# Chairman, Aligarh Gramin Bank v. Sri Lattoori Singh

- **Citation:** (2003) 1 ILRA 201
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-12-03
- **Case number:** Special Appeal No. 49 of 2003
- **Bench:** S.P. Srivastava, A.C.J. Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chairman-aligarh-gramin-bank-v-sri-lattoori-singh-40050
- **Pages:** 14

## Headnote

Sri I.M. Tripathi

Aligarh
Gramin
Bank
(Officers
and
Employees) Service Regulations 2000-
Regulation 43- Prior permission to take
service of legal practitioner - No prayer
made by the delinquented employee-
except to appoint his next friend Mr. R.P.
Singh, the officer of Central Bank of
India- whether an officer outside from
the Bank can be appointed as next friend
of the delinquent employee. Held- 'No'
unless rules so provides- question for
appointment of legal practitioner left
open for the delinquent employee.

Held- Para 33

Defence
representative
from
Central
Bank of India and direction to that effect
by the learned single Judge cannot be
sustained and is hereby set aside.
However,
it
is
observed
that
the
respondent (writ petitioner) is entitled
to have a defence representative from
Aligarh Gramin Bank as permitted by the
Enquiry Officer or he may pray for
assistance
by
legal
practitioner
in
accordance
with
Regulation
4
as
observed above.
Case law discussed:
2001 (9) SCC 540
2003 (1) AWC-70
AIR 1972 SC 2178
AIR 1983 SC 454

## Text

_Characters 0–39,969 of 45,915. This is a partial read: ask again with offset=39969 for what follows._

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1All] Chairman, Aligarh Gramin Bank V. Sri Lattoori Singh 201
19. The statement of objects and
reasons of the Amending Act of 2001
clearly indicate that since there were no
specific provisions in the Act for levy and
payment of tax on entertainment by hotel
owners who provided cable service
through their own T.V. set hence this
Amendment had to be introduced before
any such tax could be levied.

20. A perusal of the above
amendment
shows
that
now
the
legislature has clearly provided that even
hotels which provide their own cable
television
network
have
to
pay
entertainment tax. Thus it is clear that the
petitioner was not liable to pay such tax
prior to 5.3.2001, and hence levy and
realization of the tax prior to this date was
violative
of
Article
265
of
the
Constitution.

21. In the result these writ petitions
are allowed. The impugned orders are
quashed. The respondents are directed to
refund the amounts they have illegally
collected as entertainment tax from the
petitioners for the period prior to 5.3.2001
within two months of production of copy
of this order before the respondent no. 3.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD MARCH 10, 2003.

BEFORE
THE HON'BLE S.P. SRIVASTAVA, A.C.J.
THE HON'BLE ASHOK BHUSHAN, J.

Special Appeal No. 49 of 2003

Chairman, Aligarh Gramin Bank

...Appellant
Versus
Sri Lattoori Singh
...Opposite Party

Counsel for the Appellant:
Sri S.N. Verma
Sri Yashwant Verma

Counsel for the Opposite Party:
Sri I.M. Tripathi

Aligarh
Gramin
Bank
(Officers
and
Employees) Service Regulations 2000-
Regulation 43- Prior permission to take
service of legal practitioner - No prayer
made by the delinquented employee-
except to appoint his next friend Mr. R.P.
Singh, the officer of Central Bank of
India- whether an officer outside from
the Bank can be appointed as next friend
of the delinquent employee. Held- 'No'
unless rules so provides- question for
appointment of legal practitioner left
open for the delinquent employee.

Held- Para 33

Defence
representative
from
Central
Bank of India and direction to that effect
by the learned single Judge cannot be
sustained and is hereby set aside.
However,
it
is
observed
that
the
respondent (writ petitioner) is entitled
to have a defence representative from
Aligarh Gramin Bank as permitted by the
Enquiry Officer or he may pray for
assistance
by
legal
practitioner
in
accordance
with
Regulation
4
as
observed above.
Case law discussed:
2001 (9) SCC 540
2003 (1) AWC-70
AIR 1972 SC 2178
AIR 1983 SC 454

(Delivered by Hon'ble Ashok Bhushan, J.)

1. We have heard Sri S.N. Verma,
Senior Advocate assisted by Sri Yaswant
Verma for the appellant and Sri I.M.
Tripathi, Advocate for the respondent.

