It is thus clear from an analysis of the above Regulations and the Circulars that
the reimbursement of TA/DA have consciously and specifically been provided
only for serving, retired or dismissed employees of Respondent No.1 Bank who
are acting as Defence Representatives. The Petitioner has been unable to show
a single Regulation or Circular which would compel Respondent No.1 Bank to
reimburse the traveling expenses and/or TA/DA of a non employee / third
party Defence Representative. Accordingly, it is untenable for the Petitioner to
contend, on the basis of the Regulations and the Circulars, that the Respondent
is entitled for reimbursement of travelling expenses for Mr. Marpakwar, who is
admittedly not a serving, retired or dismissed employee of Respondent No. 1.
19. We cannot accept the submission of Mr. Singhvi that the non reimbursement of
travelling expenses would render the defence of Petitioner illusory. Nothing
stopped the Petitioner from engaging the services of an employee of
Respondent No.1 Bank, serving, dismissed or retired, in which case he would
have been entitled to reimbursement of travelling expenses. It is not as if the
Petitioner was not aware of the concerned Regulations, having himself
repeatedly invoked the same in the earlier rounds of litigation filed in this
Court. This being the position, being fully conscious of the Regulations
specifically providing for reimbursement of TA/DA only for employees, the
Petitioner chose to engage Mr. Marpakwar as his Defence Representative. The
Petitioner cannot simultaneously seek to invoke the Regulations when it suits
his purposes and yet seek to deviate from the Regulations or seek something
beyond the Regulations, as he is attempting to do in the present case. It is not
the grievance of the Petitioner in the present case that the Defence
Representative has not been heard, and accordingly, there is nothing illusory
about the opportunity to defend which is given to the Petitioner.
In the present case, there is an express provision in the
Regulations and in the Circulars for reimbursement to employees. The present
matter is a fit case where the expression expressio unious et exclusio alterius
would apply. The Regulations with which we are concerned, having expressly
contemplated a Defence Representative being both an employee and a nonemployee,
consciously provided for reimbursement of TA/DA only to Defence
Representatives who were employees. Thus, it was consciously provided that
only those persons would be entitled to reimbursement and non-employees
were specifically excluded from the ambit of reimbursement of TA/DA.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1999 OF 2018
Subhash S. Sawant Vs Central Bank of India
CORAM : AKIL KURESHI &
S.J. KATHAWALLA, JJ.
PRONOUNCED ON : 16TH JULY, 2019
JUDGMENT ( PER S.J.KATHAWALLA, J. ) :
1. Rule, returnable forthwith.
2. The Petitioner before us is an ex-employee of the Respondent No. 1 Bank and is
stated to be the General Secretary of the Central Bank Employees Union,
Mumbai. Certain disputes have arisen between the Petitioner and the
Respondent No. 1 Bank, as a consequence of which disciplinary proceedings
came to be initiated by Respondent No. 1 against the Petitioner.
3. In the course of the disciplinary proceedings, certain issues arose between the
parties in connection with the Defence Representative sought to be engaged by
the Petitioner to defend him in the disciplinary proceedings, culminating in
Petitions filed in this Court and certain orders being passed therein. The
Defence Representative whom the Petitioner desired to represent him is a
gentleman by the name of Mr. Prabhakar C. Marpakwar. It was the stand of the
Petitioner in certain Petitions earlier filed in this Court that under the
applicable Regulations titled as “Disciplinary Action Procedure” Regulations,
and in particular Clause 12(a)(ii), the Petitioner was entitled to appoint Mr.
Marpakwar as his Defence Representative. The relevant portion of Regulation
12 is reproduced hereinbelow:
“12. The procedure in such cases shall be as follows:
(a) An employee against whom disciplinary action is proposed or
likely to be taken shall be given a charge-sheet clearly setting
forth the circumstances appearing against him and a date shall be
fixed for enquiry, sufficient time being given to him to enable him
to prepare and give his explanation as also to produce any
evidence that he may wish to tender in his defene. He shall be
permitted to appear before the Officer conducting the enquiry, to
cross-examine any witness on whose evidence the charge rests
and to examine witnesses and produce other evidence in his
defence. He shall also be permitted to be defended.
(i) (x) by a representative of a registered trade
union of bank employees of which he is a member
on the date first notified for the commencement of
the enquiry.
(y) where the employee is not a member of any trade
union of bank employees on the aforesaid date, by a
representative of a registered trade union of
employees of the bank in which he is employed :
OR
(ii) at the request of the said union by representative of the
state federation or all India Organisation to which such
union is affiliated;
OR
(iii) with the Bank’s permission, by a lawyer.
