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Jamal Noormohmed Shaikh vs Union Of India-Thro' Secretaryto ...
2025 Latest Caselaw 932 Guj

Citation : 2025 Latest Caselaw 932 Guj
Judgement Date : 16 July, 2025

Gujarat High Court

Jamal Noormohmed Shaikh vs Union Of India-Thro' Secretaryto ... on 16 July, 2025

Author: A. S. Supehia
Bench: A.S. Supehia
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                          C/SCA/6494/2010                                      CAV JUDGMENT DATED: 16/07/2025

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                                                                             Reserved On         : 25/06/2025

                                                                             Pronounced On : 16/07/2025

                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                      R/SPECIAL CIVIL APPLICATION NO. 6494 of 2010


                     FOR APPROVAL AND SIGNATURE:


                     HONOURABLE MR. JUSTICE A.S. SUPEHIA

                     and
                     HONOURABLE MR.JUSTICE R. T. VACHHANI

                     ==========================================================

                                   Approved for Reporting                      Yes            No
                                                                                ✓
                     ==========================================================
                                       JAMAL NOORMOHMED SHAIKH
                                                 Versus
                      UNION OF INDIA-THRO' SECRETARYTO GOVERNMENT OF GUJARAT &
                                                 ORS.
                     ==========================================================
                     Appearance:
                     MR A R ROCKEY(7592) for the Petitioner(s) No. 1
                     MR HARDEEP L MAHIDA(7112) for the Petitioner(s) No. 1
                     DELETED for the Respondent(s) No. 3
                     MRS KRISHNA G RAWAL(1315) for the Respondent(s) No. 4
                     MS HARDIKA VYAS(11450) for the Respondent(s) No. 1,2
                     ==========================================================

                       CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                             and
                             HONOURABLE MR.JUSTICE R. T. VACHHANI

                                                         CAV JUDGMENT

(PER : HONOURABLE MR.JUSTICE R. T. VACHHANI)

1. By way of this petition, under Article 226 of the Constitution of India, the petitioner has prayed for quashing and setting aside the order

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dated 13.03.2009 passed by the Central Administrative Tribunal (for short "the CAT") in Original Application No.256 of 2007 and further to quash and set aside the original order of penalty dated 24.10.2006 passed by respondent No.3, which was substituted by an order dated 03.04.2007, passed by respondent no.4 to the extent of reducing the penalty from dismissal to compulsory retirement and also to grant all consequential benefits, including promotion from the date his juniors were promoted.

2. The facts, in brief of the case, are that at the relevant point of time, the petitioner was serving as an Inspector of Central Excise at Central Excise Division-II, Ahmedabad and served with the charge-memo dated 19.06.1998 levelling two charges that - (i) the petitioner colluded with Mr.M.J.Doshi and Mr. K. Valson Chandrasekhar and other private individuals, including the Custom House Agents to facilitate the smuggling of Ball Bearings into India under the guise of Lead Scrap; and

(ii) the petitioner induced 2 Dock Appraisers, Mr.Ajoy Banik and Mr.J.N. Meena further to the illegal act of smuggling of Ball Bearings into India under the guise of Lead Scrap.

2.1 The inquiry was held and the Inquiry Officer submitted his report dated 29.11.1999 holding the charges as not proved against the petitioner. However, in the interregnum period, the Customs Adjudication Case was decided by the Commissioner of Customs (Adjudication), Mumbai, who, by an order dated 29.11.1999, exonerated the petitioner and all other Customs Officers implicated in the offence for violations of the provisions of the Customs Act, 1962. Thereafter, respondent No.3 preferred an appeal against the decision of the Commissioner (Adjudication) before the Customs, Excise and Gold (Control) Appellate

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Tribunal (CEGAT), which came to be rejected by an order dated 25.06.2003. The said order came to be challenged before the Supreme Court by way of Civil Appeal No.10347 of 2011 and other allied matters, wherein the Supreme Court, by order dated 02.08.2017 dismissed the appeal preferred by respondent No.3 and confirmed the order passed by the CEGAT.

