HON’BLE THE CHIEF JUSTICE SHRI MADAN B. LOKUR & HON’BLE SHRI JUSTICE GHULAM MOHAMMED WA Nos. 739,842, 750 and 926 of 2010 COMMON JUDGMENT: ( per Hon’ ble Sri Justice Ghulam Mohammed ) All these writ appeals raises common question of law and, therefore, they are heard together and being disposed of by this common judgment. 2. For the sake of convenience, the parties shall be referred to as arrayed in Writ Petition Nos.13607 of 2009 and 880 of 2010. 3. The facts stated are that the petitioner while working as Peon was implicated in a criminal case by the CID P.S. in C.C.No.353 of 1993 on the file of the IX Metropolitan Magistrate Court, Hyderabad for an alleged offence that he committed theft of demand draft book from Vysya Bank, Srikakulam branch along with others and thereby committed an offence punishable under Section 420, 468, 471, 281 read with 120 B IPC. During the pendency of the criminal case, the petitioner was placed under suspension by an order dated 1.2.1993. However, after six months, on 16.8.1993 his suspension was revoked and he was reinstated subject to finalization of the criminal case and he was posted at Regional Office, Hyderabad. 4. The Criminal Case in C.C.No.353 of 1993 ended up in conviction by judgment dated 13.12.2000 on the file of the learned IX Metropolitan Magistrate, Hyderabad and he was sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs.1,000/-. 5. On appeal, the learned Metropolitan Sessions Judge, by judgment dated 29.4.2002 in Criminal Appeal No.452 of 2000 set aside the conviction and sentence recorded by the trial Court for the offence under Section 381 IPC and confirmed the conviction and sentence for the other offences. On filing of Crl. R.C.No.548 of 2002 and batch, this Court by its order dated 30-4-2007 set aside the conviction and sentence against the petitioner for all the offences and acquitted him holding that there was no evidence and that the conviction of the petitioner was based only on suspicion. The decision of this Court in the said Criminal Revision Case has became final. However, when the revision was pending before this Court, the petitioner was dismissed from service vide proceedings dated 6.11.2002 with retrospective effect i.e. 13.12.2000 which is the date of conviction by the trial Court. The said order was passed when the petitioner’s promotion was due as a Clerk on passing the departmental tests. The dismissal of the petitioner was solely based on the conviction and the respondent-bank had not initiated any departmental proceedings in respect of the said accusation. According to the petitioner, he had not committed any misconduct nor caused loss to the respondent-bank. The order of dismissal passed consequent upon the conviction needs to be revoked once the order of conviction is set aside by this Court. Hence, the petitioner filed representation for revocation of the order of dismissal and for his reinstatement with all consequential benefits. However, 2nd respondent communicated proceedings dated 2.9.2008 stating that the competent authority has not considered his request for re- employment. Subsequently, petitioner again preferred representation on 4.9.2008 before 1st respondent, but the same went in vain. 6. According to the petitioner, the dismissal order passed by the 2nd respondent is not in conformity with the Regulations of the Canara Bank Service Code – Regulation No.21(3) (a). Since the representations filed by the petitioner were rejected, he had to file W.P.No.4473 of 2009 to set aside the proceedings dated 6.11.2002 and 2.9.2008 of the 2nd respondent and that the said Writ Petition was allowed by setting side the impugned orders and directing the respondents to reconsider the request of the petitioner for reinstatement in the light of the findings of this Court in the criminal revision case and the service regulations. Pursuant to the above orders, the 2nd respondent passed order dated 19.6.2009 rejecting the request of the petitioner to reinstate into service and intimated him that the bank is contemplating initiation of appropriate action against him. 7. Aggrieved by the proceedings dated 6.11.2002 and also 19.6.2009 of the 2nd respondent, the petitioner filed W.P.No.13609 of 2009. During the pendency of the said writ petition, the respondents issued charge sheet dated 22.7.2009, an enquiry was also conducted. The Enquiry Officer submitted report on 26.12.2009 holding the petitioner guilty of the charge. Aggrieved thereby W.P.No.880 of 2010 was filed. 8. Before the learned single Judge both the writ petitions were heard together and the learned single Judge on evidence came to the conclusion that there was no legal evidence and only on mere suspicion the petitioner was convicted along with others and such conviction cannot stand the scrutiny of law and, therefore, allowed the Writ Petitions to the extent of reinstatement of the petitioner with continuity of service from the date of dismissal and backwages from the date of issuance of charge sheet till the date of reinstatement. 9. The petitioner filed two Writ Appeal Nos.739 and 842 of 2010 challenging the order of the learned single Judge in restricting the back wages from the date of charge sheet; and the respondent-Bank filed Writ Appeal Nos.926 and 750 of 2010 on the premise that the impugned order passed by the learned single Judge requires interference by this Court. 