caselaws
Supreme Court of India
The Rajasthan Marudhara Gramin … vs Ramesh Chandra Meena on 4 January, 2022Author: M.R. Shah
Bench: M.R. Shah, B.V. Nagarathna
[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 7451 of 2021
The Rajasthan Marudhara Gramin Bank …Appellant (s)
(RMGB) & Anr.
Versus
Ramesh Chandra Meena & Anr. …Respondent (s)
JUDGMENT
M. R. Shah, J.
1.0. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 07.07.2021 passed by the
High Court of Judicature for Rajasthan at Jodhpur in
D.B. Special Appeal Writ No.311 of 2021, by which,
Signature Not Verified
Digitally signed by R
Natarajan
the Division Bench of the High Court has dismissed
Date: 2022.01.04
16:52:34 IST
Reason:
the said Appeal and has confirmed the judgment and
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order dated 28.01.2021 passed by the learned Single
Judge, by which, the learned Single Judge allowed the
writ petition preferred by the respondent herein
(hereinafter referred to as the “original writ petitioner”)
and directed the appellant Bank to allow the original
writ petitioner to be represented by a retired employee
of the Bank in the departmental inquiry, the Appellant
Bank has preferred the present appeal.
2.0. The facts leading to the present appeal in nutshell are
as under:
2.1. That the respondent herein – original writ petitioner
was working as Cashier – cum Clerk (office Assistant).
While working as a Branch Manager is alleged to had
committed certain irregularities amounting to
misconduct. A show cause notice was issued by the
Bank dated 24.4.2019 whereby it was stated that
while working at Rawastar Branch, he had committed
irregularities while granting loans to farmers /
villagers under the loan scheme and he did not take
adequate precautions and without written mandates of
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borrowers, he transferred the loan amount in favour of
another person and had thus committed misconduct.
One another similar show cause notice was issued on
dated 24.6.2019. Departmental Inquiry was initiated
against him. A chargesheet dated 1.11.2019 was
served upon the original writ petitioner by the Bank in
terms of Rajasthan Marudhara Gramin Bank (Officers
and Employees) Service Regulation, 2010 (hereinafter
referred to as the “Regulation, 2010”). A written reply
was submitted by the original writ petitioner to the
chargesheet issued. He denied the charges leveled
against him. Not satisfied with the reply, the Bank
initiated departmental inquiry. One Shri K.C. Gupta
was appointed as an Enquirer Officer. An opportunity
was afforded to the original writ petitioner to take
assistance of a defence representative (hereinafter
referred to as “DR”) in accordance with Regulation,
2010 as also in accordance with guidelines issued by
the Bank. However, the original writ petitioner
informed the Enquiry Officer that he may be allowed to
defend himself in the inquiry through a legal
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practitioner. Keeping in view the restrictions under
Regulation 44 of the Regulation, 2010 on engagement
of legal practitioner during the inquiry, vide
communication dated 17.3.2020, his request
permitting him to defend himself through a legal
practitioner came to be declined by the Enquiry
Officer. A request was made to the Disciplinary
Authority by the original writ petitioner permitting him
to engage a legal practitioner as his DR. Having
considered that no complicated legal question has
been involved in the matter and the Presenting Officer
appointed by the Disciplinary Authority is neither Law
Officer nor a legal practitioner and keeping in mind the
Regulation 44 of Regulation, 2010 on engagement of
legal practitioner during the inquiry, the request to
permit him to represent through legal practitioner
came to be declined by the Disciplinary Authority,
which was communicated to him vide communication
dated 27.5.2020. Again a request was made by the
original writ petitioner to permit him to engage a legal
practitioner as his DR in the inquiry proceedings,
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which again came to be rejected. During the inquiry
proceedings on 11.08.2020, the original writ petitioner
submitted a consent letter of one Shri Mahesh Kumar
Atal to be engaged as his DR. The said request was
turned down. Again a request was made to permit him
to engage any legal practitioner or any retired officer
from the Bank as his DR, which again came to be
turned down by the Disciplinary Authority. Aggrieved
by the order passed by the Disciplinary Authority
dated 19.08.2020, the original writ petitioner
approached the High Court by way of SB Civil Writ
Petition No.8363 of 2020 inter alia, praying that he
may be permitted to engage any legal practitioner or
retired officer of the Bank as his DR. The said writ
petition was opposed by the Bank. Regulation 44 of
Regulation, 2010 and the Circular dated 31.01.2014
as also the guidelines issued by the Bank in respect of
disciplinary proceeding that no outsider, not
associated with the Bank can be permitted to act as a
DR were pressed into service. That by judgment and
order dated 28.1.2021, the learned Single Judge
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allowed the said writ petition and directed the Bank to
permit the original writ petitioner to be represented
through retired officer of the Bank in the disciplinary
proceedings. Feeling aggrieved and dissatisfied with
the judgment and order passed by the learned Single
Judge, the Bank preferred appeal before the Division
Bench of the High Court. By impugned judgment and
order, the Division Bench of the High Court has
dismissed the said appeal mainly on the ground that
since circular dated 31.1.2014 and the Regulation 8.2
did not prohibit the utilization of the services of ex
employee of the Bank, therefore, judgment and order
passed by the learned Single Judge is not to be
interfered with.
