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No Absolute Right To Be Represented By Counsel Or Agent Of Choice In Disciplinary Proceedings: Hon’ble SC [READ JUDGMENT]

In The Chairman, State Bank of India and another v. MJ James, the Hon’ble Supreme Court observed that the right to be represented by a counsel or agent of one’s choice is not an absolute right but one which can be controlled, restricted or regulated by law, rules, or regulations.

By: Likivi K Jakhalu, Campus Law Centre, Delhi University

According to the facts of the case, disciplinary proceedings were initiated against the Bank Manager of the Quilon Branch of the Bank of Cochin for sanctioning loans without authorization, causing the bank to suffer losses.

The committee declined the bank manager’s request for representation by a specific individual, stating that an individual charged-sheeted cannot be represented by office-bearers of an association or union of the bank’s employees as per the Service Rules. Accordingly, disciplinary action continued, and the charges proved true.

The petitioner moved the High Court which granted the petition stating that refusal to allow the Organising Secretary to represent him would amount to a denial of a reasonable opportunity. And the employees of unions/associations of other banks can also represent him. The matter was then appealed to the Hon’ble SC.

The Hon’ble Apex Court disagreed with the High Court’s reasoning and pointed out that a right to be legally represented will depend upon how the rules govern such a representation. However, if the charges are severe and complex, then the request to be represented through a counsel or agent should be considered.

In this regard, the Hon’ble Apex Court relied on Crescent Dyes and Chemicals Ltd. v. Ram Naresh Tripathi4 and National Seeds Corporation Ltd. v. K.V. Rama Reddy, which held that:

“The right to be represented by a third person in domestic inquiries/tribunals is based upon the precept that it is not desirable to restrict right of representation by a counsel or agent of one’s choice. The ratio does not tantamount to acceptance of the proposition that such a right is an element of principles of natural justice, and its denial would immediately invalidate the inquiry. Representations are often restricted by a law, such as under Section 36 of the Industrial Disputes Act, 1947, as also by certified Standing Orders. The aforementioned two decisions ascribe to catena of decisions, including English case law on this subject, which accept that the right to be legally represented depends on how the rules govern such representation. Further, if the rules are silent, the party has no absolute right to be legally represented. However, the entitlement of a fair hearing is not to be dispensed with. What fairness requires would depend upon the nature of the investigation and the consequences it may have on the persons affected by it.”

Thus, the right to be represented by a counsel or agent of one’s choice is not an absolute right but one which can be controlled, restricted, or regulated by law, rules, or regulations.

However, if the charge is of severe and complex nature, then the request to be represented through a counsel or agent should be considered. The above proposition flows from the entitlement of a fair hearing, which is applicable in judicial and quasi-judicial decisions.

Furthermore, the Hon’ble Apex court held that the officer too, in the same manner, be represented by a representative of a registered union/association of ‘bank’ employees, which, as held above, means a union/association of the employees of the Bank of Cochin and not an association of employees of any or other banks.

Notably, the provision does not stipulate that the employee requires permission from any authority or the inquiry officer for representation by a representative of a registered union or association of the Bank of Cochin. This permission is only required if an employee wants a lawyer to represent him/her in disciplinary proceedings.

Contrary to the findings in the impugned judgment of the Division Bench, the respondent had never asked or sought permission to have a lawyer represent him.

Therefore, the Hon’ble Apex Court allowed the appeal, and the judgment of the High Court was quashed.

News, Top Stories

SMS Notification Of Physical Examination And Document Verification Is Sufficient For Selection Process Of Police Constable Recruitment: Hon’ble SC [READ JUDGMENT]

In State of Uttar Pradesh and Ors. v. Pankaj Kumar, the Hon’ble apex court ruled that after an SMS was delivered to the candidate’s registered mobile phone number, he could not later claim a right to participate in the selection process after failing to attend it.

By: Rashi Jain, SOA National Institute of Law

The Hon’ble Supreme Court ruled that informing candidates via SMS on their registered mobile number about physical tests and document verification for police constable recruitment is good communication, and a candidate cannot challenge the recruitment because no separate written communication was received.

A Bench of Justices DY Chandrachud and AS Bopanna ruled that once an SMS was issued to a candidate on the mobile phone number he entered while applying, he could not claim the right to participate in the selection process afterward, failing to appear despite being notified via SMS on that number.

“When there can be no dispute that the respondent had the same mobile connection, the detail of which was furnished in the application and the SMS had been sent to the respondent, the respondent having not acted on the same cannot at his convenience request to be permitted to participate in the selection process which has already concluded, not having utilized the opportunity which was available to him,” the Court held.

The decision was made in response to an appeal filed by the State of Uttar Pradesh against an Allahabad High Court decision from 2019.