2. This Special Appeal has been
filed
by
the
appellant
against
the
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202 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
judgement of the learned single Judge
dated 3.12.2002 passed in writ petition
no. 48308 of 2002 Sri Latoori Singh Vs.
Chairman, Aligarh Gramin Bank allowing
the writ petition in part.

Facts giving rise to this special
Appeal briefly stated are-

3. The respondent Latoori Singh is
working as Officer Scale II in Aligarh
Gramin Bank. A disciplinary enquiry was
initiated
by
the
bank
against
the
respondent by issuing charge sheets dated
31.7.2002 and 9.8.2002, the Enquiry
Officer was appointed by the disciplinary
authority on 4.9.2002 in accordance with
the Aligarh Gramin Bank (Officers and
employees) service, Regulations, 2000
with respect to charge sheet dated
9.8.2002 in which presenting officer on
behalf of the Bank also appeared. The
enquiry officer asked the respondent as to
whether he wants to engage a defence
representative which was replied in
affirmative by the respondents. The
respondents stated to the Enquiry Officer
that
he
wants
to
engage a legal
practitioner for his defence. The Enquiry
Officer refused the prayer for engaging a
legal practitioner and stated that the
respondent can only bring any officer or
employee of the Aligarh Gramin Bank as
a defence representative. The aforesaid
decision of the Enquiry Officer was
objected by the petitioner but the enquiry
officer reiterated his same decision on
which the respondent stated that he wants
to bring one Sri R.P. Singh of Central
Bank
of
India
as
his
defence
representative. The Enquiry Officer stated
that at his level only permission for
engaging
defence
representative
belonging to Aligarh Gramin Bank can be
granted. The Enquiry Officer asked for
fifteen days' time for searching an
employee or officer of Aligarh Gramin
Bank for being his defence representative
. The enquiry was adjourned by the
Enquiry Officer to 12th November, 2002.

4. After the above proceedings the
writ petition was filed by the petitioner
praying for quashing of the order dated
4.9.2002 and the order dated 11.9.2002
initiating the enquiry proceedings as well
as the charge sheets dated 31.7.2002 and
9.8.2002. A writ of mandamus was also
prayed for commanding the respondent to
allow the petitioner (respondent to this
appeal) to appoint an independent defence
representative as Sri R.P. Singh a Special
Officer of Central Bank of India. Further
prayer seeking a writ of mandamus
commanding
the respondent not to
interfere in the peaceful functioning of the
petitioner and further not to take any
coercive action in respect to the order
passed in enquiry proceedings. Counsel
for the Bank was represented in the writ
petition and the writ petition was heard by
the learned single Judge without inviting
counter affidavit from the Bank. The
learned single Judge dismissed the writ
petition in so far as the prayer for
quashing the disciplinary proceedings in
pursuance of the charge sheets was
concerned. The writ petition was partly
allowed holding that the petitioner has a
right to engage Sri R.P. Singh or any
officer of the Central Bank of India or
Aligarh Gramin Bank as representative to
defend the writ petitioner in the enquiry.
The judgment of the learned single Judge
in so far as it partly allowed the writ
petition, has been appealed by the Aligarh
Gramin Bank. Sri S.N. Verma, Senior
Advocate, raised following submissions
in support of the appeal.
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1All] Chairman, Aligarh Gramin Bank V. Sri Lattoori Singh 203
1.
The
service
conditions
of
the
employee of the Bank are governed
by Aligarh Gramin Bank (Officers
and employees) Service, Regulations
2000 which do not contain any
provision enabling the writ petitioner
to have a defence representative
from any other Bank. The right of
representation in the disciplinary
enquiry is regulated by the statutory
rules and unless the rules permit the
employee has no right to claim
engagement
of
defence
representative from any out side
organization i.e. Central Bank of
India.

2.
The learned single Judge did not
correctly construe the provision of
Regulation 43 of the Aligarh Gramin
Bank
(Officers
and
employees)
Service, Regulations 2000.

5. The judgment of the learned
single Judge is in teath of the judgement
of the apex court in Indian Oversees Bank
versus Indian Oversees Bank Officers'
Association and another reported in
(2001) 9 Supreme Court Cases 540.

