Sri M L Ramaswamy vs Karnataka Power Transmission
2023 Latest Caselaw 3071 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 09TH DAY OF JUNE, 2023

                          BEFORE

         THE HON'BLE MR. JUSTICE E.S. INDIRESH

        WRIT PETITION NO.16594 OF 2022 (S-PRO)

BETWEEN:

SRI. M.L. RAMASWAMY,
S/O LATE S. LAKSHMAN NAIK
AGED ABOUT 51 YEARS
WORKING AS SUPERINTENDING
ENGINEER (IN-CHARGE)
HRD CENTRE, SHAKTHI NAGAR
MANGALORE ELECTRICITY
SUPPLY COMPANY LIMINTED
MANGALURU - 575 001.
                                            ...PETITIONER
(BY SRI. SATISH K., ADVOCATE)

AND:

1.     KARNATAKA POWER TRANSMISSION
       CORPORATION LIMITED
       REPRESENTED BY ITS
       MANAGING DIRECTOR
       CAUVERY BHAVAN, K.G. ROAD
       BENGALURU - 560 009.

2.     THE DIRECTOR
       (ADMINISTRATION AND HUMAN
       RESOURCES)
       KARNATAKA POWER TRANSMISSION
       CORPORATION LIMITED
       CAUVERY BHAVAN, K.G. ROAD
                                   2




     BENGALURU - 560 009.

                                                   ....RESPONDENTS
(BY SRI. SHIRISH KRISHNA, ADVOCATE)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ENDORSEMENT DATED 31ST MAY, 2022 ISSUED BY
THE 2ND RESPONDENT (ANNEXURE-L) AND ETC.

    IN THIS WRIT PETITION ARGUMENTS BEING HEARD,
JUDGMENT RESERVED, COMING ON FOR "PRONOUNCEMENT OF
ORDERS", THIS DAY, THE COURT MADE THE FOLLOWING:

                             ORDER

In this writ petition, the petitioner is assailing

Endorsement dated 31.05.2022 (Annexure-L), issued by the 2nd

respondent, rejecting the case of the petitioner for promotion.

2. It is the case of the petitioner that the petitioner was

initially appointed as Junior Engineer, on 07.10.1992 by the

respondent-Corporation and thereafter, he was appointed as

Assistant Engineer by way of appointment by transfer during

1995. Subsequently, the petitioner was promoted to the post of

Assistant Executive Engineer and Executive Engineer during the

year 1999 and 2008 respectively. It is averred that, the

petitioner is working on in-charge basis as superintendent

Engineer from 03.03.2021. It is the grievance of the petitioner

that, the respondent-Corporation has issued charge memo on

16.11.2013, (Annexure-A), while the petitioner was working as

Executive Engineer at Kolar. An enquiry officer was appointed as

per Annexure-B to the writ petition. Thereafter, the petitioner

was transferred as Executive Engineer, Bellary and while,

working at Bellary, a charge memo was issued on 27.08.2014,

and the Disciplinary Authority imposed a penalty of withholding

of one annual increment with cumulative effect vide order dated

11.03.2016 (Annexure-C). Feeling aggrieved by the same, the

petitioner has filed appeal before the 1st respondent and same

came to be allowed by the Appellate Authority modifying the

order of punishment withholding one annual increment without

cumulative effect as per order dated 09.01.2017 (Annexure-D).

In the meanwhile, the petitioner filed W.P.No.8531 of 2017,

challenging the charge memo, dated 16.11.2013 and order

dated 09.01.2017 and this Court by interim order dated

28.02.2017, stayed the further proceedings. It is the case of the

petitioner that, the respondent-Corporation has not considered

the case of the petitioner for promotion despite the juniors to

him have been given promotion on account of pendency of the

writ petition. It is the case of the petitioner that, the petitioner

has approached the 1st respondent seeking promotion to the

post of Chief Engineer, and same was not considered by the

respondent-Corporation by issuing impugned Endorsement dated

31.05.2022 (Annexure-L). Hence, this writ petition.

3. I have heard Sri Satish K., learned counsel appearing

for the petitioner and Sri Shirish Krishna, learned counsel

appearing for the respondents

4. Sri Satish K., learned counsel appearing for the

petitioner invited the attention of the Court to circular dated

12.07.2005, issued by the Government and same was adopted

by the respondent-Corporation by order dated 18.02.2008. Sri

Satish K., learned counsel appearing for the petitioner contended

that, though this court stayed the further proceedings of the

departmental enquiry, particularly, mentioned that, punishment

is of minor one, and not taking into account the length of the

service of the petitioner, the impugned order passed by the

respondent-Corporation rejecting the case of the petitioner for

promotion requires to be interfered with in this writ petition. In

this regard, he contended that the interim order passed by this

Court, produced at Annexure-E was not properly considered by

the respondent-Corporation. Sri Satish K., further refers to the

judgment passed by this Court, in identical case, in

W.P.No.80195 of 2012, disposed of on 14.07.2017 and argued

that, the writ petition deserves to be allowed.