2.2. Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the High Court
directing the Bank to permit the original petitioner to
be represented through retired officer of the Bank in
the disciplinary proceedings, the Bank has preferred
present appeal.
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3.0. Shri Rishabh Sancheti, learned counsel appearing for
the appellant has vehemently submitted that in the
facts and circumstances of the case, the High Court
has committed a grave error in directing the appellant
Bank to permit the respondent original writ petitioner
to be represented through retired officer of the Bank in
the disciplinary proceedings.
3.1. It is submitted that the High Court has not at all
adverted to Regulation 8.2 of the Handbook of
Vigilance Administration & Disciplinary Action
(hereinafter referred to as the “Handbook Procedure”)
which has been duly approved by the Board of the
Bank and applicable to all kind of matters.
3.2. It is vehemently submitted that Regulation 8.2 of the
Handbook Procedure specifically provides that the
defence representative should be serving official /
employee from the Bank. It is submitted that the
provisions of Handbook Procedure are binding on all
the employees and applicable to all kind of matters. It
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is submitted that even there was no challenge to
Regulation 8 of the Handbook Procedure by the
original writ petitioner.
3.3. It is further submitted that High Court has not
properly appreciated the fact that provisions of
Regulation, 2010 are to be read with Handbook
provisions in a harmonious manner.
3.4. It is further submitted that High Court has erred in
construing Regulation 44 as permitting outsiders into
a disciplinary inquiry. It is submitted that in fact
Regulation 44 restricts legal practitioner to be DR
without prior permission. It is submitted that
Regulation 44 can in no manner can be construed to
mean that it permits all outsiders except lawyers. It is
submitted that this is so, since 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 provides
for the same. It is submitted that right to
representation is available only to the extent
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specifically provided for in the Rules. Reliance is
placed on the decisions of this Court in the case of P.
Raghava Kurup & Anr. v. V. Ananthakumari & Anr.
reported in (2007) 9 SCC 179; N. Kalindi & Ors. v.
Tata Locomotive & Engg. Co. Ltd reported in (1960)
3 SCR 407; National Seeds Corporation Limited vs.
K.V. Rama Reddy reported in (2006) 11 SCC 645 and
Bharat Petroleum Corporation Limited v.
Maharashtra General Kamgar Union & Ors. reported
in (1999) 1 SCC 626.
3.5. It is submitted that right to representation in the
inquiry can be restricted, controlled or regulated by
the Statute, Service Rules, Regulations or Standing
Orders and the extent of representation in any enquiry
has to be in accordance with the Statute, Service
Rules, Regulations or Standing Orders etc. In support
of above submission, reliance is placed on the decision
of this Court in the case of Cipla Limited & Ors v.
Ripu Daman Bahnot & Anr. reported in (1999) 4 SCC
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188; in the case of Crescent Dyes & Chemicals
Limited v. Ram Naresh Tripathi reported in (1993) 2
SCC 115 and in the case of Indian Overseas Bank vs.
Indian Overseas Bank Officer’s Association and
Another reported in (2001) 9 SCC 540.
3.6. It is further submitted that as held by this Court in the
case of Bharat Petroleum Corporation Limited
(supra) there should be minimum intervention of any
outsider / legal practitioner in departmental
proceedings and the choice, if granted by the Statute,
Service Rules, Regulations or Standing Orders, cannot
be allowed to travel beyond the Statutes / Service
Rules/ Regulations/ Standing Orders.
