Delhi High Court
Punjab National Bank & Ors vs Kingfisher Airlines Limited & Ors on 17 December, 2015
Author: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 17th December, 2015
+ LPA 589/2014, CMs No.14796/2014 (for stay) & 14798/2014 (for
filing additional documents)
PUNJAB NATIONAL BANK & ORS ..... Appellants
Through: Mr. Yashraj Singh Deora, Adv.
Versus
KINGFISHER AIRLINES LIMITED & ORS ..... Respondents
Through: Mr. Rajiv Nayar, Sr. Adv. with Mr.
Diwakar Maheshwari, Mr. Saurabh
Seth, Mr. Karun Mehta, Mr. Vinam
Gupta & Mr. Muhammad Umar
Khan, Advs. for R-1.
Mr. Anil Soni, CGSC with Mr.
Naginder Benipal, Advs.
AND
+ LPA No.113/2015 & CM.No.3742/2015 (for stay)
STATE BANK OF INDIA ..... Appellant
Through: Mr. Jitendra Kumar, Adv.
Versus
M/S JAH DEVELOPERS PRIVATE LIMITED &
ORS .... Respondents
Through: Mr. I.S. Alag with Mr. R.S. Bisht,
Advs.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
LPA No.589/2014 & LPA No. 113/2015 Page 1 of 45
RAJIV SAHAI ENDLAW, J.
1. The Reserve Bank of India (RBI), from time to time, issued a number
of Circulars to Banks and Financial Institutions (FIs), containing
instructions on matters relating to wilful defaulters. To enable the Banks /
FIs to have all the existing instructions on the subject at one place, a Master
Circular dated 1st July, 2013, incorporating all the instructions / guidelines
issued on cases of wilful default, was issued. The purpose thereof was
defined as, to put in place a system to disseminate credit information
pertaining to wilful defaulters for cautioning Banks / FIs so as to ensure that
further bank finance is not made available to them. The said Circular inter
alia provides for submission by Banks / Financial Institutions of data of
wilful defaulters to RBI on a quarterly basis and preparation of a list of
wilful defaulters by the RBI and communication thereof to the Securities
Exchange Board of India (SEBI) and to Credit Information Bureau (India)
Ltd. (CIBIL). The said Circular requires all the Scheduled Commercial
Banks and All India Notified Financial Institutions to identify cases of
wilful default and to constitute a committee of higher functionaries headed
by the Executive Director and consisting of two General Managers / Deputy
General Managers as decided by the Board of the concerned Bank / FI, to
decide on the classification of the borrower as a wilful defaulter. The
Circular also requires the Banks / FIs to i) advise the borrower about the
proposal to classify him as wilful defaulter along with the reasons therefor;
ii) give the borrower time of fifteen days for making representation against
proposed decision; iii) constitute a Grievance Redressal Committee (GRC)
headed by the Chairman and Managing Director and two other senior
officials of the Bank / FI, to hear the person sought to be classified as a
wilful defaulter, if he so desires; and, iv) thereafter take a decision in that
regard.
2. The question for adjudication before us is, whether a person who is
proposed to be classified as a wilful defaulter by a Bank / FI and who, in
accordance with the RBI‟s Circular aforesaid, has availed of opportunity to
be heard by the GRC of the said Bank / FI to oppose such a proposal, has a
right to be represented by an Advocate in the said hearing.
3. The appellant Punjab National Bank (PNB) in LPA No.589/2014
proposed to so classify the respondents No.1 to 3 i.e. Kingfisher Airlines
Limited, United Breweries (Holdings) Ltd. and Dr. Vijay Mallya as wilful
defaulters and gave an opportunity to the said respondents to represent
thereagainst; the respondents, besides representing, sought a hearing. The
GRC of the appellant PNB though gave a hearing, as mandated by the
Circular aforesaid of the RBI, but during the said hearing objected to the
said respondents being represented by a Senior Advocate.
4. This led to the filing by the respondents of W.P.(C) No.5532/2014
from which the LPA No.589/2014 arises. The said writ petition came up
before the learned Single Judge of this Court on 28th August, 2014 when the
counsel for the appellant PNB appeared on advance notice and contended
that the GRC of the appellant PNB, which was to give a hearing, comprised
of the Executive Director, Chairman-cum-Managing Director and a General
Manager of the appellant PNB and none of the said members were Law
Graduates and therefore the respondents were not entitled to be represented
by an Advocate. It was further submitted that similar notices had been
issued to a large number of other borrowers for declaring them also as wilful
defaulters and that if the defaulting borrowers are permitted to be
represented by an Advocate, the GRC would be severely impeded in
disposing of those cases.
5. The learned Single Judge disposed of the writ petition vide order
dated 28th August, 2014, finding / observing / holding:
(i) that it is settled law that in a case where a person is pitted
against legally trained mind, denial of representation through a legal
practitioner would violate an essential principle of natural justice;
(ii) that this does not necessarily imply that where the adjudicating
authority is not legally trained, representation through a legal
practitioner ought to be denied;
(iii) that undisputedly an adverse decision by the GRC would be
highly prejudicial to the interest of the respondents / writ petitioners
and would have significant implications;
(iv) that though the effort of the appellant Bank to expeditiously
dispose of the matter is appreciable but the idea of preventing
adequate representation to the affected parties for such disposal is
unacceptable;
(v) that the right to be represented by a Advocate is not an integral
part of natural justice and it is not necessary that in all cases before
domestic forums representation through a legal practitioner should be
permitted; however the Courts have leaned towards allowing
representation through legal practitioners to obviate any handicap that
the person may feel in representing his case;
(vi) that in cases where adverse decision would have serious civil
and pecuniary consequences, denial of representation through a legal
practitioner may in given facts be violative of natural justice;
(vii) that indisputably the consequences of holding the respondents /
writ petitioners as wilful defaulter would be serious for them and they
ought to be afforded adequate opportunity to represent;
(viii) that the apprehension expressed by the counsel for the
appellant PNB that the respondents / writ petitioners were seeking to
delay the proceedings, could be allayed by fixing timelines.
