JUDGMENT
Paritosh Kumar Mukherjee, J.
1. The present writ petition has been moved by A. Padmanabhan, the former Branch Manager, Punjab National Bank, Chittaranjan Avenue Branch, for the second time, on February 12, 1985, when after the order of remand (passed by this Court in terms of the judgment, dated June 29, 1982, delivered by P.C. Borooah, J, in Matter No. 1267 of 1981. His Lordship gave express liberty to the bank authorities, to issue fresh charge sheet, against the petitioner, if so advised, in accordance with law, after quashing all earlier charge sheet, dated November 21, 1977, and all subsequent proceeding thereto, including the order of dismissal, and the appellate order.
2. At the time of issuance of the Rule, no interim order was granted by Umesh Chandra Banerjee, J. except that enquiry, which was stated to have commenced, shall continue and final order might be passed, but the same shall not be communicated to the petitioner, until further orders of this court.
3. The writ petition was mentioned before me on February 17, 1987, when I was taking “ready matters”, under Article 226 of the Constitution “for hearing”, and it was pointed out by the counsel for bank administration before me on that day that the respondents have passed the final order in the departmental proceeding, which has been kept in “sealed cover” and filed, in court before me.
4. On the subsequent date of hearing, on February 23, 1987, Mr. P.K. Sengupta, learned Senior Advocate, appearing on behalf of the bank administration, submitted that in view of passing of the final order of dismissal, which has been filed in court, the present writ petition had been rendered infructuous, but after hearing Mr. Sakti Nath Mukherjee, learned Advocate for the writ petitioner on the issue of amendment of pleadings, and considering , the case (Nair Service Society v. K.C. Alexander). I had granted leave to the writ petitioner to file an application for formal amendment, incorporating additional grounds and prayers, challenging the said final order.
5. After the application for amendment was allowed by me, the hearing of the writ petition commenced on and from February 25, 1987, and the same was concluded on March 30, 1987, and judgment was reserved.
6. Mr. Sakti Nath Mukherjee, learned Advocate for the petitioner formulated the following points in challenging the second charge sheet and continuation of the entire proceeding.
7. He submitted in the first place, that the second charge sheet has to be issued against the petitioner in accordance with the principles of natural justice but the same has not been done by the disciplinary authority in the instant case.
7a. Next, he submitted that the articles of charge and the statement of allegations were not supplied to the petitioner and, as such, the petitioner was not in a position to meet the same.
8. Thirdly, he submitted that the proceeding has been initiated in 1977, and under 1977 Regulation, the cause of action and/or incidents, before enforcement of the Regulation as such, could not form part of the said 1977 Regulation.
9. In the fourth place, he submitted that the statement of allegations were vague and indefinite and no effective reply could be given to such vague statement of allegations.
10. Lastly, he submitted that as no documents were supplied to the petitioner, although prayed for, and no inspection was given, the entire proceedings was conducted in violation of the principles of natural justice.
11. On the point of vagueness of the charges relating to the charge sheet dated October 25, 1983, issued in respect of the petitioner, my attention has been drawn to pages 108 to 116 of the original unamended writ petition. Article-I of the Statement of Articles of Charges contains undue unauthorised accommodation to “various” parties. No date has been given to the allowing of Rs. 79,320 to the party against his powers of allowing Rs. 75,000. He thus accommodated the party to the tune of Rs. 4320 beyond the limit, without obtaining proper sanction.
12. Then again, no particulars of the parties have been given regarding accommodation as the word “various” parties has been referred by allowing enhancement.
13. In the next place, although Mr. Sakti Nath Mukherji commenced with the hearing on behalf of the petitioner on February 17, 1987, but the carriage of proceeding before this Court although was conducted by Mr. P.K. Guha till end and he submitted that the impugned charge sheet was issued by the disciplinary authority without any authority of law, as the offences alleged to have been committed by the petitioner being related to the period prior to coming into force of Punjab National Bank Officer Employees (Conduct) Regulations, 1977, (the said Conduct Regulations having come into force on and from 1.1.1977) for which the petitioner has been charged, the said charge sheet dated October 25, 1983, could not be sustained in law, in any way, as the said 1977 Regulation could not have any retrospective operation.
