The Chairman, State Bank of India and Another vs M. J. James

Clause 22(ix)(a), 2(e) – Object of definition clauses – Held: Is to avoid frequent repetition in describing the subject matter to which the word or expression is intended to apply – This is useful when the same word or expression is used more than once in the same enactment – Definition can be with the intent to attract a meaning already established by law; expand the meaning by adding a meaning; or narrow the meaning by exclusion – Repugnancy will arise when the definition meaning does not agree with the subject in the context – On facts, repugnancy not indicated and does not arise in the context of Clause 22(ix)(a) by mere absence of article ‘the’ in Clause 22(ix)(a) before the word ‘bank’. Inquiry: Domestic inquiry – Choice of representation – Right of – Held: Right to be represented by a counsel or agent of one’s choice is not an absolute right but can be controlled 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 – Said proposition flows from the entitlement of fair hearing, applicable in judicial as well as quasi-judicial decisions.

‘Acquiescence’ and ‘delay and laches’ – Distinction between – Held: Doctrine of acquiescence is an equitable doctrine which applies when a party having a right stands by and sees another dealing in a manner inconsistent with that right – Acquiescence virtually destroys the right of the person – However, both limitation and laches destroy the remedy but not the right – Laches like acquiescence is based upon equitable considerations, but laches unlike acquiescence imports even simple passivity – On facts, inactive acquiescence on the part of the Bank Manager 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 Bank Manager from claiming violation of the right of fair representation.

Administrative law: Statutory authority – Non-performance of duty – Defence of delay and laches – Held: When the statutory authority does not perform its duty within a reasonable time, the same cannot be justified by taking the plea that the person deprived of his rights has not approached the appropriate forum for relief – Statutory authority cannot take the defence of laches and delay. Allowing the appeal, the Court

HELD: 1.1 The judgment under challenge seems to have overlooked the implications of clause 2(e) of the Bank of Cochin Service Code. The objective of definition clauses is to avoid frequent repetition in describing the subject matter to which the word or expression is intended to apply. This is useful when the same word or expression is used more than once in the same enactment. The raison d’etre behind the definition clause is that while interpreting a provision, the defined word or expression would carry the same meaning as the defined words or expression are employed and used by the maker in the sense appropriate to the definition. The definition can be with the intent to attract a meaning already established by law; expand the meaning by adding a meaning; or narrow the meaning by exclusion. This general rule of construction laid down by the enactment is subject to the context. Albeit, the interpreter, to deviate from the defined meaning, should record reasons to show that the word/expression in that particular provision carries a different meaning. Contrary context is not to be assumed or accepted easily, in the absence of indication and reason to differ from the defined meaning. The repugnancy will arise when the definition meaning does not agree with the subject in the context. Repugnancy is not indicated and does not arise in the context of Clause 22(ix)(a) of Chapter VIII of the Service Code by mere absence of article ‘the’ in Clause 22(ix)(a) before the word ‘bank’, as held in the impugned judgment. This is too weak and feeble a reason to discard and over–ride the defined meaning which is the general norm, and not an exception that has to be justified. Deficiency of ‘the’ does not disclose abandonment of the express definition of ‘bank’ vide clause 2(e) of the Service Code. Absurdity or even ambiguity is not obvious or even palpable. The word ‘bank’ in Clause 22(ix)(a) can be validly and effectively interpreted as per the definition clause as referring to the Bank of Cochin Ltd., and not any or other bank(s). Therefore, 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. [Para 18, 19][389-E-H; 390-A-E] Nahalchand Laloochand Private Ltd. v. Panchali Coop. Housing Society Ltd. (2010) 9 SCC 536 : [2010] 10 SCR 804; Bhagwati Developers Pvt. Ltd. v. Peerless General Finance and Investment Co. Ltd. & Anr. (2013)

9 SCC 584 : [2013] 7 SCR 547; Crescent Dyes and Chemicals Ltd. v. Ram Naresh Tripathi (1993) 2 SCC

115 : [1992] 3 Suppl. SCR 559; National Seeds Corporation Ltd. v. K.V. Rama Reddy (2006) 11 SCC

645 : [2006] 6 Suppl. SCR 725; Dharampal Satyapal Ltd. v. Deputy Commissioner of Central Excise, Gauhati and Others (2015) 8 SCC 519 : [2015] 6 SCR 437; A.K. Kraipak and Others v. Union of India and Others (1969) 2 SCC 262 : [1970] 1 SCR 457; State Bank of Patiala and Others v. S.K. Sharma (1996) 3 SCC 364 : [1996] 3 SCR 972; M.C. Mehta v. Union of India and Others (1999) 6 SCC 237 : [1999] 3 SCR 1173; S.L. Kapoor v. Jagmohan and Others (1980) 4 SCC 379 : [1981] 1 SCR 746; State of U.P. v. Sudhir Kumar Singh and Others (2020) SCC Online SC 847 – referred to. Bennion on Statutory Interpretation, Indian Reprint, Sixth Edition – referred to.

