ASHOK BHUSHAN, J. ( 1 ) HEARD Sri K. Ajit Counsel for the petitioners and learned Stanaing Counsel. ( 2 ) COUNTER and rejoinder affidavits have been exchanged and with the consent of the parties, the writ petition is being finally decided. ( 3 ) THE facts of the case as emerge from the pleadings of the parties are petitioner was appointed as Driver in Samaj Kalyan Department, Agra in the year 1982. With regard to an incident of theft of jeep from the office of Additional District Development Officer in the night of 30th november, 1989/1st December, 1989 the petitioner was placed under suspension, A charge sheet dated 11th June, 1990 was issued against the petitioner. In the charge-sheet charge levelled against the petitioner was that on 30th November, 1989/1st December, 1989, petitioner was unauthorisingly sleeping in the office along with the Chowkidar, Brij Rai Verma, Brij Raj Verma at 4 A. M. went to his home after informing the petitioner on which the petitioner said that he would be there. It was alleged that due to carelessness and negligence of duty of the petitioner jeep No. URT 3411 was stolen. With regard to theft of jeep a first information report was lodged in Police Station Shahganj on which final report was submitted by the police that the accused could not be traced out. Petitioner submitted his reply and denied that Chowkidar went to his home at 4 a. m. after informing him. It is to be noted that against the Chowkidar, Brij Raj Verma also the departmental enquiry was initiated. The Enquiry Officer submitted an enquiry report against both, petitioner and Brij Raj Verma. In the enquiry reported dated 16th December, 1995 it was stated that the petitioner was unauthorisingly staying in the office and when Brij Raj verma went to his residence after informing the petitioner, it was the duty of the petitioner to be on extra vigil in which he failed. The Enquiry Officer held both, Sri Brij Raj Verma and the petitioner, responsible for theft of jeep. A show cause notice was issued to the petition on 17th may, 1996. ( 4 ) WITH regard to Brij Raj Verma, the disciplinary enquiry was completed earlier. The Enquiry Officer held both, Sri Brij Raj Verma and the petitioner, responsible for theft of jeep. A show cause notice was issued to the petition on 17th may, 1996. ( 4 ) WITH regard to Brij Raj Verma, the disciplinary enquiry was completed earlier. By punishment order dated 12th May, 1995 following punishment was awarded on Brij Raj Verma- ( i) 50% of the value of jeep be recovered from Brij Raj Verma from his salary and thereafter from retirement benefits; (ii) during the suspension period, Brij Raj Verma will not receive any other salary except the suspension allowance already received, (iii) censure entry in his character role. ( 5 ) AFTER receiving the show cause notice dated 17th May, 1996, petitioner submitted a reply dated 15th July, 1996. The punishing authority vide his order dated 22nd October, 1996 awarded following punishment on petitioner :- (i) services of petitioner were terminated with immediate effect, (ii) the petitioner having been found guilty up to the same effect as Brij Raj Verma, Chowkidar, hence recovery of 50% of the value of jeep from the petitioner shall be made as arrears of land revenue. ( 6 ) THE petitioner against the aforesaid punishment order dated 22nd October, 1996 filed Writ petition No. 36657 of 1996 which was finally disposed of on 12th September, 1997 giving liberty to him to prefer an appeal against the impugned order within four months. The petitioner filed an appeal before the Security, U. P. Samaj Kalyan Vibhag. Memo of appeal is annexed as annexure-7 to the writ petition. The appellate authority vide its order dated 22nd May, 1998 partly allowed the appeal of the petitioner. The appellate authority vide, its appellate order set aside the order of punishment authority directing for recovery of 50% of the value of jeep. However, the order of punishing authority terminating the petitioners services was maintained. The appellate authority in paragraphs 6 of the appellate order has stated that petitioner since was also living in the officer along with the Chowkidar, hence he was held responsible like the chowkidar due to which his decision to terminate his services is found to be valid. The appellate authority further held that in view of the facts mentioned in the appeal/representation of the petitioner, the recovery of the amount from the petitioner is not justifiable. The appellate authority further held that in view of the facts mentioned in the appeal/representation of the petitioner, the recovery of the amount from the petitioner is not justifiable. The petitioner has come up against the order of punishing authority and the appellate authority before this Court. ( 7 ) COUNSEL for the petitioner submitted that the order of punishment and appellate order in so far as it maintains the punishment of termination of services is arbitrary. Counsel for the petitioner further submitted that the both petitioner and Brij Raj Verma, were charged for theft of jeep when as Sri Brij Raj Verma was retained in service with minor punishment including the recovery of 50% of the value of jeep but the petitioners service have been terminated. Counsel for the petitioner submitted that action of the respondents in terminating the services of the petitioner is discriminatory and violative of Articles 14 and 16 of the Constitution of India. Counsel for the petitioner further submitted that the appellate authority itself having found that on facts intention in the representation/appeal of the petitioner, it is not justifiable to