IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF APRIL 2019 PRESENT THE HON’BLE MRS.JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR.JUSTICE H.T.NARENDRA PRASAD WRIT PETITION NO.53701/2018 (S-KAT) BETWEEN:
SRI PARSHWANATH P S/O VAJRA POOJ AGED ABOUT 57 YEARS SENIOR ASSISTANT DIRECTOR OF FISHERIES UDUPI DISTRICT, UDUPI RESIDING AT NO.10-108/6 "VAJRA" CLASSIQUE VILLAGE LAYOUT SHAKTHINAGAR, MANGALORE-575016.
... PETITIONER (BY SRI. VIJAYA KUMAR, ADV.) AND 1. THE STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY ANIMAL HUSBANDRY & FISHERIES DEPARTMENT M.S.BUILDING, SACHIVALAYA BENGALURU-560001.
2. THE DIRECTOR DEPARTMENT OF FISHERIES 3RD FLOOR, PODIUM BLOCK VISVESHWARAIAH TOWER DR.AMBEDKAR VEEDHI BENGALURU-560001.
3. DR T MAHESH DEPUTY DIRECTOR OF FISHERIES BENGALURU RANGE BENGALURU-560029.
... RESPONDENTS (BY SRI.I.TARANATH POOJARY, AGA FOR R1 & R2 NOTICE TO R3 IS DISPENSED WITH) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DTD:13.11.2018 PASSED BY THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL IN APPLICATION NO.6838/2017 VIDE ANNEXURE-A AND ALLOW THE APPLICATION AS PRAYED FOR.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, NAGARATHNA J., MADE THE FOLLOWING:
ORDER Though this appeal is listed for preliminary hearing, with the consent of the learned counsel on both sides, it is heard finally.
2. Petitioner has assailed the legality and correctness of order dated 13.11.2018 passed by the Karnataka State Administrative Tribunal (hereinafter referred to as the “Tribunal” for the sake of convenience) in Application No.6838/2017 (Annexure-A). By the said order, the Tribunal has dismissed the application filed by the petitioner. Being aggrieved, petitioner has preferred this writ petition.
3. Briefly stated, the facts are that petitioner was placed in independent charge as Deputy Director of Fisheries under Rule 32 of Karnataka Civil Services Rules (KCSR). The said promotion was under Rule 32 of KCSR. Thereafter a sealed cover procedure was adopted while considering his case for a regular promotion, having regard to the fact that there were three criminal cases registered against the petitioner. It is the case of the petitioner that such a procedure could not have been adopted by the respondent-authorities as the mere registration of FIR against the person does not amount to filing of a charge sheet. It is further contended that unless a charge memo is issued in disciplinary proceedings, mere issuance of notice to the Government servant does not imply that the sealed cover procedure must be adopted while considering such a case for promotion. Representation was made by the petitioner on 25.9.2017 stating that his name may be considered for promotion. However, on 10.11.2017, his juniors were promoted while his name was kept under the sealed cover, while the sealed cover procedure was adopted in so far as petitioner is concerned. Hence, petitioner has filed Application No.6838/2017 seeking a writ of mandamus or a direction to the respondent-authorities to consider his case for promotion to the post of Deputy Director of Fisheries from the date when his juniors were promoted on 10.11.2017 by considering his representation dated 25.9.2017 (Annexure-7). By the impugned order, the said application has been dismissed. Hence, this writ petition has been filed.
4. We have heard learned counsel for the petitioner and learned Additional Government Advocate for respondent Nos.1 and 2. As already noted, notice to respondent No.3 is dispensed with as no relief is sought against respondent No.3.
5. Learned counsel for the petitioner has placed reliance on two judgments of the Hon’ble Supreme Court namely, (1) Union of India and others v. K.V.Jankiraman and others [1991) 4 SCC 109] and (2) Union of India and others v. Anil Kumar Sarkar (arising out of Civil Appeal No.2537/2013 disposed of on 15.3.2013) to contend that sealed cover procedure could not be adopted or resorted to unless a charge memo or charge sheet has been issued to the Government servant. But in the instant case, merely because FIR has been registered in three crime numbers as against the petitioner, sealed cover procedure has been adopted, which is contrary to the dicta of Hon’ble Supreme Court. Therefore, learned counsel for the petitioner submitted that representation made by the petitioner may be considered in accordance with law and direction could be issued by setting aside the order of the Tribunal.
6. Per contra, learned Additional Government Advocate supported the order of the Tribunal and contended that the petitioner has not challenged the sealed cover procedure adopted by the respondent-authorities; that he has only sought for his representation to be considered and that there is no merit in this writ petition.
7. Detailed narration of facts and contentions would not call for reiteration except highlighting the fact that in the instant case having regard to the fact that FIR being registered against the petitioner in three criminal cases, respondent-authorities resorted to the sealed cover procedure while considering the case of the petitioner for promotion as Deputy Director Fisheries while he was holding independent charge of the said post under Rule 32 of the KCSR.
8. In the case of K.V.Jankiraman, the Hon’ble Supreme Court has held that for the purpose of adopting sealed cover procedure question as to when disciplinary or criminal proceedings have been commenced assumes significance, that it is only when the charge memo or charge sheet is issued to the employee, it can be said that the departmental proceeding or criminal prosecution is initiated against the employee and in such an event, the sealed cover procedure has to be resorted to and not otherwise. That means during the pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. Further, promotion cannot be withheld merely because, some disciplinary or criminal case is pending against an employee.
9. In the case of Anil Kumar Sarkar, the Hon’ble Supreme Court after referring to several decisions has reiterated that departmental proceeding is ordinarily said to be initiated only when charge sheet is issued. Reliance is also placed on the case of K.V.Janakiram.
10. Having regard to the aforesaid dictum, we are of the view that Tribunal ought to have simply issued a direction to the respondent-authorities to consider the representation dated 25.9.2017 made by the petitioner herein in accordance with law and thereafter to take steps accordingly. Instead, the Tribunal has stated that there were three FIRs registered against the petitioner arising out of three separate crime numbers and government was justified in applying the sealed cover procedure.
11. In the circumstances, the impugned order is quashed, direction is issued to the respondent-authorities to consider the representation dated 25.9.2017 having regard to the aforesaid dicta of the Hon’ble Supreme Court and in accordance with law and to pass a speaking order thereon within a period of two months from the date of receipt of a certified copy of this order.
With the aforesaid observations and directions, the writ petition is disposed of.
Sd/- JUDGE Sd/- JUDGE DM/-