JUDGMENT B.S. Chauhan, J.
1. This Special Appeal has been filed against the judgment and order dated 4th October, 2006 of a learned Judge of this Court, by which the writ petition filed by the present appellant for issuing a direction upon the respondents to grant him permission to have a lawyer as a defence nominee in disciplinary proceedings, has been dismissed.
2. The facts and circumstances giving rise to this case are that the petitioner-appellant, who is working as Head Cashier Category 'E', had been served with a charge sheet on 01.04.2006 and the respondent No. 5 had been appointed as Inquiry Officer. The petitioner-appellant made a representation before the respondent No. 4, the Disciplinary Authority, requesting him to accord permission to seek assistance from a lawyer. However, the said representation kjwas rejected vide order dated 28.04.2006. Being aggrieved, the petitioner- appellant challenged the said order by filing an appeal before the Appellate Authority and the Appellate Authority rejected the same vide order dated 20.05.2006. The said orders were challenged by filing the writ petition, which has been dismissed on the ground that the department was not being represented by lawyers and the case did not involve complicated legal issues as it was merely a case of financial irregularities. The learned Single Judge held that the provisions applicable for holding the enquiry is governed by Clause 12 of the Memorandum of Settlement reached between the parties, which is binding on them in view of the provisions of Section 18 of the Industrial Disputes Act, 1947. The said clause provides that a lawyer may be engaged as a defence nominee only with the permission of the Bank otherwise the employee can be represented through the registered trade union and as such the order of rejection of his application for seeking lawyer's assistance was not unreasonable and arbitrary.
3. Shri V. Pratap, learned Counsel appearing for the respondents has raised a preliminary objection regarding maintainability of the appeal contending that the provisions of Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 (hereinafter called the 'Rules') do not provide for Special Appeal in case the writ pettion before the learned Judge has been filed against the order of the Appellate Authority. It has been pointed out by Shri Pratap that in the instant case the application for having the lawyer's assistance has been rejected vide order dated 28.04.2006 and the appeal against the same was dismissed on 20.05.2006, therefore, the appeal is not maintainable. Even otherwise It is not a fit case where the appellate Court should interfere on merit as the lawyer's assistance is required only with the permission of the Bank and the permission has not been withheld on any unreasonable or arbitrary ground. In this case, no technical issues are involved; it is a plain and simple case of financial Irregularities and as the petitioner-appellant himself has sufficient experience of bank working, no interference is required and the appeal is liable to be dismissed.
4. On the contrary, Shri B.N. Singh, learned Counsel appearing for the petitloner-appellant has vehemently submitted that the appeal filed by the petitioner-appellant was not a statutory appeal but was merely a representation, and, therefore, the preliminary objection raised by the learned Counsel for the respodents is not tenable. On merit, it is submitted that as the appellant is not acquainted with the technical Rules of disciplinary proceedings, his application for seeking assistance of a lawyer ought to have been allowed and, therefore, the appeal deserves to be allowed.
5. We have considered the rival submissions made by learned Counsel for the parties and perused the record.
6. We shall first deal with the preliminary objection raised on behalf of the respondents that this Special Appeal is not maintainable. The provisions relating to Special Appeal are contained in Chapter VIII Rule 5 of the Rules and the same are reproduced below:
5. Special Appeal.- An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction) in respect of a decree or order made by a Court subject to the Superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of criminal jurisdiction (or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award - (a) of a Tribunal, Court or Statutory Arbitrator made or purported to be made in the exercise or purported of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution or (b) of the Government or any officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge.
