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.