He shall also be given a hearing as regards the nature of the
proposed punishment in case any charge is established against
him.
(b) …………..
(c) …………..
(d) If the representative defending the employee is an employee of
the same bank at an outstation branch within the same State, he
shall be relieved on special leave (on full pay and allowances) to
represent the employee and be paid one return fare. The class of
fare to which he will be entitled would be the same as while
travelling on duty. In case of any adjournment at the instance of
the bank / enquiry officer, he may be asked to resume duty and if
so, will be paid fare for the consequential journey. He shall also
be paid full halting allowance for the period he stays at the place
of the enquiry for defending the employee as also for the days of
the journeys which are undertaken at the bank’s cost.”
4. By diverse orders passed by this Court in the above Petitions, the Petitioner
was permitted to be represented in the Disciplinary Proceedings by Mr.
Marpakwar. The admitted position is that Mr. Marpakwar is not an employee
of the Respondent No. 1 Bank. It is stated in the Petition that he is the
Chairman of one All India Central Bank Employees Congress and also the
President of Central Bank Staff Union, Nagpur, residing at Nagpur. It is the
Petitioner’s case that Mr. Marpakwar is a member of a State Federation or All
India Organization to which the Petitioner’s union is affiliated, thus falling
under Clause 12(a)(ii) of the Regulations.
5. The present Petition has been filed by the Petitioner contending that in the
course of the disciplinary proceedings, certain costs were incurred for the travel
of Mr. Marpakwar, which the Petitioner sought to claim vide his letter dated
29th December 2017 addressed to the Respondents. These costs / claims are
referred to as TA/DA (“TA/DA”). The Respondents rejected the request for
reimbursement of TA/DA, vide letter dated 4th December 2017, on the ground
that there was no provision for reimbursement of TA/DA to a Defence
Representative who was not an in-service / retired staff member / employee.
6. It is this rejection by the Respondents that has been challenged in the present
Petition. The present Petition thus gives rise to the question as to whether,
under the relevant Regulations and certain Circulars referred to hereafter, the
Petitioner is entitled to seek reimbursement of costs incurred by a third party /
non employee engaged by the Petitioner as his Defence Representative.
7. Mr. Singhvi learned Senior Advocate appearing for the Petitioner has made the
following submissions:
(i) Having regard to certain Circular issued by the Indian Banks’ Association
(“IBA”) dated 25th April 2011 (“2011 Circular”), 12th July 2012 (“2012
Circular”) and 19th November 2015 (“2015 Circular”), he submits that Mr.
Marpakwar, being a Defence Representative, was entitled to receive
reimbursement of TA/DA for the trips made to Mumbai to defend the
Petitioner in the disciplinary proceedings.
(ii) While originally under the 2011 Circular and the 2012 Circular only Defence
Representatives who were in service appear to be entitled to TA/DA, the 2015
Circular makes it clear that both serving and retired Defence Representatives
would be entitled to reimbursement of TA/DA.
(iii) The 2015 Circular makes it clear that both in-service and retired persons acting
as Defence Representatives were entitled to TA/DA and reliance was placed
upon certain illustrative instances set out in the Additional Affidavit dated 23rd
February 2019, filed on behalf of the Petitioner.
(iv) To not grant TA/DA to a Defence Representative such as Mr. Marpakwar
would be to render the very opportunity of defence illusory and the object of
appointing a Defence Representative would be defeated.
8. Mr. Singhvi has placed reliance on a judgment of the Central Administrative
Tribunal reported in [1990] (13) Administrative Tribunal’s Cases 650 in
the matter of S. Pandian & Ors. V. Director B.C.G. Vaccine Laboratory,
Madras, and the judgment of the Hon’ble Supreme Court in the challenge to
the said Order in the matter of Director, B.C.G. Vaccine Laboratory,
Madras Vs. S. Pandian & Ors. [(1997) 11 SCC 346]. Mr. Singhvi submits
that from the judgment of the Supreme Court it is clear that the employees in
question were provided reimbursement of fees for a legal practitioner engaged
by them in the Disciplinary Proceedings, even though there was no specific
provision for the same. He submits that on a parity of reasoning, the Petitioner
herein ought to be provided with reimbursement of TA/DA in respect of Mr.
Marpakwar.
9. Per Contra, Mr. Cama on behalf of the Respondent No. 1 Bank submitted as
under:
(i) The entire object of the Regulations was not to assist a charge sheeted
employee per se, but to ensure that an employee of the Bank who was required
to attend disciplinary proceedings and therefore missed work should not be put
to prejudice and should be duly compensated for the costs involved in travelling
and attending before the Disciplinary Authorities.
