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2008 DIGILAW 91 (GAU)

Amiya Gohain Borah v. United Bank of India

2008-02-06

AMITAVA ROY

body2008
JUDGMENT Amitava Roy, J. 1. The proceedings in succession by the same Petitioner, witness a challenge to her suspension, refusal of her request to be represented by a legal practitioner in the related departmental inquiry, as well as her posting at Staff Training College, Kolkata following revocation of her suspension in between. This Court by order dated 5.10.2007, passed in W.P(C) No. 4983/2007, had stayed the Petitioner's transfer. Her suspension having, in the meantime, been revoked, the assailment stands confined in praesenti to the rejection of the Petitioner's prayer for representation by legal practitioner and her transfer to Kolkata. 2. I have heard Mr. A.M. Mazumdar, senior Advocate assisted by Ms. D Borgohain and Mrs. M. Borah, advocates for the Petitioner and Mr. S. Dutta, learned Standing counsel. United Bank of India for the Respondents. 3. The pleadings of the parties outline their scripted assertions and are thus necessary to be traversed to appropriately appreciate the arguments founded thereon. The Petitioner is a Senior Manager of the United Bank of India ('the Bank'), having joined the institution in the year 1987. According to her, she was promoted to the post of Deputy Manager in the year 1999-2000 and also served as Deputy Chief Officer at the Zonal Office, Guwahati and as Officer at the Regional Office, Guwahati of the Bank. She assumed the charge of Senior Manager, Faculty, Staff Training Center, Guwahati in the year 2005 and monitored the training of the officers and clerks of the whole Region, in addition to taking classes in connection therewith. Following the dissolution of the Staff Training Centre, she coordinated the training classes at the Indian Institute of Bank Management (IIBM). 4. By order dated 19.9.2006, she was placed under suspension, pending departmental proceedings for certain alleged acts of gross misconduct. The Petitioner has asserted that the order of suspension was served upon her when she was seriously ill and on leave with effect from 28.8.2006. According to her, she underwent medical treatment, at Guwahati and at the Apollo Hospital, Chennai and her ailment had been diagnosed to be Pulmonary Tuberculosis. Because of her frail and diseased physical condition and the resultant mental anguish, she was rendered unable to impugn the order of suspension immediately. The Respondent Bank as well, for the next 7 months, did not apprise her of the further steps taken in this regard. Because of her frail and diseased physical condition and the resultant mental anguish, she was rendered unable to impugn the order of suspension immediately. The Respondent Bank as well, for the next 7 months, did not apprise her of the further steps taken in this regard. It was only in the month of May 2007, when the Petitioner was still at Chennai, undergoing medical treatment that she received the letter dated 25.4.2007, issued by the Deputy General Manager (Personnel), United Bank of India, Respondent No. 3, communicating to her about certain irregularities in availing loan from the Bank. Thereby, the Petitioner was required to reply thereto, within seven days from the receipt thereof. On the Petitioner's request for time, she was allowed to submit her reply by 22.5.2007. She accordingly did so by her letter dated 22.5.2007, providing the necessary clarifications, as sought for and denying the charges, as well. 5. In between, on 21.5.2007, the Petitioner by her letter of the even date addressed to the Respondent No. 3,'sought the liberty to avail the services of a legal practitioner to represent her in defence in the departmental inquiry. This was, however, turned down by the aforementioned authority by his letter dated 8.6.2007. The Petitioner has asserted that due to her poor health for quite some time, she was unable to attend to her case appropriately, so much so that she could not even visit the office to collect her subsistence allowance. According to her, the doctors as well, had advised her not to take any physical strain. It was in this premise that she pleaded for being allowed to be represented by a legal practitioner in the departmental proceeding on human considerations. The Petitioner referring to Rule 7 of the United Bank of India Officer Employees' (Discipline and Appeal) Regulations, 1976 ('the Regulations'), has insisted that in terms thereof, as well as in compliance of the dictum of fairness in action, her request ought to have been acceded to and that the denial thereof, is per se, arbitrary, whimsical and unconstitutional. As the process remained in limbo to the prejudice of the Petitioner, she being aggrieved by the inexplicable delay, approached this Court with W.P(C) No. 4309/2007, impeaching the order of suspension as well as the repudiation of her prayer for a legal practitioner-as her