JUDGMENT R. Misra and N.D. Ojha, JJ.
1. Special leave granted.
2. The appellant was Nazir in the court of Sub-Divisional Officer, Nabha.
3. He was prosecuted for criminal misappropriation punishable under Section 409 of I.P.C. on the allegation that he had failed to account for a sum of Rs. 4,941.47 entrusted to him It is not disputed that by judgment dated 26.3.1963 by Shri O.P. Agarwal Magistrate, First Class, Patiala, on being found guilty he was sentenced to imprisonment which he has suffered.
4. On the basis of this conviction the State of Punjab dismissed the appellant. Subsequently several amounts entrusted to the appellant became the subject matter of a regular audit by the State Government Auditor. The Auditor found that the total amount for which the appellant has not been able to render accounts worked out to Rs. 42,763.02. A list of the total amount embezzled is available at page 155 of the paper book. It is not disputed that the sum of Rs. 4,941.47 which was subject matter of the criminal charge is part of this total figure. Subsequently the appellant was put on trial for misappropriation of the entire amount of Rs. 42,763,02. There is no dispute that the appellant was acquitted in the Court of Judicial magistrate, First Class, Albom camp at Nabha for Challan No. 28-T of 10-11-1970 corresponding to F.I.R. No. 46 of 6.8.46. This acquittal has also become final.
5. The conviction in the first instance and the acquittal in the later prosecution undoubtedly cover the same amount. Obviously the second trial in regard to part of the amount was tenable in law. The question that arises now is whether the dismissal of the appellant from service is justified. Strictly speaking, the employer State was entitled to dismiss the appellant on the basis of the earlier conviction and the dismissal order, therefore, cannot be questioned as long as the conviction stands. But from the conduct of the State in having the entire matter audited, including the same which found the basis of the prosecution resulting in conviction, we have a feeling that the appellant has not been treated properly. In this background we are of the view that the appellant who had already suffered a second round of prosecution and has been out of service for about 14 years following the conviction should not be further punished. In these circumstances we set aside his dismissal and direct the State to restore his service. The appeal is allowed. The appellant will return to "service, but would not, in the peculiar facts mentioned above, be entitled to any back wages. The appellant would not be entitled to any benefit for the period for which he was out of employment, except for the purpose of pension. The appellant is free to report for duty on. June 1, 1988.
The writ petition No. 110 of 1988 shall stand dismissed.