THE Supreme Court Tuesday ruled that right of a delinquent officer to be represented by a counsel or agent of his or her or their choice before the disciplinary committee is not an absolute right but one that could be restricted and regulated. It, however, clarified that if the allegation against the officer is of a severe and complex nature, then the request to be represented through a counsel or agent should be considered.
This proposition, the Court said, flowed from the entitlement of a fair hearing, which is applicable in judicial as well as quasi-judicial decisions.
A two-judge bench of Justices L. Nageswara Rao and Sanjiv Khanna was ruling on a petition filed by the chairman, State Bank of India (SBI), Central Office, Mumbai, and the Chief General Manager, SBI, Local Head Office, Chennai against the Kerala High Court's judgment quashing the disciplinary proceedings against a bank employee for grave misconduct by sanctioning advances in violation of the Head Office instructions causing financial loss to the bank.
A single-judge bench of the High Court on March 14, 2007, held that the inquiry officer had wrongly rejected the request of the accused to be defended/represented by the organizing secretary of the All-India Confederation of Bank Organizations, Kerala Unit. This, the High Court held, amounted to a denial of reasonable opportunity, notwithstanding the participation of the accused in the inquiry.
Aggrieved with the single-judge bench order, the bank approached the division bench, which affirmed the single judge bench order and dismissed the bank's appeal. The High Court interpreted Clause 22(ix)(a) of Chapter VIII of the Service Code to the effect that the article "the" was missing before the bank employees in the said clause, which indicates that the union/association referred to therein was not only regarding employees of the bank itself, namely 'the Bank of Cochin', and would, therefore, include employees' union/association of other banks also.
22(ix)(a) of the Service Code reads as follows:
"ix. The procedure in such cases shall be as follows: (a) An employee against whom disciplinary action is proposed or likely to be taken shall be given a charge sheet clearly setting forth the circumstances appearing against him and a date shall be fixed for an enquiry, sufficient time being given to him to prepare and give his explanation as also to produce any evidence that he may wish to tender in his defence. He shall be permitted to appear before the officer conducting the enquiry, to cross examine any witness and produce other evidence in his defence. He shall also be permitted to be defended by a representative of a registered Union/Association of bank employees or with the Bank's permission, by a lawyer. He shall also be given a hearing as regards the nature of the proposed punishment in case any charge is established against him."
The apex court disapproved of this interpretation of clause 22(ix)(a) made by the High Court. It observed that clause 2(e) of the Service Code defines the expression 'bank' to mean in this case, the Bank of Cochin Ltd., and not any other bank.
"The judgment under challenge seems to have overlooked the implications of clause 2(e) of the Service Code. The objective of definition clauses is to avoid frequent repetition in describing the subject matter to which the word or expression is intended to apply", the top court held.
The accused had sought permission from his employer to engage services of F.B. Chrysostom (Syndicate Bank, Mattancherry, Cochin), the Organising Secretary of the All-India Confederation of Bank Officers Organisation, Kerala State Unit to represent him before the inquiry officer. The accused's request was rejected citing the Service Code that said that a charge-sheeted officer could not be defended by an office-bearer of any association or a union except that of the bank.
On April 18, 1985, the accused was dismissed from service based upon the inquiry report that confirmed the irregularities alleged, and held that he had made unauthorized advances beyond his discretionary powers without the sanction of the Head Office. Nearly four years and five months after his dismissal, the accused filed a memorandum of appeal before the Chief General Manager, State Bank of India, Local Head Office, Chennai, which remained unattended and was not listed for hearing for over nine years.
The accused approached the high court in 1998 seeking quick disposal of his appeal. The High Court, on October 14, 1998, directed the Chief General Manager of the bank to consider the appeal and pass appropriate orders after rendering an opportunity of being heard to the accused within ten weeks.
The top court disapproved of the conduct of the accused employee. It said he was aware that his request to be represented by a representative of his own choice had been rejected. Even then he took time and decided not to file an appeal before the Board of Directors against the order of the inquiry officer rejecting his request. He allowed the inquiry proceedings to continue and then filed an application for production of documents. When asked about relevancy, his stance was he had his own reasons on how the documents were relevant. In spite of ample opportunity, the accused did not adduce evidence or examine witnesses, and abruptly stood up and walked out. Observations and findings in the disciplinary proceedings on irregularities regarding exceeding his authority in the grant of advances, acceptance of discovery bills and the issue of bank guarantees, among other things, are uncontroverted.
It also took note of the fact the dismissal order was passed on April 18, 1985, that remained unchallenged for more than four years, as the appeal to the Chief General Manager of the State Bank of India was filed on September 20, 1989.
"Undoubtedly, the Service Code does not stipulate any time period within which the appeal may be referred to the Board of Directors whose decision is to be final, but it is well settled that no time does not mean any time. The assumption is that the appeal would be filed at the earliest possible opportunity. However, we would hold that the appeal should be filed within a reasonable time. What is a reasonable time is not to be put in a straitjacket formula or judicially codified in the form of days etc. as it depends upon the facts and circumstances of each case. A right not exercised for a long time is non-existent. The doctrine of delay and laches, as well as acquiescence, are applied to non-suit the litigants who approach the court/appellate authorities belatedly without any justifiable explanation for bringing action after unreasonable delay", the Court held.