K. Karthikeyan vs Indian Oil Corporation Limited

M.M. Sundresh, J.—The petitioner herein joined the service of the respondent as Officer Trainee in the year 1985. Thereafter, he was

working as a Chief (Employee Relation) Manager in F Grade at Eastern Region, Kolkatta. At present, the petitioner is working as Chief Law

Manager in F Grade at Chennai. The next promotion avenue for the petitioner is Grade G. The petitioner became eligible for promotion in the year

2012.

The respondents issued promotion policy after adopting DOPT OM dated 14.09.1992 on 08.02.2012. The Departmental Promotion

Committee met and selected the officers on 25.02.2013 and 12.02.2013. The petitioner''s name was considered and included in the promotional

panel.

On 19.03.2013, a decision was taken by the Disciplinary Authority to initiate proceedings. On 26.03.2013, a resolution was passed by the

respondents regarding promotion followed by Circular dated 28.03.2013. In pursuant to the decision taken to enquire about certain illegality said

to have been committed by the Officers of the respondents, the Central Bureau of Investigation took up investigation and thereafter, filed a closure

report on 30.03.2013 as no sufficient material was available to proceed further against any officer. In pursuant to the tentative decision taken, the

petitioner''s name was not included in the promotion panel issued in the month of April, 2013. It was informed by the Department to the petitioner

by way of a reply given under the Right to Information Act dated 17.05.2013 that he was placed 12th in the panel with 86.690 marks and upto

71st rank person with 81.75 marks have been promoted. The petitioner was also informed by a subsequent reply dated 03.06.2013 that his name

is kept under sealed cover and his juniors were promoted to Grade ​G​. In those circumstances, the petitioner has filed the present writ petition

seeking a direction to the respondents to open the sealed cover and to include the name of the petitioner for promotion to the post of Grade ​G​

officer in the first respondent Corporation with retrospective effect, on the basis of the DPC-2013, at the appropriate place to which he is eligible

and grant promotion with all consequential rights and service benefits to the petitioner. By way of subsequent development, after filing of the writ

petition, a charge sheet was issued to the petitioner on 06.09.2013.

Submissions of the Petitioner:-

The learned counsel appearing for the petitioner submitted that on the date of the consideration for promotion, there was no departmental

proceedings pending against the petitioner. The subsequent charge sheet issued after filing of the writ petition cannot be a basis to deny the

entitlement of the petitioner for promotion. Even the charge levelled against him is frivolous. The respondent, after accepting the applicability of

DOPT OM dated 14.09.1992, has taken a different stand in the counter affidavit by relying upon the Circular dated 26.03.2013. The said

Circular, even assuming is applicable, cannot be put against the petitioner retrospectively. In support of his contentions, the learned counsel

appearing for the petitioner has made reliance upon the following decisions.

(1) Union of India Vs. K.V. Jankiraman, etc. etc., ;

(2) Union of India (UOI) and Others Vs. Tushar Ranjan Mohanty and Others, ;

(3) Union of India and Others Vs. Dr. (Smt) Sudha Salhan, ;

(4) Coal India Ltd. and Others Vs. Saroj Kumar Mishra, ;

(5) Union of India (UOI) and Others Vs. Sangram Keshari Nayak, ;

(6) The Union of India (UOI) and Others Vs. Anil Kumar Sarkar, ;

(7) E.Pitchaimari Vs. The Special Commissioner and Transport Commissioner, Chepauk, Chennai 5 (Unreported decision of the Division Bench

dated 10.4.2008 in W.A.No. 115 of 2008 on the file of High Court of Madras);

(8) G. Venkatachalam Vs. Special Commissioer and Commissioner of Revenue Administration and Another, ;

(9) P.Chinnadurai Vs. The Secretary to Government, Commercial Taxes & Registration Department and another, (Unreported decision dated

15.9.2009 in W.P.No. 1277 of 2009 on the file of High Court of Madras);

(10) V.Ramesh Vs. The General Manager, UCO Bank and another, (Unreported decision dated 20.7.2011 in W.P.Nos. 10098 and 15734 of

2009 and 20141 of 2010 on the file of High Court of Madras);

Submissions of the Respondents:-

The learned Senior Counsel appearing for the respondents submitted that considering the seriousness of the allegations against the petitioner, he

was not promoted. A charge sheet was issued against the petitioner subsequently and he is facing departmental proceedings. In the event of

charges being not proved, the petitioner can get all the benefits. There is no right vested with the petitioner for seeking promotion. Hence, it is

submitted that the writ petition will have to be dismissed.

