ORDER :

C.L. Soni, J.

Challenge made in both these petitions is against the order dated 18.5.2011 passed by the Gujarat Civil Services Tribunal in Appeal No.323 of 2008.

2. Appeal No.323 of 2008 was filed by the petitioner of Special Civil Application No.18734 of 2011 ('the employee' for convenience) against the order dated 25.9.2008 of his dismissal from service.

3. The case put up by the employee in his appeal was that he was serving as Junior Pharmacist in the Community Health Center, Lanva from 1988 to 1992. He was served with first show cause notice dated 4.9.1992 for financial irregularity in purchase and distribution of the medicines for the hospital and for tampering with the accounts. He submitted his reply on 9.11.1992, which was not accepted and he was then served with charge-sheet dated 15.9.1993.

4. The employee was simultaneously prosecuted for offences under Sections 409, 420, 467, 468 and 114 of the Indian Penal Code. He was arrested in connection with the said offences and placed under suspension on 2.5.1994. He was acquitted for the offences under Sections 420, 467 and 468 of the Indian Penal Code however convicted for the offences under Sections 409 and 114 of the Indian Penal Code and was sentenced to imprisonment for six months with fine of Rs. 5,000/- by learned Magistrate by judgment and order dated 31.12.2003. Based on the conviction, the employee was dismissed from service by order dated 18.3.2004. The employee then filed appeal against the order of conviction and sentence. He succeeded in the appeal. The learned Additional Sessions Judge, 3rd Fast Track Court, Patan acquitted him of the above-said offences by judgment and order dated 6.11.2004. The said judgment of acquittal came to be confirmed by this Court by order dated 16.7.2010 in Special Criminal Application No.2282 of 2004 filed by the State Government. It is further case of the employee before the Tribunal that after acquittal, the Disciplinary Authority kept two more hearings in the departmental proceedings wherein statement of one Shri D.M. Patel was recorded and thereafter, the impugned order of dismissal of the employee was passed.

5. The Tribunal found that recording of statement of one Shri D.M. Patel who was never cited as witness was illegal. The Tribunal also recorded that the acquittal of the employee was not an honourable acquittal, however, it further recorded that the finding in the departmental inquiry was based on no evidence. The Tribunal thus allowed the appeal in part, quashed and set aside the order of dismissal of the employee dated 25.9.2008 and ordered reinstatement of the employee in service with full back wages. However, it remanded the matter to the Disciplinary Authority to the stage of holding of fresh departmental inquiry.

6. The employee is aggrieved by the order of remand to the Disciplinary Authority for holding fresh departmental inquiry. The State is also aggrieved by the order of the Tribunal insofar as it has quashed the order of dismissal of the employee from service and of his reinstatement with full back wages.

7. I have heard learned advocates for the parties.

8. Learned advocate Mr. G.M. Joshi for the employee submitted that though it was open to the department to simultaneously proceed with the departmental inquiry pending the criminal proceeding, however when the competent Court of criminal jurisdiction on appreciation of the evidence found that the prosecution had failed to establish the offences against the employee, it was not open to the department to proceed further with the departmental inquiry on the same set of charges. Mr. Joshi submitted that the impugned order of dismissal from service was passed subject to the outcome of the Special Criminal Application filed by the State before this Court and once the State failed in Special Criminal Application against the order of acquittal, the Tribunal after quashing the order of dismissal of the employee ought not to have remanded the matter to the Disciplina