The writ petition was accordingly disposed of inter alia by
fixing the date of hearing and by clarifying that the respondents / writ
petitioners would have a right of representation in the said hearing
through an Advocate or a Senior Advocate but with the condition that
the oral submissions will be confined to six hours and the hearing
would be concluded on 22nd September, 2014 itself. The respondents
/ writ petitioners were however given liberty to file written
submissions and documents.
6. Aggrieved therefrom LPA No.589/2014 was filed along with an
application for stay of the order of the learned Single Judge. Notice of the
appeal was issued and the hearing before the GRC was stayed, more so in
the light of the fact that the respondents / writ petitioners in the meanwhile
had already been declared as a wilful defaulter by another Bank. Though, in
the light of the same, we enquired from the counsels, whether not the appeal
had become infructuous, inasmuch as it matters not, whether a person is
classified as a wilful defaulter by one Bank / FI or by more than one Bank /
FI but on the contention of all the counsels that the issue involved is of
general importance and is likely to arise in future as well, we proceeded to
hear the appeal and reserved judgment.
7. The counsel for the appellant PNB argued, i) that the hearing before
the GRC is in the nature of a domestic enquiry and if legal representation is
allowed in such enquiries the same would unduly delay the decision on
whether the person proposed to be declared as wilful defaulter is to be so
declared or not; the delay caused by the respondents / writ petitioners in this
case was pointed out; ii) that the Supreme Court even in the context of an
opportunity of representation under Sections 13(2), (3) & (3A) of the
Securitization and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 (SARFAESI Act) has held that there is no right
of hearing; iii) that the petition from which this appeal arises,
notwithstanding the judgment of the Division Bench of the Calcutta High
Court, was filed by way of a wager. Reliance was placed by the counsel
for the appellant PNB on the following judgments:
(A) N. Kalindi Vs. M/s. Tata Locomotive and Engineering Co.
Ltd. Jamshedpur AIR 1960 SC 914 laying down that a workman
against whom an enquiry is held by the management has no right to
be represented at such enquiry by a representative of his union,
though the employer in his discretion may allow so; it was reasoned
that if the enquiry is unfair, the workman can always in an industrial
dispute challenge its validity (we may however notice that the said
view was based on the general practice then prevalent of the person
accused conducting his own case);
(B) J.K. Aggarwal Vs. Haryana Seeds Development Corporation
Ltd. (1991) 2 SCC 283, in the context again of departmental enquiry,
holding that right of representation by a lawyer "may not" in all cases
be held to be a part of natural justice except when a man‟s reputation
or livelihood is at stake and that the discretion in this regard is to be
exercised taking into consideration, 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 defence by the
reason of one being pitted against a presenting officer who is trained
in law;
(C) National Seeds Corporation Ltd. Vs. K.V. Rama Reddy (2006)
11 SCC 645 laying down that in domestic / departmental enquiry,
there is no right to representation by somebody else, unless the rules
and regulations or standing orders concerned specifically recognise
such a right and provide for such a representation; the reasons given
in that case for permitting representation, of the misappropriated
amount being very large, number of documents and witnesses being
numerous and workman being not able to get assistance of any other
able co-worker, were held to be irrelevant;
(D) D.G., Railway Protection Force Vs. K. Raghuram Babu
(2008) 4 SCC 406 also laying down that ordinarily in a domestic /
departmental enquiry, the person accused of misconduct has to
conduct his own case, inasmuch as, such an inquiry is not a suit or
criminal trial where a party has a right to be represented by a lawyer
and that it is only if there is some rule which permits the accused to
be represented by somebody else that such a right can be claimed;
(E) A.S. Motors Private Limited Vs. Union of India (2013) 10
SCC 114, in the context of hearing in pursuance to a show cause
notice issued prior to termination of contract, holding that there was
no need to give an opportunity to cross-examine, as the inquiry was
primarily in the realm of contract, aimed at finding out whether the
noticee had committed any violation of the contractual stipulations
and in the absence of any allegation of mala fides, the said inquiry
could not be held to be in violation of principles of natural justice;
(F) Poolpandi Vs. Superintendent, Central Excise (1992) 3 SCC
259 where the contention, that since there was no statutory provision
in the Customs Act, 1962 prohibiting the presence of a counsel during
the interrogation of a person concerned, a request in that regard, if
made cannot be legitimately refused, was rejected;
(G) judgment dated 28th August, 2014 of a Division Bench of the
High Court of Calcutta in AST No.320/2014 titled Kingfisher
Airlines Limited Vs. Union of India, in similar circumstances as the
present, holding that by refusing permission to engage Advocate, the
bank did not commit any wrong (SLP(C) CC No.14755/2014
preferred thereagainst was disposed of vide order dated 2 nd
September, 2014 as infructuous, in view of the fact that the GRC of
that bank had already passed the order declaring the appellant in that
case as a wilful defaulter);
8. Per contra, the senior counsel for the respondents / writ petitioners,
argued:
(I) that no prejudice is caused to the appellant Bank from the
impugned judgment, as the interest of the appellant Bank has been
sufficiently protected by fixing a time bound schedule of hearing;
