2021 (11) TMI 1078 - SC - Indian Laws

Choice of representation in domestic inquiry - right to be represented by a representative of own choice - Misconduct by sanctioning advances in violation of the Head Office instructions causing financial loss to the bank - HELD THAT - The respondent 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 respondent did not adduce evidence or examine witnesses, and abruptly stood up and walked out. Observations and findings in the disciplinary proceedings on the aspect of irregularities regarding exceeding his authority in the grant of advances, acceptance of discovery bills and the issue of bank guarantees etc. are clear and remain uncontroverted. The respondent s defence in the form of alibi that he had followed the oral instructions of the then Chairman and the Director, which is of questionable merit, is to be rejected as unproven. The officer can also be permitted to be defended by a representative, who must be a representative of a registered union/association of bank employees, which, as held above, means an union/association of the employees of the Bank of Cochin and not association of employees of any or other banks. Notably, the provision does not stipulate that the employee requires permission from any authority or the inquiry officer for representation by a representative of a registered union or association of the Bank of Cochin. Such permission is required if an employee wants a lawyer to represent him/her in the disciplinary proceedings. In this case, contrary to the observations in the impugned judgment by the Division Bench, the respondent had never prayed or sought permission to be represented by a lawyer. This is despite the respondent being aware of the professional status of the inquiry officer and the presenting officer. The questions of prejudice, change of position, creation of third-party rights or interests on the part of the party seeking relief are important and relevant aspects as delay may obscure facts, encourage dubious claims, and may prevent fair and just adjudication. Often, relevant and material evidence go missing or are not traceable causing prejudice to the opposite party. It is, therefore, necessary for the court to consciously examine whether a party has chosen to sit over the matter and has woken up to gain any advantage and benefit. The relief as granted certainly has serious financial repercussions and would also prevent the appellants from taking further action, which aspect has been noticed, though not finally determined in the impugned judgment. The studied silence of the respondent, who did not correspond or make any representation for nine years, was with an ulterior motive as he wanted to take benefit of the slipup though he had suffered dismissal. The courts can always refuse to grant relief to a litigant if it considers that grant of relief sought is likely to cause substantial hardship or substantial prejudice to the opposite side or would be detrimental to good administration. By the order dated 04.12.2009, the dues payable to the respondent in terms of the impugned judgment were released to him on furnishing security to the satisfaction of the Chief General Manager. During the course of hearing, it was stated that the amount released has been kept in a fixed deposit. The payment released is directed to be returned and restituted to the appellant bank without interest within a period of six weeks from the date of pronouncement of this judgment. However, in case payment is not made within the aforesaid period, the respondent would be liable to pay interest @ 8% per annum from the date of this judgment till actual payment is made. In addition, the appellants would be entitled to enforce the security furnished by the respondent. Petition dismissed.

Summary

Issues Involved:
1. Violation of Clause 22(ix)(a) of Chapter VIII of the Bank of Cochin Service Code.
2. Denial of representation by a representative of choice.
3. Interpretation of the Service Code.
4. Procedural fairness and natural justice.
5. Delay and laches in filing an appeal.
6. Acquiescence and its judicial effect.
7. Prejudice caused by procedural violations.

Detailed Analysis:

1. Violation of Clause 22(ix)(a) of Chapter VIII of the Bank of Cochin Service Code:
The primary issue was whether the disciplinary proceedings against the respondent were vitiated due to the violation of Clause 22(ix)(a) of the Service Code. The High Court of Kerala held that the respondent was denied the right to be defended by a representative of a registered union/association of bank employees, which amounted to a violation of the Service Code.

2. Denial of Representation by a Representative of Choice:
The respondent's request to be defended by Mr. F.B. Chrysostom, the Organising Secretary of the All-India Confederation of Bank Officers Organization, Kerala State Unit, was denied. The inquiry officer ruled that the Service Code only allowed representation by an office-bearer of an association or union of the Bank of Cochin employees. This denial was deemed a violation of natural justice by the Single Judge and the Division Bench.

3. Interpretation of the Service Code:
The Supreme Court examined Clause 22(ix)(a) in conjunction with Clause 2(e) of the Service Code, which defines 'bank' as the Bank of Cochin Ltd. The Court held that the absence of the article "the" before 'bank' in Clause 22(ix)(a) did not justify interpreting it to include unions/associations of other banks. Therefore, the Service Code was correctly interpreted to mean that representation was limited to associations or unions of the Bank of Cochin employees.

4. Procedural Fairness and Natural Justice:
The Supreme Court reiterated that the right to be represented by a counsel or agent of one’s choice is not absolute and can be regulated by rules or regulations. The Court emphasized that procedural fairness is essential for correct decision-making but noted that the respondent had not demonstrated how the denial of his chosen representative caused prejudice to his case.

5. Delay and Laches in Filing an Appeal:
The respondent filed an appeal against his dismissal after four years and five months. The Supreme Court held that the appeal was filed beyond a reasonable time, and the delay was unjustified. The Court noted that the Service Code did not specify a time limit for filing an appeal but emphasized that it should be done within a reasonable time.

6. Acquiescence and Its Judicial Effect:
The Court discussed the doctrine of acquiescence, noting that the respondent’s inaction for an extended period indicated an acceptance of his dismissal. This acquiescence barred the respondent from claiming a violation of his right to fair representation.

7. Prejudice Caused by Procedural Violations:
The Supreme Court found that the respondent had not demonstrated any real prejudice caused by the procedural violations. The Court noted that the charges against the respondent were clear and uncontroverted, and his defense of following oral instructions from the then Chairman and Director was unproven.

Conclusion:
The Supreme Court allowed the appeal, setting aside the judgments of the Single Judge and the Division Bench. The Court upheld the respondent’s dismissal from service, emphasizing that the procedural violations did not cause any real prejudice to the respondent's case. The Court also highlighted the respondent’s delay in filing the appeal and his acquiescence to the dismissal, which barred him from seeking relief. The respondent was directed to return the amount released to him as per the impugned judgment.