6. The counsel for the appellant
placed reliance on the decisions of the
apex
court
in
Bharat
Petroleum
Corporation Ltd. versus Maharashtra
General
Kamgar
Union
and
others
reported in (1990) 1 Supreme Court Cases
6926, Indian Oversees Bank versus Indian
Oversees Bank Officers' Association and
another reported in (2001) 9 Supreme
Court Cases 540 and a Division Bench
Judgement of this Court in Ajai Kumar
Misra versus Assistant General Manager,
Aligarh Bank, and another reported in
2003 (1) AWC 70.

7. Sri I.M. Tripathi, learned counsel
appearing
for
the
respondent
writ
petitioner supporting the judgment of the
learned single Judge submitted that the
respondent has right to engage a defence
representative of his choice which is in
consonance of principles of natural
justice. Sri Tripathi submits that there is
no prohibition in Aligarh Gramin Bank
(Officers
and
Employees)
Service,.
Regulations 2000 in engaging a defence
representative from out side the bank.
Referring to Regulation 43, the learned
counsel submitted that since there is no
restriction
even
in
engaging
legal
practitioner hence it can safely be
assumed that the representation by any
other person is also permissible. Referring
to Regulation 62 of the Aligarh Gramin
Bank (Officers and Employees) Service,
Regulations 2000 has also been made
which provided that leave can be granted
to an officer or employee for defending
any officer or employee in an enquiry.

8. The counsel for the respondent
placed reliance on following judgments of
the apex court :-

(1) C.L. Subramaniam v. The Collector
of Customs, Cochin AIR 1972 Supreme
Court, 2178 ;

(2) Bhagat Ram v. State of Himachal
Pradesh and others AIR 1983 Supreme
Court 454,

(3) The Board of Trustees of the Port of
Bombay v. Dilip Kumar Raghavendnath
Nadkarni and others AIR 1983 Supreme
Court 109

(4) J.K. Agrawal vs. Haryana Seeds
Development Corporation Ltd. and others,
AIR 191 Supreme Court 1221
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204 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
Reliance has also been placed on the
judgments
of
several
High
Courts
namely:-

(1)
K.N. Gupta, s/0 Behari Law vs.
Union of India through Secretary
Railway Board and another, AIR
1968 Delhi 85

(2)
Hans Raj Gupta vs. State of Punjab
1992 (1) SLR 146 (Punjab and
Haryana High Court)
(3)
Kehar Din, Ex Class IV Employee
vs. The Presiding Officer, Labour
court and another 1992 (2) SLR 199
(Punjab and Haryana High Court)

(4)
Nripendra Nath Bagchi vs. Chief
Secretary, Government of West
Bengal AIR 1961 (Calcutta High
Court) 1 and

(5)
Hari Prasad vs. Hon'ble High Court
of Judicature at Allahabad and
another (1995) 2 UPLBEC 1250,.

9.

We
have
considered
the
submissions made by the counsel for both
the parties and have also perused the
record of the writ petition. As prayed by
counsel for the parties we are deciding
this appeal finally.

10. The rival submissions made by
counsel for the parties veer round the
controversy regarding extent of right of an
employee
to
have
his
defence
representative in disciplinary proceedings
against him. The Regulations have been
framed under Section 30 of the Regional
Rural Banks Act, 1976 namely, Aligarh
Gramin Bank (Officers and Employees)
Service Regulations 2000. The Regulation
apart from giving other conditions of
service, conduct, disciplinary and appeals,
regulation 38 enumerates the penalty
which can be imposed on an officer or
employee of the Bank. Second proviso of
regulation 38 which is relevant is
extracted below:-

"II employees
(a) Penalties for minor misconduct

(i)
censure
(ii)
recording of adverse remarks
against him

(b) Penalties for major misconduct

(i)
fine
(ii)
withholding of increment for
a period not exceeding 6
months.
(iii)
Withdrawal
of
special
allowance
(iv)
Reductions of pay to next
lower stage upto a maximum
period of 2 years in case the
staff
has
reached
the
maximum in the scale of pay.
(v)
Removal from service which
shall not be a disqualification
for future employment
(vi)
Dismissal.

Provided further that no order
imposing any of the penalties specified
above, shall be made except by an order
in writing signed by the competent
authority and no such order shall be
passed without the charge or charge being
formulated in writing and given to the
employee in enquiry held so that he shall
have reasonable opportunity to answer the
charge or charges and defend himself.

