N.K. Sareen vs Punjab National Bank And Anr.
1994 Latest Caselaw 356 Del

JUDGMENT

K. Shivashankar Bhat, J.

(1) Mr. N.K. Sareen, the petitioner questions the order of dismissing him from service after holding a disciplinary enquiry against him. An appeal was filed by the petitioner which was rejected by the Appellate Authority. The order of dismissal is dated 12th November, 1987 while the order of the Appellate Authority is dated 5th January, 1990.

(2) The petitioner joined the respondent-bank as a clerk on 10th October, 1965. He was promoted as an Officer in the year 1972. Petitioner also states that he was appointed as Trustee on the Board of the New Bank of India Employees Provident Fund, and New Bank of India Employees Gratuity Trust by virtue of the resolution passed by the Board of Directors of the said Bank.

(3) Petitioner was quite active in the trade union activities. According to the petitioner he lodged complaints against one Shri S.D. Nayyar General Manager of the Bank between February 1983 and January 1984. In February 1984 the petitioner was appointed as an Officer Director on the Board of the Bank by the Government of India. This appointment was initially restrained by the Madras High Court at the instance of a rival Trade Union. Subsequently, the relationship between the petitioner and other Officers of the Bank stood strained because the petitioner tried to expose their misdeeds. In January 1985 the petitioner had sent a complaint against Shri R.K. Sethi (who actually conducted the disciplinary proceedings subsequently against the petitioner). the Staff Association of the Bank of which the petitioner was a Deputy Secretary had issued notices to the Bank seeking investigation into several alleged frauds involving high officials of the Bank. On 30th may, 1985 the services of the petitioner were terminated by the Board of Directors. This order was communicated to the petitioner by two telegrams; one dated 31st May, 1985 and another dated 12th June 1985. Petitioner challenged this order of termination by filing civil writ petition no. 8349 of 1985 before the Supreme Court of India on 7th June, 1985. This petition was disposed of on 22nd July, 1986, as a consequence of which the termination order was withdrawn. Petitioner has asserted that the Bank informed all its Branches all over India by issuing a circular that the petitioner hail to be reinstated with back wages and other benefits pursuant to the orders of the Supreme Court, as usual on the part of the Bank. Thereafter on 25th August 1986 the petitioner was served with the chargesheet containing certain allegations in respect of the incidents happened prior to the order of the Supreme Court. The petitioner sought permission to engage a counsel before the disciplinary authority on the ground that (hi charges levied against him were complicated and the Presenting Officer of the Bank was a Law Graduate. This request was turned down. Petitioner also pointed out that the enquiry was being held by R.K.Sethi who was biased against the petitioner in view of the complaint lodged by the petitioner against him in January, 1985, Alter the enquiry, the Enquiry Officer recommended the dismissal which was accepted by the Disciplinary Authority and the impugned dismissal order dated 12th November. 1987 came to be passed. The petitioner filed an appeal before the Appellate Authority. This appeal was not considered and therefore the petitioner filed a writ petition before this Court as per CWP" 1182 of 1989. On 7th October, 1989 this Court directed the Bank to dispose of the appeal filed by the petitioner and consequently the appeal of the petitioner was considered and the same was dismissed on 5th January, 1990.

(4) The petitioner has raised several contentions in the writ petition, however, the learned counsel for the petitioner confined the challenge to the following grounds: 1. The enquiry held against the petitioner was in violation of the principles of natural justice. 2. The Enquiry Officer was biased against the petitioner. 3. Petitioner was denied the assistance of a counsel while the Presenting Officer on behalf of the Bank was a Law Graduate and was a Deputy Manager in Legal Department of the Bank. 4. The charges against the petitioner were vague.