2.2 However, the Disciplinary Authority issued a Note of Disagreement dated 11.09.2000 disagreeing with the report of the Inquiry Officer dated 29.11.1999 and issued a show-cause notice to the petitioner and ultimately the Disciplinary Authority imposed punishment of compulsory retirement vide order dated 16.03.2001, which later on, modified to the extent of compulsory retirement with 25% cut in pension for a period of 10 years.

2.3 Aggrieved by the said decision, the petitioner preferred an appeal before the appellate authority, who, by an order dated 16.01.2002, upheld the punishment of compulsory retirement while setting aside the penalty of 25% cut in pension for a period of 10 years. Against which, the petitioner preferred OA No.241 of 2002 before the CAT, wherein, by an order dated 23.04.2004, the CAT was pleased to quash and set aside the order of the appellate authority and the Disciplinary Authority on the ground that the CVC Advice in case of the petitioner was not supplied to him and non-speaking notice was issued to the petitioner and hence, the matter was remanded back to the Disciplinary Authority; with a direction to provide the CVC Advise to the petitioner and issue a speaking show- cause notice to the petitioner.

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2.4 Pursuant to the aforesaid order, the petitioner was supplied with a copy of the CVC Advice and ultimately the petitioner submitted his reply dated 14.11.2005, and also submitted further representation dated 26.10.2006. Considering the same, the Disciplinary Authority passed an order dated 24.10.2006, whereby penalty of dismissal from service was imposed upon the petitioner. Against which, the petitioner preferred an appeal before respondent No.4, wherein, as per order dated 03.04.2007, the penalty was reduced from dismissal from service to compulsory retirement. Aggrieved by the same, the petitioner preferred OA No.256 of 2007 before the CAT, Ahmedabad Bench, which came to be rejected by order dated 13.03.2009 confirming the order passed by the respondent authorities dated 03.04.2007 modifying the order of penalty of dismissal from service to the extent of compulsory retirement. Under the above circumstances, the present petition came to be filed.

3. Now, before adverting to the submissions made by the learned advocates appearing for the respective parties, it would be appropriate to mention herein the fate of the other co-delinquents, who had been served with the similar charge-memo(s) containing similar charges like the petitioner, against whom the inquiry was recommended and ultimately, against some of them the charges came to be dropped; against some of them, the orders of punishment were quashed and set aside by the CAT or by this Court or by the Supreme Court and the said co-delinquents came to be superannuated on attainting the age of superannuation. The co- delinquents are viz. (1) Mr.Z.B.Nagarkar, (2) Mr.K Valson Chandrasekhar, (3) Mr.M.J.Doshi, (4) Mr.Ajoy Banik, and (5) Mr.J.N. Meena.

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4. In the case of co-delinquent, Mr.Z.B.Nagarkar, who was issued the charge-memo dated 26.10.1999 and the Directorate General of Vigilance recommended dropping of the departmental proceedings by way of a note dated 20.06.2001, which was accepted and by way of the Presidential Order dated 02.11.2001, the departmental proceedings against the said co-delinquent were dropped. The said co-delinquent superannuated at the post of Commissioner.

5. In so far as the case of co-delinquent - Mr. K. Valson Chandrasekhar is concerned, the charge-memo dated 19.06.1998 was issued to him. The Inquiry Officer, vide his report dated 29.11.1999 held the charges to be not proved. However, the Disciplinary Authority vide order dated 11.09.2000 issued a Note for Disagreement and subsequently, the Disciplinary Authority vide its order dated 10.08.2001 imposed penalty of dismissal from service and the appellate authority upheld the said punishment. The said order has been assailed before the CAT by filing OA No.324 of 2002 and by the order dated 23.04.2004, the orders passed by the Disciplinary Authority and the appellate authority were quashed and set aside on the ground that the CVC Advise was not provided to the said delinquent and that the Disagreement Note was not in accordance with law. However, the Disciplinary Authority, after revisiting the inquiry, passed the order of dismissal, which was upheld by the appellate authority and the revisional authority. The co-delinquent challenged the said orders before the CAT by filing OA No.459 of 2012, wherein, by the judgement dated 27.08.2014, the CAT directed the respondents to reinstate the said delinquent; with all consequential

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benefits, which has attained finality; in absence of any challenge. The said co-delinquent superannuated at the post of Assistant Commissioner.