(ii) A perusal of clauses 12(a) and 12(d) of the Regulations clearly shows that there
is a distinction made between employees acting as Defence Representatives and
third parties such as Mr. Marpakwar, who admittedly was not an employee, and
was appointed pursuant to clause 12(a)(ii) of the concerned Regulations.
(iii) Clause 12(d) of the Regulations makes it clear that only an employee of the
Bank would be entitled to reimbursement of TA/DA.
(iv) The Circulars, when correctly read, do not further the Petitioner’s stand, and
merely clarify that TA/DA will be paid both to retired employees as also the
employees who are currently in service of the bank; the underlying position
therefore clearly is that TA/DA will be payable to a Defence Representative, if
at all, only if the Defence Representative is either a serving or retired employee
of the Bank, which is not the case so far as Mr. Marpakwar is concerned.
(v) While the Respondent No. 1 Bank’s position in its Affidavit dated 18th June
2019 is that the 2015 Circular is not applicable to the Respondent No. 1 Bank
and that the Respondent No. 1 Bank is governed by a separate Circular dated
23rd July 2012 annexed to the Affidavit of the Respondent No. 1 Bank, even on a
demurrer that the 2015 Circular applies, it would only apply to employees and
not to a third party such as Mr. Marpakwar.
10. Mr. Cama has distinguished the judgments cited by the Petitioner on facts. He
therefore submits that the Petition be dismissed.
11. Having heard the learned Counsel for the parties and having perused the
concerned Regulations and the Circulars relied upon, we are of the view that
the Petition is required to be dismissed for the reasons set out hereafter.
12. The relevant Regulations, when properly analysed, would show that they set
out the Disciplinary Action Procedure to be followed by the Respondent No. 1
Bank in case of disciplinary proceedings instituted by the Bank. Clause 12(a) of
the Regulations sets out the persons who may be engaged by the chargesheeted
employee as his Defence Representative. It is clear that Clause 12(a)(i)
contemplates certain categories of Defence Representatives who are employees
of the Respondent No. 1 Bank, whereas clauses 12(a)(ii) and 12(a)(iii)
contemplate third parties / non employees being engaged as Defence
Representative. Pertinently, Clause 12(a)(iii) even contemplates a lawyer being
engaged as a Defence Representative. Clause 12(a) thus shows that the framers
of the Regulations were conscious of the distinction between employees and
non-employees acting as Defence Representatives.
13. Being mindful of the above distinction, in Clause 12(d) of the Regulations, it
has been specifically provided that an employee of the Bank at an outstation
branch within the same State shall be entitled to reimbursement of the
travelling costs incurred in acting as a Defence Representative. This clause
makes it clear that the right to reimbursement is restricted only to employees of
the Respondent No. 1 Bank who are required to travel for the purpose of
attending disciplinary proceedings in which they are engaged as Defence
Representatives. Pertinently, this clause has certain checks and balances to
ensure that the sums claimed by way of reimbursement are kept within a fare
structure which the Bank is aware of; this avoids the Respondent No. 1 Bank
from being subjected to claims for exorbitant sums beyond its control, towards
TA/DA. The Regulation specifically provides that the employee in question
will be entitled only to the same class of fare to which he is eligible while
traveling on duty. As aforestated, this ensures that the Bank is not put to
uncontrolled expenditure by reason of the chargesheeted employee claiming
exorbitant or arbitrary or inflated sums by way of reimbursement of TA/DA.
14. Consciously, the Regulations do not make any such similar provisions for nonemployees
engaged as Defence Representatives. This would be logical having
regard to the fact that the Respondent No. 1 Bank would have no control over
the amount expended for traveling expenses of a Defence Representative who
was not an employee and for whom therefore there is no fixed class of fare.
Were the Respondent No. 1 Bank called upon to pay TA/DA claimed for a non
employee / third party, absent any stipulated class of fare as is prescribed for
employees, it would potentially render the Respondent No. 1 Bank liable to pay
such / any sums as may be claimed by the Defence Representative / the
chargesheeted employee at their sole ipse dixit. This would be entirely unfair
and would constitute an unreasonably harsh burden imposed upon the
Respondent No. 1 Bank, and therefore consciously was not provided for in the
Regulations.
