SUNIL AMBWANI, J. ( 1 ) THE petitioner was appointed as Assistant Cashier in Feeder Balancing Dairy, Ram Nagar, district Varanasi. on 30. 12. 1980 and was serving as permanent Assistant Cashier in the department. On 24. 1. 1989, when he went to deposit the money amounting to Rs. 2,96,000 in three bags in Oriental Bank of Commerce, Nichi Bagh, district Varanasi, it is alleged that some miscreants pushed the petitioner due to which the petitioner fell down and some miscreants snatched the bag which contained Rs. 87,0oo. The General Manager, Sri B. K. Tiwari was informed on phone to lodge the first information report about the incident. A charge-sheet dated 2. 7. 1990 was issued to the petitioner with the allegation that on 14. 1. 1989. when he went to deposit Rs. 2,96,000 in the vehicle of the institution No. GRM 9922 with Oriental Bank of commerce. Nichi Bagh, Varanasi, according to delinquent employee, some one pushed film on which he fell down holding three cash bags out of which one bag containing Rs. 87,000 was snatched on account of which the institution suffered loss of Rs. 87,000 and from this, it appears that the delinquent employee has caused negligence in performance of the duties and failed to discharge duties which is a serious indiscipline and serious misconduct. An inquiry was conducted, in which the petitioner submitted his reply. Upon inquiry, an inquiry report was submitted which has been annexed as Annexure-6 to the counter-affidavit. In this inquiry. Gunman Sri Gulab Das Keshari did not appear. His written statement, however, was supported by Sri B. K. Tlwart, General Manager of the Bank, Sri Lal Ji Singh, Accountant and Sri B. K. Kundu, an officer of Oriental Bank of Commerce, Nichi Bagh, Varanasi. The Inquiry Officer observed that the gunman Sri Gulab Das Keshari, who was employed through a security agency, did not appear as he had left the security agency. The Inquiry Officer also found the fact that the petitioner was carrying three bags was not supported by affidavit of Sri C. L. Tiwari, Chief assistant (Sales), Bhola Singh, Telex Operator, Hari Ram, Cleaner and Sri Ram Lal, Driver of the vehicle. In effect, the defence of the petitioner that he was carrying three bags and was pushed, upon which he fell and the third bag was snatched by some miscreants, was not believed. In effect, the defence of the petitioner that he was carrying three bags and was pushed, upon which he fell and the third bag was snatched by some miscreants, was not believed. On the report of the Inquiry Officer, the petitioner was dismissed from service by order of managing Director of the Bank dated 31. 12. 1990 which is the subject-matter of the challenge of this writ petition. ( 2 ) A supplementary-affidavit has been filed by the petitioner Ram Surat Ram along with stay application stating that the charge-sheet was submitted in pursuance of the F. I. R. in Crime Case no. 12 of 1989 under Section 406, I. P. C. In the trial Sri B. K. Tiwari, General Manager of the bank, Sri Gulab Das Kesharl, Gunman, Sri V. K. Kundu was examined as P. W. 1 to P. W. 4. The petitioner examined Sri Kamlesh Kumar as D. W. 1. The Court of Judicial Magistrate. Ist Class. Varanasi, acquitted the petitioner with the finding, after assessment of evidence, that the petitioner had fallen down on the channel gate of the Bank where the money was looted away. The gunman, Gulab Das Kesharl deposed that he was with the petitioner until the General manager came on the spot and supported the defence version that the petitioner had fallen down and the money was taken away. Documentary evidence was also taken into evidence in which stealing of Rs. 87. 000 was reported. The Magistrate also believed the defence of the petitioner who deposed that after he fell down, 2-3 persons took the bundle of notes and ran away and other persons were chasing them. The Magistrate recorded a finding that from the evidence, the incident as alleged by the defence appears to have happened and the embezzlement is not proved. He further recorded a finding to the effect that the accused did not take such precaution as were expected from him, in that if he had taken money in box it could not have been stolen. In the end, he was acquitted on the charge of Section 406. I. P. C. ( 3 ) I have heard Ms. Suman Sirohi for the petitioner and Sri G. D. Misra for the respondents. In the end, he was acquitted on the charge of Section 406. I. P. C. ( 3 ) I have heard Ms. Suman Sirohi for the petitioner and Sri G. D. Misra for the respondents. The respondent has firstly taken a preliminary objection that the petitioner is a workman, and