# S.N. Maheshwari v. The General Manager, Syndicate Bank and others

- **Citation:** (2013) 1 ILRA 201
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-02-22
- **Case number:** Civil Misc. Writ Petition No.4492 of 1999
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/s-n-maheshwari-v-the-general-manager-syndicate-bank-and-others-42495
- **Pages:** 8

## Headnote

202 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Constitution
of
India,
Article
226principle
of
Audi-Alteram-Partem
(Natural
Justice)-scope-explainedrefusal to take service of lawyer-without
pleading about untrained legal person
having
no
idea
of
proceduredepartmental
proceeding-employer
rightly rejected the request-the charges
of embezzlement and fraud are not
complicated-questions-by
which
assistance
of
lawyer
required-no
question of violation of Natural Justice.

Held: Para-33

The Court, from a perusal of the charge
sheet, finds that the charges are not
complicated nor does it involve any
serious questions of law. No doubt the
charges were one of embezzlement and
fraud, which were serious in nature but
nonetheless
the
charges
were
not
complicated
which
required
the
assistance of a Lawyer.
Case Law discussed:
AIR 1991 SC 1221; AIR 1983 SC 109; 2006 (1)
ESC 61; AIR 1960 SC 914; 1961 (2) LLJ 417;
AIR 1965 SC 1392; 1997 (4) SCC 384

## Text

1 All] S.N. Maheshwari Vs. The General Manager, Syndicate Bank and others
201

12. In the instant case the Court
finds that the charges mentioned in the
domestic disciplinary proceedings are
totally different and distinct. The Court
finds that the charge of murder was
slapped against the petitioner in the
criminal proceedings where he was
acquitted by giving him a benefit of doubt
and it was not a clean acquittal. In the
domestic inquiry, the charge against the
petitioner was of misuse of his post and
official rifle while on duty, which was
proved.

13. In Abhay Raj Singh Vs. Bank
of Baroda and another 2005 (2)
UPLBEC 1802, the Court held that:-

"it is well settled principle of law that
the degree of proof required in a
departmental enquiry is vastly different
than the degree of proof required to prove
a criminal charge. In the departmental
enquiry the findings can be recorded in
preponderance of probabilities and it is
not necessary that the charge must be
proved to the hilt. The departmental
proceedings and the criminal proceedings
are entirely different in nature. They
operate in different fields and they have
different objectives. The material or the
evidence in the two proceedings may or
may not be the same and, in some cases,
at least, material or evidence which would
be relevant or open for consideration in
the departmental proceeding, may be
irrelevant in the criminal proceeding. The
Rules relating to the appreciation of the
evidence in the two enquiries may also be
different. The standard of proof, the mode
of enquiry and the rules governing the
enquiry and the trial in both the cases are
entirely distinct and different.

The law is well settled that the
Inquiry Officer can come to a different
conclusion than arrived at by a Criminal
Court and that it is immaterial whether the
charges were identical or the witnesses
were the same, as long as the power
exercised by the Criminal Court and the
inquiry under the relevant law and the
service law and the distinct and separate.
There is no bar for holding a disciplinary
proceeding during the pendency of the
trial though the basis may be one and the
same. It is for the disciplinary authority to
decide as to whether in a given case it
should keep the domestic enquiry pending
till the outcome of the criminal trial or
not."

14. For the reasons stated aforesaid,
the Court does not find any merit in the
writ petition.

15. The writ petition is dismissed.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.02.2013

BEFORE
THE HON'BLE TARUN AGARWALA,J.

Civil Misc. Writ Petition No.4492 of 1999

S.N. Maheshwari

...Petitioner
Versus
The General Manager, Syndicate Bank
and others

 ...Respondents

Counsel for the Petitioner:
Sri S.K. Singh
Sri D.P. Singh
Sri Ravi Kiran Jain

Counsel for the Respondents:
Sri P.K. Singhal
C.S.C.
202 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Constitution
of
India,
Article
226principle
of
Audi-Alteram-Partem
(Natural
Justice)-scope-explainedrefusal to take service of lawyer-without
pleading about untrained legal person
having
no
idea
of
proceduredepartmental
proceeding-employer
rightly rejected the request-the charges
of embezzlement and fraud are not
complicated-questions-by
which
assistance
of
lawyer
required-no
question of violation of Natural Justice.

Held: Para-33

The Court, from a perusal of the charge
sheet, finds that the charges are not
complicated nor does it involve any
serious questions of law. No doubt the
charges were one of embezzlement and
fraud, which were serious in nature but
nonetheless
the
charges
were
not
complicated
which
required
the
assistance of a Lawyer.
Case Law discussed:
AIR 1991 SC 1221; AIR 1983 SC 109; 2006 (1)
ESC 61; AIR 1960 SC 914; 1961 (2) LLJ 417;
AIR 1965 SC 1392; 1997 (4) SCC 384

(Delivered by Hon'ble Tarun Agarwala,J.)

