THE RAJASTHAN MARUDHARA GRAMIN BANK (RMGB) & ANR. versus RAMESH CHANDRA MEENA & ANR. on 4 January 2022

182

SUPREME COURT REPORTS

[2022] 1 S.C.R.

ATHE RAJASTHAN MARUDHARA GRAMIN BANK (RMGB) &ANR.

v.

RAMESH CHANDRA MEENA & ANR.(Civil Appeal No. 7451 of 2021)

B

JANUARY 04, 2022

[M. R. SHAH AND SANJIV KHANNA, JJ.]

Rajasthan Marudhara Gramin Bank (Officers and Employees)Service Regulation, 2010: Regn.44 – Misconduct – DepartmentalCinquiry – Permission to engage any legal practitioner or retiredemployee of the bank as defence representative (DR) – Held: Regn.44puts specific restriction on engagement of a legal practitioner andit provides that for the purpose of an enquiry under Regulation,2010, the officer or employee shall not engage a legal practitionerwithout prior permission of the competent authority – Therefore,Deven availing the services of legal practitioner is not permissiblewithout the leave of the competent authority – The Handbook ofVigilance Administration and Disciplinary Action (HandbookProcedure) has been approved by the Board of Directors and it isapplicable to all the employees of the Bank – Clause 8 of theEHandbook Procedure with respect to the D R specifically providesthat DR should be serving official/employee from the Bank – Thesaid Handbook Procedure is binding to all the employees of theBank – Handbook Procedure can be said to be supplementary –Neither Regn.44 permits nor restricts engagement of an ex-employeeof the Bank to be DR – Therefore, Clause 8.2 cannot be said to beFin conflict with the provisions of Regulation, 2010 – Provisions ofRegulation, 2010 and the provisions of Handbook Procedure arerequired to be read harmoniously, the result can be achieved withoutany violation of any of the provisions of Regulation, 2010 and theHandbook Procedure – Not permitting the delinquent officer to beGrepresented through ex-employee of the Bank in the departmentalenquiry cannot be said to be in any way in breach of principles ofnatural justice and / or it violates any of the rights of the delinquentofficer – The only requirement is that delinquent officer must begiven fair opportunity to represent his case and that there is noabsolute right in his favour to be represented through the agent ofHhis choice.

Allowing the appeal, the Court

Conclusion

Allowing the appeal, the Court

HELD: 1. Regulation 44 puts specific restriction onengagement of a legal practitioner and it provides that for thepurpose of an enquiry under Regulation, 2010, the Officer orEmployee shall not engage a legal practitioner without priorpermission of the competent authority. Therefore, even availingthe services of legal practitioner is permissible with the leave ofthe competent authority. However, Regulation does not specificallyprovides that an employee can avail the services of any outsiderand/or ex-employee of the Bank as DR. The Handbook Procedurehas been approved by the Board of Directors and it is applicableto all the employees of the Bank. Clause 8 is with respect to theD R , it specifically provides that DR should be serving official /employee from the Bank. The said Handbook Procedure isbinding to all the employees of the Bank. The High Court hasconsidered Regulation 44 of the Regulation, 2010, however hasnot considered clause 8 of the Handbook Procedure on the groundthat the same cannot be said to be supplementary. However,Handbook Procedure can be said to be supplementary. NeitherRegulation 44 permits nor restricts engagement of an ex-employee of the Bank to be DR. Therefore, Clause 8.2 cannotbe said to be in conflict with the provisions of Regulation, 2010.Provisions of Regulation, 2010 and the provisions of HandbookProcedure are required to be read harmoniously, the result canbe achieved without any violation of any of the provisions ofRegulation, 2010 and the Handbook Procedure. The objects ofRegulation 44 of Regulation, 2010 and Clause 8 of the HandbookProcedure seem to be to avoid any outsider including legalrepresentative and / or even ex-employee of the Bank. There isno absolute right in favour of the delinquent officer’s to berepresented in the departmental proceedings through the agentof 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 disciplinaryenquiry/ chargesheet / dismissed from service; the ex-employee A

