ORDER : The brief facts of the case are as under:- 1. The petitioner who is working as a Constable for the respondent No.3 Department has preferred the present writ petition against the order dated 14.03.1995 (Annex.-6), whereby his services were terminated. 2. A memorandum along with the charge-sheet was issued to the petitioner on 10.02.1994 with a charge that on 27.10.1993, when the petitioner along with the other constable Bhagirath Ram were sent on challan guard duty to present an accused Devendra before the Court, the accused absconded from the custody. It was alleged that the accused escaped at about 02:00 p.m., whereas the said incident was reported at 06:30 p.m. in the evening and that too at P.S. Mahamandir and not the police station where the incident happened. Consequently, the departmental proceedings under Rule 16/18 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 was initiated against the petitioner. An inquiry Report was submitted by the Enquiry Officer holding the petitioner as well as the other constable Bhagirath Ram guilty. On the submission of the inquiry Report, the disciplinary authority issued notice to the petitioner to which the reply was filed by him. After considering the reply, the disciplinary authority proceeded on to hold the petitioner guilty and punished him with the dismissal of service. The said order dated 14.03.1995 was put to appeal and the same was also rejected by the appellate authority vide order dated 21.12.1996. A review against the same was preferred before the Governor of Rajasthan, which was also dismissed on 26.10.2004 (Annex.-11). Against the said impugned orders, the present writ petition has been preferred by the petitioner. 3. The first and the foremost ground raised by the petitioner is that in the criminal proceedings initiated against him for the same offence, the benefit of doubt has been given by the Criminal Court vide judgment dated 21.06.2002 (Annex.-12) and therefore, in terms of Section 12 of the Probation of Offenders Act, the same benefit ought to have been granted to him by the disciplinary authority in the departmental proceedings also. 4. The second ground raised by the petitioner is that the charges levelled against the petitioner and the other constable Bhagirath Ram were same but he has been punished with dismissal of service, whereas Bhagirath Ram has been punished only with a fixed pay for a period of 5 years. 4. The second ground raised by the petitioner is that the charges levelled against the petitioner and the other constable Bhagirath Ram were same but he has been punished with dismissal of service, whereas Bhagirath Ram has been punished only with a fixed pay for a period of 5 years. Counsel argued that both the accused stood on the same footing and were levelled with the same charges and therefore, discriminatory treatment meted to the petitioner by the disciplinary authority is totally uncalled for. The next ground raised by the counsel for the petitioner is that no opportunity of hearing was granted to him during the disciplinary proceedings. Counsel further submitted that the appellate and the revisional authority did not apply mind and just affirmed the order of the disciplinary authority without any basis or reason. 5. Although not pleaded in the writ petition, counsel raised certain other grounds also during the course of the arguments. Counsel argued that no procedure as prescribed under law was followed during the disciplinary proceedings. No list of witnesses or documents was supplied to him; he was not accorded any opportunity of cross-examining the witnesses; a copy of the preliminary inquiry Report was not supplied to him. He further submitted that in the inquiry report, his designation was mentioned to be LHC, whereas he was a constable only and because of the wrong designation being mentioned, a disproportionate punishment has been awarded to him. Counsel also argued that the charge levelled against him was of misconduct, whereas the finding given by the disciplinary authority is of conspiracy and he has been punished on the basis of the finding arrived at by the disciplinary authority that the petitioner was involved in a conspiracy with the relatives of the accused Devendra and had purposefully made the escape of the accused possible. 6. Per contra, counsel for the respondents submitted that the petitioner and the other constable Bhagirath Ram did not stand on the same footing as the petitioner was the In-charge and even the key of the handcuffs was in his custody. Bhagirath Ram who was just a trainee had been recruited just five months ago and he had been deployed along with the petitioner for training purposes. Bhagirath Ram who was just a trainee had been recruited just five months ago and he had been deployed along with the petitioner for training purposes. Counsel further submitted that the present is a delayed writ petition as the petitioner was dismissed on 14.03.1995 and the appeal against the said order was also dismissed on 21.12.1996, whereas the present writ petition has been filed in the year 2005. 7. So far as the granting of the opportunity of hearing to the petitioner is concerned, counsel for the respondents submitted that a show cause notice was served on the petitioner by the disciplinary authority in terms of law and even, a reply in writing to the same was filed by the petitioner. Therefore, it cannot be said that no opportunity of hearing was granted to him. 8. Counsel for the petitioner relied upon the following judgments:- 1. S.B. Civil Writ Petition No.293/2017; Bansi Lal Swami v. The State of Rajasthan & Ors. decided on 22.02.2018. 2. S.B. Civil Writ Petition No.9976/2008; Amichand v. State of Rajasthan & Ors. decided on 17.01.2011. 3. The Director General of Police & Ors. vs. G. Dasayan reported in 2010 (2) SCC 497 , decided on 28.01.1998 (Hon’ble Apex Court judgment). 