15. The above conclusion that we have arrived at would also appear to us to be a
logical position. It would be entirely untenable for the Respondent No. 1 Bank
to be foisted with the uncapped liability to reimburse the travelling expenses of
a non-employee / third party Defence Representative. As set out above, Clause
12(a)(iii) even contemplates the charge-sheeted employee engaging a lawyer as
a Defence Representative. The Respondent No. 1 Bank would have no control
over the expenses of such lawyer/non-employee and it is unreasonable to
expect that they would nonetheless be required to foot the bill for the travelling
expenses of such lawyer or non-employee.
16. The Circulars relied upon by Mr. Singhvi to support his contention that the
travelling expenses of Mr. Marpakwar are required to be reimbursed, do not in
fact assist the Petitioner. The Circulars (without going into Respondent No. 1
Bank’s contention that the 2015 Circular has not been adopted by Respondent
No. 1 Bank) do not more than clarify that the reimbursement of TA/DA is not
restricted only to a serving employee acting as a Defence Representative but is
also applicable to a retired employee of Respondent No.1 Bank who is acting as
a Defence Representative. The title of each of the Circular makes it clear that
the Circulars pertain to reimbursement of TA/DA to serving, retired or
dismissed employees, but in all cases the common thread is that the
reimbursement is contemplated only for an employee. The 2012 Circular
clarifies that in the case of retired / dismissed employees, the reimbursement of
TA/DA will be at the rate admissible to a person in the cadre/grade which he
was holding at the time of his retirement or leaving the bank’s services. This is
in line with Clause 12(d) of the Regulations referred to by us above.
17. The 2015 Circular, although predominantly in respect of witnesses, once again
contemplates reimbursement for “serving / retired employees”. This Circular
too does not make any reference to or appear to have any applicability to, third
party / non-employee Defence Representatives.
18. It is thus clear from an analysis of the above Regulations and the Circulars that
the reimbursement of TA/DA have consciously and specifically been provided
only for serving, retired or dismissed employees of Respondent No.1 Bank who
are acting as Defence Representatives. The Petitioner has been unable to show
a single Regulation or Circular which would compel Respondent No.1 Bank to
reimburse the traveling expenses and/or TA/DA of a non employee / third
party Defence Representative. Accordingly, it is untenable for the Petitioner to
contend, on the basis of the Regulations and the Circulars, that the Respondent
is entitled for reimbursement of travelling expenses for Mr. Marpakwar, who is
admittedly not a serving, retired or dismissed employee of Respondent No. 1.
19. We cannot accept the submission of Mr. Singhvi that the non reimbursement of
travelling expenses would render the defence of Petitioner illusory. Nothing
stopped the Petitioner from engaging the services of an employee of
Respondent No.1 Bank, serving, dismissed or retired, in which case he would
have been entitled to reimbursement of travelling expenses. It is not as if the
Petitioner was not aware of the concerned Regulations, having himself
repeatedly invoked the same in the earlier rounds of litigation filed in this
Court. This being the position, being fully conscious of the Regulations
specifically providing for reimbursement of TA/DA only for employees, the
Petitioner chose to engage Mr. Marpakwar as his Defence Representative. The
Petitioner cannot simultaneously seek to invoke the Regulations when it suits
his purposes and yet seek to deviate from the Regulations or seek something
beyond the Regulations, as he is attempting to do in the present case. It is not
the grievance of the Petitioner in the present case that the Defence
Representative has not been heard, and accordingly, there is nothing illusory
about the opportunity to defend which is given to the Petitioner.
20. The judgments of the Central Administrative Tribunal and the Supreme Court
are entirely inapplicable in the facts of the present case. Admittedly, the
judgment of the Supreme Court turns on the special facts in that case set out in
paragraph 5 of the judgment. Neither the Central Administrative Tribunal nor
the Supreme Court were dealing with a situation in which there was a specific
Regulation providing for reimbursement of costs to the persons named in the
Regulations. In the present case, there is an express provision in the
Regulations and in the Circulars for reimbursement to employees. The present
matter is a fit case where the expression expressio unious et exclusio alterius
would apply. The Regulations with which we are concerned, having expressly
contemplated a Defence Representative being both an employee and a nonemployee,
consciously provided for reimbursement of TA/DA only to Defence
Representatives who were employees. Thus, it was consciously provided that
only those persons would be entitled to reimbursement and non-employees
were specifically excluded from the ambit of reimbursement of TA/DA. Thus,
on the facts of the case before us, we find that the judgment of the Supreme
Court, will have no applicability.
21. In the above circumstances, we are of the view that the Respondent No. 1 Bank
was justified in its refusal to reimburse travelling expenses of the Defence
Representative Mr. Marpakwar. The Petition is therefore dismissed, with no
order as to costs.
( S.J.KATHAWALLA, J. ) ( AKIL KURESHI, J.)