B

C

D

E

FG

H

Amight be a part of vigilance or audit sections who come across alot of information of confidential nature and therefore, if they areallowed to be DR in the departmental proceedings, which wouldresult in grave injustice; the solemn nature of proceedings istaken away and would result in issues of orderliness as well asdecorum when a disgruntled ex- employee is enabled to act asBdefence representative; they may adopt delay tactics indepartmental enquiry and may not permit completion ofdepartment enquiry within six months as mandated by the CVCCircular and as per Vigilance Handbook adopted by the Bank.As per settled proposition of law in decisions referred to, theConly requirement is that delinquent officer must be given fairopportunity to represent his case and that there is no absoluteright in his favour to be represented through the agent of hischoice. However, at the same time, if the charge is severe andcomplex nature, then request to be represented through a counselcan be considered keeping in mind Regulation 44 of Regulation,D2010 and if in a particular case, the same is denied, that can beground to challenge the ultimate outcome of the departmentalenquiry. However, as a matter of right in each and every case,irrespective of whether charges is severe and complex nature ornot, the employee as a matter of right cannot pray that he may beEpermitted 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 SCRF407; National Seeds Corporation Limited v. K. V. RamaReddy (2006) 11 SCC 645 : [2006] 6 Suppl. SCR 725;Bharat Petroleum Corporation Limited v. MaharashtraGeneral Kamgar Union & Ors. (1999) 1 SCC 626 :[1998] 3 Suppl. SCR 517; Cipla Limited & Ors v. RipuDaman Bahnot & Anr. (1999) 4 SCC 188 : [1999] 2GSCR 582; Crescent Dyes & Chemicals Limited v. RamNaresh Tripathi (1993) 2 SCC 115 : [1992] 3 Suppl.SCR 559; Indian Overseas Bank v. Indian OverseasBank Officer’s Association and Another (2001) 9 SCC

THE RAJASTHAN MARUDHARA GRAMIN BANK (RMGB) v.RAMESH CHANDRA MEENA

540 : [2001] 3 Suppl. SCR 554; Dunlop Rubber Co.(India) Ltd v. Workmen [1965] 2 SCR 139 – relied on.

A

Rakesh Singh v. Chairman and Disciplinary Authorityand Another in Writ Appeal No. 64711 of 2013 – heldinapplicable.

B

CIVIL APPELLATE JURISDICTION: Civil Appeal No.7451 of2021.

From the Judgment and Order dated 07.07.2021 of the High Courtof Judicature for Rajasthan, Jodhpur in D.B. Spl. Appl. Writ No.311 ofE2021.

Rishabh Sancheti, Ms. Padma Priya, Anchit Bhandari, K. PaariVendhan, Advs. for the Appellants.

Ms. Rashmi Singh, Adv. for the Respondents.

F

The Judgment of the Court was delivered by

M. R. SHAH, J.

1.0. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 07.07.2021 passed by the High Court of Judicature forRajasthan at Jodhpur in D.B. Special Appeal Writ No.311 of 2021, bywhich, the Division Bench of the High Court has dismissed the saidAppeal and has confirmed the judgment and order dated 28.01.2021passed by the learned Single Judge, by which, the learned Single Judgeallowed the writ petition preferred by the respondent herein (hereinafterreferred to as the “original writ petitioner”) and directed the appellant G

H

ABank to allow the original writ petitioner to be represented by a retiredemployee of the Bank in the departmental inquiry, the Appellant Bankhas preferred the present appeal.

