-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 374 OF 2002 P.M. Ratnakar, ) Indian Inhabitant, residing at ) C-30, Safalya, Veera Desai Road, Andheri (West) ) Mumbai-400 058. )..Petitioner versus 1. Uco Bank, through its Regional General Manager, ) (Maharashtra Region) through his office at Mafatlal ) Centre, 2nd floor, Nariman Point, Mumbai-400 021 ) 2. Assistant General Manager (Disciplinary Authority) ) Uco Bank, having its office at Inspection and Vigilance ) Department, Mafatlal Centre, 2nd floor, Nariman Point, ) Mumbai-400 021. ) 3. The General Manager, (Appellate Authority), ) Uco Bank, having its office at Mafatlal Centre, ) Nariman Point, Mumbai-400 021 ) 4. Executive Manager, Reviewing Authority, ) 10, Biptabi Trailokya Sarani (Brabourne Road), ) Calcutta-700 001. )..Respondents Mrs. Neeta P. Karnik for the petitioner. Mr. V.P. Vaidya for respondents. CORAM: P.B. MAJMUDAR & R.M. SAVANT, JJ. Date: 29 th June, 2009 -2- ORAL JUDGMENT: (Per P.B. Majmudar, J.) The challenge in this petition is to the dismissal order dated 9th December, 1998 passed by the disciplinary authority-second respondent against the petitioner which order has been confirmed by order dated 7th June, 1999, in appeal by the appellate authority-respondent No.3. The petitioner carried the matter before the reviewing authority, respondent No.4. The reviewing authority-respondent No.4 rejected the review petition vide order dated 22nd May, 2000. The petitioner has challenged the aforesaid orders in the instant petition by invoking Article 226 of the Constitution of India. 2. The petitioner was initially appointed on 11th November, 1969 as a Clerk. Subsequently he was promoted to Scale-I on 1st October, 1977. Subsequently he was selected for the MMG Scale-II on 1st January, 1988. At the material time, the petitioner had put in 29 years of service. The petitioner was charge-sheeted and was served with the article of charge on 17th June, 1994. The said charge reads thus: “Shri P.M. Ratnakar (PFM No. 10982), while functioning as Manager at Hamam Street Branch, Bombay, during the period from 1.3.1991 till date had indulged in several acts of omission and commission for which he is hereby charged as under: Shri P.M. Ratnakar in gross violation of Bank’s rules and regulations signed SGL form and issued the same in favour of State Bank of India for face value of Rs. 50 crores without ensuring receipt of funds from State Bank of India against the -3- securities delivered to them. The above act of Shri P.M. Ratnakar has exposed the Bank to grave financial risks. Shri P.M. Ratnakar has thus failed to ensure and protect the interest of the Bank and acted in a manner unbecoming of an officer which is violative of Regulation 3 of Uco Bank Officer Employees (Conduct) Regulations, 1976, as amended.” 4. The petitioner submitted his reply to the aforesaid charge on 21st July, 1994. The petitioner was accordingly subjected to departmental enquiry on the aforesaid charge. The Enquiry Officer thereafter submitted his report holding that the charge levelled against the petitioner is proved. On the basis of the same, the disciplinary authority passed the impugned order of dismissal. 5. The aforesaid order of the disciplinary authority was challenged by the petitioner by way of a departmental appeal. The said appeal of the petitioner was rejected by the appellate authority by its order dated 7th June, 1999 . 6. The petitioner thereafter carried the matter by preferring a review petition before the Executive Manager of the Bank. The reviewing authority by its order dated 22nd May, 2000 rejected the said review petition. The petitioner has approached this Court by way of this petition under Article 226 of the Constitution of India challenging the orders of the disciplinary authority, appellate authority and the reviewing authority, as stated above. -4- 7. Mrs. Neeta P. Karnik, learned counsel for the petitioner, has submitted that the petitioner was serving as an Assistant Manager at the relevant time. It is submitted that large scale of irregularities were going on in the said Branch i.e. Hamam Street Branch at the relevant time. It is submitted that another officer one Mr. M.N. Barve was also subjected to departmental proceedings on the identical charge. In spite of that, a lenient view was taken in the matter of punishment so far as Mr. M.N. Barve is concerned as he was subjected to a penalty of reduction to a lower stage in the time scale in MMG Scale-II by three stages. It is submitted that in the matter of parity in awarding punishment, there was no reason to single out the petitioner from the treatment given to Mr. Barve even though the charge levelled against the petitioner was identical. The petitioner was subjected to dismissal as against that Mr. Barve who was subjected to a penalty as stated above by the order of the disciplinary authority. It is submitted by the learned counsel that in fact the petitioner was subordinate to Mr. Barve and when the charges are identical, there was no reason to discriminate between the petitioner and Barve in the matter of inflicting punishment. 