(5) While considering the- various contentions raised in this writ petition the broad facts narrated above, on the basis of the petitioner's averments in the writ petition could be taken as either admitted or proved. There is no doubt that the petitioner was an active trade unionist and had been a responsible office bearer of the union. There is also a rival trade union. Two witnesses examined against the petitioner in the domestic enquiry belonged to the rival trade union. The petitioner was a member of the staff association which had complained against General Manager S.D. Nayyar as well as against B.R. Kalra who was the Deputy General Manager of the Bank. As on today the C.B.I, has taken up the investigation against these three persons and the said Mr. Sethi/Kalra and the two witnesses who were examined in the domestic enquiry are under suspension, in view of the pendency of the case initiated by the C.B.I, against them.

(6) Initially the services of the petitioner were terminated without any enquiry and the petitioner had approached the Supreme Court and the order of termination was withdrawn obviously because the Bank could not sustain the said order. The Bank took the unusual step of informing every Branch that the petitioner had to be reinstated and back wages paid to him, in view of the order of the Supreme Court. The record reveals that the high officials of the Bank were the Subject matter of complaints by the petitioner and the Staff Association, of which the petitioner was an office bearer. The petitioner objected to the Enquiry Officer on the ground that he had complained against him. Inspite of this objection the Bank entrusted the enquiry to R.K. Sethi. It was contended by the respondents that Sh. R.K. Sethi cannot be held to be biased against the petitioner since complaint lodged against him was vague and no action was taken on the basis of the said complaint. The respondent further contend that the order of dismissal was confirmed by the Appellate Authority and in the circumstances no prejudice resulted to the petitioner by the enquiry held by Sh. R.K. Sethi. The respondent referred to the proceedings before the Enquiry Officer who had granted several adjournments to the petitioner and even upheld some of his objections and therefore it was contended that Mr. Sethi had an open mind.

(7) Whether bias could be inferred on the part of the Enquiry Officer depends upon several factors. R.K. Sethi may have been biased or may not be biased at all. The real question is whether the petitioner could have a reasonable apprehension that R.K. Sethi was biased against him.

(8) If under the circumstances the bias suspected of by the delinquent cannot be held as unreasonable, the enquiry is liable to be set aside. It is not the case of the respondent Bank that no other competent Officer of the Bank was available to hold the enquiry and that enquiry could have been held only by Mr. R.K. Sethi. Having regard to the circumstances, I am of the view that the petitioner was justified in apprehending bias on the part of Mr. Sethi.

(9) In Ranjit Thakur v. Union of India and Others the appellant before the Supreme Court challenged the dismissal order imposed on the appellant after a summary court- martial. One of the grounds urged by the appellant was that the Enquiry Officer was biased against the appellant because the Enquiry Officer had punished the petitioner on an earlier occasion also. In fact, the enquiry challenged before the Supreme Court was in connection with another incident that occurred when the appellant was serving a punishment already imposed While considering this contention the Supreme Court observed at page 617 that the test of "real likelihood of bias" is whether a reasonable person, in possession of relevant information would have thought that bias was likely. The Supreme Court also pointed out that the essence of the judgment is that it is made after due observation of the judicial process; that the court or tribunal passing it observes atleast the minimum requirements of natural justice and it is rendered by an impartial person acting fairly and without bias and in good faith. A judgment which is the result of bias or want of impartiality is nullity and the trial "coram non-judice". The circumstances in which apprehension arose regarding bias in the mind of the party against whom enquiry is held has to be looked at, to infer whether this apprehension was reasonable. In the circumstances of this case, I am of the view that the apprehension of the petitioner cannot be held to be unreasonable. Consequently, the enquiry held by the Enquiry Officer R.K. Sethi can not be considered as valid.

(10) The petitioner requested for legal assistance. This request was turned down on the ground that the charges levied against him were simple and the petitioner being an office bearer of the trade union and having participated in several disciplinary proceedings against others in the Bank was quite competent to defend himself.

(11) It is undisputed that the Presenting Officer is a Law Graduate and according to the petitioner the said Presenting Officer was appointed in the Law Department after the said person had practiced as an advocate for about ten years.

(12) Whether a delinquent should be permitted to be represented by an advocate in the disciplinary proceedings depends upon several factors. The nature of the charges, the qualifications of the Presenting Officer who conducted the proceedings against the delinquent and the standard and the qualifications of the delinquent himself are some of these factors. Only because the petitioner had been representing other delinquents in the enquiry conducted by the Bank it cannot be held that the petitioner was fully competent to represent himself. The relevant test is to find out whether the delinquent is a "legally trained mind" as pointed out by Supreme Court in The Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni and others .