Pankaj Kumar, the respondent, applied for the position of Police Constable in the Provincial Armed Constabulary (Men) in 2015. By SMS, he was summoned for a physical fitness test and paperwork verification. The respondent allegedly did not show up due to a lack of written communication.

The State government, represented by counsel Pradeep Misra, contended that the respondent squandered the opportunity due to his carelessness.

It was also said that physical examination and document verification were extended till September 19, 2018, and that the process has now been completed in all respects.

The respondent candidate’s counsel, Advocate Sarvesh Kumar Dubey, maintained that notice had to be delivered via post and that an SMS containing the examination date was insufficient.

The appellant authorities were accused of failing to comply with the requirements outlined in the Uttar Pradesh (Civil Police) Constable and Head Constable Rules, 2008. According to the respondent, a call letter was necessary to be given via post according to the rule. Simply sending an SMS informing the date of the next step in the selection process would not be enough.

Dubey went on to say that the procedure took three years and that it is unreasonable to expect someone to have the same phone number for that long.

The Court, on the other hand, dismissed the respondent’s arguments.

It was ruled that the Rules allow for contact via post or any other means.“In that view, there is no bar in intimating the candidates through SMS, more particularly when a large number of candidates had to appear in the subsequent process and the majority of the candidates have appeared for document verification and physical fitness test under intimation by SMS,” the Court said.

Concerning the argument that a mobile number may change over a lengthy period, the Court stated that this could occur even about a postal address.

“In a given case, the person may not reside in the same address which is furnished for communication as it existed when the application is made. In such circumstance, it is for the candidate to intimate any change to the authorities, since such change would be within the knowledge of the candidate and it is in their interest such intimation is to be made,” the Court said.

There was no doubt that the respondent had the same mobile number as the plaintiff in this case. “Though, the learned counsel for the respondent vaguely contended that a person may not retain the same number after a long lapse of time, no material has been brought on record to indicate that the respondent did not possess the said mobile connection as on the date the SMS was sent,” the Court said.

As a result, the Court granted the appeal and reversed the Allahabad High Court’s decision.

News, Top Stories

Inauguration of Model Virtual Courtrooms: Incorporating Technology Would Be An Excellent Remedy For The Pendency Of Criminal Cases, explained Justice D.Y. Chandrachud

Chief Justice S. Murlidhar spoke about the advantages of virtual courts at the inauguration of modal virtual courtrooms in the Angul & Nayagarh District in Orissa. Additionally, Justice D.Y. Chandrachud discussed the need and multiple initiatives taken by the E-Committee of Supreme Court to connect technology with courts

By: Hemani Khadai

The Model Virtual Courtrooms in the two districts of Orissa were inaugurated in the presence of the Orissa High Court Chief Justice S. Murlidhar and chairperson of e-committee of Supreme Court Justice D.Y. Chandrachud.

This initiative also activated the digitizing of court records through the e-Custody Certificate System and Automated Email service to disseminate case information. 

Justice D.Y. Chandrachud applauded the launch of the e-Custody certificate and explained that every under trial and convict undergoing the sentence of imprisonment would have an e-custody certificate attached to them. From the first remand through the subsequent progress, such certificate will provide all of the necessary information about that particular under trial or convict. 

He noted that this would also help ensure that bail orders are conveyed as soon as they are issued, as the delay in notification of bail orders is a fundamental flaw in our system. 

Quoting the Aryan Khan case, he explained that, “This has ramifications for everyone who is on trial,” as Aryan Khan recently had to spend two extra nights in jail despite receiving a reduced sentence.

Simultaneously, the Orissa High Court Chief Justice S. Murlidhar spoke about the advantages of virtual courts at the inauguration. He expressed that such virtual courts will be helpful and speedy in recording evidence from witnesses from any location so that trial can proceed without any obstacle by providing specific time-slots for witnesses to appear. He also spoke about the distinguishing elements between the model virtual courtrooms and the regular virtual courtrooms.

How different is the virtual court from the regular court, which also does virtual hearings?

Chief Justice S. Murlidhar explained that model virtual courtrooms have equipment that can deal with the recording of evidence and a visualizer to show documents to the witness etc., which is not available in the regular virtual courts.  

These model virtual courts are capable of doing multiple tasks virtually, which may not be possible in the ordinary courts conducting a virtual hearing. Also, judicial officers are being trained to use virtual courts.

Working of the Virtual Courtrooms?

Chief Justice S. Murlidhar explained that any trained judicial officer could book the virtual court for a hearing.  There is a slotting of specific times for the witnesses to appear. He further explained, these Virtual courtrooms also have an additional feature of Hybrid Hearings”. 

In a hybrid hearing, the lawyer of the defense can be physically present in the court while the witness may be in a remote location but present in the virtual hearing & it can seamlessly go on with the trial. So, the trial will go on without a hitch, irrespective of the location of the witness, forensic science laboratory scientist, or the doctor, as they will have a slot at specific times for examination.

