THE HON’BLE SRI JUSTICE C.V. RAMULU W.P. Nos. 13607 of 2009 and 880 of 2010 COMMON ORDER: Common questions of law and fact arise for consideration in these two writ petitions, therefore, they are being disposed of by this common order. It appears, petitioner was appointed in the respondent- Bank on daily-wage basis with effect from 15.6.1990, having been sponsored by the Employment Exchange, and posted as Probationary Peon at Canara Bank, Srikakulam Branch. Later, his probation was declared in the said cadre with effect from 7.12.1990 vide bank proceedings dated 30.11.1990. While working as such, he was implicated in a criminal case by the CID P.S in C.C. No. 353 of 1993 on the file of learned IX Metropolitan Magistrate, Hyderabad, on the ground that he has committed theft of Demand Draft book from Vysya Bank, Srikakulam Branch, along with others, and thus committed offences punishable under Sections 420, 468, 471, 281 read with 120- B IPC. During pendency of the criminal case, 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 However, after six months, on 16.8.1993 his suspension was revoked and he was reinstated subject to finalization of the criminal case and he was posted to Regional Office, Hyderabad. The criminal case in C.C. No. 353 of 1993 ended in conviction by judgment dated 13.12.2000 on the file of learned IX Metropolitan Magistrate, Hyderabad and he was sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs.1,000/-. 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, this Court set aside the conviction and sentence against the petitioner for all the offences and honourably acquitted him, holding that absolutely there was no evidence and the conviction of the petitioner was based only on suspicion. The decision of this Court in the said Criminal Revision Case became final. However, when the revision was pending before this Court, petitioner was dismissed from service vide proceedings No. HDAC/507/3-37/2002 dated 6.11.2002 of 2nd respondent, 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. As such, petitioner filed representation dated 25.6.2007 followed by reminders dated 10.3.2008 and 15.5.2008 for revocation of the order of dismissal and for his reinstatement with all consequential benefits. However, 2nd respondent communicated proceedings No. HYC HRM- DAC: statements: 370:2008 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. According to the petitioner, the dismissal order passed by 2nd respondent is not in conformity with the Regulations of the Canara Bank Service Code – Regulation No. 21(3)(a). It is the settled law that once the conviction is set aside, petitioner is entitled to reinstatement with all consequential benefits. 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 2nd respondent. The said writ petition was allowed by setting aside the impugned orders therein 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, within eight weeks from the date of receipt of a copy of that order. In pursuance to the above orders of this Court, 2nd respondent passed order in Proc. No. HYC HRM-DAC E-37 182 2009 dated 19.6.2009, rejecting the request of the petitioner to reinstate into service and intimating him that the bank is contemplating initiation of appropriate action against him. The offence for which the petitioner was convicted and thereafter acquitted honourably does not relate to the employment with the respondent-bank. Therefore, aggrieved by the proceedings No. HDAC/507/E-37/2002 dated 6.11.2002 and the proceedings No. HYC HRM-DAC E-37 182 2009 dated 19.6.2009 of 2nd respondent, petitioner filed W.P. No. 13607 of 2009. During pendency of the said writ petition, respondents issued charge-sheet dated 22.7.2009, enumerating the following charge: “You were earlier working as Peon in Canara Bank, CO, Hyderabad till you were dismissed from the services of the bank w.e.f. 31.12.2000 i.e. the date of your conviction by the IX Metropolitan Magistrate, Hyderabad. The same was communicated to you, vide proceedings No. HDAC 507 E.37 2002 dated 6.11.2002. You were earlier engaged as daily wager from 26.6.89 to 6.6.90 at our Srikakulam branch and w.e.f. 7.6.90; you were absorbed as Peon at our Srikakulam branch. While you were working in Canara Bank, Srikakulam branch, you, Sri Dattaiah and Sri K. Somasekhara Rao, the then Peon of Vysya Bank, Srikakulam had got the possession of DD book from Vysya Bank, Srikakulam and handed over to Sri A. Dattaiah for monetary consideration. Pursuant to the removal of DD book, Sri Dattaiah got issued genuine DDs for small amounts from Vysya Bank, Srikakulam on fictitious names for the purpose of obtaining Bank Serial Numbers. Further, the above persons opened CA at SBI, Khairtabad on fictitious for the purpose of obtaining Bank Serial Numbers. Further, the above persons opened CA at SBI, Khairtabad on fictitious names in the name & style of Thungabhadra Finance Corporation. SrI