Girish Kumar Mehtani Girish Kumar Mehtani v. SBI & Another
Case Details
IN THE HIGH COURT OF PUNJAB & HARYANA IN THE HIGH COURT OF PUNJAB & HARYANA IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH AT CHANDIGARH Reserved on:17.07.2025 Reserved on:17.07.2025 CWP-9290 9290-2024 (O&M) Pronounced on: 12.08.2025 Pronounced on: Girish Kumar Mehtani Girish Kumar Mehtani VERSUS SBI & Another ...Petitioner ...Respondents ...Respondents CORAM : HON'BLE MR. JUSTICE VINOD S. BHARDWAJ HON'BLE MR. JUSTICE VINOD S. BHARDWAJ Mr. Raghav Sharma, Advocate for the petitioner. Present :- Mr. Raghav Sharma, Advocate for the petitioner. Mr. Raghav Sharma, Advocate for the petitioner. Mr. Anurag Jain, Advocate with Mr. Anurag Jain, Advocate with Ms. Chahat, Advocate for respondents no. 1 & 2. Ms. Chahat, Advocate for respondents no. 1 & 2. Ms. Chahat, Advocate for respondents no. 1 & 2. ***** VINOD S. BHARDWAJ, J. VINOD S. BHARDWAJ Facts 1. The petitioner has approached this The this court seeking issuance of a writ of certiorari certiorari for quashing the impugned orders orders dated 10.11.2023 and 13.02.2024, passed passed by the respondent-Bank, whereby whereby the petitioner’s request for legal assistance assistance and representation by an Advocate in ongoing departmental proceedings proceedings was rejected. 2. The facts relevant for adjudication The adjudication of the present petition are that the petitioner petitioner was initially appointed to the post post of Cashier-cum-Clerk in the erstwhile State State Bank of Patiala, pursuant to to an appointment letter dated 22.04.1993, and and he thereafter joined duties at at the Vikas Nagar Branch, Bhiwani. Upon the merger of State Bank of Patiala Patiala with the State Bank of CWP-9290-2024 (O&M) (O&M) 2 India, the petitioner petitioner became an employee governed governed by the service conditions and disciplinary Bank. disciplinary framework of the respondent-Bank. 3. The petitioner successfully completed The completed the prescribed period of probation, and continued in service, discharging discharging his responsibilities with diligence. regularity and diligence. 4. In the the course of his service, while while being posted as a Single Window Operator Operator at the AMM Branch, the petitioner petitioner came to be placed under suspension suspension vide order dated 14.09.2016, on on account of certain alleged irregularities pertaining pertaining to financial entries. Th The suspension remained in force for an extended extended period of over two years years and was ultimately revoked vide order dated dated 20.02.2019. 5. However, vide a show cause notice However, notice dated 25.01.2017, issued by the Assistant General General Manager, the petitioner was directed to submit his explanation in respect respect of certain financial transactions transactions on different dates, which the Bank Bank deemed to be irregular. The petitioner petitioner submitted a detailed written reply to 30.01.2017. the said show-cause notice on 30.01.2017. 6. Without objectively considering the Without the same, a formal charge sheet dated 19.12.2017 19.12.2017 was served upon the petitioner. petitioner. The petitioner submitted his written defence defence to the said charge sheet on on 10.01.2018 but the Bank none-the-less appointed appointed Shri Satish Chander Gupta Gupta as the Inquiry Officer to conduct the regular regular departmental inquiry. 7. In view view of the gravity and complexity complexity of the allegations, which involved accusations accusations of fraudulent transactions, transactions, financial discrepancies, and potential misconduct misconduct of a technical nature, the petitioner submitted a CWP-9290-2024 (O&M) (O&M) 3 representation dated 23.05.2018 before the the Inquiry Officer, seeking permission to be represented by a legal practitioner practitioner in the inquiry proceedings. 8. The said request, however, came to The to be rejected by the Regional Manager vide letter letter dated 23.07.2018, who instead instead directed the petitioner to avail assistance from one of two named Bank
Legal Reasoning
Bank officials, viz. Shri Parmod Kumar Jain or Shri Shri Rajeshwar. It is the contention contention of the petitioner that both such proposed officials declined to assist him, him, thereby rendering the purported opportunity pportunity illusory and devoid of practical practical utility. Dissatisfied with the rejection rejection of his request, the petitioner preferred preferred an appeal before the Zonal Manager/DGM, Manager/DGM, which was also dismissed dismissed vide order dated 01.09.2018. 9. Aggrieved thereby, the petitioner ap Aggrieved approached this Court by way of CWP No. 5318 5318 of 2019, wherein the primary primary grievance espoused was the denial of legal representation in disciplinary proceedings. The said writ petition was allowed allowed by this Hon’ble Court vide vide order dated 05.10.2023 and a direction was issued to the respondent-Bank to to reconsider the petitioner’s request. 10. The petitioner The thus submitted a fresh application dated 02.11.2023 requesting requesting for permission to engage engage a lawyer to assist him in his defence before the Inquiry Officer. The same same was again declined by the respondent-Bank Bank vide order dated 10.11.2023 received received on 14.12.2023. His subsequent appeal appeal against this rejection also met met the same fate vide order CWP-9290-2024 (O&M) (O&M) 4 dated 13.02.2024, 13.02.2024, which was received by the the petitioner on 04.03.2024. Hence the present sent writ petition. Arguments of the the Petitioner 11. Counsel submits that following the Counsel the earlier intervention of this Hon’ble Court in in CWP No. 5318 of 2019, which which culminated in a reasoned order dated 05.10.2023 05.10.2023 directing reconsideration reconsideration of the petitioner’s request for legal representation representation in the ongoing departmental departmental proceedings, the petitioner, in faithful faithful compliance with the said said order, submitted a fresh representation dated dated 02.11.2023 seeking permission permission to be represented through a counsel counsel of his choice. However, despite despite the binding nature of this Court’s directions, directions, the respondent-Bank, vide vide order dated 10.11.2023, summarily rejected rejected the request again in a mechanical mechanical and non-speaking manner, thus denying denying the petitioner the opportunity opportunity to defend himself adequately. An appeal preferred against the said said rejection also met with a similar fate, being being dismissed vide order dated dated 13.02.2024 (received on 04.03.2024), without without due application of mind or or reference to the directions earlier issued by by this Hon’ble Court. 12. Counsel contends that the respondent Counsel respondent-Bank has persisted in offering the petitioner petitioner to be represented only through through two named individuals, purportedly office office-bearers of the employees’ union, however despite the petitioner’s specific specific plea that neither those individuals ndividuals nor any other union members were willing willing to represent him in the matter matter since they declined to provide assistance. assistance. Consequently, the so-called called opportunity offered to the CWP-9290-2024 (O&M) (O&M) 5 petitioner under under the guise of compliance with the the Bipartite Settlement dated 10.04.2002 is illusory and devoid of any any real efficacy. In such circumstances, it it is argued that the petitioner is is effectively left without any representation, which which frustrates the very object of of the Bipartite Settlement. 