M.R. Gangadharan v. Kerala Gramin Bank

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY, THE 4TH DAY OF APRIL 2018 / 14TH CHAITHRA, 1940** **WP(C).No. 8154 of 2018** ## **PETITIONER(S)** **M.R.GANGADHARAN, SON OF K.KELAPPAN, AGED 60 YEARS, ASSISTANT MANAGER(RETIRED), KERALA GRAMIN BANK, REGIONAL OFFICE, MALAPPURAM, RESIDING AT KIZHAKKE NAMATH HOUSE, P.O.KADIRUR, THALASSERY-670 642.** **BY ADVS.SRI.V.A.MUHAMMED SRI.M.SAJJAD** ## **RESPONDENT(S):** **1. THE GENERAL MANAGER, KERALA GRAMIN BANK, HEAD OFFICE, KGB TOWERS, A.K.ROAD, MALAPPURAM-676 505.** ## **2. THE CHIEF MANAGER,** **KERALA GRAMIN BANK, HEAD OFFICE, KGB TOWERS, A.K.ROAD, MALAPPURAM-676 505.** **3. SRI.PRABHAKARAN V.M., (ENQUIRY OFFICER), CHIEF MANAGER, KERALA GRAMIN BANK REGIONAL OFFICE, KASARAGOD-671 001.** **R1 & R2 BY ADV. SRI.T.R.RAVI, S.C** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Msd.** **06.04.2018** **WP(C).No. 8154 of 2018 (T)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** - **EXHIBIT P1 TRUE COPY OF THE MEMO OF CHARGES DATED 24.04.2017. EXHIBIT P2 TRUE COPY OF THE STATEMENT OF DEFENCE OF THE PETITIONER DATED 13.05.2017. EXHIBIT P3 TRUE COPY OF THE LETTER FROM THE CHIEF MANAGER DATED 10.04.2017. EXHIBIT P4 TRUE COPY OF THE CONGRATULATION LETTER BY THE GENERAL MANAGER DATED 29.04.2014. EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.30749/2017 DATED 07.02.2018. EXHIBIT P6 TRUE COPY OF THE LETTER OF THE GENERAL MANAGER DATED 13.07.2017. EXHIBIT P7 TRUE COPY OF THE ENQUIRY NOTICE ISSUED BY THE 3RD RESPONDENT DATED 17.02.2018. EXHIBIT P8 TRUE COPY OF THE LETTER OF THE PETITIONER SUBMITTED BEFORE THE ENQUIRY OFFICER DATED 01.03.2018. EXHIBIT P9 TRUE COPY OF THE PROCEEDINGS OF THE ENQUIRY AUTHORITY DATED 03.03.2018. EXHIBIT P10 TRUE COPY OF THE COMMUNICATION OF THE ENQUIRY OFFICER DATED 05.03.2018. EXHIBIT P11 TRUE COPY OF THE RELEVANT PAGE OF THE SERVICE REGULATIONS OF THE KERALA GRAMIN BANK 2013. EXHIBIT P12 TRUE COPY OF THE LETTER OF THE PETITIONER DATED 20.03.2018.** - **RESPONDENT(S)' EXHIBITS :** **NIL** **//TRUE COPY//** **P.S.TO JUDGE** **Msd. 06.04.2018** ## _**P.V.ASHA, J.**_ -------------------------W.P(C) No.8154 of 2018-T ------------------------------------------- _Dated this the 4[th] day of April, 2018_ ## _**JUDGMENT**_ The petitioner, who retired from service on 30.04.2017 while working as an Assistant Manager in the Kerala Gramin Bank, has filed this writ petition aggrieved by the refusal on the part of the respondents to allow him to engage a legal practitioner to defend him in the departmental enquiry which is being conducted against him. 2. Pursuant to Ext.P1 memo of charges issued to the petitioner, the 1[st] respondent, as per Ext.P6 order, appointed the 3[rd] respondent as enquiry officer, to enquire into the charges against the petitioner. The enquiry officer, as per Ext.P7 notice dated 17.02.2018, requested the petitioner to appear for the enquiry scheduled to be held on 03.03.2018. He was informed that he would be permitted to be defended by any other officer employee of the Bank, without dispensing with his attendance. Thereupon the petitioner submitted Ext.P8 representation before the enquiry Officer requesting to permit him to engage a legally trained person to defend him in the enquiry 2 W.P(C) No.8154 of 2018-T and to adjourn the enquiry by a week. He stated that if an employee of the respondent Bank is engaged he will always lean to the prosecution, since he would be concerned about his future prospects in the Bank. He therefore requested to permit him at least to engage a retired Bank Officer. The enquiry officer forwarded the representation to the competent authority and thereafter as per Ext.P10 letter informed that the competent authority has not permitted to engage a legally trained person for defending his case. He was informed that he would be permitted to be defended by any other officer of the Bank. The writ petition is filed at this stage pointing out that the petitioner would not get justice by the action of the respondents. 3. Subsequent to the filing of the writ petition, the petitioner filed I.A.Nos.5951 and 5952 of 2018 producing Ext.P12 application submitted by him before the enquiry officer on 20.03.2018 to permit him to avail the services of any retired Bank Officer, sans Kerala Gramin Bank. 4. The learned Standing Counsel for the 1[st] respondent, filed a statement, stating that the competent authority, had already rejected the request of the petitioner for engagement of a legal practitioner and had permitted the services of a serving employee of the bank, though the petitioner does not have any legal right to be represented by another person 3 W.P(C) No.8154 of 2018-T unless the rules prescribe so. It is stated that the presenting officer is not a legally trained person and therefore the request of the petitioner cannot be allowed. 