defence assistant. As the process remained in limbo to the prejudice of the Petitioner, she being aggrieved by the inexplicable delay, approached this Court with W.P(C) No. 4309/2007, impeaching the order of suspension as well as the repudiation of her prayer for a legal practitioner-as her defence assistant. The Petitioner has averred that on issuance of notice on the said proceeding by this Court, the Respondent-Bank framed charges against her, as contained in the letter under Ref. No. PD/DIR/1375/6500/2007, dated 30.8.2007. Her suspension, however, was revoked on 1.9.2007, but thereby she was directed to report for duty at the Staff Training College, Kolkata. The Petitioner has vouched that as she is suffering from pulmonary tuberculosis and undergoing treatment in connection therewith, she requires family care for early recuperation. Further, she has a school going child in the midst of her academic session and that in case the impugned order of transfer is enforced, not only the same would visit her with immense hardship, but the same would result in total disruption in the family. The Petitioner has averred that being a patient of tuberculosis and other bronchial complications, her attending doctor has advised her not to indulge in stressful works. She has stated that in case, she is made to join at Staff Training Centre, Kolkata, she would not be able to perform her duties as a faculty member thereof, as this would inter alia, involve rendering lectures at a stretch for several hours, which her present health condition, would not permit. She has insisted that her posting at Kolkata would further aggravate her bronchial ailments. The Petitioner has asserted as well, that her transfer to Kolkata, is not prompted any administrative exigency. Being aggrieved, she has instituted W.P(C) No. 4983/2007, impugning her posting at Kolkata on revocation of the order of suspension. As alluded hereinabove, this direction remains in abeyance in terms of the order dated 5.10.2007, of this Court. 6. The Respondent Bank in its affidavit, while endorsing the impugned decisions, has insisted that the Petitioner, having violated the provisions of the Regulations in the matter of obtaining loans from it, a departmental proceeding thereunder, had been initiated rightly. As alluded hereinabove, this direction remains in abeyance in terms of the order dated 5.10.2007, of this Court. 6. The Respondent Bank in its affidavit, while endorsing the impugned decisions, has insisted that the Petitioner, having violated the provisions of the Regulations in the matter of obtaining loans from it, a departmental proceeding thereunder, had been initiated rightly. Detailing its stand on the charges, narration whereof, having regard to the compass of scrutiny herein, is inessential, the answering Respondent has abided by the posting order, contending that with the abolition of Regional Training Center in India, except the one at Kolkata, it was considered that the posting of the Petitioner with her experience, as a faculty Member of the Staff Training Centre, Guwahati, would be in the best interest of the Bank. It categorically denied the allegation of mala fide and insisted that transfer being an incident of service, no interference is called for, in absence of any infraction of the Regulations or the professed guidelines on the subject. The Respondent Bank reiterated that the Petitioner's transfer at the Staff Training Centre, Kolkata, was with the objective of best utilization of her services and further, as a vacancy was available there to accommodate her. The assertions in the writ petition, bearing on the Petitioner's illness, treatment in connection therewith and dislocation in the family comprising amongst others of a school going child presently in the midst of academic session, were dismissed as vague. The Respondent-Bank, has maintained that the Petitioner's request for being allowed to be represented by a legal practitioner, was not acceptable in face of the bar under Clause 7 of the Regulations. 7. The Petitioner in her reply affidavit, supplemented by additional pleadings, while generally reiterating the averments in the writ petition, has affirmed that though she had requested some officers/employees of the Bank to act as her defence assistant in the departmental proceeding, they had declined to appear against their employer. The retired Government officials when approached by her apprised her that the Regulations do not permit such engagement. While contending that the Respondent Bank had transferred her to Kolkata being fully aware of her serious ailment and the attendant medical treatment therefor, as a punitive measure, the Petitioner has avowed that similarly placed officers with better experience and training, though available at Guwahati she has been picked up on irrelevant considerations. While contending that the Respondent Bank had transferred her to Kolkata being fully aware of her serious ailment and the attendant medical treatment therefor, as a punitive measure, the Petitioner has avowed that similarly placed officers with better experience and training, though available at Guwahati she has been picked up on irrelevant considerations. In an interim application (registered as M.C. No. 4452/2007), the Petitioner has complained as well, that her salary since the month of September, 2007, has not been released, for which she is in financial stringency, disadling her from adequately meeting the medical expenses. 