14. Therefore, all the charges levelled in the impugned charge sheet dated October 25, 1983, being based on alleged offences having allegedly been committed by the petitioner prior to coming into force of the aforesaid Regulation, it cannot be substained in law.
15. In support of this contention, Mr. Guha has relied on a decision of this Court, in the case of Samarendra Narayan Ghosh v. State of West Bengal, since reported in 1984(1) C.L.J. page 56 at page 74.
16. Turning to the point of non-supply of copy of documents/ and not allowing inspection of documents/relevancy of the documents while conducting the enquiry, counsel submitted that both the disciplinary authority and the enquiring officer not only have acted contrary to the provisions laid down in the statutory regulation, but also acted in violation of the principles of natural justice.
17. He added that the enquiring officer did not conduct the enquiry in an independent manner and with open mind, which would be evident from the following facts, as submitted by the learned Advocate for the petitioner :
(a) No adequate opportunity for inspection of documents for replying to the charge sheet dated October 25, 1983, was given and three documents were not at all shown.
(b) Although Enquiry Officer was appointed in March, 1984, no enquiry was held by him till September 1984, when the Enquiry Officer was replaced without assigning any reason.
(c) List of prosecution documents/witnesses was prepared and signed by the then Presenting Officer without any authority of law.
(d) Copies of certain prosecution documents were not supplied by the Enquiry Officer despite requests.
18. Mr. P.K. Sengupta, learned Advocate appearing with Mr. S.N. Chowdhury for Punjab National Bank administration, apart from raising preliminary objection about the maintainability of the writ petition, submitted that having regard to the leave granted by this Hon’ble Court earlier to initiate fresh proceedings after issue of fresh charge sheet, the writ petitioner is not entitled to challenge the charge sheet, on that ground or any other ground whatsoever.
19. Secondly, he submitted that even the aforesaid Regulation of 1977, has not been framed yet under the ordinary “law of master and servant”, the enquiry could be conducted and the writ petitioner cannot find fault with the same.
20. In the third place, he submitted that by reason of refusal to grant legal practitioner to the writ petitioner, Regulations 6 and 7 of the aforesaid Regulation had not been violated at all, as the Presenting Officer Mr. R.N. Mukherjee was a “mere Law Graduate” and not a “legal practitioner” in true sense of the term. More so, the charges are not of intricated nature, evidences are not voluminous and no complicated law of evidence was involved in the facts of the present case and, as such, the petitioner was quite competent to defend himself at the enquiry.
21. In this connection, he has referred to one decision of this court in the case of Hari Prasad Singh v. Commissioner of Income Tax , in which Sabyasachi Mukharji, J. (as His Lordship then was) in interpreting ‘reasonable opportunity’ in terms of Article 311 of the Constitution construed whether by refusal of assistance of a lawyer to a delinquent, there was any denial of reasonable opportunity. In interpreting Rule 15(5) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957, there was a “discretion” with the disciplinary authority to permit the petitioner to be represented by a lawyer in certain contingency. That discretion must always be carefully exercised. In that case, Mukharji, J. (as His Lordship then was) referred to another unreported decision of Anil Kumar Sen, J. in the case of Harabilas Biswas v. Union of India and Ors. in Civil Rule No. 1988 (W) of 1966, judgment dated March 26, 1970, runs as follows :
“There the enquiry was held against a delinquent income-tax officer more or less under the similar circumstances and the delinquent in that case had been refused the assistance of a lawyer. The learned Judge came to the conclusion that there was no denial of reasonable opportunity in the facts and circumstances of that case. Whether by refusal of the assistance of a lawyer there is any denial of reasonable opportunity is essentially a question of fact. It must, however, be emphasized that the rule enjoins for the officer to exercise a discretion and before exercising the discretion the officers must consider complexity of the case and nature of the case. I must observe that practically in all the departmental enquiry cases that have come up before me I have hardly come across any instance where representation by a lawyer has been permitted.”