13. Counsel urges urges that the allegations levelled levelled against the petitioner in the charge sheet dated dated 19.12.2017 are of a technical technical and complex nature, involving serious serious charges of fraud, forgery, and and financial misappropriation. It is submitted that that the inquiry requires scrutiny scrutiny of voluminous documents, expert scrutiny scrutiny of transactional records, and and understanding of legal implications concerning concerning forgery and criminal misconduct, matters which necessitate the assistance of a trained legal professional. professional. The petitioner, being without any any legal expertise, cannot be expected expected to conduct his defence meaningfully or or effectively. It is argued that denial denial of legal representation in such circumstances circumstances violates the principles of natural natural justice. 14. It is is further submitted that considering considering the severity of the charges and the potential consequences, including including termination from service, loss of livelihood, livelihood, and irreparable harm to the the petitioner’s reputation and dignity, the right right to be heard through legal counsel counsel assumes even greater significance. Counsel Counsel emphasises that the Supreme Supreme Court has consistently held that in cases cases involving serious consequences, consequences, the denial of adequate opportunity to defend defend oneself amounts to denial of a fair hearing. 15. Counsel also relies upon the provisions Counsel provisions of the Bipartite Agreement dated dated 10.04.2002, which confers discretion discretion upon the Disciplinary Authority to permit permit legal representation where where justified by the facts and CWP-9290-2024 (O&M) (O&M) 6 complexity of the the matter. It is submitted that that such discretion should be exercised reasonably reasonably and not arbitrarily. The responden respondent has failed to assign any cogent reason reason for the rejection of the petitioner’s petitioner’s request. 16. In addition, addition, learned counsel refers to the deteriorating medical condition of the the petitioner and is stated to be under constant medical treatment for acute acute anxiety, depression, and stress stress-induced disorders, and has been advised advised complete rest and avoidance of mental strain by medical professionals at PGIMS Rohtak as well as Sir Sir Ganga Ram Hospital, New Delhi. Counsel submits submits that the Bank is fully aware aware of the petitioner’s health condition, and yet yet has failed to extend any accommodation accommodation or relief, thereby subjecting the petitioner petitioner to unjust psychological and procedural hardship. 17. To buttress his arguments, learned counsel counsel for the petitioner has placed reliance on on the judgment of the Division Division Bench of the Bombay High Court in Antonio Antonio B. Furtado v. Chairman & Managing Managing Director, Bank of India & Others Others, reported as 1986 LIC 613; the the judgment of the Calcutta High Court in Khitish Chandra Rebidas v. Union of India & Others, reported as 2005 2005 (2) LLJ 1015; and the judgment judgment of this Court in Anil Bamania v. Managing Managing Director, State Bank of of Patiala, reported as 2016 Lab. L.R. 539. 18. In view view of the foregoing, counsel for for the petitioner prays for the issuance of an appropriate appropriate writ of Certiorari quashing quashing the impugned orders dated 10.11.2023 10.11.2023 and 13.02.2024, and for a consequential consequential direction to the respondent-Bank Bank to permit the petitioner to engage engage a legal practitioner of his choice in the ongoing ongoing disciplinary proceedings. CWP-9290-2024 (O&M) (O&M) 7 Arguments of the the Respondents 19. Per Contra, learned counsel appearing appearing on behalf of the respondent Bank Bank submits that the petitioner’s prayer prayer is wholly untenable and contrary to settled settled principles of law. It is contended contended that in the context of domestic enquiries, enquiries, there exists no inherent, vested, or absolute right in favour of a delinquent delinquent employee to be represented represented by a legal practitioner. Such representation, representation, it is submitted, is governed governed strictly by the rules, regulations, or standing standing orders applicable to the establishment. 20. Referring ferring to the facts of the present present case, learned counsel points out that the disciplinary disciplinary proceedings initiated initiated against the petitioner are regulated by the the Memorandum of Settlement Settlement (MoS) dated 10.04.2002, which has statutory statutory force under the Industrial Dis Disputes Act, 1947 and binds the parties. Clause Clause 12 of the said MoS, which which governs the manner of representation in in disciplinary enquiries, does does not confer any automatic entitlement upon upon the delinquent employee to engage a legal practitioner. Instead, Clause 12(a)(ii) specifically provides that that the engagement of a legal practitioner ‘may may’ be permitted by the competent competent authority of the Bank ‘only’ where, in in its discretion, the circumstances circumstances of the case are found to be sufficiently complex complex or exceptional to justify such such indulgence. 21. It is is further argued that the charges charges levelled against the petitioner are not not of a legal or technical nature nature but are purely factual, pertaining to alleged alleged irregularities in discharge discharge of duties. The Enquiry Officer appointed appointed by the Bank is not a legally trained trained person, and no lawyer has been appointed appointed to represent the Bank in the the proceedings. Moreover, the CWP-9290-2024 (O&M) (O&M) 8 Bank had offered offered the petitioner the option of of being represented by any Award Staff member member or by two specifically named named Union representatives, but the petitioner petitioner chose not to avail of either alternative. alternative. In such a scenario, the rejection of of the petitioner’s request for engagement engagement of an Advocate is stated to be a reasoned, reasoned, lawful, and proportionate proportionate exercise of discretion by uthority. the competent authority. 22. In support of these submissions, submissions, reliance is placed on the authoritative pronouncement pronouncement of the Hon’ble Hon’ble Supreme Court in D.G., Railway Protection Protection Force & Ors. v. K. Raghuram Raghuram Babu, AIR 2008 SC 1958. In the said decision, decision, the Apex Court held held that the right to legal representation in in departmental enquiries is not not a component of natural justice unless expressly provided for by the the governing rules. While interpreting Rule Rule 153(8), the Court observed observed that the grant of such representation is is not absolute but conditional, conditional, and refusal to permit an Advocate does not in itself amount to denial of of a fair hearing. The Court further emphasized emphasized that discretion in this regard regard must be exercised with due regard to the nature nature and complexity of the charges, charges, and not merely on the demand of the delinquent delinquent officer. 