IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY THIRD DAY OF JUNE TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GOPALA KRISHNA TAMADA WRIT PETITION NO : 17790 of 2001 Between: N.Shyam Rao, S/o. Narahari, R/o. H.No.5-5-861, Goshmahal, Hindinagar, Hyderabad. ..... PETITIONER AND Osmania University, Rep. by its Registrar, Osmania University Campus, Hyderabad. .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue an order, direction or writ more particularly one in the nature of Writ of Mandamus declaring the action of the Respondent in terminating the petitioner from his services is wholly illegal, arbitrary and unjust and conswquently set aside the same and direct the respondent to reinstate the petitioner into service with continuity of service, back wages and pass Counsel for the Petitioner:MR.G.RAVI MOHAN Counsel for the Respondent No.: . The Court made the following : ORDER : The petitioner filed this Writ Petition under Article 226 of the Constitution of India, seeking a writ of Mandamus declaring the action of the respondent in terminating him from service as illegal, arbitrary and unjust and consequently set aside the same and direct the respondent to reinstate the petitioner into service with continuity of service and back wages. 2. Brief facts are that the petitioner was appointed as early as in the year 1979 as a messenger and thereafter on promotions, he became a Junior Assistant in the year 1991. As a junior assistant he was transferred to cheque section on 17.06.1998 and during his tenure in the said department, he was assigned the duty of preparing cheques according to the bills presented to, and passed by the pre-audit section. 3. It appears that a cheque bearing No.342772, dated 20.01.2000 for Rs.23,411/- was prepared and issued in favour of one Srinivas, Associate Professor in the Department of Botany, Nizam College, Hyderabad and the same was encashed on 24.01.2000. During the course of enquiry, it came to the light that there was no Assistant Professor in the name of Srinivas and the said cheque was fraudulently prepared and encashed by the petitioner himself. 4. In that view of the matter, the petitioner was kept under suspension by an order dated 15.07.2000 and thereafter disciplinary proceedings were initiated by duly appointing an enquiry officer. During the course of enquiry, the petitioner was given sufficient opportunity to rebut the charges framed against him. After a detailed enquiry, the enquiry officer gave a clear finding that there is no person by name Srinivas working as Assistant Professor in the Department of Botany, Nizam College, Hyderabad and the cheque was presented in the bank on 24.01.2000 by the petitioner, who received the said amount after signing his name and writing his account number on the back of the cheque. In the light of the said finding, the disciplinary authority by his order dated 17.04.2001 dismissed the petitioner from his service as provided for under the Rules of the Osmania University Service (Discipline & Appeal) Rules 1990. 5. Questioning the said order of dismissal, the petitioner preferred an appeal and the appellate authority while confirming the said order of dismissal, vide its order dated 11.05.2001 dismissed the appeal. As stated supra, the same is under challenge before this Court. A detailed counter affidavit is also filed on behalf of Osmania University. 6. Heard the learned counsel for the petitioner as well as the standing counsel for the Osmania University. 7. The main contention of the learned counsel for the petitioner is that on the basis of a report given by the authorities of Osmania University, the Sub Inspector of Police, Osmania University Police Station, registered a case in Crime No.34 of 2000 for the offence punishable under Sections 420, 468 of IPC. After investigation, the Sub Inspector of Police filed a charge sheet and the same was numbered as C.C. No.619 of 2002 and the V Additional Chief Metropolitan Magistrate at Hyderabad after conducting a detailed trial, came to the conclusion that the petitioner is found not guilty and acquitted the petitioner of the offences with which he was tried. According to the learned counsel for the petitioner, the charges before the criminal Court and the charges framed by the enquiry officer are one and the same and the evidence let in before the criminal Court and the evidence let in before the disciplinary authority are one and the same and hence, the disciplinary authority ought not to have taken up such a harsh step of dismissing the petitioner from out of service. In this context, the learned counsel for the petitioner has placed strong reliance on a judgment of the Supreme Court in G.M.TANK Vs. State of Gujarat & another[1]. 8. Reiterating the contentions put forth in the counter affidavit filed on behalf of the respondent, the standing counsel of Osmania University submitted that the disciplinary authority after following due procedure under law and rules only imposed the said punishment. According to the learned standing counsel, it is not only misappropriation of amount, but also it is by creating a cheque in the name of a fictitious person, who is not in existence and the petitioner misappropriated the said amount and as such, the said punishment of dismissal is very much required to deter the officers of the university. 9. The degree of proof in the domestic enquiry is restricted to preponderance of probability, whereas in a criminal trial, the guilt of the accused person shall be proved beyond reasonable doubt. Hence, it cannot be said that the acquittal of an accused person in a criminal case automatically can be acted upon and the delinquent officer/accused shall be held to be not guilty of the charges against him during the course of the enquiry. What is to be seen is as to whether the said evidence before the disciplinary authority and the evidence before the criminal court are one and the same. But, from a comparative study of the evidence let in before the enquiry officer with that of the evidence let in during the course of trial in criminal case, this Court is of the view that the said evidence is altogether different. Further, as stated supra, mere preponderance of probability is sufficient to hold that the delinquent officer is guilty of the charges. Here is a case, where the charge against the petitioner herein is that he fictitiously prepared a cheque in the name of a non-existing person, encashed the same. In fact, the endorsement on the cheque clearly established that the petitioner is the one who prepared the cheque and encashed it. From the above, it cannot be said that the petitioner is not guilty of the offence for which the departmental proceedings found initiated. 10. In the light of the above discussion, in normal circumstances, this writ petition shall be dismissed. But, the fact remains that the petitioner was appointed as early as in the year 1979 and had put in continuous service of about 21 years and he was suspended on 15.07.2000 and thereafter dismissed vide order dated 17.04.2001. Taking the fact that he was in service for a period of 21 years and nothing adverse against the petitioner was stated excepting the solitary incident, this Court takes a lenient view. Further, the petitioner is aged about 51 years as of now and he may have a further service of 9 years. Though the charge against the petitioner is very grave and the same is proved, this Court directs the respondent authority to take the petitioner into service, but the same shall be without back wages and continuity of service for all purposes, it shall be deemed that he is out of service from the date of his suspension i.e., from 15.07.2000 till the date of reinstatement. 11. Accordingly, this Writ Petition is disposed of. There shall be no order as to costs. _________________________ GOPALA KRISHNA TAMADA, J Dated June 23, 2009 KSH [1] 2006(5) SCALE-582