11. Regulation 40 deals with
delegation of the power to enquire which
is extracted below:-
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1All] Chairman, Aligarh Gramin Bank V. Sri Lattoori Singh 205
"40. Delegation of the power to enquire
The enquiry under Regulation 38 and
the procedure with the exception of final
order, may be delegated by the competent
authority to an officer who is senior to the
officer against whom the proceedings are
instituted and in the case of an employee
to any officer.

12. Regulation 43 is regarding
restriction on engagement of a legal
practitioner which is extracted below :-

"43. Restriction on engagement of a
Legal Practitioner

For the purpose of enquiry, the
officer or employee shall not engage a
legal practitioner without prior permission
of the competent authority."

13. The word ' competent authority'
has been defined in Regulation 2 (i)
which means the Chairman in the case of
officers and the officer designated by the
Chairman in the case of employees.

Regulation 62 which has been
referred by the counsel for the respondent
may also be noted which deals with
special casual leave. For ready reference
regulation 62 is extracted below :-

"62 Special Casual Leave

An officer or employee may be
granted special casual leave and special
leave for sports, donation of blood, family
planning, defending another officer or
employee in an enquiry, or for joining
civil defence services or any other
purpose as may be decided by the Board
in accordance with the guidelines of the
Central Government."
14. Aligarh Gramin Bank (Officers
and employees) Service, Regulations
2000 do not specifically contain any
provision giving right to an officer or
employee to represent himself in the
disciplinary
enquiry
by
any
other
representative. However, regulation 43
contains a restriction in engagement of a
legal practitioner which provides that for
the purpose of enquiry, the officer or
employee
shall
not
engage
legal
practitioner without prior permission of
the competent authority. This regulation
does contemplate engagement of legal
practitioner by an officer or employee in a
disciplinary enquiry with the permission
of the competent authority. Regulation 43
thus clearly contemplates representation
of an employee in an enquiry by legal
practitioner with the permission of the
competent authority. The question which
has arisen in this appeal is to the effect
that
when
the
regulations
do
not
specifically contemplate representation by
an employee or officer by any other
person apart from legal practitioner, can
an employee insist for having his defence
representative from another bank or from
any out side organization. The regulation
also do not specifically contemplate
representation by any other officer or
employee of the same bank but reference
of such fact has been made in Regulation
62 provides that an officer or employee
may be granted special causal leave for
defending another officer or employee in
an enquiry. In incorporating the provision
of grant of special casual leave to an
officer or employee for purpose of
defending an officer in an enquiry the
regulation makers were aware of such
event and contingencies in the Bank. The
Aligarh Gramin Bank (Officers and
employees) Service, Regulation 2000 thus
impliedly recognizes and takes care of
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206 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
fact and situation in which an officer or
employee may be granted special causal
leave for defending any officer or
employee in an enquiry. Regulations 43
and 62 thus contemplate representation of
an employee in disciplinary enquiry by a
legal practitioner or by an officer or
employee. It is relevant to note that the
word' officers and employee' referred to
in Regulation 62 obviously refers to
officers and employees as defined in
Regulation 2 (n) and 2(1) of the Aligarh
Gramin Bank. Thus an officer or an
employee referred in Regulation 62 refers
the officer and employee of the Aligarh
Gramin Bank. The scheme of the
Regulation thus makes it clear that the
representation
is
permissible
in
disciplinary enquiry by a charge sheeted
employee either by legal practitioner or
by any other officer or employee of the
Bank.

15. The question to be considered in
this appeal is as to whether the respondent
has right to claim for a defence
representative
from
an
outside
organization i.e. Central Bank of India as
a matter of right. Before proceeding to
consider the aforesaid question any
further it will be relevant to take into note
certain decision of the apex court which
considered different aspects of this right.

16. The three Judge Bench of the
apex court in A.I.R. 1960 Supreme Court
914 N. Kalindi and others versus M/s Tata
Locomotive & Engineering Co. Ltd.
Jamshedpur had occasion to consider as to
whether in an enquiry held by the
Management against a workman, has the
workman right to be represented by a
representative of his Union. In the case
before the apex court no provisions were
made in the relevant rules permitting the
person against whom enquiry was being
held to be represented by any body else.
After noticing the aforesaid fact it was
held in paragraph 5 by the apex court :-

"5. Our conclusion therefore is that a
workman against whom an enquiry is
being held by the management has no
right to be represented at such enquiry by
a representative of his Union, though of
course an employer in his discretion can
and may allow his employee to avail
himself of such assistance."