1. The petitioner, being aggrieved,
by the order of dismissal of his services
from the respondent-bank as well as
aggrieved by the order of the Appellate
Authority has filed the present writ
petition.

2. The brief facts leading to the
filing of the writ petition is, that the
petitioner was appointed as a clerk and, at
the relevant moment of time, was doing
the work of a Cashier in the respondentbank at Meerut. In the year 1995, the
petitioner was suspended on account of
certain charges. Subsequently, on 22nd
August, 1995 the petitioner was served
with a chargesheet in which various
charges was levelled against him viz, for
committing embezzlement, fraud and
manipulation in the books of the bank.

3. In a nutshell, the charges were
that while working as a Cashier, the
account holders had handed over to the
petitioner certain amounts inside and
outside the bank premises for being
deposited in their accounts, which had not
been deposited or partially deposited or
belatedly deposited. Further charges were
that the petitioner made false entries in
the saving bank account holders of the
customers of the bank and also inflated
their balance. There were charges of
manipulation in the records and debiting
accounts of the customers without valid
vouchers or cheques. There were also
charges of diversion of the amount of the
customers to other accounts.

4. The petitioner was asked to
submit his reply. The petitioner instead of
submitting a reply asked for supply of
various documents, which in due course
was supplied to him, and inspite of
supplying the documents, no reply to the
chargesheet was filed. Eventually on 3rd
January, 1996 an Inquiry Officer was
appointed who proceeded to hold an oral
inquiry. Notices were served upon the
petitioner and the petitioner appeared
before the Inquiry Officer. He was asked
as to whether he would require to be
presented
through
any
defence
representative, which he initially declined.
At the behest of the petitioner several
adjournments were sought before the
Inquiry Officer, which were allowed and
full opportunity was given to the
petitioner to cross-examine the witnesses.

5. The inquiry report was submitted
on 30th August, 1997 on the basis of
which, the Disciplinary Authority issued a
1 All] S.N. Maheshwari Vs. The General Manager, Syndicate Bank and others
203
show cause notice to which he submitted
a reply and was also given an opportunity
of personal hearing. The Disciplinary
Authority, after considering the matter
concurred with the findings of the Inquiry
Officer and considering the gravity of the
charges and seriousness of the offence
passed an order of dismissal. The
petitioner, being aggrieved, filed an
appeal which was also dismissed. The
petitioner, thereafter has filed the present
writ petition.

6. Heard Sri Ravi Kiran Jain, the
learned Senior Counsel assisted by Sri
D.P. Singh, the learned counsel for the
petitioner and Sri P.K. Singhal, the
learned counsel for the respondent-bank.

7. The only point urged before this
Court was that the petitioner was not
allowed to engage a Lawyer and that his
application was wrongly rejected and
such rejection was violative of the
principles of natural justice. In support of
his case the learned counsel for the
petitioner placed reliance upon a decision
of the Supreme Court in AIR 1991 SC
1221, AIR 1983 SC 109 and a Division
Bench judgment of the Madras High
Court in 2006 (1) ESC 61.

8. In support of his submission, the
learned Senior Counsel appearing for the
petitioner
placed
various
documents
before the Court to impress that there had
been a miscarriage of justice and that the
petitioner was being pitted against legally
trained persons who were appointed as the
presenting officer and the Inquiry Officer,
and consequently, since serious questions
of fact and law was involved it was not
possible for the petitioner who was
merely an employee and did not have any
legal training to be denied the benefit of
engaging a Lawyer.

9. The learned counsel for the
petitioner vehemently submitted that this
denial of engagement of a Lawyer for his
defence was violative of the principles of
natural justice.

10. In support of the aforesaid
contention, the learned counsel for the
petitioner invited the attention of the
application dated 26th December, 1996
written by the petitioner to the Inquiry
Officer in which it was indicated that
since legal complications are involved he
may be allowed to engage a Lawyer for
his defence. This letter was forwarded by
the Inquiry Officer to the Disciplinary
Authority who duly considered it and, by
an order dated 27th January, 1997, turned
down the request of the petitioner on the
ground that no legal complications or
questions of law arose and that it would
be open to the petitioner to utilize the
service of a defence representative as per
Clause 19.12 of the Bipartite Settlement
Award.

