1 S.B. CIVIL WRIT PETITION NO. 5739/08 (Rameshwarlal Garwa Vs. Excise Comm. & Ors.) Date:- 13.05.2009 HON'BLE MR. PRAKASH TATIA,J. Mr. RD Singh) Mr. SS Dhillon) for the petitioner. Mr. Sudhir Tak, Dy. Govt. Advocate Mr. Sunil Bhandari for respondent Nos. 1 & 2. Mr.Vikas Bijarania, for respondent No.6. Heard learned counsel for the parties. The petitioner who is facing trial in criminal case under the provisions of Prevention of Corruption Act, has been suspended by the department by order dated 08.08.08, hence, this writ petition has been preferred. According to petitioner the FIR dated 13.12.2007 is absolutely false and a concocted story only. It is also submitted that in fact the petitioner has been exonerated in department enquiry. The copy of preliminary enquiry and copy of the enquiry report has been placed on the record as Annexure.5 by the petitioner. It is submitted that in fact the story has been concocted which is clear from the facts mentioned in the FIR (Annexure.3). It is also submitted that respondents-department has power to suspend the employee like the petitioner but in this case the power has been exercised without application of mind and contrary to the facts available on record and ignoring the fact that in the FIR itself, it has been mentioned that the petitioner cannot be prosecuted for charge under 2 the said provision of Prevention of Corruption Act or for any criminal offence. Not only this but the alleged amount of bribe has already been returned to the complainant by the police who conducted the investigation and that fact has been mentioned in the FIR itself. It is submitted that the sanctioned has been granted by the Commissioner Excise, Rajasthan for lodging the criminal case against the petitioner and by the same order dated 08.08.2008. Learned counsel for the department vehemently submitted that even when there is no criminal case, the department can hold enquiry and the petitioner is facing the enquiry departmentally. The department/employer has right to take decision whether to suspend the delinquent officer or not. This Court may not up set the decision taken by the department. It is also submitted that order of suspension is appealable order and the petitioner have preferred the appeal to challenge the order. I considered the submissions of learned counsel for the parties and perused the facts mentioned in the FIR dated 13.12.2007 and it appears from the FIR that the Investigating Agency itself observed that it will not be possible to take action against the petitioner and not only that but the Investigating Agency returned the piece of evidence that is currency notes which are signed by the Investigating Officer and given to the complainant who in turn may give to petitioner for trap to be conducted have been returned to the complainant. There is a preliminary enquiry 3 wherein petitioner has been exonerated. From the facts, it appears that no useful purpose for keeping the petitioner under suspension when the entire evidence is with the police agency and the departmental inquiry can proceed as there is no involvement of the departmental record wherein petitioner can manipulate. Looking to the allegations, I do not find that it will be appropriate to dismiss the writ petition on the ground of availability of alternative remedy in the facts of the case and after almost more than 10 months from filing of the writ petition when this Court issued notice to the respondents. In view of the above reasons, the writ petition is allowed. The order dated 8.8.08 Annexure.13 so far as suspending the petitioner is concerned that is set aside. Any observation made above will not any way effect either in criminal case if filed against the petitioner or in departmental enquiry which is being conducted by the respondent department. (PRAKASH TATIA),J. arti