P.K. Madhavan v. Andaman And Nicobar State Cooperative Bank Limited And ANR.
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction Appellate Side [ CIRCUIT BENCH AT PORT BLAIR ] ...
WPA/116/2022 P.K. Madhavan ... Petitioner Vs.
The Andaman & Nicobar State Cooperative Bank Ltd and anr.
... Respondents Mr. Gopala Binnu Kumar ... for the petitioner Mr. Alisham Venkatesh ... for the respondents August 25, 2022 [SR] Item No.2 The petitioner retired from the Andaman and Nicobar State Cooperative Bank Limited on 31.7.2021 as a Senior Manager. The petitioner is aggrieved by a communication dated 20.4.2022 from the Managing Director of the respondent Bank refusing a Defence Assistant to represent the petitioner in a disciplinary proceeding initiated against the petitioner while the petitioner was serving in the Bank. Learned counsel appearing for both the parties rely on the Rule 81(i)(c) of the relevant Rules which provide for assistance to an employee for the purpose to defending himself/herself in a disciplinary proceeding. According to counsel appearing for the petitioner, the relevant Rules should be read so as to permit the petitioner to participate in the inquiry by engaging one Shri Abdul Rehman (Retd.), Head Clerk of the Andaman and Nicobar Administration as a
Defence Assistant of the petitioner. Counsel appearing for the respondents opposes the prayer and relies on the Rule to submit that the Rule makes it clear as to who can be the Defence Assistant of the petitioner.
The impugned letter dated 20.4.2022 does not articulate a refusal in the strict sense of the term but merely reiterates the contents made in a letter of 30.3.2022. Both the letters of 20.4.2022 and 30.3.2022 have been written by the Managing Director of the Bank. The letter dated 30.3.2022 states that there is no provision in the Rule 81(i)(c) for providing the service of the Defence Assistant by the Disciplinary Authority but that the petitioner has right to engage a Defence Assistant as provided under the relevant rules.
The relevant Rules in the present case is Rule 81(i)(c) of the Andaman and Nicobar Islands Cooperative Societies Employees Service (Qualifications and Conditions of Service) Rules, 2017 as notified on 20.4.2017.
Rule 81(i) - "Disciplinary Proceedings - begins with the following sub-rule:- "The disciplinary proceedings against an employee shall be conducted by the Inquiring Officer (referred to in sub-rule (iv) below) with due observance of the principles of natural justice for which it shall be necessary that".
Rule 81(i)(c) provides the following - "The employees shall have the right to defend himself/herself through a nominee of the Union of which he/she is a member or a co-worker. But no employee shall have the right to engage an advocate or a lawyer unless the Presenting Officer is a practicing lawyer or a legal practitioner and in other cases if the employer agrees to such defence."
The respondents rely on sub-rule (c) of Rule 81(i) to contend that the petitioner cannot be permitted to engage a Defence Assistant other than those noted under Rule 81(i)(c). It can be seen from the relevant sub-rule that an employee has the right to defend himself/herself through (a) a nominee of the Union of which the employee is a member or (b) a co-worker.
It is an admitted fact that the respondents/Bank does not have a Union at present. The option of the co-worker is also not available to the petitioner as stated in the relevant portion of the writ petition. According to the statement made, since the Managing Director has initiated the disciplinary proceedings against the petitioner, none of the petitioner's erstwhile co-workers are willing to come forward to assist the petitioner in the disciplinary proceedings. The petitioner has also stated that the co-workers do not have necessary knowledge required to assist the petitioner in the proceeding. Notably, Rule 81(i) provides for "due observance of the principles of natural justice......" This means that an employee who is at the receiving end of a disciplinary proceeding must not only have an adequate opportunity of being heard but also an opportunity of hearing which is effective. The petitioner seeks assistance of one Mr. Abdul Rehman, as stated above, who is neither an Advocate nor a lawyer coming within the specific bar under Rule 81(i)(c).
This Court is hence unable to comprehend the reason behind the impugned refusal on the part of the Bank to allow
the said Mr.Rehman to act as the Defence Assistant of the petitioner. If the relevant Rule mandates adherence to the principles of natural justice, the petitioner must be given an opportunity to effectively represent himself in the disciplinary proceedings through a Defence Assistant who is in the know of relevant facts and is not a lawyer or an Advocate which is well within the purview of Rules 81(i)(c).
Having found the case made out by the petitioner to be acceptable and the indisputed position of a non-existence Union and the practical reality of getting a co-worker to depose against the Managing Director, this Court is inclined to allow the prayer in the writ petition.
WPA/116/2022 is accordingly allowed by quashing the communications dated 30.3.2022 and 20.4.2022 by which the petitioner has been denied the option of engaging the proposed Defence Assistant. The respondent -Bank is directed to allow the petitioner to engage the Defence Assistant as prayed for in the petitioner's letter dated 3rd February, 2022. The writ petition is disposed of in terms of the above. ( Moushumi Bhattacharya, J.)