the challengewas primarily on the ground that the respondent was not allowedHto be represented by a representative of his choice. The respondent knew that even if he were to succeed on this ground,as has happened in the writ proceedings, fresh inquiry would notbe prohibited as finality is not attached unless there is a legal orstatutory bar, an aspect which has been noticed in the impugnedjudgment. This is highlighted to show the prejudice caused tothe appellants by the delayed challenge.[Para 27][397-C-H; 398-A-B]

1.5 The appeal preferred by the respondent with the ChiefGeneral Manager of the State Bank of India had remainedunattended for almost nine years. The appellants, it is apparent,simply lost track and forgot that the service appeal was filed orpending. The respondent was never an employee of the appellant’sbank as his services were terminated, nearly four months beforethe Bank of Cochin, a private Bank, got amalgamated with theState Bank of India. The appellants being at fault must bear theburden and adverse consequences.[Para 28][398-B-D]

Ram Chand and Others v. Union of India and Others(1994) 1 SCC 44 : [1993] 2 Suppl. SCR 558; State ofU.P. and Others v. Manohar (2005) 2 SCC 126 : [2004]6 Suppl. SCR 911; Union of India and Others v. TarsemSingh (2008) 8 SCC 648 : [2008] 12 SCR 104; MotilalPadampat Sugar Mills Co. Ltd. v. State of Uttar Pradeshand Others (1979) 2 SCC 409 : [1979] 2 SCR 641;U.P. Jal Nigam and Another v. Jaswant Singh andAnother (2006) 11 SCC 464 – referred to.

1.6 Doctrine of acquiescence is an equitable doctrine whichapplies when a party having a right stands by and sees anotherdealing in a manner inconsistent with that right, while the act isin progress and after violation is completed, which conductreflects his assent or accord. He cannot afterwards complain. Inliteral sense, the term acquiescence means silent assent, tacitconsent, concurrence, or acceptance, which denotes conduct thatis evidence of an intention of a party to abandon an equitableright and also to denote conduct from which another party will bejustified in inferring such an intention. Acquiescence can be eitherdirect with full knowledge and express approbation, or indirectwhere a person having the right to set aside the action stands by A

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Aand sees another dealing in a manner inconsistent with that rightand inspite of the infringement takes no action mirroringacceptance. However, acquiescence will not apply if lapse of timeis of no importance or consequence. [Para 29][400-B-E]

Prabhakar v. Joint Director, Sericulture Department andBAnother (2015) 15 SCC 1 : [2015] 9 SCR 890; GobindaRamanuj Das Mohanta v. Ram Charan Das andSuyamal Das AIR 1925 Cal 1107; M/S VidyavathiKapoor Trust v. Chief Commissioner Tax (1992) 194ITR 584; Krishan Dev v. Smt. Ram Piari AIR 1964 HP34 – referred to.CUN Mitra, Tagore Law Lectures – Law of Limitationand Prescription, Volume I, 14TH Edition, 2016 –referred to.

1.7 Laches unlike limitation is flexible. However, bothDlimitation and laches destroy the remedy but not the right. Lacheslike acquiescence is based upon equitable considerations, butlaches unlike acquiescence imports even simple passivity. Onthe other hand, acquiescence implies active assent and is basedupon the rule of estoppel in pais. As a form of estoppel, it bars aparty afterwards from complaining of the violation of the right.EEven indirect acquiescence implies almost active consent, whichis not to be inferred by mere silence or inaction which is involvedin laches. Acquiescence in this manner is quite distinct from delay.Acquiescence virtually destroys the right of the person. Giventhe said legal position, inactive acquiescence on the part of theFrespondent can be inferred till the filing of the appeal, and not forthe period post filing of the appeal. Nevertheless, thisacquiescence being in the nature of estoppel bars the respondentfrom claiming violation of the right of fair representation.[Para30][400-E-G; 401-A-B]

G1.8 The questions of prejudice, change of position, creationof third–party rights or interests on the part of the party seekingrelief are important and relevant aspects as delay may obscurefacts, encourage dubious claims, and may prevent fair and justadjudication. Often, relevant and material evidence go missing H

or are not traceable causing prejudice to the opposite party. It is,therefore, necessary for the court to consciously examine whethera party has chosen to sit over the matter and has woken up togain any advantage and benefit. These facets, when proven, mustbe factored and balanced, even when there is delay and laches onthe part of the authorities. These have bearing on grant andwithholding of relief. Therefore, this Court has factored in theaspect of prejudice to the appellants in view of the relief grantedin the impugned judgment.[Para 31][401-B-E]

M/s Dehri Rohtas Light Rly. Co. Ltd. v. District Board,Bhojpur and Others (1992) 2 SCC 598 : [1992] 2 SCR155; State of Maharashtra v. Digambar (1995) 4 SCC683 : [1995] 1 Suppl. SCR 492 – referred to.

R. (on the application of Parkyn) v. Restormel BC [2001]EWCA Civ 330; R. v. Monopolies and MergersCommission Ex p. Argyll Group [1986] 1 W.L.R. 763 –referred to.

1.9 The relief as granted has serious financial repercussionsand would also prevent the appellants from taking further action,which aspect has been noticed, though not finally determined inthe impugned judgment. The studied silence of the respondent,who did not correspond or make any representation for nine years,was with an ulterior motive as he wanted to take benefit of theslipup though he had suffered dismissal. The courts can alwaysrefuse to grant relief to a litigant if it considers that grant of reliefsought is likely to cause substantial hardship or substantialprejudice to the opposite side or would be detrimental to goodadministration. This principle of good administration isindependent of hardship, or prejudice to the rights of the thirdparties and does not require specific evidence that this has infact occurred, though in relation to withholding relief someevidence may be required. Relief should not be denied for mereinconvenience but when the difficulty caused to the decisionmaker approaches impracticability or when there is an overridingneed for finality and certainty. [Para 32][401-E-H; 402-A]