(13) No doubt it is a matter of discretion of the Enquiry Officer either to allow the assistance of a counsel or not to allow the same but the discretion shall have to be exercised judicially bearing in mind the relevant principles. In the aforesaid decision the Supreme Court made the following observations at page 113 "IN our view we have reached a stage in our onward march to fairplay in action that where in an enquiry before a domestic tribunal the delinquent officer is pitted against a legally trained mind, if he seeks permission to appear through a legal practitioner the refusal to grant this request would amount to denial of a reasonable request to defend himself and the essential principles of natural justice would be violated."

(14) It should always be remembered that there is a difference between a person representing the cause of others and representing his own cause in an enquiry. The personal attachment to a cause may result in an agitated mind and it may not always be possible for such a person to take a proper decision at an appropriate stage of any proceedings. Such an agitated mind will not be normally found in a legally trained person. It is one of the features of a legally trained mind that the said mind will not get disturbed in the course of an enquiry by any sudden or unsuspected turn of events. While considering the arguments based on the vagueness of charges I have to refer to the charges levied against the petitioner. Charge-sheet is filed as part of 'Annexure 15' to the writ petition. Chargesheet mentions five charges; first charge states that the petitioner failed to ensure and protect the interest of the Bank, second charge states that he acted in a manner un-becoming of an Officer of the Bank, third charge alleges unseemly behavior and the failure on the part of the petitioner to show proper courtesy/consideration towards officers/senior executives of the Bank. The fourth, referred to the obstruction and.hinderancc caused by the petitioner to the normal functioning of the Bank, fifth states the petitioner's failure to discharge his obligations to the Bank as its employee. There is a statement of allegations attached to this chargesheet. Nowhere the statement of allegations appears to link any particular incident to any particular charge. Co-relation between the individual charge and the statement of allegation is not forthcoming. To what extent the particular allegation constitute the relevant charge also cannot be made out on the reading of the statement of allegation.

(15) In J.K. Aggarwal v. Seeds development corporation l.td. and others the delinquent was refused a permission to engage the services of the lawyer. This was challenged before the Supreme Court, after the delinquent lost his writ petition before the Supreme Court. At page 1221 the relevant principle was stated by the Supreme Court "THE right of representation by a lawyer may not in all cases be held to be a part of natural justice. No general principle valid in all cases can be enunciated. In non-statutory domestic tribunals. Lord Denning in the Court of Appeal in England favored such a right where a serious charge had been made which affected the livelihood or the right of a person to pursue an avocation and observed : "I should have thought, therefore, that when a man's reputation or livelihood is at stake, he not only has a right to speak by his own mouth. He has also a right to speak by counsel or solicitor."