that he has an alternative remedy to challenge the order by way of raising an industrial dispute under u. P. Industrial Disputes Act, 1947. The writ petition was filed in the year 1992. A counter-affidavit was called. Thereafter counter and rejoinder affidavits have been exchanged and the parties also exchanged supplementary affidavits. The matter is governed by U. P. Co-operative Employees Regulations, 1975 and has been pending in this Court for the last nine years. It is, therefore, Just and proper to hear the matter on its merits. ( 4 ) THE counsel for the petitioner has relied upon Supreme Court decision in Capt. M. Paul anthony v. Bharat Cold Mines Ltd. , 1999 (82) FLR 627 (SC), Paragraphs 32 and 33 are quoted below : "32. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, the raid conducted at the appellants residence and recovery of incriminating articles therefrom. The findings recorded by the Inquiry Officer, a copy of which has been placed before us. indicate that the charges framed against the appellant were sought to be proved by Police Officers and punch witnesses, who had raided the house of the appellant and had effected recovery. They Were the only witnesses examined by the Inquiry Officer and the inquiry Officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. The same witnesses were examined in the criminal case but the court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a Judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parts departmental proceedings to stand. 33. Since the facts and the evidence in both the proceedings, namely. the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case. " ( 5 ) ON the other hand, the counsel for the respondent has relied upon the Sr. Supdt. of Post offices. Pathanamthitta and Ors. v. A. Gopalan. 1999 (82) FLR 784 : State of Karnataka and anr. v. T. Venkataramanappa, 1997 (75) FLR 559 : Kamal Kishore Lakshman v. Management of pan American World Airways Inc. and Ors. , (1987) 1 SCC 146 ; High Court of Judicature at bombay v. Uday Singh and Ors. , 1997 (76) FLR 532 ; State of Rajasthan v. B. K. Meena and ors. 1996 (75) FLR 2550. ( 6 ) IN Sr. Supdt. of Post Offices. Pathanamthitta and Ors. v. A. Gopalan (supra), the Supreme court found that whereas the respondent A. Gopalan was subjected to two charges, and was imposed with penalty in respect of one charge and since the second charge relating to misappropriation of fund was not the subject-matter of criminal trial, the order of Tribunal setting aside the dismissal was not Justified. In State of Karnataka v. T. Venkataramanappa (supra), it was held that the prosecution evidence in the criminal complaint may have fallen short of the standard of proof with regard to bigamy under Section 494, I. P. C. but that did not debar the State from invoking Rule 28 of the Karnataka Civil Service Rules which forbids a government Servant to marry a second time without permission of the Government. In Kamal kishore Lakshman v. Management of Pan American World Airways and Ors. (supra), it was held that termination of service on the ground of loss of confidence is stigmatic and does not amount to retrenchment. A question whether termination casted stigma and it was held that it will vary from case to case. Retrenchment means termination of service for any reason whatsoever otherwise than by punishment inflicted by way of disciplinary action, and that if the court proposes for opportunity of adjudication before the Labour Court the matter may be sent to it. Since the Court is not proposing the matter to be sent back for availing alternative remedy, this Judgment does not apply on the present facts of the case. In the High Court of Judicature at bombay v. Udai Singh and Ors. (supra), it was held that disciplinary proceedings are not a criminal trial and that doctrine of proof beyond doubt has no application. In disciplinary inquiry, preponderance of probabilities and some material on record will be necessary to reach a conclusion whether or not the delinquent has committed a misconduct. In State of Rajasthan v. B. K. Meena and others (supra), the Supreme Court held that standard of proof, the mode of the inquiry and the rules governing inquiry and trial are entirely distinct and different than the departmental proceedings. The disciplinary proceedings are meant not really to punish the guilty but to keep administrative machinery unsullied by getting rid of bad elements. The interest of delinquent officer lies in a prompt conclusion of disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be dealt with promptly according to law. ( 7 ) UPON considering the inquiry