5. Per contra, Shirish Krishna, learned counsel

appearing for the respondent-Corporation sought to justify the

action of the respondent-Corporation by referring to the

averments made in the Statement of Objections. Referring to the

circular dated 12.07.2005 vide Annexure-R2, he contended that,

there is no provision for providing promotion in the event, of

pendency of Departmental enquiry or criminal case pending

against the delinquent and accordingly, he sought for dismissal

of the writ petition.

6. In the light of the submission made by the learned

counsel appearing for the parties, it is not in dispute that, the

petitioner while working as Executive Engineer, at Bellary, has

been issued with charge memo as per Annexure-C and same was

challenged before this Court in W.P.No.8531 of 2017, and this

Court, by interim order dated 28.02.2017, as per Annexure-E,

passed the following order.

"Heard learned counsel for the petitioner.

The petitioner is presently employed as a Deputy General Manager [Operation), Bangalore Electrialty supply company, Corporate office, M.R. Cirole, bengaluru, The petitioner is before this Court, aliing In question Annexure-", whereby one dri. 3.9. Somashekar, rattrad District & Sessions Judge has been accointed as an Entry officer.

Learned counsel for the pattetoner would submit that the charg vide energy" wen Framed in the year 2013 and the charges alleges are that, the Palice complaint by the petitioner alleging Ueft of electrical transformare from the Kolar Depot has been concluded as alsconduct on the prentee that the officer aught out to have approach the Jurtedfetfonal Police and ought to have merely Intimated the superior and the other charge ts pertaining to harassment of the staff, which is alleged to Amount to a sexual harassment.

Learned counsel for the petitioner would rely on Anheure report of the Vigilance department dated 21.07.2013. On a perusal of the same, it would clearly show that the persons who dislike his hars Filed the complaint and the report has absolved his of any act amounting to sexual harassment and further speaks that the complaint is motivated by the staff, who are unhappy with his strict approach."

7. The interim prayer granted in the above writ petition

is also with regard to seeking a direction not to withheld the

promotion, of the petitioner on the basis of the said allegations

in the charge memo. It is also to be noted that, the respondent-

Corporation has adopted the circular dated, 12.07.2005, issued

by the State Government as per Annexure- R2(b) and R2(a).

Clause-4 of the said circular envisages that, no promotion will be

accorded to the delinquent in the event of pendency of

Departmental Enquiry or punishment is imposed in a criminal

case. The respondent-Corporation has imposed punishment of

withholding one annual increment cumulative effect as per order

dated 11.03.2016 (Annexure-C) and thereafter, the said order

was modified in appeal by the respondent-Corporation

withholding one annual increment without cumulative effect as

per order dated 09.01.2017 (Annexure-D). In the backdrop of

these aspects, I have carefully examined the impugned

Endorsement dated 31.05.2022 produced at Annexure-L,

wherein, the respondent-Corporation rejected the claim made

by the petitioner for promotion. At this juncture, it is relevant to

consider the law declared by this Court in an identical matter in

W.P.No.80195 of 2012, disposed of on 14.07.2017, (Annexure-

P). Paragraph 35 of the said order reads as under:

"35. It is seen that the only punishment that was imposed was a minor punishment, which by itself is not a bar for the Departmental Promotion Committee to consider the case of the petitioner for promotion. It is also not in dispute that the appeal was filed by the petitioner only and he has also acted with alacrity and has not slept over the issue. The respondents having not been aggrieved by the punishment imposed cannot now turn around and cannot now contend that appeal preferred by the petitioner ought to be construed as pending proceedings. It would have been open to the respondents to raise such contentions if the punishment imposed was one which had the effect of acting as a bar or prohibition to the Departmental Promotion Committee to consider the case of the petitioner for promotion. The punishment being only a minor punishment and which by itself, has not barred or prohibited the respondents in promoting the petitioner and the authority having deemed it not fit to impose the punishment of withholding of promotion, the action of the Departmental Promotion Committee in resorting to the sealed cover procedure cannot be sustained and is required to be interfered with."

8. The above order of the learned single was

questioned in W.A.No.200319 of 2017 and this Court by order

dated 27.07.2018 (Annexure-P1) dismissed the appeal.

Paragraph 5 to 8 reads as under:

5. The learned Single Judge after considering the above said important points and infact quoting all the regulations as well as citing the decisions cited by the learned counsel, has categorically formulated two important points for consideration:

1. Whether any disciplinary proceedings was pending as on the date of constitution of Departmental Promotion Committee and on. the date proceedings were drawn up by the Departmentai Promotion, Committee ?

2. Whether the Departmental Promotion Committee was right in adopting the Sealed Cover Procedure?

6. The learned Single Judge has held Point No.1 in the negative observing that, no disciplinary proceedings were pending as on the date of the 113th Departmental Promotion Committee meeting and further held that the Department has committed serious error in adopting Sealed Cover Procedure, when specifically the departmental proceedings were already concluded by imposing minor penalty on the petitioner. It is further observed by the learned Single Judge that the minor penalties, as contemplated under Regulation No.9 of the Karnataka Power Transmission Corporation Limiited wherein the penalties imposed played a dominant role One of the minor penalties recognized Regulation

No.9(1)(a) KEB Employees' (Classification, Disciplinary Control and Appeal) Regulations, 1987 is 'withholding of promotion'. Therefore, the departmental enquiry which was concluded though the authorities have got full power even to pass a minor penalty of withholding of promotion, they did not chose to impose such penalty perhaps keeping in mind that imposition of any minor penalty in Regulation No.9 should not come in the way of giving promotion to an employee or withholding any promotion to him. So, that the intention of the employer gives a clear picture that, the appellant herein had in the mind that the promotional opportunity to the petitioner should not be denied merely because he has been imposed with other minor penalty like withholding of increment and also recovery of the money which has also been set-aside by the Appellate Authority by reducing to minor penalty to censure, only.