Dattaiah got prepared stamp seals and other fraudster forged signatures of the Manager & Accountants of Vysya Bank, Srikakulam and prepared fictitious DDs purported to have been issued by Vysya Bank Srikakulam and presented in the A/c of Thungabhadra Finance Corporation, at SBI, Khairtabad to the tune of Rs.59,96,820/- during the period from 14.6.92 to 4.9.92. An amount of Rs.59,75,000/- out of the said amount was withdrawn by Sri A. Dattaiah”. Further, an enquiry was also conducted and the Enquiry Officer submitted report on 26.12.2009, holding the petitioner guilty of the charge. Aggrieved thereby, W.P. No. 880 of 2010 is filed. While admitting the said writ petition on 25.1.2010, an interim order was passed directing the respondents not to pass final orders pursuant to the charge-memo dated 22.7.2009. It is the contention of the petitioner that, firstly, respondents ought not to have rejected the representation of the petitioner for his reinstatement in the light of the honourable acquittal by this Court. Secondly, respondents have no jurisdiction to conduct enquiry, which was the subject matter of earlier criminal case, which ended in acquittal by this Court and which had arisen outside the employment and does not relate to respondent-bank. The charge framed against the petitioner was that he had conspired in committing theft of Demand Draft book from Vysya Bank along with one Dattaiah- Peon of the said Vysya Bank, while petitioner was working as a Peon in Canara Bank at Srikakulam Branch, which was the subject matter of the criminal charge, which ended in acquittal of the petitioner. Therefore, the crime itself arose outside the employment of Canara Bank. In fact, when the primary Court convicted the petitioner, he was dismissed from service by an order dated 6.11.2002 and on acquittal by this Court, he is entitled for reinstatement. Instead of reinstating the petitioner, respondents have again issued present charge-sheet and conducted enquiry without there being any jurisdiction vested in them. Therefore, both the writ petitions are liable to be allowed and the petitioner is entitled for reinstatement with continuity of service and all consequential benefits. In the counters filed by the respondents, they have not denied the facts, but, however, stated 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. It is further stated that the competent authority can proceed against an 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 to continue such employee in service or otherwise. The respondent-bank, having come to know about the serious misdeeds committed by the petitioner, who joined with other accomplices including an employee of Vysya Bank, cannot, as a matter of routine, take him back into service for the reason that this Court has acquitted him of criminal charges due to lack of evidence. The bank is examining the veracity of the allegations by conducting a departmental enquiry as there is prima facie evidence against the petitioner regarding his serious misconduct, though outside the course of employment. Therefore, respondents have ample power to enquire into the misconduct committed by the petitioner, though it had arisen outside the employment and he was acquitted by this Court. Learned counsel for the respondent-bank reiterated the stand taken by the respondent-bank in the counters. I have given my earnest consideration to the respective submissions made by the learned counsel on either side and perused the impugned order and other material made available on record. At the outset, it may be noticed, when a question was put to the respondent-bank as to under what provision of the service code action is initiated against the petitioner when the crime arose outside the employment and the criminal case ultimately ended in acquittal, there was no answer. At one stage, learned counsel for the respondent-bank sought time to take instructions when the Court expressed its anguish as to the illegal order passed by the respondents since it was without jurisdiction, to examine the feasibility of appointing the petitioner on their own. Subsequently, respondent- bank came up with a proposal through its counsel that the petitioner will be appointed as a fresh candidate. When this was not accepted by the petitioner, matter was again adjourned and learned counsel for the respondent-bank prayed the Court to pass orders on merits. Now, coming to the merits of the case, admittedly petitioner was acquitted in Crl.R.C. No. 543 of 2002 and batch. Petitioner was accused No.6 in the above case. This Court found that absolutely there was no legal evidence insofar as A-1, A-3, A-4 and A- 6 were concerned and further held that the conviction of A-1, A-3, A-4 and A-6 was only on mere suspicion and, therefore, set aside conviction and sentence recorded against A-1, A-3, A-4 and A-6. The relevant portion of the said judgment reads as under: “The charges