9911796707
TMI Blog2021 (11) TMI 1078X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 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 positio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A. No. 2052/2007. The Division Bench, thereby, affirmed the order of the Single Judge in Signature Not Verified O.P No. 5527 of 1999 dated 14.03.2007, quashing the disciplinary Digitally signed by R Natarajan Date: 2021.11.16 16:53:50 IST Reason: proceedings against Mr. M.J. James (the respondent) on the ground of violation of Clause 22(ix)(a) of Chapter VIII of the Bank of Cochin Service Code ( the Service Code ). 2. Before we proceed further, we need to allude to the factual background necessary for the disposal of the present appeal. On 09.02.1984, a memorandum of charges was issued to the respondent that while working as the bank manager of the Quilon branch of the Bank of Cochin from February 1978 to September 1982, he had committed grave misconduct by sanctioning advances in violation of the Head Office instructions causing financial loss to the bank. The respondent by the reply dated 30.03.1984 denied the charges stating that there was substantial increase and growth in the business of the bank when he was the manager of the Quilon branch. The deposits had increased from Rs. 20 lakh in 1978 to Rs. 1 crore in 1982, and the advances had increased from Rs. 1.5 crore in 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rms of the Service Code, a charge-sheeted officer cannot be defended by an office-bearer of any association or a union except an office-bearer of an association or a union of the employees of the bank, that is, the Bank of Cochin Ltd. To enable the respondent to prepare for representation, the inquiry officer adjourned the proceedings to 06.07.1984 for the evidence of the management. On 05.09.1984, the respondent requested a long adjournment stating that he wanted to assail the order denying him services of Mr. F.B. Chrysostom before the Board of Directors. While the request for long adjournment was declined, the inquiry officer gave the respondent two weeks to approach the Board and await their directions, making it clear that no further adjournment would be granted. On 20.09.1984, the respondent did not appear and sought postponement of proceedings for one week on medical grounds through his brother. This request was allowed, and the inquiry was posted to 28.09.1984. 5. On 28.09.1984, the respondent appeared and participated in the inquiry in which statement of witnesses of the management were recorded. The proceeding was adjourned to 06.10.1984 for the recording of defence ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ernakulam, which was disposed of by a Single Judge on 14.10.1998, recording that the respondent who was a petitioner therein had made a limited prayer for quick disposal of his appeal. The second respondent therein, that is the Chief General Manager, was directed to consider the appeal and pass appropriate orders after rendering an opportunity of being heard to the respondent within ten weeks from the date of receipt of the copy of the order. 11. In terms of the directions above, a personal hearing was granted to the respondent on 22.12.1998. He was also permitted to submit written representation. 12. By the order dated 23.01.1999, the appeal was rejected by the Chief General Manager recording, inter alia, that the inquiry officer s report was clear, categorical, and based upon evidence, and concluded that the respondent had exceeded his authorization in grant of credit facilities, flouted head office instructions and had not obtained head office ratification for several guarantees and documentary bills. The charges as proved were grave, and hence the respondent s dismissal from service was justified. The Chief General Manager specifically observed that the defence of the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... misconduct is proved in a validly conducted inquiry, I see no reason to find fault with the bank if dismissal is the punishment that is considered appropriate by them . 15. The intra-court appeal, W.A. No. 2052 of 2007, by the appellants was dismissed by the Division Bench of the High Court of Kerala at Ernakulam vide judgment dated 09.12.2008. They agreed with the Single Judge that Clause 22(ix)(a) of Chapter VIII was violated as the respondent was not allowed to be defended by a representative of a registered bank employees union/association. Interpreting the clause, the Division Bench observed 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. As the respondent was entitled to be represented by a representative of a union or association of bank employees, his prayer to be represented by Mr. F.B. Chrysostom should have been accepted. The Bench rejected the contention of no prejudice by observing that this was only an asserti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition in describing the subject matter to which the word or expression is intended to apply [Nahalchand Laloochand Private Ltd. v. Panchali Coop. Housing Society Ltd., (2010) 9 SCC 536] This is useful when the same word or expression is used more than once in the same enactment. [Bhagwati Developers Pvt. Ltd. v. Peerless General Finance and Investment Co. Ltd. Anr., (2013) 9 SCC 584]. The raison d etre behind the definition clause is that while interpreting a provision, the defined word or expression would carry the same meaning as the defined words or expression are employed and used by the maker in the sense appropriate to the definition. The definition can be with the intent to attract a meaning already established by law; expand the meaning by adding a meaning; or narrow the meaning by exclusion. [1] This general rule of construction laid down by the enactment is subject to the context. Albeit, the interpreter, to deviate from the defined meaning, should record reasons to show that the word/expression in that particular provision carries a different meaning. Contrary context is not to be assumed or accepted easily, in the absence of indication and reason to differ from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at fairness requires would depend upon the nature of the investigation and the consequences it may have on the persons affected by it. This Court in Crescent Dyes and Chemicals Ltd. (supra), observed as follows: 17. It is, therefore, clear from the above case-law that the 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 Thus, the right to be represented by a counsel or agent of one s choice is not an absolute right but one which can be controlled, restricted, or regulated by law, rules, or regulations. However, if the charge is of severe and complex nature, then the request to be represented through a counsel or agent should be considered. The above proposition flows from the entitlement of fair hearing, which is applicable in judicial as well as quasi-judicial decisions. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uired to be stated. In State Bank of Patiala and Others v. S.K. Sharma, [(1996) 3 SCC 364] a Division Bench of this Court distinguished between adequate opportunity and no opportunity at all and held that the prejudice exception operates more specifically in the latter case. This judgment also speaks of procedural and substantive provisions of law embodying the principles of natural justice which, when infracted, must lead to prejudice being caused to the litigant in order to afford him relief. The principle was expressed in the following words: 32. Now, coming back to the illustration given by us in the preceding para, would setting aside the punishment and the entire enquiry on the ground of aforesaid violation of sub-clause (iii) be in the interests of justice or would it be its negation? In our respectful opinion, it would be the latter. Justice means justice between both the parties. The interests of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one and, however inconvenient, natural justice must be followed. His Lordship observed that convenience and justice are often not on speaking terms . More recently Lord Bingham has deprecated the useless formality theory in R. v. Chief Constable of the Thames Valley Police Forces, ex p Cotton [1990 IRLR 344] by giving six reasons. (See also his article Should Public Law Remedies be Discretionary? 1991 PL, p. 64.) A detailed and emphatic criticism of the useless formality theory has been made much earlier in Natural Justice, Substance or Shadow by Prof. D.H. Clark of Canada (see 1975 PL, pp. 27-63) contending that Malloch and Glynn were wrongly decided. Foulkes (Administrative Law, 8th Edn., 1996, p. 323), Craig (Administrative Law, 3rd Edn., p. 596) and others say that the court cannot prejudge what is to be decided by the decision-making authority de Smith (5th Edn., 1994, paras 10.031 to 10.036) says courts have not yet committed themselves to any one view though discretion is always with the court. Wade (Administrative Law, 5th Edn., 1994, pp.526-30) says that while futile writs may not be issued, a distinction has to be made according to the nature of the decision. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l justice where such person does not dispute the case against him or it. This can happen by reason of estoppel, acquiescence, waiver and by way of non-challenge or non-denial or admission of facts, in cases in which the Court finds on facts that no real prejudice can therefore be said to have been caused to the person complaining of the breach of natural justice. (4) In cases where facts can be stated to be admitted or indisputable, and only one conclusion is possible, the Court does not pass futile orders of setting aside or remand when there is, in fact, no prejudice caused. This conclusion must be drawn by the Court on an appraisal of the facts of a case, and not by the authority who denies natural justice to a person. (5) The prejudice exception must be more than a mere apprehension or even a reasonable suspicion of a litigant. It should exist as a matter of fact, or be based upon a definite inference of likelihood of prejudice flowing from the non-observance of natural justice. 26. In the light of the aforesaid legal position, we have examined the facts of the present case and have referred to the inquiry proceedings in some detail. The respondent was aware that hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eans 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. 27. Further, the dismissal order passed on 18.04.1985 remained unchallenged for more than four years, as the appeal to the Chief General Manager of the State Bank of India was filed on 20.09.1989. The respondent, however, relies on Clause 22(x) of the Service Code relating to appeals, which reads thus: An aggrieved employee in all such cases may appeal to the Board of Directors whose decision shall be final. Undoubtedly, the Service Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hers [1994) 1 SCC 44] and State of U.P. and Others v. Manohar, [(2005) 2 SCC 126] this Court observed that if the statutory authority has not performed its duty within a reasonable time, it cannot justify the same by taking the plea that the person who has been deprived of his rights has not approached the appropriate forum for relief. If a statutory authority does not pass any orders and thereby fails to comply with the statutory mandate within reasonable time, they normally should not be permitted to take the defence of laches and delay. If at all, in such cases, the delay furnishes a cause of action, which in some cases as elucidated in Union of India and Others v. Tarsem Singh, [(2008) 8 SCC 648] may be continuing cause of action. The State being a virtuous litigant should meet the genuine claims and not deny them for want of action on their part. However, this general principle would not apply when, on consideration of the facts, the court concludes that the respondent had abandoned his rights, which may be either express or implied from his conduct. Abandonment implies intentional act to acknowledge, as has been held in paragraph 6 of Motilal Padampat Sugar Mills Co. Ltd. v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious financial repercussions on the financial management of the Nigam. Why should the court come to the rescue of such persons when they themselves are guilty of waiver and acquiescence? 29. Before proceeding further, it is important to clarify distinction between acquiescence and delay and laches . Doctrine of acquiescence is an equitable doctrine which applies when a party having a right stands by and sees another dealing in a manner inconsistent with that right, while the act is in progress and after violation is completed, which conduct reflects his assent or accord. He cannot afterwards complain. [See Prabhakar v. Joint Director, Sericulture Department and Another, (2015) 15 SCC 1. Also, see Gobinda Ramanuj Das Mohanta v. Ram Charan Das and Suyamal Das, AIR 1925 Cal 1107] In literal sense, the term acquiescence means silent assent, tacit consent, concurrence, or acceptance, [See M/S Vidyavathi Kapoor Trust v. Chief Commissioner Tax (1992) 194 ITR 584] which denotes conduct that is evidence of an intenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ashtra v. Digambar. [(1995) 4 SCC 683].These facets, when proven, must be factored and balanced, even when there is delay and laches on the part of the authorities. These have bearing on grant and withholding of relief. Therefore, we have factored in the aspect of prejudice to the appellants in view of the relief granted in the impugned judgment. 32. 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. [R. (on the application of Parkyn) v. Restormel BC [2001] EWCA Civ 330]. This principle of good administration is independent of hardship, or prejudice to the rights of the th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