(II) that the RBI should be a party, since the Master Circular of the
RBI is being interpreted / construed (however we had pointed out to
the senior counsel that the present appeal arises from a writ petition
filed by the respondents / writ petitioners and it was for the
respondents / writ petitioners to implead the RBI, as a party thereto
and they cannot now oppose the appeal on this ground);
(III) attention was invited to Clause 2.5(b) of the Master Circular of
the RBI which provides that the Banks / FIs should also initiate
criminal proceedings against wilful defaulters, whenever necessary
and it was contended that in view of such a serious consequence, the
representation through an Advocate is essential (however we had
drawn the attention of the senior counsel to Superintendent of Police
(C.B.I) Vs. Deepak Chowdhary (1995) 6 SCC 225 laying down that
no opportunity of hearing is required to be given before the grant of
sanction for prosecution under the Prevention of Corruption Act,1988
etc.);
(IV) attention was invited to Section 303 of the Code of Criminal
Procedure, 1973 (CrPC) conferring the right to be defended by a
pleader of his choice to any person accused of an offence before a
Criminal Court or against whom the proceedings are instituted under
the CrPC; (however, we had pointed out that the same can have no
application as the GRC does not accuse the person proposed to be
declared as wilful defaulter of any offence and does not prosecute him
and Clause 2.5(b) supra of the Master Circular merely provides that against wilful
defaulters, criminal proceedings may be initiated, if necessary);
(V) attention was invited to Clause 4.3 of the Master Circular
providing that it should also be ensured that the penal provisions are
used effectively and determinedly but after careful consideration and
due caution and advising the Banks / FIs to put in place a transparent
mechanism for initiating criminal proceedings based on facts of each
case and it was argued that for the sake of complete transparency also,
representation through an Advocate is necessary;
(VI) attention was invited to Clause 3 of the Master Circular
aforesaid providing that the GRC should comprise of the Chairman
and Managing Director and two other senior officials and it was
contended that the senior officials can also be a Legal Director or a
Legal Manager and that thus to maintain the balance, it is necessary to
allow representation through Advocate also to the person proposed to
be declared as a wilful defaulter;
(VII) that wherever it has been held that there is no right of
representation through Advocate, there is an express prohibition
against the appearance of the Advocate as under the Family Courts
Act, 1984 and the Industrial Disputes Act, 1947 or under the Co-
operative Societies Act, 2003; there is no such bar under the Master
Circular;
(VIII) that the appellant Bank in the notice issued to the respondents /
writ petitioners proposing to declare them as wilful defaulters relied
upon and referred to the investigative report of Ernst & Young LLP
(EY) being an external agency; similarly assistance to the noticee of
an external agency i.e. an Advocate should also be permitted.
9. We had during the hearing on 13th October, 2014 invited the attention
of the counsels to Section 30 of the Advocates Act, 1961 which though
earlier had not been notified and was thus not in operation, has been notified
on 19th June, 2011 and is as under:
"30. Right of advocates to practise--Subject to provisions of
this Act, every advocate whose name is entered in the [State
roll] shall be entitled as of right to practise throughout the
territories to which this Act extends,--
(i) in all courts including the Supreme Court;
(ii) before any tribunal or person legally authorised to
take evidence; and
(iii) before any other authority or person before whom
such advocate is by or under any law for the time being
in force entitled to practise."
and enquired whether the right of the Advocates to practise
thereunder extended to before the GRC of the Bank.
10. The senior counsel for the respondents / writ petitioners on the next
date of hearing relied on:
(a) Aeltemesh Rein Vs. Union of India (1988) 4 SCC 54 laying
down that we have travelled a long distance from the days when it
was considered that the appearance of a lawyer on one side would
adversely affect the interests of the parties on the other side and that
now the Legal Aid and Advice Boards functioning in different States
can be approached by the people belonging to weaker sections for
legal assistance and for providing services of competent lawyers to
appear on their behalf before the Courts and Tribunals in which they
have cases and in the light thereof, there appeared to be no
justification for not bringing into force Section 30 of the Advocates
Act;
(b) N.K. Bajpai Vs. Union of India (2012) 4 SCC 653 and invited
attention to paras 20, 21, 24 to 27, 36, 38 and 70 thereof and
contended that in the present case, the RBI has not deemed it
expedient to bar the appearance of Advocate in the hearing provided
for to the person sought to be declared as a wilful defaulter;
(c) DLF Qutub Enclave Complex Educational Charitable Trust
Vs. State of Haryana (2003) 5 SCC 622 to, by analogy, contend that
bar cannot be implied and must be express;
(d) Santanu Ghosh Vs. The State Bank of India 2013 SCC
Online Cal 11603 holding that considering the severe consequences
that befall a person upon being found to be a wilful defaulter, the
function of the GRC is more quasi-judicial than administrative and
finding the order of GRC same to be not stating any reason, setting
aside the same;
(e) India Photographic Company Ltd. Vs. Saumitra Mohon
Kumar alias Saumitra Kumar 1983 SCC Online Cal 156 holding that
no general rule can be laid down regarding right of legal
representation and it must be left for consideration in the light of facts
of each individual case;
(f) PETT Vs. Greyhound Racing Association Ltd. 1969 1 Q.B.