23. Further reliance is placed on the Further the judgment of the Hon’ble Madras High Court Court in V. Mathivanan v. State Bank Bank of India, 2012 (1) CWC 910, which considered considered Clause 12 of the very same same MoS and reiterated, by applying the principles principles laid down in K. Raghuram Raghuram Babu (supra), that there is no vested right in in an employee facing disciplinary disciplinary action to insist upon legal representation. The Court held that even when when the rules permit such CWP-9290-2024 (O&M) (O&M) 9 representation, it it remains subject to regulatory control control and may be denied if the nature of the expertise. the charges does not require legal expertise. 24. The respondent Bank also places reliance The reliance upon the judgment of the Hon’ble Supreme Supreme Court in Rajasthan Marudhara Marudhara Gramin Bank v. Ramesh Chandra Chandra Meena, (2022) 3 SCC 44, where where the Court reaffirmed the principle that domestic domestic enquiries are a matter of of internal discipline governed by the employer’s employer’s service rules. Unless such rules rules specifically provide for representation through through an Advocate, no such claim claim can be entertained under Article 226 of the the Constitution. 25.
Decision
Lastly, it is argued that the writ petition Lastly, petition is devoid of merit and is liable to be dismissed. dismissed. The petitioner has failed to demonstrate any violation of statutory rules, rules, any breach of natural justice, justice, or any circumstances of exceptional hardship. hardship. The discretion exercised by by the Bank, as per Clause 12 of the MoS, is supported supported by established jurisprudence jurisprudence and does not call for judicial interference. interference. The respondent, therefore, therefore, prays that the writ petition be dismissed. Consideration 26. The core issues that fall for determination The determination before this Court are twofold and are intrinsically linked to the question question of procedural fairness in the disciplinary disciplinary proceedings instituted against against the petitioner and are as under:- (i) Whether, Whether, on the facts and circumstances circumstances of the present case, the petitioner is entitled, either as a petitioner matter of legal right or by reason of exceptional circumstances, reason circumstances, to be represented by a CWP-9290-2024 (O&M) (O&M) 10 legal practitioner in the departmental legal departmental inquiry conducted by the respondent pondent Bank? (ii) Whether Whether the denial of such legal representation, representation, when viewed in conjunction with the overall conduct conjunction conduct of the disciplinary proceedings, has occasioned a breach proceedings, breach of the principles of natural justice, thereby resulting in natural the petitioner being denied a fair and reasonable opportunity to defend fair defend himself? 27. Adverting to the first issue, the resolution Adverting resolution of the question as to whether the petitioner petitioner is entitled to legal representation representation in the departmental inquiry necessitates necessitates a careful examination of the governing service rules, certified standing standing orders, and, most significantly, significantly, Clause 12 of the applicable Memorandum of of Settlement (MoS) dated 10.04.2002, 10.04.2002, which regulates the conduct of disciplinary disciplinary proceedings within the the respondent Bank. For the aforesaid purpose, pose, Clause 12(a) of the Memorandum Memorandum of Settlement dated 10.04.2002 is reproduced reproduced herein below for ready ready reference: 12. The procedure procedure in such cases shall be as as follows :- (a) An employee employee against whom disciplinary disciplinary action is proposed or likely to be taken shall be given a charge-sheet clearly setting forth the circumstances appearing against against him and a date shall be fixed for for enquiry, sufficient time be given given to him to enable him to prepare and give his explanation as also prepare also to produce any evidence that he he may wish to tender in his defence. defence. He shall be permitted to appear before the Officer conducting appear conducting the enquiry, to cross- examine any witness on whose evidence examine evidence the charge rests and to CWP-9290-2024 (O&M) (O&M) 11 examine witnesses and produce other examine other evidence in his defence. He shatll also be permitted to be defended shatll defended - (i) (x) (x) by a representative of a registered registered trade union of bank employees of which he is a member employees on the date first notified for the commencement commencement of the enquiry. (y) where where the employee is not a member member of any trade union of bank employees on the aforesaid date, date, by a representative of a registered trade union of employees registered employees of the bank in which he is employed employed OR (ii) at at the request of the said union by by a representative of the state federation or all India Organisation federation Organisation to which such union is affiliated; affiliated; OR (iii) with lawyer. with the Bank's permission, by a lawyer. He shall shall also be given a hearing as as regards the nature of the proposed punishment in case any charge proposed charge is established against him. 28. A careful perusal of Clause 12 12 of the Memorandum of Settlement reveals reveals that the Clause provides that that the delinquent employee shall be permitted permitted to be defended either: (i) (i) by a representative of a registered trade union of bank employees of which he is a member; (ii) where not a member, member, by a representative of a registered registered trade union of the bank in which he he is employed; (iii) alternatively, alternatively, at the request of the said CWP-9290-2024 (O&M) (O&M) 12 union, by a representative representative of a state federation federation or all-India organisation to which the unio union is affiliated; or (iv) with the the Bank’s permission, by a lawyer. 