JUDGMENT 1. - In this writ petition, the petitioner has prayed for quashing impugned punishment order of removal from service passed by the Disciplinary Authority Superintendent of Police, Chittorgarh on 31.12.2006 and, so also, orders dated 07.04.2007 and 20.03.2009 passed by appellate authority and reviewing authority respectively, whereby both the higher authorities upheld the order of punishment passed by the Disciplinary Authority. Further prayer of the petitioner is that while quashing the aforesaid orders the respondents may be directed to reinstate the petitioner in service with all consequential benefits. 2. Brief facts of the case are that the petitioner was appointed on the post of Constable and, on 19.11.2005, he was assigned duty along with one other Constable Lukman Khan, belt No.61, to carry accused Mangilal Jat for attending judicial Court at Neemach from Chittorgarh jail. As per prosecution allegation, the petitioner and Lukman Khan carried accused in private bus at about 5.30 P.M. from Chittorgarh. While en route, as per allegation of the department, the petitioner consumed liquor at Jalupura bus stand and permitted accused Mangilal Jat to get down the bus for urinating. Said accused while taking advantage of the situation fled away from the custody. For the above incident, a charge sheet under Rule 16 of the CCA Rules was served upon both petitioner and Lukman Khan and, after holding regular inquiry, inquiry report was submitted to the Disciplinary Authority by the inquiry officer. The Disciplinary Authority after considering the inquiry report and petitioner's contention, inflicted major penalty of removal from service against the petitioner which is under challenge in this writ petition. Learned counsel for the petitioner while attacking upon the impugned order submits that order of the Disciplinary Authority is totally non-speaking order because the ground taken by the petitioner in his representation against the inquiry report were not even considered and discussed in the order, therefore, the order impugned is illegal. Learned counsel for the petitioner further argued that penalty of removal from service was inflicted against the petitioner whereas against Lukman Khan a penalty of withholding three annual grade increments with cumulative effect has been imposed and this fact itself shows that the Disciplinary Authority has practiced discrimination while inflicting penalty of removal from service against the petitioner, therefore, the order impugned is illegal and deserves to be quashed. 3. 3. Learned counsel for the petitioner submits that right from beginning the petitioner took plea that the fact of consuming liquor is totally false because the petitioner due to illness was taking medicines and smell of medicines has been wrongly considered as smell of liquor which is not proper. The fact of consuming medicines by the petitioner was to be considered by the inquiry officer, so also, the Disciplinary Authority and other authorities; but, none of the authorities has considered the petitioner's contention that he was not in drunken condition at the time when accused Mangilal Jat fled away from their custody. Therefore, non-consideration of the petitioner's plea by any of the authorities deserves to be treated as non-application of mind and further when two similarly situated persons were charge-sheeted with the same charge, then, at the time of inflicting penalty no discrimination was to be made by the Disciplinary Authority; but, in this case, admittedly the petitioner and Lukman Khan both were deployed for taking accused Mangilal Jat to the criminal Court at Neemach but petitioner has been penalised with major penalty of removal from service whereas Lukman Khan was inflicted penalty of withholding three grade increments with cumulative effect. Therefore, the orders impugned passed by Disciplinary Authority, appellate authority and reviewing authority deserve to be quashed and set aside. 