21. In this aspect, Mr. Sengupta also relied on another decision of the Supreme Court , H.C. Sarin v. Union of India. In the said case, in interpreting Rule 1730 of the Indian Railway Establishment Code, Volume I, Untwalia, J. of the Supreme Court observed in paragraph 21 as follows :
“The enquiry was being conducted in accordance with Rule 1730 of the Indian Railway Establishment Code, Volume I. In the main body of the rule where a procedure for holding a departmental enquiry has been provided for, there is nothing said in relation to the engagement of a lawyer. Certain notes are appended to the rule. They seem to have been appended not on the basis of the executive instructions but as part of the rule itself. One such note was appended as note 4, which subsequently became note 3, on September 25, 1956 by the President of India who had framed Rule 1730. This note reads as follows : “In a departmental enquiry, the accused railway officer may, if he so desires, be accompanied by another railway officer provided that the officer so nominated as the defence counsel is approved by the competent authority to act as such, and provided also that the person so nominated shall not be a professional lawyer. The term ‘professional lawyer’ includes those persons who are competent to practice in a court of law.”
In case of the above note, treating it as a part of the rule, the appellant was not entitled to the services of a professional lawyer, Gottwald, as it appears, was a lawyer in name but actively in business. The services of a professional lawyer were not necessary to cross-examine him. The fact was a simple one as to whether he had paid money to the tune of about 24,000 D.M. to the appellant from time to time. Even if we treat the note aforesaid as one based merely on the executive instructions and not a part of the rule itself, we see no reason to say that the authority was obliged not to follow the note but to go against it. At the most it had a discretion in the matter. The question is whether the discretion was rightly exercised or was it exercised so arbitrarily as to lead to the conclusion that principles of natural justice were violated when the services of a professional lawyer were not made available to the appellant. We give the answers against the appellant.”
22. In conclusion of that case, after quoting the judgment of Lord Denning, Master of the Rolls in the case of R. v. Secy. of State for the Home Department ex-parte Mughal (1973) 3 All ER 796, it was observe as follows :
“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.”
23. From the records of the proceedings, it appears that the disciplinary authority had twice rejected the prayer for grant of assistance of a legal practitioner–first of such rejection has been made on July 5, 1984, and second on August 7, 1984, after the consideration.
24. On the point of refusal to grant assistance of a legal practitioner, Mr. Guha has drawn my attention to Regulation 6(7) of Punjab National Bank Officer Employees (Discipline and Appeal) Regulations, 1977, which runs as follows :
“6(7) The officer employee may take the assistance, of any other officer employee but may not engage a legal practitioner for the purpose, unless the Presenting Officer, appointed by the Disciplinary Authority is a legal practitioner or the Disciplinary Authority, having regard to the circumstances of the case so permits.”
25. After going through the aforesaid contentions, I find that the relevant Regulation had given discretion to the disciplinary authority, in appropriate cases to give permission for representation by a lawyer and on this point the following decisions have been cited on behalf of the writ petitioner, namely, C.L. Subramaniam v. Collector of Customs, A.I.R. 1982 S.C. 109 (paragraphs 8 and 10) Bombay Port Trust v. D.R. Nadkarni and 1973 C.L.J., 254, Director of Posts and Telegraphs v. Nanigopal Mazumdar.
26. This point has been elaborately discussed in the earlier Special Bench decision of our High Court , Nripendra Nath Bagchi v. State of West Bengal.