29. In any any disciplinary proceedings that that are instituted, the principles of natural justice justice demand that a reasonable and and fair opportunity to defend oneself. Being quasi quasi judicial proceedings by nature, nature, justice must not only be done but must also also seem to be done. The reasonable reasonable opportunity would thus require being given given an opportunity to deny his guilt and establish his innocence; an opportunity opportunity to defend himself in in inquiry by not only being allowed opportunity opportunity to cross examine the witnesses witnesses but also to lead evidence in his defence and an opportunity to defend defend as to why the proposed punishment should should not be imposed. The above above principles were specifically noticed by a constitutional constitutional bench of Hon’ble Supreme Supreme Court in the matter of Major U.R. Bhatt Bhatt Vs. U.O.I. reported as AIR 1962 SC 1344. The relevant extract is as under under : 5. As pointed out by this court in Khem Chand v. Union of India As pointed out by this court in Khem Chand v. Union of India As pointed out by this court in Khem Chand v. Union of India [(1958) SCR 1080] in dealing with what is contemplated by [(1958) SCR 1080] in dealing with what is contemplated by [(1958) SCR 1080] in dealing with what is contemplated by e opportunity to show cause in Article 311(2) of the reasonable opportunity to show cause in Article 311(2) of the reasonabl “the reasonable opportunity envisaged by the provision Constitution “the reasonable opportunity envisaged by the provision Constitution under consideration includes : (a) an opportunity to deny his guilt and under consideration includes : (a) an opportunity to deny his guilt and under consideration includes : (a) an opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the establish his innocence, which he can only do if he is told wha establish his innocence, which he can only do if he is told wha charges levelled against him are and the allegations on which such charges levelled against him are and the allegations on which such charges levelled against him are and the allegations on which such charges are based; (b) an opportunity to defend himself by cross- charges are based; (b) an opportunity to defend himself by cross charges are based; (b) an opportunity to defend himself by cross examining the witnesses produced against him and by examining examining the witnesses produced against him and by examining examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence; and finally himself or any other witnesses in support of his defence himself or any other witnesses in support of his defence CWP-9290-2024 (O&M) (O&M) 13 (c) an opportunity to make his representation as to why the proposed (c) an opportunity to make his representation as to why the proposed (c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the punishment should not be inflicted on him punishment should not be inflicted on him competent authority, after the enquiry is over and after applying his competent authority, after the enquiry is over and after applying his competent authority, after the enquiry is over and after applying his of the charges proved against the mind to the gravity or otherwise of the charges proved against the mind to the gravity or otherwise government servant tentatively proposes to inflict one of the three government servant tentatively proposes to inflict one of the three government servant tentatively proposes to inflict one of the three punishments and communicates the same to the Government servant”. punishments and communicates the same to the Government servant”. punishments and communicates the same to the Government servant”. The content of the reasonable opportunity under Article 311 of the The content of the reasonable opportunity under Article 311 of the The content of the reasonable opportunity under Article 311 of the same as in Section 240(3) of the Government of Constitution is the same as in Section 240(3) of the Government of Constitution is the India Act. India Act. 30. Whether a person has been given Whether given a fair hearing or not is a (emphasis supplied) question of fact fact and this Court has the power power to see whether a fair opportunity has has been given or not as per the the judgment of the Hon’ble Supreme Court in the matter of Sardar Kapur Kapur Singh Vs. Union of India reported as AIR AIR 1960 SC 493. 31. It is is held by the Hon’ble Andhra Pradesh Pradesh High Court that right to have assistance assistance of a lawyer is a part of natural natural justice but the same has to be decided on a case to case basis. It was held in the matter of M.V. Jogarao v. State State of Madras, reported as AIR 1957 AP 197 that representation by by an Advocate can be claimed in in special circumstances. The relevant extract is as under : 13. Every member of the civil service holds his employment at the Every member of the civil service holds his employment at the Every member of the civil service holds his employment at the the undoubted power of the State to pleasure of the State. But the undoubted power of the State to pleasure of the State. But dismiss him is controlled by the provisions of Article 311 of the dismiss him is controlled by the provisions of Article 311 of the dismiss him is controlled by the provisions of Article 311 of the Constitution. Except in the cases governed by the proviso to sub- Constitution. Except in the cases governed by the proviso to sub Constitution. Except in the cases governed by the proviso to sub CWP-9290-2024 (O&M) (O&M) 14 clause (2) of Article 311, such a servant cannot be dismissed or clause (2) of Article 311, such a servant cannot be dismissed or clause (2) of Article 311, such a servant cannot be dismissed or subordinate to that by which he was removed by an authority subordinate to that by which he was removed by an authority appointed and that he could be removed only after he has been given appointed and that he could be removed only after he has been given appointed and that he could be removed only after he has been given a reasonable opportunity of showing cause against the action a reasonable opportunity of showing cause against the action a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The action proposed to be proposed to be taken in regard to him. The action proposed to be proposed to be taken in regard to him. The action proposed to be servant will be known only after an enquiry taken in regard to a civil servant will be known only after an enquiry taken in regard to a civil is held and after the authority concerned comes to a tentative is held and after the authority concerned comes to a tentative is held and after the authority concerned comes to a tentative conclusion on the merits, for, the punishment would necessarily conclusion on the merits, for, the punishment would necessarily conclusion on the merits, for, the punishment would necessarily depend upon the gravity of the offence committed by the civil depend upon the gravity of the offence committed by the civil depend upon the gravity of the offence committed by the civil atever machinery is provided by the State for servant. Therefore, whatever machinery is provided by the State for servant. Therefore, wh the enquiry, whether it be through one of its executive officers or the enquiry, whether it be through one of its executive officers or the enquiry, whether it be through one of its executive officers or through a Tribunal for Disciplinary Proceedings, the entire enquiry through a Tribunal for Disciplinary Proceedings, the entire enquiry through a Tribunal for Disciplinary Proceedings, the entire enquiry from the beginning till the punishment is imposed on the officer is from the beginning till the punishment is imposed on the officer is from the beginning till the punishment is imposed on the officer is ocess. It is an inquiry held by the authority empowered to one process. It is an inquiry held by the authority empowered to ocess. It is an inquiry held by the authority empowered to remove the servant. Though the enquiry may have to be held in two remove the servant. Though the enquiry may have to be held in two remove the servant. Though the enquiry may