Print Page
the reimbursement of TA/DA have consciously and specifically been provided
only for serving, retired or dismissed employees of Respondent No.1 Bank who
are acting as Defence Representatives. The Petitioner has been unable to show
a single Regulation or Circular which would compel Respondent No.1 Bank to
reimburse the traveling expenses and/or TA/DA of a non employee / third
party Defence Representative. Accordingly, it is untenable for the Petitioner to
contend, on the basis of the Regulations and the Circulars, that the Respondent
is entitled for reimbursement of travelling expenses for Mr. Marpakwar, who is
admittedly not a serving, retired or dismissed employee of Respondent No. 1.
19. We cannot accept the submission of Mr. Singhvi that the non reimbursement of
travelling expenses would render the defence of Petitioner illusory. Nothing
stopped the Petitioner from engaging the services of an employee of
Respondent No.1 Bank, serving, dismissed or retired, in which case he would
have been entitled to reimbursement of travelling expenses. It is not as if the
Petitioner was not aware of the concerned Regulations, having himself
repeatedly invoked the same in the earlier rounds of litigation filed in this
Court. This being the position, being fully conscious of the Regulations
specifically providing for reimbursement of TA/DA only for employees, the
Petitioner chose to engage Mr. Marpakwar as his Defence Representative. The
Petitioner cannot simultaneously seek to invoke the Regulations when it suits
his purposes and yet seek to deviate from the Regulations or seek something
beyond the Regulations, as he is attempting to do in the present case. It is not
the grievance of the Petitioner in the present case that the Defence
Representative has not been heard, and accordingly, there is nothing illusory
about the opportunity to defend which is given to the Petitioner.
In the present case, there is an express provision in the
Regulations and in the Circulars for reimbursement to employees. The present
matter is a fit case where the expression expressio unious et exclusio alterius
would apply. The Regulations with which we are concerned, having expressly
contemplated a Defence Representative being both an employee and a nonemployee,
consciously provided for reimbursement of TA/DA only to Defence
Representatives who were employees. Thus, it was consciously provided that
only those persons would be entitled to reimbursement and non-employees
were specifically excluded from the ambit of reimbursement of TA/DA.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1999 OF 2018
Subhash S. Sawant Vs Central Bank of India
CORAM : AKIL KURESHI &
S.J. KATHAWALLA, JJ.
PRONOUNCED ON : 16TH JULY, 2019
JUDGMENT ( PER S.J.KATHAWALLA, J. ) :
1. Rule, returnable forthwith.
2. The Petitioner before us is an ex-employee of the Respondent No. 1 Bank and is
stated to be the General Secretary of the Central Bank Employees Union,
Mumbai. Certain disputes have arisen between the Petitioner and the
Respondent No. 1 Bank, as a consequence of which disciplinary proceedings
came to be initiated by Respondent No. 1 against the Petitioner.
3. In the course of the disciplinary proceedings, certain issues arose between the
parties in connection with the Defence Representative sought to be engaged by
the Petitioner to defend him in the disciplinary proceedings, culminating in
Petitions filed in this Court and certain orders being passed therein. The
Defence Representative whom the Petitioner desired to represent him is a
gentleman by the name of Mr. Prabhakar C. Marpakwar. It was the stand of the
Petitioner in certain Petitions earlier filed in this Court that under the
applicable Regulations titled as “Disciplinary Action Procedure” Regulations,
and in particular Clause 12(a)(ii), the Petitioner was entitled to appoint Mr.
Marpakwar as his Defence Representative. The relevant portion of Regulation
12 is reproduced hereinbelow:
“12. The procedure in such cases shall be as follows:
(a) An employee against whom disciplinary action is proposed or
likely to be taken shall be given a charge-sheet clearly setting
forth the circumstances appearing against him and a date shall be
fixed for enquiry, sufficient time being given to him to enable him
to prepare and give his explanation as also to produce any
evidence that he may wish to tender in his defene. He shall be
permitted to appear before the Officer conducting the enquiry, to
cross-examine any witness on whose evidence the charge rests
and to examine witnesses and produce other evidence in his
defence. He shall also be permitted to be defended.
(i) (x) by a representative of a registered trade
union of bank employees of which he is a member
on the date first notified for the commencement of
the enquiry.
(y) where the employee is not a member of any trade
union of bank employees on the aforesaid date, by a
representative of a registered trade union of
employees of the bank in which he is employed :
OR
(ii) at the request of the said union by representative of the
state federation or all India Organisation to which such
union is affiliated;
OR
(iii) with the Bank’s permission, by a lawyer.
