Karnataka High Court

N C Krishnegowda vs Executive Engineer on 7 March, 2024

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 7TH DAY OF MARCH, 2024

                          BEFORE

     THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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

BETWEEN:

     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, 2ND STAGE,
     3RD CROSS, MALLESHWARA NAGARA
     (GUNDDAPPA SHED)
     SHIVAMOGGA-577201

                                           ...PETITIONER

(BY SRI PRUTHVI WODEYAR, ADVOCATE)

AND:

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

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


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

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

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

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


                                              ...RESPONDENTS

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

     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.,


     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

The captioned petition is filed seeking a direction

against the respondents to promote the petitioner from the

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.

2. The facts leading to the case are as under:

Petitioner was appointed to the post of Assistant Line

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

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

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

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.

3. Petitioner has knocked the doors of this Court

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

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

K.V.Jankiraman and Others1.

4. Placing reliance on revocation of suspension as

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.

5. 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,

(1991) 4 SCC 109

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

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.

6. 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.

7. 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?

8. Learned counsel for the petitioner and learned

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

(2013) 4 SCC 161

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.

9. In the present case on hand, the respondents

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

(2011) 5 SCC 142

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.

10. The procedural propriety and adherence to the

principles of natural justice are paramount in any

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.

11. It is axiomatic that disciplinary proceedings are

contingent upon the presence of concrete grounds and

formulation of formal charges against the employee, which

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.

12. For the reasons stated supra, this Court

proceeds to pass the following:

ORDER

(i) The writ petition is allowed;

            (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;