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A1.10 The respondent had approached the High Courtthrough a writ petition whereby directions were issued vide forconsideration and disposal of the appeal, which, was interpretedas a direction that the appeal should be decided on merits. Onecan appreciate the predicament of the Chief General Managerwho had to adjudicate the appeal in terms of the direction of theBConstitutional Court and, thus, his reluctance to dismiss theappeal on the ground of delay and laches. The appeal wasdismissed on merits. These aspects cannot be ignored as theexercise of writ jurisdiction is always discretionary which has tokeep in view the conduct of the parties. [Para 33][402-B-D]

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1.11 The dues payable to the respondent in terms of theimpugned judgment were released to him on furnishing securityto the satisfaction of the Chief General Manager. During thecourse of hearing, it was stated that the amount released hasbeen kept in a fixed deposit. The payment released is directed Dto be returned and restituted to the appellant bank withoutinterest within the stipulated period. [Para 34][402-D-E]

1.12 The impugned judgment is set aside and quashed. Theorder of dismissal is upheld and consequently the writ petitionfiled by the respondent would be treated as dismissed. [ParaE35][402-F-G]

Case Law Reference

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THE CHAIRMAN, STATE BANK OF INDIA AND ANOTHER v.M. J. JAMES

CIVIL APPELLATE JURISDICTION: Civil Appeal No.8223 of2009.

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From the Judgment and Order dated 09.12.2008 of the High Courtof Kerala at Ernakulam in Writ Appeal No.2052 of 2007.

Ms. Aishwarya Bhati, ASG, Buddy Ranganadhan, A. V. Rangam,Advs. for the Appellants.

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P. N. Ravindran, Sr. Adv., T. G. Narayanan Nair, Manish Nair,Advs. for the Respondent.

The Judgment of the Court was delivered by SANJIV KHANNA, J.

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1. The Chairman, State Bank of India, Central Office, Mumbai,and the Chief General Manager, State Bank of India, Local Head Office,Chennai (the appellants) in this appeal assail the order and judgmentdated 09.12.2008 of the High Court of Kerala at Ernakulam dismissingtheir intra-court writ appeal, W.A. No. 2052/2007. The DivisionBench,thereby, affirmed the order of the Single Judge in O.P No. 5527of 1999 dated 14.03.2007, quashing the disciplinary proceedings againstMr.M.J. James (the respondent) on the groundof violation of Clause22(ix)(a) of Chapter VIII of the Bank of Cochin Service Code (“theService Code”).

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A2. Before we proceed further, we need to allude to the factualbackground necessary for the disposal of the present appeal.

On 09.02.1984, a memorandum of charges was issued to therespondent that while working as the bank manager of the Quilon branchof the Bank of Cochinfrom February 1978 to September 1982, he hadBcommitted grave misconduct by sanctioning advances in violation of theHead Office instructions causing financial loss to the bank.Therespondent by the reply dated 30.03.1984 denied the charges statingthat there was substantial increase and growth in the business of thebankwhen he was the manager of the Quilon branch. The deposits hadincreased from Rs.20 lakh in 1978 to Rs. 1 crorein 1982, and the advancesChad increased from Rs.1.5 crorein 1978 to Rs.6 crorein 1982. As thebank manager of the Quilon branch, the respondent was aware that thetop management of the bank was contemplating a deep trust in advancesin view of the comfortable loanable fund availability. He had been askedbyMr. E.K. Andrew, former Chairman of the bank, to grant advancesDwithout hesitation. He had got oral instructions from Mr. E.K. Andrewto allow disbursement/drawings from most of the large accounts. Further,the then Director, Mr. C.B. Joseph from the Quilon branch, was personallyinvolved as he had introduced the borrowers and most of the advances/disbursements/drawings were made on his recommendation/insistence.The respondent had claimed that the bank did not have a foolEproof system of delegation of financial and other powers to the branchesas powers were conferred on select managers. The respondent wasgiven to understand by the then Chairman and Director that he wasvested with adequate powers and the advances would be ratified by theBoard in due course.The functioning of the branch and the advances Fwere subjected to periodical inspections by the authorities, including theReserve Bank of India. The respondent had never been cautioned onthe pattern of business conducted by the branch. Subsequently, therewere changes in the top management, and abrupt restrictions wereintroduced, affecting the recovery of the dues.

G3. The aforesaid explanation of the respondent was not found tobe satisfactory, and an inquiry was directed to be held. Mr. C.T. Joseph,a practising Advocate, was appointed as the inquiry officer. Mr. JimmyJohn was appointed as the presenting officer. The respondent claimsthat Mr. Jimmy John is a former advocate.

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4. On 24.04.1984, the respondent wrote a letter to the Manager(Personnel Department), Bank of Cochin,that he may be permitted toengage services of Mr. F.B. Chrysostom (Syndicate Bank, Mattancherry,Cochin), the Organising Secretary of the All-India Confederation of BankOfficers Organisation, Kerala State Unit. The request was rejected.Thereafter, the respondent wrote another letter to the inquiry officer on18.07.1984 protesting the denial of permissionto be defended byMr. F.B. Chrysostom stating that this was against all norms of naturaljustice and in clear violation of the Service Code. The inquiry officer,however, disagreed and passed a ruling holding that in terms of the ServiceCode, a charge-sheeted officer cannot be defended by an office-bearerof any association or a union except an office-bearer of an associationor a union of the employees of the bank, that is,the Bank of Cochin Ltd.To enable the respondent to prepare for representation, the inquiry officeradjourned the proceedings to 06.07.1984 for the evidence of themanagement. On 05.09.1984, the respondent requested a longadjournment stating that he wanted to assail the order denying himservices of Mr. F.B. Chrysostom before the Board of Directors. Whilethe request for long adjournment was declined, the inquiry officer gavethe respondent two weeks to approach the Board and await theirdirections, making it clear that no further adjournment would be granted.On 20.09.1984, the respondent did not appear and sought postponementof proceedings for one week on medical grounds through his brother.This request was allowed, and the inquiry was posted to 28.09.1984.