1.2 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 said proposition flows from the entitlement of fair hearing, which is applicable in judicial as well as quasi-judicial decisions. [Para 20][391-C-E]

1.3 The respondent was aware that his request to be represented by a representative of his own choice had been rejected. Even then he took time and decided not to file an appeal before the Board of Directors against the order of the inquiry officer rejecting his request. He allowed the inquiry proceedings to continue and then filed an application for production of documents. When asked about relevancy, his stance was he had his own reasons on how the documents were relevant. In spite of ample opportunity, the respondent did not adduce evidence or examine witnesses, and abruptly stood up and walked out. Observations and findings in the disciplinary proceedings on the aspect of irregularities regarding exceeding his authority in the grant of advances, acceptance of discovery bills and the issue of bank guarantees etc. are clear and remain uncontroverted. The respondent’s defence in the form of alibi that he had followed the oral instructions of the then Chairman and the Director, which is of questionable merit, is to be rejected as unproven. On this aspect somewhat reflecting on merits, the Single Judge had observed that the allegations if proven constitute gross misconduct, warranting punishment of dismissal. The Division Bench has not commented on this aspect, but has made observations assuming prejudice was caused, which reasoning cannot be sustained. The judgments under challenge do not consider the effect of the defence pleaded by the respondent and whether there was no effective denial. Conduct of the respondent, including the opportunities granted during the departmental proceedings, have gone unnoticed. On the alibi, the respondent did not furnish any details or particulars of cases or instances and had refused to lead evidence. Clause 22(ix)(a), as worded, envisages that an employee against whom disciplinary action is proposed would 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. He is permitted to appear before the officer conducting the inquiry, cross–examine the witnesses and produce other evidence in his defence. 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. 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. Such permission is required if an employee wants a lawyer to represent him/her in the disciplinary proceedings. In this case, contrary to the observations in the impugned judgment by the Division Bench, the respondent had never prayed or sought permission to be represented by a lawyer. This is despite the respondent being aware of the professional status of the inquiry officer and the presenting officer. [Para 26][396-B-H; 397-A-C]

1.4 The dismissal order passed on 18.04.1985 remained unchallenged for more than four years, as the appeal to the Chief General Manager of the State Bank of India was filed on 20.09.1989. The respondent, however, relies on Clause 22(x) of the Service Code relating to appeals. Undoubtedly, the Service Code does not stipulate any time period within which the appeal may be preferred to the Board of Directors whose decision is to be final, but it is well settled that no time does not mean any time. The assumption is that the appeal would be filed at the earliest possible opportunity. However, the appeal should be filed within a reasonable time. What is a reasonable time is not to be put in a straitjacket formula or judicially codified in the form of days etc. as it depends upon the facts and circumstances of each case. A right not exercised for a long time is non–existent. Doctrine of delay and laches as well as acquiescence are applied to non–suit the litigants who approach the court/appellate authorities belatedly without any justifiable explanation for bringing action after unreasonable delay. In the instant case, challenge to the order of dismissal from service by way of appeal was after four years and five months, which is certainly highly belated and beyond justifiable time. Without satisfactory explanation justifying the delay, it is difficult to hold that the appeal was preferred within a reasonable time. Pertinently, the challenge was primarily on the ground that the respondent was not allowed to be represented by a representative of his choice. The respondent knew that even if he were to succeed on this ground, as has happened in the writ proceedings, fresh inquiry would not be prohibited as finality is not attached unless there is a legal or statutory bar, an aspect which has been noticed in the impugned judgment. This is highlighted to show the prejudice caused to the appellants by the delayed challenge.[Para 27][397-C-H; 398A-B]

1.5 The appeal preferred by the respondent with the Chief General Manager of the State Bank of India had remained unattended for almost nine years. The appellants, it is apparent, simply lost track and forgot that the service appeal was filed or pending. The respondent was never an employee of the appellant’s bank as his services were terminated, nearly four months before the Bank of Cochin, a private Bank, got amalgamated with the State Bank of India. The appellants being at fault must bear the burden and adverse consequences.[Para 28][398-B-D] Ram Chand and Others v. Union of India and Others (1994) 1 SCC 44 : [1993] 2 Suppl. SCR 558; State of U.P. and Others v. Manohar (2005) 2 SCC 126 : [2004]

6 Suppl. SCR 911; Union of India and Others v. Tarsem Singh (2008) 8 SCC 648 : [2008] 12 SCR 104; Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and Others (1979) 2 SCC 409 : [1979] 2 SCR 641; U.P. Jal Nigam and Another v. Jaswant Singh and Another (2006) 11 SCC 464 – referred to.