4. In support of his contention, learned counsel for the petitioner invited attention of the Court towards judgments of Hon'ble Supreme Court reported in (2010) 2 SCC 497 , (2006) 2 SCC (L & S) 1486 and (1998) 1 SCC (L & S) 557, Director General of Police & Others v. G. Dasayan After hearing learned counsel for the petitioner, I have perused entire record of the case, more specifically, order of the Disciplinary Authority. The Disciplinary Authority while giving reasons for inflicting penalty of removal against the petitioner held that the petitioner's misconduct is serious than the misconduct of Lukman Khan because the petitioner was found in drunken condition and he allowed accused Mangilal Jat to get down the bus for urinating whereas in the case of Lukman Khan the Disciplinary Authority gave reason for inflicting lesser punishment of withholding three annual grade increments with cumulative effect that he was not found in drunken condition, so also, present petitioner Roop Lal shared liquor with accused Mangilal Jat, therefore, misconduct of Lukman Khan cannot be treated as serious than the misconduct of Roop Lal. Following finding has been given by the Disciplinary Authority Superintendent of Police, Chittorgarh for inflicting penalty against the petitioner Roop Lal and Lukman Khan : " Jh :iyky dkfu0 ua0 282 Jh :iyky dkfu0 ua0 282 ds vkjksi i= o tkap fjiksVZ dk voyksdu fd;kA cpko ds vfUre tokc dk voyksdu djrs gq, O;fDrxr :i ls Hkh lqukA tkap ls vkjksi izekf.kr ik;s x;s gSA vfUre tokc tkap esa dksbZ cpko dk lk{; ugha vk;k gSA ;g izekf.kr gqvk fd :iyky dkfu0 ua0 282 us fuEckgsM+k cl LVs.M ij canh ekaxhyky ds lkFk 'kjkc ihA lkFkh dkfu0 yqdeku us Hkh bl vkjksi dh iqf"V dh gSA ;gh ugha :iyky us ;kstukc) :i ls fuEckgsM+k ls fpRrkSM+x<+ canh dks ysdj vkrs le; ckyeiqjk LFkku ij dkfu0ua0 61 Jh yqdeku [kka dks fo'okl fy;k fcuk o fcuk crk;s dUMDVj ls xkM+h :dok dj dSnh dks is'kkc djus ds fy, cgkuk crkrs gq, mrkjk o is'kkc djus ds cgkus og Hkkx x;kA yqdeku dkfu0 dks eqfYte ds Qjkj gksus ds ckn irk yxkA bl izdkj izdj.k iathc) gksdj ekaxhyky dSnh ds lkFk&lkFk lacaf/kr U;k;ky; us dkfu0 ua0 282 dks vkjksi i= ij lquokbZ djrs gq, lquokbZ dj ltk ds n.M ls nf.Mr fd;kA ltk dkVus ds fy, :iyky dkfu0 u0 282 dks canhx`g esa tsy esa Hkh j[kk x;kA bl izdkj vkjksi lansg ls ijs izekf.kr gSA fuEckgsM+k ls cl esa cSVus ij fpRrkSM+x<+ ek= 35 fdeh0 vkus ds fy, nwjh gSA ftlesa tks vf/kd`r LVS.M gS ogka Hkh cl dks :dus ij ;k :dok dj vius lkFkh dkfu0 yqdeku [kka ds lkFk is'kkc djus mrjk tkrk rks ;g ?kVuk ugha gksrhA oLrqr% :iyky dkfu0 dk vk'k; vfZHk;qDr dks ,slk ekSdk nsuk FkkA vr% viuk cpko Hkh djuk FkkA vr% ?kVuk ds le; xkM+h :dokdj lkFkh dkfu0 dks fcuk lkFk fy;s eqyfte dks mrjk fy;kA bl izdkj :iyky us xaHkhj nqjkpj.k o vijk/k ?kfVr fd;k gSA ltk dk jsdkMZ Hkh i=koyh ij j[kk x;k gSA mfpr gksxk fd bls vf/kdre n.M fn;k tkosA rn~uqlkj Jh :iyky dkfu0 ua0 282 dks lsok ls i`Fkd djus ds n.M ls nf.Mr fd;k tkrk gSA " Jh yqdeku [kka dkfu0 ua0 61 Jh yqdeku [kka dkfu0ua0 61 vkjksi i=] tkap fjiksVZ o vfUre tokc dk voyksdu fd;kA vkjksi izekf.kr gSA dkfu0 dks Kku Fkk fd :iyky us dSnh ekaxhyky ds lkFk 'kjkc dk lsou fuEckgsM+k cl lVs.M ij mrjus ds ckn fd;kA fQj Hkh lko/kkuh ugha j[khA og Fkkuk fuEckgsM+k vFkok iqfyl ykbZu esa VsfyQksu dj lgk;rk Hkh ys ldrk Fkk] jkLrs esa pyrs le; Jh :iyky o dSnh ekaxhyky 'kjkc ih, gq, FksA ,slh fLFkfr esa Jh yqdeku [kka dks Hkh xkM+h esa eqfYte ds lkFk cSBuk pkfg, Fkk o lrZdrk j[kuh pkfg,A ;fn xkM+h :dokus ds ckn o 'kjkc dh fLFkfr esa Hkh ;fn :iyky dh ea'kk dk vfxze Kku ugha j[kk rks ;g dk;Z ds izfr lpsr ugha jguk Li"V gSA vkjksi izekf.kr gSA vr% Jh yqdeku [kka dkfu0u0 61 dks rhu osru o`f);k Hkkoh izHkko ls jksdus ds n.M ls nf.Mr fd;k tkrk gSA " 5. Upon finding given for inflicting penalty against Roop Lal, present petitioner, it is revealed that contention raised by the petitioner with regard to consuming medicines is not discussed and without discussing any evidence, it is held that petitioner Roop Lal is guilty of committing gross misconduct in comparison to Constable Lukman Khan. In my opinion, when two constables were deployed to take the accused Mangilal Jat to criminal Court, then, obviously both constables were equally responsible for the purpose of taking the said accused to Neemach for attending the criminal Court; but, due to negligence of both constables accused Mangilal Jat took advantage and fled away. Therefore, for any reason, it cannot be said that both delinquents are required to be considered differently. If the charges are same and the Disciplinary Authority came to the conclusion that due to negligence on the part of both Government employees the accused ran away from their custody, then, at