8. Mr. Mazumdar, in the above state of pleadings, has emphatically urged that it being permissible under Clause 7 of the Regulations to provide the assistance of a legal practitioner to an officer/employee of the Bank as the defence assistant in a departmental proceeding, the denial of the Petitioner's request to the said effect in the facts and circumstances of the case, is not only in contravention of the letter and spirit of the Regulations, but also is per se, arbitrary, unfair and unreasonable. According to the learned senior Counsel, the concerned authority of the Bank being endowed with the discretion to permit such representation on a dispassionate evaluation of the prevailing facts and circumstances, the impugned decision of rejecting her request for representation by a legal practitioner on the plea of an absolute bar, in the Regulations, is an abuse of the administrative power and is thus liable to be adjudged illegal and unconstitutional. 9. Mr. Mazumdar has urged that the refusal to provide the Petitioner with the assistance of a legal practitioner, tantamounts to denial of procedural fairness in the departmental inquiry and betrays bias and a predetermined mind of the Bank. In view of the uncontroverted assert on of the Petitioner that no official employee is willing to extend assistance to her in the departmental proceeding, appropriate writ and/or direction ought to be issued by this Court for redressal of her grievances, he urged. The learned senior Counsel, argued that though normally on revocation of an order of suspension, the incumbent concerned is reinstated in the same post at the same station, in the case in hand, the impugned direction to post the Petitioner at Kolkata, is patently unfair and is addressed by a penal element. The learned senior Counsel, argued that though normally on revocation of an order of suspension, the incumbent concerned is reinstated in the same post at the same station, in the case in hand, the impugned direction to post the Petitioner at Kolkata, is patently unfair and is addressed by a penal element. The Respondent Bank, though cognizant of the fact that the Petitioner with her present physical condition, would be unable to discharge hex-duties at the training centre at Kolkata, has sought to further discredit her thereby, apart from stymieing her from effectively pursuing the departmental proceeding at Guwahati. As because of her frail health condition following the bout of pulmonary tuberculosis and other bronchial complications, the Petitioner had been medically advised to avoid works, her posting at Kolkata would precipitate fatal consequences, and thus the impugned transfer order being obviously inconsiderate and unjust, is liable to be interfered with, by this Court in the interest of justice, he urged. Mr. Mazumdar, asserted that posts are available at Guwahati to accommodate the Petitioner. He also contended that non payment of her salary from September, 2007, following the revocation of her suspension being wholly unjustified in face of the interim order by this Court, an appropriate direction also be issued for the release thereof, forthwith. He rested his submissions on the decisions of the Apex Court in Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Adkari and Ors. (1983) 1 SCC 124 , Director of School Education, Madras and Ors. v. O. Karuppa Thevan and Anr. (1994) 2 SCC 666 and that of the Andhra Pradesh High Court in State of Andhra Pradesh through the District Collector, Warrangal v. Mohammed Sarwar 1971 (1) SLR 507. 10. Mr. Dutta, as against this, has urged that as the presenting officer for the Bank in the proposed departmental proceeding, is not a legal practitioner, the request made by the Petitioner to the said effect, is not entertainable in the teeth of the bar under Clause 7 of the Regulations. Further, the pleaded assertions, expressing the disinclination of the officers/employees of the Bank to act as her defence assistant being wholly (sic), the discretion under Clause 7 of the Regulations is not exercisable, he urged. While maintaining that there is no vacant post at Guwahati to accommodate the Petitioner, Mr. Dutta, rejected the plea of mala fide or extraneous considerations, as baseless. While maintaining that there is no vacant post at Guwahati to accommodate the Petitioner, Mr. Dutta, rejected the plea of mala fide or extraneous considerations, as baseless. He contended that transfer being an incident of service and the Petitioner's posting at Kolkata being in administrative exigency, no interference is called for. The learned Counsel sought to buttress his arguments relying on the decision of the Apex Court in Rajedra Roy v. Union of India and Anr. (1993) 1 SCC 148 , N.K. Singh v. Union of India and Ors. (1994) 6 SCC 98 , Mohd. Masood Ahmad v. State of U.P. and Ors. (2007) 8 SCC 150 . 