2.0. The facts leading to the present appeal in nutshell are asunder:

B

2.1. That the respondent herein – original writ petitioner wasworking as Cashier – cum- Clerk (office Assistant). While working as aBranch Manager is alleged to had committed certain irregularitiesamounting to misconduct. A show cause notice was issued by the Bankdated 24.4.2019 whereby it was stated that while working at RawastarCBranch, he had committed irregularities while granting loans to farmers/ villagers under the loan scheme and he did not take adequate precautionsand without written mandates of borrowers, he transferred the loanamount 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 datedD1.11.2019 was served upon the original writ petitioner by the Bank interms 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 tothe chargesheet issued. He denied the charges leveled against him. NotEsatisfied with the reply, the Bank initiated departmental inquiry. One ShriK.C. Gupta was appointed as an Enquirer Officer. An opportunity wasafforded to the original writ petitioner to take assistance of a defencerepresentative (hereinafter referred to as “DR”) in accordance withRegulation, 2010 as also in accordance with guidelines issued by theBank. However, the original writ petitioner informed the Enquiry OfficerFthat he may be allowed to defend himself in the inquiry through a legalpractitioner. Keeping in view the restrictions under Regulation 44 of theRegulation, 2010 on engagement of legal practitioner during the inquiry,vide communication dated 17.3.2020, his request permitting him to defendhimself through a legal practitioner came to be declined by the EnquiryGOfficer. A request was made to the Disciplinary Authority by the originalwrit petitioner permitting him to engage a legal practitioner as his DR.Having considered that no complicated legal question has been involvedin the matter and the Presenting Officer appointed by the DisciplinaryAuthority is neither Law Officer nor a legal practitioner and keeping inmind the Regulation 44 of Regulation, 2010 on engagement of legalHpractitioner during the inquiry, the request to permit him to represent

through legal practitioner came to be declined by the DisciplinaryAuthority, which was communicated to him vide communication dated27.5.2020. Again a request was made by the original writ petitioner topermit him to engage a legal practitioner as his DR in the inquiryproceedings, which again came to be rejected. During the inquiryproceedings on 11.08.2020, the original writ petitioner submitted a consentletter of one Shri Mahesh Kumar Atal to be engaged as his DR. Thesaid request was turned down. Again a request was made to permit himto engage any legal practitioner or any retired officer from the Bank ashis DR, which again came to be turned down by the DisciplinaryAuthority. Aggrieved by the order passed by the Disciplinary Authoritydated 19.08.2020, the original writ petitioner approached the High Courtby way of SB Civil Writ Petition No.8363 of 2020 inter alia, praying thathe may be permitted to engage any legal practitioner or retired officer ofthe 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 asalso the guidelines issued by the Bank in respect of disciplinary proceedingthat no outsider, not associated with the Bank can be permitted to act asa DR were pressed into service. That by judgment and order dated28.1.2021, the learned Single Judge allowed the said writ petition anddirected the Bank to permit the original writ petitioner to be representedthrough retired officer of the Bank in the disciplinary proceedings. Feelingaggrieved and dissatisfied with the judgment and order passed by thelearned Single Judge, the Bank preferred appeal before the DivisionBench of the High Court. By impugned judgment and order, the DivisionBench of the High Court has dismissed the said appeal mainly on theground that since circular dated 31.1.2014 and the Regulation 8.2 did notprohibit the utilization of the services of ex- employee of the Bank,therefore, judgment and order passed by the learned Single Judge is notto be interfered with.

2.2. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court directing the Bank to permit theoriginal petitioner to be represented through retired officer of the Bankin the disciplinary proceedings, the Bank has preferred present appeal.

3.0. Shri Rishabh Sancheti, learned counsel appearing for theappellant has vehemently submitted that in the facts and circumstancesof the case, the High Court has committed a grave error in directing theappellant Bank to permit the respondent original writ petitioner to berepresented through retired officer of the Bank in the disciplinary AB

C

D

E

F

G

H

Aproceedings.

3.1. It is submitted that the High Court has not at all adverted toRegulation 8.2 of the Handbook of Vigilance Administration & DisciplinaryAction (hereinafter referred to as the “Handbook Procedure”) whichhas been duly approved by the Board of the Bank and applicable to allBkind of matters.

3.2. It is vehemently submitted that Regulation 8.2 of the HandbookProcedure specifically provides that the defence representative shouldbe serving official / employee from the Bank. It is submitted that theprovisions of Handbook Procedure are binding on all the employees andCapplicable to all kind of matters. It is submitted that even there was nochallenge to Regulation 8 of the Handbook Procedure by the originalwrit petitioner.

3.3. It is further submitted that High Court has not properlyappreciated the fact that provisions of Regulation, 2010 are to be readDwith Handbook provisions in a harmonious manner.

