Karnataka High Court
Sri Shivaprasad Biradar vs Karnataka Lokayukta & Ors on 2 November, 2018
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 02ND DAY OF NOVEMBER 2018
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
W.P.No.203924/2018(S-DE)
Between:
Sri Shivaprasad Biradar
S/o Anna Rao
Aged about 54 years
Working as Assistant Engineer
Office of the Asst. Executive Engineer
Public Works Department
Sub Division, Jewargi
Residing at No.244,
NGO's Colony
New Jewargi Road
Kalaburagi-585102
... Petitioner
(By Sri H.M. Muralidhar, Advocate)
And:
1. Karnataka Lokayukta
Multistoreyed Building
Dr. B.R. Ambedkar Veedhi
Bengaluru-560 001
Represented by its Registrar
2
2. Karnataka Upalokayukta
Multistoreyed Building
Dr. B.R. Ambedkar Veedhi
Bengaluru-560 001
Represented by its Registrar
3. State of Karnataka
Public Works, Ports & Inland Water
Transport Department
M.S. Building, Vikasa Soudha
Bengaluru-560 001
Rep. by its Principal Secretary
...Respondents
(By Sri Prashanth Kumman, Advocate for R-1 and R-2;
Smt. Archana P. Tiwari, AGA for R3)
This Writ Petition is filed under Articles 226 and 227
of the Constitution of India praying to call for records on the
file of the 1st and 2nd respondents, peruse the same, allow
the writ petition, quash the inquiry proceedings No.UPLOK-
1/DE/660/2017/ARE-10 vide Annexure-A pending on the
file of the 1st and 2nd respondents in so far as petitioner is
concerned by issuing a writ in the nature of certiorari and
etc.
This petition coming on for preliminary hearing this
day, the Court made the following:
3
ORDER
Petitioner is working as Assistant Engineer in Public Works Department. On account of a complaint lodged by one Mr. Subash Hosamani claiming himself to be the President of Karnataka Pranta Raita Sangha, Taluk Samithi, Jewargi Taluk, Kalaburagi District, an enquiry came to be instituted against the petitioner by 2nd respondent by order dated 17.05.2017. Articles of charges came to be issued as per Annexure-B and a report came to be submitted under Section 12(3) on 20.02.2017 by the 2nd respondent. Based on the said report, 3rd respondent has passed an order referring the matter for enquiry and report vide proceedings dated 10.05.2017 Annexure-D.
2. During pendency of said enquiry, Departmental Promotion Committee ('DPC' for short) meeting came to be convened to fill up the post of Assistant Executive Engineer, Divisional-1 by promotion 4 in accordance with Rule 32 of Karnataka Civil Service Rules and petitioner who was in the zone of consideration also came to be considered by the DPC in its meeting held on 20.04.2018 and it was opined by DPC that result of the proceedings of the DPC for promoting the petitioner be kept in a sealed cover vide proceedings dated 20.04.2018 Annexure-E. Pursuant to same, petitioner is said to have submitted a representation on 28.04.2018 Annexure-F to 3rd respondent which has not been considered. Hence, petitioner is before this Court for quashing of the enquiry proceedings pending on the file of 1st and 2nd respondent in so far as petitioner is concerned and has prayed for a writ of mandamus being issued to 3rd respondent to consider the representation dated 28.04.2018 Annexure-F.
3. I have heard arguments of Sri. H.M. Muralidhar, learned counsel appearing for the petitioner 5 and learned Additional Government Advocate, appearing for 3rd respondent and Sri. Prashant S. Kumman, learned counsel appearing for Sri. S.S.Kumman for 1st and 2nd respondent.
4. It is the contention of Sri. H.M. Muralidhar, learned counsel for petitioner that merely on the basis of a frivolous complaint, charge sheet has been issued and even at threshold complaint deserves to be rejected and respondents ought to have closed the matter without proceeding with the enquiry and 1st respondent had in fact committed an error in ordering for enquiry being initiated against the petitioner. He would further submit that for no fault of petitioner, his promotion avenue has remained in quandary due to pendency of departmental proceedings. He would rely upon the judgment of the Hon'ble Apex Court in the case of STATE OF PUNJAB & ORS. VS. CHAMAN LAL GOYAL reported in (1995) 2 SCC 570. Hence, he prays for a 6 direction to 3rd respondent to open the sealed cover and declare the result of DPC proceedings and to declare petitioner is promoted to the post of Assistant Executive Engineer, which he is entitled to. It is also contended that petitioner who is left with a very short service and has to retire without even a single promotion throughout his entire career. Hence, he prays for allowing the writ petition. Alternatively, he would also submit that if for any reason first prayer of the writ petition is not granted, at least 3rd respondent may be directed to consider the representation dated 28.04.2018 submitted by the petitioner.
