Indian
Overseas Bank Vs. Indian Overseas Bank Officers Association & Anr [2001] Insc
524 (4 October 2001)
S. Rajendra
Babu & Doraiswamy Raju, J.
Appeal (civil) 2598 of 1998 Appeal (civil) 2599 of 1998
The
above appeals have been filed against the common judgment of a Division Bench
of the Karnataka High Court dated 4.12.97 in Writ Petition Nos. 7771 of 1986,
321 of 1987 and 19366 of 1985 and they are by M/s Indian Overseas Bank, Canara
Bank and Vijaya Bank respectively.
The
respective Banks had their own regulations for regulating the conduct,
discipline and appeals pertaining to their officers and employees. Those
Regulations contained a provision enabling an officer/employee to take the
assistance of any other officer-employee to defend him in any disciplinary
proceedings. This was sought to be amended by a circular order providing for
the addition of a note to the relevant regulation in the following terms:
Note:
The officer employee shall not take the assistance of any other employee who
has two pending disciplinary cases on hand in which he has to give assistance.
This
move was said to have been triggered by the communication of the Government of
India dated 5.12.84, issued from the Ministry of Finance, Department of
Economic Affairs (Banking Division), on the basis of the suggestion emanating
from the Central Vigilance Commission and in consultation with the Reserve bank
of India.
The
challenge to the said amendment based on the alleged violation of Article 14 of
the Constitution of India, at the instance of the association of the officers
of the respective Banks, came to be upheld under the judgment which are the
subject-matter of these appeals. In purporting to follow an earlier Division
Bench judgment of the Karnataka High Court dated 31.8.95 in W.A. Nos.2074 and
2075 of 1991 relating to a similar provision pertaining to the Karnataka
Handloom Development Corporation, the High Court held that when there is no
similar restriction vis-à-vis the managements to employ a presenting officer
having more than two pending disciplinary cases on hand the stipulation so made
in respect of defence officers for employees alone is discriminatory and does
not really and may not also serve the purpose of avoiding delay in finalisation
of the disciplinary proceedings. The further reason, which weighed with the
High Court, was that there may be only a few qualified officers in the
organization to defend the officers charged with allegations of misconduct and
with such a stipulation many such employees may not be available in every
organization to be chosen by the concerned employees facing charges, to
represent them and consequently it results in deprivation, to the
officer-employee, of an effective opportunity to get proper assistance from his
colleagues for his defence.
The
respondents, despite being served with notice of appeals, have not chosen to
enter appearance to contest the appeals and remained ex-parte. The learned
senior counsel for the appellants, Shri P.P. Rao, strenuously contended that
the impugned amendment to the Regulations is not only just and reasonable but
had a laudable purpose and commendable public interest to be served and can
also by no means be stated to be discriminatory or perpetuating any invidious
discrimination, as assumed, warranting it to be struck down and consequently
the judgment under appeals is liable to be set aside. The further submission by
the learned counsel is that whatever may be the need or justification to deal
with an individual case arising out of an extraordinary circumstance appropriately
in the background of any grievance substantiated that the officer-employee
concerned in a case has been denied of an effective opportunity to defend
himself, the challenge to the amendment made ought not to have been
countenanced at all and that too for such reasons as are assigned in the
judgment. Our attention has been drawn to the communication of the Government
of India, which elaborated the actual facts noticed in practice and the
compelling reasons to issue the directions and the orders of the bank carrying
out the suggestions of the Central Government by introducing the amendment as
well as the relevant portions of the judgment under appeal.
We
have carefully considered the submissions made as above.