3.7. It is submitted that in the present case the service
conditions of the employee of the bank are governed by
Regulation, 2010, which do not contain any provision
enabling the Candidate under the enquiry to have any
defence representative outside the employees of the
Bank. It is submitted that the object and purpose of
Regulation 44 was to keep a check on frivolous and
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unnecessary request made for legal practitioner if the
facts and situation do not demand so. It is submitted
that Handbook Procedure issued by the Vigilance
Department of the Bank which was duly approved by
the Board also do not allow the employee to choose
any outsider or a legal practitioner as his defence
representative and the same is expressly provided
under Clause 8 of Chapter VIII of the Handbook
Procedure.
3.8. It is submitted that the impugned judgment and order
has created an anomalous situation where:
I. Exemployees who themselves may have been
subject of a disciplinary enquiry/ chargesheeted /
dismissed from service are also enabled to act as
Defence Representatives.
II. Exemployees who were part of Vigilance or Audit
Sections who come across a lot of information of
confidential nature are enabled to act as Defence
Representatives, which would result in grave
injustice.
III. The solemn nature of proceedings is taken away
and would result in issues of orderliness as well
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as decorum when a disgruntled exemployee is
enabled to act as a Defence Representative. CVC
Circular no.19.9.2021 dated 6.10.2021 prescribes
the time limit for completion of departmental
enquiry within 6 months and the same has
adopted in the Vigilance Handbook page no.55
para 7.2. If an outsider gets permitted completion
of departmental inquiry within prescribed time
limit shall be a problem.
IV. It is a matter of record that presently in almost all
the pending Disciplinary enquiries, most of the
Employees under enquiry are now asking for
retired officials to act as Drs.
3.9. It is submitted that aforesaid aspect has not at all
been considered by the High Court while permitting
the respondent employee to allow exemployee as his
DR.
Making the above submissions, it is prayed to
allow the present appeal.
4.0. Learned counsel appearing for the respondent has
submitted that Regulation 44 of the Regulation 2020
do not bar engagement of retired employee of the Bank
to act as a DR. It is submitted that the only bar under
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the Rules and the Regulation is with regard to
appointment of legal practitioner as a DR without
permission of the Bank. It is submitted that therefore,
the High Court has rightly directed the Bank to permit
the respondent employee to avail service of the retired
employee of the Bank as defence representative.
4.1. It is submitted that Handbook of Vigilance
Administration and Disciplinary Action dated
15.3.2019 are not binding rules or guidelines and are
merely directory in nature.
4.2. It is submitted that on conjoint reading of Clause 7.2
and Clause 8.2 of Handbook Procedure would mean
that only officer who is junior to the presenting officer
and Enquiry Officer can be appointed as DR. It is
submitted that this would result in gross miscarriage
of justice and in violation of principles of natural
justice.
4.3. It is submitted that judgments cited by the learned
counsel for the appellant shall not be applicable to the
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facts of the present case as every bank has its own
Rules and Regulations. It is submitted that in the
present case there is no specific bar in the service
regulation in engaging retired employee of the Bank as
defence representative. It is submitted that therefore,
in absence of any specific bar and considering the
Regulation 44, the High Court has not committed any
error.
4.4. It is submitted that similar question came up for
determination before the High Court of Allahabad in
the case of Rakesh Singh vs. Chairman and
Disciplinary Authority and Another in Writ Appeal
No. 64711 of 2013 wherein the High Court has held
that in absence of any specific bar in the Regulation,
the denial of the right to engage a retired employee of
the Bank as defence representative is not justified. It is
submitted that said judgment of the Allahabad High
Court has been affirmed by this Court and the SLP
against the said judgment and order has been
dismissed.
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Making the above submissions and relying upon
the above decisions, it is prayed to dismiss the present
appeal.
5.0. Heard the learned counsel for the respective parties at
length. By the impugned judgment and order, the High
Court has permitted the respondent employee who is
facing disciplinary proceedings to represent through
exemployee of the Bank. While permitting the
respondent employee, the High Court while construing
Regulation 44 of Regulation, 2010 has 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.
However, it was the specific case on behalf of the Bank
that in view of circular dated 31.01.2014 and clause
8.2 of the Handbook Procedure, the DR should be a
serving official / employee from the Bank. Therefore,
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the short question which is posed for consideration of
this Court is whether the respondent 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 ?
