ORDER : Shri S.K. Dash, Administrative Member:- The Original Application (OA) has been filed by the applicant praying to quash the order of punishment of dismissal dated 31.3.2010 as at Annexure-6 and order rejecting the appeal by the appellate authority dated 25.11.2010 as at Annexure-8 respectively. He further prayed to direct the respondents to reinstate him with all financial and consequential benefits. 2. The case of the applicant is that he was appointed as a Constable in the year 1999. While continuing as such a departmental proceeding vide Cuttack District Proceeding No. 33 dt. 17.10.2004 was initiated against him along with others basing on the FIR in PS case No. 57 dt. 22.6.2-4/U/s 376(2)(g)/342/323/506/34 IPC and Section 3 SC/ST (PA) Act. It is submitted that the departmental proceeding and the charges in criminal proceeding are same. The enquiry officer submitted his report on 4.5.2007 at Annexure-3 holding the applicant guilty of the charges of misconduct, moral turpitude and involvement in criminal case, without taking into account the preliminary explanation of the applicant. After completion of the enquiry and before issuance of 2nd show cause notice, the applicant was acquitted from the charges in the criminal case by the competent Court on 3.12.2007. But, without taking into account reply to the 2nd show cause notice wherein he has requested to ignore the findings of the enquiry officer and exonerate him from the charges leveled against him since he has been acquitted in the criminal case, vide order dt. 31.3.2010 (Annexure-6) Respondent No. 3 dismissed the applicant. The said order is illegal, arbitrary and complete non-application of mind. Being aggrieved by the said order, the applicant preferred an appeal before the appellate authority i.e. respondent No. 2. But, by order dt. 25.11.2010 (Annexure-8), the Respondent No.2 also rejected the case of applicant in an illegal and arbitrary manner. Thereafter, the applicant filed a revision petition before the Respondent no. 1, who also confirmed the view of the disciplinary authority as well as appellate authority and rejected the revision of the applicant vide Annexure 9 without applying his mind. The said order is also illegal, arbitrary and non application of mind. When a competent Court of law comes to the conclusion that charges leveled against the accused could not be proved, it cannot be said that the charges are proved in departmental proceeding. The said order is also illegal, arbitrary and non application of mind. When a competent Court of law comes to the conclusion that charges leveled against the accused could not be proved, it cannot be said that the charges are proved in departmental proceeding. Hence, the findings of the competent Court of law will prevail over the findings of domestic enquiry. Article 20 of the Constitution of India prohibits double jeopardy and one cannot be prosecuted twice for one set of offence. Hence, the punishment imposed upon the applicant basing on the findings of domestic enquiry, when he was acquitted by the Court of law, is unjust, improper and the same is liable to be quashed. The charges in the departmental proceeding are gross misconduct, moral turpitude and involvement in criminal case. Similarly the charge in the criminal case is that since the victim Sanju @ Sanjukta Sethy @ Sukanti Sethy @ Mohanty @ Basanti Sethy has been raped by one or more person of the guard party of Bank of Baroda, Buxi Bazar, Cuttack on 6/7.6.2004 night inside the bank and the victim has been illegally confined, assaulted and intimidated, all the accused persons are liable u/s 376(2)(g)/342/323/506/34 IPC and section 3 of SC & ST (PA) Act. In the departmental proceeding, the victim lady stated that she was raped by the applicant whereas in the Court she has stated that she has not been raped by the applicant at any point of time. It is the settled position of law that the statement made before the Magistrate is to be accepted as a piece of evidence but not before the departmental authorities. When the competent Court of law has declared the applicant that he is no way involved in the criminal case, the misconduct or moral turpitude does not attract. So, the punishment of dismissal is completely disproportionate to the charges leveled against him and liable to be set aside. Hence, the O.A. 3. Based on the counter filed by the respondents, the learned Addl. Standing Counsel admitted that the departmental proceeding and the criminal proceeding are based on self same charges. It is no more res integra that a Departmental proceeding can be started simultaneously with criminal case arising out of the same set of facts or incident. Hence, the O.A. 3. Based on the counter filed by the respondents, the learned Addl. Standing Counsel admitted that the departmental proceeding and the criminal proceeding are based on self same charges. It is no more res integra that a Departmental proceeding can be started simultaneously with criminal case arising out of the same set of facts or incident. In absence of any legal embargo, the departmental enquiry can continue without encroaching upon the jurisdiction of the criminal Court to try the case. In this case the Judgment in criminal case was delivered on 5.12.2007, whereas the final order was passed in the departmental proceeding on 31.3.2010. The Enquiring officer conducted the enquiry and submitted his reported after taking into account the preliminary explanation of the applicant and after adhering