The main legal point established in the judgment is that a termination based solely on a conviction ceases to exist upon acquittal, entitling the employee to reinstatement and related benefits.

A.S. Supehia, J.

1. The present petition under Article 226 of the Constitution of India is filed seeking declaration that the impugned order of termination of the petitioner's service dated 30.07.2003 passed by respondent No. 2 is unfair, illegal and unconstitutional. By way of an amendment direction is sought upon the respondents to notionally reinstate the petitioner will all consequential benefits including back wages and continuity in service w.e.f. termination order dated 30.07.2003 in view of the judgment and order of acquittal dated 17.04.2007 passed by Sessions Court, Deesa in Criminal Appeal No. 1 of 2003. It is further prayed that the respondents may be directed to grant all retirement benefits, including pensionary benefits with interest as accrued w.e.f. 25.02.2008 within a stipulated period of time.

2. The facts that can be culled out from the petition are that the petitioner was appointed as a Helper in the respondent-Board w.e.f. 02.02.1971. After completion of probation period, his services were regularized. Petitioner was promoted to the post of Meter Reader in the year 1975. In 1980, the petitioner was promoted to the post of Junior Assistant followed by another promotion in 1980 as Senior Assistant.

3. In 1994, the petitioner was working as Cashier in Deesa Division Office of the respondent-Board in Banaskantha District. On 28.06.1994, the petitioner left the office to deposit Rs. 8,100/- in Dena Bank at Palanpur in the account of the Respondent-Board. However, the said amount was not deposited by him. The petitioner did not resume his duties and remained absent.

4. On 30.06.1994, the Executive Engineer, Deesa, lodged an FIR against the petitioner being C.R. No. I-138/94 alleging embezzlement and thereby commission of offence under the Indian Penal Code. Petitioner was arrested on 15.07.1994 at Deesa. Immediately, thereafter, the petitioner deposited the amount, which was accepted by the respondent-Board. Petitioner was charge-sheeted vide charge-sheet No. 159/94 on 21.11.1994 for commission of offence punishable under Section 409 of the Indian Penal Code. Petitioner was suspended on 01.07.1994 with immediate effect on account of mis-appropriation of cash of the respondent-Board in contemplation of holding an inquiry for major misconduct. Petitioner was charge-sheeted in the departmental inquiry on 11.08.1994.

5. Departmental inquiry was initiated against the petitioner for mis-appropriation of money from the exchequer of the respondent-Board and was found guilty for the alleged misconduct. However, the petitioner was not terminated from his service for the misconduct committed by him. Looking to his representation and with a view to protect livelihood of his family, the respondent No. 2 vide Order dated 18.03.1995 imposed punishment of reversion from the post of Senior Assistant to Junior Assistant in the lower pay-scale for a period of five years, as if he was not promoted with a direction to consider his case for promotion only after five years. Petitioner was reinstated and posted at Radhanpur (O&M) treating his suspension period as not on duty and denying him all allowance for the said period. Thereafter, petitioner was given promotion to the post of Senior Assistant from the post of Junior Assistant on 26.04.2000.

6. Pursuant to filing of the charge-sheet in the Court of Judicial Magistrate, First Class, Deesa (Court No. 1) by Deesa Police for commission of offence punishable under Section 409 of the Indian Penal Code, the petitioner was subject to trial in Criminal Case No. 2920 of 1994. Petitioner was found guilty by Court of Judicial Magistrate, First Class, and was sentenced to undergo rigorous imprisonment for a period of three years with a fine of Rs. 2,000/- by an order dated 16.01.2003.

7. Against the aforesaid order of conviction, the petitioner filed Criminal Appeal No. 1 of 2003 in District and Sessions Court, Banaskantha, wherein vide order dated 23.01.2003 the order of execution of sent