125 laying down that where there is a right of audience and when the
charge concerns a person‟s reputation and his livelihood, there is a
right to appoint an agent and once a person has a right to appear as an
agent, there is no reason why that person should not be a lawyer
(however the counsel for the appellant PNB contended that this
judgment has been dissented from in Enderby Town Football Club
Ltd. Vs. Football Association Ltd. 1971 1 Chancery 591;
(g) Pannalal Binjraj Vs. Union of India AIR 1957 SC 397 para
31 to contend that since the Master Circular supra does not deal with
the issue of representation by the Advocate at the hearing
contemplated therein, the same cannot be presumed to be taking it
away, and;
(h) attention was invited to Section 35A of the Banking Regulation
Act, 1949 empowering the RBI to give directions and it was
contended that the Master Circular has been issued in the exercise of
power thereunder and the said section also does not deal with the
right of representation.
11. With reference to Section 30 of the Advocates Act, we had further
enquired from the counsels, what is the definition of a Tribunal within the
meaning of Clause (ii) thereof and whether the GRC of the Bank could be
considered as a Tribunal.
12. The counsel for the appellant PNB in rejoinder contended that the
GRC could not be construed as a Tribunal; a Tribunal entails judicial power
and which is not conferred on the GRC. Attention in this regard was invited
to paras 38 to 45 of Union of India Vs. Madras Bar Association (2010) 11
SCC 1. It was contended that the GRC is not legally authorized to receive
evidence. Attention was invited to Section 11 of the Industrial Disputes Act
constituting the Labour Court as a Tribunal and giving powers thereto of a
Civil Court and it was contended that it was for this reason, since lawyers
would have been entitled as a matter of right to appear before it, that the
need for prohibiting them by Section 36(3) arose. Attention was also
invited to Zonal Manager, Life Insurance Corporation of India Vs. City
Munsif, Meerut AIR 1968 Allahabad 270 where without noticing that
Section 30 of the Advocates Act had not been brought into force, it was held
that an Inquiry Officer in a departmental enquiry is not a Tribunal. Notice
was also taken of the fact that in British India there is no common law right
in a party to be represented by counsel and that if the client is expressly
denied the privilege of being heard by a counsel, the Advocate‟s right of
audience would be also excluded. Attention was also invited to para 10.033
of Volume 2 of Halsbury‟s Laws of India, 1999 Edition, summarising that
the right to practice granted by the Advocates Act does not confer on a
litigant the right to be represented by an Advocate. It was further argued
that India Photographic Company Ltd. supra relied upon by the
respondents / writ petitioners is contrary to the law laid down by the
Supreme Court. To answer our query, whether a lawyer could appear
before the GRC as an agent of the noticee, reference was made to Chapter X
on Agency in Pollock & Mulla‟s The Indian Contract and Specific Relief
Acts, 14th Edition (on the basis of K.K. Khadilkar Vs. Indian Hume Pipe
Co. Ltd. AIR 1967 Bombay 521) opining that right of audience before a
Tribunal cannot be delegated to an agent. It was further contended that DLF
Qutub Enclave Complex Educational Charitable Trust supra was in
relation to land and would have no application.
13. The senior counsel for the respondents / writ petitioners in sur-
rejoinder handed over a copy of the Advocate (Amendment) Bill.
14. After we reserved judgment in LPA No.589/2014, LPA No.113/2015
entailing same controversy was listed and the counsels therein stated that
they would be bound by the judgment to be delivered in LPA No.589/2014.
Accordingly, judgment therein also was reserved.
15. While the judgment was reserved, the Division Bench of the High
Court of Bombay in Kingfisher Airlines Ltd. Vs. Union of India
MANU/MH/1768/2015, faced with a similar controversy, largely relying on
the judgment of the High Court of Calcutta has also held that a proposed
wilful defaulter who has been given an opportunity of hearing by the
concerned Bank does not have a right to be represented by a lawyer before
the GRC. However notwithstanding having held so, the High Court, to
avoid further delay, permitted the petitioner in that case to be represented
before the GRC by a lawyer. Though the State Bank of India carried the
matter to the Supreme Court by way of SLP(C) Nos.26420-26421/2015 but
the Supreme Court vide order dated 18th September, 2015 declined to
interfere as the legal question had been decided in favour of the Bank and
for the reason that the High Court while permitting the petitioner in that case
to be represented by a lawyer had directed the hearing to be concluded in
one day. The Supreme Court further clarified that its order will not
constitute a precedent.
16. Thus as of now there is no pronouncement from the Supreme Court
on the subject and the view of the Calcutta High Court followed by the
Bombay High Court is that there is no right of representation through an
advocate before the GRC.
17. Having given our thoughtful consideration to the matter, we, with
respect are unable to concur with the view taken by the High Courts of
Calcutta and Bombay and for the reasons hereafter appearing hold that a
proposed wilful defaulter, in the hearing before the GRC, would have a right
of representation though an advocate.
(A) The ramifications of a person being labelled as a wilful
defaulter are wide and drastic. Such declaration sounds the
commercial death knell of the borrower in the sense that credit
facilities would no longer be available to such borrower. Not
only would such a borrower be deprived of credit facilities
from banks and financial institutions but is likely to be also
deprived of credit from any other person with whom it may be
having financial / commercial dealings. The suppliers of goods
and raw materials to such borrowers would stop supplying
goods and raw materials on credit and would insist upon
delivery against payment. Not only so, such declaration as a
wilful defaulter, which is put in public domain, is also injurious
to commercial goodwill and reputation of the borrower, likely
to make anyone weary of dealing with the borrower. All this is
likely to lead to cessation of the business of such a borrower.