7. A Division Bench of this Court in Vajara Yojna Seed Farm, Kalyanpur and Ors. v. Presiding Officer, Labour Court II, U.P., Kanpur and Anr. (2003) 1 UPLBEC 496, considered at length the maintainability of Special Appeals under certain circumstances and in relation to Sub-clause (b) of Rule 5 observed as follows:
The submissions made by Arvind Srivastava in Special Appeal No. 878 of 2002 are now to be considered. The first submission of Sri Srivastava is that order of the Appellate Authority falling within the excluded category of appeals have to be an order made by an authority exercising jurisdiction of a Court or Tribunal which has trapping of the Court. The submission is that Joint Director of Education does not have trapping of the Court or Tribunal while exercising the appellate jurisdiction, hence the appeal is not excluded. A plain reading of Chapter VIII, Rule 5 of the Rules of the Court clearly spells out that for attracting the last portion of Chapter VIII, Rule 5 of the Rules of the Court the only requirement is that the order should be of a Government or any officer or authority made or purported to be made in exercise or purported exercise of appellate or revisional jurisdiction under any such Act. Thus under any Uttar Pradesh Act or Central Act with respect to matter enumerated in State List or Concurrent List if any appellate or revisional jurisdiction has been exercised by an authority the special appeal is barred in that case. There is no scope of or reading any such appellate or revisional exercise of jurisdiction having trapping of Tribunal or Court. With regard to judgment and award of Tribunal, Court or Statutory Arbitrator, there is separate category as mentioned In Chapter VIII, Rule 5(a) of the Rules of the Court. Exercise of appellate or revisional jurisdiction has been separately and dealt with in Clause (b) of Chapter VIII, Rule 5 of the Rules of the Court and there is no justification for regarding in Clause (b) also that exercise of jurisdiction should be exercise of appellate or revisional jurisdiction as a Tribunal or Court. The Counsel for the respondents has rightly submitted that there is no need to consider the question as to whether Joint Director of Education while exercising the jurisdiction under Regulation 3, Chapter 2 of U.P. Intermediate Education Act, 1921 functions as a Tribunal. He submitted that even if the said Joint Director of Education does not function as Tribunal since-he exercised an appellate jurisdiction the special appeal is barred. We fully agree with the submission. There is no need to consider the question as to whether Joint irector of Education exercised jurisdiction as Tribunal or not. It is sufficient for the purposes of this case that Joint Director of Education exercises appellate jurisdiction under statutory regulations framed under U.P. Intermediate Education Act, 1921.
54. Sri Srivastava has heavily relied on Apex Court judgment in Jagwant Sugar Mill's case (supra) and has referred to Paragraph 11 of the aforesaid judgment.
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In the aforesaid judgment, Apex Court was considering the question as to whether appeal against the order of Conciliation Officer is maintainable under Section 4 of Industrial Disputes (Appellate Tribunal) Act, 1950. The Apex Court in that context examined the question as to whether when an authority which is under duty to act judicially is a Tribunal. As observed above, the plain words of Chapter VIII, Rule 5 of the Rules of the Court do not require that order by the Appellate Authority has to be an order by the Tribunal. Orders passed by appellate and revisional authorities under any U.P. Act or Central Act are dealt and in separate category whereas orders.passed by Tribunal and Court are dealt in separate category. By adopting golden rule of interpretation that when words in statute are clear and unambiguous the plain meaning of the words has to be taken, the special appeal is barred if it arises out of writ petition against an appellate order even though Appellate Authority is not a Tribunal or Court. Two Division Benches of this Court in Sita Ram Lal's case (supra) and S.B. Nath's case (supra) had occasion to consider the identical question i.e. whether an special appeal is barred under Chapter VIII, Rule 5 of the Rules of the Court against a judgment of Single Judge arising out of writ petition against the order of Joint Direction passed in exercise of power of Regulation 3, Chapter 2 of U.P. Intermediate Education Act, 1921. It was held by the Division Bench in Sita Ram Lal's case (supra) in Paragraph 9:
9. From the facts narrated above it is clear that there was a decision of the Committee of Management placing the appellant senior to respondent No. 4 and in pursuance of the said decision the list was prepared by the Committee of Management. The appellant had not taken any objection that there was no decision of Committee of Management and therefore, the appeal was not maintainable. The order, which was passed by the District Inspector of Schools, shall be treated in the exercise of the appellate jurisdiction under Clause (f) of Regulation 3 of the Regulations. Special appeal does not lie against an order passed in exercise of appellate jurisdiction by an authority under Rule 5 of the Chapter VIII of the Rules of the Court.
8. Shri V. Pratap, placing reliance upon the aforesaid observations made by this Court, has contended that the appeal had been filed under the Memorandum of Settlement reached between the parties under the provisions of Industrial Disputes Act, 1947 and, therefore, as the writ petition had been filed against an appellate order, the Special Appeal was not maintainable. He emphasized that it Is not necessary that the appellate order should have been passed under the provisions of the Act but even if such appellate jurisdiction is exercised under some Regulations framed under the Act, the appeal would not be maintainable.