recovery 50% of the value of jeep from the petitioner, the case of the petitioner was accepted by the appellate authority and the appellate authority erred in maintaining other part of the punishment i. e. termination. Counsel for the petitioner further submitted that since Brij Raj Verma was reinstated who was also held responsible for the same charge, the petitioner Is entitled for reinstatement with back wages. ( 8 ) COUNSEL for the petitioner has stated that petitioner has already been retired in the year 2000. Petitioner Counsel stated that since Brij Raj Verma was reinstated and allowed to continue and is receiving full salary, petitioner is also entitled for his full wages up to this date of retirement. ( 9 ) LEARNED Standing Counsel refuted the submissions of the Counsel for the petitioner and has stated that charge against the petitioner was proved and he being found guilty of the charge, is not entitled for any relief. With regard to claim of the petitioner of awarding discriminatory punishment, learned Standing Counsel has stated that charges against both, petitioner and Brij raj Verma, were different hence petitioner is not entitled for any parity. With regard to claim of the petitioner of awarding discriminatory punishment, learned Standing Counsel has stated that charges against both, petitioner and Brij raj Verma, were different hence petitioner is not entitled for any parity. ( 10 ) AFTER having heard Counsel for the petitioner and learned Standing Counsel and after perusing the record, it is clear that both, petitioner and Brij Raj Verma were charged for their carelessness and negligence on duty with regard to theft of the jeep. The order passed by the punishing authority against Brij Raj Verma is on the record as Annexure Supplementary affidavit-1 to the supplementary affidavit. From the order, it is clear that the punishing authority has not found the explanation of Brij Raj Verma regarding time of theft and the charges against him was found proved. The punishing authority, however took, the view that it will be appropriate to recover 50% amount of the value of jeep from Brij Raj Verma so that the loss to the Government be recovered. ( 11 ) WITH regard to petitioners charge in the enquiry report, except carelessness and negligence on his part, there has been no charge that he was involved in any way with the theft of jeep. When the respondents have awarded punishment of recovery of 50% of the value of jeep with other minor punishment, there was no occasion to terminate the services of the petitioner as well as issue an order for recovery of 50% of the value of jeep. The petitioner who was equally held liable should have been dealt similarly as Brij Raj Verma was held. In the punishment order, no fact has been mentioned on the basis of which any different penalty could have been imposed on the petitioner as compared to Brij Raj Verma. Brij Raj Verma was already reinstated and working and when the punishing authority did not find the conduct of petitioner more grave or serious, there was no occasion to award a different punishment. The submissions of the Counsel for the petitioner that the petitioner was discriminated in awarding punishment is fully proved. ( 12 ) THE Counsel for the petitioner in support of his contentions has relied on a Division Bench judgment (1990) 3 UPLBEC 1740, Jagdish Yadav v. Senior Superintendent of Police, Azamgarh and Ors. In paragraphs of the aforesaid judgment the Divisions Bench held as under :-" 8. ( 12 ) THE Counsel for the petitioner in support of his contentions has relied on a Division Bench judgment (1990) 3 UPLBEC 1740, Jagdish Yadav v. Senior Superintendent of Police, Azamgarh and Ors. In paragraphs of the aforesaid judgment the Divisions Bench held as under :-" 8. In para 7 of the supplementary affidavit, it has been stated that the three persons who were similarly situated as the petitioner have been reinstated and they are discharging their duties on their respective posts as police constables, and they are drawing their salaries. The learned counsel for the State did not seek time to controvert these, allegations, therefore, we have no option but to rely upon them and we arc of the opinion that the petitioner is entitled to the reliefs claimed in the present petition on the ground of parity alone. In the aforesaid case on similar allegations three persons were terminated while two persons were reinstated. Petitioner of that case was terminated. The Division Bench allowed the writ petition and held that he was entitled for the parity. Counsel for the petitioner further relied on 1981 (3) SLR 274, Dost Mohammad v. Union of India and Ors. In the aforesaid case also the Division Bench of this Court took the view that it was not open to the disciplinary authority to deal with petition differently. The writ petitioner was allowed on the plea of hostile discrimination Paragraph-8 of the judgment is quoted below. " ( 13 ) THE petitioners grievance that he has been discriminated also appears to be well founded. The respondents connection that his brother, Mukhtar Ahmad, being Extra-Departmental Agent was not a Government servant and as such the Civil Services (Classification, Control and appeal) Rules were not applicable to him is untenable. In Superintendent of Post Offices v. P. K. Rajamma, AIR 1977 SC 1677 , it was held that Extra-Departmental Agent was a Government servant and he holds a civil post under the Union of India as provided under Article 311 of the constitution. In this view of the matter Mukhtar Ahmad was a Government servant like the petitioner and both constituted the same class. In this view