(B) Supreme Court in Kotak Mahindra Bank Ltd. Vs. Hindustan
National Glass and Ind. Ltd. (2013) 7 SCC 369 has held that
the purpose of the Master Circular is to caution banks and
financial institutions from giving any bank finance to a wilful
defaulter. It was held that credit information could not be
confined to only wilful defaults made by existing borrowers of
the bank but would also cover constituents of banks who had
defaulted in their dues under banking transactions with banks
and who intended to avail further finance from the banks. Non-
funded facilities such as guarantees were held to be covered by
a Master Circular. It was further held that confidentiality of
any credit information either by virtue of any other law or by
virtue of any agreement between the banks and its constituent
cannot be a bar for disclosure of credit information under
Section 45C(1) of the Reserve Bank of India Act, 1934.
(C) It is perhaps for the reason of said serious consequences which
follow declaration of a borrower as a wilful defaulter that the
Master Circular has provided for the Banks / FIs notifying the
borrower proposed to be so declared as a wilful defaulter of the
intention to do so and to give an opportunity to represent
against such proposal and a right of hearing before a GRC
headed by Chairman and Managing Director of the Bank / FI.
(D) As per the Master Circular the decision to classify the borrower
as a wilful defaulter is to be entrusted to a committee of higher
functionaries headed by Ex-Director and consisting of two
General Managers / Deputy General Managers, as decided by
the Board of Directors of Bank / FI and the decision to be
based on objective facts and to be well documented and
supported by requisite evidence and should clearly spell out the
reasons for which the borrower is intended to be declared as a
wilful defaulter. It is thereafter that the borrower is to be
notified of the said decision, to be given an opportunity to
represent thereagainst and if so desires, to be given a hearing
before the GRC. A final declaration as wilful defaulter is to be
made after a view is taken by the GRC on the representation of
the borrower.
(E) It would thus be seen that before the borrower is notified, a
committee of high functionaries of Bank/FI has already
collected and documented evidence and recorded reasons for
proposing to declare him as a wilful defaulter. What follows
before the GRC is not an inquiry, as is the case in a
departmental proceeding in employment disputes, judgments
with respect whereto have been cited by the Bank. Here, before
the borrower is called upon to represent and if so desires be
heard, the Bank / FI has already conducted its inquiry and
reached a reasoned conclusion supported by evidence albeit ex
parte of the borrower qualifying as a wilful defaulter. The
borrower is then called upon to represent thereagainst. The
borrower, during the opportunity provided to represent
thereagainst and of hearing would axiomatically be required to
meet and rebut the evidence on the basis whereof and the
reasons for which the high level committee of the Bank has
concluded that the borrower be declared as a wilful defaulter.
Resultantly, the GRC would be required to consider and weigh
the evidence and the reasons on the basis of which the bank has
arrived at the decision vis-a-vis the rebuttal evidence and
arguments of the borrower and thereafter take a view. The
proceedings before the GRC are thus not inquisitorial as in the
case of departmental proceedings supra but are rather
adversarial and the decision of GRC is final, against which no
remedy is provided as distinct from the report of inquiry officer
in departmental proceedings validity whereof can be
challenged in a industrial dispute. The judgments relating to
departmental proceedings cited by the counsel for Bank thus
have no applicability to the proceedings before GRC.
(F) The Master Circular also defines wilful default and then
proceeds to define the ingredients of wilful default. It further
provides that the decision, whether a particular instance
amounts to siphoning of funds would have to be a judgment of
lenders based on objective facts of the case.
(G) We are of the view that a borrower himself or his workers /
officials may not be well versed to, during the hearing before
the GRC, support or explain the representation made against
the proposal of the bank and may not be able to answer any
query or give clarification as is sought by members of GRC
with respect to contents of representation filed and which is
likely to be prepared by professionals including advocates. It
cannot also be lost sight of that declaration of wilful default
extends to non-funding transactions with the Banks also and
the question, whether the borrower besides having defaulted in
repayment obligation, has also not utilised the fund for the
purpose availed or has diverted or siphoned off the same or
disposed off its assets may not be simple as may appear to be but have
complex financial and legal implications. We cannot also be
unmindful of complexity of today‟s financial transactions
which are invariably structured by experts including law firms
and not by the borrowers themselves. To require the borrower
in such circumstances to explain or unravel the same himself
may, in our view undo the very purpose of giving an
opportunity of being heard and infringe the „fairness‟ of the
process.
(H) Supreme Court, in Kulja Industries Limited Vs. Chief General
Manager W.T. Project BSNL AIR 2014 SC 9, in the context of
blacklisting has held:
(i) that though a freedom to contract or not to contract is
unqualified in the case of private parties but any such
decision is subject to judicial review when the same is
taken by the State or any of its instrumentalities;
(ii) this implies that any such decision will be open to
scrutiny not only on the touchstone of principles of
natural justice but also on the doctrine of proportionality;
(iii) a fair hearing to the party being blacklisted thus becomes
an essential pre-condition for a proper exercise of the
power and a valid order of blacklisting made pursuant
thereto;
(iv) reasonableness, fairness and proportionality of the order
to the gravity of the offence is examinable by a writ
Court;
(v) that though the right of the petitioner is in the nature of a
contractual right but the manner, method and motive
behind the decision of the authority whether or not to
enter into a contract is subject to judicial review on the
touchstone of fairness, relevance, natural justice, non-
discrimination, equality and proportionality.
(I) In our view the above parameters would be applicable to the
declaration under the Master Circular of a borrower as a wilful
defaulter also. Just like the State and its instrumentalities
cannot refuse to enter into a contract with a private party
without giving such private party an opportunity of being heard
and which hearing has to satisfy the criteria of fairness,
similarly the banks and FIs cannot by declaring a borrower as
wilful defaulter deprive the borrower of credit / banking
facilities from all Banks / FIs by though giving a hearing but
without the element of fairness therein.
