SHRI. MARUTHI RAO v. THE MANAGING DIRECTOR

(PER: THE HON'BLE MR. JUSTICE M.NAGAPRASANNA) The petitioner is before this Court seeking the following prayers: A. Writ of mandamus or any other order or Directions directing the respondent 2 to sanction the promotion to the petitioner to the post of accounts officer with effect from the 16/4/2018 with all the consequential benefits by considering the representation dated 12/07/2024 as per Annexure-H respectively . B. Issue any other appropriate writ or order or directions which deems fit to grant by this Hon’ble Court in the facts and circumstances of the case, to meet the ends of the justice.

2. The petitioner is before this Court seeking a direction to the respondent No.2 to accord promotion to the petitioner to the post of Accounts Officer with effect from 16.04.2018 on consideration of his representation dated 12.07.2024.

3. Heard Sri.Abhinandan Hiremath, learned counsel appearing for the petitioner, Sri.B.S.Kamate, learned counsel appearing for the respondents. - 3 - NC: 2025:KHC-D:14987 WP No. 104763 of 2025 HC-KAR

4. Facts in brief, germane, are as follows: (a) The petitioner joins the service of the respondent- Karnataka Power Transmission Corporation Limited [hereinafter referred to as the ‘Corporation’ for short], as a Junior Assistant and is later promoted on 06.09.2001 to the post of Assistant Accounts Officer and was posted at the office of the Assistant Executive Engineer (O & P), Urban sub-division of the Corporation at Hubballi. Between 05.01.2012 to 30.06.2014, the petitioner at the time when he was working as Assistant Accounts Officer, it transpires that owing to certain omissions and commissions, pending initiation of disciplinary proceedings, the petitioner was placed under suspension. After about three months of the passage of the order of suspension, the suspension of the petitioner is revoked and is placed back to the services. On 16.04.2018, it transpires that the juniors of the petitioner were accorded promotion from the cadre of Assistant Accounts Officer to the post of Accounts Officer. Long thereafter on 29.10.2001, charge sheet is issued against several others alleging offences of certain misconduct. The said charge sheet is pending consideration. The petitioner submits a - 4 - NC: 2025:KHC-D:14987 WP No. 104763 of 2025 HC-KAR representation on 12.07.2024 claiming promotion on the score that as on the date on which the petitioner and others were assessed for promotion, the case of the petitioner could not have been ignored as there was no charge sheet on the said date. The representation was not considered by respondent No.2 and therefore, the petitioner is now at the doors of this Court in the subject petition.

5. Learned counsel appearing for the petitioner would contend that on the date on which all the eligible candidates for promotion to the post of Assistant Accounts Officer was assessed, the petitioner did not suffer any ineligibility. The Departmental Promotion Committee met to consider the cases of promotion from Assistant Accounts Officer to that of Accounts Officer on 16.04.2018. The petitioner was only placed under suspension once and it was revoked four years prior to the said date. Charge sheet is issued only on 29.10.2021. He would therefore submit that the petitioner is entitled to be promoted as Accounts Officer from the date on which his juniors come to be promoted. - 5 - NC: 2025:KHC-D:14987 WP No. 104763 of 2025 HC-KAR

6. Per contra, the learned counsel Sri.B.S.Kamate appearing for the respondents would vehemently refute the submission in contending that charge sheet is issued against the petitioner and a departmental enquiry is pending. Today, if a direction is issued to consider the case of the petitioner for promotion, it would become contrary to law. It is his submission that since the charge sheet is pending, his case would be considered after the closure of the proceedings i.e., the departmental enquiry. He would admit the fact that as on the date of consideration of the case of the petitioner along with others, there was no charge sheet issued against the petitioner. Nonetheless, he would seek dismissal of the petition for the petitioner to approach this Court at a later point in time.