10. It is contended by the learned counsel for the petitioner that the learned Judge went wrong in restricting the back wages from the date of charge sheet instead of ordering the entire period as duty period for the purpose of pay and other allowances and to that extent the order of the learned single Judge needs to be modified. On the other hand, the contention of the learned Standing Counsel for the Bank is that the learned single Judge ought not to have proceeded to determine the writ petitions in favour of the petitioner on mere ground that the offence committed by the respondent- employee is outside the course of employment. It is further contended that the learned single Judge went wrong in appreciating the principles of evidence relating to a criminal case and a departmental proceedings. It is further contended by the learned Standing Counsel that though the alleged offence was committed outside the employment, it cannot be disregarded that the offences alleged to have been committed has a bearing on the continuance of the petitioner in the services of the bank which aspect is still to be considered by the bank, and therefore, it is contended that the impugned order is liable to be set aside. 11. It is seen from the record that this Court in Crl.Rc.No.543 of 2002 and batch by its order dated 30-4-2007 came to the conclusion that both the Courts below basing on mere suspicion found A.1, A.3, A.4 and A.6-petitioner guilty of the offence, and that the suspicion, however strong cannot take the place of legal evidence or proof, that these aspects have not been considered by the Courts below and, therefore, set aside the conviction and sentence. The learned single Judge adverted to the fact that the respondent-bank has issued charge-sheet dated 22.7.2009 invoking Regulation 21(15) and 21(3)(b) of the Canara Bank Service Code. 12. In the counter affidavit filed by the respondent-bank it is averred that the competent authority can proceed against employee who is acquitted from the charges by a criminal Court, by conducting an enquiry and on conclusion of the enquiry, the competent authority can take decision whether or not to continue such employee in service. According to the respondent-bank, they having come to know about the serious misdeeds committed by the petitioner, who joined with other accomplices including an employees of Vysya Bank, cannot as a matter of routine, take him back into service merely for the reason that this Court has acquitted him of criminal charges due to lack of evidence. The bank can examine the veracity of the allegations by conducting a departmental enquiry and there is prima facie evidence against the petitioner regarding his serious misconduct, though outside the course of employment. However, it is seen from the order under challenge the respondent-bank could not ably answer the query posed by the learned single Judge, as to under what provision of service code the disciplinary action is initiated against the petitioner, when the crime arose outside the employment and the criminal case ultimately ended up in acquittal. The respondent-bank came up with a proposal through its counsel that the petitioner will be appointed as a fresh candidate, which was not accepted by the petitioner, and the matter was therefore heard on merits. The learned single Judge on adjudication, found that the impugned proceedings of the respondent-Bank including the enquiry report in rejecting the case of the petitioner for reinstatement and initiating disciplinary proceedings, are arbitrary, illegal and without jurisdiction and therefore set aside the same. 13. When the employee prosecuted for offence, normally the course that is open to the disciplinary authority is that it may enquire into misconduct unless, the self-same conduct was subject of charge and on trial the acquittal was recorded on a positive finding that the accused did not commit the offence at all. Here in the instant case, this Court in Crl. R.C.No.543 of 2002 and batch held that absolutely there was no legal evidence and only on mere suspicion the petitioner was convicted along with others and such conviction cannot stand the scrutiny of law. Therefore, the learned single Judge while adjudicating the writ petitions came to the conclusion that the petitioner was acquitted honourably. On consideration of the entire material on record, we are of the view that some evidence should have been brought on record to show that the petitioner had indulged in stealing bank drafts along with others; there was no direct or indirect evidence in this regard. In departmental enquiry the suspicion however high cannot be a substitute for legal proof. The learned single Judge came to the conclusion that the petitioner was honourably acquitted and that the respondent-bank in conducting themselves in passing the impugned orders in both the writ petitions by assuming jurisdiction, which they were never vested with is not proper and allowed the writ petitions by directing to reinstate the petitioner with continuity of service from the date of dismissal and ordered back wages from the date of issuance of charge sheet till the date of reinstatement. In the circumstances, we are of the view that the order of the learned single Judge needs no interference by this Court. All the Writ Appeals are meritless and are liable to be dismissed. 14. The Writ Appeals are accordingly dismissed. No costs. ___________________ Madan B. Lokur, CJ _____________________ Ghulam Mohammed, J Dated: 24th November, 2011 kk HON’BLE THE CHIEF JUSTICE SHRI MADAN B. LOKUR & HON’BLE SHRI JUSTICE GHULAM MOHAMMED WA Nos. 739, 842 750 and 926 of 2010 COMMON JUDGMENT: ( per Hon’ ble Sri Justice Ghulam Mohammed ) Dated 24th November, 2011