(J) Supreme Court in Smt. Kavita Vs. State of Maharashtra
(1981) 3 SCC 558 reiterated in Nand Lal Bajaj Vs. State of
Punjab (1981) 4 SCC 327 emphasized that adequate legal
assistance is essential for the protection of Fundamental Rights
guaranteed by the Constitution and valuable rights may be
jeopardised and reduced to mere nothing without adequate
legal assistance in the light of the intricacies of the problems
involved and other relevant factors. In the context of provision
of Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 disentitling a detenu from
claiming as of right to be represented by a lawyer, it was held
that whether or not a legal assistance should be afforded must
necessarily depend upon the merits of each individual case.
(K) Again, in Crescent Dyes and Chemicals Ltd. Vs. Ram Naresh
Tripathi (1993) 3 SCC 115 it was held that refusal to be
represented by an agent of choice may amount to denial of
natural justice and that ordinarily it is considered desirable not
to restrict this right of representation by counsel or an agent of
one‟s choice. Though a restriction by law can be imposed.
(L) We had during the hearing wondered whether not depriving the
borrower the right of legal representation may also result in
discrimination in proceedings before GRC vis-a-vis different
borrowers.
(M) We had in this context enquired from the counsel for the Bank
whether not an advocate / senior advocate if on the Board of
Directors of a borrower company proposed to be declared as a
wilful defaulter and / or a advocate though not practicing but
employed in the borrower company proposed to be declared as
a wilful defaulter would be entitled to represent the borrower
company in the hearing before the GRC. The counsel for the
Bank fairly answered in the affirmative. We are of the view
that if an advocate in his capacity as a Director on the Board of
the borrower company and / or as an employee of such a
company would be entitled to so represent the borrower before
the GRC, not permitting an advocate as a professional to so
represent the borrower who has no advocate on its Board or in
its employment would cause discrimination.
(N) The present times are times of specialization and outsourcing.
Though in olden times large business houses / companies (and
it is generally they who are likely to be declared as wilful
defaulters) were known to have an established legal department
employing several legal brains, however with the evolvement
of the legal profession over the years and the coming into being
of the law firm culture, today a number of such business houses
instead of maintaining a law department of their own are
outsourcing the entire legal work. To allow a company /
business house which maintains a legal department and lawyers
on board, to be represented by such lawyers and to not allow a
business house / a company which instead of maintaining its
own legal department relies on external professionals therefor
would in our opinion amount to discrimination not based on
any reasonable criteria and not having any rationale nexus to
the object sought to be achieved.
(O) The way in which businesses are conducted and transacted
today has also undergone a drastic change. Today, we have
companies who are marketing and selling goods worth crores
of rupees but who are not manufacturers of such goods and
may not themselves have title or custody of the said goods at
any point of time. Such companies may not have any tangible
assets even and being purely e-commerce companies may not
have a large workforce also. In our view, prohibiting
representation before GRC through professionals would also
unduly prejudice such companies vis-a-vis the old fashioned
brick and mortar companies employing a workforce of
thousands.
(P) We cannot also be unmindful of the fact that notwithstanding
the bar contained in the Industrial Disputes Act, 1947,
practicing advocates have continue to appear before the Labour
/ Industrial Court save for the fact that they appear not as
advocates wearing black coats and robes but as agents of the
employer. This Court cannot shut its eyes to the reality of life
and we are of the view that the law may rather be in
consonance with the practice than such which is practiced in
breach.
(Q) That takes us to Section 30 of the Advocates Act supra
conferring in the advocates a right to practice. Chief Justice of
India Justice T.S. Thakur speaking for the High Court of
Karnataka in M/s. Kothari Industrial Corporation Limited Vs.
The Coffee Board MANU/KA/0414/1999 held that the right of
an advocate to practice before any Court or Tribunal, contained
in Section 30 of the Advocates Act, necessarily means that a
litigant before any such Court, Tribunal, Authority or person
will have a right to engage and avail the services of an
advocate.
(R) Supreme Court in N.K. Bajpai supra after noticing Section 30
of the Advocates Act held that the right to practice is not only a
statutory right but would also be a fundamental right under
Article 19(1)(g) of the Constitution.
(S) Supreme Court in Dr. D.C. Saxena, Contemnor Vs. Hon'ble
the Chief Justice of India (1996) 5 SCC 216 held that
advocacy touches and asserts the primary value of freedom of
expression so dear in a democracy. It was further held that
freedom of expression produces the benefit of the truth to
emerge and assists stability by tempered articulation of
grievances and plays its part in securing the protection of
fundamental human rights.
(T) However to invoke Section 30 supra, the GRC constituted
under the Master Circular supra would have to satisfy the test
thereof.
(U) GRC is definitely not a Court within the meaning of Clause (i)
of Section 30 and neither the Master Circular nor any other
legislation within the meaning of Clause (iii) of Section 30
entitles an advocate to practice before the GRC. What remains
to be considered is whether the GRC qualifies as a "Tribunal or
a person legally authorized to take evidence" within the
meaning of Clause (ii) of Section 30.
(V) We have in this context wondered whether the words "legally
authorized to take evidence" qualify both "Tribunal" as well as
"person" preceding the same but separated by the word "or".
(W) Supreme Court recently in Star Industries Vs. Commissioner
of Customs (Imports) MANU/SC/1150/2015 quoted with
approval Justice G.P. Singh‟s Statutory Interpretation 12th
Edition 2010 authoring that the word "or" is normally
disjunctive. This was reiterated in Spentex Industries Ltd. Vs.