3.4. It is further submitted that High Court has erred in construingRegulation 44 as permitting outsiders into a disciplinary inquiry. It issubmitted that in fact Regulation 44 restricts legal practitioner to be DRwithout prior permission. It is submitted that Regulation 44 can in noEmanner can be construed to mean that it permits all outsiders exceptlawyers. It is submitted that this is so, since the basic principle is that anemployee has no right to representation in the departmental proceedingsby another person or a lawyer unless the Service Rules specificallyprovides for the same. It is submitted that right to representation isavailable only to the extent specifically provided for in the Rules. RelianceFis 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 PetroleumGCorporation 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 canbe restricted, controlled or regulated by the Statute, Service Rules,Regulations or Standing Orders and the extent of representation in anyenquiry has to be in accordance with the Statute, Service Rules,H

Regulations or Standing Orders etc. In support of above submission,reliance is placed on the decision of this Court in the case of CiplaLimited & Ors v. Ripu Daman Bahnot & Anr. reported in (1999) 4SCC 188; in the case of Crescent Dyes & Chemicals Limited v.Ram Naresh Tripathi reported in (1993) 2 SCC 115 and in the case ofIndian Overseas Bank vs. Indian Overseas Bank Officer’sAssociation and Another reported in (2001) 9 SCC 540.

A

B

3.6. It is further submitted that as held by this Court in the case ofBharat Petroleum Corporation Limited (supra) there should beminimum intervention of any outsider / legal practitioner in departmentalproceedings and the choice, if granted by the Statute, Service Rules,Regulations or Standing Orders, cannot be allowed to travel beyond theStatutes / Service Rules/ Regulations/ Standing Orders.

C

3.7. It is submitted that in the present case the service conditionsof the employee of the bank are governed by Regulation, 2010, which donot contain any provision enabling the Candidate under the enquiry tohave any defence representative outside the employees of the Bank. Itis submitted that the object and purpose of Regulation 44 was to keep acheck on frivolous and unnecessary request made for legal practitionerif the facts and situation do not demand so. It is submitted that HandbookProcedure issued by the Vigilance Department of the Bank which wasduly approved by the Board also do not allow the employee to chooseany outsider or a legal practitioner as his defence representative and thesame is expressly provided under Clause 8 of Chapter VIII of theHandbook Procedure.

D

E

3.8. It is submitted that the impugned judgment and order hascreated an anomalous situation where:

F

I.Ex-employees who themselves may have been subject of adisciplinary enquiry/ chargesheeted / dismissed from serviceare also enabled to act as Defence Representatives.

II.Ex-employees who were part of Vigilance or Audit Sectionswho come across a lot of information of confidential natureGare enabled to act as Defence Representatives, which wouldresult in grave injustice.

III.The solemn nature of proceedings is taken away and wouldresult in issues of orderliness as well as decorum when adisgruntled ex-employee is enabled to act as a DefenceH

Representative. CVC Circular no.19.9.2021 dated6.10.2021 prescribes the time limit for completion ofdepartmental enquiry within 6 months and the same hasadopted in the Vigilance Handbook page no.55 para 7.2. Ifan outsider gets permitted completion of departmentalinquiry within prescribed time limit shall be a problem.

A

B

IV.It is a matter of record that presently in almost all thepending Disciplinary enquiries, most of the Employees-under- enquiry are now asking for retired officials to act asDrs.

C3.9. It is submitted that aforesaid aspect has not at all beenconsidered by the High Court while permitting the respondent employeeto allow ex-employee as his DR.

Making the above submissions, it is prayed to allow the presentappeal.D

4.0. Learned counsel appearing for the respondent has submittedthat Regulation 44 of the Regulation 2020 do not bar engagement ofretired employee of the Bank to act as a DR. It is submitted that the onlybar under the Rules and the Regulation is with regard to appointment oflegal practitioner as a DR without permission of the Bank. It is submittedEthat therefore, the High Court has rightly directed the Bank to permit therespondent employee to avail service of the retired employee of theBank as defence representative.