11. The petitioner, being aggrieved,
by the said order filed Writ Petition
No.1476 of 1997, which was disposed of
by an order dated 5th May, 1997 wherein
the Court declined to interfere in the
impugned order at that stage leaving it
open to the petitioner to challenge the said
order at the appropriate stage and take
such objection available to him under law
at the stage before the order of
punishment was passed or even otherwise.

12. It transpires that pursuant to the
order of the Court an objection dated 9th
May, 1997 was raised by the petitioner for
engagement of a Lawyer. Subsequently,
204 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
upon the submission of the inquiry report,
the petitioner was given an opportunity of
personal hearing and his request for
engagement of a Lawyer and denial of
natural justice was rejected by the
Disciplinary Authority while passing the
order of dismissal.

13. The issue that an employee
needs to be represented by a trained legal
person in a domestic inquiry has been a
subject of debate in many decisions and
the law on this has been fairly settled.

14. In N. Kalindi Vs. M/s Tata
Locomotive and Engineering Company
Ltd., Jamshedpur, AIR 1960 SC 914 it
was contended that since the workman
was not allowed to be represented in the
inquiry by a representative of a particular
Union, the order of dismissal was not
based upon a proper and valid inquiry and
was violative of the principles of natural
justice, such contention was repelled by
the Supreme Court holding that:-

"It is helpful to consider in this
connection the fact that ordinarily in
enquiries before domestic tribunals the
person
accused
of
any
misconduct
conducts his own case. Rules have been
framed by Government as regards the
procedure to be followed in enquiries
against
their
own
employees.
No
provision is made in these rules that the
person against whom an enquiry is held
may be represented by anybody else.
When the general practice adopted by
domestic tribunals is that the person
accused conducts his own case we are
unable to accept an argument that natural
justice demands that in the case of
enquiries
into
a
chargesheet
of
misconduct against a workman he should
be represented by a member of his Union.
Besides it is necessary to remember that if
any enquiry is not otherwise fair, the
workman concerned can challenge its
validity in an industrial dispute."

15. The supreme Court held that a
workman against whom an inquiry was
being held had no right to be represented
in such inquiry. Similar view was again
upheld by Supreme Court in Brooke
Bond India (Private) Ltd. Vs. Subba
Raman (S) and another, 1961 (2) LLJ
417.

16. In Dunlop Rubber Company
(India) Ltd. Vs. Their Workman, AIR
1965 SC 1392 the Supreme Court held:-

"The Tribunal was also wrong in
thinking that there was a denial of natural
justice because the workmen were refused
that assistance of a representative of their
own Union. Under the Standing Orders it
is clearly provided that at such enquiries
only a representative of a Union which is
registered under the Indian Trade Unions
Act and recognized by the Company can
assist. Technically, therefore, the demand
of the workmen that they should be
represented by their own Union could not
be accepted. But we cannot say that the
action of the Enquiry Officer was for that
reason illegal or amounted to a denial of
natural justice. In this connection, we
have repeatedly emphasised that in
holding domestic enquiries, reasonable
opportunity should be given to the
delinquent employees to meet the charge
framed against them and it is desirable
that at such an enquiry the employees
should be given liberty to represent their
case, by person of their choice, if there is
no standing order against such a curse
being adopted and if there is nothing
otherwise objectionable in the said
1 All] S.N. Maheshwari Vs. The General Manager, Syndicate Bank and others
205
request. But as we have just indicated, in
the circumstances of this case, we have no
doubt that the failure of the Enquiry
Officer to accede to the request made by
the employees does not introduce any
serious defect in the enquiry itself, and so,
we have no hesitation in holding that the
result of the said enquiry cannot be
successfully challenged in the present
proceedings."

17. The Supreme Court in the
aforesaid decision held that even if the
workman was entitled to be represented
by a representative as per the standing
order, the refusal to acceede to the request
of the workman for insistence of a
representative of their Union was held as
not violative of the principles of natural
justice, though it was observed that an
employee should be given a liberty to
represent their case by a person of their
choice.

18. In Harinarayan Srivastav Vs.
United Commercial Bank and another,
1997 (4) SCC 384 the claim of an
assistance of a Lawyer was rejected on
the ground that Clause 19.12 of the
Bipartite Settlement only provided an
option to the employee to seek for a
Lawyer's assistance. The Supreme Court
while considering the said clause held that
even if the Bipartite Settlement provided a
clause enabling the petitioner to have a
Lawyer assistance, it was only an option
and that the same cannot be claimed as a
matter of right.