5. Per contra, learned Additional Government Advocate appearing for 1st respondent and Sri. Prashanth Kumman, learned counsel appearing for respondent Nos.1 and 2, respectively would submit that sealed cover policy is the policy which requires to be adopted when a employee is due for promotion is being 7 considered to suspension when he is facing disciplinary proceedings which is the accepted policy in service jurisprudence and said procedure having been adopted in petitioner's case also and hence they have prayed for dismissal of the writ petition.
6. Having heard the learned counsel appearing for the parties and on perusal of records, it would clearly emerge therefrom that undisputedly petitioner is facing departmental enquiry which is said to be proceeding though not at the speed which it ought to have proceeded.
7. Be that as it may. On account of learned counsel appearing for the petitioner having relied upon the judgment of the Hon'ble Apex Court in the case of STATE OF PUNJAB & ORS. VS. CHAMAN LAL GOYAL reported in (1995) 2 SCC 570 to buttress his argument that despite enquiry proceedings pending, Hon'ble Apex Court had directed the officer therein to be promoted, 8 requires to be noticed are extracted for the purposes of immediate reference and it reads:
"12. Applying the balancing process, we are of the opinion that the quashing of charges and of the order appointing enquiry officer was not warranted in the facts and circumstances of the case. It is more appropriate and in the interest of justice as well as in the interest of administration that the enquiry which had proceeded to a large extent be allowed to be completed. At the same time, it is directed that the respondent should be considered forthwith for promotion without reference to and without taking into consideration the charges or the pendency of the said enquiry and if he is found fit for promotion, he should be promoted immediately. This direction is made in the particular facts and circumstances of the case though we are aware that the rules and practice normally followed in such cases may be different. The promotion so made, if any, pending the enquiry shall, however, be subject to review after the conclusion of the 9 enquiry and in the light of the findings in the enquiry. It is also directed that the enquiry against the respondent shall be concluded within eight months from today. The respondent shall cooperate in concluding the enquiry. It is obvious that if the respondent does not so cooperate, it shall be open to the enquiry officer to proceed ex parte. If the enquiry is not concluded and final orders are not passed within the aforesaid period, the enquiry shall be deemed to have been dropped."
8. As could be seen from the dicta laid down by the Hon'ble Apex Court, direction was issued to the Committee considering employees' promotions therein in the particular facts and circumstances of the case found therein i.e., after having noticed that quashing of the proceedings initiated against the petitioner was not called for and it is clearly declared by the Apex Court in the factual matrix such direction is issued and said peculiar situation is not present in the instant case. 10
9. "The sealed cover procedure" is now a well settled concept in service jurisprudence. When DPC considers the case of a candidate for promotion who is facing departmental enquiry it adopts sealed cover procedure and its recommendation will become effective once the proceedings end in favour of the candidate. The sealed cover can be opened in case of exoneration of the charges imputed against such employee. This procedure is adopted when employee is due for promotion, increment, etc. But, the pendency of disciplinary/criminal proceedings, if any, at the relevant point of time being pending, the entitlement to the benefit of either promotional or increment would be subject to the result of said enquiry. As such, result of the benefits are kept in a sealed cover to be opened after the proceedings against the concerned employee is over.
10. It is not in dispute that in so far as consideration of promotion in respect of employees 11 facing departmental proceedings or any criminal proceedings would be subject to sealed cover policy as per the extant circular issued by the department. In that view of the matter, the contention of Sri. H.M. Muralidhar, learned counsel appearing for petitioner seeking for a direction to the 3rd respondent to promote petitioner him to said post merely because he would retire within a period of four years would not be the appropriate course of action and the procedure adopted by the DPC namely, sealed cover procedure in the instant case is just and proper.
11. The direction issued in the case Chaman Lal's case supra was in the particular facts and circumstances of the case as observed by their Lordships in the said judgment itself. Hence, the observation made by the Hon'ble Apex Court would not come to the rescue of the petitioner in the instant case. The allegation or imputation in the charge sheet against 12 the petitioner another DGO is that they have failed to maintain absolute, devotion to duty and also acted in a manner unbecoming of a Government servant and thereby committed a misconduct and made liable for disciplinary action as more fully stated in the statement of imputations of misconduct namely, having executed formation of a road at the cost of Rs.43,00,000/- which was of sub-standard quality and is not in motoroble condition. In this background also, the contention of Sri. H.M. Muralidhar that observation made in Chaman Lal's case is required to be applied to the petitioner's case is an argument required to be considered for the purposes of outright rejection and accordingly it is hereby rejected.
12. In so far as second prayer with regard to direction being issued to 3rd respondent for consideration of petitioner's representation, it would suffice to direct 1st and 2nd respondents to expedite the 13 enquiry and immediately based on outcome of the enquiry proceedings 3rd respondent would necessarily be required to consider the prayer of the petitioner for promotion by opening the sealed cover if he is entitled for being considered.
Subject to above observations, writ petition stands dismissed.
Sd/-
JUDGE BL