G.S. Singhvi, J.
1. The petitioner who had joined as a Clerk in the service of the erstwhile State of Pepsu, was removed from service by an order dated 24.7.1965 passed by the Registrar, Cooperative Societies, Punjab under Rule 4(vi) of the Punjab Civil Services (Punishment and Appeal) Rules, 1952. This order was preceded by a regular departmental enquiry which included the issue of a chargesheet, giving an opportunity to the petitioner to submit his reply and recording of evidence etc. Simultaneously, the Government of Punjab sanctioned prosecution of the petitioner Under Section 409 I.P.C. The petitioner was convicted Under Section 409 I.P.C. by the learned Additional Sessions Judge, Narnaul who sentenced him to one year’s rigorous imprisonment and to pay a fine of Rs. 1,000/-. His conviction and sentence were affirmed by the High Court. However, on an appeal to the Supreme Court, the petitioner was acquitted by the Apex Court vide its judgment dated 25.1.1979. Immediately after his acquittal by the Supreme Court, the petitioner made a representation to the authorities of the Punjab Government as well as the Haryana Government for his reinstatement and for grant of consequential benefits. It appears that the two Governments exchanged correspondence on the question of entitlement of the petitioner to be reinstatement in service but ultimately, it was decided by the Registrar, Cooperative Societies, Punjab that the petitioner is not entitled to the benefit of the judgment of the Supreme Court because the order of punishment of removal from service was not set aside by the Supreme Court. This decision was conveyed to the petitioner vide order dated 29.11.1990 (annexure P-15).
2. The petitioner has questioned the decision of the Registrar, Cooperative Societies on the ground that the sole basis for taking action against him was the charge of embezzlement of Rs. 535/- and once the petitioner has been exonerated by the Supreme Court, the very foundation of the order of punishment of removal from service has dis-appeared and the employer is under a duty to reinstate him in service and to give him all consequential benefits. Argument of Mr. Nabhewala, learned counsel for the petitioner is that the petitioner was subjected to double jeopardy inasmuch as the Government proceeded against him by way of a departmental enquiry and at the same time, prosecuted him, Learned counsel for the petitioner argued that once the basis of the order of punishment stands obliterated in view of the judgment of the Supreme Court, the petitioner is, as a matter of right, entitled to reinstatement and all consequential benefits. He relied upon the decision of the Supreme Court in Gurnam Singh v. State of Punjab, 1988(3) S.L.R. 434.
3. Learned A.A.G. Punjab argued that the order of punishment was passed against the petitioner same 30 years ago on the basis of a regular departmental enquiry and unless that order was successfully challenged before an appropriate forum including this Court, the petitioner cannot claim reinstatement merely because his conviction and sentence have been set aside by the Supreme Court.
4. A look at the rival pleadings shows that as per petitioner’s own admission, he was removed from service as a measure of punishment awarded to him vide order dated 24.7.1965 passed by the Registrar, Cooperative Societies, Punjab. That order of punishment was never challenged by the petitioner in any Court of law. Even in this petition, the order dated 24.71965 has neither been challenged nor any prayer has been made to quash that order. It must, therefore, be concluded that the order dated 24.7.1965 still holds field. If that order is still operative, it is not possible for this Court to issue any direction to the respondents to reinstate him in service or to treat him as reinstated with effect from the date of his acquittal by the Supreme Court and to give him all consequential benefits. Failure of the petitioner to assail the legality of the order dated 24.7.1965 is by itself, sufficient to dis-entitle him to claim reinstatement and other benefits.
5. Even Otherwise, it is a recognised legal position that an employer has a right to proceed against its employee by way of disciplinary action and also by way of prosecution in a Court of law. Of course, if a charge on the basis of which department enquiry is held is identical to the one in relation to which the prosecution is launched, it is always appropriate for the employer to await the result of the prosecution before taking a final decision on the departmental enquiry. However, in a case like the present one where the departmental enquiry was held and concluded before the finalisation of a criminal case, the delinquent cannot get any relief in the form of reinstatement or other consequential benefits unless he successfully challenges the legality of the order of punishment passed by the competent authority and as already mentioned, the petitioner has not challenged the legality of the order dated 24.7.1965. Therefore, no relief can be given to the petitioner.
6. Decision of Gurnam Singh’s case (supra) on which reliance has been placed by the counsel for the petitioner, was rendered in a case where the employee was punished on the basis of his conviction by a Court of law. The Supreme Court held that once his conviction was set aside by the Appellate Court, the delinquent became entitled to be reinstated in service because the foundation of the order of removal from service had dis-appeared. Moreover, a reading of that judgment does not show that the petitioner had not challenged his removal from service and yet the relief was given to the petitioner.
7. No other point was argued.
8. In the result, the petition is held to be without substance and is, therefore, dismissed. Parties are left to bear their own costs.