(See Pett. v. Greyhound Racing Association Ltd., 1969 (1) Qb 125) But this was not followed by Lyell J. in Pett's case No.(2) 1970 (1) Qb 46. But the learned Master of Rolls, however, reiterated his earlier view in Pett's case in Enderby Town Football Club Ltd. v. Football Association Ltd. (1971 Chancery Div. 591) "It is a party who is charged before a domestic tribunal entitled as of right to be legally represented? Much depends on what the rules say. ' about it. When the rules say nothing, then the party has no absolute right to be legally represented? It is a matter for the discretion of the tribunal. They are masters of their own procedure; and, if they, in the proper exercise of their discretion, decline to allow legal representation, the Courts will not interfere........... In many cases it may be a good thing for the proceedings of a domestic tribunal to be conducted informally without legal representation. Justice can often be done in them better by a good layman than by a bad lawyer..................................But I would emphasise that the discretion must be properly exercised. The tribunal must not fetter its discretion by rigid bonds. A domestic tribunal is not at liberty to lay down an absolute rule: 'We will never allow anyone to have a lawyer to appear for him." The tribunal must be ready, in a proper case, to allow it. That applied to anyone in authority who is entrusted with a discretion. He must not fetter his discretion by making an absolute rule from which he will never depart......That is the reason why this Court intervened in Pett v. Greyhound Racing Association Ltd., (1969) I Qp 125. Mr. Pett was charged with doping a dog __ a most serious offence carrying severe penalties. He was to be tried by a domestic tribunal. There was nothing in the rules to exclude legal representation, but the tribunal refused to allow it. Their reason was because they never did allow it. This Court thought that was not a proper exercise of their discretion. Natural justice required that Mr. Pett should be defended, if he so wished, by counsel or solicitor. So we intervened and granted an injunction. Subsequently Lyell J. thought we were wrong. He held that Mr. Pett. had not right to legal representation: see Pett v. Greyhound Racing Association (No.2) (1970) 1 Qb 46. But I think we were right. May be Mr. Pett had no positive right, but it was case where the tribunal in their discretion ought to have allowed it. And on appeal the parties themselves agreed it. They came to an arrangement which permitted the plaintiff to be legally represented at the inquiry: see (1970) 1QB 67. The long and short of it is that if the Court sees that a domestic tribunal is proposing to proceed in a manner contrary to natural justice, it can intervene to stop it. The Court is not bound to wait until after it has happened: see Dickson v Pharmaceutical Society Great Britain (1970) Ac 403,433, per Lord Upjohn."

(16) Thereafter the Supreme Court referred to an earlier decision in C.L. Subramaniam v. Collector of Customs, Cochin and the relevant rules governing the disciplinary proceedings and then observed : "THE rules itself recognises that where the charges are so serious as to entail a dismissal from service the inquiry- authority may permit the services of a lawyer. This rule vests a discretion. In the matter of exercise of this discretion one of the relevant factors is whether there is likelihood of the combat being unequal entailing a miscarriage or failure of justice and a denial of a real and reasonable opportunity for defense by reason of the appellant being pitted against a presenting officer who is trained in law. Legal Adviser and a lawyer are for this purpose somewhat liberally construed and must include "whoever assists or advises on facts and in law must be deemed to be in the position of a legal adviser." In the last analysis, a decision has to be reached on a case to case basis on the situational particularities and the special requirements of justice of the case."

(17) On facts the Supreme Court held that the refusal to grant permission to engage a counsel at the enquiry was not proper exercise of the discretion. In Antonio B. Fur ado v. Chairman & Managing Director and others 1986 Lar I.C. 613. A Bench of the Bombay High Court pointed out that the .denial of permission to engage a counsel in the enquiry resulted in the violation of principles of natural justice because the charge against the official was of misappropriation, fraud, etc.......... quite a serious charge.

(18) I have noted the charges in the instant case which according to me are quite vague. It is difficult to co-relate the charges to the statement of allegations. The circumstances in which the petitioner seems to have been chargesheeted also indicate that high officials of the Bank were not quite happy with him. The petitioner apprehended that attempts were being made to somehow terminate his services. The Bank was represented by a legally trained person though he was an officer of the Bank. In these circumstances, I have no hesitation to hold that the denial of permission to the petitioner to engage a counsel in the enquiry resulted in the violation of the principles of natural justice.

(19) The next contention pertains to the vagueness of the charges. I have already referred to the various charges referred in the chargesheet. The statement of al- legations, however, does not particularise the allegations in the statement to any particular charge. Para (1) refers to the petitioner as having created hindrance and/or obstruction in the normal functioning of A-Block, Connaught Place, New Delhi. This was further explained in the other paragraphs. The allegation is that the petitioner Along with one J.K. Pungasa questioned D.P. Sharma as to under whose authority said Sharma started investigating or inspecting D.R.I, advances. The petitioner was only an accountant at that time in the Branch Office at Asaf Ali Road, New Delhi. The investigation had nothing to do with the allegation against the petitioner as such. Mr. D.P. Sharma was the Inspecting Officer. I fail to understand how asking such a question could be considered as an obstruction There is also an allegation that the petitioner and Mr. Pungasa behaved in a vulgar manner. The allegation also states that the petitioner and said Mr. Pungasa telephoned to Mr. B.R. Kalra. Here again vulgarity is attributed to the petitioner and Mr. Pungasa. The allegation states that Mr. D.P. Sharma left the place to avoid physical injury, The next para alleges that the petitioner was the President of the staff union and has been instigating members of his union or causing obstruction in the functioning of the Branch at Connaught Place.