5. On 28.09.1984, the respondent appeared and participated inthe inquiry in which statement of witnesses of the management wererecorded. The proceeding was adjourned to 06.10.1984 for the recordingof defence evidence. On 06.10.1984, the respondent requestedfordirections to the management to produce documents as enumerated inthe list. The presenting officer objected. After due consideration, theinquiry officer directed the respondent to specify the documents indicatingtheir relevancy in the context of his defence. On 17.10.1984, therespondent again raised a request to furnish documents claiming thatthey were specific inasmuch as he had stated the years to which thereturns relate. Further, the respondent had his own reasons on how thesedocuments were relevant for the inquiry.

6. The inquiry officer passed a detailed order consideringeachdocument and held that they were unnecessary and irrelevant.

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AThereupon, the respondent stated that he had no witnesses to examine,or any other evidence to be adduced, and abruptly stood up and walkedout without signing the order sheet.

7. In his detailed report dated 14.01.1983, the inquiry officerreferred to the irregularities committed and held that the respondent hadBmade unauthorized advances beyond his discretionary powers withoutthe sanction of the Head Office. In fact,the respondent had admittedviolation of the Head Office instructions and the advances made wereunauthorized.All the charges were held to be proved.

8. By an order dated 18.04.1985, the Chairman of the Bank ofCCochin dismissed the respondent from service with effect from the closeof working hours on that day itself. This termination letter refers to theinquiry report and states that the Chairman had carefully gone throughthe records of the inquiry, connected papers, documents and findings ofthe inquiry officer. Further, the Chairman had given the respondent anopportunity for a personal hearing, which he did not avail of. Instead, theDrespondent had sent a representation on 25.02.1985, which had beenalready duly considered.

9. On 26.08.1985, the Bank of Cochin, a private bank, gotamalgamated with the State Bank of India.

E10. Nearly four years and five months after his dismissal, therespondent filed a memorandum of appeal on 20.09.1989 before theChief General Manager, State Bank of India, Local Head Office, Chennai,which appeal remained unattended and was not listed for hearing forovernine years. The respondent did not representor protest till 1998, when hefiled O.P. NO. 19807/1998 G before the High Court of Kerala atFErnakulam, which was disposed of by a Single Judge on 14.10.1998,recording that the respondent who was a petitioner therein had made alimited prayer for quick disposal of his appeal. The second respondenttherein,that isthe Chief General Manager, was directed to consider theappeal and pass appropriate orders after rendering an opportunity ofGbeing heard to the respondent within ten weeks from the date of receiptof the copy of the order.

11. In terms of the directions above, a personal hearing was grantedto the respondent on 22.12.1998. He was also permitted to submit writtenrepresentation.

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12. By the order dated 23.01.1999, the appeal was rejected bythe Chief General Manager recording, inter alia, that the inquiry officer’sreport was clear, categorical, and based upon evidence,and concludedthat the respondent had exceeded his authorization in grant of creditfacilities, flouted head office instructions and had not obtained head officeratificationfor several guarantees and documentary bills. The chargesas proved were grave, and hence the respondent’s dismissal from servicewas justified. The Chief General Manager specifically observed that thedefence of the respondent was not of denial, but that of following theinstructions of the Director or Chairman. Therefore, malefactions werenot factually and legally disputed. The contention that the respondentwas not allowed to be defended by an outsider was held to be withoutsubstance as the inquiry officer had permitted the respondent to bedefended by an officer of the Bank of Cochin of his choice. Therespondent had refused to avail of the same. Hence, the respondentcould not raise plea of failure of natural justice.

13. The respondent had, thereupon, preferred O.P. No. 5527 of1999 before the High Court of Kerala at Ernakulam challenging theorder of the Chief General Manager dated 23.01.1999 and had interalia prayed to be reinstated in service with back wages. Other prayersmade included direction to the opposite party to consider the quantum ofpunishment, grant of gratuity and other benefits, and an opportunity ofinquiry as per the service rules.

14. By an order dated 14.03.2007, the writ petition was allowedprimarily on the ground that the inquiry officer had wrongly rejected therequest of the respondent to be defended/represented by the organizingsecretary of the All-India Confederation of Bank Organizations, KeralaUnit. This amounted to a denial of reasonable opportunity, notwithstandingthe respondent’s participation in the inquiry. Therefore, what weighedwith the Single Judge was a wrongful rejection of the respondent’s requestto be represented by an office-bearer of the organization of his choiceas per the Service Code, and violation of the right to be representedpurportedly flowing from the principles of natural justice. Significantly,the judgment rejects the argument of the respondent that the chargesheld to be proved in the inquiry report would at best constitute ‘minormisconduct’. The Single Judge, referring to the allegations of unauthorizedadvances beyond discretionary powers or without the sanction of headoffice, held them to be ‘gross misconduct’. Further, the Court observed A

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Athat the charges were specific, and the allegations mentioned in the chargesheet were detailed, though relevant provisions of the Service Code werenot mentioned. Therefore, the allegations detailed in the charge sheetconstituted ‘gross misconduct’, governed by Clause 22(iv)(a) of theService Code. Accordingly, the Single Judge had commended that “ifthis misconduct is proved in a validly conducted inquiry, I see no reasonBto find fault with the bank if dismissal is the punishment that is consideredappropriate by them”.

