Allowed

N C Krishnegowda v. Executive Engineer

Karnataka HC7 Mar 2024WP/15006/2021

Case brief

AI extract

What is this about?

The High Court allowed a writ petition by an employee seeking promotion from Meter Reader to Junior Engineer. It directed the authorities to consider the promotion with retrospective effect, holding that the sealed cover procedure was illegal as no charge sheet had been issued to initiate disciplinary proceedings prior to the departmental promotion committee meeting. Police. Criminal proceedings a

What did the court decide?

Writ petition allowed and mandamus issued for promotion to Junior Engineer with effect from 31.05.2018.

N C Krishnegowda Vs Executive Engineer — Service and Employment | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH DAY OF MARCH, 2024

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BEFORE

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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WRIT PETITION NO.15006 OF 2021 (S-RES)

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BETWEEN:

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N C KRISHNE GOWDA S/O LATE CHANNE GOWDA AGED ABOUT 56 YEARS, PRESENTLY WORKING ‘OPERATOR’, 110 KV / 11 KV, MUSS MRS DIVISON, SHIVAMOGGA R/AT PRAKRUTI NILAYA, 2^ND STAGE, 3^RD CROSS, MALLESHWARA NAGARA (GUNDDAPPA SHED) SHIVAMOGGA-577201

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...PETITIONER

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(BY SRI PRUTHVI WODEYAR, ADVOCATE)

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AND:

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1 . EXECUTIVE ENGINEER M R S DIVISION, KPTCL KPTCL, B H ROAD SHIVAMOGGA-577203

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2 . ASSISTANT EXECUTIVE ENGINEER MAINTENANCE, 220 KV MRS DIVISION, KPTCL, B H ROAD SHIVAMOGGA-577201

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3 . SUPERINTENDENT ENGINEER (O AND M CIRCLE) OFFICE, MESCOM, BALARAJ URS ROAD NEAR RAILWAY STATION SHIVAMOGGA-577201

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4 . SECTION OFFICER O AND M, UNIT 4, BARANDUR, MESCOM BHADRAVATHI-577301

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5 . EXECUTIVE ENGINEER O AND M DIVISION OFFICE, MESCOM BHADRAVATHI-577301

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6 . ASSISTANT EXECUTIVE ENGINEER O AND M SUB DIVISION MESCOM, BHADRAVATHI-577301

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…RESPONDENTS

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(BY SRI.SHUBHA.S, ADVOCATE FOR R1 & R2; SRI.B.C.PRABHAKAR, ADVOCATE FOR R3 TO R6)

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THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENTS TO PROMOTE THE PETITIONER FROM THE POST OF METER READER TO THE POST OF JUNIOR ENGINEER WITH EFFECT FROM 31.5.2018 AND ETC.,

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THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 28.02.2024, COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The captioned petition is filed seeking a direction against the respondents to promote the petitioner from the

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post of Meter Reader to the post of Junior Engineer with effect from 31.05.2018. A mandamus is also sought to direct the respondents to include the name of the petitioner in the Official Memorandum dated 31.05.2018.

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The facts leading to the case are as under:

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Petitioner was appointed to the post of Assistant Line

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Men at MESCOM after having passed SSLC on 01.01.1988. Petitioner was initially promoted to the post of Line Men and was placed at Sl.No.10 in the list in the Official Memorandum. One Nagaraj refused promotion and therefore, respondent No.1 issued one more Official Memorandum and petitioner was moved from Sl.No.10 to 9. A complaint was lodged with the DCP, CCB, Shivamogga alleging that petitioner has demanded bribe towards charging transformer and that led to registration of crime in

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Crime No.4/2018 under Sections 7, 13(1)(d) read with

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Section 13(2) of Prevention of Corruption Act, 1988. The registration of crime led to suspension of petitioner vide Official memorandum dated 07.04.2018. The

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respondent/authority resorted to sealed cover procedure in the DPC convened on 31.05.2018 taking cognizance of the fact that petitioner was placed under suspension on 12.04.2018.

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3. Petitioner has knocked the doors of this Court

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seeking a direction against the respondents. Petitioner’s grievance is that respondents are bound to consider the petitioner for promotion from the post of Meter Reader to the post of Junior Engineer during the pendency of preliminary investigation and therefore, they could not have resorted to sealed cover procedure and therefore, the same is illegal and contrary to the law laid down by the Hon’ble

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Apex Court in the case of Union of India and Others vs.

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K.V.Jankiraman and Others¹ .

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Placing reliance on revocation of suspension as

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per Anenxure-H1, petitioner claims that he is entitled to be promoted from the post of Meter Reader to the post of Junior Engineer. Petitioner has contended that sealed cover procedure can be adopted only when charge sheet/charge memo is filed and the same is served on the petitioner. Petitioner contends that in the instant case, the sealed cover procedure is adopted much before filing of charge sheet which is not permissible. Petitioner has contended that till this date, no departmental enquiry is initiated by issuing a charge memo.

