ORDER : Rongon Mukhopadhyay, J. In this application the petitioner has prayed for quashing of the order dated 04.04.2011 passed by the respondent no. 5 whereby and where under the petitioner pursuant to a departmental proceeding has been dismissed from service. A further prayer has been made for quashing the letter dated 12.02.2013 by which the appeal preferred by the petitioner had been rejected on the ground of limitation. The petitioner has also prayed for quashing of the order dated 30.08.2013 passed by the respondent no. 3 by which the second appeal preferred by the petitioner was also rejected. 2. The facts in brief is that when the petitioner was posted as Hawaldar at Markacho Police Station a First Information Report was instituted on 04.06.2010 against the petitioner under Section 377 of the Indian Penal Code. Pursuant to the institution of the First Information Report the petitioner was taken into custody on 04.06.2010 itself and on 05.06.2010 he was put under suspension. A charge-sheet was served upon the petitioner on 25.06.2010 when the petitioner was already in custody. On 16.11.2010 a show cause was issued by the enquiry officer upon the petitioner for his reply failing which the enquiry shall be done ex parte to which the petitioner has given a detailed reply on 18.12.2010. Subsequently, after submission of the enquiry report a notice was served upon the petitioner vide letter dated 15.02.2011 as to why the petitioner shall not be dismissed from service. Thereafter, vide letter dated 04.04.2011 the impugned order of dismissal was passed against the petitioner by the respondent no. 5. The petitioner had preferred an appeal but the same was rejected on the ground of limitation on 12.02.2013 and, thereafter, the petitioner had preferred a second appeal for reconsideration of his case which was also rejected on 30.08.2013. 3. Heard Mr. Mr. Saurav Arun, learned counsel appearing for the petitioner and Mr. Vaibhav Kumar, learned J.C. to A.G. 4. It has been submitted by the learned counsel for the petitioner with respect to the same set of charge a criminal case was also instituted being Markacho P.S. Case No. 51 of 2010 in which although the petitioner was convicted but subsequently his appeal was allowed. Vaibhav Kumar, learned J.C. to A.G. 4. It has been submitted by the learned counsel for the petitioner with respect to the same set of charge a criminal case was also instituted being Markacho P.S. Case No. 51 of 2010 in which although the petitioner was convicted but subsequently his appeal was allowed. It has been submitted that since benefit of doubt has been given to the petitioner and since on account of the same set of charges the petitioner was also proceeded departmentally the petitioner deserves to be reinstated in service on the basis of his acquittal in the criminal case. It has also been submitted that the petitioner could not attend the departmental proceeding diligently as the petitioner was for most of the time in custody and the enquiry report is based on hearsay evidence. It has also been submitted that since the victim himself has stated otherwise in course of trial which strikes the very foundation of the criminal case as well as the departmental proceeding the respondents could not have passed an order of dismissal against the petitioner, more so in view of his acquittal in the criminal trial. 5. Mr. Vaibhav Kumar, learned J.C. to A.G., has submitted that the petitioner at no point of time had taken a plea to keep the departmental proceeding pending awaiting the conclusion of the criminal case and in such circumstance, therefore, it cannot be said that any prejudice has been caused to the petitioner in both the proceedings which had continued simultaneously. Learned counsel further submits that the petitioner was convicted by the learned trial court but although in appeal he has been acquitted but such acquittal cannot be termed to be a clean acquittal. Learned counsel also submits that the departmental proceeding as well as the criminal trial are separate proceeding and although in criminal trial a higher degree of proof is required but the departmental proceeding depends upon the preponderance of probabilities and having considered the entire aspect the enquiry office had found the charge proved against the petitioner which subsequently led to passing an order dated 04.04.2011 dismissing the petitioner from service. 6. 6. The main thrust of argument of the learned counsel for the petitioner is with respect to the setting aside of his order of conviction by the appellate court and since the departmental proceeding was also initiated on the same set of charges the petitioner also deserves reinstatement in service. Learned counsel for the petitioner in support of his contention has referred to various pronouncements of this Court as well as the Hon’ble Supreme Court and which are being dealt in the following paragraph. 7. In the case of Biresh Lal v. Heavy Engineering Corporation Ltd. reported in [ (2000) 3 PLJR 309 ] it was held that since the subsistence allowance was not paid despite repeated request the same would vitiate the entire departmental proceeding. 8. In the case of State of Bihar & Ors. v. Javed Shaukat reported in [ 2002 (3) JCR 213 (Jhr)] [: 2002(3) JLJR 299 it was held that where the employee has been dismissed on the basis of a departmental enquiry on same set of charges and same evidence on which he was acquitted subsequently by a competent court the findings recorded in the departmental enquiry cannot be sustained. 9. The aforesaid decision was based on the judgment passed by the Hon’ble Supreme Court in the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. And Another reported in AIR 1999 SC 1416 in which it was held as follows:- "34. 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 appellant’s residence and recovery of incriminating articles therefrom". The findings recorded by the enquiry 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 panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. They were the only witnesses examined by the enquiry officer and the enquiry 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. 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-parte departmental proceedings to stand. 35. 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. 36. For the reasons stated above, the appeal is allowed, the impugned judgment passed by the Division Bench of the High Court is set aside and that of the learned Single Judge, insofar as it purports to allow the writ petition, is upheld. The learned Single Judge has also given liberty to the respondents to initiate fresh disciplinary proceedings. In the peculiar circumstances of the case, specially having regard to the fact that the appellant is undergoing this agony since 1985 despite having been acquitted by the criminal court in 1987, we would not direct any fresh departmental enquiry to be instituted against him on the same set of facts. The appellant shall be reinstated forthwith on the post of Security Officer and shall also be paid the entire arrears of salary, together with all allowances from the date of suspension till his reinstatement, within three months. The appellant would also be entitled to his cost which is quantified at Rs. 15,000." 