ANIL J UPADHYAY Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant-Anil Upadhyay, was working as an Armed Police Constable under the Police Commissioner, Vadodara. It was alleged against him that on 29.11.1984, the appellant-petitioner, under the influence of alcohol, visited the residence of one Champaklal Muljibhai Mistri, picked up a quarrel with him and abused him. Thereafter he was found in a drunken condition at Pratapnagar Police Head Quarter. He was taken to the SSG Hospital, Vadodara for medical examination and examined at about 12.00 hrs. mid night. The blood sample was sent to the chemical analyst. Report of the chemical analyzer shows that blood sample contained alcohol to the extent of .1035%, which was admittedly much more than the prescribed standard under the Prohibition Act. Criminal Case against him was registered for the offence under the Prohibition Act as Summary Case No.3432 of 1985 and he was tried before the court of J.M.F.C., Vadodara. However, on technical ground, the learned Magistrate acquitted by his judgment and order dated 31.12.1987. The learned Magistrate, while acquitting the petitioner-accused did not rely upon the report of the chemical analyzer only because the doctor had not sealed the container in which the blood sample of the petitioner was there by putting his personal seal. In respect of that the doctor has put up the general seal of SSG Hospital. In view of the acquittal recorded by the learned Magistrate on the technical ground, departmental proceedings were initiated against the appellant-petitioner by way of charge sheet dated 23/26.9.1988. After considering the evidence of several police witnesses and the report of the chemical analyzer held that the charge of consumption of alcohol was proved against the delinquent. However, the charge regarding visiting the place of complainant, Champaklal and taking up quarrel with him was not found to be true. On the ground of consuming alcohol, he was removed from service. Against which he preferred departmental appeal, which was dismissed. Revision application filed against the appellate order was also dismissed. Therefore, he challenged the order and preferred writ petition being Special Civil Application No.7447/89. The same was allowed by the learned Single Judge of this court (Coram : Miss.R.M.Doshit, J.) on 13.4.2000 and the order of removal from service passed by the Disciplinary Authority, which was confirmed in appeal and revision were quashed and set aside and he was ordered to be reinstated in service as Armed Police Constable. The period spent under suspension was ordered to be period on duty. He was ordered to be paid all the consequential benefits of service, except the back wages on the principal of "no work no pay" and the said period was ordered to be treated as extraordinary leave without pay. Being aggrieved by this part of the order passed by the learned Single Judge denying back wages the appellant-original petitioner has filed this appeal.

(2.) At the outset, it may be stated that the Letters Patent Appeal filed by the respondent against judgment and order passed by the learned Single Judge reinstating the appellant-petitioner in service was dismissed at the admission stage by the Division Bench of this court as stated at he Bar by the learned counsel Mr.Supehia. In that view of the matter we are required to decide only this appeal filed by the appellant-petitioner.

(3.) Learned counsel Mr.Supehia for the appellant-petitioner relied upon the judgment of the Hon'ble Supreme Court in case of Union of India v K.V.Jankiram reported in AIR 1991 SC 2010 submitted that the learned Single Judge committed grave error in not awarding full back wages while setting aside the order of removal and passing order of reinstatement in service of the appellant-petitioner. He, therefore, submitted that this appeal be allowed and the appellant-petitioner be awarded full back wages.