15. The intra-court appeal, W.A. No. 2052 of 2007, by theappellantswas dismissed by the Division Bench of the High Court ofKerala at Ernakulam vide judgment dated 09.12.2008. They agreed withCthe Single Judge that Clause 22(ix)(a) of Chapter VIII was violated asthe respondent was not allowed to be defended by a representative of aregistered bank employees’ union/association. Interpreting the clause,the Division Bench observed that the article “the” was missing beforethe bank employees in the said clause, which indicates that the union/

Dassociation referred to therein was not onlyregarding employees of thebank itself, namely ‘the Bank of Cochin’, and would, therefore, includeemployees’ union/association of other banks also. As the respondentwas entitled to be represented by a representative of a union or associationof bank employees, his prayer to be represented by Mr. F.B. Chrysostomshould have been accepted. The Bench rejected the contention of noEprejudiceby observing that this was only an assertion by the bank’scounsel. Further, the principles of natural justice were incorporated inthe Service Code itself,which the authorities were bound to follow strictly.As the authorities had not followed the procedure prescribed, it wouldbe for the appellants to prove that by violating the procedure, no prejudice Fwas in fact caused. That apart, the Division Bench, upon perusal of theproceedings and findings of the inquiry officer, felt that prejudice wascaused to the respondent. They observed that an experienced lawyerhad conducted the inquiry, and the presenting officer was also a lawyerconversant with the procedure. Noticing that the respondent had retired, it was observed that if the rules permit, the bank would be at liberty toGcontinue the disciplinary proceedings from the stage it had beeninvalidated. However, if the rules do not permit such inquiry, therespondent will be entitled to all benefits consequent to his illegaltermination.

16. We begin our discussion by reproducing Clause 22(ix)(a) ofHthe Service Code, which reads:

“ix. The procedure in such cases shall be as follows:

(a) An employee against whom disciplinary action is proposedor likely to be taken shall be given a charge sheet clearlysetting forth the circumstances appearing against him and adate shall be fixed for an enquiry, sufficient time being givento him to prepare and give his explanation as also to produceany evidence that he may wish to tender in his defence. Heshall be permitted to appear before the officer conductingthe enquiry, to cross examine any witness and produce otherevidence in his defence. He shall also be permitted to bedefended by a representative of a registered Union/Associationof bank employees or with the Bank’s permission, by a lawyer.He shall also be given a hearing as regards the nature of theproposed punishment in case any charge is established againsthim.”

17. In order to interpret, we would like to allude to clause 2(e) ofthe definition clause in the Service Code, wherein the expression ‘bank’has been defined to mean the Bank of Cochin Ltd. and not any otherbank. Clause 2(e) of the Service Code reads:

“‘‘Bank” means the Bank of Cochin Limited.”

18. The judgment under challenge seems to have overlooked theimplications of clause 2(e) of the Service Code. The objective ofdefinition clauses is to avoid frequent repetition in describing the subjectmatter to which the word or expression is intended to apply.[1] This isuseful when the same word or expression is used more than once in thesame enactment.[2] The raison d’etre behind the definition clause is thatwhile interpreting a provision, the defined word or expression wouldcarry the same meaning as the defined words or expression are employedand used by the maker in the sense appropriate to the definition.Thedefinition can be with the intent to attract a meaning already establishedby law; expand the meaning by adding a meaning; or narrow the meaningby exclusion.[3 ]This general rule of construction laid down by the enactment 1 Nahalchand Laloochand Private Ltd. v. Panchali Coop. Housing Society Ltd., (2010)9 SCC 536

2 Bhagwati Developers Pvt. Ltd. v. Peerless General Finance and Investment Co. Ltd.& Anr., (2013) 9 SCC 584

3 Part XII, Rules of Construction Laid Down by Statute, Sections 199 and 200 at page517, Bennion on Statutory Interpretation, Indian Reprint, Sixth Edition.

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Ais subject to the context. Albeit, the interpreter, to deviate from the definedmeaning, should record reasons to show that the word/expression in thatparticular provision carries a different meaning.Contrary context is notto be assumed or accepted easily, in the absence of indication and reasonto differ from the defined meaning. The repugnancy willarise when thedefinition meaning does not agree with the subject in the context.BRepugnancy is not indicated and does not arise in the context of Clause22(ix)(a) of Chapter VIII of the Service Code by mere absence of article‘the’ in Clause 22(ix)(a) before the word ‘bank’, as held in the impugnedjudgment. This is too weak and feeble a reason to discard and over-ridethe defined meaning which is the general norm, and not an exceptionCthat has to be justified. Deficiency of ‘the’ does not disclose abandonmentof the express definition of ‘bank’ videclause 2(e) of the Service Code.Absurdity or even ambiguity is not obvious or even palpable. The word‘bank’ in Clause 22(ix)(a) can be validly and effectively interpreted asper the definition clause as referring to the Bank of Cochin Ltd., and notany or other bank(s).D

19. Therefore, the reasoning solely predicated on non-existenceof article ‘the’ before ‘bank’ in Clause 22(ix)(a) of the Service Codedoes not justify inference of repugnancy in the context of the subject-matter, includingthe intent behind Clause 22(ix)(a) of the Service Code.

E20. Now, we need to advert our attention on the aspect of thechoice of representation in domestic inquiry. Both sides rely on the dictumof this Court in Crescent Dyes and Chemicals Ltd.v. Ram NareshTripathi[4] and National Seeds Corporation Ltd. v. K.V. Rama Reddy,[5]which hold that the right to be represented by a third person in domesticinquiries/tribunals is based upon the precept that it is not desirable toFrestrict right of representation by a counsel or agent of one’s choice.The ratio does not tantamount to acceptance of the proposition that sucha right is an element of principles of natural justice, and its denial wouldimmediately invalidate the inquiry. Representations are often restrictedby a law, such as under Section 36 of the Industrial Disputes Act, 1947,Gas also by certified Standing Orders. The aforementioned two decisionsascribe to catena of decisions, including English case law on this subject,which accept that the right to be legally represented depends on how therules govern such representation. Further, if the rules are silent, the party

4 (1993) 2 SCC 115H5 (2006) 11 SCC 645

has no absolute right to be legally represented. However, the entitlementof a fair hearing is not to be dispensed with. What fairness requireswould depend upon the nature of the investigation and the consequencesit may have on the persons affected by it. This Court in Crescent Dyesand Chemicals Ltd. (supra), observed as follows:

“17. It is, therefore, clear from the above case-law that the rightto be represented through counsel or agent can be restricted,controlled or regulated by statute, rules, regulations or StandingOrders. A delinquent has no right to be represented through counselor agent unless the law specifically confers such a right. Therequirement of the rule of natural justice insofar as the delinquent’sright of hearing is concerned, cannot and does not extend to aright to be represented through counsel or agent…”

Thus, the right to be represented by a counsel or agent of one’schoice is not an absolute right but one which can be controlled, restricted,or regulated by law, rules, or regulations. However, if the charge is ofsevere and complex nature, then the request to be represented througha counsel or agent should be considered. The above proposition flowsfrom the entitlement of fairhearing, which is applicable in judicial as wellas quasi-judicial decisions.