6. Similarly, in the case of co-delinquent Mr.M.J. Doshi, a charge- memo dated 12.06.1998 was issued to him and the Inquiry Officer by his report dated 28.12.1999 held the charges against the said delinquent as not proved. The Disciplinary Authority issued a Note of Disagreement and eventually, the Disciplinary Authority imposed penalty of dismissal from service by the order dated 20.02.2007, which came to be challenged before the CAT by filing OA No.170 of 2007, wherein, by an order dated 30.09.2008, the order of the Disciplinary Authority was set aside and the matter was remanded back to the Disciplinary Authority. Thereafter, the delinquent sought to challenge both the orders of the Disciplinary Authority imposing penalty of dismissal and the order of the CAT dated 30.09.2008 by preferring Special Civil Application No.9493 of 2010 before this Court, wherein, by the order dated 09.07.2015, the Coordinate Bench was pleased to dispose of the said petition with a direction to the respondents to conclude the inquiry on or before 22.11.2015; failing which the delinquent will be entitled for reinstatement. However, the Department failed to adhere to the said time limit and filed Misc. Civil Application No.3296 of 2015 for extension of time; wherein a fresh time limit upto 24.05.2016 was granted, which also was not adhered to by the Department, which prompted the delinquent to prefer Special Civil Application No.3218 of 2019 before this Court praying for dropping of the departmental proceedings against him and to grant all consequential benefits and this Court, by an order dated 20.08.2019, held that the delinquent was entitled for all benefits and that the inquiry proceedings had to be treated as if there was no inquiry at all. Against the said

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decision, respondent-Department preferred of Special Leave Petition (C) Diary No.46089 of 2019 before the Supreme Court, which came to be rejected by the order dated 17.01.2020. Consequently, the said co- delinquent was given notional benefit with the post of Deputy Commissioner.

7. In the case of co-delinquents - Mr.Ajoy Banik and Mr.J.N. Meena, who were the Appraisers at the time of the incident, the Inquiry Officer, vide his reports dated 19.11.1999 and 30.10.1999 respectively, held the charges to be not proved, which was accepted by the Disciplinary Authority. However, the CVC, by its communication dated 28.03.2001, recommended imposition of major penalty and against the said communication, the co-delinquents preferred OA No.875 of 2001 and OA No.49 of 2002 before the CAT, Mumbai Bench, which came to be allowed by way of common orders. The Department challenged the said order before the High Court of Bombay by filing Writ Petition No.2478 of 2003, which also came to be rejected by the order dated 11.09.2009, which has attained finality. Both the co-delinquents superannuated at the post of Additional Commissioner.

SUBMISSIONS ADVANCED BY THE PETITIONER :

8. Learned Advocate for the petitioner Mr.Rockey has submitted that the respondent - Department has failed to prove the existence of Ball Bearings smuggled under the guise of Lead Scrap and in the absence of the respondent being able to prove the existence of such Ball Bearings in the consignments in question, the charge against the present petitioner does not find any substance. He has further submitted that an inquiry has been held against the petitioner and the charges are not found to have

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been proved against him.

9. Learned Advocate for the petitioner Mr.Rockey has further submitted that on one hand the respondent-Department had accepted the recommendation to drop the departmental proceedings qua the co- delinquent - Mr.Z.B. Nagarkar, who has been postulated as the main perpetrator in the entire episode. Thus, it is contended that by not extending the similar treatment in case of the petitioner is indicative of the biased approach on the part of the respondent authorities qua the petitioner. Moreover, when the charges against the said Mr.Nagarkar were much more grave and there was clear allegation of the said officer having received Rs.8,00,000/-, which was stated in a statement made by one Mr.Solly Perumal, respondent-Department in its Note took the decision to drop the departmental proceedings against the said officer and thereby gave a clean chit in the custom proceedings. However, the Department has selectively opted to pursue the charges against the petitioner, while closing the proceedings against the said Mr. Nagarkar which shows the bias stand taken by the respondent-Department.

