Karnataka High Court
Sri. Anil Ganapati Sankolli vs The State Of Karnataka on 7 December, 2022
Author: S.G. Pandit
Bench: S.G. Pandit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF DECEMBER, 2022
BEFORE
THE HON' BLE MR. JUSTICE S.G. PANDIT
WRIT PETITION No.12920/2022 (S-RES)
BETWEEN:
SRI. ANIL GANAPATI SANKOLLI
S/O GANAPATI M SANKOLLI,
AGED ABOUT 57 YEARS,
WORKING AS ASSISTANT EXECUTIVE ENGINEER,
KARNATAKA HOUSING BOARD,
DISTRICT PROJECT OFFICE,
HASSAN, HASSAN DISTRICT,
R/AT NO 2, VENUS MANAR,
OPP. KADRI GROUND, KADRI,
MANGALORE- 575002.
...PETITIONER
(BY SRI VIJAYA KUMAR, ADV.)
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY,
HOUSING DEPARTMENT,
VIKAS SOUDHA,
BENGALURU 560001.
2. THE COMMISSIONER
KARNATAKA HOUSING BOARD,
CAUVERY BHAVAN, K G ROAD,
BENGALURU- 560009.
3. THE SECRETARY
KARNATAKA HOUSING BOARD,
K G ROAD,
BENGALURU- 560009.
...RESPONDENTS
(BY SRI T.P.SRINIVAS, PRL.GA. FOR R1
SRI MANU K, ADV. FOR R2 & R3)
2
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL
FOR RELEVANT RECORDS RELATING TO ISSUE OF IMPUGNED
ENDORSEMENT BEARING NO.KA GRA MA/ADALITHA/C-SHA-
1/PR/2021-22 DATED 15.02.2022 ISSUED BY R2 VIDE
ANNEXURE-R AND AFTER PERUSAL SET ASIDE THE SAME AND
ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner, an Assistant Executive Engineer, working in the 2nd respondent-Karnataka Housing Board (for short 'the KHB') is before this Court under Article 226 of the Constitution of India praying for a writ of certiorari to quash the endorsement (Annexure-R) bearing No.Ka Grama/Adalitha/C.Sha-1/PR/2021-22 dated 15.02.2022 and for a direction to the respondents to consider the claim of the petitioner for promotion to the post of Executive Engineer by opening the sealed cover and grant him retrospective promotion from the date his juniors were promoted on 01.07.2021 vide Annexure-N and to grant all consequential benefits.
2. Heard Sri Vijay Kumar, learned counsel for the petitioner, Sri Manu K, learned counsel for respondents 3 2 and 3 as well as Sri T.P. Srinivas, learned Principal Government Advocate for the 1st respondent. Perused the writ petition papers.
3. Learned counsel for the petitioner would submit that petitioner is working as Assistant Executive Engineer in the 2nd respondent-KHB and he is qualified and eligible for promotion to the next higher cadre i.e., Executive Engineer. The Departmental Promotion Committee (for short 'the DPC') meeting was held on 25.06.2021 to consider the cases of the petitioner and others, for promotion to the post of Executive Engineer. In the DPC proceedings of 25.06.2021, the case of the petitioner was put in sealed cover by following the procedure laid down in Official Memorandum dated 14.07.1993 (Annexure-S), on the ground that a departmental enquiry against the petitioner is pending in charge memo dated 23.06.2021. Petitioner is said to have submitted representation to consider his case for promotion and when the said representation was pending, petitioner was before this Court in 4 W.P.No.12331/2021. This Court by order dated 10.12.2021 disposed off the writ petition with a direction to the respondents to consider the representation of the petitioner and pass appropriate order. Thereafter, on considering the petitioner's representation, endorsement (Annexure-R) dated 15.02.2022 is issued, intimating the petitioner that as the writ petition challenging the charge memo is pending, but only stay is granted and as the Court has not quashed the charge memo, the sealed cover would be opened only on completion of enquiry.
