Right To Be Represented By Counsel Or Agent Of Choice In Disciplinary Proceedings Is Not Absolute
Case: The Chairman, State Bank of India and another versus MJ James
Coram: JusticeL. Nageswara Rao & Sanjiv Khanna
Case No.: Civil Appeal No. 8223 Of 2009
Court Observation: “The reasoning solely predicated on non-existence of article ‘the’ before ‘bank’ in Clause 22(ix)(a) of the Service Code does not justify inference of repugnancy in the context of the subject matter, including the intent behind Clause 22(ix)(a) of the Service Code.”
“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 fair hearing, which is applicable in judicial as well as quasi-judicial decisions.”
“We uphold the order of dismissal and consequently the writ petition filed by the respondent would be treated as dismissed”
[doc id=11879]
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