10. Learned advocate Mr.Rockey appearing for the petitioner has further submitted that respondent No.3 has exhibited double standard in accepting the findings of the Inquiry Officer in respect of other two co- delinquents, who were serving as Appraiser. It is submitted that when considering the second charge issued in the charge-memo to the petitioner, which related to inducing the very same appraisers to facilitate the smuggling of ball bearings and when the charges against the said appraisers could not found to have been proved, then there cannot be any

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question of the petitioner having induced the said officers and thus, even on this count, the case of the petitioner deserves consideration.

11. It is further submitted that the co-delinquents - Mr.M.J. Doshi and Mr.K.Valson Chandrasekhar, who were facing the similar such charges like the petitioner, came to be reinstated in services after having undergone the judicial proceedings; the petitioner could not be said to have committed an act of colluding with other officers. Thus, even on this count too, the petitioner was required to be reinstated in service.

12. It is further submitted that the CAT has gravely erred in not considering the case of the petitioner on parity with the co-delinquents viz. Mr. Nagarkar and the Appraisers Mr. Banik and Mr. Meena. It is submitted that the impugned order of the CAT suffers from total non- application of mind; in as much as it failed to appreciate the fact that the charges against Mr.Nagarkar were far more serious than against the petitioner and thus, the impugned order deserves to be quashed and set aside.

13. To substantiate his stance, the learned advocate for the petitioner has placed reliance upon the decisions in the cases of - (1) Naresh Chandra Bharadwaj vs. Bank of India, 2019 (15) S.C.C. 786; (2) Kashmira Arunkumar Thakkar vs. Union Of India, 2022 (3) G.L.R. 2359; (3) I.N.Gosai vs. Chief Engineer (District) Gujarat Electricity Board, 2018 (0) JX (Guj.) 638; and (4) Punjab and Sindh Bank vs. Sh. Raj Kumar, rendered in LPA No.410 of 2023 & CM APPL.No.53223 of 2024.

14. By making above submissions, the learned advocate for the

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petitioner would submit to allow this petition.

SUBMISSIONS OF THE RESPONDENTS :

15. On the other hand, learned advocate Ms.Hardikka Vyas appearing for respondents No.2 and 4 has submitted that the petitioner was facing serious charges and the authority, after holding a detailed departmental inquiry, held him guilty of the charges levelled against him; the decision thereof has been affirmed by the CAT and, therefore, this Court may not interfere with the said finding.

16. While referring to the statement of one Shri Solly Perumal, recorded under Section 108 of the Customs Act, 1962 by the Senior Intelligence Officer, DRI, Ahmedabad, dated 29.12.1993, learned advocate Ms.Hardikka Vyas has submitted that the petitioner has been directly involved in the alleged act and the authority, after considering the evidence produced before it, has held the petitioner guilty of the charges levelled against him.

17. Learned advocate Ms.Vyas for the respondents no.2 and 4 has further submitted that the findings of exoneration in respect of the co- delinquents rendered either by the CAT or by this Court cannot be made applicable to the case of the petitioner, as the petitioner faced with the departmental inquiry and on the basis of the evidence available with the authority against him, the order of punishment was passed against him and, therefore, it cannot be said that the petitioner and other co- delinquents were on the same footing and hence, such benefit should have

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been extended to the petitioner.

18. While referring to the findings of the CAT in the impugned order, learned advocate Ms.Vyas submitted that the CAT has in detailed considered the material produced before it, more particularly the statement of said Mr.Soli Perumal and confirmed the decision of the Department and thereby dismissed the OA. Learned advocate Ms.Vyas would therefore submit that this Court may not interfere with the said findings.

