Right Of An Employee To Be Legally Represented In Disciplinary Inquiry Not An Absolute Right – Supreme Court
A two-judge Bench of Justice L Nageswara Rao and Justice Sanjiv Khanna has held that 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.
The Court also held, "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."
An appeal was preferred before the Supreme Court assailing the judgment of the Division Bench of the Kerala High Court which had affirmed the order of the Single Judge quashing the disciplinary proceedings against the Respondent on the ground of violation of Clause 22(ix)(a) of Chapter VIII of the Bank of Cochin Service Code.
In this case, a disciplinary inquiry was instituted against the Respondent as he was accused of committing grave misconduct by sanctioning advances in violation of the Bank of Cochin's head office instructions causing financial loss to the bank. The Respondent wanted to be represented by Mr. F.B. Chrysostom (Syndicate Bank, Mattancherry, Cochin), the Organising Secretary of the All-India Confederation of Bank Officers Organisation, Kerala State Unit in the inquiry, however, his request was denied.
After the inquiry was over, all the charges against the Respondent were proved and subsequently, he was dismissed from service.
Thereafter, the Bank of Cochin got amalgamated with the State Bank of India.
After a period of four years and five months after his dismissal, the Respondent filed a memorandum of appeal before the Chief General Manager, SBI. This appeal remained unattended and was not listed for hearing for over nine years. Thereafter, the High Court while disposing of the Petition filed by the Respondent directed the Chief General Manager to consider the appeal and pass appropriate orders. However, his appeal was rejected. The contention that the respondent was not allowed to be defended by an outsider was held to be without substance as the inquiry officer had permitted the respondent to be defended by an officer of the Bank of Cochin of his choice. The respondent had refused to avail of the same. Hence, the respondent could not raise the plea of failure of natural justice.
The Apex Court disagreed with the findings of the High Court and held, "The reasoning solely predicated on non-existence of article 'the' before 'bank' in Clause 22(ix)(a) of the Service Code does not justify inference of repugnancy in the context of the subject-matter, including the intent behind Clause 22(ix)(a) of the Service Code."
Choice of Representation in Domestic Inquiry
The Court while relying on the precedents Crescent Dyes and Chemicals Ltd. v. Ram Naresh Tripathi and National Seeds Corporation Ltd. v. K.V. Rama Reddy held, "Right to be represented by a third person in domestic inquiries/tribunals is based upon the precept that it is not desirable to restrict right of representation by a counsel or agent of one's choice. The ratio does not tantamount to acceptance of the proposition that such a right is an element of principles of natural justice, and its denial would immediately invalidate the inquiry."
"Representations are often restricted by a law, such as under Section 36 of the Industrial Disputes Act, 1947, as also by certified Standing Orders. The aforementioned two decisions ascribe to catena of decisions, including English case law on this subject, which accept that the right to be legally represented depends on how the rules govern such representation. Further, if the rules are silent, the party has no absolute right to be legally represented. However, the entitlement of a fair hearing is not to be dispensed with. What fairness requires would depend upon the nature of the investigation and the consequences it may have on the persons affected by it," the Bench opined.
Further, the Court held, "When a complaint is made that a principle of natural justice has been contravened, the court must decide whether the observance of that rule was necessary for a just decision in the facts of the case."
Delay in preferring the Appeal
The Court held that though the Service Code does not stipulate any time period within which the appeal may be preferred to the Board of Directors, it is well settled that no time does not mean any time and that the appeal should be filed at the earliest possible opportunity, within a reasonable time.
On the long pendency of the appeal of the Respondent before the appellate authority, the Court held that, "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."
The Court distinguished between 'delay and latches' and 'acquiescence' and held that the Respondent is estopped from claiming violation of the right of fair representation.
In the light of these observations, the Court allowed the appeal and set aside the impugned judgment of the High Court. The Court also upheld the order of dismissal and dismissed the Writ Petition filed by the Respondent.