Employee Has No Absolute Right To Be Represented In Departmental Proceedings Through Agent Of His Choice: Supreme Court

The Supreme Court observed there is no absolute right in favour of the delinquent employee to be represented in the departmental proceedings through the agent of his choice and the same can be restricted by the employer.

In this case, High Court has permitted the delinquent employee who is facing disciplinary proceedings to represent through ex-­employee of the Bank. It was observed that the Regulation 44 only restricts representation by a legal practitioner, and even that too is permissible of course with the leave to the competent authority, and there is no complete or absolute bar even on engaging a lawyer, the employee cannot be restrained from availing services of retired employee of a Bank.

The question raised in appeal filed by the bank was whether the  employee, as a matter of right is entitled to avail the services of an Ex-employee of the Bank as his DR in the departmental proceedings ?

The court noted that the Regulation neither restricts nor permits availing the services of any outsider and / or ex­-employee of the Bank as DR and to that extent Regulation is silent. But it noticed that the Clause 8 of the Handbook Procedure specifically provides that DR should be serving official / employee from the Bank.  The bench comprising Justices MR Shah and Sanjiv Khanna observed:

If the reasoning of the High Court is considered, the High Court is of the opinion that as there is no complete or absolute bar even on engaging a lawyer, it is difficult to accept that a retired employee of the Bank cannot be engaged to represent a delinquent officer in the departmental inquiry. However, the High Court has not appreciated the effect of the Handbook. As per The High Court has considered Regulation 44 of the Regulation, 2010, however has not considered clause 8 of the Handbook Procedure on the ground that the same cannot be said to be supplementary. However, we are of the opinion that Handbook Procedure can be said to be supplementary. The same cannot be said to be in conflict with the Regulation 44 of Regulation, 2010. As observed herein above, neither Regulation 44 permits nor restricts engagement of an ex­employee of the Bank to be DR. Therefore, Clause 8.2 cannot be said to be in conflict with the provisions of Regulation, 2010. Provisions of Regulation, 2010 and the provisions of Handbook Procedure are required to be read harmoniously, the result can be achieved without any violation of any of the provisions of Regulation, 2010 and the Handbook Procedure. The objects of Regulation 44 of Regulation, 2010 and Clause 8 of the Handbook Procedure seem to be to avoid any outsider including legal representative and / or even ex-­employee of the Bank. At the cost of repetition, it is observed that there is no absolute right in favour of the delinquent officer's to be represented in the departmental proceedings through the agent of his choice and the same can be restricted by the employer. (Para 7)

The Court added that not permitting the delinquent officer to be represented through ex­-employee of the Bank in the departmental enquiry cannot be said to be in in any way in breach of principles of natural justice and / or it violates any of the rights of the delinquent officer. While setting aside the High Court judgment, the court further added:

"As per settled proposition of law and as observed herein above, in decisions referred to herein above, the only requirement is that delinquent officer must be given fair opportunity to represent his case and that there is no absolute right in his favour to be represented through the agent of his choice. However, at the same time, if the charge is severe and complex nature, then request to be represented through a counsel can be considered keeping in mind Regulation 44 of Regulation, 2010 and if in a particular case, the same is denied, that can be ground to challenge the ultimate outcome of the departmental enquiry. However, as a matter of right in each and every case irrespective of whether charges is severe and complex nature or not, the employee as a matter of right cannot pray that he may be permitted to represent through the agent of his choice." (Para 8)

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