IMPORTANT POINT
Prejudice to the delinquent due to non-supply of enquiry report/second show-cause has to be decided by the Court.

JUDGMENT

Altamas Kabir, J.

1. Leave granted.

2. The short point for decision in this Appeal is whether an employer can take disciplinary action against an employee in regard to acts purported to have been done by him in his previous employment in an affiliated society.

3. The Respondent No.1 herein was an employee of Raipur Krishi Unnayan Samity (hereinafter referred to as “the Samity”), a cooperative society affiliated to the Burdwan Central Cooperative Bank, the Appellant herein. Under its Recruitment Rules, the Bank was entitled to recruit people from the affiliated societies through a regular recruitment process. In the recruitment process held in 1997, the Bank appointed the Respondent No.1 as a Grade III Staff of the Bank by an appointment letter dated 8th September, 1997. On being offered the said appointment, the Respondent No.1 left the services of the Samity where he was working and joined the Bank pursuant to the appointment letter issued to him.

4. While the Respondent No.1 was serving in the Bank, the Assistant Registrar, Cooperative Societies, Burdwan-I, lodged a complaint with the Bank that during an enquiry conducted by the Registrar of Cooperative Societies, it had transpired that the Respondent No.1 had committed various financial irregularities in maintaining the accounts of the Samity. In view of the above, the Assistant Registrar recommended that action be taken against him.

5. On the basis of the said complaint, the Bank issued a charge-sheet to the Respondent No.1 on 2nd February, 2000. Although, according to the Bank, the said Respondent admitted his guilt in his reply to the charge-sheet, a full-fledged enquiry was held by the Bank by appointing an Enquiry Officer and affording the Respondent No.1 adequate opportunity to defend himself, since according to him, he had been forced to sign a letter of confession. On conclusion of the disciplinary proceedings, the Enquiry Officer found the Respondent No.1 guilty of the charges brought against him. On the basis of the Enquiry Report, the Bank through its Chief Executive Officer, being the Disciplinary Authority of the Respondent No.1, passed an order of dismissal on 8th May, 2000. It appears that neither a copy of the Enquiry Report nor the second show-cause notice was served upon the Respondent No.1.

6. Aggrieved by the order of the Disciplinary Authority, the Respondent No.1 filed a Writ Petition challenging the order of dismissal. The learned Single Judge who heard the matter, allowed the Writ Petition by holding that the dismissal order had been passed by the Bank with the mala fide intention of getting rid of the Respondent No.1. The learned Judge held that the Bank had no authority to proceed against the Respondent No.1 on the allegation of defalcation of the funds of the Samity at a point of time when he was not an employee of the Bank. In addition, the learned Judge held that the order of the Disciplinary Authority was vitiated as the Respondent No.1 was not served with a copy of the Enquiry Report, nor was any opportunity given to him by way of a second show-cause notice to offer his explanation thereto.

7. The Bank preferred First Misc. Appeal No.301 of 2005 against the aforesaid order, wherein the attention of the Division Bench was drawn to the provisions of the West Bengal Cooperative Rules, 1987, wherein it has been stipulated that any mis-appropriation of the employer’s business or property would come within the mischief of “misconduct”. It was urged on behalf of the Bank that since the Samity was affiliated to the Bank, defalcation of the funds of the Samity would attract the definition of “misconduct” and the Respondent No.1 had been rightly proceeded with departmentally. It was, however, admitted before the Division Bench that the Bank had dismissed the Respondent No.1 without affording him an adequate opportunity of explaining his version on the findings of the enquiry by serving him a copy of the Enquiry Report as well as the second s