17. In Crescent Dyes and Chemicals
Ltd. versus Ram Naresh Tripathi reported
in (1993) 2 Supreme Court Cases 115 the
apex court had occasion to consider
whether a delinquent is entitled to be
represented by an office bearer of another
Trade Union or a non recognized union
functioning within the undertaking in
which the delinquent is employed. The
apex court in the aforesaid judgment has
considered several earlier judgments of
the apex court and English cases. In
paragraph 17 the apex court laid down in
following words:-

"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 in so far 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
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1All] Chairman, Aligarh Gramin Bank V. Sri Lattoori Singh 207
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 authorized by
the State Government. The object and
purpose of such provisions is to ensure
that the domestic enquiry is completed
with dispatch 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.

18. The apex court in Bharat
Petroleum
Corporation
Ltd.
versus
Maharastra General Kamgar Union and
others reported in (1999) 1 Supreme
Court Cases 626 (supra) had again
occasion to consider clause 29.4 of draft
standing
orders
provided
for
that
workman is permitted to be defended by a
fellow workman of his choice who must
be an employee of the Corporation. The
challenge to the above standing order was
made before the apex court. The apex
court after considering several cases has
laid down that the basic principle is that
an
employee
has
no
right
of
representation
in
the
departmental
proceedings by another person or a lawyer
unless the Service Rules specifically
provide for the same. Following was held
in
paragraph
36
of
the
aforesaid
judgment.

"38. The model Standing orders, no
doubt,
provided
that
a
delinquent
employee could be represented in the
disciplinary proceedings through another
employee who may not be the employee
of the parent establishment to which the
delinquent belongs and may be an
employees elsewhere, though he may be a
member of the trade union, but this rule of
representation has not been disturbed by
the Certified Standing Orders, in as much
as it still provides that the delinquent
employee can be represented in the
disciplinary
proceedings
through
an
employee. The only embargo is that the
representative should be an employee of
the parent establishment, the choice of
the
delinquent
in
selecting
his
representative is affected only to the
extent that the representative has to be a
co-employee of the same establishment in
which the delinquent is employed. There
appears to be some logic behind this as a
co-employee would be fully aware of the
conditions
prevailing
in
the
parent
establishment, its Service Rules, including
the Standing Orders, and would be in a
better position, than an outsider, to assist
the
delinquent
in
the
domestic
proceedings for a fair and early disposal.
The basic features of the model Standing
Orders are thus retained and the right of
representation
in
the
disciplinary
proceedings through another employee is
not altered, affected or taken away. The
Standing Orders conform to all standards
of reasonableness and fairness and,
therefore, the appellate authority was fully
justified in certifying the Draft Standing
Orders as submitted by the appellant.
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208 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
19. In the case of Indian Overseas
Bank versus Indian Overseas Bank
Officers' Association an another (supra)
the apex court had again occasion to
consider
the nature and extent of
employees' right of representation in a
departmental enquiry. The apex court
again reiterated the principle in paragraph
6 of the said case after taking into
consideration the earlier pronouncement
of the apex court. Paragraph 6 of the said
judgement is extracted below:-

"6. 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 officeremployee
to
have,
in
a
domestic
disciplinary enquiry, the assistance of
some one 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 regulations and standing
orders, if any, regulating the conduct of
disciplinary
proceedings
specifically
recognize such a right and provide for
such representation (N. Kalindi vs. Tata
Locomotive & Engg. Co. Ltd. (AIR 1960
SC 914), Dunlop Rubber Counsel for the
petitioner. (India) Ltd. v. Workmen (AIR
1965 SC 1392) Crescent Dyes and
Chemicals Ltd. v. Ram Naresh Tripathi
(1993) 2 Supreme Court cases 115 and
Bharat
Petroleum
Corpn.
Ltd.
v.
Maharashtra
Central
Kamgar
Union
(1999) 1 Supreme Court cases 626.
Irrespective
of
the
desirability
or
otherwise of giving the employee facing
charges of misconduct in a disciplinary
proceeding to ensure that this 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."