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Per contra, respondent Nos.3 to 6 have filed statement of objections and the grounds urged in the captioned petition are countered. Respondent Nos.3 to 6 on the contrary have claimed that upon registration of FIR, 1 (1991) 4 SCC 109

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respondent No.3 placed the petitioner under suspension vide Official Memorandum dated 07.04.2018 reserving liberty to initiate departmental enquiry on the basis of FIR. Respondent Nos.3 to 6 have further contended that sanction to prosecute petitioner under the provisions of Prevention of Corruption Act was accorded only in 2019 which is evident from Annexure-L. Respondents have further claimed that upon approval of sanction, final charge sheet dated 10.04.2019 was laid by CCB Police against the petitioner under Sections 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act and the same is submitted to the jurisdictional Court. Therefore, justifying their actions, respondents have claimed that it was well within the authority of the respondents in not promoting the petitioner and in absence of any infraction to rules and regulations, no indulgence is warranted at the hands of this Court. The respondents at para 15 have placed reliance on the law laid down by the Hon’ble Apex Court in the case of

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Union of India vs. Janakiraman (supra) . To counter the petitioner’s contention that sealed cover procedure can be adopted only after filing of charge sheet in the criminal court or charge memo is issued in a departmental proceedings, reliance is placed on the law laid down by the Apex Court in the case of Union of India vs. Janakiraman (supra) which is reiterated in Parshwanath vs. State of Karnataka and Others² .

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Heard learned counsel for the petitioner and learned counsel appearing for the respondents. I have given my anxious consideration to the judgment cited by both the counsel on record.

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The short question that falls for consideration is as to whether respondents were justified in resorting to sealed cover procedure in absence of charge memo/charge sheet?

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2 W.P.No.53701/2018

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Learned counsel for the petitioner and learned

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counsel appearing for the respondents have placed reliance on the law laid down by the Hon’ble Apex Court in the case of Union of India vs. Janakiraman (supra) which was rendered in 1991. The Hon’ble Apex Court while taking note of host of judicial pronouncements on this issue in the case of Union of India vs. Anil Kumar Sarkar³ has given quietus to the said controversy. While interpreting as to when departmental enquiry is deemed to be commenced, the Apex Court was of the view that the departmental proceedings would commence only when charge sheet is issued to the delinquent employee. Similarly, Apex Court held that if no charge sheet is served on the delinquent employee when DPC met to consider his promotion, the DPC could not have adopted sealed cover procedure. Similarly, if no charge sheet is filed in criminal proceedings, referring to the law laid down by the Apex Court in the case

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3 (2013) 4 SCC 161

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of Coal India Limited vs. Ananta Saha⁴ , the Apex court was of the view that it is settled proposition that the disciplinary proceedings commences only when a charge sheet is issued to the delinquent employee.

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In the present case on hand, the respondents

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have revoked the suspension and till this date, no charge memo is issued. In absence of departmental enquiry proceedings and the fact that charge sheet was filed in criminal proceedings only on 30.08.2019, the authorities could not have adopted sealed cover procedure. What can be gathered from the host of authorities is promotion cannot be withheld merely because some criminal proceedings are pending against the employee. To deny the said benefit, they must be at the relevant time pending at the stage when charge memo/charge sheet has already been issued to the employee. If no charge sheet was served on the employee when DPC met to consider his

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4 (2011) 5 SCC 142

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promotion, the sealed cover procedure cannot be adopted and if adopted, the same contravenes the law laid down by the Apex Court in the above cited judgment.

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The procedural propriety and adherence to the principles of natural justice are paramount in any

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disciplinary action against a government employee. The issuance of a charge sheet stands as a linchpin in the initiation of disciplinary proceedings, marking the formal commencement of the process wherein the employee is apprised of the allegations levied against them. This pivotal document not only serves as a notice of the charges but also embodies the foundational step towards affording the employee an opportunity to present defense, thereby ensuring the sacrosanct principles of audi alteram partem.

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It is axiomatic that disciplinary proceedings are contingent upon the presence of concrete grounds and formulation of formal charges against the employee, which

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inherently manifest upon the issuance of a charge sheet. Absent the issuance thereof, the nascent stage of disciplinary action remains dormant, bereft of the essential catalyst required to propel it into fruition. Consequently, in the absence of a charge sheet, the DPC is inherently precluded from invoking the sealed cover procedure ex proprio vigore.

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For the reasons stated supra, this Court

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proceeds to pass the following:

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ORDER

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(i) The writ petition is allowed;

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(ii) A mandamus is issued to the respondents to consider the petitioner’s promotion to the post of Junior Engineer with effect from 31.05.2018 and consequently, consider his case and include petitioner’s name in the Official Memorandum dated 31.05.2018;

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(iii) Pending I.As.’, if any, do not survive for consideration and stands disposed of.

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Sd/JUDGE

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N C Krishnegowda v. Executive Engineer

Case brief

What is this about?

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N C Krishnegowda v. Executive Engineer

Case brief

What is this about?

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