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2006 DIGILAW 115 (PAT)

Someshwar Lal v. Reserve Bank Of India

2006-01-31

BARIN GHOSH

body2006
Judgment 1. Heard both the parties. 2. The petitioner was charge-sheeted on account of his alleged misbehavior with his superiors on a date as mentioned in the charge-sheet. It was alleged that the petitioner on that fateful date while misbehaved with his superiors also used filthy language against them. The petitioner gave a reply to the charge-sheet and in that, he had stated that he did not use filthy language. At the same time, he said that his activities of that date were not aimed at his superior officers, but against the members of the rival union, who were seeking to interfere with the demonstration that the union of the petitioner was giving at that time. 3. Subsequent thereto, an enquiry officer was appointed. There is no dispute that this enquiry officer is an employee of the Reserve Bank of India. There appears to be also no dispute that the enquiry officer is a law graduate and acquired experience as a legal practitioner before joining the service of the Reserve Bank of India. The petitioner wanted to engage a defence counsel and nominated a person as such, who admittedly was not a member of any union of the employees of the Reserve Bank of India but may be was a member of the federation of the union of which a union of the Reserve Bank of India is affiliated. Petitioner was not permitted to engage the said person as his defence counsel. Petitioner then nominated yet another person as his defence counsel, who happened to be a member of the union of the State Bank of India. This prayer was also rejected. The petitioner then wanted to engage a legal practitioner as his defence counsel. This prayer was also turned down. Thereupon, the petitioner defended himself at the enquiry. On several dates, enquiry was held. Some of them were attended by the petitioner and some were not attended by him. During the course of enquiry, one Mr. Jamal was examined as a prosecution witness. When the turn to cross-examine him came, the petitioner "represented that he would cross-examine the said witness after he has cross-examined the next witness of the Bank, such permission was granted to the petitioner by the enquiry officer. Subsequently, the next witness of the prosecution namely, Mr. Singh was examined in Chief before the enquiry officer. On the date when Mr. Subsequently, the next witness of the prosecution namely, Mr. Singh was examined in Chief before the enquiry officer. On the date when Mr. Singh was being examined in Chief, the petitioner had received a communication that his elder son is being deported from Rasia and that he would arrive at Delhi on the next date. Petitioner represented before the Enquiry Officer that his younger son, who is a minor, is also in Rasia and if the elder son of the petitioner is deported then the minor son too have to be brought back to India, inasmuch as a minor he would not be in a position to manage his affairs. The petitioner represented to the enquiry officer that having regard to such mental state, it would not be possible for him to cross-examine Mr. Singh. There is no dispute that Mr. Singh was the most vital witness. He is the officer, who is said to have been abused by the petitioner. He is the officer, who prepared alongwith others a report and thereby accused the petitioner. In examination in Chief, Mr. Singh had proved the signatures on that report and stated that the said report is that of his and others. It was not only unfortunate but it was absolutely unjust on the part of the enquiry officer in not giving appropriate time to the petitioner to cross-examine Mr. Singh without doubting any of the informations supplied by him about his sons. It is surprising that an enquiry officer in a domestic enquiry despite having had received such information from an employee, who was defending himself alone, fixed the time to cross-examine Mr. Singh at 2.00 pm on the same date Mr. Singh was examined in Chief. This conduct on the part of the enquiry officer is absolutely unjust. It seems to me that legal training that he had received did not dawn upon him, for a man with legal training could not act such a dastardly manner. 4. According to the writ petition, subsequent thereto, the enquiry report was submitted and on the basis thereof, a punishment order had been meted out, whereby four increments of the petitioner were reduced. Later on the petitioner was permitted to retire voluntarily and there is no dispute that the petitioner did take such voluntary retirement. In the writ petition, the petitioner has taken principally two grounds to attack the disciplinary proceedings. Later on the petitioner was permitted to retire voluntarily and there is no dispute that the petitioner did take such voluntary retirement. In the writ petition, the petitioner has taken principally two grounds to attack the disciplinary proceedings. First is that the petitioner was pitted against a lawyer for the enquiry officer was a trained lawyer and accordingly, by refusing to permit him to appoint his chosen defence counsel, the authorities concerned vitiated the disciplinary proceedings by denying natural justice to the petitioner. 5. There is no dispute that the regulations pertaining to disciplinary proceedings of the employees of the Reserve Bank of India are silent as to engagement of defence counsel. There is neither any prohibition nor any permission to engage a lawyer as a defence counsel or any person as may be selected by the delinquent. The petitioner, therefore, took a point that in such a situation by denying to permit the petitioner to engage defence counsel while a Presenting Officer was engaged, the authorities concerned have violated the principles of natural justice. Although, a counter affidavit was originally filed by the Reserve Bank of India but only after the metter was argued at length and these lacunaes were pointed out the Reserve Bank of India filed a further counter affidavit enclosing therewith a copy of an award passed under the Industrial Disputes Act wherein it has been provided that a delinquent employee of the Reserve Bank of India shall be entitled to have the assistance of a member of the union of the Reserve Bank of India. This award has been later on clarified by the Reserve Bank of India wherein it has been provided that if such member is a lawyer, he may also be appointed. In view of the said award, which is binding with equal force upon the Reserve Bank of India and the petitioner, the petitioner was entitled to appoint as his defence counsel only such person, who is a member of the Union of Reserve Bank of India and no one else. The petitioner must be deemed to be aware of his rights and obligations flowing from the said award. The petitioner must be deemed to be aware of his rights and obligations flowing from the said award. In those circumstances, the petitioner having not requested either the disciplinary authority or the enquiry officer to permit him to engage as his defence counsel a member of the Union of the Reserve Bank of India cannot now contend that there has been violation of natural justice. 