HON'BLE MR JUSTICE GHULAM MOHAMMED AND HON'BLE MR JUSTICE N. RAVI SHANKAR WRIT PETITION NO. 30223 OF 2010 Between: The Deputy Commissioner of Prohibition and Excise, Warangal Division, Warangal and three others ………….Petitioners AND K. Prabhuvinay Kumar, Prohibition and Excise Inspector, SHO Karimnagar Urban, Karimnagar and one another ………….Respondents ORDER: (Per Hon'ble Sri Justice Ghulam Mohammed) This Writ Petition has been filed in the nature of Writ of Certiorari calling for the records relating to and connected with the orders dated 29.10.2010 passed in O.A.No. 5932 of 2010 on the file of the Andhra Pradesh Administrative Tribunal, Hyderabad and quash the same as illegal. First respondent herein is the applicant in O.A.No. 5932 of 2010, who preferred the same under Section 19 of the Administrative Tribunal Act, 1985 seeking to quash the impugned proceedings dated 4.9.2010 issued by the Deputy Commissioner of Prohibition and Excise, Warangal and its connected orders dated 6.9.2010 issued by the Deputy Commissioner of Prohibition and Excise, Karimnagar Division. That O.A was allowed with the following observation. “Today the learned Assistant Government pPleader filed a Memo along with a letter received by him from the Deputy Commissioner Prohibition and Excise, Warangal Division, dated 27.10.2010. The letter shows that as per the information ascertained from the Assistant Commissioner of Prohibition and Excise, Karimnagar, he had neither forwarded the compliant received from the Director of Enforcement (Prohibition & Excise), A.P., Hyderabad , dated 27.7.2010 to the applicant nor gave any oral instructions to take action. If that is so, the very basis of suspension is non- existing. So there is no justification to keep the applicant under suspension. The O.A is allowed and the impugned order issued in Rc.No. 591/2010/PE/A3, dated 4.9.2010 keeping the applicant under suspension is set aside. The applicant shall be reinstated into service within three days from the date of receipt of a copy of this order. No order as to costs.” Aggrieved by the same, the present Writ Petition is filed. Brief facts of the case are that the first respondent-applicant is a Prohibition and Excise Inspector was kept under suspension vide proceedings dated 4.9.2010 by the Deputy Commissioner of Prohibition and Excise, Warangal on the ground that he failed to take immediate action by conducting raids on the Toddy Shops in Karimnagar town though he was informed by the Directorate of Enforcement, Prohibition and Excise, about the complaints received by them on 27.7.2010 as the Assistant Commissioner of Prohibition and Excise Task Force, organised raids on 5.8.2010, which revealed adultery of Toddy with Chloral Hydrate, Which was hazardous to public health. The learned Government Pleader for Services-II submits that the Tribunal has mechanically allowed the O.A solely on a technical ground that the complaint received from the Director of Enforcement (Proh.& Excise) A.P. Hyderabad dated 27.7.2010 was not forwarded to Sri K. Prabhuvinay Kumar Proh. & Excise Inspector SHO, Karimnagar (Urban) by the Assistant Commissioner of Prohibition and Excise (Enforcement) Karimnagar nor gave any oral instructions to him. He also submits that the Tribunal has not taken into consideration the fact that the first respondent is responsible for prevention of sale of adulterated toddy in licensed shops and has grossly neglected his legitimate duties and failed to control the adulteration of Toddy in his Head quarters, whereas State Task Force Teams all the way came from Hyderabad have detected five cases and seized 1701 lts., of adulterated toddy on 5.8.2010 in Karimnagar Town. He further submits that the departmental enquiry has been initiated against the first respondent by issuing a charge memo dated 7.9.2010 and the Prohibition and Excise Superintendent, Warangal has been appointed as an Enquiry Officer on 23.10.2010 and the enquiry is in progress and if the suspension order is revoked there is every possibility of influencing the course of enquiry by the first respondent. On the other hand, the learned counsel appearing for the first respondent submits that the Tribunal has passed a well-reasoned order and there are no grounds to interfere with the order. He relied on the judgment of the Supreme Court reported in K. SUKHENDAR REDDY VS. STATE OF A.P. AND ANOTHER[1], wherein the Supreme Court observed that the selective suspension is impermissible under law leaving it open to the State Government to consider the feasibility of placing the appellant under suspension, if and when a charge-sheet is filed by CID. He also relied on the judgment of this Court reported in P. RAJENDER VS. UNION OF INDIA AND ANOTHER[2] , wherein this Court observed that the petitioner shall be reinstated into service forthwith pending disposal of the criminal case. Heard the learned counsel appearing for both sides and also perused the entire material made available on record. As seen from the record, the first respondent- applicant is the Prohibition and Excise Inspector, Station House Officer, Karimnagar (Urban). As per the job charts prescribed to the post of Station House Officer, by the Commissioner of Prohibition and Excise, A.P., Hyderabad, the Station House Officer is responsible for collection of intelligence of excise crimes and ensue prevention and detection of all excise crimes. The Station House Officer who is an independent officer in charge of the station has to take action to curb the crime. But here in this particular case, in the head quarters of Prohibition and Excise Station, Karimnagar, the State Task Force, Hyderabad, on information came all the way from Hyderabad to Karimnagar and have detected 5 toddy adulteration cases involving 1701 Lts., of adulterated toddy with Chloral Hydrate, which was hazardous to public health. Rule 8 of CCA & conduct Rules describes the suspension with retrospective effect, which reads as under: “8. Suspension with retrospective effect:- A member of the service cannot be suspended with retrospective effect. If a person is actually in service for a period or is entitled to be in service during the period, it would be a contradiction in terms to suspend him. He could not for the same period, be in service and not be in service at the same time, or be entitled to serve as well as not entitled to serve simultaneously. Therefore, even in cases where an order of suspension is set aside by the Court, it means that for the relevant period the Court has decided that the employee is entitled to serve. By a later order it is no longer open to suspend him for the very same period during which the Court had declared that he was entitled to serve. Therefore, when an order of suspension is made retrospectively, the retrospective part cannot be given effect to. It is not that the Court dealing with such a matter must necessarily pass a new order. It is open to it to declare that the order made has an infirmity with regard to the retrospective part but that the prospective part is perfectly valid and should operate upon its own strength. Sackarni vs. Commissioner of Police, AIR 1965, Cal 13.” Further the judgments relied on by the first respondent are not relevant to the subject matter of the present case. In this particular case, a charge memo was issued against the first respondent on 7.9.2010 and the Prohibition and Excise Superintendent, Warangal also has been appointed as an Enquiry Officer on 23.10.2010 and the enquiry is in progress. Be that as it may, the Tribunal has committed a serious error in exceeding its limit directing that the applicant in OA shall be reinstated into service within three days from the date of receipt of a copy of the order. It is the domain of the authority whether to place the employee under suspension or not having regard to the gravity of the charge. Accordingly, the Writ Petition is allowed and the order passed by the Tribunal is set aside. Petitioners herein are directed to complete and conclude the enquiry within a period of eight weeks from the date of receipt of a copy of this order and pass appropriate orders in accordance with law after affording an opportunity to the first respondent. There shall be no order as to costs. ________________________ GHULAM MOHAMMED, J ______________________ N.RAVI SHANKAR, J DATE: 13.12.2010 KA ... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. 2 CD copies. [1] (1999) 6 SCC 257 [2] 2001 (5) ALD 290 (DB)