JUDGMENT
Mohinder Pal, J.
1. Brief facts are that the petitioner was working as Dairy Extension Worker in Sub Store Milk, Jhajjar. On October 07, 1994, First Information Report No. 290 under Section 408 of the Indian Penal Code was registered against him and three others at Police Station, Jhajjar, on the allegation that proceeds of ghee, seeds etc. to the tune of Rs. 53,383/- had been embezzled.
2. In the departmental inquiry, the petitioner was found guilty by the Inquiry Officer. In view of the findings of the Inquiry Officer, the petitioner had been removed from service on September 10, 1996.
3. Against the order dated September 10, 1996, the petitioner filed an appeal dated September 24, 1996. His appeal was allowed to the extent that the petitioner was taken back in service by reducing the punishment of removal from service to stoppage of three annual increments with cumulative effect vide order dated October 12, 1998.
4. However, vide judgment of conviction dated March 28, 2003 and the sentence order dated March 29, 2003, the petitioner, along with his co-accused, was convicted by the Chief Judicial Magistrate, Jhajjar, under Section 408, Indian Penal Code, and -sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 3,000/- and in default of payment of fine to undergo further rigorous imprisonment for nine months. As a result of this judgment of conviction and sentence order, the Chief Executive Officer of the Rohtak Co-operative Milk Producers Union Limited (respondent No. 3) passed the order dated May 30, 2003 (Annexure P-2) removing the petitioner from service. Petitioner filed appeal against the order dated May 30, 2003 (Annexure P-2) on the ground that the sentence of imprisonment imposed upon the petitioner by the Chief judicial Magistrate, Jhajjar, had been ordered to remain suspended by the Additional Sessions Judge, Jhajjar, vide order dated April 19, 2003 (Annexure P-l) passed in the appeal preferred by him and he had conveyed this order to respondent No. 3. Despite this, he was ordered to be removed from service by respondent No. 3. Appeal of the petitioner was dismissed by the Appellate Authority on the ground that it had not been filed within the prescribed period. As his appeal was not heard on merits, the petitioner filed Civil Writ Petition No. 2877 of 2004 challenging the dismissal of his appeal. This court vide order dated May 37, 2005 (Annexure P-5) allowed the writ petition and directed the Appellate Authority to pass an order on the merits of the controversy. The Appellate Authority dismissed the appeal on December 06, 2005, on the ground that the petitioner had been convicted and sentenced by the Court of Chief Juridical Magistrate, Jhajjar. The order dated December 06, 2005, was conveyed to the petitioner by respondent No. 3 by his letter dated January 04, 2006 (Annexure P-6).
5. In this petition filed under Articles 226/227 of the Constitution of India, the petitioner has prayed for issuance of a writ in the nature of certiorari, thereby quashing the orders whereby he was removed from service.
6. In the written statement filed by the respondents, it has been pleaded that the petitioner was taken back in service vide order dated October 12, 1998 subject to the out come of the criminal case pending against them. It was also stated that appeal preferred by the petitioner against the judgment of conviction and sentence order passed by the Chief Judicial Magistrate, Jhajjar, was accepted by the Additional Sessions Judge, Jhajjar, and he was acquitted vide judgment dated October 13, 2006. However, the respondents have preferred appeal against the judgment dated October 13, 2006 before this Court and the same is pending disposal. It has also been averred that the petitioner had admitted his guilt during inquiry and had deposited the embezzled amount of Rs. 53,383/-.
7. We have heard the learned Counsel for the parties and have gone through the records of the case.
8. Learned counsel for the petitioner has produced copy of the judgment dated October 13, 2006, passed by the Additional Sessions Judge, Jhajjar, whereby the petitioner has been acquitted. The same is taken on record.
9. Learned Additional Sessions Judge, Jhajjar, has ordered acquittal of the petitioner after threadbare examination of the evidence. It has been noticed that entrustment of ghee and seeds to the petitioner is not proved, nor it was his duty to take the charge of these articles. The entries in the Stock Register also do not conform to the allegations made against the petitioner. When entrustment was not proved, embezzlement could not be proved. Regarding confession of guilt before the Inquiry Officer, the Additional Sessions Judge held that confession or admission of guilt cannot be made the basis for conviction, it is worth-mentioning here that the petitioner was awarded the punishment of stoppage of three annual increments with cumulative effect vide order dated October 12, 1998, which order has attained finality. In the written statement, it has been specifically stated by the respondents that the petitioner was taken back in service after his punishment of removal from service was reduced to stoppage of three increments with cumulative effect vide order dated October 12, 1998, subject to the outcome of the criminal case pending against him. Now, when the petitioner has been acquitted by the Additional Sessions Judge, Jhajjar,. vide order dated October 13, 2006, the orders removing him from service cannot be sustained on the ground that appeal against the judgment of acquittal is pending in this Court. The petitioner was removed from service because of criminal prosecution against him. Once he is acquitted therein, he is entitled to be reinstated into service. Similar view was taken by a Division Bench of this Court in the case reported as Shashi Kumar v. Uttri Haryana Bijli Vitran Nigam 2005 (1) Service Cases Today 577. The argument of the learned Counsel for the respondents that the acquittal of the petitioner is not honourable one because it has been recorded by the Additional Sessions Judge, Jhajjar, on account of certain technical flaws like non-mentioning of the articles in the Stock Register, entrustment of articles to the petitioner having not been proved etc., does not legally hold the field. In the case of Shiv Kumar Goel v. State of Haryana (2007-1)145 P.L.R. 190, a Division Bench of this Court observed that if the Criminal Court recorded finding that there was no evidence to prove the charge of corruption against the employee, notwithstanding observations as to acquittal by benefit of doubt, it will be considered honourable acquittal. It has further been observed that his benefits of pay and allowances over and above subsistence allowance cannot be forfeited still observing him guilty of the same Charges.
10. For the aforesaid reasons, we are of the considered view that the petitioner is entitled to be reinstated in service with all consequential benefits. We, therefore, allow this writ petition and quash the impugned orders removing the petitioner from service.
11. The respondents are directed to reinstate the petitioner into service with continuity in service and all consequential benefits. It is, however, ordered that the payment of arrears will be restricted to the period of three years and two months preceding the filing of the present writ petition.