Point of Law: Employer is also entitled to prove it otherwise against the employee, namely, that the employee was gainfully employed during the relevant period and hence not entitled to claim any back-wages. The necessary burden is, however, on the employee;

JUDGMENT :

J.B.PARDIWALA, J.

1. This appeal under Clause 15 of the Letters Patent is at the instance of a writ applicant of a writ application and is directed against the impugned judgment and order passed by the learned Single Judge dated 09.02.2017 in the Special Civil Application No.616 of 2011, by which, the learned Single Judge ordered reinstatement of the appellant herein in service, but declined to grant any back-wages or any other financial benefits.

2. The facts, giving rise to this appeal, may be summarized as under;

2.1 The appellant herein is the original writ applicant. The appellant came before this Court by filing the Special Civil Application No.616 of 2011 praying for the following reliefs;

“(A) Your Lordship may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions quashing and setting aside orders dated 29.08.2003 passed by Superintendent of Police Rajkot (Rural) (at Annexure-C hereto), 30.12.2002 passed by D.I.G (at Annexure-D hereto), order dated 29.04.2006 passed by Director General of Police (at Annexure-E hereto) as well as order dated 08.12.2010 passed by respondent No.1 (at Annexure-J hereto) and directing the respondent authorities to reinstate the petitioner forthwith along with all the consequential benefits with interest;

(B) During the pendency and final disposal of the present petition, Your Lordships may be pleased to stay further operation, implementation and execution of orders dated 29.08.2003 passed by Superintendent of Police, Rajkot (Rural) (at Annexure-C hereto), 30.12.2003 passed by D.I.G (at Annexure-D hereto), order dated 29.04.2006 passed by Director General of Police (at Annexure-E hereto) as well as order dated 08.12.2010 passed by respondent No.1 (at Annexure-J hereto);

(C) Pass any such other and/or further orders that may be thought just and proper in the facts and circumstances of the present case.”

2.2 It appears from the materials on record that the appellant was serving as a Police Constable. One first information report came to be registered dated 26th June, 2000 at the Jetpur Police Station vide the C.R. No.5164/2000 for the offences punishable under Sections 66(1)(b) and 85(1)(3) of the Bombay Prohibition Act. In the said first information report, the appellant herein was arraigned as an accused. Upon registration of the first information report, referred to above, the appellant came to be placed under suspension with effect from 30th June, 2000. The authority concerned thought fit to initiate departmental inquiry against the appellant. A departmental charge-sheet was issued on 29th March, 2001. It appears that the order of suspension later came to be revoked with effect from 14.05.2001. In the departmental charge-sheet, the following two charges came to be levelled against the appellant herein;

“1. On 26.06.2000, at around 16:00 hours, after making an entry in the Station Diary being Entry No.16, you were sent to the Navagaam Cross Road for performing your duties as the Traffic Police. However, you failed to perform your duties sincerely, and without any instructions or reason, you on your own, left the place of your duty and went to Dhoraji Octroi-Point at Jetpur Bypass National High-way.

2. The delinquent knows that he is serving in a very disciplined police department. Preventing the anti-social activities like alcohol is his legitimate moral duty. However, ignoring his office and the reputation of the department, he left the place of his legitimate duty assigned to him and consumed liquor. Such an indecent behavior on his part cast a stigma on the police department.”

2.3 One Shri D.B. Zala, Deputy Superintendent of Police, Head Quarter, Rajkot (Rural), Rajkot was appointed as the Inquiry Officer. At the end of the inquiry, the Inquiry Officer filed his report stating that none of the charges referred to above as framed against the delinquent stood established.

2.4 The inquiry report was taken into considerat