1.6 Doctrine of acquiescence is an equitable doctrine which applies when a party having a right stands by and sees another dealing in a manner inconsistent with that right, while the act is in progress and after violation is completed, which conduct reflects his assent or accord. He cannot afterwards complain. In literal sense, the term acquiescence means silent assent, tacit consent, concurrence, or acceptance, which denotes conduct that is evidence of an intention of a party to abandon an equitable right and also to denote conduct from which another party will be justified in inferring such an intention. Acquiescence can be either direct with full knowledge and express approbation, or indirect where a person having the right to set aside the action stands by and sees another dealing in a manner inconsistent with that right and inspite of the infringement takes no action mirroring acceptance. However, acquiescence will not apply if lapse of time is of no importance or consequence. [Para 29][400-B-E] Prabhakar v. Joint Director, Sericulture Department and Another (2015) 15 SCC 1 : [2015] 9 SCR 890; Gobinda Ramanuj Das Mohanta v. Ram Charan Das and

Suyamal Das AIR 1925 Cal 1107; M/S Vidyavathi Kapoor Trust v. Chief Commissioner Tax (1992) 194 ITR 584; Krishan Dev v. Smt. Ram Piari AIR 1964 HP

34 – referred to.

UN Mitra, Tagore Law Lectures – Law of Limitation and Prescription, Volume I, 14TH Edition, 2016 – referred to.

1.7 Laches unlike limitation is flexible. However, both limitation and laches destroy the remedy but not the right. Laches like acquiescence is based upon equitable considerations, but laches unlike acquiescence imports even simple passivity. On the other hand, acquiescence implies active assent and is based upon the rule of estoppel in pais. As a form of estoppel, it bars a party afterwards from complaining of the violation of the right. Even indirect acquiescence implies almost active consent, which is not to be inferred by mere silence or inaction which is involved in laches. Acquiescence in this manner is quite distinct from delay. Acquiescence virtually destroys the right of the person. Given the said legal position, inactive acquiescence on the part of the respondent 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 respondent from claiming violation of the right of fair representation.[Para 30][400-E-G; 401-A-B]

1.8 The 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. Often, relevant and material evidence go missing or are not traceable causing prejudice to the opposite party. 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. These facets, when proven, must be factored and balanced, even when there is delay and laches on the part of the authorities. These have bearing on grant and withholding of relief. Therefore, this Court has factored in the aspect of prejudice to the appellants in view of the relief granted in the impugned judgment.[Para 31][401-B-E]

M/s Dehri Rohtas Light Rly. Co. Ltd. v. District Board, Bhojpur and Others (1992) 2 SCC 598 : [1992] 2 SCR 155; State of Maharashtra v. Digambar (1995) 4 SCC

683 : [1995] 1 Suppl. SCR 492 – referred to.

R. (on the application of Parkyn) v. Restormel BC [2001] EWCA Civ 330; R. v. Monopolies and Mergers

Commission Ex p. Argyll Group [1986] 1 W.L.R. 763 – referred to.

1.9 The relief as granted has serious financial repercussions and would also prevent the appellants from taking further action, which aspect has been noticed, though not finally determined in the impugned judgment. 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. The courts can always refuse to grant relief to a litigant if it considers that grant of relief sought is likely to cause substantial hardship or substantial prejudice to the opposite side or would be detrimental to good administration. This principle of good administration is independent of hardship, or prejudice to the rights of the third parties and does not require specific evidence that this has in fact occurred, though in relation to withholding relief some evidence may be required. Relief should not be denied for mere inconvenience but when the difficulty caused to the decision maker approaches impracticability or when there is an overriding need for finality and certainty. [Para 32][401-E-H; 402-A]

1.10 The respondent had approached the High Court through a writ petition whereby directions were issued vide for consideration and disposal of the appeal, which, was interpreted as a direction that the appeal should be decided on merits. One can appreciate the predicament of the Chief General Manager who had to adjudicate the appeal in terms of the direction of the Constitutional Court and, thus, his reluctance to dismiss the appeal on the ground of delay and laches. The appeal was dismissed on merits. These aspects cannot be ignored as the exercise of writ jurisdiction is always discretionary which has to keep in view the conduct of the parties. [Para 33][402-B-D]

1.11 The dues payable to the respondent in terms of the impugned judgment were released to him on furnishing security to the satisfaction of the Chief General Manager. During the course of hearing, it was stated that the amount released has been kept in a fixed deposit. The payment released is directed to be returned and restituted to the appellant bank without interest within the stipulated period. [Para 34][402-D-E]

1.12 The impugned judgment is set aside and quashed. The order of dismissal is upheld and consequently the writ petition filed by the respondent would be treated as dismissed. [Para 35][402-F-G]