19. In J.K. Aggarwal Vs. Haryana
Seeds Development Corporation Ltd. and
others, AIR 1991 SC 1221 the Supreme
Court held that the right of representation
by a Lawyer may not in all cases be held
to be part of natural justice and that no
general principle valid in all cases can be
enunciated. However, the Supreme Court
held that even though the rule only vests a
discretion
while
exercising
such
discretion one of the relevant factors that
should be considered is whether there is a
likelihood of a combat being unequal
entailing a failure or miscarriage of justice
or a denial of rule a reasonable
opportunity of defence by reason of the
workman being pitted against a presenting
officer who is trained in law.

20. In the light of the aforesaid, the
Supreme Court, in the case of J.K.
Aggarwal (supra), held that the refusal to
sanction the service of the Lawyer in the
inquiry was not a proper exercise of the
discretion under the Rule leading it to a
failure of natural justice. Similarly, in the
case of Board of Trustees of the Port of
Bombay
Vs.
Dilip
Kumar
Raghavendranath Nadkarni, AIR 1983
SC 109 the Court held that where the
request of an employee in an inquiry
against him for being represented by a
Lawyer was refused while legally trained
officers were appointed as presenting
officer of the employer, the inquiry would
be deemed to be vitiated for denying the
employee a reasonable opportunity of
hearing especially when the request was
not acceeded too.

21. In case of Chairman and
Managing
Director,
Hindustan
Teleprinters Ltd. Vs. M. Rajan Isaac,
2006 (1) ESC 61 a Division Bench
judgment of the Madras High Court after
considering the relevant case laws on the
subject held that for the purpose of the
said case the denial of a lawyer to the
workman was violative of the principles
of natural justice, since he was pitted
206 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
against a legally trained person who was
the presenting officer.

22. From the aforesaid decisions, it
is clear that the general rule is, that in the
absence of Rules, an employee has no
right to seek the assistance of a Lawyer in
a departmental inquiry and that the
principles of natural justice is not violated
nor does it postulate a right to be
represented in a departmental proceedings
but, there is an exception, and that is, that
if the workman is pitted against a legally
trained
person
in
the
departmental
proceedings and the workman is not
familiar
with
the
legal
procedures
involved in the departmental inquiry, in
such a scenario, the Rule of equity and
natural justice clearly postulate that the
employer must act in fairness and permit
an employee to be represented by a
Lawyer who is a legally trained person
and is aware of the legal procedures
involved in a departmental inquiry.

23. In the light of the aforesaid, the
Court finds from a perusal of the inquiry
proceedings which has been annexed in
the counter affidavit that right from very
inception, the Inquiry Officer directed the
petitioner
to
engage
a
defence
representative, which he declined and
intimated the Inquiry Officer that as and
when he requires he will engage a defence
representative of his own choice. The
inquiry proceedings indicate that at some
stage the petitioner had engaged one Sri
Anil Kumar Srivastava as his defence
representative. By a letter dated 19th
December,
1996,
Sri
Anil
Kumar
Srivastava who was a State Secretary of
the Syndicate Bank Employees Union
declined to represent the petitioner and
advised him to engage a Lawyer. Based
on
that,
the
petitioner
moved
an
application dated 26th December, 1996
before the Inquiry Officer indicating
therein that since legal complications are
involved, he may be permitted to engage a
Lawyer. This application was forwarded
to the
Disciplinary
Authority,
who
declined to accept the request and by an
order dated 27th January, 1997 turned
down the request on the ground that no
legal complications are involved nor any
questions of law are involved.

24. The Court further finds that
pursuant to the disposal of the writ
petition of the petitioner on 5th May,
1997 the petitioner appeared before the
Disciplinary Authority pursuant to the
show cause notice along with a defence
representative and that they were given
full opportunity of hearing.

25. From the aforesaid, the Court
finds that no such averment was ever
raised by the petitioner that he has been
pitted against a presenting officer who is a
legally
trained
person
or
that
the
petitioner was not aware of the legal
procedures and, therefore, required the
assistance of a Lawyer. The only ground
urged was that legal complications were
involved. Even before this Court, there is
no averment in the writ petition to the
extent that the Inquiry Officer or the
presenting officer were trained legal
experts or that he was pitted against
persons of legal mind nor there is any
averment to the extent that he was
unaware of the legal procedures in the
inquiry proceedings.

26. The only ground taken by the
petitioner in paragraph 47 and 49 of the
writ petition is, that the order of the
Disciplinary Authority as well as of the
appellate authority was violative of the
1 All] S.N. Maheshwari Vs. The General Manager, Syndicate Bank and others
207
principles of natural justice and that the
application of the petitioner for permitting
to engage a Lawyer was illegally rejected
by the bank. There is no averment to the
effect that the petitioner was pitted against
legally trained persons and, that justice
required that he should be represented by
a Lawyer.