20. The Division Bench judgment
relied upon by the counsel for the
appellant in Ajai Kumar Misra versus
Assistant General Manager, Allahabad
Bank and another reported in 2003 (1)
AWC 70 do support his contention. In the
aforesaid case the writ petitioner was
messenger in Allahabad Bank. The
petitioner moved an application praying
that he should be permitted to take one Sri
Surendra Misra, a retired officer of
Central Excise Department to act as his
defence
representative.
Another
application was made that if Surendra
Misra is not agreeable then another
employee Sri K.K. Dubey of Custom &
Central Excise Department may be
permitted. The said request was turned
down by the Enquiry Officer referring to
Allahabad
Bank
Officer
Employees'
(Discipline and Appeal) Regulations,
1976. The Enquiry Officer stated that
above
Regulation
do
not
permit
engagement of a person other than officer
or employee of the Bank to act as defence
representative
in
the
departmental
proceedings. The aforesaid decision was
challenged
before
this
Court.
The
Division Bench after considering the
several decisions of the apex court held in
paragraph 8 which is quoted below:
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1All] Chairman, Aligarh Gramin Bank V. Sri Lattoori Singh 209
"8. The law, therefore, is well settled
that an employee facing disciplinary
proceedings can have the assistance of the
defence representative only in accordance
with the rules governing his condition of
service and is not entitled to claim that he
may be allowed to be represented by a
legal practitioner or someone else who
does not fall within the purview of the
rule. It is not the case of the petitioner that
the
presenting
officer
is
a
legal
practitioner or is a legally trained person.
In these circumstances, we do not find
any infirmity in the order dated 3.11.2001
passed by the Disciplinary authority. "

21. The aforesaid judgments clearly
lay down that an employee facing the
disciplinary enquiry can have assistance
of
defence
representative
only
in
accordance with rules governing his
service condition. In the present case
regulation 43 provides for representation
by legal practitioner with the permission
of the competent authority. However in
the present case we are not called upon to
examine the question as to whether the
petitioner was entitled to have legal
practitioner as his defence representative
since we have not been shown any
material on record to show that the
petitioner ever made a demand of having
a legal practitioner as his defence
representative in accordance with the
regulation 43, Regulation 43 requires
prior
permission
of
the
competent
authority for engaging legal practitioner
as defence representative. The above
provision thus requires request by an
employee. We have also looked into the
prayer of the writ petitioner in writ
petition. The petitioner has not made any
prayer for direction to the respondent to
permit him to have a legal practitioner as
his defence representative presumably due
to the reason that the writ petitioner
himself
has
never
approached
the
competent authority. The petitioner has
made specific prayer in the writ petition
seeking a writ of mandamus to the
respondents to allow the petitioner to
appoint Sri R.P. Singh a special officer of
Central Bank of India as defence
representative.
Thus
we
have
not
examined the question as to whether the
petitioner is entitled for service of a legal
practitioner as defence representative and
we deem fit that this question be left open
to the petitioner to raise before the
appropriate competent authority, if so
advised.

22. The counsel for the respondent
has laid much emphasis on the fact that
the Aligarh Gramin Bank (Officers and
Employees) Service, Regulations 2000
does not prohibit engagement of any
person from Bank other than Aligarh
Gramin Bank as defence representative.
He submitted that if the Regulation do not
prohibit there was no restraint on the
petitioner
from
seeking
a
defence
representative from the Central Bank of
India. Learned single Judge for allowing
the writ petition has also taken the view
that since the said Regulations, 2000 does
not prescribe engagement of any person
from a Bank other than the respondent -
Bank hence the petitioner has right to
engage Sri R.P. Singh or any officer of
the Central Bank of India or any person
from any other Branch to defend and
represent the writ petitioner in the
enquiry.

23.

After
having
taken
into
consideration
the
provisions
of
Regulations 2000 specially regulations
38, 43 and 62, we are of the view that the
learned Single Judge has not correctly
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210 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
construed the regulation 43 while laying
down that if the regulation envisage that
an officer can be defended through a
lawyer the view is irresistible that in case
the petitioner makes a prayer to engage
some officer from a Bank other than the
respondent Bank, which would be an
independent person unrestrained by any
disciplinary control of the employer, the
petitioner will be properly defended and
the intention of the framers of the
regulations in this regard is too obvious
and patent to be ignored that they
intended a right to be defended through an
independent representative either from the
same Bank or from the other Bank by the
expression that 'he shall have reasonable
opportunity to answer the charge or
charges and defend himself."