DISCUSSION:-

The facts as narrated above are not in dispute. Admittedly, at the time of either drawing the panel and thereafter, there was no departmental

proceedings initiated against the petitioner. Perhaps, that is the reason why, though the petitioner was considered for a promotion, his name has

been kept in the sealed cover. The tentative decision was taken only on 19.03.2013. Even the said decision is not against any Officer, as it made

to probe into certain incident alleged to have been happened in the department. The Central Bureau of Investigation has also closed its report on

30.03.2013. It is also not in dispute that the persons juniors to the petitioner have been promoted. His placement in the juniors is also not disputed,

as he had obtained 86.690 marks. It is settled law that in a departmental proceedings, the initiation would start with the issuance of charge memo.

In the absence of any initiation by way of such issuance of a charge memo, an officer cannot be denied promotion. The issue involved in this writ

petition is no longer res integra. Considering the same, the Supreme Court, in The Union of India (UOI) and Others Vs. Anil Kumar Sarkar, , was

pleased to hold after relying upon the earlier decisions rendered in Coal India Ltd. Vs. Saroj Kumar Mishra, (AIR (2007) SC 1706), Chairman-

Cum-M.D., Coal India Ltd. and Others Vs. Ananta Saha and Others, , Union of India Vs. K.V. Jankiraman, etc. etc., and UCO Bank and

Another Vs. Rajinder Lal Capoor, , as follows:

.............. In para 17, this Court further held: Union of India Vs. K.V. Jankiraman, etc. etc.,

...... Conclusion 1 should be read to mean that the promotion etc. cannot be withheld merely because some disciplinary/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.

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 was adopted. In such circumstances, this Court held that (K.V. Janikiraman case, SCC p.124, para 32)

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 of his immediate junior Shri M. Raja Rao was promoted pursuant to the order dated April 30, 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)

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.

Union of India Vs. K.V. Jankiraman, etc. etc., :

In Coal India Ltd. and Others Vs. Saroj Kumar Mishra, , this Court, in para 22, has held that 18. A departmental proceeding is ordinarily said

to be initiated only when a charge-sheet is issued.

In Chairman-Cum-M.D., Coal India Ltd. and Others Vs. Ananta Saha and Others, , this Court held as under:

There can be no quarrel with the settled legal proposition that the disciplinary proceedings commence only when a charge-sheet is issued to the

delinquent employee. (Vide Union of India Vs. K.V. Jankiraman, etc. etc., and UCO Bank and Another Vs. Rajinder Lal Capoor,

We also reiterate that the disciplinary proceedings commence only when a charge sheet is issued. Departmental proceeding is normally said to

be initiated only when a charge sheet is issued.

Learned ASG, by drawing our attention to the decision of this Court in Union of India and Another Vs. R.S. Sharma, submitted that in spite of

decision of this Court in Jankiraman case (supra) in view of para 7 of the office memorandum and in the light of the fact that proceedings were

initiated both criminal and departmentally, the High Court committed an error by overlooking para 7 of sealed cover process and contended that

the direction issued by it cannot be sustained. We have carefully gone through the factual position and the ultimate ratio laid down by this Court in

R.S. Sharmas case (surpa). Even though in the said decision, this Court has distinguished the decision in Jankiraman case (supra) and held that the

same is not applicable to its case, in the light of the conditions mentioned in para 2 as well as para 7 of the office memorandum dated 14.09.1992

and of the categorical finding that none of the conditions mentioned therein has been fulfilled, we are of the view that the decision in R.S. Sharma

case (supra) is not helpful to the case of the appellant.

In view of the above said pronouncement, the legal position is very explicit that merely because an informal enquiry is initiated against an alleged

incident and the same is at the preliminary stage, an employee cannot be denied promotion. Therefore, in the light of the said pronouncement, this

Court is of the view that the petitioner is entitled to succeed.

Coming to the second submission made on behalf of the learned Senior Counsel appearing for the respondents, this Court is of the view that the

respondents have taken a contrary view in the counter affidavit regarding the application of DOPT OM dated 14.09.1992. The reliance made

upon the Board''s resolution dated 26.03.2013 cannot be made applicable to the present case retrospectively. Even otherwise, in the present case,

the CBI has filed the closure report on 30.03.2013. Therefore, the circular also cannot have any application as it is applicable to a case where the

Vigilance have recommended for initiation of penalty proceedings. From the facts, it is clear that but for the tentative decision taken, the petitioner

would have been promoted along with others. Therefore, on facts, the decision made by the Board followed by the Circular cannot have

application to the case on hand.

Accordingly, the writ petition stands allowed. Consequently, the respondents are directed to open the sealed cover and include the petitioner''s

name in the promotion of Grade ​G​ Officer on the basis of DPC-13 at the appropriate place to which he is eligible and grant promotion with all

consequential benefits within a period of eight weeks from the date of receipt of a copy of this order. It is also made clear that the order passed in

this writ petition will not stand in the way of the respondents proceeding further against the petitioner in accordance with law in pursuant to the

charge memo dated 06.09.2013. However, there is no order as to costs. Consequently, connected miscellaneous petition is closed.