Supplementary affidavit filed today, is taken on record.
Heard Shri Nasiruzzaman, learned counsel for the petitioner and Shri Ramesh Kumar Shukla, learned counsel appearing for the respondent-bank.
Petitioner, a bank employee, working on the post of Office Assistant/ Cashier was proceeded against by issuing charge sheet for acts of omission/commission of misconduct under the provisions of Aryavart Bank Vigilance Manual, 2020.
The petition is directed against the order dated 4 March 2021, passed by the third respondent, Enquiry Officer/ Senior Manager, Aryavart Bank, Mursan Gate Branch, District Hathras, whereby, application of the petitioner to appoint a retired employee as defence representative in the inquiry on behalf of the petitioner has been rejected.
Learned counsel for the petitioner submits that principles of natural justice require that defence representative as sought by the petitioner should have been appointed. Further, he submits that employee of the bank on being appointed defense representative would not be fair and just to the petitioner as he would be under the influence of the bank officials. Reliance has been placed on the decision rendered by Rajasthan High Court at Jodhpur in Ramesh Chandra Meena vs. The Rajasthan Marudhara Gramin Bank & others, passed in S.B. Civil Writ Petition No. 8363 of 2020, decided on 28 January 2021.
Per contra, learned counsel for the respondent-bank submits that similar plea was raised before this Court in Pankjesh v. Disciplinary Authority/ General Manager Aryavart Bank and others, (Writ-A No. 5039 of 2020), which came to be rejected vide judgment and order dated 28 July 2020, relying upon the provision 10.1.16 of the Aryavart Bank Vigilance Manual, 2020. Relevant portion of the order is extracted:
"It has been argued by learned counsel for the petitioner that though Radhe Shyam Yadav is an ex-employee of the bank but there is no bar for giving permission to appoint a retired employee as defence assistant.
To buttress the argument as advanced in defence in this writ petition, learned counsel for the petitioner has drawn attention of the Court towards Regulation 44 of the Allahabad U.P. Gramin Bank (Officers and Employees) Service Regulations, 2010 which reads as under:
"44. Restriction on engagement of a Legal Practitioner- For the purposes of any enquiry under these regulations, the officer or employee shall not engage a legal practitioner without prior permission of the Competent Authority."
Per contra, learned counsel for the respondent has argued that correct position of law has not been brought on record. He submits that restriction on engagement of legal practitioner is different aspect of the matter and petitioner was required to bring on record the rules and regulations for providing appointment of defence assistant in a departmental proceedings.
He has drawn attention of the Court towards Chapter V-A of the Vigilance Manual of bank which provides that any person who is a working employee can be appointed as defence assistant and not an ex- employee. Learned counsel for the respondent has shown relevant provisions as quoted hereinbelow.
"5. DEFENCE ASSISTANT/DEFENCE REPRESENTATIVE:
FOR OFFICER The officer employee may take the assistance of any other office employee by applying for "Defence Assistant" with the consent letter of the officer whom the chargeD officer wants as his "Defence Assistant" only after getting the permission of the Competent Authority. The Competent Authority will consider the request and take appropriate decision. The charged officer will be advised in writing regarding the permission or otherwise.
A request for "Defence Assistant" will not be considered where the request is made to permit such an officer to be appointed as "Defence Assistant"-
a) who is not in active service of the Bank i.e. who has been dismissed/ terminated/retired by way of compulsorily retirement or VRS or superannuation/ under suspension for any reason.
b) Who has already two pending disciplinary cases on hand in which he has to give assistance. In other words, the "Defence Assistant" should not be handling more than two cases at any point of time as "Defence Assistant"
Learned counsel for the petitioner could not dispute the above legal aspect of the matter and so in view of the above no directions can be issued as sought for in the writ petition to appoint Radhe Shyam Yadav an ex-employee of the bank, as defence assistant in the departmental proceedings in question.
Writ petition is misconceived and is, accordingly, dismissed.
However, it is left open for the petitioner to apply afresh for appointment of employee of the bank as defence assistant, if he is so advised and in the event any such application is moved, the same shall be considered on its own merit without being influenced by the order of dismissal of this writ petition."
Learned counsel for the petitioner, on being confronted with the decision, does not dispute the proposition of law, as there is specific provision under the Manual barring engaging of a retired employee as defence representative.
In view thereof, writ petition is dismissed.
After dismissal of the petition, learned counsel for the petitioner submits that the Enquiry Committee has closed inquiry without the petitioner being afforded opportunity to defend his case.
Learned counsel for the respondent-bank submits that in the event of the petitioner making an application before the Enquiry Committee, it is expected that the Enquiry Committee shall considered the same on merit as per the rules.
In view of the statement of learned counsel appearing for the respondent-bank, no further order is required to be passed.
Order Date :- 25.8.2021 Mukesh Kr.