8. The learned counsel for the petitioner has submitted that the petitioner has averred in para 33 (iv) that Mr. Sur Roy, Assistant General Manager vide letter dated 6th July, 1996 recommended reduction of punishment in the case of the petitioner. In spite of that recommendation, maximum penalty -5- of dismissal from service is awarded to the petitioner. In connection with the averments made in the petition, no reply has been filed by the Respondent Bank. 9. Mr. V.P. Vaidya, learned counsel appearing for the Bank, on the other hand, submitted that the disciplinary authority in its wisdom has passed the impugned order and, therefore, the order passed by the disciplinary authority is not required to be interfered with in a petition under Article 226 of the Constitution of India. 10. We have heard the learned counsel for the parties at length. We have gone through the voluminous documentary evidence forming part of this petition. We have also gone through the order of the disciplinary authority as well as the order of the appellate authority and the order passed by the reviewing authority. 11. So far as the petitioner is concerned, the charge levelled against him has been narrated hereinabove. So far as the article of charge in connection with Mr. Barve’s case is concerned, the petitioner has annexed a copy of the same at page No. 97 of the paper book. Shri Barve was also serving as a Manager in the same Branch. Shri Barve was charged as under: “Shri N.N. Barve (PFM No. 8408), while functioning as Manager at Hamam Street Branch, Bombay, during the period from -6- 2.12.1989 to 23.4. 1992 had indulged in several acts of omission and commission for which he is hereby charged as under: Shri N.N. Barve in gross violation of Bank’s rules and regulations signed SGL form and issued the same in favour of State Bank of India for face value of Rs. 50 crores without ensuring receipt of funds from State Bank of India against the securities delivered to them. The above act of Shri N.N. Barve has exposed the Bank to grave financial risks. Shri N.N. Barve has thus failed to ensure and protect the interest of the Bank and acted in a manner unbecoming of an officer which is violative of Regulation 3 of Uco Bank Officer Employees (Conduct) Regulations, 1976, as amended. “ 12. In fact, the learned counsel appearing for the Bank has fairly conceded that the petitioner and the said Shri Barve were subjected to identical charge. Accordingly, on this point there is no dispute. 13. So far as the report of the enquiry officer dated 8th July, 1995, in connection with Barve’s case is concerned, a copy of the same is annexed at Exhibit-M to the petition. The only mitigating circumstances that the enquiry officer found in his report is to the effect that Shri Barve had addressed a letter to the Manager of the branch for giving proper guidance before the day on which he signed the SGL. In this connection it may be relevant to quote here the finding arrived at by the Enquiry officer. The same reads thus: “Looking into the seriousness of the charge especially the estimated amount of risk of loss involved and the follow up actions taken by the charged officer for recovery of the amount of Rs. 50 crores being the face value of the SGL it makes me to -7- believe that the entire matter was not dealt in a proper perspective. Such attitude on the part of the charged officer constitutes major offence. However, taking into consideration the fact that the charged officer had himself addressed a letter to the Manager of the branch for giving proper guidance such before the day on which he signed the subject SGL, on which no action was taken by the Bank to formulate a system the personal supervision/intervention of the then Divisional Manager to put through the SGL transaction and the reporting of such incident to the higher authorities by the branch on the same day and seeking confirmation from higher authorities, it appears that there was no mala fide intention behind Shri Barve’s action in signing the SGL”. 