7. I have given my anxious consideration to the submissions made by the learned counsel for the respective parties and have perused the material on record. In-furtherance whereof, the only issue that falls for consideration is whether the case of the petitioner should be considered for promotion along with his juniors as on 16.04.2018, as there was no charge sheet issued against him on the said date. - 6 - NC: 2025:KHC-D:14987 WP No. 104763 of 2025 HC-KAR

8. The afore-narrated facts, dates and the link in the chain of events, are all a matter of record.

9. To consider the said issue, certain dates require reiteration. The petitioner was placed under suspension on

22.08.2014; the suspension comes to be revoked on

12.11.2014, though suspension is never a disability consideration of promotion, even that was not in subsistence. On

16.04.2018, it transpires that the cases of all the eligible officers who came within the zone of consideration for promotion to the post of Accounts Officer from the cadre of Assistant Accounts Officer was assessed. All the juniors come to be promoted, the petitioner’s case is placed in a sealed cover on the score that disciplinary proceedings are contemplated against the petitioner. The contemplation fructifies on 29.10.2021, the date on which the charge sheet was issued against the petitioner.

10. Mere contemplation of disciplinary proceedings, in Service Jurisprudence, can never be equated with pendency of disciplinary proceedings. Consequently, - 7 - NC: 2025:KHC-D:14987 WP No. 104763 of 2025 HC-KAR promotional prospects of an otherwise eligible officer cannot be sealed or deferred solely on the basis of such contemplation. It is by now well settled that departmental proceedings are deemed to commence only upon the formal issuance of a charge sheet - neither the act of suspension nor the issuance of a Show Cause Notice, has the effect of initiating disciplinary proceedings.

11. In the case at hand, the charge sheet was issued only on 29.10.2021, nearly four years subsequent to a meeting of the Departmental Promotion Committee, which had, on

16.04.2018, accorded promotion to the juniors of the petitioner. The petitioner on the said date, admittedly did not suffer any disqualification and yet his case was excluded for promotion.

12. A charge sheet surfacing years after the Departmental Promotion Committee convened, cannot retrospectively deprive the petitioner of a promotion that he was rightfully due and ought to have been granted upon the fair assessment of his representation. - 8 - NC: 2025:KHC-D:14987 WP No. 104763 of 2025 HC-KAR

13. The legal position on is so unequivocally established, that one need hardly expend effort reminding the respondent-Corporation of it. Yet the Corporation appears to have proceeded in blissful disregard of settled doctrine pertaining to commencement and pendency of disciplinary proceedings, thereby acting in blatant contravention of the governing principles of Service Jurisprudence.

14. It thus becomes apposite to refer to the judgment of the Apex Court in UNION OF INDIA vs. ANIL KUMAR SARKAR, 2013 SCC OnLine SC 234, wherein it is held as follows: “15. Mr Mohan Jain, learned ASG submitted that Para 2 has to be read along with Para 7 of the Office Memorandum dated 14-9-1992. We have already extracted Para 7 of the memorandum which makes it clear that a government servant, who is recommended for promotion by the DPC if any of the circumstances mentioned in Para 2 of the said memorandum arises after the recommendations of the DPC are received, but before he is actually promoted, will be considered as if his case has been placed in a sealed cover by the DPC. After extracting Para 2, we also highlighted the three conditions prescribed learned ASG has mentioned that four charge-sheets were issued to the respondent, enquires were completed and show-cause notices had already been served on the respondent, on relevant date, namely, 21-4-2003, when his batchmates were promoted, none of the conditions was in therein. Though, - 9 - NC: 2025:KHC-D:14987 WP No. 104763 of 2025 HC-KAR existence in the case of the respondent. Admittedly, the respondent was not placed under suspension, charge- sheet had been issued only on 13-8-2003 i.e. nearly after 4 months, no disciplinary proceedings were initiated or were pending as on 21-4-2003. In such circumstances, we are of the view that the High Court is fully justified in issuing memorandum. No doubt, the learned ASG heavily relied on the later part of Para 7 of the memorandum which reads as under: the direction based on Para 2 of “He shall not be promoted until the conclusion of disciplinary case/criminal proceedings and the provisions contained in this letter will be applicable in his case also.” Inasmuch circumstances was in existence as on 21-4- 2003, reliance placed on the later part of Para 7 cannot be accepted or even not be applicable.