19. In support of her submissions, learned advocate Ms.Vyas for the respondents no.2 and 4 have placed reliance upon the decisions of - (1) Maharashtra State Board of Secondary and Higher Secondary Education. vs. K. S. Gandhi and Ors., 1991 (2) S.C.C. 716, (2) Lalit Popli vs. Canara Bank & Ors., AIR 2003 S.C. 1796, and (3) Union of India vs. P.K. Sharma, [W.P. (C) No. 6984/2009].

20. By making the above submissions, learned Advocate Ms.Vyas for respondents no.2 and 4 would submit to dismiss the present petition.

ANALYSIS AND OPINION :

21. Having heard the learned advocates appearing for the respective parties and on examining the impugned orders passed by the respondent- Department, which have been confirmed by the CAT, the undisputed facts of the case are that the petitioner, who was facing similar charges that of the co-delinquents, who also stood on the same footing came to be exonerated either by way of dropping of the proceedings by the Department or by quashing and setting aside the order of punishment by

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the CAT or by this Court or by the Supreme Court, as the case may be. This fact has not been denied by the respondent-Department. It is shocking to note that in case of Mr. M.J. Doshi, though the specific direction was issued by this Court vide order dated 20/08/2019 in the writ petition being Special Civil Application No.3218 of 2019 filed by him to complete the inquiry after remand, and even after the dismissal order having being confirmed by the President, the respondent - Department remained indolent, and allowed him to retire, without any orders having been passed in the disciplinary proceedings. The respondents have been unable to point out any distinguishing feature between the case of the petitioner and other delinquents.

22. Undisputably, the petitioner, who was served with the charge- sheet, after completion of the inquiry, found that the said charges were not proved against him and simultaneously, in the customs proceedings, the Commissioner of Customs (Adjudication), exonerated the petitioner and all other Customs Officers implicated in the offence for violations of the provisions of the Customs Act, which has been confirmed upto the Supreme Court. However, the Disciplinary Authority, on a Note of Disagreement, disagreeing with the report of the Inquiry Officer, issued a show-cause notice to the petitioner and thereby imposed punishment of compulsory retirement; which later on, modified to the extent of compulsory retirement with 25% cut in pension for a period of 10 years against which the petitioner preferred an appeal before the appellate authority, who upheld the punishment of compulsory retirement and quashed and set aside the penalty of 25% cut in pension for a period of 10 years. The petitioner approached the CAT, which held that the CVC Advice in case of the petitioner was not supplied to him and non-speaking

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notice was issued to the petitioner and the matter was remanded back to the disciplinary authority. The petitioner, having supplied with a copy of the CVC Advice and considering the reply and representation of the petitioner, the Disciplinary Authority passed an order dated 24.10.2006, whereby penalty of dismissal from service was imposed upon the present petitioner; which later on, was reduced to the compulsory retirement.

23. Thus, from the narration of the above facts, it clearly emerges that though the co-delinquents facing similar such charges like the petitioner have been extended the benefits, who got retired on the basis of either dropping of charges or on the basis of outcome of litigation rendered in their favour; while the petitioner appears to have been made a scapegoat; by not extending similar benefits ignoring the principle of parity as has been accorded in the case of co-delinquents.

24. In context of the aforesaid undisputed facts, the legal proposition as enunciated by the Supreme Court in the case of Naresh Chandra Bhardwaj vs. Bank Of India & Ors., AIR 2019 SC 2075, is relevant to refer where the Apex Court has held thus:

"7. There is really no difference in the proposition, which is sought to be propounded except that in the latter judgment the principles have been succinctly summarised in the last paragraph of the judgment, which read as under:

"19. The principles discussed above can be summed up and summarized as follows:

19.1. 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.

19.2. 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.

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19.3. 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.

19.4. 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.

19.5. 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 codelinquent 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." (emphasis supplied)

25. Thus, the sum and substance of the principle laid down by the Supreme Court culminates with the fact that when the co-delinquent, who if awarded with a lessor punishment by the Disciplinary Authority or even when the charges of the misconduct were identical or the co- delinquent postulate with more serious charges, the principle of equity does warrant to be pressed into on the principle of absolute parity.