to all the principles of natural justice. A person already acquitted in a criminal Court may be found guilty in a departmental enquiry. The findings of criminal Court are also not binding on the disciplinary proceeding. The act of the applicant was violative of the departmental rules including conduct rules and was found guilty of grave misconduct. The act committed by the applicant is heinous and is grave in nature as the victim lady in no uncertain terms submitted that the applicant raped her forcibly against her will and intimidated her criminally though she was denied the same before the trial Court. The misconduct, moral turpitude and involvement in criminal case has been proved against the applicant beyond doubt by the ocular testimony of the witnesses and hence the final order has been passed after careful analysis of the evidences on record and due application of mind. It is also well settled that conflicting conclusion can be arrived at the above mentioned forums depending upon the nature of evidence adduced. Rule 844 of Police Manual Rules stipulates that the concerned authority shall take departmental cognizance of every criminal case in which a police officer is convicted or acquitted or discharged except when the case is false. The learned 1st Addl. Sessions Judge, Cuttack vide Judgment dt. 5.12.2007 has been pleased to acquit the applicant from the charges due to lack of adequate evidence but it has not been termed as a false case. The learned 1st Addl. Sessions Judge, Cuttack vide Judgment dt. 5.12.2007 has been pleased to acquit the applicant from the charges due to lack of adequate evidence but it has not been termed as a false case. Departmental procedure reveals that acquittal of a charged officer in a criminal case does not ipso facto eclipse his culpability as regards to the disciplinary proceeding initiated against him. Hence, the Respondents have rightfully rejected the case of the applicant and appropriate final order has been passed dismissing the applicant from service. The Respondent No. 3 (disciplinary authority has awarded different punishment to different delinquents on merit of the charges and as per their culpability. 4. Rejoinder has been filed by the applicant stating therein that the Trial Court in the criminal case concluded that the victim was not at all raped by the accused persons in the night on the date of occurrence and accordingly, the applicant was acquitted of the criminal charges in the Judgment passed by the criminal Court vide Annexure-10. As per Rule 844 of PMR, when one is acquitted in a criminal case, the charge in the departmental proceeding will automatically fail if the charges in the department proceeding and criminal proceeding are same and identical. Since the charges in the departmental proceeding and criminal cases in the case at hand are identical in nature, the punishment imposed basing on the findings of the enquiry officer ignoring the judgment of competent Court of law is perverse and unsustainable. Further, it is stated that in the case of similarly situated Constable namely-Kailash Chandra Kandi, who was found guilty and dismissed from service in the departmental proceeding for the same cause of action, in a revision petition the DG & IG of Police, Odisha took a 'lenient' view and while setting aside the order of dismissal passed by the respondent No.3, directed for compulsory retirement of the said Kandi with effect from 2.4.2010 i.e. the date of his dismissal and treated the period of his suspension as such vide Annexure-11. But in the case of applicant, the DG & IG of Police did not interfere with the order of punishment of dismissal imposed by the disciplinary authority and dismissed the revision petition depriving the applicant's bread and butter for all times to come. But in the case of applicant, the DG & IG of Police did not interfere with the order of punishment of dismissal imposed by the disciplinary authority and dismissed the revision petition depriving the applicant's bread and butter for all times to come. It is settled principle of law that parity among co-delinquent need to be maintained while imposing the punishment. 5. Relying on the counter to the rejoinder filed by the respondents, acquittal of the accused in a criminal case does not bar the jurisdiction of the departmental authority to institute disciplinary proceeding on the same cause of action or on identical matter. The applicant has not been punished for two times and hence the question of double jeopardy does not arise because the disciplinary proceeding and criminal proceeding are two separate proceedings under the different statues. In the criminal case the applicant has not been exonerated honourably rather he has been exonerated due to lack of adequate evidence. The standard of proof required for holding a person guilty by a criminal Court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and it fails to establish the guilt beyond reasonable doubt, the accused assumed to be innocent. It is settled law that the strict burden of proof required to establish guilt in a criminal Court is not required in a disciplinary proceeding and preponderance of probabilities is sufficient. He also relied on the decision of Hon'ble Supreme Court in the case of Deputy Inspector of General of Police vs. Samuthiram (AIR SC Page 14 2013) wherein it has been held that "Mere acquittal of an employee by a criminal Court has no impact on the disciplinary proceeding initiated by the Department. There