leveled against the accused are criminal conspiracy, cheating, forgery and committing of theft. For the offence of cheating, there are two elements – deception and dishonest intention to do or omit to do something. To establish the offence of chearing, the complainant must show not only that he was induced to do or not to do something, but that this induced act or omission or his part caused or was likely to cause him some harm or damage in body, mind, reputation or property. The offence under Section 468 IPC is the use of forged document and it applies only where forgery is for the purpose of cheating. under Section 471 IPC., whoever fraudulently or dishonestly uses as genuine any document, which he knows or has reason to believe to be a formed document, is punishable. Both the Courts below came to the conclusion that seizure of cash of Rs.11.00 lakhs from A-1 is a strong circumstance in commission of the offence. No doubt, the evidence adduced on behalf of A-1 did not show that he was having substantial properties and that the cash belongs to him. At the same time, it is for the prosecution to establish that A-2 and A-5 had withdrawn the amount by way of self-cheques or bearer cheques, and out of the amount withdrawn from State Bank of India, Khairatabad branch, they paid that amount to him. There is absolutely no evidence to show that the amount of Rs.11.00 lakhs found in possession of A-1, was given by A- 2 or A-5. The conspiracy that was entered into between A-1, A-3 and A-6 to commit theft of demand drafts is not established and in pursuance of the conspiracy, committing theft of demand draft by A-3 is not proved beyond reasonable doubt because A-3 is not the custodian of the demand draft books. So also, there is no evidence to show that A-4 and A-6 had conspiracy with the other accused. Except the confessional statement of some of the accused, there is no legal evidence insofar as A-1, A-3, A-4 and A-6. Because of their confessional statements which are not admissible in law, and because of certain recoveries effected and in pursuance of confessional statement of A-3 recorded under Section 164 Cr.P.C., a suspicion arose against them also with regard to the criminal conspiracy and committing theft of demand drafts. In view of the fact that A-1, A-2, A-4 to A-6 were acquitted of the offence under Section 381 IPC., there is no legal evidence insofar as A-3 for the offence of theft of valuable security. Both the Courts below basing on mere suspicion found A-1, A-3, A-4 and A-6 guilty of the offence. Suspicion, however strong, cannot take the place of legal proof. These aspects have not been considered by the Courts below and so the impugned judgments need interference. Therefore, convictions and sentences recorded by the appellate Court against A-2 and A-5 are liable to be confirmed and are accordingly confirmed, and the convictions and sentences recorded against A-1, A-3, A-4 and A-6 are liable to be set aside and are accordingly set aside and they are acquitted of the charges and set at liberty”. From the above, it is seen that this Court 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, petitioner was honourably acquitted. Against this, respondents ventured to say that this Court did not examine the evidence and due to lack of evidence and benefit of doubt petitioner was acquitted and, therefore, he is not entitled for reinstatement, and they assumed jurisdiction to conduct departmental enquiry against the very same charge, which, in my considered opinion, is arbitrary and illegal, apart from being without jurisdiction. Further, while examining the impugned proceedings in W.P. No. 13607 of 2009, it is found that the same was passed on 6.11.2002 dismissing the petitioner from service w.e.f. 13.12.2000 i.e. with retrospective effect from the date when conviction was recorded by the lower Court, which itself is arbitrary and bad in law. Less said the better as to the conduct of 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. Though a compromise was suggested, respondent-bank has come half the way and retracted. Be that as it may, for the above reasons, the impugned proceedings No. HDAC/507/E-37/2002 dated 6.11.2002, HYC HRM- DAC E-37 182 2009 dated 19.6.2009, REF.HYC HRM- DAV/268/CH(W-23)/2009 dated 22.7.2009 of the respondent-Bank including the enquiry report dated 26.12.2009, in rejecting the case of the petitioner for reinstatement and initiating disciplinary proceedings etc., are arbitrary, illegal and without jurisdiction and liable to be set aside and accordingly set aside. In the result, both the writ petitions – W.P.Nos. 13607 of 2009 and 880 of 2010 – are allowed and the respondent-bank is directed to reinstate the petitioner, with continuity of service from the date of dismissal and backwages from the date of issuance of charge- sheet dated 22.7.2009 till the date of reinstatement. JUSTICE C.V. RAMULU. Date: 30-7-2010. MVB.