27. In the said case, dealing with this aspect, the Special Bench presided over by P.B. Mukharji, J. observed in paragraphs 53 and 54 as follows :
“The petitioner’s first grievance is that he has denied the use of a lawyer and, therefore, the principles of natural justice have been violated. Rule 55 which I have quoted elsewhere expressly requires “adequate opportunity” to be given to the public servants. The question then is, can the assistance of a lawyer be regarded as part of such “adequate opportunity”. The learned Advocate General has relied on the well known authority of Rajagopala Ayyangar v. Collector of Salt Revenue, Madras, I.L.R. 1938 Mad 127 (A.I.R. 1937 Mad 735) and contended that the words “to be heard in person” in Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, expressly excludes the right to be represented by a lawyer in support of this contention. He has cited other authorities of Qudratullah v. N.W.P. Province, A.I.R. 1944 F.C. 72 ; Veeraswami v. Province of Madras, A.I.R. 1948 Mad. 379 ; Lakshmi Narayan Gupta v. A.N. Puri, ; and Punjab State v. Bhagat Singh, (S) A.I.R. 1955 Punj. 118 at p. 122.
The question now in India has to be judged not only on the expressions “adequate opportunity” and “be heard in person” in Rule 55 but also in the light of the expression “a reasonable opportunity of showing cause” in Article 311(2) of the Constitution. If on the particular facts and complexity of a case, assistance of a lawyer is regarded as a part of reasonable opportunity, then, denial of such an opportunity is violation alike of the constitutional protection under Article 311(2) and the principles of natural justice. The leading authority of the case of I.L.R. 1938 Mad. 127; (A.I.R. 1937 Mad. 735) and the decision of the Federal Court and other courts on the same subject, did not have occasion to consider this in the light of the Constitution. Assistance of a lawyer cannot always be regarded as a part of “reasonable opportunity to show cause”. Courts in India on the particular facts of some cases have held that assistance of a lawyer was not apart of a reasonable opportunity. It may on the facts of a particular case be a luxury, unnecessary or immaterial. What is reasonable opportunity in the Indian Constitutional context of Article 311(2) will depend on the fact of each case and the Constitution has laid down no hard and fast rule by defining reasonable opportunity for all cases.”
28. Thus, it has been held that courts in India on the particular facts of some cases, have held that assistance of lawyer was not part of reasonable opportunity and the grant of representation of legal practitioner has been left to the discretion of the disciplinary authority, which is dependent on the facts of each case, that is, whether the charges are of intricate nature, evidences are voluminous, there are complicated question of law and evidence and it is not expected of the delinquent employee to defend himself, as he does not know the art of cross-examination.
29. In the facts of the instant case, after going through the charges and the nature of defence, I am of the view that by reason of not granting legal assistance, it cannot be said that the writ petitioner has not been afforded reasonable opportunity of being heard.
30. Accordingly, I reject this submission that natural justice has been violated by reason of not granting legal assistance to the writ petitioner and Regulations 6(7) of Punjab National Bank Officer Employees (Discipline and Appeal) Regulations, 1977, have not been followed as well, in the matter of holding enquiry.
31. In dealing with the aspect of non-supply of ‘written brief’ of the Presenting Officer to the writ petitioner, in my opinion, as there is no specific provision in Regulations 6. 18 of the Punjab National Bank Officer Employees (Discipline and Appeal) Regulations, 1977, for supply of ‘written brief’, it can not be said that the enquiry has been vitiated for non-supply of the ‘written brief’. In my opinion, the decision reported in 76 C.W.N. page 539. Collector, of Customs v. Md. Habibul Haque cited on behalf of the petitioner, has no manner of application in the facts of the present case before us.
32. Turning to the challenge of the findings of the inquiring officer, at best this can be observed that the inquiring officer is not supposed to pass a judgment like Civil Court dealing with each issue item-wise, as the inquiring officer is discharging his obligation as a quasi judicial body and has the trappings of the court and not expected to act as a Civil Court and, as such, the said submission that the inquiring officer has not acted fairly and squarely, is also rejected.
33. In conclusion, all the points raised in support of the writ petition, fail.
The Rule is discharged.
There will be no order as to costs.