the time of inflicting penalty no discrimination can be made by the Disciplinary Authority Superintendent of Police, Chittorgarh. Therefore, in my opinion, the Disciplinary Authority was right in holding both delinquents Roop Lal and Lukman Khan guilty for committing misconduct of gross negligence whereby one accused fled away from their custody. But, in view of the judgment of Hon'ble Supreme Court, reported in (1998) SCC (L&S) 557, Director General of Police & Others v. G. Dasayam , I am of the opinion that at the time of inflicting penalty for same charges, upon same set of evidence, no discrimination can be made by the Disciplinary Authority while inflicting penalty. In para 8 to 11 of the said judgment, it is held as under : "8. On the second ground that the Superintendent of Police, Tirunelveli District, was not the competent authority, the learned counsel for the appellants submitted that Tribunal was not right in assuming that the transfer was for administrative purpose and during the pendency of enquiry as the Police Standing Orders enabled the transfer of Constable of one district to another district. The relevant PSO was produced which reads that a Police Constable is liable to serve anywhere in the State. The order of transfer from Kanyakumari District to Tirunelveli District at the relevant time was not challenged. Therefore, this ground of the Tribunal in setting aside the order of dismissal cannot also be supported. The relevant PSO was produced which reads that a Police Constable is liable to serve anywhere in the State. The order of transfer from Kanyakumari District to Tirunelveli District at the relevant time was not challenged. Therefore, this ground of the Tribunal in setting aside the order of dismissal cannot also be supported. The third ground that the co-delinquents except the Head Constable were let off though the charges were identical, it is stayed by the learned counsel for the appellants that the Disciplinary Authority did not agree with the findings of the Enquiry Officer so far as those two delinquents were concerned. However, the Head Constable, who was also charged along with the respondent, was compulsorily retired by the Disciplinary Authority. 9. Mr. Murlidhar, learned counsel appearing for the respondent, while agreeing with the contentions of the learned counsel for the appellants on the first two grounds, submitted that the order of dismissal at any rate cannot be sustained and if at all an order of compulsory retirement was to be made in the case of the Head Constable, who was tried along with the respondent, has to be imposed. 10. We have perused the order of the Tribunal and the relevant documents. We find merit in the arguments of the learned counsel for the appellants. At the same time, we are of the view that as pointed out by the learned counsel for the respondent that a punishment of compulsory retirement in the case of the respondent as well would meet the ends of justice on the facts and circumstances of this case. 11. Accordingly, we set aside the order of the Tribunal and in the place of order of dismissal passed by the Disciplinary Authority, the order of compulsory retirement is substituted. The appeal will stand disposed of accordingly with no order as to costs." 6. In this view of the matter, while following the aforesaid adjudication made by Hon'ble Supreme Court, I deem it just and proper to modify impugned order of punishment dated 31.12.2006, subsequently upheld by appellate authority and reviewing authority, and, in place of penalty of removal from service, penalty as imposed by the Disciplinary Authority upon co-delinquent Lukman Khan of withholding three grade increments with cumulative effect is also imposed upon present petitioner Roop Lal. 7. As a result, this writ petition is partly allowed. 7. As a result, this writ petition is partly allowed. Punishment of removal from service inflicted by the Disciplinary Authority against petitioner Roop Lal, Constable No.282 dated 31.12.2006 is quashed and punishment as imposed upon co-delinquent Lukman Khan of withholding three grade increments with cumulative effect is imposed upon petitioner Roop Lal also. Accordingly, the respondents are directed to reinstate the petitioner back in service.No order as to costs.Petition Allowed. *******