16. It is not in dispute that an identical issue was in Union of India v. K.V. considered by this Court Jankiraman [(1991) 4 SCC 109 : 1993 SCC (L&S) 387 : (1993) 23 ATC 322] . The common questions involved in all those matters were: (SCC p. 114, para 8) against “8. … (1) What is the date from which it can be said that disciplinary/criminal are pending proceedings employee? (2) What is the course to be adopted when the employee is held guilty in such proceedings the guilt merits punishment other than that of dismissal? and (3) To what benefits an employee who is completely or partially exonerated is entitled to and from which date?” Among the three questions, we are concerned about Question 1. As per the rules applicable, the “sealed cover procedure” is adopted when an employee is due for promotion, increment, etc. but disciplinary/criminal proceedings are pending against him at the relevant time and hence, the - 10 - NC: 2025:KHC-D:14987 WP No. 104763 of 2025 HC-KAR findings of his entitlement to the benefit are kept in a sealed cover to be opened after the proceedings in question are over.

17. Inasmuch as we are concerned about the first question, the dictum laid down by this Court relating to the said follows: (K.V. Jankiraman case [(1991) 4 SCC 109 : 1993 SCC (L&S) 387 : (1993) 23 ATC 322] , SCC p. 118, para 16) is as sealed prosecution cover procedure proceedings/criminal “16. On the first question viz. as to when for the purposes of disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental initiated against the employee. The sealed cover procedure is to be resorted to only after the charge memo/charge-sheet 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 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.” interested persons, - 11 - NC: 2025:KHC-D:14987 WP No. 104763 of 2025 HC-KAR In para 17, this Court further held: (K.V. Jankiraman case [(1991) 4 SCC 109 : 1993 SCC (L&S) 387 : (1993) 23 ATC 322] , SCC p. 119) merely because “17. … Conclusion 1 should be read to mean that the promotion, etc. cannot be withheld disciplinary/criminal proceedings are pending against the employee. To deny the said benefit, they must be at the relevant time charge pending at memo/charge-sheet has already been issued to the employee.” stage when After finding so, in the light of the fact that no charge-sheet was served on the respondent employee when the DPC met to consider his promotion, yet the sealed cover procedure circumstances, this Court held that: (K.V. Jankiraman case [(1991) 4 SCC 109 : 1993 SCC (L&S) 387 : (1993) 23 ATC 322] , SCC p. 124, para 32) adopted. In “32. … The Tribunal has rightly directed the authorities to open the sealed cover and if the respondent was found fit for promotion by the DPC, to give him the promotion from the date his immediate junior Shri M. Raja Rao was promoted pursuant to the order dated 30-4-1986. The Tribunal has also directed the authorities to grant to the respondent all the consequential benefits. … We see no reason to interfere with this order. The appeal, therefore, stands dismissed.” (emphasis supplied)

18. The principles laid down with reference to similar office memorandum are applicable to the case on hand and the contrary argument raised by the appellant Union of India is liable to be rejected. - 12 - NC: 2025:KHC-D:14987 WP No. 104763 of 2025 HC-KAR

19. In Coal O R D E R [i] Writ Petition is allowed. [ii] Mandamus issues to the respondent No.2 to accord such promotion to the petitioner to the post of Accounts Officer with effect from 16.04.2018, within eight weeks from the date of receipt of the copy of the order. [iii] The petitioner is declared entitled to all consequential benefits that would flow from the mamdamus so issued. Ordered accordingly. Sd/- (M.NAGAPRASANNA) JUDGE AC/CT-ASC/CBC List No.: 1 Sl No.: 19