have to be held in two stages, one up to the time the authority comes to a conclusion on the stages, one up to the time the authority comes to a conclusion on the stages, one up to the time the authority comes to a conclusion on the question of the offence committed by the civil servant and the other question of the offence committed by the civil servant and th question of the offence committed by the civil servant and th from the stage notice is given to show cause against the action from the stage notice is given to show cause against the action from the stage notice is given to show cause against the action proposed to be taken in regard to him, the entire process of the proposed to be taken in regard to him, proposed to be taken in regard to him, enquiry will have to be scrutinised by ascertaining whether enquiry will have to be scrutinised by ascertaining whether enquiry will have to be scrutinised by ascertaining whether reasonable opportunity is given to the servant to show cause against reasonable opportunity is given to the servant to show caus reasonable opportunity is given to the servant to show caus the action proposed to be taken in regard to him. The opportunity to the action proposed to be taken in regard to him. The opportunity to the action proposed to be taken in regard to him. The opportunity to show cause is qualified by the word “reasonable”. It is for the Court show cause is qualified by the word “reasonable”. It is for the Court show cause is qualified by the word “reasonable”. It is for the Court on the facts of each case to scrutinise the entire record to come to a on the facts of each case to scrutinise the entire record to come to a on the facts of each case to scrutinise the entire record to come to a opportunity was given to the conclusion whether such a reasonable opportunity was given to the conclusion whether such a reasonable If, as a matter of fact, every opportunity was given to civil servant. If, as a matter of fact, every opportunity was given to civil servant. the civil servant to defend himself by examining witnesses and by the civil servant to defend himself by examining witnesses and by the civil servant to defend himself by examining witnesses and by examining cross-examining examining the prosecution witnesses, the prosecution witnesses, the prosecution witnesses, it would be it would be it would be ty to repeat the entire inquiry unreasonable to compel the authority to repeat the entire inquiry unreasonable to compel the authori after the second stage is reached. It is true that reasonable after the second stage is reached. after the second stage is reached. opportunity to show cause against the action proposed to be taken opportunity to show cause against the action proposed to be taken opportunity to show cause against the action proposed to be taken CWP-9290-2024 (O&M) (O&M) 15 includes an opportunity to canvass the correctness of the reasons for includes an opportunity to canvass the correctness of the reasons for includes an opportunity to canvass the correctness of the reasons for . The authority should necessarily in its taking the proposed action. The authority should necessarily in its taking the proposed action order requiring the civil servant to show cause should give not only order requiring the civil servant to show cause should give not only order requiring the civil servant to show cause should give not only the punishment proposed to be inflicted on him but also the reasons the punishment proposed to be inflicted on him but also the reasons the punishment proposed to be inflicted on him but also the reasons for coming to that conclusion. A civil servant can show cause by for coming to that conclusion. A civil servant can show cause by for coming to that conclusion. A civil servant can show cause by t the Tribunal's report is vitiated by gross irregularities pleading that the Tribunal's report is vitiated by gross irregularities pleading tha committed by it or by violating the principles of natural justice such committed by it or by violating the principles of natural justice such committed by it or by violating the principles of natural justice such as preventing him from examining his witnesses or cross-examining as preventing him from examining his witnesses or cross as preventing him from examining his witnesses or cross the witnesses who spoke against him or similar others. If the finding the witnesses who spoke against him or similar others. If t the witnesses who spoke against him or similar others. If t of the Tribunal is the basis for the proposed punishment, he can also of the Tribunal is the basis for the proposed punishment, he can also of the Tribunal is the basis for the proposed punishment, he can also attack the correctness of the finding by showing that the finding was attack the correctness of the finding by showing that the finding was attack the correctness of the finding by showing that the finding was not based on the evidence or is not supported by evidence. But it not based on the evidence or is not supported by evidence. not based on the evidence or is not supported by evidence. would be unreasonable to compel the authority to have two trials as would be unreasonable to compel the aut would be unreasonable to compel the aut it were, one up to the stage of the notice contemplated by Article 311 it were, one up to the stage of the notice contemplated by Article 311 it were, one up to the stage of the notice contemplated by Article 311 and the repetition of it again after notice, though in a particular and the repetition of it again after notice, though in a particular and the repetition of it again after notice, though in a particular case, if the inquiry is vitiated by any of the reasons mentioned above, case, if the inquiry is vitiated by any of the reasons mentioned above, case, if the inquiry is vitiated by any of the reasons mentioned above, a further inquiry may reasonably be asked by the civil servant. a further inquir y may reasonably be asked by the civil servant. To put it shortly, the entire proceedings of the inquiry must be looked put it shortly, the entire proceedings of the inquiry must be looked put it shortly, the entire proceedings of the inquiry must be looked into carefully to ascertain whether reasonable opportunity within the into carefully to ascertain whether reasonable opportunity within the into carefully to ascertain whether reasonable opportunity within the meaning of Article 311 is afforded to a civil servant or not. meaning of Article 311 is afforded to a civil servant or not. meaning of Article 311 is afforded to a civil servant or not. (emphasis supplied) 32. It was was held that even though principles principles of natural justice may not warrant representation representation by a professional lawyer lawyer but if there is a service rule giving a right right of representation, the right of of the servant will be governed by it, as per the judgment of this Court in the matter matter of S. Harjit Singh Vs. I.G. Police, Punjab Punjab reported as AIR 1963 P&H P&H 90. 