He shall also be given a hearing as regards the nature of the
proposed punishment in case any charge is established against
him.
(b) …………..
(c) …………..
(d) If the representative defending the employee is an employee of
the same bank at an outstation branch within the same State, he
shall be relieved on special leave (on full pay and allowances) to
represent the employee and be paid one return fare. The class of
fare to which he will be entitled would be the same as while
travelling on duty. In case of any adjournment at the instance of
the bank / enquiry officer, he may be asked to resume duty and if
so, will be paid fare for the consequential journey. He shall also
be paid full halting allowance for the period he stays at the place
of the enquiry for defending the employee as also for the days of
the journeys which are undertaken at the bank’s cost.”
4. By diverse orders passed by this Court in the above Petitions, the Petitioner
was permitted to be represented in the Disciplinary Proceedings by Mr.
Marpakwar. The admitted position is that Mr. Marpakwar is not an employee
of the Respondent No. 1 Bank. It is stated in the Petition that he is the
Chairman of one All India Central Bank Employees Congress and also the
President of Central Bank Staff Union, Nagpur, residing at Nagpur. It is the
Petitioner’s case that Mr. Marpakwar is a member of a State Federation or All
India Organization to which the Petitioner’s union is affiliated, thus falling
under Clause 12(a)(ii) of the Regulations.
5. The present Petition has been filed by the Petitioner contending that in the
course of the disciplinary proceedings, certain costs were incurred for the travel
of Mr. Marpakwar, which the Petitioner sought to claim vide his letter dated
29th December 2017 addressed to the Respondents. These costs / claims are
referred to as TA/DA (“TA/DA”). The Respondents rejected the request for
reimbursement of TA/DA, vide letter dated 4th December 2017, on the ground
that there was no provision for reimbursement of TA/DA to a Defence
Representative who was not an in-service / retired staff member / employee.
6. It is this rejection by the Respondents that has been challenged in the present
Petition. The present Petition thus gives rise to the question as to whether,
under the relevant Regulations and certain Circulars referred to hereafter, the
Petitioner is entitled to seek reimbursement of costs incurred by a third party /
non employee engaged by the Petitioner as his Defence Representative.
7. Mr. Singhvi learned Senior Advocate appearing for the Petitioner has made the
following submissions:
(i) Having regard to certain Circular issued by the Indian Banks’ Association
(“IBA”) dated 25th April 2011 (“2011 Circular”), 12th July 2012 (“2012
Circular”) and 19th November 2015 (“2015 Circular”), he submits that Mr.
Marpakwar, being a Defence Representative, was entitled to receive
reimbursement of TA/DA for the trips made to Mumbai to defend the
Petitioner in the disciplinary proceedings.
(ii) While originally under the 2011 Circular and the 2012 Circular only Defence
Representatives who were in service appear to be entitled to TA/DA, the 2015
Circular makes it clear that both serving and retired Defence Representatives
would be entitled to reimbursement of TA/DA.
(iii) The 2015 Circular makes it clear that both in-service and retired persons acting
as Defence Representatives were entitled to TA/DA and reliance was placed
upon certain illustrative instances set out in the Additional Affidavit dated 23rd
February 2019, filed on behalf of the Petitioner.
(iv) To not grant TA/DA to a Defence Representative such as Mr. Marpakwar
would be to render the very opportunity of defence illusory and the object of
appointing a Defence Representative would be defeated.
8. Mr. Singhvi has placed reliance on a judgment of the Central Administrative
Tribunal reported in [1990] (13) Administrative Tribunal’s Cases 650 in
the matter of S. Pandian & Ors. V. Director B.C.G. Vaccine Laboratory,
Madras, and the judgment of the Hon’ble Supreme Court in the challenge to
the said Order in the matter of Director, B.C.G. Vaccine Laboratory,
Madras Vs. S. Pandian & Ors. [(1997) 11 SCC 346]. Mr. Singhvi submits
that from the judgment of the Supreme Court it is clear that the employees in
question were provided reimbursement of fees for a legal practitioner engaged
by them in the Disciplinary Proceedings, even though there was no specific
provision for the same. He submits that on a parity of reasoning, the Petitioner
herein ought to be provided with reimbursement of TA/DA in respect of Mr.
Marpakwar.
9. Per Contra, Mr. Cama on behalf of the Respondent No. 1 Bank submitted as
under:
(i) The entire object of the Regulations was not to assist a charge sheeted
employee per se, but to ensure that an employee of the Bank who was required
to attend disciplinary proceedings and therefore missed work should not be put
to prejudice and should be duly compensated for the costs involved in travelling
and attending before the Disciplinary Authorities.
