Whether party has chosen to sit over matter and has woken up to gain any advantage, merits examination before exercising Writ jurisdiction: SC

Read Judgment: The Chairman, State Bank of India & Another vs. M.j. James

Pankaj Bajpai

New Delhi, November 17 ,2021: The Supreme Court has opined that questions of prejudice, change of position, creation of third-party rights or interests on the part of the party seeking relief are important and relevant aspects as delay may obscure facts, encourage dubious claims, and may prevent fair and just adjudication. 

It is, therefore, necessary for the court to consciously examine whether a party has chosen to sit over the matter and has woken up to gain any advantage and benefit, added the Court. 

A Division Bench of Justice L. Nageswara Rao and Justice Sanjiv Khanna therefore observed that inactive acquiescence on the part of the litigant can be inferred till the filing of the appeal, and not for the period post filing of the appeal.

Nevertheless, this acquiescence being in the nature of estoppel bars the litigant from claiming violation of the right of fair representation, added the Bench. 

The observation came pursuant to an appeal by the Chairman, SBI, Central Office, Mumbai, and the Chief General Manager, SBI, Local Head Office, Chennai (Appellants) challenging the judgment, whereby the Kerala High Court had quashed the disciplinary proceedings against Mr. M.J. James (Respondent) on the ground of violation of Clause 22(ix)(a) of Chapter VIII of the Bank of Cochin Service Code. 

After considering the arguments, the Top Court found that Clause 22(ix)(a) of the Service Code, envisages that an employee against whom disciplinary action is proposed will be  served with memorandum of charges, be given sufficient time to prepare and present his explanation and produce evidence which he may wish to render in his defence. 

In addition, the employee is permitted to appear before the officer conducting the inquiry, cross-examine the witnesses and produce other evidence in his defence, and further, the officer can also be permitted to be defended by a representative, who must be a representative of a registered union/association of ‘bank’ employees, which, means an union/association of the employees of the Bank of Cochin and not association of employees of any or other banks, added the Court. 

The Division Bench also noted that Clause 22(ix)(a) 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, and such permission is required if an employee wants a lawyer to represent him/her in the disciplinary proceedings. 

In the present case, the respondent had never prayed or sought permission to be represented by a lawyer, despite the respondent being aware of the professional status of the inquiry officer and the presenting officer. Further, the dismissal order passed on April 18, 1985 remained unchallenged for more than four years, as the appeal to the Chief General Manager of the SBI was filed on Sep 20, 1989, added the Bench. 

At the same time, the Division Bench found that an appeal preferred by the Respondent with the Chief General Manager of SBI on Sep 20, 1989 had remained unattended for almost nine years. 

Thus, the Division Bench quoted the decision of this Court in Ram Chand and Others v. Union of India and Others and State of U.P. and Others v. Manohar , wherein it was observed that if the statutory authority has not performed its duty within a reasonable time, it cannot justify the same by taking the plea that the person who has been deprived of his rights has not approached the appropriate forum for relief. 

The Apex Court finally concluded that the studied silence of the respondent, who did not correspond or make any representation for nine years, was with an ulterior motive as he wanted to take benefit of the slipup though he had suffered dismissal. 

Hence, the Apex Court allowed the appeal and upheld the order of dismissal.