4.1. It is submitted that Handbook of Vigilance Administrationand Disciplinary Action dated 15.3.2019 are not binding rules or guidelinesFand are merely directory in nature.

4.2. It is submitted that on conjoint reading of Clause 7.2 andClause 8.2 of Handbook Procedure would mean that only officer who isjunior to the presenting officer and Enquiry Officer can be appointed asDR. It is submitted that this would result in gross miscarriage of justiceand in violation of principles of natural justice.G

4..3. It is submitted that judgments cited by the learned counselfor the appellant shall not be applicable to the facts of the present caseas every bank has its own Rules and Regulations. It is submitted that inthe present case there is no specific bar in the service regulation inengaging retired employee of the Bank as defence representative. It isH

submitted that therefore, in absence of any specific bar and consideringthe Regulation 44, the High Court has not committed any error.

4.3. It is submitted that similar question came up for determinationbefore the High Court of Allahabad in the case of Rakesh Singh vs.Chairman and Disciplinary Authority and Another in Writ AppealNo. 64711 of 2013 wherein the High Court has held that in absence ofany specific bar in the Regulation, the denial of the right to engage aretired employee of the Bank as defence representative is not justified.It is submitted that said judgment of the Allahabad High Court has beenaffirmed by this Court and the SLP against the said judgment and orderhas been dismissed.

Making the above submissions and relying upon the abovedecisions, 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 therespondent employee who is facing disciplinary proceedings to representthrough ex-employee of the Bank. While permitting the respondentemployee, the High Court while construing Regulation 44 of Regulation,2010 has observed that the Regulation 44 only restricts representationby a legal practitioner, and even that too is permissible of course with theleave to the competent authority, and there is no complete or absolutebar even on engaging a lawyer, the employee cannot be restrained fromavailing services of retired employee of a Bank. However, it was thespecific case on behalf of the Bank that in view of circular dated31.01.2014 and clause 8.2 of the Handbook Procedure, the DR shouldbe a serving official / employee from the Bank. Therefore, the shortquestion which is posed for consideration of this Court is whether therespondent employee, as a matter of right is entitled to avail the servicesof an Ex- employee of the Bank as his DR in the departmentalproceedings ?

6.0. While considering the aforesaid issue, few decisions of thisCourt on the right of the employee to make representation in theDepartmental Proceedings are required to be referred to.

6.1. In the case of Kalindi and Ors (supra), it is observed andheld that ordinarily in inquiries before domestic tribunals the personaccused of any misconduct conducts his own case and therefore, it isnot possible to accept the argument that natural justice ex-facie demands AB

C

D

E

F

G

H

Athat in the case the enquiries into a chargesheet of misconduct against aworkman he should be represented by a member of his Union; thoughof-course an employer in his discretion can and may allow his employeeto avail himself of such assistance. The dictum of this decision has beensubsequently elucidated.

B6.2. In the case of the Dunlop Rubber Co. (India) Ltd v.Workmen reported in (1965) 2 SCR 139, after considering its earlierdecision in the case of Kalindri and ors (supra), it is observed and heldthat there is no per se right to representation in the departmentalproceedings through a representative through own union unless thecompany by its Standing Order recognized such a right. It is observedCthat refusal to allow representation by any Union unless the StandingOrders confer that right does not vitiate the proceedings. It is furtherobserved that in holding domestic enquiries, reasonable opportunity shouldbe given to the delinquent employees to meet the charge framed againstthem and it is desirable that at such an enquiry the employee should beDgiven liberty to represent their case by persons of their choice, if there isno standing order against such a course being adopted and if there isnothing otherwise objectionable in the said request. It is further observedthat denial of such an opportunity cannot be said to be in violation ofprinciples of natural justice.