report, dismissal order and order of acquittal passed by the criminal court, I find that the entire basic foundation of dismissal of the petitioner was establishment of charges of loss caused to the Cooperative Society on account of negligence of the petitioner. The defence of the petitioner that he was pushed by some miscreants and that the money was looted was not believed by the inquiry Officer. The incident was thereafter subject-matter of trial. The Magistrate considered the statement of same witnesses, namely, Sri b. K. Tiwari. The defence of the petitioner that he was pushed by some miscreants and that the money was looted was not believed by the inquiry Officer. The incident was thereafter subject-matter of trial. The Magistrate considered the statement of same witnesses, namely, Sri b. K. Tiwari. General Manager of the Society, Sri V. K. Kundu, an Officer of the Oriental Bank of Commerce, Sri Gulab Das Keshari, Gunman who accompanied the petitioner and who had not appeared before the Inquiry Officer. He, however, appeared before the Magistrate and supported the defence taken by the petitioner. The Magistrate as such examined the same witnesses and came to a different conclusion. In a criminal trial, the witnesses appear and depose under oath, and they are subjected to cross-examination, which abides by the Indian Evidence. The magistrate who is a trained judicial officer conducts a trial to find out the truth of the allegations constituting the charge. The standard of proof and the mode of trial by Magistrate in inquiry inspires greater public confidence. ( 8 ) IT was submitted by the counsel for the respondent that in departmental proceedings, the charge of misconduct was under examination whereas the criminal court was considering the charge under Section 406. I. P. C. Accepting the arguments of the counsel for the respondent, I find that in both departmental proceedings as well as criminal charge, the defence of the petitioner that some miscreants pushed him upon which he fell down and money out of one bag was looted away was under consideration. The same incident and the same witnesses were subject-matter of inquiry in departmental proceedings and the subject-matter of trial before the magistrate and the conclusion of the Magistrate is contrary to the conclusion drawn in the departmental proceedings, whereas in the departmental proceedings, this defence of the petitioner was not believed. The Magistrate, after examining the same witnesses and one more witness in defence, came to a conclusion that the incident happened in the same manner as alleged by the petitioner. The entire foundation of punishment in disciplinary inquiry was taken away with the finding recorded by the Magistrate. In the circumstances, the decision of Supreme court in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. , is applicable to the present case, and that the order of dismissal deserves to be set aside. The entire foundation of punishment in disciplinary inquiry was taken away with the finding recorded by the Magistrate. In the circumstances, the decision of Supreme court in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. , is applicable to the present case, and that the order of dismissal deserves to be set aside. ( 9 ) THE writ petition is accordingly allowed, and the order dismissing the petitioner dated 31. 12. 1990 is set aside. The petitioner shall be reinstated in service. The counsel for the respondent submitted that the petitioner can still be held guilty of negligence for falling to observe miles and guidelines laid down by the department, and taking such precaution which could have averted the incident. 1 find that the Magistrate also recorded a finding that although the petitioner is not guilty of charge under Section 406, I. P. C. he should have taken more care and precaution and that such charge can still be a ground of misconduct of course to a lesser punishment. In the circumstances. I direct that whereas the petitioner shall be reinstated, he shall be treated under suspension and paid the suspension allowance with effect from the date of dismissal to the date of reinstatement within a period of two months from the date of serving a certified copy of the order on the respondent. The respondent shall proceed with the inquiry from the stage of serving charge-sheet upon the petitioner or any amended charge which the department may consider necessary and conclude the inquiry in accordance with the provisions of U. P. Co-operative Societies Service Regulations, 1975, within a period of four months from the date of reinstatement of the petitioner.