N. J. PANDYA, J. ( 1 ) RULE. Mrs. T. M. Shaikh LAGP waives service of Rule. ( 2 ) WITH the consent of the parties the matter is being taken up for final hearing. The petitioner at the relevant time was working as Beat Guard with the Forest Department of the State of Gujarat. He came to be implicated in an offence under the Bombay Prohibition Act for charges under Sections 66 (1) (b) and 85 (1) (iii) of the Bombay 1 Act. It was tried as a Summary Case being Summary Case No. 1812/78 by the learned JMFC Modasa and resulted into conviction as per order dated 9-8-1978. 2 The Deputy Conservator of Forest under whom the petitioner was working at the relevant time came to know about this conviction and therefore he passed an order on 30th July 1979 dismissing the petitioner. The order is at page 12 Apparently it has been passed under R. 14 of the Gujarat Civil Services (Discipline and Appeal) Rules 1971. It is this order which is sought to be challenged by way of this petition. On behalf of the respondent as expected it has been pointed out that the petition is required to be dismissed on account of delay. From the date of the impugned order no doubt there is almost 13 years delay. However by itself the delay cannot be fatal to the petition. 1992 SC 1414 and 32 (2) GLR 1771 were relied on by the learned AGP. As could be seen from these two judgments the delay respectively had been of 22 years and 18 years. In the instant case the delay is of about 13 years. As could be seen from the petition the plight of the petitioner does not end with the impugned order. The conviction was preceded by a family dispute which took place on or about 4-9-1977. They wanted to lodge a complaint with Malpur Police Station about the incident. This led to their filing a complaint before the Anti Corruption Bureau against the Investigating Officer a PSI of the said Police Station. Thereafter his involvement in the criminal case under Prohibition Act has occurred. ( 3 ) THE petitioners family was completely displaced on account of Vatrak Irrigation Scheme and they were made to leave the area and find alternative site elsewhere. Thereafter his involvement in the criminal case under Prohibition Act has occurred. ( 3 ) THE petitioners family was completely displaced on account of Vatrak Irrigation Scheme and they were made to leave the area and find alternative site elsewhere. Eventually in the month of March 1989 or thereabout they came to be given a piece of land somewhere in Modasa Taluka on the outskirts of village Chikli as per Annexure e. The petitioner in the meantime had contacted Advocate Mr. Rashalmiya Gandhi. After getting the land and once the family had settled down the petitioner contacted his Advocate Mr. Gandhi. To the misfortune of the petitioner the said Advocate has expired. ( 4 ) TRUE to realities of life adversity had piled up one after the other on the petitioner it had not rained but had poured on him. ( 5 ) ON expiry of the Advocate obviously the petitioner was left to find another member of the profession and before that he had obtain whatever papers that he could get and after gathering the same finally he could manage to file the present petition. ( 6 ) UNDER the circumstances to expect the petitioner to come to the Court immediately in my opinion would be asking the impossibility. With reasonable experience whatever he could do and that too when he was holeless his family was roaming around and his attempt to engage a lawyer had failed when he finally comes before the Court in the year 1992 I do not see any reason to dismiss the petition only on that count. The aforesaid judgments on fact would totally be non applicable to the present petition. In the Supreme Court decision no explanation for delay was offered. Same is the position with the Gujarat decision. So far as the principle of latches and delay is concerned I am in full agreement with the views expressed in the aforesaid two decisions one of which is binding to me. However when situation based on facts has to be dealt with at the first instance and according when the learned Judges in the said two decisions did when they found that no explanation is given delay would be fatal The situation as stated above in the present petition is otherwise. ( 7 ) L. A. Mr. However when situation based on facts has to be dealt with at the first instance and according when the learned Judges in the said two decisions did when they found that no explanation is given delay would be fatal The situation as stated above in the present petition is otherwise. ( 7 ) L. A. Mr. Kavina appearing for the petitioner after eloquently and affectively meeting with the aforesaid petition as to delay in the manner noted above had drawn my attention to the impugned order. I agree with L. A. Mr. Kavina that the order was passed on two counts one is the aforesaid conviction and the other is that the petitioner had not informed his immediate superior about the conviction immediately. In fact the Department came to know only when it received a copy of the judgment from the Court. This lapse of not informing the department was also taken into consideration as one of the grounds for passing the order. ( 8 ) THE aforesaid Rule 15 of the Disciplinary Appeal Rules envisages the non applicability of Rules 8 or 9 only when among other things the Government servant is to be dealt with on the ground of conduct which has led to his conviction on a criminal charge. ( 9 ) RULES 8 de 9 refer to the elaborate procedure of inquiry. The effect therefore is that against a servant if Rule 19 is invoked on account of non applicability of Rule 8 or 9 as the case may be there may not be any inquiry. I used the word may not be because Rule 14 (2) itself envisages that the disciplinary authority shall consider the circumstances of the case concerned; and pass such order thereon as it deems fit. This would necessarily mean that the disciplinary authority should consider the circumstances of the case