The
issue ought to have been considered on the basis of the nature and character or
the extent of rights, if any, of an officer-employee to have, in a
domestic-disciplinary enquiry, the assistance of someone else to represent him
for his defence in contesting the charges of misconduct. This aspect has been
the subject matter of consideration by this Court on several occasions and it
has been categorically held that the law in this country does not concede an
absolute right of representation to an employee in domestic enquiries as part
of his right to be heard and that there is no right to representation by
somebody else unless the rules or regulation and standing orders, if any,
regulating the conduct of disciplinary proceedings specifically recognize such
a right and provide for such representation. [N. Kalindi & Others vs M/s Tata
Locomotive & Engineering Co. Ltd., Jamshedpur (AIR 1960 SC 914); Dunlop
Rubber Co. (India) Ltd. vs Their Workmen (AIR 1965 SC 1392); Crescent Dyes and
Chemicals Ltd. vs Ram Naresh Tripathi (1993(2) SCC 115) and Bharat Petroleum
Corporation Ltd. vs Maharashtra General Kamgar Union & Others
(1999(1) SCC 626]. Irrespective of the desirability or otherwise of giving the
employees facing charges of misconduct in a disciplinary proceeding to ensure
that his defence does not get debilitated due to inexperience or personal
embarrassments, it cannot be claimed as a matter of right and that too as
constituting an element of principle of natural justice to assert that a denial
thereof would vitiate the enquiry itself.
In our
view, the serious fallacy underlying the reasoning adopted by the learned
Judges in the High Court seems to be the assumption that an omission to
correspondingly fix such a ceiling in respect of the engagement of the
presenting officers confer any right as such in the management to flout the
said norm or standard when it comes to them and have its own way in nominating
the presenting officers who even held more than two pending disciplinary cases
in their hands. It is on such an assumption only that the laudable object of
averting inordinate delay in completion and ensuring an expeditious finalisation
of the disciplinary proceedings, which really motivated the cause for amendment
under challenge, came to be viewed with a suspicion and not capable of being
really achieved.
The
grievance entertained with reference to the invidious nature of an alleged and
assumed discrimination also proceeded on such a surmise based on the fact that
the ceiling imposed was only in respect of the appointment of a defence officer
leaving otherwise a free hand to the management in the appointment of a
presenting officer. In the process of such assumption the High Court seems to
have overlooked the realties of the fact situation specifically noticed by the
Government of India of one defence officer holding brief in 50 pending matters,
which necessarily called for such specific ceiling vis- à-vis the defence
officer for the reason that the selection and choice of which is inevitably
with the officer-employee concerned and that in the absence of such a
stipulation, the management would suffer a serious handicap in observing such a
rule or principle to so regulate to the surprise of the officers employees both
facing enquiries and those to be drafted for defence. So far as the management
is concerned, it can always observe the same while considering the need for
choosing a presenting officer in an individual case even in the absence of a
stipulation therefor. The mere possibility or otherwise of any action which may
result in differential standard or norm being adopted in a given case, cannot
be assumed to provide sufficient ground or reason to undermine the right of the
management to make a regulation or standing order of the nature in question or
militate against the reasonableness or justness of the said provision, whatever
may be the scope available for ventilating otherwise a grievance in an
individual case of any adoption of differential standards or norms to the
detriment of the officer- employee concerned. Further, we are also of the view
that a stipulation of the nature under consideration, apart from paving way for
expeditious culmination of the disciplinary proceedings by avoiding unnecessary
delays on the part of a defence officer holding too many engagements on his
hand finding difficult to coordinate his appearance in various proceedings,
would equally go a long way to ensure that no monopoly is created in a chosen
few for such purposes and that the services of the proposed defence officers
are equally available in proper measure to the Institutions which employ them
in greater public interest. The Banks in question, being Nationalised Banks
with a wide network of units at national level there could be no concrete basis
for an assumption that many employees, who are well-versed in the
administrative procedures and conversant with the functioning of the Board and
the rules, bye-laws and regulations would not be available to be chosen for
defending the officers employees facing enquiries and consequently there is no
reason or justification whatsoever to erase the amendment from the Rule book on
a mere apprehension that, otherwise, it is likely prejudice and adversely
affect the officers facing charges in effectively defending themselves.
In our
view, the circumstances, which necessitated the amendment on the suggestion
emanating from the Government of India in consultation with the Reserve Bank of
India, appear to be not only genuine and
reasonable but the amendment made is also just, proper and necessary in public
interest. Consequently, we are unable to agree with the view taken by the High
Court that the amendment suffers the vice of Article 14 of the Constitution of
India.
The
judgment of the High Court is hereby set aside. The appeals shall stand allowed
and the Writ Petitions filed in the High Court shall stand dismissed. No costs.
J.
(S. Rajendra
Babu) J.
(Doraiswamy
Raju) October 04, 2001.
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