Dismissed

The Inspector General Of Registration And Commissioner Of Stamps v. Kappattappa S/o Shivalingappa Hanchinal

Karnataka HC11 Jan 2024WP/107191/2023

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging an order by the Administrative Tribunal directing the department to open a sealed cover for the respondent's promotion. The Court held that the sealed cover procedure is applicable only after a charge memo or charge-sheet is issued, which was not the case here, as only an FIR was registered and stayed.

What the court decided

AI extract

The Inspector General Of Registration And… — Pension and Retirement Benefits | Karnataka HC (2024)

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NC: 2024:KHC-D:643-DB WP No.107191 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 11^TH DAY OF JANUARY, 2024

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PRESENT

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THE HON'BLE MR JUSTICE S G PANDIT

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AND

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THE HON'BLE MR JUSTICE K V ARAVIND

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WRIT PETITION NO.107191 OF 2023 (S-KAT)

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BETWEEN:

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THE INSPECTOR GENERAL OF REGISTRATION AND COMMISSIONER OF STAMPS, 8^TH FLOOR, KANDAYA BHAVAN, K.G.ROAD, BENGALURU-560009.

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…PETITIONER

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(BY SRI. G.K. HIREGOUDAR, GOVERNMENT ADVOCATE) AND:

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K MSOMASHEKAR Digitallysigned by K MSOMASHEKARDate:2024.01.1715:30:49+0530

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SRI. KAPPATTAPPA HANCHINAL S/O. SHIVALINGAPPA, AGE. 41 YEARS, OCC. SUB-REGISTRAR, O/O. THE SUB-REGISTRAR, KUNDAGOL, DHARWAD-581113. R/O. C/O SOMMANNA PUJAR, BEDANAL PLOT, LAKSHMESHWAR ROAD, KUNDAGOL, DHARWAD, DIST. DHARWAD-581113.

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…RESPONDENT

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THIS WRIT PETITION IS FILED U/A 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO, ISSUE A WRIT, ORDER OR DIRECTION IN THE NATURE OF CERTIORARI TO QUASH THE ORDER DATED. 30-06-2022 PASSED BY THE

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NC: 2024:KHC-D:643-DB WP No.107191 of 2023

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HON’BLE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL, BELAGAVI IN APPLICATION NO.11281/2021 (ANNEXURE-B TO THE WRIT PETITION).

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, S G PANDIT J., MADE THE FOLLOWING:

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ORDER

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The State by Inspector General of Registration and Commissioner of Stamps is before this Court in this writ petition under Article 226 of the Constitution of India challenging the correctness and legality of order dated 30.06.2022 passed in Application No.11281/2021 by the Karnataka State Administrative Tribunal at Belagavi (for short, ‘the Tribunal’) by which the respondentapplicant’s application is allowed directing the petitioner herein to open the sealed cover and to consider the case of the respondent-applicant for promotion to the post of Sub-Registrar with retrospective effect from 18.11.2021, the date on which the juniors to the applicant were promoted, with all consequential benefits.

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NC: 2024:KHC-D:643-DB WP No.107191 of 2023

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Heard Sri. G.K.Hiregoudar, learned Additional Government Advocate for the petitioner and perused the writ petition papers.

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Learned Additional Government Advocate would submit that, Crime No.11/2018 under Sections 7(a), 7A and 12 of the Prevention of Corruption (Amendment) Act, 2018 (for short, ‘the 2018 Act’), is registered against the respondent. Challenging the registration of crime, the respondent approached this Court in Crl.P. No.100465/2020 and this Court granted interim order of stay of the FIR. Therefore, the petitioner and, the Lokayukta are not in a position to investigate the crime against the petitioner. On the same charges/allegations, the petitioner-Department has also contemplated Departmental Proceedings, and the case of the respondent-applicant, who is working as Sub-Registrar, under Rule 32 of the Karnataka Civil Service Rules (KCSRs) was kept in a sealed cover for promotion for substantive/regular promotion to the post

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NC: 2024:KHC-D:643-DB WP No.107191 of 2023

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of Sub-Registrar. Learned Additional Government

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Advocate would submit that since there is an interim order of stay of investigation in the criminal petition and as the respondent-applicant is not proceeding with the criminal petition, the petitioner-Department or the Lokayukta is not in a position to proceed with the investigation or to conduct departmental enquiry by issuing charge memo. In such a situation, learned Additional Government Advocate justifies the action of the petitioner in following sealed cover procedure for promotion of the respondent to the post of SubRegistrar.