4. Sri Vijay Kumar, learned counsel for the petitioner contends that as on the date of DPC i.e., on 25.06.2021, the petitioner was not served with charge memo dated 23.06.2021. He submits that charge memo dated 23.06.2021 was served on the petitioner on 25.08.2021. Two days before the DPC, charge was framed and the DPC took note of the said charge, to keep the decision in respect of the petitioner for promotion in sealed cover by following the procedure laid down in Official 5 Memorandum dated 14.07.1993. Learned counsel inviting attention of this Court to Official Memorandum dated 14.07.1993 submits that sealed cover procedure could be followed only after the date of issuance of charge memo/charge sheet. In the instant case, the charge sheet even though was prepared on 23.06.2021, the charge memo was despatched from the office of the 2nd respondent only on 01.07.2021. Therefore, learned counsel would submit that DPC could not have taken note of charge memo to follow the sealed cover procedure in respect of the petitioner. In that regard, learned counsel places reliance on the decision of the Hon'ble Apex Court in DELHI DEVELOPMENT AUTHORITY Vs. H.C. KHURANA reported in (1993) 3 SCC 196, wherein the word 'issue' is interpreted and held that date of despatch would be the relevant date. Thus he prays for allowing the writ petition.
5. Sri Manu, learned counsel for respondents 2 and 3 would submit that since charge sheet was issued against the petitioner on 23.06.2021, rightly the DPC 6 taking note of the charge memo followed sealed cover procedure in its meeting held on 25.06.2021. He submits that even though charge sheet was despatched on 01.07.2021, the fact remains that charge sheet was prepared on 23.06.2021 and also notice dated 23.06.2021 was issued to the petitioner. The learned counsel also placing reliance on the above S.C. KHURANA decision submits that, what is important would be issuance of charge memo/charge sheet and steps to be taken for issuance of charge sheet. Since the respondent-KHB had taken all steps for framing and issuance of charge memo, the same to be taken note of by the DPC, and the DPC has rightly taken note. Thus he prays for dismissal of the writ petition.
6. On hearing the learned counsel for both the parties and on perusal of the writ petition papers, the only point that falls for consideration is as to "In the matter of promotion of the petitioner to the next higher cadre of Executive 7 Engineer, whether the respondent-
KHB could have followed sealed cover procedure in terms of Official Memorandum dated 14.07.1993 (Annexure-S)?"
Answer to the above point would be that the respondent-KHB could not have followed sealed cover procedure in respect of the petitioner's case for promotion to the next higher cadre of Executive Engineer for the following reasons :-
Admittedly the DPC meeting was held on 25.06.2021. The respondent-KHB framed charge memo on 23.06.2021, which was taken note of by the DPC in its meeting on 25.06.2021. Admittedly the charge memo was issued and despatched only on 01.07.2021, as could be evidenced from the extract of despatch registrar placed on record along with the Memo dated
07.12.2022.
7. The State Government has issued Official Memorandum dated 14.07.1993 laying down certain instructions for DPC in respect of promotion, when a 8 departmental enquiry/Court proceedings is pending. The relevant clauses 2 to 6 reads as follows :-
"2. Where a departmental enquiry or court proceedings is pending the following course of action shall be taken.
3. The Departmental Promotion Committee (DPC) shall assess the suitability of the officer/official for promotion without taking into consideration the disciplinary proceedings/court proceedings pending against the officer/official. The assessment on the basis of records, the view of the DPC shall be kept in a sealed cover. In the subsequent DPCs also, if any, during the period of disciplinary/court proceedings, the DPC shall consider the officer's, official's case and record its findings which will again be kept in a sealed cover in the above manner.
4. On the conclusion of the disciplinary/court proceedings and in case the officer/official is exhonerated, the sealed cover or covers may be opened and the earliest possible date of promotion but for the pendency of the disciplinary/court 9 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.
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 meets in the normal course after conclusion of the disciplinary/court proceedings.
6. The sealed cover procedure contemplated herein above, shall be adopted only after the date of issuance of Charge Memo/Charge Sheet, that being the date from which the disciplinary proceedings can be taken to have been initiated."10
A reading of the above Official Memorandum makes it clear that wherever Departmental enquiry/Court proceedings is pending against an official, the assessment on the basis of the records, view of the DPC shall be kept in sealed cover, and the decision of the DPC shall be given effect to depending on the outcome of the Departmental enquiry. Clause 6 of the above Official Memorandum would be relevant for the purpose of the present case. Clause 6 would state that the sealed cover procedure contemplated shall be adopted only after the date of issuance of charge memo/charge sheet, that being the date from which the disciplinary proceedings can be taken to have been initiated.