Commissioner of Central Excise MANU/SC/1142/2015. It
was so held earlier also in Guru Nanak Dev University Vs.
Sanjay Kumar Katwal (2009) 1 SCC 610. Thus the existence
of the word "or" between the words "Tribunal" and "person" in
Clause (ii) of Section 30 supra is indicative of the words
"legally authorized to take evidence" qualifying the word
"person" only and not the word "Tribunal".
(X) Though the counsel for the respondents, from Clause 3(ii) of
the Master Circular requiring the decision taken on
classification as a wilful defaulter to be well documented and
supported by requisite evidence contended that the GRC is
authorized to take evidence but we find the words „legally
authorized to take evidence‟ meaning, authorized to compel
presence of any person as a witness and which we do not find
the GRC to be authorized to. It thus cannot be said that the
GRC is legally authorized to take evidence.
(Y) The only question which thus remains for consideration to
attract the applicability of Section 30 supra is, whether the
GRC can be called a „Tribunal‟ within the meaning of Clause
(ii) of Section 30 of the Advocates Act.
(Z) Tribunal is a Latin word meaning "a raised platform on which
the seats of the Tribunals or Magistrates are placed" (Refer
State of M.P. Vs. Anshuman Shukla (2008) 7 SCC 487).
(AA) Article 136 of the Constitution of India, while conferring in the
Supreme Court the power to grant special leave to appeal,
provides for a special leave to appeal from any judgment,
decree, determination, sentence or order passed by any Court or
Tribunal.
(BB) Supreme Court in The Engineering Mazdoor Sabha
Representing Workmen Employed Under the Hind Cycles
Ltd. Vs. The Hind Cycles Ltd., Bombay AIR 1963 SC 874, in
the context of Article 136 held that while the expression
"Court" in the technical sense is a Tribunal constituted by the
State as a part of ordinary hierarchy of Courts which are
invested with the State's inherent judicial powers, the
"Tribunal" as distinguished from the Court, exercises judicial
powers and decides matters brought before it judicially or
quasi-judicially, but it does not constitute a Court in the
technical sense. It was held that purely administrative
Tribunals are outside the scope of the word "Tribunal" within
the meaning of Article 136 of the Constitution - the Tribunals
contemplated by Article 136(1) are clothed with some of the
powers of the Courts, inter alia their decisions must be
consistent with the general principles of law i.e. they must be
acting judicially and reach their decisions in an objective
manner and cannot proceed purely administratively or base
their conclusions on subjective tests or inclinations. A Tribunal
within the meaning of Article 136 was held to include within
its ambit all adjudicating bodies provided they are constituted
by the State and are invested with judicial as distinguished
from purely administrative or executive functions. The test
was held to be whether the adjudicating body has been
constituted by the State and has been invested with the State's
judicial power which it is authorised to exercise.
(CC) In Jaswant Sugar Mills Ltd.Vs. Lakshmichand AIR 1963 SC
677 while reiterating that the essential test of being a Tribunal
is that it should have been constituted by the State and invested
with judicial as distinguished from purely administrative or
executive functions, it was explained that duty to act judicially
upon an authority does not necessarily clothe the authority with
the judicial power of the State as even administrative or
executive authorities are required to act judicially in dealing
with questions affecting the rights of citizens. It was further
explained that in deciding whether an authority required to act
judicially would be regarded as a Tribunal or not the principle
incident is the investiture of a trappings of a Court such as
authority to determine matters in cases initiated by parties,
sitting in public, power to compel attendance of witnesses and
to examine them on oath and duty to follow fundamental rules
of evidence, provision for imposing sanctions by way of
imprisonment, fine, damages or mandatory or prohibitory
orders to enforce obedience to their commands.
(DD) In Associated Cement Companies Ltd. Vs. P.N. Sharma AIR
1965 SC 1595, Justice R.S. Bachawat in his concurring
judgment held that an authority other than a Court may be
vested by a statute with judicial power in widely different
circumstances and the proper thing is to examine and ascertain
whether the powers vested in the authority can be truly
described as judicial functions or judicial power of the State.
Any outside authority empowered by the State to determine
conclusively the rights of two or more contending parties with
regard to any matter in controversy between them was held to
satisfy the test of an authority vested with the judicial power of
the State and to be regarded as a Tribunal within the meaning
of Article 136. It was held that a power of adjudication implies
that the authority must act judicially and must determine the
dispute by ascertainment of relevant facts on the materials
before it and by application of the relevant law to those facts. It
was further held that though an authority or body deriving its
power of adjudication from an agreement of the parties, such as
a private arbitrator or a tribunal acting under section 10-A of
the Industrial Disputes Act, 1947 would not satisfy the test of a
Tribunal but a State Government deciding an appeal under the
Punjab Welfare Officers Recruitment and Conditions of
Service Rules, 1952 vested with the powers to confirm the
punishment or set it aside and pass consequential orders and
determine the civil rights of the parties with regard to matters
in controversy between them would be a Tribunal.
(EE) Supreme Court in Mrs. Sarojini Ramaswami Vs. Union of
India (1992) 4 SCC 506, on a conspectus of the case law held
that one of the considerations which has weighed with the
Courts for holding a statutory authority to be a Tribunal under
Article 136 is finality or conclusiveness and the binding nature
of the determination by such authority.
(FF). Mention may though be made of Gujarat Steel Tubes Ltd. Vs.
Gujarat Steel Tubes Mazdoor Sabha (1980) 2 SCC 593 where
it was observed that the word „Tribunal‟ simpliciter has a
sweeping signification and does not exclude Arbitrator.