of the matter Mukhtar Ahmad was a Government servant like the petitioner and both constituted the same class. since both of them were convicted for the same offence arising out of the same incident, it was not open to the disciplinary authority to deal with the petitioner in a different manner so as to allow Mukhtar Ahmad to join his duties and to remove the petitioner from service. The plea of hostile discrimination is therefore well founded. ( 14 ) SINCE Brij Raj Verma was awarded punishment of recovery of 50% of the value of jeep which punishment was also awarded to the petitioner to make good the loss suffered by the government, the respondents acted arbitrarily in terminating the petitioners services. ( 15 ) THE appellate authority has allowed the appeal of the petitioner partly and held that facts mentioned in appeal/representation of the petitioner make sufficient ground for quashing the order directing the recovery of 50% of the value of jeep. The appellate authority having found substance in the appeal/representation of the petitioner partly allowed the appeal, which proves that appellate authority was satisfied up to the extent that he did not cause any loss to the government The appellate authority allowed the appeal partly by quashing the order by which loss was to be recovered from the petitioner. The explanation of the petitioner was substantially accepted and when it was held that the petitioner was not responsible to the loss caused to the government, it cannot he held that charge was held proved against the petitioner. ( 16 ) KEEPING the overall view of the matter and looking to the facts and circumstances of the case and the nature of the allegations, it is proved that the petitioner has been discriminated with regard to award to punishment. At best the petitioner could have been awarded the same punishment which was awarded to Brij Raj Verma. ( 17 ) THE Counsel for the petitioner has now stated that petitioner has attained the age of superannuation. No useful purpose will be served by sending the matter to the punishing authority again for award of punishment similar to Brij Raj Verma. The punishing authority has already awarded two punishments against the petitioner i. e. termination from service and recovery of 50% of the value of jeep. No useful purpose will be served by sending the matter to the punishing authority again for award of punishment similar to Brij Raj Verma. The punishing authority has already awarded two punishments against the petitioner i. e. termination from service and recovery of 50% of the value of jeep. The part of the punishment order by which services of the petitioner were terminated is liable to be quashed in view of the facts mentioned above maintaining the other parts of punishment. The order of appellate authority is also liable to be modified accordingly. ( 18 ) THE Counsel for the petitioner submitted that petitioner is also entitled for full back wages in view of the fact that he was illegally terminated. Petitioners Counsel. submitted that Brij Raj verma was reinstated and has been continued in service and is receiving full salary. The Counsel for the petitioner has also placed reliance on a judgment of Apex Court (1991) 3 SCC 291 , Om prakash Goel v. Himachal Pradesh Tourism Development Corporation Ltd. , Shimia and Anr. In this Judgment the Apex Court has held that after quashing of the termination order, petitioner is entitled for back wages. Another judgment which has been relied upon by the Counsel for the petitioner is 1996 AWC 412 , Ajab Singh v. U. P. State Public Services Tribunal. ( 19 ) FROM the facts of the present case, it is clear that in the disciplinary enquiry, petitioner was not fully exonerated. It was held by punishment authority that petitioner has caused loss to the government and for that loss, recovery was directed by punishing authority from the petitioner. Petitioner since has succeeded in proving that he has been discriminated in awarding of punishment, be is entitled to be dealt in similar manner as Sri Brij Raj Verma has been dealt. He is not entitled for full salary during the period when he was under suspension. The suspension allowance, which was paid to the petitioner till he was terminated be treated the amount for which petitioner was entitled during that period. However, from the date when termination order was passed i. e. 22nd October, 1996 till the petitioner attained the age of superannuation, he is entitled only to 50% of back wages. However, the said period be treated for continuity of service and other service benefits. However, from the date when termination order was passed i. e. 22nd October, 1996 till the petitioner attained the age of superannuation, he is entitled only to 50% of back wages. However, the said period be treated for continuity of service and other service benefits. ( 20 ) IN view of above discussion, the writ petition is allowed. The order dated 22nd October, 1996 in so far as it directs for termination of petitioners services is quashed. However, the other part of the order directing for recovery of 50% of the value of jeep from the petitioner is maintained. The order of appellate authority dated 22nd May, 1998 is also modified to above extent. The petitioner will not be entitled for any salary up to 22nd October, 1996 apart from suspension allowance already paid to him. From 22nd October, 1996 till the date of superannuation, petitioner will be paid 50% of the back wages. However, the said period will be counted towards continuity of service and for all other service benefits. With the aforesaid directions, writ petition stands allowed. .