(ii) A perusal of clauses 12(a) and 12(d) of the Regulations clearly shows that there
is a distinction made between employees acting as Defence Representatives and
third parties such as Mr. Marpakwar, who admittedly was not an employee, and
was appointed pursuant to clause 12(a)(ii) of the concerned Regulations.
(iii) Clause 12(d) of the Regulations makes it clear that only an employee of the
Bank would be entitled to reimbursement of TA/DA.
(iv) The Circulars, when correctly read, do not further the Petitioner’s stand, and
merely clarify that TA/DA will be paid both to retired employees as also the
employees who are currently in service of the bank; the underlying position
therefore clearly is that TA/DA will be payable to a Defence Representative, if
at all, only if the Defence Representative is either a serving or retired employee
of the Bank, which is not the case so far as Mr. Marpakwar is concerned.
(v) While the Respondent No. 1 Bank’s position in its Affidavit dated 18th June
2019 is that the 2015 Circular is not applicable to the Respondent No. 1 Bank
and that the Respondent No. 1 Bank is governed by a separate Circular dated
23rd July 2012 annexed to the Affidavit of the Respondent No. 1 Bank, even on a
demurrer that the 2015 Circular applies, it would only apply to employees and
not to a third party such as Mr. Marpakwar.
10. Mr. Cama has distinguished the judgments cited by the Petitioner on facts. He
therefore submits that the Petition be dismissed.
11. Having heard the learned Counsel for the parties and having perused the
concerned Regulations and the Circulars relied upon, we are of the view that
the Petition is required to be dismissed for the reasons set out hereafter.
12. The relevant Regulations, when properly analysed, would show that they set
out the Disciplinary Action Procedure to be followed by the Respondent No. 1
Bank in case of disciplinary proceedings instituted by the Bank. Clause 12(a) of
the Regulations sets out the persons who may be engaged by the chargesheeted
employee as his Defence Representative. It is clear that Clause 12(a)(i)
contemplates certain categories of Defence Representatives who are employees
of the Respondent No. 1 Bank, whereas clauses 12(a)(ii) and 12(a)(iii)
contemplate third parties / non employees being engaged as Defence
Representative. Pertinently, Clause 12(a)(iii) even contemplates a lawyer being
engaged as a Defence Representative. Clause 12(a) thus shows that the framers
of the Regulations were conscious of the distinction between employees and
non-employees acting as Defence Representatives.
13. Being mindful of the above distinction, in Clause 12(d) of the Regulations, it
has been specifically provided that an employee of the Bank at an outstation
branch within the same State shall be entitled to reimbursement of the
travelling costs incurred in acting as a Defence Representative. This clause
makes it clear that the right to reimbursement is restricted only to employees of
the Respondent No. 1 Bank who are required to travel for the purpose of
attending disciplinary proceedings in which they are engaged as Defence
Representatives. Pertinently, this clause has certain checks and balances to
ensure that the sums claimed by way of reimbursement are kept within a fare
structure which the Bank is aware of; this avoids the Respondent No. 1 Bank
from being subjected to claims for exorbitant sums beyond its control, towards
TA/DA. The Regulation specifically provides that the employee in question
will be entitled only to the same class of fare to which he is eligible while
traveling on duty. As aforestated, this ensures that the Bank is not put to
uncontrolled expenditure by reason of the chargesheeted employee claiming
exorbitant or arbitrary or inflated sums by way of reimbursement of TA/DA.
14. Consciously, the Regulations do not make any such similar provisions for nonemployees
engaged as Defence Representatives. This would be logical having
regard to the fact that the Respondent No. 1 Bank would have no control over
the amount expended for traveling expenses of a Defence Representative who
was not an employee and for whom therefore there is no fixed class of fare.
Were the Respondent No. 1 Bank called upon to pay TA/DA claimed for a non
employee / third party, absent any stipulated class of fare as is prescribed for
employees, it would potentially render the Respondent No. 1 Bank liable to pay
such / any sums as may be claimed by the Defence Representative / the
chargesheeted employee at their sole ipse dixit. This would be entirely unfair
and would constitute an unreasonably harsh burden imposed upon the
Respondent No. 1 Bank, and therefore consciously was not provided for in the
Regulations.