24. Regulation 43 amply protect the
right of an employee and officer of the
Bank while permitting taking assistance
of the legal practitioner. The prior
permission is contemplated in regulation
43 to keep a check on frivolous and
unnecessary request made for legal
practitioner if the facts and situation do
not demand so. The principle underlined
by the apex court in several cases, is clear
that assistance by legal practitioner is to
be given to an employee when the
Enquiry Officer conducting the enquiry as
a legal trained person, from the enquiry
proceedings on the date 19.10.2002 which
has been annexed as Annexure-3 to the
writ petition, it is clear that the enquiry
officer himself has permitted the writ
petitioner to have defence representative
from Aligarh Gramin Bank.

25. The right of representation by an
employee in enquiry proceedings by legal
practitioner or by any other person is in
consonance with the principles of natural
justice safe guarding his right to express
himself to find a person who may ably
protect his interest but as noticed above
from the pronouncements made by the
apex court as noted above, the basic
principle is that an employee has no right
to representation in the disciplinary
proceedings by any other person or
lawyer
unless
the
service
Rules
specifically provides for the same. The
Aligarh Gramin Bank (Officers and
Employees) Service, Regulations 2000 do
provide
representation
by
legal
practitioner and also impliedly envisage a
situation when an officer has to be
granted leave as special casual leave to
represent an employee or officer in a
department
enquiry.
Thus
the
said
Regulation of 2000 fully protect the
interest
of
a
delinquent.
The
representation in disciplinary enquiry by
an officer and employee of the same bank
has also salutary purpose and object. An
Officer or employee of the same bank has
special knowledge of the prevalent
practices, facts and circumstances of the
Bank, rules and regulations including the
orders of the higher authorities and he
may be in a better situation to defend an
officer or employee of the same Bank in
the disciplinary enquiry. Further when
defence representative is from the same
Bank he can also seek special casual leave
for defending the employee. Defence
representative from the same Bank will
also facilitate expedition in conclusion of
the
disciplinary
enquiry
and
the
availability of the defence representative
will be more easy as compared to any out
side person. The fear which has been
expressed
by
the
counsel
for
the
respondents
that
the
defence
representative belonging to the same
Bank will be under pressure from the
employer, is over simplification of an
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1All] Chairman, Aligarh Gramin Bank V. Sri Lattoori Singh 211
issue.
A
person
working
in
an
organization can not be heard in saying
that he has no trust in whole of the
organization. Every organization consist
of different persons. In several cases there
are registered Unions of the employees
and officers of the organization to espouse
their cause and in case the enquiry is not
fair the workmen concerned can challenge
its validity in appropriate proceedings.
The cases of biased enquiry or cases of
conduct of enquiry in an unfair manner,
cannot be lead to presume that in all cases
defence
representative
will
not
be
independent and useful. Assuming for
argument sake that officers or employees
in a particular case may not be able to
function independently, regulation 43
amply protect the interest of the employee
or the officer and the said employee or the
officer can seek assistance of the legal
practitioner in case where he is able to
demonstrate
that
the
defence
representative from the same organization
will not be able to function independently
or there are any other good reason for
permitting a legal practitioner.

26. The contention of the respondent
that since there is no prohibition in the
Regulation from engaging a person from
the out side it be held that he has right to
do so is too far to be accepted. As noted
above the apex court has clearly laid
down that the extent of representation in
an enquiry has to be in accordance with
that extent which is specifically permitted
under the rules. Extending the right of
representation upto the extent which is not
prohibited will run counter to the dictum
laid down by the apex court in the above
noted cases. In case such interpretation is
given to the rules it will lead to
unworkable and unreasonable result. A
person may insist that he may be
permitted to take a defence representative
who has been a dismissed employee or
officer of the same bank or of any other
bank of a person of criminal background.
If is conceded that the employee has right
to take any one which is not prohibited
that will cause undue hindrance in holding
of disciplinary enquiry and smooth
conduct of the enquiry. We are unable to
subscribe ourselves to the view taken by
the learned single Judge that since
engagement of any person from Bank
other than Aligarh Gramin Bank is not
prohibited the petitioner has right to
engage Sri R.P. Singh of Central Bank of
India Branch Aligarh.