7. When the facts stand thus, the learned counsel Sri Ameet Kumar to bring it our notice that during the minor penalty period, the department has prevented by any law or regulation for giving the promotion to the respondent. Nowhere in the abovesaid decisions such circumstance has been meticulously or particularly considered. No notification or the regulation says that during the minor penalty period the department has got any power to withhold the promotion. Of course, we should not be misunderstood but for the various other reasons even imposing of the minor penalty by giving proper reasons

considering the other conduct of the party the promotion can be withheld but that, is not the case here. No other ground has been attributed insofar as the respondent is concerned except the one that the penalty period was in vogue at that time the 113th Departmental Promotion Committee most for considering the promotions of its employees. In our opinion, that cannot be a ground for denying the promotion because, by that time the departmental proceedings were already concluded and minor penalty was already imposed. Therefore, Sealed Cover proceedings would not have been adopted by the Department as on the date of 113 Departmental Promotion Committee met on 28.12.2007.

8. Therefore, under the above facts and circumstances of the case, when no regulation or rule prohibits the department from giving any promotion and no other reasons are attributable for denying the promotion, in our opinion, the order passed by the learned Single Judge is not only in accordance with law but also on facts it stands to the logic.

9. The Review petition was filed in R.P.No.200024 of

2018 and the Review Petition came to be dismissed on

07.12.2018. Paragraph 3 of the order reads as under:

3. Though this Court has, in particular words, not considered the said judgment of the Apex Court, and

Circulars and Notifications, but at paragraph number 7 of the judgment in writ appeal, this Court has specifically observed that nowhere in the decision cited by the learned Counsel has been meticulously and particularly made any observation and no notification or regulation says that during the minor penalty period the department has got any power to withhold the promotion. We have also made an observation that, the authority has got power to withhold the promotion even when a minor penalty is made by giving appropriate reasons considering the other conduct of the party and this court has also held that it is not the case. So far as this case is concerned, this court has very well considered Regulation 9 of the Karnataka Electricity Board Employees' (Classification, Disciplinary, Control and Appeal) Regulations, 1987 and also other Circulars and Notifications, though not -151- specifically mentioned and after considering all those things, this Court came to conclusion the Judgment of the learned Single Judge is proper and correct and no grounds made out to interfere and dismissed the appeal. Though in specific words the said allegation made in the Review Petition is considered, but on overall reading of the Judgment, it presupposes and this Court has considered all the grounds and dismissed the appeal in accordance with law.

10. In the light of the aforementioned orders passed by

this Court in an identical situation, where the Departmental

Enquiry proceedings has been stayed by this court in writ

petition and under such circumstances, the 1st respondent herein

shall consider the case of the petitioner as regards to further

promotion to the next cadre without reference to the

observations made in the impugned Endorsement produced

Annexure-L. In this regard, it is relevant to consider the

principle laid down by the Hon'ble Apex Court in the case of

Union of India and Others vs. K.V. Jankiraman and Others

reported in (1991) 4 SCC 109 paragraphs 16 and 17 reads as

under:

"16. On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have com- menced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a chargesheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceed- ings/criminal prosecution is initiated against the employee. 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 procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant-authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/charge-

sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion,

increment etc. does not impress us. The acceptance of this contention would result in injustice to the employees in many-cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a ,remedy. It was then contended on behalf of the authorities that conclusions Nos. 1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. Those conclusions are as follows: (ATC p.196, para

39)

"(1) consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary or crimi- nal proceedings against an official;

( ) ................................................

(4) the sealed cover procedure can be resorted only after a charge memo is served on the concerned official or the charge sheet filed before the criminal court and not before."

17. There is no doubt that there is a seeming contradiction between the two conclusions. But read harmoniously, and that is what the Full Bench has intended, the two conclusions can be reconciled with each other. The conclusion no. 1 should be read to mean that the promotion etc. cannot be withheld merely because some disciplinary/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. Thus read, there is no inconsistency in the two conclusions.

11. Taking into consideration the aforementioned

aspects, the charge made against the petitioner is neither under

the provisions of Prevention of Corruption Act, nor which

requires the imposition of major punishment and therefore, the

denial of promotion to the petitioner is not correct and

accordingly, the writ petition is liable to be allowed and

accordingly, allowed. Impugned Endorsement dated 31.05.2022

issued by 2nd respondent (Annexure-L) is quashed. Respondent-

Corporation is directed to consider the case of the petitioner for

promotion within eight weeks from the date of receipt of this

order.

SD/-

JUDGE SB