21. In Dharampal Satyapal Ltd. v. Deputy Commissioner ofCentral Excise, Gauhati and Others,[6] this Court has highlighted thatprocedural fairness is essential for arriving at correct decisions, byobserving:

“27. It, thus, cannot be denied that the principles of natural justiceare grounded in procedural fairness which ensures taking of correctdecisions and procedural fairness is fundamentally an instrumentalgood, in the sense that procedure should be designed to ensureaccurate or appropriate outcomes. In fact, procedural fairness isvaluable in both instrumental and non-instrumental terms.”

22. Traditional English Law recognized and valued the rule againstbias that no man shall be a judge in his own cause, i.e. nemo debet essejudex in propria causa; and the obligation to hear the other or bothsides as no person should be condemned unheard, i.e. audi alterampartem. To these, new facets sometimes described as subsidiary ruleshave developed, including a duty to give reasons in support of the decision.

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ANevertheless, time and again the courts have emphasized that the rulesof natural justice are flexible and their application depends on facts ofeach case as well as the statutory provision, if applicable, nature of rightaffected and the consequences. In A.K. Kraipak and others v. Unionof India and Others,[7] the Constitutional Bench, dwelling on the role ofthe principles of natural justice under our Constitution, observed that asBevery organ of the State is controlled and regulated by the rule of law,there is a requirement to act justly and fairly and not arbitrarily orcapriciously. The procedures which are considered inherent in the exerciseof a quasi-judicial or administrative power are those which facilitate ifnot ensure a just and fair decision. What particular rule of natural justiceCshould apply to a given case must depend to a great extent on the factsand circumstances of that case, the frame work of law under which theenquiry is held and the constitution of the body of persons or tribunalappointed for that purpose. When a complaint is made that a principle ofnatural justice has been contravened, the court must decide whether theobservance of that rule was necessary for a just decision in the facts ofDthe case.

23. Legal position on the importance to show prejudice to getrelief is also required to be stated. In State Bank of Patiala and Othersv. S.K. Sharma,[8] a Division Bench of this Court distinguished between‘adequate opportunity’ and ‘no opportunity at all’ and held that theEprejudice exception operates more specifically in the latter case. Thisjudgment also speaks of procedural and substantive provisions of lawembodying the principles of natural justice which, when infracted, mustlead to prejudice being caused to the litigant in order to afford him relief.The principle was expressed in the following words:F

“32. Now, coming back to the illustration given by us in thepreceding para, would setting aside the punishment and the entireenquiry on the ground of aforesaid violation of sub-clause (iii) bein the interests of justice or would it be its negation? In ourrespectful opinion, it would be the latter. Justice means justiceGbetween both the parties. The interests of justice equally demandthat the guilty should be punished and that technicalities andirregularities which do not occasion failure of justice are not allowedto defeat the ends of justice. Principles of natural justice are but 7 (1969) 2 SCC 262H8 (1996) 3 SCC 364

the means to achieve the ends of justice. They cannot be pervertedto achieve the very opposite end. That would be a counter-productive exercise.”

24. Earlier decision in M.C. Mehta v. Union of India and Others,[9]examined the expression ‘admitted and undisputable facts’, as alsodivergence of legal opinion on whether it is necessary to show ‘slightproof’ or ‘real likelihood of prejudice’; or legal effect of ‘an open andshut case’, with reference to the observations in S.L. Kapoor v.Jagmohan and Others,[10] and elucidates in the following words:

“22. Before we go into the final aspects of this contention, wewould like to state that cases relating to breach of natural justicedo also occur where all facts are not admitted or are not all beyonddispute. In the context of those cases there is a considerable case-law and literature as to whether relief can be refused even if thecourt thinks that the case of the applicant is not one of “realsubstance” or that there is no substantial possibility of his successor that the result will not be different, even if natural justice isfollowed. See Malloch v. Aberdeen Corpn.(per Lord Reid andLord Wilberforce), Glynn v. Keele University, Cinnamond v. British Airports Authority and other cases where such a viewhas been held. The latest addition to this view is R. v. EalingMagistrates’ court, ex p Fannaran (Admn LR at p. 358) (seede Smith, Suppl. p. 89) (1998) where Straughton, L.J. held thatthere must be “demonstrable beyond doubt” that the result wouldhave been different. Lord Woolf in Lloyd v. McMahon (WLRat p. 862) has also not disfavoured refusal of discretion in certaincases of breach of natural justice. The New Zealand Courtin McCarthy v. Grant however goes halfway when it says that(as in the case of bias), it is sufficient for the applicant to showthat there is “real likelihood — not certainty — of prejudice”. Onthe other hand, Garner Administrative Law (8th Edn., 1996, pp.271-72) says that slight proof that the result would have beendifferent is sufficient. On the other side of the argument, wehave apartfrom Ridge v. Baldwin,Megarry, J. in John v. Reesstating that there are always “open and shut cases” and no absoluterule of proof of prejudice can be laid down. Merits are not for the 9 (1999) 6 SCC 237