9. Shri B.N. Singh, learned Counsel appearing for the appellant, however, placed reliance upon a Full Bench decision of this Court in the case of Committee of Management, Shri Kashi Raj mahavidyalaya Aurai, Bhadohi and Anr. v. Dy. Director of Education, Vth Region, Varanasi & Ors. 1996 AWC 1788 and contended that the Special Appeal was maintainable inasmuch as the Appellate Authority was not functioning as a Tribunal within the meaning of Rule 5 of Chapter VIII of the Rules while passing the appellate order. The said decision is not applicable because in the present case we are concerned with Clause (b) of Rule 5 for which the only requirement is that the order should be of a government or by any officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act. The Division Bench of this Court in Vajara Yojana Seed Farm (supra) dearly emphasized that there was no scope for reading any such appellate or revisional exercise having trapping of Tribunal of Court in Clause (b) since that related with Clause (a) only. We respectfully agree with the reasoning given in the aforesaid judgment and as the order that had been challenged in the writ petition out of which the Special Appeal arises, was an appellate order under the Memorandum of Settlement that have been arrived at under the provisions of the U.P. Industrial Disputes Act, 1947, the Special Appeal is not maintainable under Chapter VIII Rule 5 of the Rules. It is accordingly liable to be dismissed on this ground alone.
10. Even if, for the sake of argument, it is assumed that the appeal is maintainable, we do not find anything on merit. The statutory provisions applicable in the case are contained in Clause 12 of the Memorandum of Settlement, which is of a binding nature and which provides that an employee facing disciplinary proceedings may be represented by a registered trade union of the Bank employees of which he is a member and in case he is not a member of the trade union of the bank employees, by a representative of a registered trade union or at the request of a trade union, by the representative of the State federation or All India Organisation to which such union is affiliated. However, Clause (III) thereof reads as under:
III. With the Bank's permission for a lawyer.
11. Mr. Singh has submitted that as representation by a lawyer is permissible with the permission of the Bank under the said agreement, the question of rejecting his applications did not arise.
12. The issue involved herein is no more res Integra as the same has been considered by the Courts time and again.
13. In N. Kalandri and Ors. v. Tata Locomotive & Engineering Ltd. ; and the Dunlop Rubber Co. (India) Ltd. v. Their Workmen , the Hon'ble Supreme Court held that in domestic enquiry, right of the delinquent employee of being represented by a Lawyer or other employee would depend upon the Certified Standing Orders of the Employer or the Rules applicable in such a case. There is no right to representation as such unless the company, by Its Standing Order, recognises such a right.
14. In C.L. Subramaniam v. The Collector of Customs, Cochin , the Hon'ble Supreme Court held that right of being represented by a lawyer had to be considered in the light of the Statutory Rules. In that case, the Court dealt with the provisions of Sub-rule (5) of the Central Civil Services (Classification, Control & Appeal) Rules, 1967, which provided as under:
The Disciplinary Authority may nominate any person to present the case in support of the charges because the Authority enquiring into the charges, the Government servant may present his case with the assistance of any Government servant approved by the Disciplinary Authority, he may not engage a legal practitioner for the purpose unless the person nominated by the Disciplinary Authority, as aforesaid, is a legal practitioner or unless the Disciplinary Authority, having regard to the circumstances of the case, so permits.
(Emphasis added).
15. In the said case, the representative of the employer though was not a legal practitioner but was a legally trained prosecutor. The Hon'ble Supreme Court came to the conclusion that as the employer's case was handled by the trained prosecutor, the delinquent should have been allowed to be represented by the 'awyer for the reason that in such circumstances the cause of the delinquent may seriously be prejudiced and it may amount to denial of reasonable opportunity to defend himself.
16. Rule 16(5) of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 reads as under:
The Disciplinary Authority may nominate any person to present the case in support of the charges before the authority inquiring into charges (hereinafter referred to as the Inquiring Authority). The Government servant may present his case with the assistance of any other Government servant (or retired Government Servant) approved by the Disciplinary Authority, but may not engage a legal practitioner for the purpose unless, the person nominated by the Disciplinary Authority is a legal practitioner or unless the Disciplinary. Authority, having regard to the circumstances of the case, so permits.
17. While interpreting the said provisions, in State of Rajasthan v. S.K. Dutt Sharma 1993 Supp (4) SCC 61, the Hon'ble Apex Court held that the delinquent could not claim the assistance of the lawyer as a matter of right. More so, the gravity of the charges should also be taken into consideration in such a case as to whether the delinquent would be able to contest the charges.