8. The Hon'ble Apex Court in H.C. KHURANA case cite supra was considering and interpreted the word 'issue' in the matter of issuance of charge memo in a departmental proceedings. The relevant portion as held by the Hon'ble Apex Court at paragraphs 13, 14 and 15 reads as follows :-
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"13. It will be seen that in Jankiraman also, emphasis is on the stage when 'a decision has been taken to initiate the disciplinary proceedings' and it was further said that 'to deny the said benefit (of promotion), they must be at the relevant time pending at the stage when charge-memo/charge-sheet has already been issued to the employee'. The word 'issued' used in this context in Jankiraman it is urged by learned counsel for the respondent, means service on the employee. We are unable to read Jankiraman in this manner. The context in which the word 'issued' has been used, merely means that the decision to initiate disciplinary proceedings is taken and translated into action by despatch of the charge-sheet leaving no doubt that the decision had been taken. The contrary view would defeat the object by enabling the government servant, if so inclined, to evade service and thereby frustrate the decision and get promotion in spite of that decision. Obviously, the contrary view cannot be taken.
14. 'Issue' of the charge-sheet in the context of a decision taken to initiate the disciplinary 12 proceedings must mean, as it does, the framing of the charge-sheet and taking of the necessary action to despatch the charge-sheet to the employee to inform him of the charges framed against him requiring his explanation; and not also the further fact of service of the charge-sheet on the employee. It is so, because knowledge to the employee of the charges framed against him, on the basis of the decision taken to initiate disciplinary proceedings, does not form a part of the decision making process of the authorities to initiate the disciplinary proceedings, even if framing the charges forms a part of that process in certain situations. The conclusions of the Tribunal quoted at the end of para 16 of the decision in Jankiraman which have been accepted thereafter in para 17 in the manner indicated above, do use the word 'served' in conclusion No.(4), but the fact of 'issue' of the charge-sheet to the employee is emphasised in para 17 of the decision. Conclusion No.(4) of the Tribunal has to be deemed to be accepted in Jankiraman only in this manner.
15. The meaning of the word 'issued', on which considerable stress was laid by 13 learned counsel for the respondent, has to be gathered from the context in which it is used. Meanings of the 'word issue' given in the Shorter Oxford English Dictionary include 'to give exit to; to send forth, or allow to pass out;
to let out; .... to give or send out authoritatively or officially; to send forth or deal out formally or publicly-, to emit, put into circulation'. The issue of a charge-sheet, therefore, means its despatch to the government servant, and this act is complete the moment steps are taken for the purpose, by framing the charge-sheet and despatching it to the government servant, the further fact of its actual service on the government servant not being a necessary part of its requirement. This is the sense in which the word 'issue' was used in the expression 'charge-sheet has already been issued to the employee', in para 17 of the decision in Jankiraman."
The above decision makes it abundantly clear that when a charge memo/charge sheet is issued, the date of issue would be the date of despatch of such charge memo/charge sheet. The issuance of charge memo 14 would be complete, the moment steps are taken for the purpose of despatch, despatching it to the Government Servant. In the instant case, even though charge is said to have been framed on 23.06.2021, it was despatched from the office of the 2nd respondent only on 01.07.2021 and hence, the date of issuance of charge memo could be taken as on 01.07.2021. Therefore, the DPC is not justified and could not have taken note of the charge sheet dated 23.06.2021 in its meeting held on 25.06.2021 to follow sealed cover procedure in the matter of promotion of petitioner. Therefore, in the peculiar facts of the present case, the respondents shall give effect to the decision contained in the sealed cover. Hence the following order :-
a. The endorsement (Annexure-R) bearing No.KaGruMam/Adalitha/CSha1/ PR/2021- 22 dated 15.02.2022 is quashed.
b. Respondents 2 and 3 are directed to open the sealed cover procedure followed in respect of the petitioner in the matter of 15 promotion by the DPC in its meeting held on 25.06.2021 and to give effect to the said decision, and if the decision of the DPC is in favour of the petitioner to grant all consequential benefits to the petitioner. c. Time for compliance is two months from the date of receipt of a copy of this order.
Accordingly, the writ petition stands disposed of.
Sd/-
JUDGE NG* CT:bms