Appreciating the District Judges at Angul and Naragarh District Courts, Chief Justice S. Murlidhar mentioned that their calendar is already full for the virtual court hearings.

“The district judges at Angul and Nayagarh have been working tirelessly, literally day and night, to make this programme a success. They have lined up
Cases on every working day in November. Their calendar is already full for the virtual court”.

In the same event, Justice D.Y. Chandrachud explained that incorporating technology would be an excellent remedy for the pendency of criminal cases. He indicated that there are 2 crores 95 lakh criminal cases pending in the district judiciary of the country, out of which 77.5% of the cases are more than 1 year old.

He also mentioned that because the non-appearance of official witnesses causes delays, the time has come to make the recording of official witness evidence through video conferencing platforms the rule rather than the exception”.

“Virtual Courts speed up trials & provide dignity for all human beings”, said Justice D.Y. Chandrachud. 

Other initiatives discussed by Justice D.Y. Chandrachud?

  1. Digitization of Court Records: As e-filing of cases today will eliminate the need for digitization in the future.
  2. E-Seva Kendras: He elaborated that it is crucial to bridge the digital divide for the bar members, and such can be accomplished by establishing and providing resources under the one-stop facility of e-Seva Kendra in every District Court. Virtual courts and e-Sewa Kendra are inaugurated at Allahabad HC and district courts.
  3. Training of bar members: The Judge highlighted that the judicial academies should also collaborate with the bar associations for training members of the bar starting from the taluka level. 
  4. Interoperable Criminal Justice System: He mentioned the ICJS is the key element of the e-courts project. “Through the ICJS, the crime, criminal tracking system, the CCTNS (Crime and Criminal Tracking Network and Systems), the E-Courts, and the E-Prisons Databases will be integrated such that the CCTNS will share the FIR and charge sheet data in an electronic form with the E-Courts application, and likewise the E-Courts will communicate the CNR number (a unique number assigned to each case filed in district and taluka courts) with the CCTNS through ICJS. More information about the case could be made available via open APIs,” according to Justice Chandrachud. The judge went on to say that the E-court services app is accessible on Android and iOS and can be used by police officers all over the world to track cases, prepare case portfolios, and receive vital alerts. Senior police officers can use the software to keep track of critical cases in their area, and jail administrators can also use the app.
  5. Launching all forms of inspection in electronic forms: The Supreme Court E-Committee has established open APIs enabling the state government to monitor its litigation in the courts, among other things. He further said, “As judges, we are all aware that the district judiciary keeps manual registers, which takes a significant amount of time. When the date for inspection arrives, and his lordship or her ladyship goes to the district court for inspection, it can be a stressful experience.” He explained the need for modernization & how Inspections must be performed electronically as model electronic registers are being used to replace manual registers. 
  6. Linking of land records with the case information software: He explained, “One of the main issues in many of the cases that come before the district courts are whether a particular plot of land has already been encumbered on that land. In Maharashtra and Uttar Pradesh, the linking of land records with the CIS (Case Information System) has already been completed, and this will ensure that the land records and the CIS are connected together.” The High Court of J&K has effectively implemented CIS.
News, Top Stories

No Absolute Right To Be Represented By Counsel Or Agent Of Choice In Disciplinary Proceedings: Hon’ble SC [READ JUDGMENT]

In The Chairman, State Bank of India and another v. MJ James, the Hon’ble Supreme Court observed that the right to be represented by a counsel or agent of one’s choice is not an absolute right but one which can be controlled, restricted or regulated by law, rules, or regulations

By: Likivi K Jakhalu, Campus Law Centre, Delhi University

According to the facts of the case, disciplinary proceedings were initiated against the Bank Manager of the Quilon Branch of the Bank of Cochin for sanctioning loans without authorization, causing the bank to suffer losses.

The committee declined the bank manager’s request for representation by a specific individual, stating that an individual charged-sheeted cannot be represented by office-bearers of an association or union of the bank’s employees as per the Service Rules. Accordingly, disciplinary action continued, and the charges proved true.

The petitioner moved the High Court which granted the petition stating that refusal to allow the Organising Secretary to represent him would amount to a denial of a reasonable opportunity. And the employees of unions/associations of other banks can also represent him. The matter was then appealed to the Hon’ble SC.

The Hon’ble Apex Court disagreed with the High Court’s reasoning and pointed out that a right to be legally represented will depend upon how the rules govern such a representation. However, if the charges are severe and complex, then the request to be represented through a counsel or agent should be considered.

