- (1.) DR. B. S. Chauhan, J. This Special Appeal has been filed against the judgment and order dated 4th October, 2006 of a learned Judge of this Court, by which the writ petition filed by the present appellant for issuing a direction upon the respondents to grant him permission to have a lawyer as a defence nominee in disciplinary proceedings, has been dismissed.
(2.) THE facts and circumstances giving rise to this case are that the petitioner-appellant, who is working as Head Cashier Category 'e' had been served with a charge-sheet on 1-4-2006 and the respondent No. 5 had been appointed as Inquiry Officer. THE petitioner-appellant made a representation before the respondent No. 4, the Disciplinary Authority, requesting him to accord permission to seek assistance from a lawyer. However, the said representation was rejected vide order dated 28-4-2006. Being aggrieved, the petitioner-appellant challenged the said order by filing an appeal before the Appellate Authority and the Appellate Authority rejected the same vide order dated 20- 5-2006. THE said orders were challenged by filing the writ petition, which has been dismissed on the ground that the department was not being represented by lawyers and the case did not involve complicated legal issues as it was merely a case of financial irregularities. THE learned Single Judge held that the provisions applicable for holding the enquiry is governed by Clause 12 of the Memorandum of Settlement reached between the parties, which is binding on them in view of the provisions of Section 18 of the Industrial Disputes Act, 1947. THE said clause provides that a lawyer may be engaged as a defence nominee only with the permission of the Bank otherwise the employee can be represented through the registered trade union and as such the order of rejection of his application for seeking lawyer assistance was not unreasonable and arbitrary. Shri V. Pratap, learned Counsel appearing for the respondents has raised a preliminary objection regarding maintainability of the appeal contending that the provisions of Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 (hereinafter called the 'rules') do not provide for Special Appeal in case the writ petition before the learned Judge has been filed against the order of the Appellate Authority. It has been pointed out by Shri Pratap that in the instant case, the application for having the lawyer's assistance has been rejected vide order dated 28- 4-2006 and the appeal against the same was dismissed on 20-5- 2006, therefore, the appeal is not maintainable. Even otherwise it is not a fit case where the appellate Court should interfere on merit as the lawyer's assistance is required only with the permission of the Bank and the permission has not been withheld on any unreasonable or arbitrary ground. In this case, no technical issues are involved; it is a plain and simple case of financial irregularities and as the petitioner-appellant himself has sufficient experience of bank working, no interference is required and the appeal is liable to be dismissed. On the contrary, Shri B. N. Singh, learned Counsel appearing for the petitioner-appellant has vehemently submitted that the appeal filed by the petitioner-appellant was not a statutory appeal but was merely a representation, and, therefore, the preliminary objection raised by the learned Counsel for the respondents is not tenable. On merit, it is submitted that as the appellant is not acquainted with the technical Rules of disciplinary proceedings, his application for seeking assistance of a lawyer ought to have been allowed and, therefore, the appeal deserves to be allowed.
(3.) WE have considered the rival submissions made by learned Counsel for the parties and perused the record. We shall first deal with the preliminary objection raised on behalf of the respondents that this Special Appeal is not maintainable. The provisions relating to Special Appeal are contained in Chapter VIII Rule 5 of the Rules and the same are reproduced below : "5. Special Appeal.- An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction) in respect of a decree or order made by a Court subject to the Superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of criminal jurisdiction (or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award (a) of a Tribunal, Court or Statutory Arbitrator made or purported to be made in the exercise or purported of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution or (b) of the Government or any officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge. ";