15. The above conclusion that we have arrived at would also appear to us to be a
logical position. It would be entirely untenable for the Respondent No. 1 Bank
to be foisted with the uncapped liability to reimburse the travelling expenses of
a non-employee / third party Defence Representative. As set out above, Clause
12(a)(iii) even contemplates the charge-sheeted employee engaging a lawyer as
a Defence Representative. The Respondent No. 1 Bank would have no control
over the expenses of such lawyer/non-employee and it is unreasonable to
expect that they would nonetheless be required to foot the bill for the travelling
expenses of such lawyer or non-employee.
16. The Circulars relied upon by Mr. Singhvi to support his contention that the
travelling expenses of Mr. Marpakwar are required to be reimbursed, do not in
fact assist the Petitioner. The Circulars (without going into Respondent No. 1
Bank’s contention that the 2015 Circular has not been adopted by Respondent
No. 1 Bank) do not more than clarify that the reimbursement of TA/DA is not
restricted only to a serving employee acting as a Defence Representative but is
also applicable to a retired employee of Respondent No.1 Bank who is acting as
a Defence Representative. The title of each of the Circular makes it clear that
the Circulars pertain to reimbursement of TA/DA to serving, retired or
dismissed employees, but in all cases the common thread is that the
reimbursement is contemplated only for an employee. The 2012 Circular
clarifies that in the case of retired / dismissed employees, the reimbursement of
TA/DA will be at the rate admissible to a person in the cadre/grade which he
was holding at the time of his retirement or leaving the bank’s services. This is
in line with Clause 12(d) of the Regulations referred to by us above.
17. The 2015 Circular, although predominantly in respect of witnesses, once again
contemplates reimbursement for “serving / retired employees”. This Circular
too does not make any reference to or appear to have any applicability to, third
party / non-employee Defence Representatives.
18. It is thus clear from an analysis of the above Regulations and the Circulars that
the reimbursement of TA/DA have consciously and specifically been provided
only for serving, retired or dismissed employees of Respondent No.1 Bank who
are acting as Defence Representatives. The Petitioner has been unable to show
a single Regulation or Circular which would compel Respondent No.1 Bank to
reimburse the traveling expenses and/or TA/DA of a non employee / third
party Defence Representative. Accordingly, it is untenable for the Petitioner to
contend, on the basis of the Regulations and the Circulars, that the Respondent
is entitled for reimbursement of travelling expenses for Mr. Marpakwar, who is
admittedly not a serving, retired or dismissed employee of Respondent No. 1.
19. We cannot accept the submission of Mr. Singhvi that the non reimbursement of
travelling expenses would render the defence of Petitioner illusory. Nothing
stopped the Petitioner from engaging the services of an employee of
Respondent No.1 Bank, serving, dismissed or retired, in which case he would
have been entitled to reimbursement of travelling expenses. It is not as if the
Petitioner was not aware of the concerned Regulations, having himself
repeatedly invoked the same in the earlier rounds of litigation filed in this
Court. This being the position, being fully conscious of the Regulations
specifically providing for reimbursement of TA/DA only for employees, the
Petitioner chose to engage Mr. Marpakwar as his Defence Representative. The
Petitioner cannot simultaneously seek to invoke the Regulations when it suits
his purposes and yet seek to deviate from the Regulations or seek something
beyond the Regulations, as he is attempting to do in the present case. It is not
the grievance of the Petitioner in the present case that the Defence
Representative has not been heard, and accordingly, there is nothing illusory
about the opportunity to defend which is given to the Petitioner.
20. The judgments of the Central Administrative Tribunal and the Supreme Court
are entirely inapplicable in the facts of the present case. Admittedly, the
judgment of the Supreme Court turns on the special facts in that case set out in
paragraph 5 of the judgment. Neither the Central Administrative Tribunal nor
the Supreme Court were dealing with a situation in which there was a specific
Regulation providing for reimbursement of costs to the persons named in the
Regulations. In the present case, there is an express provision in the
Regulations and in the Circulars for reimbursement to employees. The present
matter is a fit case where the expression expressio unious et exclusio alterius
would apply. The Regulations with which we are concerned, having expressly
contemplated a Defence Representative being both an employee and a nonemployee,
consciously provided for reimbursement of TA/DA only to Defence
Representatives who were employees. Thus, it was consciously provided that
only those persons would be entitled to reimbursement and non-employees
were specifically excluded from the ambit of reimbursement of TA/DA. Thus,
on the facts of the case before us, we find that the judgment of the Supreme
Court, will have no applicability.
21. In the above circumstances, we are of the view that the Respondent No. 1 Bank
was justified in its refusal to reimburse travelling expenses of the Defence
Representative Mr. Marpakwar. The Petition is therefore dismissed, with no
order as to costs.
( S.J.KATHAWALLA, J. ) ( AKIL KURESHI, J.)
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