(20) Vague allegations of intimidation and obstruction are referred in the subsequent paragraphs. Several paragraphs in the statement of allegations show that the petitioner was not alone but Shri Pungasa was connected with the petitioner Along with others in the events alleged against the petitioner. The petitioner has been an officer bearer of the staff union. Not a single incident of inefficiency, incompetency or misappropriation is attributed to the petitioner. The allegations made against the petitioner at the most arc allegations pertaining to his functioning as an office bearer of the trade union and the incidents alleged cannot be attributed solely to the petitioner alone. Mr. Pungasa is stated to have accompanied the petitioner in all the events.

(21) It is not possible for me to uphold the charges levelled against the petitioner as specific. It is also necessary to note here that Mr. Pungasa was also dismissed, but the said dismissal was set aside by the Industrial Tribunal. Mr. Pungasa was reinstated with back wages. In other words Bank proceeded to accept the findings of the Industrial Tribunal which was in favor of Mr. Pungasa. The petitioner relies upon this as an incident of negative of the mala fides of the Bank against the petitioner. I have already referred to D.P. Sharma whose name occurs in the statement of allegations. He was a witness before the Enquiry Officer. In. the cross-examination Mr. D.P. Sharma stated that the petitioner did not misbehave with him. He further stated that the discussion with the petitioner was quite cordial. Mr. D.P.Sharma was offered tea in the union cabin. He also stated that the petitioner did not use any abusive language to him. This witness also stated that he got full co-operation for the completion of the assigned job and no union leader objected at the time of his inspection. I have referred only to a part of the deposition which highlights the manner in which enquiry was held and the material collected at the enquiry was appreciated against the petitioner. It is impossible to hold that the allegation contained in the statement of allegations, at- least to the extent of the reference to D.P. Sharma, was proved when Mr. D.P. Sharma himself stated that there was no misbehavior and no user of abusive language against him. The learned counsel for the petitioner also urged that the Bank acted mala fide against the petitioner because even the appeal filed by the petitioner against the dismissal order was not considered for long and the petitioner had approached this Court for a direction to the Appellate Authority to consider the appeal. The respondent Bank on the other hand pointed out that it never received the appeal filed by the petitioner. It is unnecessary to go into this contention of the learned counsel for the petitioner even though the learned counsel pointed out that the appeal was sent by the petitioner by registered post.

(22) It was contended on behalf of the Bank that Appellate Authority had considered the appeal of the petitioner and it was the operative order since the order of dismissal stood merged in the appellate order. The learned counsel for the Bank contended that no bias has been attributed against the Appellate Authority.

(23) The doctrine of merger has no relevancy to a situation like this. The said doctrine has been applied under different context such as a situation when an operative order shall have to be amended, modified or varied. Here, there is an order of dismissal occasioned by a proceeding which cannot be justified because the proceedings were held in violation of principle of natural justice. The most essential feature of an impartial enquiry to be conducted has been ignored in the instant case because the petitioner reasonably apprehended bias on the part of the Enquiry Officer. The bias attributed to the Enquiry Officer in discharge of his duties changed the entire shape of the enquiry. The Supreme Court has pointed out that such an enquiry was to be treated as non est only because the Appellate Authority has confirmed an order made in an enquiry which is legally non est, it cannot be held that the order should be given effect to, because a non est order cannot be confirmed in the eye of law.

(24) For the reasons stated above this writ petition is allowed. The impugned orders dated 12th November, 1987 and 5th January, 1990 are set aside. The petitioner is directed to be reinstated forthwith with all benefits. The petitioner is entitled to his costs computed at Rs.2000.00