In disciplinary proceedings for misappropriation of funds, oral evidence alone is insufficient; documentary proof is required. The disciplinary authority must pass a speaking order with independent application of mind, and the writ court may entertain a petition despite alternative remedy if the enquiry is based on surmises.

ORDER

The captioned writ petition has been filed seeking the issuance of a writ of certiorarified mandamus to quash the order dated 21.12.2016 passed by the 2nd respondent in Na.Ka.No. A/A3/2016, communicating the resolution of the Board Meeting held on 26.10.2016 presided over by the 1st respondent, confirming the proceedings in R.C. No. A/2015/Ad dated 26.10.2015 of the 2nd respondent, and consequently to direct the 2nd respondent to pay all retirement benefits. By the impugned order, the petitioner, who was working as Senior Assistant, has been dismissed from service.

2. While the petitioner was working as Senior Assistant in the 3rd respondent–Institution, he was issued with a charge memo dated 22.04.2014. The charge memo reads as follows:

i. That he colluded with showroom staff and misappropriated a sum of Rs. 8,86,206.04 by manipulating the accounts.

ii.That he swindled the State Society funds to the tune of Rs. 9,74,064.86 by manipulating the NOR Account.

iii.That he deliberately failed to discharge his duties and responsibilities in maintaining the NOR Account properly and committed serious and grave misconduct over the years.

iv.That he destroyed/misplaced the parallel records of the Regional Office pertaining to the years 2008–2009 (except March 2009) and 2012–2013.

v. That he committed a breach of trust.

3. The petitioner submitted an explanation denying the allegations vide reply dated 03.06.2014. As the explanation was found unsatisfactory, an Enquiry Officer was appointed. After conducting the enquiry, the Enquiry Officer submitted a report holding that the charges against the petitioner were proved. Thereafter, the petitioner was issued a second show cause notice, to which he submitted his reply. The 2nd respondent thereafter passed an order dismissing the petitioner from service, which was confirmed by the Appellate Committee under Chapter IV, Section 10 of the Co-Optex Code of Conduct. Aggrieved by the same, the present writ petition has been filed.

4. Learned counsel for the petitioner, assailing the impugned order, submitted that the Enquiry Officer concluded that the charges were proved solely on the basis of the depositions of employees who worked in the Chembur and Rajiniketan showrooms, who stated that they had given amounts which were allegedly misappropriated by the petitioner. He further submitted that the disciplinary authority failed to independently apply its mind and arrive at a conclusion regarding the proof of charges after considering the explanation offered by the petitioner. This, according to him, vitiates the order for failure to pass a speaking order and amounts to violation of the principles of natural justice.

5. Per contra, learned counsel for respondents 2 & 3 submitted that the petitioner had categorically admitted his guilt and that the statements of the management witnesses coupled with the SMS sent by the petitioner to one Sundaram clearly establish that he had received the money from the employees of the two showrooms and misappropriated the same. Therefore, the finding recorded by the Enquiry Officer is based on cogent evidence on record and there is no perversity or arbitrariness in the findings. Hence, the impugned dismissal order does not warrant any interference and the writ petition is liable to be dismissed.

6. The submissions of the learned counsel for the parties and the materials placed on record have been duly considered.

7. The petitioner was served with the charge memo along with the imputations, to which he submitted a reply dated 17.09.2014 denying the allegations. The allegation against the petitioner is that, while working as Senior Assistant, he misappropriated amounts by falsification of bank charges over and above the actual bank charges, amounting to Rs. 8,86,206.04. The further allegation is that he swindled the State Society funds to the tune of Rs. 9,74,064.86 by manipulating the NOR Account, and upon verification by the Vigilance Team, it was found that the showrooms