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Learned Additional Government Advocate would further submit that without appreciating the fact that the crime is registered against the respondentapplicant under the 2018 Act and as there is interim order of stay of the FIR, the Tribunal committed an error in allowing the application and directing the petitioner to open the sealed cover and to accord

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NC: 2024:KHC-D:643-DB WP No.107191 of 2023

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promotion to the respondent as Sub-Registrar from the date his juniors were promoted. The learned Additional Government Advocate would also submit that though the petitioner has not issued charge memo, nor charge-sheet is filed in the criminal proceedings, since the crime under the 2018 Act is registered against the respondent-applicant, the State is right in following the sealed cover procedure. Thus, he prays for allowing the writ petition and to set aside the order passed by the Tribunal.

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Having heard the learned Additional Government Advocate and on perusal of the writ petition papers, the only point which falls for consideration is,

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Whether the Tribunal is justified in directing the petitioner-authority to open the sealed cover and to consider the case of applicant for promotion to the post of SubRegistrar with effect from the date of promotion of his juniors?

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NC: 2024:KHC-D:643-DB WP No.107191 of 2023

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The answer to the above point would be in the affirmative for the following reasons:

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(a) The respondent-applicant, who is a substantive holder of post of First Division Assistant, is holding the post of Sub-Registrar under Rule 32 of the KCSRs. His case of substantive/regular promotion was taken up by the competent authority in its Departmental Promotion Committee Meeting on 30.10.2021. In the DPC Meeting held on 30.10.2021, the case of the respondent-applicant was kept in a sealed cover taking note of registration of the crime against the respondent under the 2018 Act. Admittedly, no charge-sheet is filed in the criminal proceedings, and no departmental enquiry is initiated by issuing charge memo.

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(b) The Government, in DPAR, has issued an Official Memorandum dated 14.07.1993 (Annexure-A7) in

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respect of the procedure to be followed by the Departmental Promotion Committee when a department enquiry/criminal proceedings is pending against a government servant. Paragraphs 4, 5 and 6 of the said Official Memorandum reads as under:

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“4. On the conclusion of the disciplinary/court proceedings and in case the officer/official is exonerated, the sealed cover or covers may be opened at the earliest-possible date of promotion but for the pendency of the disciplinary/court proceedings against him/her, may be determined with reference to the position(s) assigned to him/her in the findings in the sealed cover/covers with reference to date of promotion of his/her junior on the basis of such position. The officer/official concerned may then be promoted in accordance with rules if necessary by reverting the junior most officiating person.

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5. If any penalty is imposed on the officer/official as a result of the disciplinary proceedings or if he is found guilty in the court proceedings, the findings in the sealed cover/covers shall not be acted upon. The officer's/official's case for promotion may be considered in the usual manner by the next DPC which needs in the normal course after conclusion of the disciplinary/court proceedings.

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6. The sealed cover procedure contemplated herein above, shall be adopted only after the

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date of issuance of Charge Memo/Charge Sheet, that being the date from which the disciplinary proceedings can be taken to have been initiated.”

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A reading of the above official memorandum would make it abundantly clear that unless a charge memo is issued in department enquiry and charge-sheet is filed in criminal proceedings against a government servant, the Government would not be in a position to follow the sealed cover procedure for promotion of such government servant.

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(c) The Hon’ble Apex Court in the case of Union of India Vs. K.V.Jankiraman¹ , at paragraph 16 has observed as under:

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“16. …………….. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover

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1 (1991) 4 SCC 109

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procedure. We are in agreement with the Tribunal on this point.”

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(d) The above decision also makes it clear that the department could follow the sealed cover procedure only if charge memo is issued in a departmental proceedings and charge-sheet is filed in criminal proceedings.

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(e) In the case on hand, admittedly, no departmental

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enquiry is instituted by issuing charge memo, and no charge-sheet is filed in the criminal proceedings. Thus, the authorities could not have followed the sealed cover procedure in the respondent-applicant’s case. The Tribunal, while allowing the application, has rightly placed reliance on the decision of the Hon’ble Apex Court in

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K.V.Jankiraman’s case (supra) and also on another decision of the Hon’ble Apex Court in the case of Union of India Vs. Sangram Keshari Nayak² .

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2 (2007)6 SCC 704

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