11. The rival pleadings and the competing arguments have received the due consideration of this Court. Having regard to the issues demanding resolution, dilation on the charges and the contesting stand of the parties, thereon is avoidable. Suffice it to state that the Petitioner is facing allegations of irregularities and anomalies in availing loans from the Bank. From the reply submitted by the Petitioner, the imputations are prima facie, not admitted by her and hence the departmental proceeding, the Bank being unconvinced by her explanations. That the proceeding is governed by the Regulations, is admitted. Clause 7 thereof, which dwells on the aspect of defence assistant of a delinquent officer/employee, being of pivotal significance, vis-a-vis the debate on this facet of the lis deserves extraction as hereunder: (7) The officer Employee may take the assistance of any other Officer Employee but may not engage a legal practitioner for the purpose unless the presenting officer appointed by the disciplinary authority is a legal practitioner or the disciplinary authority, having regard to the circumstances of the case, so permits. The officer employee shall not take the assistance of any other officer employee who has two pending disciplinary cases on hand in which he has to give assistance. 12. Reading between the lines, an absolute bar on the engagement of a legal practitioner by an officer/employee, is not discernible. Though, ordinarily an officer/employee would not be permitted to engage a legal practitioner as his or her defence assistant in a disciplinary proceeding, unless the presenting officer appointed by the disciplinary authority is a legal practitioner, a discretion has been left with the disciplinary authority to allow such officer/employee to avail the services of a legal practitioner, having regard to the circumstances of the case. The plea of an implacable bar in this regard, as advanced by the Respondent Bank, in face of the unambiguous and determinate language employed in Clause 7 of the Regulations, does not commend for acceptance. 13. The provision for guaranteeing a defence assistant of the Officer/employee's choice to represent him her in a departmental proceeding for contesting the charges, is a wholesome constituent of the procedural safeguards comprehended to ensure fairness and transparency in the exercise, proof of the indictments wherein, may visit the delinquent with disastrous consequences. The procedure delineated from the stage of framing of the charges till the culmination of the departmental proceeding at every stage envisages grant of reasonable opportunity to the charged officer/employee in accordance with the norms of natural justice and fair play in action. The provisions of the Regulations governing the conduct of a disciplinary proceeding, are therefore, indubitably attuned to the mandates of the above edict of justness and propriety. Any digression from the letter and spirit of the scheme of the Regulations devised to attain the said avowed objective being influenced by extraneous or non germane consideration or in disregard of the relevant determinants, is impermissible lest the very purpose thereof, is frustrated. The discretion conceptualized by the Regulations enabling the disciplinary authority to permit representation of an officer/employee by a legal practitioner in deserving circumstances is an unassailable index of the unreserved concern for fairness and legitimacy of the departmental inquiry. 14. The recorded facts do not as such establish the Bank's categorical denial of the Petitioner's illness from pulmonary tuberculosis and other bronchial manifestations, protracted treatment in connection therewith and her present fragile physical frame. The assertions in her pleadings coupled, with the documents annexed, reasonably corroborate her averments to the said effect. Her pleaded assertion that the employees of the Bank, in spite of her requests, have declined to act as her defence assistant in the departmental proceedings, though refuted as vague by the Bank, has not been assertively controverted as untrue. Indeed the Bank's resilience against engagement of a legal practitioner, is founded on an insurmountable bar in Clause 7, which is not decipherable therefrom. That a departmental proceeding has to indispensably informed with procedural fairness to be valid, is no longer res integra. Indeed the Bank's resilience against engagement of a legal practitioner, is founded on an insurmountable bar in Clause 7, which is not decipherable therefrom. That a