33. The judicial pronouncements relied The relied upon by the respondents also show that the the same have been passed in the the circumstances where the CWP-9290-2024 (O&M) (O&M) 16 rules did not stipulate ipulate any assistance of a legal practitioner. practitioner. Undisputedly, in the case in hand, hand, the memorandum of understanding understanding executed between the parties and as admitted admitted to be binding by both both the parties, a provision for engagement has has been made but with the permission sion of the Bank. Hence, the applicable rules do provide for being represented represented by a lawyer. 34. While justifying its decision to deny While deny permission, counsel for the respondents has has argued that the same can be be invoked only when the employee does not not have a representative in the first two categories. Hence, the argument that that it is a preferential manner that that a representation can be claimed and only only when first two eventualities fail, that representation by a lawyer can be asked asked for is tested against the provision. provision. A plain reading of the same shows shows that provides it nowhere provides for any sequential engagement/representation. Rather, the use of the engagement/representation. the expression ‘or’ after each clause brings all all three at par and vests a discretion discretion with the employee to elect an option. option. If the intent behind the settlement settlement would have been such, Clause 12(a) (iii) (iii) would have been made subject subject to such an eventuality. Instead, the only only restriction imposed is ‘permission ‘permission of the Bank’. Under such circumstances, the the discretion conferred is not to to be exercised as an absolute prerogative to veto veto each request but to examine examine the circumstances pleaded by an employee employee claiming representation by the lawyer. It is only upon such consideration that that the power should be exercised. exercised. Once the rules stipulate a clause for representation representation by a lawyer, the precedents precedents in matters where no such provision existed existed cannot be cited as a binding binding precedent. CWP-9290-2024 (O&M) (O&M) 17 35. The object behind incorporation The of such a clause providing representation by by a lawyer was to come to the aid aid of an employee and is not to be read as a dead letter. The employee should should not display an absolute unbridled right to to determine who would represent represent an employee, as in some situation, the same same may be itself amount to denial denial of principles of natural justice. 36. In the the said background, the order order passed by the disciplinary authority declining declining legal representation needs to be examined. The same reads thus:- Please refer to your letter no.1432 dated 02.11.2023 received “Please refer to your letter no.1432 dated 02.11.2023 received Please refer to your letter no.1432 dated 02.11.2023 received on 09.11.2023, forwarding the request of captioned CSE for on 09.11.2023, forwarding the request of captioned CSE on 09.11.2023, forwarding the request of captioned CSE engaging Advocate as his Defense Representative to defend his engaging Advocate as his Defense Representative to defend his engaging Advocate as his Defense Representative to defend his case during Departmental Enquiry process. Our reply on the case during Departmental Enquiry process. Our reply on the case during Departmental Enquiry process. Our reply on the request of the CSE as under: request of the CSE as under: The copy of the request letter approaching the registered The copy of the request letter approaching the registered Trade Union and the denial thereof is required to be submitted Trade Union and the denial thereof is requi Trade Union and the denial thereof is requi to the Bank to take a view for considering allowing a Lawyer if to the Bank to take a view for considering allowing a Lawyer if to the Bank to take a view for considering allowing a Lawyer if permissible otherwise. permissible otherwise. 2. The Departmental Enquiry is not a legal procedure as The Departmental Enquiry is not a legal procedure as given in the Memorandum of Bipartite Settlement 10.04.2002. given in the Memorandum of Bipartite Settlement 10.04.2002. given in the Memorandum of Bipartite Settlement 10.04.2002. 3. The point is based on assumption and does not carry any The point is based on assump factual position as final decision is to be taken by the factual position as final decision is to be taken by the factual position as final decision is to be taken by the Disciplinary Authority by applying his mind independently. Disciplinary Authority by applying his mind independently. Disciplinary Authority by applying his mind independently. CWP-9290-2024 (O&M) (O&M) 18 4. The matter was examined as such, please be guided by The matter was examined as such, please be guided by Circular no.: CDO/P&HRD-IR/66/2016 Circular no.: CDO/P&HRD IR/66/2016-17 dated 09.09.2016, relevant excerpts are reproduced hereunder: relevant excerpts are reproduced hereunder: relevant excerpts are reproduced hereunder: CSE shall be defended by: CSE shall be defended by: by a representative of a registered trade union of a) by a representative of a registered trade union of bank employees of which he is a member on the bank employees of which he is a member on the date first notified for the commencement of the date first notified for the commencement of the enquiry. Bank employees on the aforesaid date, by enquiry. Bank employees on the afor a representative of a registered trade union of a representative of a registered trade union of employees of the bank in which he is employed. employees of the bank in which he is employed. At the request of the said union by a representative b) At the request of the said union by a representative of the state federation or all India Organization to of the state federation or all India Organization to which such union is affiliated. which such union is affiliated. 5. CSE advised that he is under treatment and is not CSE advised that he is under treatment and is not mentally fit to understand the charges framed against him in mentally fit to understand the charges framed against him in mentally fit to understand the charges framed against him in Charge Sheet. Therefore, CSE be advised Charge Sheet. Therefore, CSE be advised Charge Sheet. Therefore, CSE be advised to to to join join join the the the Departmental Enquiry after taking the fitness certificate from Departmental Enquiry after taking the fitness certificate from Departmental Enquiry after taking the fitness certificate from the concerned Doctor.” the concerned Doctor. 