may be cases where the service rules provide that in spite of domestic inquiry, if the criminal Court acquits an employee honourably, he can be reinstated. The issue whether an employee has to be reinstated in service or not depends upon the question whether the service rules contain any such provision for reinstatement and not as a matter of right. Acquittal of delinquent even if honorable as such does not in absence of any provision in service rules for reinstatement, confer right on delinquent to claim any benefit including reinstatement. Acquittal of delinquent even if honorable as such does not in absence of any provision in service rules for reinstatement, confer right on delinquent to claim any benefit including reinstatement. Reasons is that the standard of proof required for holding a person guilty by a criminal Court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and it fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. It is settled law that the strict burden of proof required to establish guilt in a criminal Court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient." The charges being extremely grave and serious involving gang rape, illegal confinement etc., against the applicant, the punishment of dismissal is fully justified. 7. Learned counsel for the applicant argued that as the applicant has been acquitted in the criminal case during pendency of disciplinary proceeding which was initiated for self same cause of action, the disciplinary authority cannot pass order of dismissal in the disciplinary proceeding. 8. Learned Addl. Standing Counsel, however, submitted that the acquittal of the accused in a criminal case does not bar the jurisdiction of the departmental authority to institute disciplinary proceeding and impose order of punishment on the same cause of action or on identical matter. 9. Considering the submission made by the learned counsel for both the parties, we note that the charges in both criminal and disciplinary proceedings flow from the same event and same set of evidence, but the charges per se are different. While the charges in the criminal case are for the offences of wrongful confinement, rape, threat with dire consequences, to a lady who belongs to schedule caste category punishment under Section 342/506/376(2)(g)/34 IPC and U/s 3 of SC & ST (PA) Act, in the departmental proceeding, the charges have been framed for gross misconduct, moral turpitude and involvement in criminal case. In the criminal case, the applicant had been acquitted by the 1st. Addl. District Judge, Cuttack on 5.12.2007 in Sessions Trial No. 865/2004. In the criminal case, the applicant had been acquitted by the 1st. Addl. District Judge, Cuttack on 5.12.2007 in Sessions Trial No. 865/2004. Although the judgment mentions that the prosecution has miserably failed to establish its case against the accused persons beyond a shadow of doubt and they are bound to be acquitted of the offences, for which they faced trial, the details in the judgment do not indicate it as an 'honourable' acquittal. In view of this, though insufficiency of evidence has been cited to acquit the applicant in Criminal case, on the basis of preponderance of probabilities the applicant has been found guilty of charge, in the Departmental proceedings and accordingly dismissed from service. In the order passed by Respondent No. 3 on dt. 2.4.2010 it is stated that taking into the gravity of the charge, the applicant is dismissed from service with immediate effect. Final order in the Disciplinary Proceedings was issued on 2.4.2010 at Annexure-6 in D.P. 33/2004, while acquittal in criminal case was on 5.12.2007. Further, the Commissioner of Police, Bhubaneswar-Cuttack vide order dt. 25.11.2010 as at Annexure-8, rejected the appeal petition of the applicant on the ground that no malafide or basis can be attributed to the Enquiry Officer either in the conduct of the enquiry or in the conclusions reached. Similarly, the revision petition of the applicant was also rejected by the Deputy Commissioner of Police/HQ, Bhubaneswar-Cuttack as at Annexure-9. 10. The acquittal in the Criminal case is also not an honourable acquittal. The case in hand involves sexual abuse to a woman by a member of disciplined force and hence the ratio of judgment of Hon'ble Apex Court in Samuthiram case (Civil Appeal No. 8513 of 2012 (arising out of S.L.P.(c) No. 31592 of 2008) is squarely applicable to this case. Here the charges, against the applicant were grave. In the Samuthiram's case, the Hon'ble Apex Court has deprecated sexual harassment of women by Police. Moreover, there is no provision in the State service rules for reinstatement of persons even if he is honourably acquitted in a criminal Court. The relevant para from the judgment of Hon'ble Apex Court is quoted below:- 23. In the Samuthiram's case, the Hon'ble Apex Court has deprecated sexual harassment of women by Police. Moreover, there is no provision in the State service rules for reinstatement of persons even if he is honourably acquitted in a criminal Court. The relevant para from the judgment of Hon'ble Apex Court is quoted below:- 23. As we have already indicated, in the absence of any provision in the service rule for reinstatement, if any employee is honourably acquitted by a criminal Court, no right is conferred on an employee to claim any benefit including reinstatement. Reason is that the standard of proof required for holding a person guilty by a criminal