6.0. While considering the aforesaid issue, few decisions of
this Court on the right of the employee to make
representation in the Departmental Proceedings are
required to be referred to.
6.1. In the case of Kalindi and Ors (supra), it is observed
and held that ordinarily in inquiries before domestic
tribunals the person accused of any misconduct
conducts his own case and therefore, it is not possible
to accept the argument that natural justice exfacie
demands that in the case the enquiries into a
chargesheet of misconduct against a workman he
should be represented by a member of his Union;
though ofcourse an employer in his discretion can
and may allow his employee to avail himself of such
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assistance. The dictum of this decision has been
subsequently elucidated.
6.2. In the case of the Dunlop Rubber Co. (India) Ltd v.
Workmen reported in (1965) 2 SCR 139, after
considering its earlier decision in the case of Kalindri
and ors (supra), it is observed and held that there is
no per se right to representation in the departmental
proceedings through a representative through own
union unless the company by its Standing Order
recognized such a right. It is observed that refusal to
allow representation by any Union unless the Standing
Orders confer that right does not vitiate the
proceedings. It is further observed that in holding
domestic enquiries, reasonable opportunity should be
given to the delinquent employees to meet the charge
framed against them and it is desirable that at such
an enquiry the employee should be given liberty to
represent their case by persons of their choice, if there
is no standing order against such a course being
adopted and if there is nothing otherwise objectionable
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in the said request. It is further observed that denial
of such an opportunity cannot be said to be in
violation of principles of natural justice.
6.3. In the case of Cipla Ltd. and Ors (supra), it is
observed and held as under:
“13. In N. Kalindi v. Tata Locomotive & Engg. Co Ltd,
it was held that a workman against whom a
departmental enquiry is held by the Management has
no right to be represented at such enquiry by an
outsider, not even by a representative of his Union
though the Management may in its discretion allow
the employee to avail of such assistance. So also in
Dunlop Rubber Company vs. Workmen, 1965 (2) SCR
139 = AIR 1965 SC 1392 = 1965 (1) LLJ 426, it was
laid down that an employee has no right to be
represented in the disciplinary proceedings by another
person unless the Service Rules specifically provided
for the same. A ThreeJudge Bench of this Court
inCrescent Dyes and Chemicals Ltd. vs. Ram Naresh
Tripathi, (1993) 2 SCC 115 = 1992 Suppl. (3) SCR 559,
laid down that the right to be represented in the
departmental proceedings initiated against a
delinquent employee can be regulated or restricted by
the Management or by the Service Rules. It was held
that the right to be represented by an advocate in the
departmental proceedings can be restricted and
regulated by statutes or by the Service Rules including
the Standing Orders, applicable to the employee
concerned. The whole case law was reviewed by this
Court in Bharat Petroleum Corporation Ltd. vs.
Maharashtra Genl. Kamgar Union & Ors., (1999) 1
SCC 626, and it was held that a delinquent employee
has no right to be represented by an advocate in the
departmental proceedings and that if a right to be
represented by a coworkman is given to him, the
departmental proceedings would not be bad only for
the reason that the assistance of an advocate was not
provided to him.”
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6.4. In the case of Crescent Dyes and Chemicals Ltd.
(supra), it is observed and held that in the
departmental proceedings right to be represented
through counsel or agent can be restricted, controlled
or regulated by statute, rules, regulations or Standing
Orders. A delinquent has no right to be represented
through counsel or agent unless the law specifically
confers such a right. The requirement of the rule of
natural justice insofar as the delinquent’s right of
hearing is concerned, cannot and does not extend to a
right to be represented through counsel or agent. In
the case before this Court, the delinquent’s right to
representation was regulated by the Standing Orders
which permitted a clerk or a workman working with
him in the same department to represent him and
said right stood expanded permitting representation
through an officer, staffmember or a member of the
Union, on being authorised by the State Government.
Holding that the same is permissible and cannot be
said to be in violation of principles of natural justice,
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it is observed that the object and purpose of such
provisions are to ensure that the domestic enquiry is
completed with despatch and is not prolonged
endlessly; secondly, when the person defending the
delinquent is from the department or establishment in
which the delinquent is working he would be well
conversant with the working of that department and
the relevant rules and would, therefore, be able to
render satisfactory service to the delinquent. In the
present case also clause 8 permits representation
through serving officials / employee from the Bank.
