S.P.Talukdar, J. - (1.) BY filing the instant application under Article 226 of the Constitution, the Petitioner, Oxford Mission Trust Association, sought to assail the purported order No. 38 dated 15.2.2000, whereby the domestic enquiry was held to be illegal, improper and unjustified. The Petitioner further challenged the Award dated 5th September, 2000 whereby the learned Tribunal directed reinstatement of the delinquent employee in service with full back wages. The Petitioner alleged that the Respondent No. 2 erroneously held that the enquiry was conducted on the basis of presumption, conjectures and extraneous factors. Such Respondent No. 2 manifested its total non -consideration of the material on record while passing the impugned award dated 5th September, 2000.
(2.) RESPONDENT No. 3 was employed as the Chief Accountant of the Oxford Mission at the relevant period prior to his dismissal from service. On 24th of June, 1994, a sum of Rs. 81,875/ - was withdrawn from the banker of the Mission in cash by the Trainee Accountant, Mr. Sanjay Mitter. The said amount was handed over to the Respondent No. 3 at about 12.15 p.m. on the said date. On 24th June, 1994 all the staff of the Mission including Respondent No. 3 left the office at about 4.30 p.m. It was subsequently revealed that Respondent No. 3 was found to turn the handle of the safe at about 4 -30 p.m. before leaving the office. On 27.6.1994, Respondent No. 3 came to the office at about 9.20 a.m. well before usual time of arrival of the office staff. At about 10 a.m. Respondent No. 3 told Mr. Sanjay Mitter that the money which was earlier kept in the safe had been stolen. Being told by Mr. Mitter, Respondent No. 3 reported the incident to his superior. He declared without even counting the cash that 3 bundles of Rs. 100/ -each and one bundle of Rs. 50/ - were missing. This incident was reported to the Officer -in -charge, Thakurpukur Police Station on 27.6.1994. Respondent No. 3 stated before the police authority that on 24.6.1994 he and another person had misappropriated an amount of Rs. 35,000/ - from the cash of the Mission and undertook to refund the entire amount to the police authority. He was served with a show -cause notice on 5.8.1994 in connection with the incident of theft. He was placed under suspension pending domestic enquiry by an order dated 8th August, 1994. He, however, gave a different story in response to the show -cause notice. His explanation having not been found satisfactory, an enquiry was initiated. He was offered all reasonable facilities for defending himself. He gave a letter dated 25.8.1994 ventilating all his grievances. He clearly expressed his unwillingness to participate in the said enquiry proceedings, which was conducted ex parte against him on 31.8.1994. After conclusion of enquiry, enquiry officer submitted his report. All the charges levelled against him were proved in the enquiry. Copy of the report of the same was sent to him with a forwarding letter dated 12.9.1994. He gave a letter dated 15.9.1994 again reiterating his earlier unspecified allegations. The management, thereafter issued the order of dismissal. Respondent No. 3 then raised a purported industrial dispute. The Respondent No. 2 proceeded to decide the validity of the domestic enquiry as a preliminary issue. By an order No. 38 dated 15.2.2000, the enquiry was held to be vitiated. The management was called to prove the charges by adducing evidence Thereafter, the impugned award dated 5th September, 2000 which was published on 3rd October, 2000 was passed. The Petitioner alleged that the private Respondent No. 3 having consciously refused to participate in the domestic enquiry, there can be no justification for Respondent No. 2 to hold that he was denied reasonable opportunity of hearing in the enquiry. Respondent No. 2 failed to consider that even the private Respondent in his pleadings before the Tribunal had not assailed the enquiry on any cogent ground nor the same was assailed on the ground of perversity. Respondent No. 2 further failed to appreciate that the standard of proof in criminal proceedings and enquiry proceedings are different and both can continue simultaneously. The unchallenged oral testimony of the management witnesses by itself established the guilt of Respondent No. 3. It was not proper on the part of the Respondent No. 2 to rely upon the evidence of the Respondent No. 3 in connection with the police investigation regarding the holding of duplicate key of the safe by Brother Superior, Amit Biswas since it was not a part of the evidence in the enquiry proceedings. It was further improper on the part of the Respondent No. 2 to ignore the incident on the ground of nonavailability of eye -witness.
(3.) THE fact that the Respondent No. 3 was held not guilty of the criminal charge against him could not be a matter for consideration by Respondent No. 2, while appreciating the materials before it in the proper perspective.;