5. The learned counsel for the petitioner submits that Regulation 44 of the Kerala Gramin Bank (Officers and Employees) Service Regulations, 2013 (hereinafter referred to as 'Regulations') provides for engagement of a legal practitioner with the permission of a competent authority. According to the learned Counsel for the petitioner, permission of competent authority is required only for engagement of a legal practitioner; there is no prohibition in engaging any defence assistant other than a legal practitioner. Therefore, the petitioner submits that in case the assistance of at least a retired Bank Officer is not allowed, it would amount to violation of principles of natural justice; any officer or employee, who is in the service of the Bank will not speak agaainst the Bank and in effect he would be undefended. 6. On the other hand Sri. T.R. Ravi, the learned Standing Counsel argued that in the absence of any specific provision, the petitioner cannot have any right to avail defence assistant. When Regulation 44 insists permission for engagement of a legal practitioner, that does not mean that 4 W.P(C) No.8154 of 2018-T the petitioner can avail the assistance of anybody else. The learned counsel for the respondent relying on the judgment of the Apex Court in _**Railway Protection Force v. K.Raghuram Babu :**_ (2008) 4 SCC 406, argued that the petitioner does not have any right to insist that he should be given defence assistant. 7. I have considered the contentions raised on both sides. In _**Raghuram Babu**_ 's case ( _supra_ ) the Apex Court was considering the provisions contained in Rule 153.8 of the Railway Protection Force Rules, 1987, under which a friend could be engaged as a defence assistant; but he shall not be allowed to address the enquiry officer or to cross examine the witnesses. The Apex Court, after analysing the issue in the light of a series of judgments on the right to have a defence assistance, to a delinquent employee, held that restricted right of representation alone is granted under Rule 153.8 and even if no right of assistance has been granted in the Rules, there would be no illegality or unconstitutionality. The appeal filed by the RaIlway Protection Force was allowed. The Apex Court reiterated the proposition of law down in _**N.Kalindi v. Tata Locomotive and Engg. Co. Ltd.**_ . [AIR 1960 SC 914], _**Brooke Bond India (P) Ltd. v. Subba Raman**_ [(1961) 2 LLJ 417(SC), _**Cipla Ltd. v. Ripu Daman Bhanot**_ [(1999) 4 SCC 5 W.P(C) No.8154 of 2018-T 188] and _**Bharat Petroleum Corpn. Ltd. v. Maharashtra General Kamgar Union**_ [(1999) 1 SCC 626] and held that there is no vested or absolute right in any chargesheeted employee to representation. 8. From a reading of the Regulation 44, it would appear that restriction is only for availing the services of a legal practitioner and that the delinquent employee can avail the service of anybody else other than a legal practitioner. But it is relevant to note paragraph 11 of the judgment in _**Raghuram Babu's case (supra)**_ where the Apex Court held as follows: “11. Following the above decision it has to be held that there is no vested or absolute right in any charge-sheeted employee to representation either through a counsel or through any other person unless the statute or rules/standing orders provide for such a right. Moreover, the right to representation through someone, even if granted by the rules, can be granted as a restricted or controlled right. Refusal to grant representation through an agent does not violate the principles of natural justice.” 9. In the light of the aforesaid proposition of law laid down by the Apex Court, the Regulation 44 cannot be interpreted to mean that the services of anybody can be insisted by the petitioner for his defence. Therefore, I am unable to accept the contention raised by the petitioner. Unless there is a specific provision for engaging a defence assistant specifically provided in the regulation, the petitioner cannot claim that he should be permitted to avial the services of a defence assistant. W.P(C) No.8154 of 2018-T 6 In the above circumstances, the writ petition is dismissed. Sd/- _**(P.V.ASHA, JUDGE)**_ _rtr/_