departmental proceeding has to indispensably informed with procedural fairness to be valid, is no longer res integra. The pleadings and the documents available on records, do not disclose any endeavour of the disciplinary authority to analyse the circumstances, more particularly, on the touchstone of the Petitioner's illness and the consequential impediments to evaluate the tenability of her prayer to the above effect. The exercise of the discretion to permit an officer/employee to avail the services of a legal practitioner, as Clause 7 reveals, is apparently not contingent solely on the engagement of a legal practitioner as a presenting officer. Such a conditional discretion would then be wholly illusory. The disciplinary authority is empowered by Clause 7, to exercise the discretion on an impartial appreciation of the circumstances of each case to decide on the permissibility of representation of an officer/employee by a legal practitioner. Such a consideration has to be independent and impartial and not hide bound by any non existent or impertinent criteria. The discretion lodged in Clause 7, arms the disciplinary authority to relax the shackles thereof, to effectuate a meaningful representation by an officer/employee through a legal practitioner in a demanding fact situation. Clause 7, thus, visualizes such prerogative to advance the cause of its endowment rather mechanical circumscription thereof, rendering it otiose. 15. Expatiating on the import and essence of "discretion" Lord Halsbury, in Sharp v. Wakefield (1891) SC 173, ruled, thus: ...'discretion' means when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion: Rooke's case; according to law and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself. 16. The refusal to the request of a police officer to engage a legal practitioner in a departmental proceeding initiated against him, in the facts and circumstances of the case, was held to be in improper exercise of the discretion of the authority concerned in State of Andhra Pradesh through the District Collector, Warrangal (supra). 16. The refusal to the request of a police officer to engage a legal practitioner in a departmental proceeding initiated against him, in the facts and circumstances of the case, was held to be in improper exercise of the discretion of the authority concerned in State of Andhra Pradesh through the District Collector, Warrangal (supra). It was observed therein that though the question of granting or refusing the request to engage a lawyer, is in the discretion of the inquiry officer but the same has to be exercised judicially and not in a capricious manner. 17. Discretion vested in any authority, must therefore, be exercised on reasonable grounds. No uncontrolled or unfettered discretion is envisaged in a system governed by law. Not only the authority concerned cannot disregard or overlook relevant considerations available to guide his discretion, he must steer clear of any inappropriate and collateral considerations. For his act of discretion to be valid, it has to be informed with reason and relevance. Failure to invoke the discretion so vested on reasons, purported and non existent would invalidate the resultant decision. 18. In the facts of the instant case, the concerned authority of the Bank in the opinion of this Court, had totally failed to address itself to the existing facts and circumstances, bearing on the Petitioner's request for representation through a legal practitioner. The refusal to grant the prayer, is on a patent misreading of Clause 7. The materials on record evince that the authority failed to take note of the relevant considerations and exercise the discretion, as required of it under the Regulations. The available facts and the documents on the ground of Petitioner's subsisting illness and disinclination of other employees of the Bank to be her defence assistant in the estimate of this Court entitles her to a direction to sanction representation in the departmental proceeding by a legal practitioner of her choice. The obstinate and unsustainable stand of the Bank in the existing factual premise, in the face of the Constitutional mandate of procedural fairness in inquiries of such nature, cannot receive judicial approval. The Respondent-Bank, would thus permit the Petitioner to engage a legal practitioner of her liking to be her defence assistant in the impugned disciplinary proceeding. 19. The Bank's authority and dominion on the issue of transfer of the Petitioner, does not admit of any doubt. The Respondent-Bank, would thus permit the Petitioner to engage a legal practitioner of her liking to be her defence assistant in the impugned disciplinary proceeding. 