Delinquent employee doesn’t have an absolute right to be represented in departmental proceedings by the agent of his choice: SC

Supreme Court: In a case where the Rajasthan High Court had permitted the respondent employee who is facing disciplinary proceedings to represent through ex-employee of the Bank, the bench of MR Shah* and Sanjiv Khanna, JJ has interpreted Regulation 44 of the Rajasthan Marudhara Gramin Bank (Officers and Employees) Service Regulation, 2010 read with clause 8.2 of the Handbook Procedure to hold that the delinquent employee has no absolute right to avail the services by ex-employee of the Bank as his DR in the departmental proceedings.

Issue

In the case at hand, the Cashier – cum­ Clerk (office Assistant), while working as a Branch Manager, was alleged to have committed certain irregularities amounting to misconduct. By the impugned judgment and order, the Rajasthan High Court had permitted the respondent employee who is facing disciplinary proceedings to represent through ex-employee of the Bank. While permitting the respondent employee, the High Court while construing Regulation 44 of the Rajasthan Marudhara Gramin Bank (Officers and Employees) Service Regulation, 2010 has observed that the Regulation 44 only restricts representation by a legal practitioner, and even that too is permissible of course with the leave to the competent authority, and there is no complete or absolute bar even on engaging a lawyer, the employee cannot be restrained from availing services of retired employee of a Bank. However, it was the specific case on behalf of the Bank that in view of circular dated 31.01.2014 and clause 8.2 of the Handbook Procedure, the DR should be a serving official / employee from the Bank.

Hence, the following question arose before the Supreme Court:

Whether the respondent employee, as a matter of right is entitled to avail the services of an Ex-employee of the Bank as his DR in the departmental proceedings?

Analysis

Regulation 44 of Regulations, 2010

It is true that Regulation 44 puts specific restriction on engagement of a legal practitioner and it provides that for the purpose of an enquiry under Regulation, 2010, the Officer or Employee shall not engage a legal practitioner without prior permission of the competent authority. Therefore, even   availing the services of legal practitioner is permissible with the leave of the competent authority. However, Regulation does not specifically provides that an employee can avail the services of any outsider and/or exemployee of the Bank as DR. Therefore, Regulation, neither restricts nor permits availing the services of any outsider and /or ex¬employee of the Bank as DR and to that extent Regulation is silent.

Clause 8 of the Handbook Procedure

The High Court was of the opinion that as there is no complete or absolute bar even on engaging a lawyer, it is difficult to accept that a retired employee of the Bank cannot be engaged to represent a delinquent officer in the departmental inquiry. However, the Supreme Court noticed that the High Court has not appreciated the effect of the Handbook.

As per Clause 8 of the Handbook Procedure which has been approved by the Board of Directors and it is applicable to all the employees of the Bank and Clause 8 is with respect to the defence representative, it   specifically provides that DR should be serving official/employee from the Bank. The said Handbook Procedure which has been approved by the Board of Directors of the Bank is binding to all the employees of the Bank.

Further, the High Court has considered Regulation 44 of the Regulation, 2010, however has not considered clause 8 of the Handbook Procedure on the ground that the same cannot be said to be supplementary. However, we are of the opinion that Handbook Procedure can be said to be supplementary. The same cannot be said to be in conflict with the Regulation 44  of Regulation, 2010.

Neither Regulation 44 permits nor restricts engagement of an ex-employee of the Bank to be DR. Therefore, Clause 8.2 cannot be said to be in conflict with the provisions of Regulation, 2010.   Provisions of Regulation, 2010 and the provisions of Handbook Procedure are required to be read   harmoniously, the result can be achieved without any violation of any of the provisions of Regulation, 2010 and the Handbook Procedure.

“The objects of Regulation 44 of Regulation, 2010 and Clause 8 of the Handbook Procedure seem to be to avoid any outsider including legal representative and/or even ex-employee of the Bank.”

Important Rulings

N. Kalindi v. Tata Locomotive & Engg. Co. Ltd, (1960) 3 SCR 407

Ordinarily in inquiries before domestic tribunals the person accused of any misconduct conducts his own case and therefore, it is not possible to accept the argument that natural justice ex-facie demands that in the case the enquiries into a chargesheet of misconduct against a workman he should be represented   by a member of his Union; though of-course an employer in his discretion can and may allow his employee to avail himself of such assistance.

Dunlop Rubber Co. (India) Ltd v. Workmen, (1965) 2 SCR 139

There is no per se right to representation in the departmental proceedings through a representative through own union unless the company by its Standing Order recognized such a right. Refusal to allow representation by any Union unless the Standing Orders confer that right does not vitiate the proceedings. Further, in holding domestic enquiries, reasonable opportunity should be given to the delinquent employees to meet the charge framed against them and it is desirable that at such an enquiry the employee should be given liberty to represent their case by persons of their choice, if there is no standing order against such a course being adopted and if there is nothing otherwise objectionable in the said request. Denial of such an opportunity cannot be said to be in violation of principles of natural justice.

Crescent Dyes and Chemicals Ltd. v. Ram Naresh Tripathi, (1993) 2 SCC 115

In the departmental proceedings right to be represented through counsel or agent can be restricted, controlled or regulated by statute, rules, regulations or Standing Orders. A delinquent has no right to be represented through counsel or agent unless the law specifically confers such a right. The requirement of the rule of natural justice insofar as the delinquent’s right of hearing is concerned, cannot and does not extend to a right to be represented through counsel or agent.

Bharat Petroleum Corporation Ltd. v. Maharashtra Genl. Kamgar Union, (1999) 1 SCC 626

A delinquent employee has no right to be represented by an advocate in the departmental  proceedings and that if a right to be represented by a co-workman is given to him, the departmental proceedings would not be bad only for the reason that the assistance of an advocate was not provided to him.

Ruling

As per settled proposition of law in the abovementioned rulings and the analysis and interpretation by the Supreme Court in the case at hand, the only requirement is that delinquent officer must be given fair opportunity to represent his case and that there is no absolute right in his favour to be represented through the agent of his choice. However, at the same time, if the charge is severe and complex nature, then request to be represented through a counsel can be considered keeping in mind Regulation 44 of Regulation, 2010 and if in a particular case, the same is denied, that can be ground to challenge the ultimate outcome of the departmental enquiry. However, in each and every case, irrespective of whether charges is severe and complex nature or not, the employee as a matter of right cannot pray that he may be permitted to represent through the agent of his choice.

It was, hence, held that the High Court had committed an error in permitting respondent delinquent officer to be represented in the departmental enquiry through ex-employee of the Bank.

[Rajasthan Marudhara Gramin Bank v. Ramesh Chandra Meena, 2022 SCC OnLine SC 9, decided on 04.01.2022]


*Judgment by: Justice MR Shah

For Appellant: Advocate Rishabh Sancheti

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