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court but for the authority to consider. Ackner, J. has said that the“useless formality theory” is a dangerous one and, howeverinconvenient, natural justice must be followed. His Lordshipobserved that “convenience and justice are often not on speakingterms”. More recently Lord Bingham has deprecated the “uselessformality” theory in R. v. Chief Constable of the Thames ValleyPolice Forces, ex p Cotton [1990 IRLR 344] by giving sixreasons. (See also his article “Should Public Law Remedies beDiscretionary?” 1991 PL, p. 64.) A detailed and emphatic criticismof the “useless formality theory” has been made much earlier in“Natural Justice, Substance or Shadow” by Prof. D.H. Clark ofCanada (see 1975 PL, pp. 27-63) contending that Mallochand Glynn were wrongly decided. Foulkes (Administrative Law,8th Edn., 1996, p. 323), Craig (Administrative Law, 3rd Edn., p.596) and others say that the court cannot prejudge what is to bedecided by the decision-making authority de Smith (5th Edn., 1994,paras 10.031 to 10.036) says courts have not yet committedthemselves to any one view though discretion is always with thecourt. Wade (Administrative Law, 5th Edn., 1994, pp. 526-30)says that while futile writs may not be issued, a distinction has tobe made according to the nature of the decision. Thus, in relationto cases other than those relating to admitted or indisputable facts,there is a considerable divergence of opinion whether the applicantcan be compelled to prove that the outcome will be in his favouror he has to prove a case of substance or if he can prove a “reallikelihood” of success or if he is entitled to relief even if there issome remote chance of success. We may, however, point out thateven in cases where the facts are not all admitted or beyonddispute, there is a considerable unanimity that the courts can, inexercise of their “discretion”, refuse certiorari, prohibition,mandamus or injunction even though natural justice is not followed.We may also state that there is yet another line of cases as in StateBank of Patiala v. S.K. Sharma, Rajendra Singh v. State ofM.P. that even in relation to statutory provisions requiring notice,a distinction is to be made between cases where the provision isintended for individual benefit and where a provision is intendedto protect public interest. In the former case, it can be waivedwhile in the case of the latter, it cannot be waived.

THE CHAIRMAN, STATE BANK OF INDIA AND ANOTHER v.M. J. JAMES [SANJIV KHANNA, J.]

23. We do not propose to express any opinion on the correctnessor otherwise of the “useless formality” theory and leave the matterfor decision in an appropriate case, inasmuch as, in the case beforeus, “admitted and indisputable” facts show that grant of a writwill be in vain as pointed out by Chinnappa Reddy, J.”

25. In State of U.P. v. Sudhir Kumar Singh and Others,[11]referring to the aforesaid cases and several other decisions of this Court,the law was crystallized as under:

“39. An analysis of the aforesaid judgments thus reveals:

(1) Natural justice is a flexible tool in the hands of the judiciary toreach out in fit cases to remedy injustice. The breach of the audialteram partem rule cannot by itself, without more, lead to theconclusion that prejudice is thereby caused.

(2) Where procedural and/or substantive provisions of law embodythe principles of natural justice, their infraction per se does notlead to invalidity of the orders passed. Here again, prejudice mustbe caused to the litigant, except in the case of a mandatory provisionof law which is conceived not only in individual interest, but alsoin public interest.

(3) No prejudice is caused to the person complaining of the breachof natural justice where such person does not dispute the caseagainst him or it. This can happen by reason of estoppel,acquiescence, waiver and by way of non-challenge or non-denialor admission of facts, in cases in which the Court finds on factsthat no real prejudice can therefore be said to have been causedto the person complaining of the breach of natural justice.

(4) In cases where facts can be stated to be admitted or indisputable,and only one conclusion is possible, the Court does not pass futileorders of setting aside or remand when there is, in fact, no prejudicecaused. This conclusion must be drawn by the Court on anappraisal of the facts of a case, and not by the authority whodenies natural justice to a person.

(5) The “prejudice” exception must be more than a mereapprehension or even a reasonable suspicion of a litigant. It shouldexist as a matter of fact, or be based upon a definite inference of A

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Alikelihood of prejudice flowing from the non-observance of naturaljustice.”

26. In the light of the aforesaid legal position, we have examinedthe facts of the present case and have referred to the inquiry proceedingsin some detail. The respondent was aware that his request to beBrepresented by a representative of his own choice had been rejected.Even then he took time and decided not to file an appeal before theBoard of Directors against the order of the inquiry officer rejecting hisrequest. He allowed the inquiry proceedings to continue and then filedan application for production of documents. When asked about relevancy,his stance was he had his own reasons on how the documents wereCrelevant. Inspite of ample opportunity, the respondent did not adduceevidence or examine witnesses, and abruptly stood up and walkedout.Observations and findings in the disciplinary proceedings on the aspectof irregularities regarding exceeding his authority in the grant of advances,acceptance of discovery bills and the issue of bank guarantees etc. areDclear and remain uncontroverted. The respondent’s defence in the formof alibi that he had followed the oral instructions of the then Chairmanand the Director, which is of questionable merit,is to be rejected asunproven. On this aspect somewhat reflecting on merits, the Single Judgehad observed that the allegations if proven constitute gross misconduct,warranting punishment of dismissal. The Division Bench has notEcommented on this aspect, but has made observations assuming prejudicewas caused, which reasoning in the light of the ratio elucidated inparagraph nos. 23 to 25 (supra) cannot be sustained. The judgmentsunder challenge do not consider the effect of the defence pleaded by therespondent and whether there was no effective denial. Conduct of the Frespondent, including the opportunities granted during the departmentalproceedings, have gone unnoticed. On the alibi, the respondent did notfurnish any details or particulars of cases or instances and had refusedto lead evidence. Clause 22(ix)(a), as worded, envisages that an employeeagainst whom disciplinary action is proposed will be served with memorandum of charges, be given sufficient time to prepare and presentGhis explanation and produce evidence which he may wish to render inhis defence. He is permitted to appear before the officer conducting theinquiry, cross-examine the witnesses and produce other evidence in hisdefence. Further, the officer can also be permitted to be defended by arepresentative, who must be a representative of a registered union/Hassociation of ‘bank’ employees, which,as held above, means an union/

association of the employees of the Bank of Cochin and not associationof employees of any or other banks. Notably, the provision does notstipulate that the employee requires permission from any authority orthe inquiry officer for representation by a representative of a registeredunion or association of the Bank of Cochin. Such permission is requiredif an employee wants a lawyer to represent him/her in the disciplinaryproceedings. In this case, contrary to the observations in the impugnedjudgment by the Division Bench, the respondent had never prayed orsought permission to be represented by a lawyer. This is despite therespondent being aware of the professional status of the inquiry officerand the presenting officer.