6. The next contention of the petitioner is that he had not been granted an opportunity to cross-examine Mr. Singh or Mr. Jamal and accordingly, the proceedings stood vitiated. In the writ petition, the petitioner has come with the facts up to the stage when Mr. Singh was examined in Chief and the petitioner was granted opportunity to cross-examine Mr. Singh at 2.00 pm on the same date Mr. Singh was examined in Chief. In the original counter affidavit, nothing further was brought on record. As aforesaid in the latest counter affidavit which was filed after the arguments in the case started the Reserve Bank of India has brought on record that subsequent thereto by two notices, two several dates were fixed for cross-examination of Mr. Jamal. Inasmuch as the said affidavit was filed when the arguments were going on, I granted an adjournment of the hearing of the matter in order to enable the petitioner to throw further light on the issue. The petitioner has not denied receipt of the notices by which further dates for cross-examination of Mr. Jamal had been fixed. The learned counsel for the petitioner submitted that these two notices will show that the enquiry officer proceeded on the basis that the petitioner refused to cross-examine Mr. Singh for the petitioner did not come to cross-examine him at 2.00 pm on the date mentioned above and accordingly, question of examining Mr. Jamal did not arise for it was agreed that Mr. Jamal will be cross-examined after cross-examination of Mr. Singh is over. This submission is absolutely correct for in the event the enquiry officer wanted to give the petitioner a further opportunity to cross- examine Mr. Singh, he would have said so in the aforementioned notices but instead in the notices referred to above, he specifically mentioned that the dates mentioned in those notices are for holding sittings to cross-examine Mr. Jamal. This submission is absolutely correct for in the event the enquiry officer wanted to give the petitioner a further opportunity to cross- examine Mr. Singh, he would have said so in the aforementioned notices but instead in the notices referred to above, he specifically mentioned that the dates mentioned in those notices are for holding sittings to cross-examine Mr. Jamal. However, that would not be enough for the petitioner after having had received those two notices or any of them did not revert back to the enquiry officer with a request to fix a date for cross-examination of Mr. Singh, reminding the enquiry officer of the understanding that cross examination of Mr. Jamal will be done only after cross-examination of Mr. Singh is over. The petitioner did not do so, on the contrary he maintained stoic silence. In the circumstances, it would not be appropriate to proceed on the basis that the enquiry officer would not have fixed another date of cross-examination of Mr. Singh. 7. The learned counsel for the petitioner submitted that having regard to the fact that the enquiry officer was a lawyer, petitioner should have been permitted to engage a lawyer as his defence counsel. The learned counsel for the petitioner cited a Judgment of a Division Bench of this Court rendered in the case of Shiv Nath Singh V/s. The Punjab National Bank reported in 1991(2) P.L.J.R. 101. In that case a discretion vested in the disciplinary authority having regard to the circumstances of the case to permit a legal practitioner to be appointed as defence counsel. The Court held that when the enquiry officer was a trained legal man the discretion should have been used in permitting a legal man to be engaged as defence counsel. In the instant case, no discretion is vested either with the disciplinary authority or with the Bank to permit a legal practitioner to be appointed as defence counsel. The rule is that a member of the Union of Reserve Bank of India may be appointed as a defence counsel and accordingly, if such a member is a legal practitioner he may be appointed, although, the Enquiry Officer as well as the Presenting Officer are not legally trained persons. The rule is that a member of the Union of Reserve Bank of India may be appointed as a defence counsel and accordingly, if such a member is a legal practitioner he may be appointed, although, the Enquiry Officer as well as the Presenting Officer are not legally trained persons. It was also contended by the learned counsel for the petitioner that inasmuch as the report upon which reliance has been placed by the Enquiry Officer as well as by the disciplinary authority had been authored by seven officers and inasmuch as only one of them namely, Mr. Singh had deposed on that report, who according to the charge-sheet is the person alleged to have been effected by the alleged wrongful activity of the petitioner; and the remaining authors of the report having not been called to depose thereon, the petitioner lost his substantial opportunity to establish that the charges against him are figment of imagination of Mr. Singh. In this connection, the learned counsel for the petitioner referred to a Judgment of the Hon ble Supreme Court in the case of Meenglas Tea Estate V/s. The Workmen reported in AIR 1963 SC 1719 . In that case, the Enquiry was conducted by the Officers, who had been assaulted, on the charge that such assault was committed by those workmen and only- certain questions were put to each workman in turn. The Supreme Court held that the enquiry is vitiated for it was not held in accordance with the principles of natural justice. The Supreme Court pointed out that barest of bare rules of natural justice requires the delinquent to know the charges that are to be proved, testimony by which such charges are to be proved, in order to give him a fair chance and accordingly, he must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination as he desires. This Judgment has no application to the case at hand. In the instant case, the report was authored by seven officers but was proved by one and accordingly, it must be deemed that the report by one, thus, stood proved. This Judgment has no application to the case at hand. In the instant case, the report was authored by seven officers but was proved by one and accordingly, it must be deemed that the report by one, thus, stood proved. The petitioner was given an opportunity to cross-examine that person which the petitioner declined on the date as mentioned above and in the circumstances fully justified but the enquiry proceeding was not closed on that date. The petitioner was granted an opportunity to cross-examine the other witness. At that stage, the petitioner did not ask for an opportunity to cross-examine the author of that document, which stood proved and in fact, has not taken any plea in relation thereto in the petition or in the rejoinder. In such circumstances, the one and only conclusion would be that not only the petitioner had fullest opportunity of hearing the evidence in support of the charge but had been granted an opportunity to cross-examine which he refused. 8. In those circumstances, the writ petition fails and the same is dismissed.