which most of the time can be gathered only when the employer being informed of the likely action and therefore giving him an opportunity of setting out circumstances if any. ( 10 ) ADMITTEDLY no such exercise has been done in the instant case. In any event as rightly submitted by L. A. Mr. Kavina non informing the Department will not be covered by Rule 14. The Order is clearly to the effect that conviction and not informing the superiors both have led to the impugned order. ( 10 ) ADMITTEDLY no such exercise has been done in the instant case. In any event as rightly submitted by L. A. Mr. Kavina non informing the Department will not be covered by Rule 14. The Order is clearly to the effect that conviction and not informing the superiors both have led to the impugned order. The grounds are so intermingled and interwoven that they cannot be severed from each other. It is therefore difficult to save the impugned order under the provisions of Rule 14 Assuming that it is so possible even then so far as the quantum of punishment is concerned the petitioner atleast should have been spared. It is nobodys case that the petitioner was found drunk while on duty. ( 11 ) ON behalf of the respondents the learned AGP has relied on several decisions-1987 JT (4) 152 1992 SCC 454 32 GLR (2) 1623 33 GLR 1622 All these cases refer to the drunkenness found in the course of duty. The petitioner according to the case of the prosecution as can be gathered from the copy of the judgment page 15 onwards was found drunk in a public place at about 8. 30 p. m. The Department does not say that he was on duty. ( 12 ) NO doubt at best so far as the Department is concerned and at worst for the petitioner the aforesaid conviction is the result of the plea of guilt entered by the petitioner. Mr. Kavina had many things to say about the admission of guilt However one has to be with the record and therefore what the petitioner may have instructed L. A. Mr. Kavina to submit cannot be accepted. At the same time it has to be noted that the petitioner was not found drunk while on duty. ( 13 ) HE has been convicted and was ordered to undergo a sentence till the rising of the Court and pay fine of Rs. 25/ -. ( 14 ) IN the background of the said family dispute if at all there was filing of a case before the Anti Corruption Bureau against the Police Officer of the Police Station which eventually registered an offence under the Prohibition Act against the petitioner. All these bundle of facts would necessarily form relevant material which the disciplinary authority should consider. All these bundle of facts would necessarily form relevant material which the disciplinary authority should consider. In order that he considers that there should have been atleast a notice as to quantum of punishment. No doubt the aforesaid various judgments with regard to the quantum point out that the Courts should not ordinarily interfere with the same. This is punishment is inflicted without affording any opportunity to the petitioner to set out the circumstances which could have certainly weighed with the disciplinary authority in deciding the nature of punishment to be awarded to the employee. ( 15 ) THUS while passing the impugned order the authority concerned has taken into consideration the aforesaid lapse or misconduct of not informing the authority about the conviction which is definitely outside the purview of Rule 14. This would mean that with regard to that ground either Rub 8 or 9 should have been followed. That has not been done. The petitioner has not been heard at all with regard to the quantum of punishment. As stated above sub-rule (2) of Rule 14 itself envisages that the authority should taken into consideration the circumstances. This he could have done provided he had informed the petitioner about the impending action. For all these reasons. I am of the opinion that the impugned order should be set aside. At the same time while holding that delay is not fatal while granting the final relief that shall be borne in mind with a view to strike a balance so far as the backwages are concerned appropriate direction can be issued. L. A. Mr. Kavina had very fairly submitted that on this aspect the petitioner has nothing to say and the Court may pass appropriate orders looking to the facts and circumstances stated above. ( 16 ) LAGP Mrs. Shaikh had tried to build up a case of Pleasure Doctrine as to be found in Article 311. This valient effort on the part of the learned AGP must fail. The disciplinary authority nowhere refers to that aspect On the contrary he has referred to the said conviction under Prohibition and a Circular of the Government styling it be an offence of moral turpitude. This Court had an occasion to deal with a similar case reported in 23 (2) GLR 79. The disciplinary authority nowhere refers to that aspect On the contrary he has referred to the said conviction under Prohibition and a Circular of the Government styling it be an offence of moral turpitude. This Court had an occasion to deal with a similar case reported in 23 (2) GLR 79. Their the learned Judges of the Division Bench comprising of Justices M. P. Thakkar and D. C. Gheewala have categorically held that if a person is found drunk in the manner that the petitioner was it will not be a conduct amounting to moral turpitude. I respectfully agree with this decision. Once the impugned order is read in its true perspective there is no scope for invoking Art. 311 (2 ). For this reason the judgment cited on behalf of the respondents namely 1994 JT 217 and 1985 SC 1417 are of no avail. ( 17 ) IN the result the petition is allowed. The impugned order Annexure A is set aside. The petitioner is directed to be reinstated with only notional benefit and without any backwages. He should be given continuity of service. Rule is made absolute accordingly. No order as to costs. The aforesaid directions to be carried out within 15 days from the date of receipt of writ. Petition Allowed. .