TMI Blog2016 (1) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... Sathe, Sr. Counsel with Mr. Rohan Cama i/b M/s. Bachubhai Munim and Co. For The Respondent : Mr. N.R. Prajapati, Mr. P.K. Samdani, Sr. Counsel with Mr. Gaurav Joshi, Sr. Counsel and Mr. Vikash Kumar i/b Mr. Anil T. Agarwal 1. Heard. 2. Rule. Rule is made returnable forthwith. Respondents waive service. By consent of parties, Petition is taken up for final hearing. 3. The short question which falls for consideration before us in this Writ Petition is : whether denial of legal representation of the Petitioner-Company through its advocate to appear before the Redressal Grievance Committee, amounts to denial of reasonable opportunity of defending itself and violation of principles of natural justice? FACTS: 4. Brief facts which are germane for the purpose of deciding this Writ Petition are as under:- 5. Petitioner Kingfisher Airlines Ltd. is a Company incorporated and registered under the provisions of the Companies Act, 1956. Respondent No.2 is a statutory body constituted under the State Bank of India Act, 1955 and also a Government Company and State within the meaning of Article 12 of the Constitution of India. 6. Reserve Bank of India ( RBI ) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a purported proposal of Respondent No.2 Bank to include the names of the Petitioner and the proforma Respondents in the list of wilful defaulters as per the guidelines of RBI. 11. Petitioner then called upon Respondent No.2 to disclose and furnish copies of the documents, material, reports etc. which were referred to or relied upon by the appropriate Committee including the investigative Report of Ernst Young dated 11/08/2014. Since the said report was not given, Petitioner filed Writ Petition No.2112 of 2014, seeking a direction to Respondent No.2 to give the concerned documents. This Court by its order dated 25/09/2014 directed Respondent No.2 to disclose all documents including the Report of Ernst and Young within a period of two weeks. 12. On 22/10/2014, Petitioner submitted their representation, requesting Respondent No.2 to permit the Petitioner to appoint an advocate of its choice to represent the Petitioner at the hearing before the Grievance Redressal Committee. This request was turned down by Respondent No.2 by its letter dated 10/11/2014. Petitioner, thereafter, filed a Writ Petition in this Court being Writ Petition (Lodging) No.2951 of 2014. When the matter ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Collector of Customs, Cochin (1972) 3 SCC 542 (iv) Fourthly, he submitted that section 30 of the Advocates Act, 1961 gave a right to the advocate to appear at the hearing before GRC and that such right was recognized under Article 19(1)(g) of the Constitution. In support of the said submission, he relied on the judgments of the Apex Court in Aeltemesh Rein vs. Union of India (1988) 4 SCC 54 and in N.K. Bajpai vs. Union of India (2012) 4 SCC 653 (v) Fifthly, he submitted that Respondent No.3 Committee is a quasi-judicial body and had a duty to act judicially. (vi) Sixthly, he submitted that the RBI Master Circular does not contain any prohibition clause in relation to engagement of an advocate. He relied upon the judgment of the Kolkata High Court in Santanu Ghosh vs. State Bank of India W.P. No.22439 of 2012, Order dated 8/10/2014 (vii) Lastly, he submitted that the amended RBI Circular was inapplicable to the notice dated 29/05/2015 since the said notice dated 29/5/2015 issued by Respondent No.2 was based on Master Circular of RBI dated 01/07/2014 which did not contain express prohibition for being represented by a lawyer as provided in amended circular which was issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng special training in that connection. He submitted that the Presenting Officer, in the present case, does not have such qualification or training. He, therefore, submitted that decisions on which reliance was placed by the Petitioner viz. C.L. Subramaniam vs. Collector of Customs, Cochin(1972) 3 SCC 542 and other judgments are distinguishable. He submitted that no reliance could be placed on the judgment of the Delhi High Court in Kingfisher Airlines Limited vs. Union of India Ors delivered in W.P.(C) 5532/2014, since the appeal was pending in the Apex Court. He submitted that the Petitioner had filed a case against the Union Bank of India and its demand for representation through an advocate was declined by the learned Single Judge of Kolkata High Court vide order dated 10/07/2014 passed in Writ Petition No.1924(W) of 2014 (Kingfisher Airlines Ltd vs. Union of India Ors). He submitted that the view of the learned Single Judge was upheld by the Division Bench of the Kolkata High Court. He submitted that the decision declaring the Petitioner as defaulter was set aside on a different ground by the learned Single Judge of the Kolkata High Court vide order dated 24/12/2014 passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the procedure laid down in Criminal Procedure Code. Under the old circular, Grievance Redressal Committee has to arrive at a decision after giving reasons that the borrower is a Wilful Defaulter and thereafter an opportunity is given to the borrower to make representation against such decision. 17. The amended RBI Circular dated 07/01/2015 makes a slight departure in the said mechanism for identification of Wilful Defaulters. The grievance redressal mechanism which consists of a Committee headed by the Executive Officer and two other Senior Officers of the rank of GM/DGM has to examine the material and if it concludes that the event of wilful default has occurred, has to issue show cause notice to the concerned borrower to make his submissions and thereafter an opportunity of hearing has to be given to the borrower for personal hearing, if the Committee feels that such an opportunity is necessary. The amended Circular of 07/01/2015 therefore gives a discretion to the Committee to decide whether personal hearing should be given or not. In the present case, relying on the amended circular dated 07/01/2015, the Bank has now informed the Petitioner that it would not be entitled to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 instant case the delinquent's right of 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 this right stood expanded on Sections 21 and 22(ii) permitting representation through an officer, staff-member or a member of the union, albeit on being authorised by the State Government. The object and purpose of such provisions is 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) SCR 559 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 Corpn, Ltd. vs. Maharashtra General Kamgar Union [(1999) 1 SCC 626 : 1999 SCC (L S) 361 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 co-workman 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. Similar view has been taken by the Apex Court in D.G. Railway Protection force Ors vs. K. Raghuram Babu(2008) 4 SCC 406 and in the said judgment the Apex Court has observed in para 11 as under:- 11. Following the above decision it has to be held that there is no vested or absolute right in any charge-sheeted employee to representation either through a counsel or through any other person unless the statute or rules/standing orders provide for such a right. Moreover, the right to representation through someone, even if granted by the rules, can be granted as a restricted or control ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Limited vs. Union of India Others with CAN No.8329 of 2014 decided on 28/08/2014. 24. Though the Petitioner had preferred an SLP before the Apex Court, the SLP had become infructuous because, by that time, the Petitioner had been declared as Wilful Defaulter. Though the said order was again challenged by the Petitioner before the Kolkata High Court and the Order of Grievance Redressal Committee was set aside, it was not set aside on the ground of the Petitioner not being allowed to be represented by the Advocate. 25. We are therefore of the view that the borrower is not entitled, as a matter of right, to be represented by the Advocate before the Grievance Redressal Committee. 26. However, in the peculiar facts and circumstances of the case, in order to curtail further time which may be taken for deciding the issue whether the Petitioner is a Wilful Defaulter or not, since the Petitioner may challenge this order in the Apex Court we are of the view that if the Petitioner gives an undertaking to this Court that if it is allowed to be represented by its advocate, its advocate would conclude his submissions in one day then in such an event the Petitioner will be permitted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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