4. S.B. Civil Writ Petition No.4347/2011; Roop Lal v. State of Rajathan & Ors. decided on 20.05.2011. 5. Civil Appeal No. 6142/2013; Lucknow K. Gramin Bank (Now Allahabad, U.P. Gramin Bank) & Anr. vs. Rajendra Singh decided on 29.07.2013 (Hon’ble Apex Court judgment). 6. Civil Appeal No.4037/2019; Naresh Chandra Bhardwaj v. Bank of India & Ors. decided on 22.04.2019 (Hon’ble Apex Court judgment). 9. Heard learned counsel for the parties and perused the material available on record. 10. It is an admitted position on record that the petitioner was guilty of misconduct so far as the accused Devendra had escaped from his custody. The petitioner in his reply in the disciplinary proceedings specifically admitted that he had taken the accused to the hospital and then to his residential premises. Although it has been submitted that it was on humanitarian grounds as it was informed by the family of the said accused that the wife of the accused was sick and admitted in hospital. The petitioner in his reply in the disciplinary proceedings specifically admitted that he had taken the accused to the hospital and then to his residential premises. Although it has been submitted that it was on humanitarian grounds as it was informed by the family of the said accused that the wife of the accused was sick and admitted in hospital. Be that as it may, it is clear on record that the petitioner was on an official duty to present the accused in the Court and hand over him back to the judicial custody after the completion of the said process. The petitioner specifically mis-conducted in performance of his duties and even admitted this fact. Therefore, so far as the finding of the disciplinary authority regarding the misconduct of the petitioner is concerned, this Court is not inclined to interfere in the same. But so far as the other grounds raised by the petitioner regarding the discrimination in grant of punishment is concerned, the precedent law on the subject requires a consideration. 11. In Civil Appeal No. 6142/2013; Lucknow K. Gramin Bank & Anr. vs. Rajendra Singh, while dealing with the scope of Judicial review of the quantum of punishment, the Hon’ble Apex Court observed as under: “16. …….. The principles discussed above can be summed up and summarized as follows: (a) When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities; (b) The Courts cannot assume the function of disciplinary/departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority; (c) Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the Court; (d) Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The Court by itself cannot mandate as to what should be the penalty in such a case. The Court by itself cannot mandate as to what should be the penalty in such a case. (e) The only exception to the principle stated in para (d) above, would be in those cases where the co-delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct was identical or the co-delinquent was foisted with more serious charges. This would be on the Doctrine of Equality when it is found that the concerned employee and the co-delinquent are equally placed. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of charge sheet in the two cases. If co-delinquent accepts the charges, indicating remorse with unqualified apology lesser punishment to him would be justifiable.” 12. In a matter involving identical facts and issues, viz. Roop Lal (supra) while relying upon the ratio laid down by the Hon’ble Apex Court in Director General of Police & Ors. vs. G. Dasayan [ 2010 (2) SCC 497 ], the Court observed as under:- “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 Vs. 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.” 13. But, in view of the judgment of Hon'ble Supreme Court, reported in (1998) SCC (L & S) 557, Director General of Police & Others Vs. 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.” 13. From the ratio as laid down in the above mentioned judgments, the position of law which emerges is: 1. There has to be an absolute equality and parity on the issue of quantum of punishment where the charges of misconduct are identical and the role of the delinquents is equally placed. 2. If co-delinquent accepts the charge, indicating remorse with unqualified apology, lesser punishment to him would be justifiable. 14. We now proceed to analyse the facts of the present case in the contours of the aforesaid principles. 16. It is clear on record that the petitioner and the other constable were both equally responsible for the elopement of the accused and ought to have been treated equally by the disciplinary authority. The other constable Bhagirath Ram was a probationer and was under an obligation to complete his probation period with full sincerity. Although, he misconducted himself in performance of his duties, he was punished with a fixed pay for a period of 5 years, whereas the petitioner was punished with dismissal of service which is a clear discrimination on part of the disciplinary authority. 17. As held in Roop Lal’s case (supra) at the time of inflicting penalty, no discrimination can be made by the disciplinary authorities. Both the constables were equally responsible for taking accused to the Court but due to negligence of both of them the accused fled away therefore, both the delinquents could not have been treated and punished differently. But as the petitioner has now superannuated, punishment as imposed on the co-delinquent cannot be imposed on the petitioner. 18. In view of the above observations and circumstances, the present writ petition is party allowed. The penalty of dismissal of service as imposed by the disciplinary authority on the petitioner is set aside and in place of dismissal, the order of compulsory retirement is substituted. All the consequential reliefs to follow.