Dr. CHAUHAN, J. - (1.) THE instant writ petition has been filed for quashing the impugned order dated 11. 11. 99 (Annx. 5), by which the claim of reinstatement of petitioner in Police Department has been turned down.
(2.) THE facts and circumstances giving rise to this case are that petitioner had joined the police service and when he was working as Cashier, F. I. R. No. 237/93 under Section 468/420 read with Section 409 I. P. C. was lodged against him with the allegation that he had misappropriated a huge amount of Rs. 45,784/-in total by manipulating the record. After investigation, challan was filed against him and during pendency of the criminal trial, the disciplinary proceeding was initiated against him. A charge-sheet dated 13. 8. 93, consisting of eleven charges of misappropriation, embezzlement and manipulation of record, were levelled against him. Petitioner filed reply to the said charge-sheet on 28. 9. 93 denying the allegations. THE Appointing Authority, vide order dated 30. 9. 93, appointed the Deputy Superintendent of Police, Nathdwara as the Enquiry Officer, who, after conducting the full-fledged inquiry and recording the evidence of various witnesses, submitted the enquiry report, wherein all the charges stood proved against the petitioner. Petitioner was given a show cause notice, to which he replied and also claimed an opportunity of hearing personally. THE Disciplinary Authority heard the petitioner in person on 31. 3. 94 and agreeing with the inquiry report, imposed the punishment of removal, vide order dated 31. 3. 94 (Annx. 2 ). Being aggrieved and dissatisfied, petitioner preferred an appeal before the Deputy Inspector General of Police, which was also rejected vide order dated 19. 11. 94 (Annx. 3 ). Petitioner faced the criminal trial. However, vide judgment and order dated 6. 5. 99 (Annx. 1), he had been acquitted by giving the benefit of doubt. After acquittal, petitioner made an application dated 28. 8. 99 to the Competent Authority to reinstate him on the ground of acquittal in criminal case and the said applicant has been rejected vide order dated 11. 11. 99 (Annx. 5 ). Hence this petition. Mr. B. R. Mehta, learned counsel for the petitioner, has raised the sole contention that acquittal in a criminal case, even by giving the benefit of doubt, entitles a person for reinstatement for the reason that the ground of dismissal stands disappeared. In support of his contention, he has placed reliance upon the judgment of this Court in Man Singh vs. State of Rajasthan (1), and the judgment of the Hon'ble Supreme Court in Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. & Anr. , There is a complete fallacy in the submission made by Mr. Mehta. The judgment in Man Singh (supra) is an authority in a case where the termination order had been passed only on the ground that employee therein stood convicted by a criminal court and no departmental enquiry had even been held. Thus, it was held that as the ground of termination had disappeared, he was entitled for reinstatement. Therefore, the said judgment has no application in the present case. In Capt. M. Paul Anthony (supra), the Hon'ble Supreme Court has held that where the same ground of misconduct is based in disciplinary proceeding as well as in criminal trial and "same witnesses were examined" and on consideration of the entire case if the trial court came to the conclusion that no search was conducted, nor any recovery was made from his residence, the employee cannot be punished in departmental proceedings. The aforesaid judgment is an authority in a case where evidence in both the proceedings had been common and, thus, quite distinguishable. In the instant case, departmental proceeding stood concluded on 31. 3. 94 when the punishment order was passed by the Appointing Authority. The record makes it clear that for the same, the Department had examined four witnesses. viz. , Suresh Gautam PW1. Munishwar Mishra PW2, Rajmal Jain PW3 and Mishri Lal PW4. These witnesses had deposed regarding manipulation, cuttings in the official record and embezzlement. In a criminal trial, the prosecution has examined nine witnesses to prove its case, viz. , Narendra Singh PW1, Khushi Ram PW2, Bheru Lal PW3, Parvat Singh PW 4, Puran Singh, S. H. O. , PW. 5, Radhey Shyam PW 6, Raj Mal Jain PW 7, Laxmi Lal PW 8 and Bhanwar Singh PW 9. Out of these witnesses, Bheru Lal PW 3 and Laxmi Lal PW 8 were declared hostile.
(3.) IF we compare the list of witnesses in both the cases, only Raj Mal Jain has been common and even before the trial Court, he has deposed that he had prepared Ex. P. 10/1, which runs to 26 pages and the same had been prepared on the basis of the record, according to which there had been an embezzlement by the delinguent/accused to the tune of Rs. 45,784/ -. During this period of manipulation, the account books had been in possession of the accused. This evidence has not been disbelieved. The acquittal is based on benefit of doubt, mainly that the person, in whose presence recovery to the tune of Rs. 17,180/-was made from his residence, had turned hostile. Therefore, it is not a case where the evidence recorded in the criminal proceedings had been relied upon by the Disciplinary Authority or the same set of witnesses had been examined. The order of the Disciplinary Authority makes it clear that at the time of personal hearing, the delinquent was put a specific question regarding embezzlement and he answered that he was not in a position to say anything. The disciplinary Authority has recorded the finding that he did not deny it. He himself made a confession before the Disciplinary Authority that he had withdrawn a sum of Rs. 28,996/-on oral instruction of the Reserve Inspector and the entry of the same had not been made in any account book. He had further made a statement before the Disciplinary Authority that he had disbursed a sum of Rs. 13,575/-to the Constables but did not make the entry in the account books. Therefore, it cannot be said that any of the aforesaid judgments relied upon by the learned counsel for the petitioner has any bearing in the instant case. In Nelson Motis vs. Union of India & Anr. , (3), the Supreme Court has categorically held as under:- " The nature and scope of a criminal case are very different from those of a departmental disciplinary proceeding and an order of acquittal, therefore, cannot conclude the departmental proceedings. " In State of Karnataka & Anr. vs. T. Venkataramanappa (4), the Apex Court held that acquittal in a criminal case cannot be held to be a bar to hold departmental enquiry for the same offence for the reason that in a criminal trial, standard of proof is different and the case is to be proved beyond reasonable doubt but the same is not true in a departmental proceeding as such a strict proof of misconduct is not required therein. ;