6.5. A similar view has been expressed by this Court in
the case of Bharat Petroleum Corporation Limited
(supra) as well as in the case of National Sees
Corporation Limited (supra).
6.6. In the case of Indian Overseas Bank (supra), it is
observed and held that law does not concede an
absolute right of representation to an employee in
domestic enquiries as part of his right to be heard
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and that there is no right to representation by
somebody else unless the rules or regulation and
standing orders, specifically recognize such a right
and provide for such representation.
7.0. Applying law laid down by this Court in the aforesaid
decisions to the facts of the case on hand, the
respondent employee / respondent delinquent has no
absolute right to avail the services by exemployee of
the Bank as his DR in the departmental proceedings.
It is true that Regulation 44 puts specific restriction
on engagement of a legal practitioner and it provides
that for the purpose of an enquiry under Regulation,
2010, the Officer or Employee shall not engage a legal
practitioner without prior permission of the
competent authority. Therefore, even availing the
services of legal practitioner is permissible with the
leave of the competent authority. However, Regulation
does not specifically provides that an employee can
avail the services of any outsider and / or ex
employee of the Bank as DR. Therefore, Regulation,
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2010 neither restricts nor permits availing the
services of any outsider and / or exemployee of the
Bank as DR and to that extent Regulation is silent. 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 Clause 8 of the Handbook Procedure which
has been approved by the Board of Directors and it is
applicable to all the employees of the Bank and
Clause 8 is with respect to the defence representative,
it specifically provides that DR should be serving
official / employee from the Bank. The said Handbook
Procedure which has been approved by the Board of
Directors of the Bank is binding to all the employees
of the Bank. The High Court has considered
Regulation 44 of the Regulation, 2010, however has
not considered clause 8 of the Handbook Procedure
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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 exemployee 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
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the agent of his choice and the same can be restricted
by the employer.
8.0. As per the Bank there is a justification also to permit
the delinquent officer to be represented in the
departmental proceedings through serving official /
employee from the Bank only. The Bank has justified
its action of not permitting exemployee of the Bank
as DR and according to the Bank, the exemployee
who themselves may have been subject of a
disciplinary enquiry/ chargesheet / dismissed from
service; the exemployee might be a part of vigilance
or audit sections who come across a lot of information
of confidential nature and therefore, if they are
allowed to be DR in the departmental proceedings,
which would result in grave injustice; the solemn
nature of proceedings is taken away and would result
in issues of orderliness as well as decorum when a
disgruntled exemployee is enabled to act as defence
representative; they may adopt delay tactics in
departmental enquiry and may not permit completion
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of department enquiry within six months as
mandated by the CVC Circular and as per Vigilance
Handbook adopted by the Bank. For all the aforesaid
reasons not permitting the delinquent officer to be
represented through exemployee of the Bank in the
departmental enquiry cannot be said to be in any way
in breach of principles of natural justice and / or it
violates any of the rights of the delinquent officer. 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,
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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.
9.0. Now so far as reliance placed upon the decision of
the Allahabad High Court in the case of Rakesh
Singh (supra) by the learned counsel for the
respondent is concerned, it is required to be noted
that at the time when the High Court decided the
matter no such Clause 8 of the Handbook Procedure
was in force. Handbook Procedure has been adopted
by the Board of Directors in its meeting held on
15.3.2019. Therefore, the said decision shall not be
applicable to the facts of the case on hand.
10. In view of the above and for the reasons stated above,
the High Court has committed an error in permitting
respondent delinquent officer to be represented in the
departmental enquiry through exemployee of the
Bank. The view taken by the learned Single Judge
confirmed by the Division Bench is unsustainable.
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Accordingly, present appeal is allowed and the
impugned judgment and order passed by the learned
Single Judge confirmed by the Division Bench
permitting the respondent delinquent officer to be
represented in the departmental proceedings through
exemployee of the Bank is hereby quashed and set
aside. Present appeal is accordingly allowed. In the
facts and circumstances of the case, there shall be no
order as to costs.
…………………………………J.
(M. R. SHAH)
…………………………………J.
(SANJIV KHANNA)
New Delhi,
January, 04 2022
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