14. It is not in dispute that the petitioner was awarded a harsh punishment compared to the punishment given to Mr. Barve for the same charge regarding same SGL transaction. It is not possible for us to appreciate the stand taken by the disciplinary authority in the matter of inflicting punishment as on the basis of the said identical charge in connection with the same transaction the petitioner has been dismissed from service as against Mr. Barve who was subjected to penalty of reduction to a lower stage in time Scale in MMG Scale-II by three stages. In paragraph 15, the petitioner has averred that in the brokers transaction dated 6th April, 1992, the petitioner and said Mr. Barve, the then Manager of Hamam Street Branch, have signed one SGL in favour of State Bank of India under joint signatures in one transaction and both of them have been issued a charge-sheet for the same act. Thus the charges levelled against both of them are identical in all respects. -8- 15. In our view, when two delinquents are charged for the identical misconduct and when the evidence and facts and circumstances of the case are identical, the disciplinary authority is required to act in a fair manner in the matter of awarding punishment and no discriminatory attitude should be shown. As pointed out earlier, on identical charge, the petitioner and Mr. Barve were charged. The evidence on record is also identical. There is absolutely no difference in any manner except that the petitioner was junior to Mr. Barve. Yet, in the matter of inflicting the punishment, different orders have been passed. The learned counsel for the petitioner has submitted that though irregularities were going on in the Hamam Street Branch in connection with the SGL transactions for many years, no attention was paid by the higher authorities to the complaint made by the petitioner. 16. Considering the aforesaid, in our view, on identical set of facts when two persons have been charged and if there are no other circumstances exist, the disciplinary authority is not required to act in a different manner and on the basis of equity and fair play, no discrimination is required to be shown in the matter of awarding of punishment. In our view, the impugned order of dismissal which is confirmed by the appellate authority and the reviewing authority is required to be quashed and set aside. The petitioner shall also be subjected to reduction to a lower stage in time scale in MMG Scale-II by three stages. This order we have passed in order to see that the parity is maintained -9- between two officers who were subjected to departmental proceedings on the same charge and on the basis of same evidence punishment order was passed against both of them. Learned counsel for the respondent has also conceded that since two delinquents are charged for the identical misconduct i.e. Petitioner and Mr. Barve, in our view, instead of remitting the matter, the penalty imposed against Mr. Barve should also be ordered to be inflicted on the petitioner. 17. The learned counsel for the petitioner at this stage submitted that at the relevant time when the petitioner was dismissed, 10 years service was left. Had he been in the service, he should have reached the age of superannuation on 18th October, 2008. Since the petitioner has already retired by way of superannuation, there is no question of passing the order of reinstatement. The learned counsel for the petitioner submitted that this is a fit case in which the petitioner should be given full back wages during the intervening period i.e. from the date of dismissal till his superannuation. Since there is nothing on record as to whether the petitioner was gainfully employed after his removal from services, in our view, considering the facts and circumstances of the case it would be just and proper to award 30 per cent of back wages during the intervening period i.e. from the date of dismissal order till the petitioner reached the age of superannuation. However, the respondents are directed to pay all retiral dues to the petitioner as if he was continued in service till the date of superannuation within a period of two months from today. However, at the time -10- of making such payment, the penalty regarding reduction to a lower stage in time scale in MMG Scale-II by three stages be taken into account and after considering the said penalty, whatever amount due and payable is required to be paid to the petitioner. For the intervening period i.e. from the date of dismissal till the petitioner reached superannuation, he shall be entitled to back wages to the extent of 30 per cent. 18. Rule is made absolute to the aforesaid terms with no order as to costs. It is clarified that this order is to be construed only in connection with the departmental proceedings initiated against the petitioner. If any other proceedings in any other fora are pending against the petitioner, this order will have no bearing on the same. P. B. MAJMUDAR, J. R.M. SAVANT, J.