37. During appeal, the Appellate Authority During Authority rejected the appeal by reasons as under: under:- I have considered the submissions made in your appeal and “I have considered the submissions made in your appeal and I have considered the submissions made in your appeal and have also perused the relevant Clauses/Provisions of Bipartite have also perused the relevant Clauses/Provisions of Bipartite have also perused the relevant Clauses/Provisions of Bipartite Settlement dated 10.04.2002. Settlement dated 10.04.2002. CWP-9290-2024 (O&M) (O&M) 19 case is governed by Bipartile Departmental action in your case is governed by Bipartile Departmental action in your settlement/ agreement dated 10:04 2002 the relevant procedure settlement/ agreement dated 10:04 2002 the relevant procedure settlement/ agreement dated 10:04 2002 the relevant procedure has been provided in clause 12 of the Bipartite Settlement has been provided in clause 12 of the Bipartite Settlement has been provided in clause 12 of the Bipartite Settlement which reads as under:-. which reads as under: 12. The procedure in such cases shall be as follows:- 12. The procedure in such cases shall be as follows: 12. The procedure in such cases shall be as follows: om disciplinary action is proposed (a) An employee against whom disciplinary action is proposed (a) An employee against wh or is likely to be taken shall be given a charge-sheet (Detailed or is likely to be taken shall be given a charge or is likely to be taken shall be given a charge instructions regarding charge sheet are contained in Annexure- instructions regarding charge sheet are contained in Annexure instructions regarding charge sheet are contained in Annexure D) clearly setting forth the circumstances appearing against D) clearly setting forth the circumstances appearing against D) clearly setting forth the circumstances appearing against enquiry, sufficient time being him and a date shall be fixed for enquiry, sufficient time being him and a date shall be fixed for given to him to enable him to prepare and give his explanation given to him to enable him to prepare and give his explanation given to him to enable him to prepare and give his explanation as also to produce any evidence that he may wish to tender in as also to produce any evidence that he may wish to tender in as also to produce any evidence that he may wish to tender in his defense. He shall be permitted to appear before the Officer his defense. He shall be permitted to appear before the Officer his defense. He shall be permitted to appear before the Officer conducting the enquiry, to cross-ex conducting the enquiry, to cross examine any witness on whose evidence the charge rests and to examine witnesses and evidence the charge rests and to examine witnesses and evidence the charge rests and to examine witnesses and produce other evidence in his defense. He shall also be produce other evidence in his defense. He shall also be produce other evidence in his defense. He shall also be permitted to be defended- permitted to be defended (i) by a representative of a registered trade union of bank by a representative of a registered trade union of bank employees of which he is a member on the date first employees of which he is a mem notified for the commencement of the enquiry. notified for the commencement of the enquiry. bank employees on bank employees on the aforesaid date, by a the aforesaid date, by a representative of a registered trade union of employees representative of a registered trade union of employees of the bank in which he is employed; of the bank in which he is employed; CWP-9290-2024 (O&M) (O&M) OR 20 (ii) at the request of the said union by a rep (ii) at the request of the said union by a representative of the state federation or all India Organization to which such state federation or all India Organization to which such union is affiliated; OR with the Bank's permission, by a lawyer. (iii) with the Bank's permission, by a lawyer. (iii) Although the above clause provide that a charge-sheeted Although the above clause provide that a charge Although the above clause provide that a charge employee may be permitted to be defended with the Bank's employee may be permitted to be defended with the Ba employee may be permitted to be defended with the Ba permission', by a lawyer, however, I am of the view that there is permission', by a lawyer, however, I am of the view that there is permission', by a lawyer, however, I am of the view that there is no absolute or vested right to any charge-sheeted employee for no absolute or vested right to any charge no absolute or vested right to any charge representation through a lawyer. representation through a lawyer. You have requested to permit representation through a lawyer You have requested to permit representation through a lawyer You have requested to permit representation through a lawyer on the ground that on the ground that ne of the employer/ leader has consented to (i) None of the employer/ leader has consented to represent your case (ii) The allegation made in Charge The allegation made in Charge-Sheet are of complex nature Considering the allegation, you may lose your job (iii) Considering the allegation, you may lose your job Bank has no predicament to allow the application (iv) Bank has no predicament to allow the application ation through lawyer for representation through lawyer (v) It is physically impossible for you to conduct and It is physically impossible for you to conduct and defend yourself. I have considered your request and from the perusal of request I have considered your request and from the perusal of request I have considered your request and from the perusal of request as well as appeal filed by you, I observe that it is not a case as well as appeal filed by you, I observe that it is not a case as well as appeal filed by you, I observe that it is not a case CWP-9290-2024 (O&M) (O&M) 21 where you are seeking permission to be defended by a lawyer where you are seeking permission t where you are seeking permission t because the Disciplinary Authority. Inquiring Authority or the because the Disciplinary Authority. Inquiring Authority or the because the Disciplinary Authority. Inquiring Authority or the Presenting Authority are from legal background. It is also not a Presenting Authority are from legal background. It is also not a Presenting Authority are from legal background. It is also not a case where you are being pitted against a legally trained mind, case where you are being pitted against a legally trained mind, case where you are being pitted against a legally trained mind, which also may justify granting permission to be represented which also may justify granting permis which also may justify granting permis through a lawyer. through a lawyer. Therefore, I am of the view that it would not be justifiable to Therefore, I am of the view that it would not be justifiable to Therefore, I am of the view that it would not be justifiable to permit you to avail services of a lawyer as you are a member of permit you to avail services of a lawyer as you are a member of permit you to avail services of a lawyer as you are a member of a Trade union, you may avail services of representative of a Trade union, you may avail services of representative of a Trade union, you may avail services of representative of Trade union as provided in Clause 12(1) & 12(ii). Trade union as provided in Clause 12(1) & 12(ii).” 