E6.3. In the case of Cipla Ltd. and Ors (supra), it is observed andheld as under:

“13. In N. Kalindi v. Tata Locomotive & Engg. Co Ltd, it washeld that a workman against whom a departmental enquiry isheld by the Management has no right to be represented atFsuch enquiry by an outsider, not even by a representative ofhis Union though the Management may in its discretion allowthe employee to avail of such assistance. So also in DunlopRubber Company vs. Workmen, 1965 (2) SCR 139 = AIR 1965SC 1392 = 1965 (1) LLJ 426, it was laid down that anemployee has no right to be represented in the disciplinaryGproceedings by another person unless the Service Rulesspecifically provided for the same. A Three-Judge Bench ofthis Court inCrescent Dyes and Chemicals Ltd. vs. Ram NareshTripathi, (1993) 2 SCC 115 = 1992 Suppl. (3) SCR 559, laiddown that the right to be represented in the departmentalproceedings initiated against a delinquent employee can be H

H

regulated or restricted by the Management or by the ServiceRules. It was held that the right to be represented by anadvocate in the departmental proceedings can be restrictedand regulated by statutes or by the Service Rules includingthe Standing Orders, applicable to the employee concerned.The whole case law was reviewed by this Court in BharatPetroleum Corporation Ltd. vs. Maharashtra Genl. KamgarUnion & Ors., (1999) 1 SCC 626, and it was held that adelinquent employee has no right to be represented by anadvocate in the departmental proceedings and that if a rightto be represented by a co-workman is given to him, thedepartmental proceedings would not be bad only for thereason that the assistance of an advocate was not providedto 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 berepresented through counsel or agent can be restricted, controlled orregulated by statute, rules, regulations or Standing Orders. A delinquenthas no right to be represented through counsel or agent unless the lawspecifically confers such a right. The requirement of the rule of naturaljustice insofar as the delinquent’s right of hearing is concerned, cannotand does not extend to a right to be represented through counsel oragent. In the case before this Court, the delinquent’s right to representationwas regulated by the Standing Orders which permitted a clerk or aworkman working with him in the same department to represent himand said right stood expanded permitting representation through an officer,staff-member or a member of the Union, on being authorised by theState Government. Holding that the same is permissible and cannot besaid to be in violation of principles of natural justice, it is observed thatthe object and purpose of such provisions are to ensure that the domesticenquiry is completed with despatch and is not prolonged endlessly;secondly, when the person defending the delinquent is from the departmentor establishment in which the delinquent is working he would be wellconversant with the working of that department and the relevant rulesand would, therefore, be able to render satisfactory service to thedelinquent. In the present case also clause 8 permits representation throughserving officials / employee from the Bank.

6.5. A similar view has been expressed by this Court in the case AB

C

D

E

F

G

H

Aof Bharat Petroleum Corporation Limited (supra) as well as in thecase of National Sees Corporation Limited (supra).

6.6. In the case of Indian Overseas Bank (supra), it is observedand held that law does not concede an absolute right of representation toan employee in domestic enquiries as part of his right to be heard andBthat there is no right to representation by somebody else unless the rulesor regulation and standing orders, specifically recognize such a right andprovide for such representation.

7.0. Applying law laid down by this Court in the aforesaid decisionsto the facts of the case on hand, the respondent employee / respondentCdelinquent has no absolute right to avail the services by ex-employee ofthe Bank as his DR in the departmental proceedings. It is true thatRegulation 44 puts specific restriction on engagement of a legalpractitioner and it provides that for the purpose of an enquiry underRegulation, 2010, the Officer or Employee shall not engage a legalpractitioner without prior permission of the competent authority.DTherefore, even availing the services of legal practitioner is permissiblewith the leave of the competent authority. However, Regulation doesnot specifically provides that an employee can avail the services of anyoutsider and / or ex- employee of the Bank as DR. Therefore, Regulation,2010 neither restricts nor permits availing the services of any outsiderEand / or ex-employee of the Bank as DR and to that extent Regulation issilent. If the reasoning of the High Court is considered, the High Court isof the opinion that as there is no complete or absolute bar even onengaging a lawyer, it is difficult to accept that a retired employee of theBank cannot be engaged to represent a delinquent officer in thedepartmental inquiry. However, the High Court has not appreciated theFeffect of the Handbook. As per Clause 8 of the Handbook Procedurewhich has been approved by the Board of Directors and it is applicableto all the employees of the Bank and Clause 8 is with respect to thedefence representative, it specifically provides that DR should be servingofficial / employee from the Bank. The said Handbook Procedure whichGhas been approved by the Board of Directors of the Bank is binding toall the employees of the Bank. The High Court has considered Regulation44 of the Regulation, 2010, however has not considered clause 8 of theHandbook Procedure on the ground that the same cannot be said to besupplementary. However, we are of the opinion that Handbook Procedurecan be said to be supplementary. The same cannot be said to be inH

