Karnataka High Court
Sri. B.C. Sujay Kumar vs Sree Thyagaraja Co-Operative ... on 16 January, 2021
Author: M.Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.12842/2020 (S-RES)
BETWEEN
SRI.B.C. SUJAY KUMAR
S/O. B.C. CHAMAIAH
AGED ABOUT 55 YEARS
RESIDING AT NO.21/13/2
1ST MAIN, MYSORE ROAD
BYATARAYANAPURA
BENGALURU - 560 026
... PETITIONER
[BY SRI. NAGAIAH, ADVOCATE
(VIDEO CONFERENCING)]
AND
1. SREE THYAGARAJA
CO-OPERATIVE BANK LIMITED
NO.5, 9TH CROSS, N.R. COLONY
BENGALURU - 560 019
REPRESENTED BY ITS C.E.O.
2. THE PRESIDENT AND
DISCIPLINARY COMMITTEE
SREE THYAGARAJA CO-OPERATIVE
BANK LIMITED
NO.5, 9TH CROSS, N.R. COLONY
BENGALURU - 560 019
2
3. THE ENQUIRY OFFICER
SREE THYAGARAJA CO-OPERATIVE
BANK LIMITED
NO.5, 9TH CROSS, N.R. COLONY
BENGALURU - 560 019
... RESPONDENTS
[BY SRI. K.H. SOMASHEKARA, ADVOCATE
(PHYSICAL HEARING)]
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE ORDER PASSED BY THE R-3 CASE NO.P
AND S 73/2020-21 DATED 24.09.2020 VIDE ANNEXURE-D
AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner in this writ petition has called in
question the order dated 24.09.2020 by which, the
Enquiry Officer turned down the request of the
petitioner seeking appointment of an Advocate as his
Defence Representative in an departmental enquiry
pursuant to a charge sheet dated 07.05.2020.
2. Heard the learned counsel, Sri. Nagaiah,
appearing for the petitioner and the learned counsel,
Sri.K.H. Somashekara, appearing for the respondents.
3. The petitioner, who at the relevant point of
time was working as a Senior Assistant in respondent
No.1 - Bank was placed under suspension in
contemplation of disciplinary proceedings on
19.05.2020 after which, on 24.07.2020, a charge
sheet was issued against the petitioner and enquiry
proceedings commenced thereafter on finding the
reply of the petitioner to the charge sheet being
unsatisfactory.
4. The petitioner gave a representation to the
Enquiry Officer seeking appointment of an Advocate
as his Defence Representative in the enquiry on
24.09.2020.
5. This was turned down by the Enquiry
Officer in the proceedings dated 24.09.2020. It is this
order of the Enquiry Officer rejecting the request of
the petitioner seeking appointment of an Advocate as
his Defence Representative that is called in question in
the writ petition.
6. The enquiry proceedings are initiated by
respondent No.1 - Bank under its Rules. Rule 5.6(10)
is germane for the present case is extracted for the
purpose of quick reference:
"5.6(10). ªÀÄAqÀ£Á¢üPÁjAiÀÄÄ £ÁåAiÀĪÁ¢AiÀiÁVzÀÝ°è
CxÀªÁ PÁ£ÀÆ£ÀÄ vÀdÕ£ÁzÀ°è DgÉÆæ £ËPÀgÀ¤UÉ CAvÀºÀ
vÀdÕgÉƧâjAzÀ vÀ£Àß CºÀªÁ®£ÀÄß «ZÁgÀuÁ¢üPÁjUÉ w½¸À®Ä
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PÁ£ÀÆ£ÀÄ §zÀݪÁzÀ ºÀPÀÄÌ C®èzÉà EzÀÝ ¥ÀæAiÀÄÄPÀÛ
£ÁåAiÀĪÁ¢AiÀÄ£ÀÄß DgÉÆæAiÀÄ ¥ÀgÀªÁV ¥Àæw¤¢ü¸À®Ä
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°TvÀUÉƽ¹ DgÉÆæ £ËPÀgÀ¤UÉ w½¸À¨ÉÃPÀÄ. E®è¢zÀÝ°è
DgÉÆæ £ËPÀgÀ£ÀÄ EµÀÖ¥ÀlÖ°è vÀ£Àß ¸ÀºÀzÉÆåÃV £ËPÀgÀ£ÉƧâ£À£ÀÄß
vÀ£Àß ¸ÀºÁAiÀÄPÉÌ ¥ÀqÉzÀÄPÉƼÀÀÄzÀÄ ªÀÄvÀÄÛ «ZÁgÀuÁ¢üPÁjUÀ¼ÀÄ
EzÀPÀÆÌ PÀÆqÀ C£ÀĪÀÅ ªÀiÁrPÉÆqÀ§ºÀÄzÀÄ."
.
In terms of the afore-extracted Rule, a
delinquent would be entitled to an Advocate as his
Defence Representative only when the presenting
officer is an Advocate.
7. The law in this regard is well settled with
the judgment of the Apex Court in the case of
CRESENT DYES AND CHEMICALS Vs. RAM NARESH
TRIPATHI reported in (1993) 2 SCC 115, wherein the
Apex Court has held as follows:
"15. In the second case also the
management of Brooke Bond (P) Ltd. [(1961)
2 LLJ 417] framed charges against two
workmen involving gross negligence of duty
and moral turpitude and ordered separate
enquiries against them. The workman Subba
Raman appeared before the Enquiry Officer
with counsel and insisted that he should be
permitted to be represented by counsel. The
Enquiry Officer refused this request whereupon
the workman withdrew from the enquiry. The
enquiry was then concluded ex parte resulting
in the dismissal of the workman. In the case of
the other workman what happened was that he
appeared at the enquiry with an outsider and
insisted that he should be permitted to
represent him at the enquiry. He was told that
no outsider would be allowed to do so
whereupon he too withdrew from the enquiry.
The enquiry proceeded ex parte and ended in
his dismissal. This Court relying on the decision
in Kalindi case [(1960) 3 SCR 407 : AIR 1960
SC 914] concluded that the workmen had no
right to be represented at such enquiry by a
counsel or by an outsider agent and the refusal
of the Enquiry Officer to permit such
representatives at the domestic enquiry did not
offend the rule of natural justice.
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. In the instant case the delinquent's
right of representation was regulated by the
Standing Orders which permitted a clerk or a
workman working with him in the same
department to represent him and this right
stood expanded on Sections 21 and 22(ii)
permitting representation through an officer,
staff-member or a member of the union, albeit
on being authorised by the State Government.
The object and purpose of such provisions is to
ensure that the domestic enquiry is completed
with despatch and is not prolonged endlessly.
Secondly, when the person defending the
delinquent is from the department or
establishment in which the delinquent is
working he would be well conversant with the
working of that department and the relevant
rules and would, therefore, be able to render
satisfactory service to the delinquent. Thirdly,
not only would the entire proceedings be
completed quickly but also inexpensively. It is,
therefore, not correct to contend that the
Standing Order or Section 22(ii) of the Act
conflicts with the principles of natural justice."
In terms of the afore-extracted judgment of the
Apex Court which has clearly held that right of an
employee to seek assistance of an Advocate to be his
Defence Representative is in terms of the said Rules
or the discretion of the employer, the discretion by
Enquiry Officer after having been exercised and
rejected. No fault can be found in rejecting the
request of the petitioner.
For the aforesaid reasons, the writ petition lacks
merit and is dismissed.
Sd/-
JUDGE
SJK