38. The petitioner, while submitting his The his request for engagement of a lawyer cited following following reasons:- That the applicant seeks the permission to engage the “That the applicant seeks the permission to engage the counsel as: counsel as: , the applicant has already approached the named Firstly, the applicant has already approached the named Firstly and other office bearers of the Union/Association and persons and other office bearers of the Union/Association and persons none of the employee/leaders has consented to represent the none of the employee/leaders has consented to represent the none of the employee/leaders has consented to represent the case of applicant. Thus the opportunity provided vide letter dt. case of applicant. Thus the opportunity provided vide letter dt. case of applicant. Thus the opportunity provided vide letter dt. 23.07.2018 of Regional Manager and provision of Bipartite 23.07.2018 of Regional Manager and provision of Bipartite 23.07.2018 of Regional Manager and provision of Bipartite 4.2002 has been rendered redundant as none Settlement dt. 10.04.2002 has been rendered redundant as none Settlement dt. 10.0 of the member of registered union/Association and named of the member of registered union/Association and named of the member of registered union/Association and named persons by regional Manager has given the consent to persons by regional Manager has given the consent to persons by regional Manager has given the consent to represent. represent. CWP-9290-2024 (O&M) (O&M) 22 , the allegation made in the chargesheet are of Secondly, the allegation made in the chargesheet are of Secondly complex nature as allegations of complex nature as allegations of complex nature as allegations of fraud, fra fra forgery and misappropriation are levelled against the applicant and misappropriation are levelled against the applicant and misappropriation are levelled against the applicant and multiple documents are needed to be proved by/against the multiple documents are needed to be proved by/against the multiple documents are needed to be proved by/against the applicant which will need appropriate legal knowledge and applicant which will need appropriate legal knowledge and applicant which will need appropriate legal knowledge and experience. experience. Thirdly, considering the nature of allegation and provi Thirdly , considering the nature of allegation and provisions of penalty, the applicant might loose his job/livelihood and penalty, the applicant might loose his job/livelihood and penalty, the applicant might loose his job/livelihood and reputation including the right to live with dignity, which is reputation including the right to live with dignity, which is reputation including the right to live with dignity, which is substantial/fundamental right of all the citizen as per the substantial/fundamental right of all the citizen as per the substantial/fundamental right of all the citizen as per the Constitution of India. Constitution of India. Fourthly, the Bank has no predicament to all Fourthly, the Bank has no predicament to allow the application for representation through counsel as the same is provided as for representation through counsel as the same is provided as for representation through counsel as the same is provided as per the Bipartite Agreement dt. 10.04.2002. An authority to per the Bipartite Agreement dt. 10.04.2002. An authority to per the Bipartite Agreement dt. 10.04.2002. An authority to grant permission cannot be exercised in an arbitrary manner. grant permission cannot be exercised in an arbitrary manner. grant permission cannot be exercised in an arbitrary manner. Fifthly, it is physically impossible for the applican Fifthly , it is physically impossible for the applicant to conduct and defend himself in the department proceedings as since last and defend himself in the department proceedings as since last and defend himself in the department proceedings as since last one year the applicant is having anxiety attacks and acute one year the applicant is having anxiety attacks and acute one year the applicant is having anxiety attacks and acute depression and the pressure of defending the departmental depression and the pressure of defending the departmental depression and the pressure of defending the departmental proceedings against himself can prove to be fatal for his metal proceedings against himself can prove to be fatal for his metal proceedings against himself can prove to be fatal for his metal heath. The applicant is under regular treatment from PGI heath. The applicant is under regular treatment from PGI heath. The applicant is under regular treatment from PGI Rohtak and Sri Ganga Ram Hosptial New Delhi for the same. Rohtak and Sri Ganga Ram Hosptial New Delhi for the same. Rohtak and Sri Ganga Ram Hosptial New Delhi for the same. and he has been time and again advised rest and no stress by and he has been time and again advised rest and no stress by and he has been time and again advised rest and no stress by the doctor. The fact is already verified by the Bank. The copy of the doctor. The fact is already verified by the Bank. The copy of the doctor. The fact is already verified by the Bank. The copy of CWP-9290-2024 (O&M) (O&M) 23 d is attached alongwith the present application. Medical record is attached alongwith the present application. Medical recor Hence, as per the current medical condition, the applicant is Hence, as per the current medical condition, the applicant is Hence, as per the current medical condition, the applicant is not at all capable to defend his case during the departmental not at all capable to defend his case during the departmental not at all capable to defend his case during the departmental proceedings.” proceedings. 39. Evidently, the respondent-authorities Evidently, authorities did not delve into the reasons cited by by him or record any finding as to to the same and why they are not valid. Clearly Clearly the orders do not reflect application of mind to the application and instead reflect an established mindset mindset of rejection, under a fear that presence presence of a lawyer may delay the proceedings. proceedings. Such apprehension based rejection cannot cannot be upheld as a valid reason reason under all circumstances. 40. Given the reasons cited by the petitioner, Given petitioner, the facts in hand are closer to the ratio ratio in the matter of Anil Bamania Bamania (supra). Even though it was held by the Division Division Bench that it be not treated treated as a precedent, however, the reasons and circumstances circumstances mentioned therein can still be looked into for guidance. 41. Since the impugned orders have Since not examined, discussed or ruled on the circumstances circumstances cited by the petitioner petitioner while claiming for an Advocate, this Court Court refrains from commenting commenting on the same, since the same are factual aspects aspects to be verified and ascertained ascertained at the first instance. Any comment by Court, Court, on merits of the claim, may may have an effect on final outcome. 42. The present writ petition is accordingly The accordingly allowed. The impugned order dated 10.11.2023 10.11.2023 (Annexure P-9) passed passed by the Disciplinary CWP-9290-2024 (O&M) (O&M) 24 Authority and the the order dated 13.02.2024 (Annexure (Annexure P-10) passed by the Appellate Authority Authority are set aside. The matt matter is remanded to the Disciplinary Authority Authority to pass a fresh order as per law and after examining merits. the claim on its merits. 43. All pending civil misc. application(s), application(s), if any, stand disposed of. 12.08.2025 Mangal Singh (VINOD S. BHARDWAJ) (VINOD S. BHARDWAJ) JUDGE Whether speaking/reasoned : Whether speaking/reasoned : Whether reportable Whether reportable Yes/No Yes/No