27. In this regard before proceeding
further, paragraph 19.12 of the Bipartite
Settlement Award which is relevant to the
issue in hand is extracted hereunder:

"Clause 19.12:- The procedure in
such cases shall be as followed:-

(a) An employee against whom
disciplinary action is proposed or likely to
be taken shall be given a charge sheet
clearly setting forth the circumstances
appearing against him and a date shall be
fixed for inquiry, sufficient time shall be
fixed for enquiry, sufficient time being
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 his defence. He shall also be permitted
to be defended.

(i) (x) by representative of a
registered trade union of bank employees
of which he is a member on the date first
notified for the commencement of the
inquiry.

(y) where the employee is not a
member of any trade union of bank
employee on the aforesaid date by a
representative of a registered trade union
of employees of the bank in which he is
employed;

(ii) at the request of the said union by
a representative of the state federation or
all India Organisation to which such
union is affiliated;

OR

(iii) with the Bank's permission, by a
Lawyer."

28. This clause was interpreted by
the
Supreme
Court
in
Harinarain
Srivastav's case (Supra) wherein the
Supreme Court held that even if the
Bipartite Settlement provided a clause
enabling the bank officer to have a
Lawyer assistance it was only an option
and, therefore, the same cannot be
claimed as a matter of right.

29. In the light of the aforesaid, the
Court finds that ample opportunity was
given to the petitioner to defend himself.
Full opportunity was given to the
petitioner to cross examine the witnesses.
Full opportunity was given to the
petitioner
to
engage
a
defence
representative as per Clasue 19.12 of the
Bipartite Settlement Award. The Court
finds that the petitioner initially declined
to take a defence representative but
subsequently,
engaged
a
defence
representative of his own choice, which
was duly allowed. The request for
engagement of a Lawyer was declined by
the employer on the ground that no
complicated questions of law arises.

30. The Court further finds that
before the Inquiry Officer and before the
Disciplinary Authority as well as before
this Court, no such averment was ever
raised that the Inquiry Officer or the
presenting officer were legally trained,
and that, the petitioner, being an untrained
legal person, had and no knowledge of the
procedure involved in the departmental
208 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
proceedings. Consequently, the Court is
of the opinion that the request for
engagement of a Lawyer was rightly
turned down.

31. The decisions cited by the
learned counsel for the petitioner are
distinguishable and are not applicable to
the present set and circumstances of the
case.

32. The Court further finds that the
petitioner did not submit any reply to the
chargesheet and kept on asking for
documents, which were duly supplied.
The Court finds that when the charges has
not been disputed or denied by the
workman, the Disciplinary Authority
could have concluded the matter there and
then but chose to hold an oral inquiry.
The Inquiry Officer proceeded with the
inquiry
and
examined
the
relevant
witnesses and documents after giving full
opportunity to the petitioner. The Court
finds from a perusal of the inquiry
proceedings, which has been annexed to
the counter affidavit that full opportunity
was given to the petitioner to defend
himself and that the principles of natural
justice, as embodied under Article 14 of
the Constitution of India, was fully
complied with. There was no violation of
the principles of audi alteram partem.

33. The Court, from a perusal of the
charge sheet, finds that the charges are not
complicated nor does it involve any
serious questions of law. No doubt the
charges were one of embezzlement and
fraud, which were serious in nature but
nonetheless
the
charges
were
not
complicated which required the assistance
of a Lawyer.

34. In the light of the aforesaid, the
Court is of the opinion that failure to
permit the petitioner to engage a Lawyer
was not violative of the principles of
natural justice in the instant case.

35. In the light of the aforesaid, the
Court does not find any error in the
impugned orders.

36. The writ petition fails and is
dismissed.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.02.2013

BEFORE
THE HON'BLE TARUN AGARWALA,J.

Civil Misc. Writ Petition No. 4537 of 2012

State Of U.P. Thru' Director, Printing and
Stationary

 ...Petitioner
Versus
Gulrej Ahmad And Another ...Respondents

Counsel for the Petitioner:
Arvind Kumar
Addl. C.S.C

Counsel for the Respondents:
Sri Satish Mandhyan
S.C.
Sri Sharad Mandhyan
Sri Manoj Kumar Sharma

Constitution of India, Article 226-award
directing reinstatement with 50 % back
wages-challenged by employer-on ground
no engagement by petitioner/employercertificate by Deputy Director Govt. Press
about working as Engraver-never issued
by
competent
authority-by
evidence
prayed that original record still with
employer-held-employer failed to prove
their stand of written statement-direction
for reinstatement with 50 % back wagesjustified.