Court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilty of the accused is on the prosecution and if it fails to establish the guilty beyond reasonable doubt, the accused is assumed to be innocent. It is settled law that the strict burden of proof required to establish guilt in a criminal Court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. There may be cases where a person is acquitted for technical reasons or the prosecution giving up other witnesses since few of the other witnesses turned hostile etc. In the case on hand the prosecution did not take steps to examine many of the crucial, witnesses on the ground that the complainant and his wife turned hostile. The Court, therefore, acquitted the accused giving the benefit of doubt. We are not prepared to say in the instant case, the respondent was honourably acquitted by the criminal Court and even if it is so, he is not entitled to claim reinstatement since the Tamil Nadu service Rules do not provide so." 11. Relying on the decision of the Hon’ble Supreme Court (Supra), we are not inclined to accept the contention of the applicant that as he has been acquitted in the criminal case, the disciplinary authority cannot pass adverse order in the disciplinary proceeding initiated for the self same cause of action. 12. Relying on the decision of the Hon’ble Supreme Court (Supra), we are not inclined to accept the contention of the applicant that as he has been acquitted in the criminal case, the disciplinary authority cannot pass adverse order in the disciplinary proceeding initiated for the self same cause of action. 12. So far as parity while imposing the punishment among co-delinquent is concerned, learned counsel for the applicant submitted that both the applicant and another Constable namely Kailash Chandra Kandi faced the disciplinary proceedings for the self same event and the disciplinary authority imposed punishment of dismissal against both of them, which was confirmed by the appellate authority. In the Revision Petition filed by the applicant the DG & IG of Police, Odisha Cuttack in his order at Annexure-9 rejected the revision petition being devoid of merit, whereas in the revision petition filed by the Constable Kailash Chandra Kandi the DG & IG of Police observed as follows:- "In view of the above, I am inclined to take a lenient view & set aside the order of dismissal passed by D.C.P. Cuttack which has been upheld by the Commissioner of Police, Bhubaneswar-Cuttack. Instead, the charged constable is compulsorily retired from service w.e.f. 2.4.2010 PM i.e. the date of his dismissal. The suspension period of Charged Constable from 22.6.04 PM to 17.10.04 PM is treated as such." In support of his contention that delinquent officers similarly situated should be dealt with similarly, provided the charges leveled against the employees are identical and it is desirable that they should be dealt with similarly, learned counsel for the applicant cited the decision of the Hon'ble High Court in the case of Ganapati Sunani v. D.M., LIC of India, Berhampur Division, Ganjam and others reported in 2013(II) OLR 378 , wherein the Hon'ble High Court held:- "In the case of Akhilesh Kumar Singh v. State of Jharkhand and others 2007 (8) Supreme 713 , the Hon'ble Apex Court held that delinquent officers similarly situated should be dealt with similarly provided the charges leveled against the employees are identical and it is desirable that they should be dealt with similarly. The ratio of the case in Akhilesh Kumar Singh applies with full force to the facts of the present case. The ratio of the case in Akhilesh Kumar Singh applies with full force to the facts of the present case. In view of the analysis made above we are of the opinion that the petitioner should have been similarly dealt with as has been done by the management in the cases of Ramanath Lakra and Stephen Khalko. We set aside the order of removal from service of the petitioner vide Annexure-13 and the order of the Chairman, LIC of India vide Annexure-16. We direct the opposite parties to consider the question of awarding such other punishment against the petitioner as would deem fit and proper. We make it clear that the petitioner shall not be entitled to back wages for the period of he was out of service. The Zonal Manager (Reviewing Authority) shall take a decision within a period of three months from the date of communication of this order." 13. In the present case as discussed above parity has not been maintained while disposing of revision petitions as lenient view has been taken in the case of Kailash Chandra Kandi and he was compulsorily retired, whereas such a view has not been taken in the case of the applicant, as a result the applicant has been discriminated by up-holding harsh punishment of dismissal awarded by the disciplinary authority. Further, the respondents have stated that the disciplinary authority has awarded different punishments to the charged delinquents without giving any cogent reason. This action is or view is not in accordance with the law. 14. In view of the above submission made by both the counsels, we quash the order passed by the respondent No. 1 as at Annexure-9 and direct him to consider the case of the applicant and pass appropriate orders in the light of the orders passed in the case of Kailash Chandra Kandi at Annexure-11. The entire exercise be done within a period of two months from the date of receipt of copy of the orders. The O.A. is accordingly disposed of. I agree. O.A. disposed of.