27. Further, the dismissal order passed on 18.04.1985 remainedunchallenged for more than four years, as the appeal to the Chief GeneralManager of the State Bank of India was filed on 20.09.1989. Therespondent, however, relies on Clause 22(x) of the Service Code relatingto appeals, which reads thus:

“An aggrieved employee in all such cases may appeal to the Boardof Directors whose decision shall be final.”

Undoubtedly, the Service Code does not stipulate any time periodwithin which the appeal may be preferred to the Board of Directorswhose decision is to be final, but it is well settled that no time does notmean any time. The assumption is that the appeal would be filed at theearliest possible opportunity. However,we would hold that the appealshould befiled within a reasonable time. What isa reasonable time is notto be put in a straitjacket formula or judicially codified in the form ofdays etc. as it depends upon the facts and circumstances of each case.A right not exercised for a long time is non-existent. Doctrine of delayand laches as well as acquiescence are applied to non-suit the litigantswho approach the court/appellate authorities belatedly without anyjustifiable explanation for bringing action after unreasonable delay. Inthe present case, challenge to the order of dismissal from service byway of appeal was after four years and five months, which is certainlyhighly belated and beyond justifiable time. Without satisfactory explanationjustifying the delay, it is difficult to hold that the appeal was preferredwithin a reasonable time. Pertinently, the challenge wasprimarily on theground that the respondent was not allowed to be represented by arepresentative of his choice.The respondent knew that even if he wereto succeed on this ground, as has happened in the writ proceedings, A

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Afresh inquiry would not be prohibitedas finality is not attached unlessthereis a legal or statutory bar, an aspect which has been also noticed inthe impugned judgment. This is highlighted to show the prejudice causedto the appellants by the delayed challenge. We would, subsequently,examine the question of acquiescence and its judicial effect in the contextof the present case.B

28. The appeal preferred by the respondent with the Chief GeneralManager of the State Bank of India on 20.09.1989 had remainedunattended for almost nine years. The appellants, it is apparent, simplylost track and forgot that the service appeal was filed or pending. Therespondent was never an employee of the appellant’s bank as his servicesCwere terminated on 18.04.1985, nearly four months before the Bank ofCochin, a private Bank, got amalgamated with the State Bank of India.The appellants beingat fault must bear the burden and adverseconsequences. In RamChand and Others v. Union of India andOthers[12]and State of U.P. and Others v. Manohar,[13] this Court observedDthat if the statutory authority has not performed its duty within a reasonabletime, it cannot justify the same by taking the plea that the person whohas been deprived of his rights has not approached the appropriate forumfor relief. If a statutory authority does not pass any orders and therebyfails to comply with the statutory mandate within reasonable time, theynormally should not be permitted to take the defence of laches and delay.EIf at all, in such cases, the delay furnishes a cause of action, which insome cases as elucidated in Union of India and Others v.TarsemSingh,[14] may be continuing cause of action.The State being a virtuouslitigant should meet the genuine claims and not deny them for want ofaction on their part. However, this general principle would not apply Fwhen, on consideration of the facts, the court concludes that therespondent had abandoned his rights, which may be either express orimplied from his conduct. Abandonment implies intentional act toacknowledge, as has been held in paragraph 6 of Motilal PadampatSugar Mills Co. Ltd.v. State of Uttar Pradesh and Others.[15]Applying this principle of acquiescence to the precept of delay and laches, thisGCourt in U.P. Jal Nigam and Anotherv. Jaswant Singh and Another,[16]

12 (1994) 1 SCC 4413 (2005) 2 SCC 12614 (2008) 8 SCC 64815 (1979) 2 SCC 409H16 (2006) 11 SCC 464

THE CHAIRMAN, STATE BANK OF INDIA AND ANOTHER v.M. J. JAMES [SANJIV KHANNA, J.]

after referring to several judgments, has accepted the following elucidationin Halsbury’s Laws of England:

“12. The statement of law has also been summarised in Halsbury’sLaws of England, para 911, p. 395 as follows:

“In determining whether there has been such delay as to amountto laches, the chief points to be considered are:

(i) acquiescence on the claimant’s part; and

(ii) any change of position that has occurred on the defendant’spart.

Acquiescence in this sense does not mean standing by whilethe violation of a right is in progress, but assent after the violationhas been completed and the claimant has become aware of it.It is unjust to give the claimant a remedy where, by his conduct,he has done that which might fairly be regarded as equivalentto a waiver of it; or where by his conduct and neglect, thoughnot waiving the remedy, he has put the other party in a positionin which it would not be reasonable to place him if the remedywere afterwards to be asserted. In such cases lapse of timeand delay are most material. Upon these considerations reststhe doctrine of laches.”

13. In view of the statement of law as summarised above, therespondents are guilty since the respondents have acquiesced inaccepting the retirement and did not challenge the same in time.If they would have been vigilant enough, they could have filedwrit petitions as others did in the matter. Therefore, whenever itappears that the claimants lost time or whiled it away and did notrise to the occasion in time for filing the writ petitions, then in suchcases, the court should be very slow in granting the relief to theincumbent. Secondly, it has also to be taken into consideration thequestion of acquiescence or waiver on the part of the incumbentwhether other parties are going to be prejudiced if the relief isgranted. In the present case, if the respondents would havechallenged their retirement being violative of the provisions of theAct, perhaps the Nigam could have taken appropriate steps toraise funds so as to meet the liability but by not asserting theirrights the respondents have allowed time to pass and after a lapseof couple of years, they have filed writ petitions claiming the benefit A

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Afor two years. That will definitely require the Nigam to raise fundswhich is going to have serious financial repercussions on thefinancial management of the Nigam. Why should the court cometo the rescue of such persons when they themselves are guilty ofwaiver and acquiescence?”