19. The Bank's authority and dominion on the issue of transfer of the Petitioner, does not admit of any doubt. That transfer is a condition of service, binding on her, is obvious. The Petitioner's assertion of her ailment of pulmonary tuberculosis and other bronchial accompaniments has not been seriously disputed by the Bank. The medical documents available on records, bear out the averments in this regard. The Bank has endorsed the Petitioner's transfer to the Staff Training Centre, Kolkata as a step ensuring best utilization of her services in administrative exigency. The Petitioner is categorical in her avowal that with her subsisting weak condition of health, she is not in a physical state to efficiently discharge her duties as expected. She has pleaded as well, that other more experienced officers at Guwahati, are available to be detailed with the said role at the Staff Training Centre, Kolkata. It is unlikely that the Bank is unaware of the ailments from which the Petitioner suffers as on date. The Petitioner, before this Court, has referred as well, to the consequential family dislocation, contending inter alia, that her school going child is presently in the midst of her academic session. Neither the order of her transfer nor the Bank's pleadings reveal any consideration in this regard. The materials on record, do not disclose either that following the revocation of her suspension and transfer to Kolkata, the Petitioner had submitted any representation before the concerned authority of the Bank, ventilating her inconveniences and the distress that she would suffer. 20. While, the ultimate authority to evaluate the organizational needs for placement of the employees rests with the employer, no unfettered exercise of discretion and power in this regard is comprehensible. An establishment, while inducting an employee, does not engage a serving hand simpliciter but engages an individual with basic human rights and dignity. The employer in the best interest of the institution, thus can ill afford to be totally unmindful of the practical difficulties, discomfort and inconveniences of his employees, while scheming the administration thereof. The insistence of the Bank for the Petitioner's posting at the Staff Training College, in the above factual premise, suggests want of consideration of the Petitioner's grievances. The employer in the best interest of the institution, thus can ill afford to be totally unmindful of the practical difficulties, discomfort and inconveniences of his employees, while scheming the administration thereof. The insistence of the Bank for the Petitioner's posting at the Staff Training College, in the above factual premise, suggests want of consideration of the Petitioner's grievances. The allegation of mala fide, having regard to the pleadings available, is not substantiated by any factual foundation. 21. The legal proposition enunciated through the judicial precedents bearing on transfer needs no reiteration. The scope of interference in exercise of the power of judicial review, is severely circumscribed. Except on the grounds of infraction of any statutory provision or contravention of any professed norm or mala fide, no judicial intervention is called for. The decisions of the Apex Court in N.K. Singh (supra), Rajedra Roy (supra) said Mohd. Masood Ahmad (supra), are consistently to the said effect. 22. The Apex Court in Director of School Education (Supra), while responding to a challenge to an order of transfer on the ground that the arrangement envisaged thereby, would disrupt the studies of the Respondent's children in the mid academic term, observed that although, there is no such rules in effecting transfer, the fact that the children of an employee are studying should be given due weightage, if the exigencies of service are not urgent. In the contextual facts, their lordships noted that the Appellant had failed to indicate any such urgency and, therefore, after interfering with the impugned order, it was directed to keep in abeyance the transfer till the end of the current academic year. This direction though fact oriented, had been issued, the constricted scope of interference with an order of transfer notwithstanding. 23. For the forgoing reasons, the Petitioner's grievance against her transfer to the Staff Transfer College, Kolkata, ought to be assessed by the Bank before insisting on her compliance thereof. The Petitioner would within two (2) weeks herefrom, submit a representation before the appropriate authority of the Bank highlighting her difficulties bearing on her transfer and thereupon the same would be considered and disposed of, if necessary after affording an opportunity of hearing to her with a fortnight therefrom. For this period of one (1) month, the impugned order of transfer would be kept in abeyance. For this period of one (1) month, the impugned order of transfer would be kept in abeyance. While disposing of the Petitioner's representation, her claim for salary from the month of September, 2007, would also be attended to. 24. In view of the determination made hereinabove, W.P(C) No. 4309/2007, stands allowed and the W.P(C) No. 4983/2007, and M.C. No. 4452/2007, are disposed in the above terms. No costs.