(GG) Seen in this conspectus, the GRC has been constituted by the
Master Circular. Such Circulars of the Reserve Bank of India
(RBI) have in, ICICI Bank Ltd. Vs. Official Liquidator of
APS Star Industries Ltd. (2010) 10 SCC 1 and in Peerless
General Finance & Investment Co. Limited Vs. Reserve Bank
of India (1992) 2 SCC 343 been held to have a statutory
character and force of law. The GRC thus satisfies the test
aforesaid of having been constituted by the State.
(HH) In our view, the GRC also satisfies the test of having been
invested with the State‟s judicial power and having the
trappings of a Court i.e. the authority to determine whether the
Bank‟s/FIs proposal to classify a borrower as a wilful defaulter
is in accordance with the requirements of the Master Circular
and if so satisfied, to declare the borrower as a wilful defaulter
and which declaration vitally affects the rights and reputation
of the person so declared. Not only does the Master Circular so
provide but we have already noted above the dicta of the
Supreme Court in Kulja Industries Limited supra holding that
the hearing in this regard has to satisfy the requirement of
fairness.
(II) Supreme Court in Anshuman Shukla supra was concerned
with the Arbitral Tribunal constituted under the Madhya
Pradesh Madhyastham Adhikaran Adhiniyam, 1983 to resolve
the disputes and differences pertaining to works contract or
arising out of or connected with execution, discharge or
satisfaction of any such works contract. The said Arbitral
Tribunal was held, for all intent and purport to be a Court
having been constituted to determine a lis between the parties.
The contention that the determination by the Arbitral Tribunal
was an administrative adjudication as distinct from judicial
adjudication was rejected. It was held that though not fulfilling
the criteria of a law Court as is ordinarily understood, the
Tribunal was a specialized Court which was required to decide
as per law.
(JJ) In All Party Hill Leaders' Conference, Shillong Vs. Captain
W.A. Sangma (1977) 4 SCC 161, the Election Commission
deciding the question of a symbol to the parties contesting the
election was held to be a Tribunal.
(KK) Recently in Columbia Sportswear Company Vs. Director of
Income Tax, Bangalore (2012) 11 SCC 224 while holding the
Authority for Advanced Rulings (Income Tax) constituted
under the Income Tax Act, 1961 to be a Tribunal, it was
reiterated that Tribunals are bodies of men appointed to decide
controversies arising under certain special laws and among the
powers of the State is included the power to decide such
controversies.
(LL) We are therefore of the opinion that the GRC satisfies the tests
prescribed to qualify as a Tribunal.
(MM) Once the GRC is held to be a Tribunal within the meaning of
Section 30 of the Advocates Act, the advocates would have a
right to practice before it and axiomatically the borrower before
such GRC will have a right to engage and avail the services of
an advocate.
(NN) A Division Bench of the High Court of Punjab and Haryana in
Paramjit Kumar Saroya Vs. Union of India
MNU/PH/0765/2014, in the context of the provision in the
Maintenance and Welfare of Parents and Senior Citizens Act,
2007 debarring representation through an advocate before the
Tribunals constituted under the said Act, held that after the
coming in to force of Section 30 of the Advocates Act, there
cannot be an absolute bar to the assistance by legal practitioner
to before a Tribunal.
(OO) A Full Bench of the High Court of Punjab and Haryana in Smt.
Jaswant Kaur Vs. The State of Haryana AIR 1977 P&H 221
held Section 20A of the Haryana Ceiling of Land Holdings
Act, 1972 prohibiting advocates from appearing before the
authorities constituted under the said Act to be bad in the light
of Section 30 of the Advocates Act, without of course noticing
Section 30 of the Act to be not in force.
(PP) In Lingappa Pochanna Appelwar Vs. State of Maharashtra
(1985) 1 SCC 479 the challenge to the vires of Section 9A of
the Maharashtra Restoration of Lands to Schedule Tribes Act,
1974 prohibiting advocates from appearing in proceedings
under the Act on the ground of restricting the right to practice
the provision was negatived only on the ground of Section 30
of the Advocates Act having not been brought into force and
though it was observed such a right is no doubt conferred
thereby.
(QQ) It thus follows that the restriction placed by the GRC of the
appellant banks to appearance on behalf of borrowers of
advocates before it, not by any law but otherwise, cannot be
sustained and has to be held to be bad.
(RR) We are also of the view that the entire opposition of the GRC
of the appellant banks to appearance of is based on an illogical
presumption of the same delaying the proceedings before it.
We do not find any basis for such apprehension. There is no
basis for the Bank / FIs to form an opinion that while the
defaulting borrower and / or his representatives would not
delay the proceedings, an advocate appearing for them would.
Moreover the members of GRC can always control and guide
the proceedings before it and as per the exigencies limit the
time of hearing.
(SS) We therefore conclude that the GRC of the appellant banks
erred in denying representation through the advocates to the
respondent. We further hold that the borrowers or the
Banks/FIs who are proposed to be classified/ declared as wilful
defaulters and are given an opportunity of hearing before the
GRC are entitled to be represented therein through advocates.
We however hasten to clarify that the GRC would be fully
empowered to control including as to the duration and guide the
hearing and if finds dilatory and vexatious tactics being
adopted, to take suitable consequential actions.
18. The appeals are accordingly dismissed. The appellant banks to
proceed to fix a date of hearing before their GRC, to proceed with their
proposal for declaring the respondents as wilful defaulters.
No costs.
RAJIV SAHAI ENDLAW, J.
CHIEF JUSTICE
DECEMBER 17, 2015
Bs/gsr..