In this regard, the Hon’ble Apex Court relied on Crescent Dyes and Chemicals Ltd. v. Ram Naresh Tripathi4 and National Seeds Corporation Ltd. v. K.V. Rama Reddy, which held that:

“The right to be represented by a third person in domestic inquiries/tribunals is based upon the precept that it is not desirable to restrict right of representation by a counsel or agent of one’s choice. The ratio does not tantamount to acceptance of the proposition that such a right is an element of principles of natural justice, and its denial would immediately invalidate the inquiry. Representations are often restricted by a law, such as under Section 36 of the Industrial Disputes Act, 1947, as also by certified Standing Orders. The aforementioned two decisions ascribe to catena of decisions, including English case law on this subject, which accept that the right to be legally represented depends on how the rules govern such representation. Further, if the rules are silent, the party has no absolute right to be legally represented. However, the entitlement of a fair hearing is not to be dispensed with. What fairness requires would depend upon the nature of the investigation and the consequences it may have on the persons affected by it.”

Thus, the right to be represented by a counsel or agent of one’s choice is not an absolute right but one which can be controlled, restricted, or regulated by law, rules, or regulations.

However, if the charge is of severe and complex nature, then the request to be represented through a counsel or agent should be considered. The above proposition flows from the entitlement of a fair hearing, which is applicable in judicial and quasi-judicial decisions.

Furthermore, the Hon’ble Apex court held that the officer too, in the same manner, be represented by a representative of a registered union/association of ‘bank’ employees, which, as held above, means a union/association of the employees of the Bank of Cochin and not an association of employees of any or other banks.

Notably, the provision does not stipulate that the employee requires permission from any authority or the inquiry officer for representation by a representative of a registered union or association of the Bank of Cochin. This permission is only required if an employee wants a lawyer to represent him/her in disciplinary proceedings.

Contrary to the findings in the impugned judgment of the Division Bench, the respondent had never asked or sought permission to have a lawyer represent him.

Therefore, the Hon’ble Apex Court allowed the appeal, and the judgment of the High Court was quashed.

News, Top Stories

Need To Frame Model Builder-Buyer Agreement Under RERA: Hon’ble SC [READ ORDER]

While hearing the petition of Ashwini Kumar Upadhyay v. Union of India, the Hon’ble Supreme Court mentioned that framing of a model builder-buyer agreement under RERA is a significant issue of public interest & Consumer protection. Subsequently, Hon’ble SC asked ASG K.M. Nataraj to assist the Court in the pertaining issue in hand

By: Hemani Khadai                                                                    

A bench of Justices D. Y. Chandrachud and A. S. Bopanna heard a slew of petitions under Article 32 alleging flat purchasers’ concerns. The bench pointed that without uniform Builder-Buyer and Agent-Buyer Agreements, buyers remain at the discretion of developers when it comes to the terms and restrictions enforced.

Retrospectively on October 4, the bench of Justices D. Y. Chandrachud and B.V Nagarathna, while hearing these petitions filed by Advocate Ashwini Upadhyay, A Group of DLF Homebuyers & others recorded that these petitions seek directions to the central government for framing a model BBA and ABA to impose fairness & transparency in addition to enhancing the aims & objectives of RERA, 2016.

Consequently, the Court issued a notice to the center on October 4 with respect to the aforementioned pleas.

On November 8, 2021, the bench was informed that no Vakalatnama had been submitted on behalf of the center.

Then, Justice Chandrachud asked ASG Nataraj to assist the Court, appearing before the bench on an unrelated subject.

Addressing the ASG, Justice Chandrachud said, “This is an important matter where the issue is about the need to frame a model builder-buyer agreement under the RERA. The government has the power to do so…a group of homebuyers has come to Court. This is not an adversarial matter. This is very important issue of public interest, kindly help us.”

The judge ordered that the ASG be served with a copy of the petition. The bench then decided to postpone the case for another two weeks in order to give the ASG enough time to prepare.

“Senior Advocates Vikas Singh, Maneka Guruswamy and Anupam Lal Das, for the petitioners, have drawn the attention of the Court to certain provisions of the RERA- section 41 provides for the establishment of a Central Advisory Council by the central government. Section 42 provides for the functions of the said Council, one of which is to advice and recommend to the central government on 

(1) Implementation of the Act; 

(2) Major questions of policy

(3) Protection of consumer interest; and 

(4) Growth and development of real estate; 

(5) Any other matter. Sub-section (2) of section 42 provides that
the central government has the rule-making power to effectuate the recommendations of the Council. 

The Act has sufficient enabling powers for the central government to frame the model agreements to sub-serve the public interest in ensuring buyers are nor exploited by framing standard form agreement”, said the bench while issuing notice.

Justice Chandrachud remarked, “This is an important issue of consumer protection, which is put on back-foot. There is no uniformity at all. It has to be achieved in the country. Builders can put in any clauses. We recently dealt with a case where the state of West Bengal enacted a law identical to the RERA and said there is no conflict as it is identical to RERA. We struck it down saying that there is still repugnancy.”

Justice Nagarathna said, “There will be more contracting-out clauses otherwise if there is no model agreement.”

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