K. Tirumala Rao vs Chairman, Electronics Corporation of India, ECIL Post, Hyd.

The petitioner while serving as Foreman came under the zone of consideration for promotion to the cadre of Senior Foreman. The Departmental Promotion Committee after necessary deliberation found the petitioner fit for promotion to the cadre of Senior Foreman. Accordingly, the petitioner by the proceedings dated 13-6-1996 was promoted to the post of Senior Foreman. Subsequently, by the impugned proceedings dated 17-6-1996, the promotion order was kept in abeyance till the conclusion of the investigation by the CBI into the alleged false and bogus medical claims made by the petitioner. There is no controversy between the parties that when the Departmental Promotion Committee met and when the promotion order was issued on 13-6-1996 no crime was registered against the petitioner by the CBI police nor the respondent-employer had issued any charge memo to the petitioner under the CCA Regulations. It is well settled by several pronouncements of the Apex Court and this Court that as on the date DPC meets for consideration of the candidates for promotion to the next higher cadre and if an applicant is found to be fit for such promotion he should be promoted and only in a case where an applicant who is found to be fit for promotion is already placed under suspension or a departmental proceeding is initiated, then, the employer can resort to "sealed cover" procedure and not otherwise. It is needless to state that disciplinary proceeding begins with the issuance of charge memo and it ends wilh the passing of the final order by the disciplinary authority. It is not the case of the respondent that any charge memo was issued to the petitioner. Similarly, no crime was registered and therefore it cannot be said that the proceedings are pending before the criminal law Court. The Supreme Court in the latest pronouncement in Union of India and others v. Dr. (Smt.) Sitdha Salhan & others, 1998 AIR SCW 884, in para 6 observed thus :

"The question, however, stands concluded by a Three Judge decision of this Court in Union of India Vs. K.V. Jankiraman, etc. etc., , which the same view has been taken. We are in respectful agreement with the above decision. We are also of the opinion that if on the date which the name of a person is considered by the Departmental Promotion Committee for promotion to the higher post, such person is neither under suspension nor has any departmental proceedings been initiated against him, his name, if he is found meritorious and suitable has to be brought on the select list and the "sealed cover" procedure cannot be adopted. The recommendation of the Departmental Promotion Committee can be placed in a '' "sealed cover" only if on the date of consideration of the name for promotions the departmental proceedings had been initiated or were pending or on its conclusion, final orders had not been passed by the appropriate authority."

A case is made out for interference. The writ petition is allowed and the impugned proceeding of the Personal Manager/E No.ECIL : PG (E-P) : 1994-95 : 0809-A, dated 17-6-1997 is quashed and the respondent is directed to promote the petitioner to function" as Senior Foreman in terms of the promotion Order dated 13-6-1996. The petitioner is also entitled to the benefits, pecuniary and otherwise, flowing from the quashing of the impugned proceeding. But in the facts and circumstances of the case, the parties are directed to bear their own costs in this writ petition.