18. While interpreting the said rule in case if Judicial Officers, a Division Bench of the Rajasthan High Court in Ravindra Nath v. State 1986 RLR 757, held that the Presenting Officer who is directly recruited to the RHJS from the bar stands on a better footing than a judicial officer who was promoted to the RHJS from the subordinate judiciary, in the matter of competence. In case the petitioner felt that a directly recruited judicial officer would be in a better position to represent his case he should have requested the disciplinary authority to appoint such an officer as the defence nominee. It cannot be said that the disciplinary authority has committed an error in rejecting the application of the petitioner to engage a legal practitioner and that the said refusal of the disciplinary authority to permit the petitioner to engage a legal practitioner has caused any material prejudice to the petitioner in defending himself.
19. In H.C. Sarin v. Union of India and Ors. , while interpreting the provisions of Rule 1730 of the Railways Establishment Code, the Apex Court took aid of the notes attached to the said Rules and held that in absence of the Statutory provision, the delinquent was not entitled for the assistance of a lawyer. While deciding the said case, the Court placed reliance on the judgment in R. v. Secretary of State for the Home Department Ex-parte Mughal (1973) 3 All ER 796, where it had been held as under:
The rules of natural justice must not be stretched too far. Only too often the people who have done wrong seek to invoke 'the rules of natural justice' so as to avoid the consequences.
20. In Sunil Kumar Banerjee v. State of West Bengal and Ors. , the Supreme Court considered the similar issue and observed as under:
The other circumstances were that (Enquiry Officer) did not permit the appellant to engage the lawyer and that he allowed the Presenting Officer to introduce extraneous matters. The rule gives a discretion to the Enquiry Officer to permit or not to permit a delinquent officer to be represented by a lawyer. In the present case, the appellant cross-examined the prosecution witnesses and also examined the defence witnesses. Thereafter when the matter was posted for argument and was adjourned at least once at the instance of the appellant, the examined the defence witnesses. Thereafter when the matter was posted for argument and was adjourned at least once at the instance of the appellant, the appellant came forward with an application seeking permission to engage a lawyer. The Enquiry Officer rejected the application and noticed that it was made at a very belated stage. We think, he was right in doing so; nor is it possible for us to infer bias from the circumstances that the Enquiry Officer did not allow the appellant to engage the lawyer. We cannot conceive of any prejudice resulting to him by denial of a lawyer.
21. In Board of Trustees of Port of Bombay v. Dilipkumar Raghavendranath Nadkami and Ors. , the Apex Court held that fair play in action requires that in a domestic inquiry, when the delinquent officer is pitted against a legally trained mind and if he seeks permission to appear through a legal practitioner, the refusal to grant this request would amount to denial of a reasonable opportunity to defend himself. The Court was interpreting the provisions of Regulation 12(8) of the Bombay Port Trust Employees Regulations, 1976, which was amended providing the assistance of a lawyer during pendency of the inquiry.
22. In Bhagat Ram v. State of Himalchal Pradesh and Ors. , the Apex Court examined the issue and came to the conclusion that a delinquent employee should not be at a comparative disadvantageous position when compared to the Disciplinary Authority represented by the Presenting Officer of a very high rank or much superior from the delinquent.
23. In Bharat Petroleum Corporation Ltd. v. Maharashtra General Kamgar Union and Ors. , the Hon'ble Supreme Court, after considering this issue in detail and after considering a large number of its judgments, held as under:
The basic principle is that an employee has no right to representation in the departmental proceedings by another person or a lawyer unless the Service Rules specifically provide for the same. The right to representation is available only to the extent specifically provided for in the Rules.
24. Similar view has been reiterated by the Hon'ble Supreme Court in CIPLA Ltd. and Ors. v. Ripu Daman Bhanot and Anr. .
25. Even otherwise, unless in a given situation, the aggrieved party makes out a case of prejudice or injustice, mere infraction of law will not vitiate the order/inquiry/selection.
26. In view of the above the law can be summarised that claim to have the legal assistance of a trained lawyer cannot be claimed as a matter of right. Rules/Standing Orders, applicable in the case. More so, the competent authority has to examine as to whether the delinquent employee is pitted against a trained legal prosecutor.
27. The instant case Is required to be examined in the light of the aforesaid settled legal propositions. In the present case, the employers have not engaged any trained legal person as the prosecutor and the case involves only financial irregularities and no complicated legal issues are involved. This apart, the petitioner-appellant had been working as Head Cashier for a considerable long period and, therefore, was well-conversant with the financial matters. In such circumstances, it cannot be said that the employers were not justified in rejecting the application filed by the petitioner-appellant for engagement of a lawyer to defend him in disciplinary enquiry. The judgment of the learned Judge, therefore, calls for no interference.
28. For all reasons stated above, the Special Appeal is liable to be dismissed and is accordingly dismissed.