IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.96 of 2009 (S/B) Ravindra Singh ………..Petitioner Versus State of U.P & others ….Respondents Mr. Manoj Sah, Advocate holding brief of Mr. Gopal Dutt Joshi, Advocate for the petitioner. Mrs. Beena Pandey, Advocate for the respondent no.1. Mr. K.P. Upadhyay, Addl. C.S.C. for the State/respondent no.2. Dated: 28th August, 2010 Coram: Hon’ble Barin Ghosh, C.J. Hon’ble V.K. Bist, J. Barin Ghosh, C.J. (Oral) In a charge sheet dated 21st August, 1993, it was alleged that during the parade held on 13th September, 1991, the petitioner was found intoxicated. This charge sheet was not replied, still then, the charge contained in the charge sheet was enquired into twice by two Enquiry Officers. Before the first Enquiry Officer, the petitioner in writing stated that he had consumed alcohol on the previous night. On the basis of such contention and on the basis of the medical report to the effect that the petitioner had consumed alcohol and smell thereof was emitting from his mouth, both the Enquiry Officers held that the charge stands proved. They recommended that the petitioner should be put at the minimum basic pay for two years. The Disciplinary Authority, however, while issuing the second show cause indicated that the charge, as stands proved, 2 entails a punishment of dismissal. For some reason or the other, petitioner could not give reply to the second show cause. By the order dated 31st October, 1993, the petitioner was dismissed from service. Appeal preferred against the said order was also dismissed. Petitioner then approached the Tribunal unsuccessfully. Hence, the petitioner is before us. 2. In terms of Rule 4 (A) of the U.P. Govt. Servants Conduct Rules, 1956, violation whereof was the main ingredient of the charge contained in the said charge sheet, consumption of intoxicating drinks and drugs in the manner and to the extent mentioned in the said Rule is against the expected conduct of Govt. Servants. The said Rule is extracted below: [4-A. Consumption of intoxicating drinks and drugs.-A Government servant shall- (a) strictly abide by any law relating to intoxicating drinks or drugs in force in any area in which he may happen to be for the time being; (b) not be under the influence of any intoxicating drink or drug during the course of his duty and shall also take due care that the performance of his duties at any time is not affected in any way by the influence of such drink or drug; (c) refrain from consuming any intoxicating drink or drug in a public place; (d) not appear in a public place in a state of intoxication; (e) not use any intoxicating drink or drug to excess. Explanation I- For purposes of this rule ‘public place’ means any place or premises (including a conveyance) to which the public have, or are permitted to have access, whether on payment or otherwise. Explanation II- Any Club- (a) which admits persons other than Government servants as members; or (b) the members of which are allowed to invite non-members as guests thereto even though the membership is confined to Government servants, shall also, for purposes of Explanation I, be deemed to be a place to which the public have or are permitted to have access.] 3. When the Doctor, on whose report reliance was placed by the prosecution, made it absolutely clear that the petitioner was not intoxicated, but smell of alcohol was emitting from the mouth of the petitioner, it was required to take note of whether the same attracted any of the situations mentioned in Rule 4 (A) of the said Rules. That appears to have not been done either in the charge sheet or in the enquiry report or in the second show cause or in the order passed by the Disciplinary Authority. Neither, the Appellate Authority nor the Tribunal applied its mind in relation thereto. To us, emission of the smell of intoxicating drink from the mouth may not be treated to be “under the influence of any intoxicating drink”. However, in view of the order to be passed herein below, we would not conclude our such view and leave the matter to be decided by the appropriate authority. 4. We, accordingly, without interfering with the order of dismissal, remit back the matter to the Disciplinary Authority to decide afresh by giving reasons on the materials already before him whether the state of the petitioner at the time of the parade in question as depicted in the records had suggested 4 violation of conduct Rule 4 (A) of the said Rules. If the Disciplinary Authority is of the view that the said state of affair had suggested violation of the said Rule by the petitioner, he shall state so by giving detailed reasons in support thereof. If he feels that the state of affair pertaining to the petitioner as depicted by the evidence and materials on record, at the time of the said parade, do not strictly violate Rule 4 (A) of the said Rules, he is directed to record the same in writing with reasons in support thereof and forthwith thereafter to revoke the order of dismissal dated 31st October, 1993 and reinstate the petitioner in service entailing payment of salary to the petitioner from the date of reinstatement, but to direct consideration of the period between 31st October, 1993 and until the date of reinstatement of the petitioner as on service only for the purpose of pension and other terminal benefits. Let the above exercise be completed as quickly as possible but not later than three months from the date of service of the copy of the order upon the respondent no.3 i.e. Senior Superintendent of Police, Nainital. (V.K. Bist, J.) (Barin Ghosh, C.J.) 28.08.2010 28.08.2010 Arpan