10. The appellant shall be reinstated forthwith on the post of Security Officer and shall also be paid the entire arrears of salary, together with all allowances from the date of suspension till his reinstatement, within three months. The appellant would also be entitled to his cost which is quantified at Rs. 15,000." 10. Learned counsel for the petitioner had assailed the impugned order of dismissal on several grounds and one of the grounds being that the enquiry officer had unnecessarily relied on the evidence of hearsay witness and in support of his contention he was placed reliance in the case of Ram Khelawan Paswan v. State of Jharkhand & Ors. reported in [ 2008 (2) JCR 736 (Jhr.)] [: 2008(2) JLJR 618 ] wherein it was held as follows:- "11. It is basic principle of evidence that if previous statement of a person is sought to be used, then that person should be produced and tendered for cross-examination. In absence of production of the witness and an opportunity to cross-examine him, his previous statement becomes inadmissible. It also appears that the testimony of the witnesses on whose evidence the inquiry officer had relied upon was hearsay in nature as they were not the direct witnesses. A finding of guilt on the basis of hearsay testimony cannot be legally sustained in the eyes of law. 12. The other ground of the petitioner is that since he was acquitted in the criminal proceeding he should not have been punished in the departmental proceeding on the charges on the same set of facts." 11. In the case of Arbind Kumar Upadhyay v. The State of Bihar & Ors. reported in [ 2007 (4) JLJR 171 ] it was held that a finding by disciplinary authority cannot be on the basis of mere assumption or hypothesis. 12. Learned J.C. to A.G. has in support of his contention has relied upon the judgment in the case of State of U.P. and Others v. Raj Kishore Yadav and another reported in (2006) 5 SCC 673 wherein it was held as follows:- "4. On a consideration of the entire materials placed before the authorities, they came to the conclusion that the order of dismissal would meet the ends of justice. On a consideration of the entire materials placed before the authorities, they came to the conclusion that the order of dismissal would meet the ends of justice. When a writ petition was filed challenging the correctness of the order of dismissal, the High Court interfered with the order of dismissal on the ground that the acts complained of were sheer mistakes or errors on the part of the respondent herein and for that no punishment could be attributed to the respondent. In our opinion, the order passed by the High Court quashing the order of dismissal is nothing but an error of judgment. In our opinion, the High Court was not justified in allowing the writ petition and quashing the order of dismissal and granting continuity of service with all pecuniary and consequential service benefits. It is a settled law that the High Court has limited scope of interference in the administrative action of the State in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India and, therefore, the findings recorded by the enquiry officer and the consequent order of punishment of dismissal from service should not be disturbed. As already noticed, the charges are very serious in nature and the same have been proved beyond any doubt. We have also carefully gone through the enquiry report and the order of the disciplinary authority and of the Tribunal and we are unable to agree with the reasons given by the High Court in modifying the punishment imposed by the disciplinary authority. In short, the judgment of the High Court is nothing but perverse. We, therefore, have no other option except to set aside the order passed by the High Court and restore the order passed by the disciplinary authority ordering dismissal of the respondent herein from service. It is ordered accordingly. The civil appeal stands allowed." 13. It is not in dispute that the charges which were framed against the petitioner in the departmental proceeding was with respect to committing an unnatural offence upon a twelve years boy namely Sudhanshu Kumar and with respect to the same charges Markacho P.S. Case No. 51 of 2010 was also instituted. During the trial in the criminal case the appellant was convicted and sentenced for the offence under Section 377 of the Indian Penal Code vide judgment dated 29.03.2011. During the trial in the criminal case the appellant was convicted and sentenced for the offence under Section 377 of the Indian Penal Code vide judgment dated 29.03.2011. The petitioner had preferred an appeal being Criminal Appeal No. 9 of 2011 and ultimately vide judgment dated 13.12.2012 the petitioner was given benefit of doubt and was acquitted from the charge levelled against him. In course of trial the victim was examined as P.W.- 1 but he had not stated about the name of the petitioner. Since most of the witnesses had been declared either hostile or were tendered by the prosecution the appellate court arrived at a finding of acquittal. Since the allegation against the petitioner with respect to the commission of an offence under Section 377 of the Indian Penal Code has not been proved the acquittal of the petitioner can be termed as a clean acquittal. In the departmental proceeding although an application was made by the petitioner for examining the victim Sudhanshu Kumar but the enquiry proceeded and concluded on the basis of five witnesses who all were police witnesses. All the said witnesses were hearsay witnesses and on the basis of their evidence the enquiry officer had come to a conclusion that the charges against the petitioner of his act of moral turpitude stand proved. When a criminal prosecution against the petitioner was already instituted the disciplinary authority should have kept the departmental proceeding in a dormant state in order to arrive at a final conclusion in the criminal case before proceeding further. 14. Be that as it may since the allegation against the petitioner has been disbelieved by the criminal court by a judicial pronouncement the petitioner cannot be kept out of service on the basis of findings recorded in a departmental proceedings arising out of the same set of charge, more so when the witnesses were all hearsay witnesses. 15. Consequent to what has been discussed above, this application is allowed. The impugned order dated 04.04.2011 passed by the respondent no. 5 the letter dated 12.12.2013 issued by the respondent no. 3 as well as the dismissal of second appeal on 30.10.2013 passed by the respondent no. 3 are, hereby, quashed and set aside. 16. The respondents are directed to reinstate the petitioner in service forthwith. The question of payment of back wages is left open to be considered by the authorities.