27. The various decisions relied by
the counsel for the respondents are now to
be considered. The apex courts judgment
in C.L. Subramaniam v. The Collector of
Customs, Chochin reported in AIR 1972
Supreme Court 2178 relied upon by the
counsel for the respondents considered
the rule 15 (5) of the Central Civil
Services (Classification, Control and
appeal) Rules, 1967 which provided that
the government servant may present his
case
with
the
assistance
of
any
government servant approved by the
disciplinary authority, but may not engage
a legal practitioner for the purpose unless
the person nominated by the disciplinary
authority
having
regard
to
the
circumstances of the case, so permits. The
apex
court
in
the
aforesaid
case
considered the claim of the petitioner. In
the present case as observed above, we
have not examined the question of
entitlement of the petitioner to have
petitioner
hence
this
case
has
no
application.

28. The case of Bhagat Ram v. State
of Himanchal Pradesh and others (supra)
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212 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
was a case in which delinquent a class IV
employee was not asked as to whether he
wanted also to be represented by a
government servant. The enquiry in that
case was also to be governed by rule
15(2) of the Central Civil Services
(Classification,
Control
and
Appeal)
Rules 1967 and the apex court held the
enquiry to be vitiated since the delinquent
was not asked as to whether he wanted to
be represented by a government servant.
The
aforesaid
case
has
also
no
application.

29. The next case relied by the
counsel for the respondents is the Board
of Trustee of the Port of Bombay v. Dilip
Kumar Raghvendra Nath Nadkarani and
others reported in AIR 1983 Supreme
Court, 109. In the aforesaid case the
employer was represented by legal train
officer in an enquiry. The request of the
employee to be represented by the lawyer
was refused. In that view of the matter the
apex court held that there was denial of
opportunity of hearing to employee.
Following was observed by the apex court
in paragraph 13 :-

"However, when Regulation 12 (8)
came into force, the situation merely
altered and the large number of witnesses
almost all except one were examined after
the Regulation came into force and which
made it obligatory to grant the request of
the first respondent because the regulation
provide granting of permission to appear
and defend by a legal practitioner once
the department was represented by legally
trained minds."

30. AIR 1991 Supreme Court 1221
G.K.
Agarwal
V.
Haryana
Seeds
Development Corporation Ltd. and others
was again a case in which the presenting
officer was not man of legal appointment
and experience and refusal of service of
lawyer to the delinquent was held to be
violation of principles of natural justice. It
was laid down in paragraph 4 of the
aforesaid judgment by the apex court -

"4. In the present case, the matter is
guided by the Provisions of Rule 7 (5) of
the
Civil
Service
(Punishment
and
Appeal) Rules, 1952 which says :

"7 (5) Where the punishing authority
itself enquires into any charge or charges
or appoints an Enquiry Officer for holding
enquiry against a person in the service of
the Government, it may, by an order,
appoint a Government servant or a legal
practitioner to be known as a Presiding
Officer to present on its behalf the case, in
support of the charge or charges.

The person against whom a charge is
being enquired into shall be allowed to
obtain the assistance of a Government
Servant, if he so desires, in order to (sic)
his defence before the Enquiry Officer. If
the charge or charges are likely to result
in the dismissal of the person from the
service of the Government such person
may, with the sanction of the Enquiry
Officer, be represented by counsel."

(Underlining supplied)

It would appear that in the inquiry
the
Respondent
-Corporation
was
represented
by
its
Personal
and
Administrative manager who is stated to
be a man of law. The rule itself recognize
that where the charges are so serious as to
entail a dismissal from service the inquiry
authority may permit the services of a
lawyer. This rule vests a discretion. In the
matter of exercise of this discretion, one
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1All] Chairman, Aligarh Gramin Bank V. Sri Lattoori Singh 213
of the relevant factors is 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 reason of the
appellant being pitted against a presenting
officer who is trained in laws. Legal
Advisor and lawyer are for this purpose
some what liberally construed and must
include' whoever assists or advises on
facts and in law must be deemed to be in
the position of a legal advisor.