26. The second limb of argument of learned advocate for the petitioner is of bias approach on the part of the respondent authorities in case of the petitioner, which can be discerned from the fact that despite the petitioner having ventilated his grievance to the concerned authority while citing number of counts of the Inquiry Officer being bias with the petitioner on account of he having been called to remain present in person in regard to the contempt proceedings initiated by the petitioner and the Inquiry Officer was made to sit before the CAT and thus, the petitioner on getting

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sense, represented that he might not get the justice as the Inquiry Officer was keeping grudge against the petitioner for such an incident, the petitioner requested for appointment of neutral and independent Inquiry Officer and sought recusal services of the then Inquiry Officer. However, the said request was turned down and ultimately the impugned order came to be passed against the petitioner, despite the fact of the co- delinquents met with their respective fate on the basis of the outcome of the proceedings initiated against them, on similar set of facts. Thus, in nutshell, as appears from the record and proceedings, the issue as to arbitrariness and selective action singled out the petitioner for adverse action and letting of the co-delinquents does speak volume, which is nothing but a sheer act of discrimination rather depriving the petitioner from his legitimate benefits ignoring the principle of parity. [See : E.S. Reddi vs. Chief Secretary, Govt. of A.P. & Anr., (1987) 3 S.C.C. 258.]

27. The reliance placed by learned Advocate for respondents upon the decision of Supreme Court in the case of Maharashtra State Board of Secondary and Higher Secondary Education (supra) where the Supreme Court has dealt with the issue of standard of proof as can be said to be not beyond reasonable doubt, but solely rests on the preponderance of probabilities and as such there cannot be any straitjacket formula. There can be no denial to the said proposition of law; but considering the peculiar facts of the case, it would not come to the rescue of the case of the respondents.

28. Another decision, which is pressed into service by the learned Advocate for respondents is in the case of Lalit Popli vs. Canara Bank & Ors. (supra), where the Supreme Court has held that while exercising

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jurisdiction under Article 226 the Constitution, the High Court does not act as an appellate authority as the jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. It further held that the judicial review is not akin to adjudication of the case on merits as an Appellate Authority. There can be no denial to the said proposition of law; but considering the facts of the case on hand where the findings and the conclusions arrived at by the Inquiry Officer, suffer from grave perversity and illegality, the judicial review by the Court does warrant and, therefore, the said decision would also not apply to the facts of the present case.

29. Likewise, the decision of the Supreme Court in the case of Union of India vs. P.K. Sharma (supra) where the Supreme Court has held that there is no bar in initiating disciplinary proceedings if the charged officer is acquitted of criminal proceedings arising out of the same cause of action and the result of one proceeding does not have a bearing on the other proceedings. There can be no dispute to such proposition of law; but in the case on hand, the facts are totally rest on different material where the co-delinquents have been exonerated on one or the other count and the petitioner seeks applicability of principle of absolute parity.

30. In the opinion of this Court, the impugned order passed by the CAT lacks plausible reasons for not accepting the stance of the petitioner as to why the petitioner was deprived of for not extending the similar benefits as has been given in case of the co-delinquents, who have been facing similar charges on same set of facts as no specific reasons are even adduced by the appellate authority either for discarding the same and why

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not adhered in the case of the petitioner. Thus, the findings arrived by the authority as well as the CAT deserve to be quashed and set aside.

31. For the foregoing reasons, the petition merit acceptance. The order dated 13.03.2009 passed by the CAT in Original Application No.256 of 2007 and the original order of penalty dated 24.10.2006 passed by respondent No.3, which was substituted by the order dated 03.04.2007, passed by respondent No.4 to the extent of reducing the penalty from dismissal to compulsory retirement, are quashed and set aside and the petitioner is entitled to all the consequential benefits, including promotion at par with his juniors. The benefits shall be conferred to the petitioner within a period of 03 (three) months from the date of the receipt of the writ of this order.

32. Accordingly, the petition is hereby allowed. RULE is made absolute.

(A. S. SUPEHIA, J)

(R. T. VACHHANI, J) sompura / 01

 
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