conflict with the Regulation 44 of Regulation, 2010. As observed hereinabove, neither Regulation 44 permits nor restricts engagement of anex-employee of the Bank to be DR. Therefore, Clause 8.2 cannot besaid to be in conflict with the provisions of Regulation, 2010. Provisionsof Regulation, 2010 and the provisions of Handbook Procedure arerequired to be read harmoniously, the result can be achieved without anyviolation of any of the provisions of Regulation, 2010 and the HandbookProcedure. The objects of Regulation 44 of Regulation, 2010 and Clause8 of the Handbook Procedure seem to be to avoid any outsider includinglegal representative and / or even ex-employee of the Bank. At the costof repetition, it is observed that there is no absolute right in favour of thedelinquent officer’s to be represented in the departmental proceedingsthrough the agent of his choice and the same can be restricted by theemployer.

8.0. As per the Bank there is a justification also to permit thedelinquent officer to be represented in the departmental proceedingsthrough serving official / employee from the Bank only. The Bank hasjustified its action of not permitting ex-employee of the Bank as DR andaccording to the Bank, the ex-employee who themselves may have beensubject of a disciplinary enquiry/ chargesheet / dismissed from service;the ex-employee might be a part of vigilance or audit sections who comeacross a lot of information of confidential nature and therefore, if theyare allowed to be DR in the departmental proceedings, which wouldresult in grave injustice; the solemn nature of proceedings is taken awayand would result in issues of orderliness as well as decorum when adisgruntled ex-employee is enabled to act as defence representative;they may adopt delay tactics in departmental enquiry and may not permitcompletion of department enquiry within six months as mandated by theCVC Circular and as per Vigilance Handbook adopted by the Bank. Forall the aforesaid reasons not permitting the delinquent officer to berepresented through ex-employee of the Bank in the departmental enquirycannot be said to be in any way in breach of principles of natural justiceand / or it violates any of the rights of the delinquent officer. As persettled proposition of law and as observed herein above, in decisionsreferred to herein above, the only requirement is that delinquent officermust be given fair opportunity to represent his case and that there is noabsolute right in his favour to be represented through the agent of hischoice. However, at the same time, if the charge is severe and complexnature, then request to be represented through a counsel can be considered AB

C

D

E

F

G

H

Akeeping in mind Regulation 44 of Regulation, 2010 and if in a particularcase, the same is denied, that can be ground to challenge the ultimateoutcome of the departmental enquiry. However, as a matter of right ineach and every case, irrespective of whether charges is severe andcomplex nature or not, the employee as a matter of right cannot praythat he may be permitted to represent through the agent of his choice.B

9.0. Now so far as reliance placed upon the decision of theAllahabad High Court in the case of Rakesh Singh (supra) by thelearned counsel for the respondent is concerned, it is required to benoted that at the time when the High Court decided the matter no suchClause 8 of the Handbook Procedure was in force. Handbook ProcedureChas been adopted by the Board of Directors in its meeting held on15.3.2019. Therefore, the said decision shall not be applicable to thefacts of the case on hand.

10. In view of the above and for the reasons stated above, theHigh Court has committed an error in permitting respondent delinquentDofficer to be represented in the departmental enquiry through ex-employeeof the Bank. The view taken by the learned Single Judge confirmed bythe Division Bench is unsustainable.

Accordingly, present appeal is allowed and the impugned judgmentand order passed by the learned Single Judge confirmed by the DivisionEBench permitting the respondent delinquent officer to be represented inthe departmental proceedings through ex-employee of the Bank is herebyquashed and set aside. Present appeal is accordingly allowed. In thefacts and circumstances of the case, there shall be no order as to costs.

FDevika Gujral

Appeal allowed.

G

H