B29. Before proceeding further, it is important to clarify distinctionbetween ‘acquiescence’ and ‘delay and laches’. Doctrine ofacquiescence is an equitable doctrine which applies when a party havinga right stands by and sees another dealing in a manner inconsistent withthat right, while the act is in progress and after violation is completed,which conduct reflects his assent or accord. He cannot afterwardsCcomplain.[17] In literal sense, the term acquiescence means silent assent,tacit consent, concurrence, or acceptance,[18 ]which denotes conduct thatis evidence of an intention of a party to abandon an equitable right andalso to denote conduct from which another party will be justified ininferring such an intention.[19] Acquiescence can be either direct with fullDknowledge and express approbation, or indirectwhere a person havingthe right to set aside the action stands by and sees another dealing in amanner inconsistent with that right and inspite of the infringement takesno action mirroring acceptance.[20] However, acquiescence will not applyif lapse of time is of no importance or consequence.

E30. Laches unlike limitation is flexible. However, both limitationand laches destroy the remedy but not the right.Laches like acquiescenceis based upon equitable considerations, but laches unlike acquiescenceimports even simple passivity. On the other hand, acquiescence impliesactive assent and is based upon the rule of estoppel inpais. As a form ofestoppel, it bars a party afterwards from complaining of the violation ofFthe right. Even indirect acquiescence implies almost active consent, whichis not to be inferred by mere silence or inaction which is involved inlaches. Acquiescence in this manner is quite distinct from delay.Acquiescence virtually destroys the right of the person.[21 ]Given the G17 See Prabhakar v. Joint Director, Sericulture Department and Another, (2015) 15 SCC1. Also, see Gobinda Ramanuj Das Mohanta v. Ram Charan Das and Suyamal Das,AIR 1925 Cal 1107

18 See M/S Vidyavathi Kapoor Trust v. Chief Commissioner Tax (1992) 194 ITR 584

19 See Krishan Dev v. Smt. Ram Piari AIR 1964 HP 34

20 See “Introduction”, UN Mitra, Tagore Law Lectures – Law of Limitation andPrescription, Volume I, 14[TH] Edition, 2016.H21 Refer Footnote 18

aforesaid legal position, inactive acquiescence on the part of therespondent can be inferred till the filing of the appeal, and not for theperiod post filing of the appeal. Nevertheless, this acquiescencebeing inthe nature of estoppel bars the respondent from claiming violation of theright of fair representation.

31. The questions of prejudice, change of position, creation ofthird-party rights or interests on the part of the party seeking relief areimportant and relevant aspects asdelay may obscure facts, encouragedubious claims, and may prevent fair and just adjudication. Often, relevantand material evidence go missing or are not traceable causing prejudiceto the opposite party. It is, therefore, necessary for the court toconsciously examine whether a party has chosen to sit over the matterand has woken up to gain any advantage and benefit, which aspectshave been noticed in M/s Dehri Rohtas Light Rly. Co. Ltd. v. DistrictBoard, Bhojpur and Others[22] and State of Maharashtra v.Digambar.[23] These facets, when proven,must be factored and balanced,evenwhen there is delay and laches on the part of the authorities. Thesehave bearingon grant and withholding of relief. Therefore, we havefactored in the aspect of prejudice to the appellants in view of the reliefgranted in the impugned judgment.

32. The relief as granted certainly has serious financialrepercussions and would also prevent the appellants from taking furtheraction, which aspect has been noticed, though not finally determined inthe impugned judgment.The studied silence of the respondent, who didnot correspond or make any representation for nine years, was with anulterior motive as he wanted to take benefit of the slipup though he hadsuffered dismissal. The courts can always refuse to grant relief to alitigant if it considers that grant of relief sought is likely to cause substantialhardship or substantial prejudice to the opposite side or would bedetrimental to good administration.[24 ]This principle of good administrationis independent of hardship, or prejudice to the rights of the third partiesand does not require specific evidence that this has in fact occurred,though in relation to withholding relief some evidence may be required.Relief should not be denied for mere inconvenience but when the difficulty 22 (1992) 2 SCC 598

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Acaused to the decision maker approaches impracticability or when thereis an overriding need for finality and certainty.[25]

33. Learned counsel for the respondent had submitted that theappeal was not dismissed on the ground of delay and laches by the ChiefGeneral Manager vide order dated 23.01.1999. This aspect has alsoBappealed to the Single Judge and the Division Bench. We do not agreewith the aforesaid viewsfor several reasons.The respondent hadapproached the High Court through a writ petition in O.P. No. 19807/1998 G, whereby directions were issued vide order dated 14.10.1998 forconsideration and disposal of the appeal, which, it is apparent, wasinterpreted as a direction that the appeal should be decided on merits.COne can appreciate the predicament of the Chief General Manager whohad to adjudicate the appeal in terms of the direction of the ConstitutionalCourt and, therefore, his reluctance to dismiss the appeal on the groundof delay and laches. The appeal was dismissed on merits. These aspectscannot be ignored as the exercise of writ jurisdiction is alwaysDdiscretionary which has to keep in view the conduct of the parties.

34. By the order dated 04.12.2009, the dues payable to therespondent in terms of the impugned judgment were released to him onfurnishing security to the satisfaction of the Chief General Manager.During the course of hearing, it was stated that the amount released hasEbeen kept in a fixed deposit. The payment released is directed to bereturned and restituted to the appellant bank without interest within aperiod of six weeks from the date of pronouncement of this judgment.However, in case payment is not made within the aforesaid period, therespondent would be liable to pay interest @ 8% per annum from thedate of this judgment till actual payment is made. In addition, the appellantsFwould be entitled to enforce the security furnished by the respondent.

35. In the light of the aforesaid discussion, the present appeal isallowed and the impugned judgment is set aside and quashed. We upholdthe order of dismissal and consequently the writ petition filed by therespondent would be treated as dismissed. There would be no order asGto costs.

Nidhi Jain

Appeal allowed.

H25 R. v. Monopolies and Mergers Commission Ex p. Argyll Group [1986] 1 W.L.R. 763.