Oxford Mission Trust Association vs State of West Bengal and others

S.P. Talukdar, J.—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.

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 On 24th of June, 1994, a sum of Rs. 81,875/- was withdrawn from the banker of the Mission in cash by the Trainee Accountant, Mr.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.

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.

Being aggrieved by such order 38 dated 15.2.2000 and the award dated 5.9.2000, the Petitioner approached this Court for redressal of its grievances.

Respondent No. 3 contested the case by filing affidavit-in-opposition. It was claimed that the Petitioner had not challenged the order of reference at any point of time and instead had fully participated and contested the proceedings before the learned Tribunal where every possible opportunity was given to the Petitioner to establish its case. Upon evidence on record, learned Tribunal came to the conclusion that the order of dismissal from service of the Respondent-workman is not justified and direction was given for his reinstatement with full back wages. It was further claimed that the Petitioner failed to establish the charge of theft and misappropriation of funds in spite of being given opportunity. Any statement made by him in connection with the criminal investigation is of little consequence since it was a statement recorded u/s 161 of the Code of Criminal Procedure. It was further stated by such Respondent No. 3 that he requested the Petitioner to wait for necessary response from the Chairman of the Mission at London to whom he made a prayer but without paying any heed, the Petitioner chose to proceed with the enquiry ex parte on 31st August, 1994. In absence of any response, it was not possible for the Respondent No. 3/workman to take decision regarding his course of action and as such, the proceeding was conducted ex-parte. The Respondent No. 3 was thus denied the basic right to defend himself and consequently, there had been violation of the principles of natural justice. The fact that the delinquent officer gave legal advice to the Petitioner also went a long way to reflect bias. It was not right on the part of the Petitioner to claim that the Respondent No. 2 decided the matter in favour of the workman relying upon the fact that the charge against him, so far the criminal case was concerned, could not be established. According to such Respondent No. 3, the learned Tribunal proceeded independently and on proper appreciation of the materials placed before it concluded that the charges against the Respondent No. 3/workman could not be established. It was further stated by such Respondent No. 3/workman that the allegations made on behalf of the Petitioner are without any basis and that balance of convenience and inconvenience tilts heavily in his favour. Dismissal of the application was so prayed for.

In the affidavit-in-reply, the stand taken in the writ application was further reiterated. It was claimed that the learned Tribunal was not justified in considering the validity of the dismissal order in the light of the criminal proceeding although the dismissal order was passed long before conclusion of the criminal trial. The private-Respondent was discharged in the criminal case since the police authorities failed to frame charge in time for reasons best known to it.

Before dealing with the issues raised at the time of the hearing of the application, it may be mentioned that attempts were made for amicable settlement. But despite being given repeated opportunities, such settlement could not be arrived at. This left the Court with no choice but to proceed with hearing on merit.

Mr. Majumdar appearing as learned Counsel for the writ Petitioner submitted that the learned Tribunal failed to appreciate that standard of proof of a charge in a criminal trial and in a departmental proceeding are significantly different. Finding of guilt and proving the charge in a criminal trial demand proof beyond reasonable doubt. In a disciplinary proceeding, it is the preponderance of probability. It is worth mentioning that whatever is possible is not necessarily probable and vice versa. It may also be added that whatever is probable or possible may not necessarily be certain. It is true, that learned Tribunal has referred to the fact that the Investigating Authority could not find sufficient material so as to submit charge sheet against him. The Investigating Authority submitted final report. The learned Court accepted the same and discharged the accused. This, by itself, does not mean that such a person cannot be found guilty of a similar, if not identical charge, in a departmental proceeding. This Court, however, is not expected to evaluate the evidence, which was available before the learned Tribunal. The scope of judicial review does not permit the Court to analyze the materials and evidence with coffee spoon. Unless there is manifest perversity in appreciation of materials, this Court is not expected to interfere.

The fact however remains that the evidence of the management witness was not considered to be sufficient to the satisfaction of the judicial conscience of the learned Tribunal so as to establish the charge. Non-availability of eye-witness does not really matter in the backdrop of the present case. But, then again, there must be sufficient material connecting the delinquent employee with the alleged offence. If the learned Tribunal did not find the unchallenged oral testimony of the management witness sufficient enough so as to establish the charge, I do not think that this by itself would justify any interference by this Court. It also cannot be denied that the Respondent No. 3/workman did not get ample opportunity to defend himself. This goes a long way to suggest that there had been violation of principles of natural justice causing prejudice to the delinquent employee.

Having regard to all such facts and circumstances, I find it very difficult to appreciate the grievances raised on behalf of the writ Petitioner. It is found from the award under challenge that the learned Tribunal found from the evidence on record that the key of the Almirah used to be kept with Respondent No. 3 and another one with Brother Superior, Amit Biswas. If there were latent wounds in the evidence, which could not be healed up, it would not be justified to proceed on presumption. The learned Tribunal quite rightly did not choose to explore the "ifs and might-have-been."

There is another aspect worth mentioning. Learned Tribunal while directing reinstatement appears to have gone a step further by advising the authority concerned to engage him in any other department since, according to learned Tribunal, the authority had lost confidence in him. Such observation appears to be unwarranted. The authority concerned knows it best as to how to comply with the direction of the Court.

This Court cannot afford to ignore the fact that 8 years have passed since passing of the award. It may be that the Respondent No. 3/workman has by this time reached the age of superannuation. In that event, this Court modifies the impugned order and the award dated 5.9.2000 to the extent that the Petitioner must be given all his back wages i.e., salary, allowances and other admissible amounts which he would have been entitled to get, if in service. This must be done within a period of three months from the date of communication of this order. If Respondent No-3/workman has not reached the age of superannuation, the direction given in the award must be complied within the aforesaid period with the modification that it would be open for the authority concerned to accommodate the concerned employee in any department of its choice.

There is no order as to costs.

Xerox certified copy of this judgment, if applied for, be supplied to the parties upon due compliance of the legal formalities.