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2001 DIGILAW 744 (PAT)

Pratap Narayan Mishra v. State Of Bihar

2001-08-16

AFTAB ALAM

body2001
Judgment 1. The petitioner is an Assistant teacher in a High school. During the last assembly elections, he was nominated as the Presiding Officer of Booth no. 59 of 187 Suryagarha Assembly constituency. At the end of the poll the petitioner showed in his records the casting of 530 ballots but in the ballot box, 579 ballot papers were found which gave rise to much confusion and caused considerable embarassment to the officials responsible for holding the election. According to the respondent authorities, the petitioner admitted that some error was committed by him and he was put under suspension. 2. It appears that a departmental enquiry was held and following the recommendations made by the enquiry officer the Dist. Magistrate cum Dist. Electoral Officer, Lakhisarai passed an order, dated 17.10.2000 (Annexure 1) whereby he gave to the petitioner the punishment of withholding of one annual increment with non-cumulative effect and directed that for the period of suspension, the petitioner will not be entitled to anything beyond the subsistence allowance. 3. This writ petition has been filed challenging the order of punishment passed by the Dist. Magistrate cum Dist. Electoral Officer. 4. On hearing counsel for the parties and on going through the writ petition and the counter affidavit filed on behalf of the respondents, I find that this writ petition must be allowed for the simple reason that the order of punishment is without any legal authority. 5. It is beyond dispute that an Assistant teacher in a high school is under the administrative and disciplinary control of the officials in the Education Department and not the Dist. Magistrate. But the misconduct for which the punishment is imposed was committed not in course of his duties as an Assistant teacher but in the discharge of his duties as the Presiding Officer of a polling booth. Would this circumstance give the Dist. Magistrate cum Dist. Electoral Officer the necessary power and the legal authority to pass an order of punishment against the petitioner ? The respondent authorities seem to think so and in order to justify the action of the Dist. Magistrate reliance is placed on section 28A of the Representation of the People Act, 1951. Would this circumstance give the Dist. Magistrate cum Dist. Electoral Officer the necessary power and the legal authority to pass an order of punishment against the petitioner ? The respondent authorities seem to think so and in order to justify the action of the Dist. Magistrate reliance is placed on section 28A of the Representation of the People Act, 1951. Section 28A is as follows : "28-A Returning Officer, Presiding Officer, etc., deemed to be on deputation to Election Commission.The returning officer, assistant returning officer, presiding officer, polling officer and any other officer appointed under this Part, and any police officer designated for the time being by the State Government, for the conduct of any election shall be deemed to be on deputation to the Election Commission for the period commencing on and from the date of the notification calling for such election and ending with the date of declaration of the results such election and accordingly, such officers shall, during that period, be subject to the control, superintendence and discipline of the Election Commission." 6. On a plain reading the section does not seem to authorise the officials of the Election Commission to impose punishment on a Government employee who may be deemed to be on deputation to the Election Commission. And this position stands further clarified by an order issued by the Election Commission on 7.2.2001. Referring to an order, passed by the Supreme Court, on 21.9.2000 the Commission has laid down the parameters of disciplinary control over the Government employees on deputation to the Commission in the following terms : "(ka) Duty ke parti awagya athwa awhelna ke liye kisi bhi adhikari/padad- hikari/ police karmik to nilambit karna; (kha) Kisi bhi adhikari/padad- hikari/potice karmik ke asthan par anya veyakti ko rakhana aur jis veyakti ko badla gaya hai, oos ke aacharan ki uchit report dete hue oose oos ke cadre main wapas bhejna jahan kaa woh hai. "(ga) Nirwachan duty ke dauran duty ki awagya athwa awhelna ke kirtya ke liye anushasnik karwai karne ki sacham paradhikari se sifarish karna. Aisi sipharishon par sacham parad hikahyon dwara turant karwai ki jai gi aur nirwachan aayog ki ki gai karwai ke nirwachan aayog ki sipharishon ki tarikh ke che mahine ke andar sansuchit kiya jai gaa. "(ga) Nirwachan duty ke dauran duty ki awagya athwa awhelna ke kirtya ke liye anushasnik karwai karne ki sacham paradhikari se sifarish karna. Aisi sipharishon par sacham parad hikahyon dwara turant karwai ki jai gi aur nirwachan aayog ki ki gai karwai ke nirwachan aayog ki sipharishon ki tarikh ke che mahine ke andar sansuchit kiya jai gaa. "(gha) Bharat sarkar rajya sarkaron ko yeh salah de gi ki oonhe bhi uprokh sidhanto aur nirnayon ka anupalan karna chahiye keyon ki nirwachan karmchariyon ki badi sankhya oon ke parshashnik niyantaran main hai." (emphasis added) 7. From clause (ka) it appears that the electoral officer can put the employee under suspension but from clause (ga) it is evident that thereafter a recommendation for starting a disciplinary proceeding is required to be made to the competent officer (in the parent department) and on the recommendation made by the electoral officer, the competent authority in the parent department would immediately start a proceeding and report to the commission within six months from the date of submission of the Commissions recommendations. 8. From the aforesaid it is clear to this court that the provisions of the Representation of the People Act or the rules or guidelines framed thereunder do not authorise the Dist. Magistrate cum Dist. Electoral Officer to take over the disciplinary control of an Assistant teacher for the purpose of imposing a punishment on him. The impugned order must, therefore, be held to be without any legal authority or sanction and must be set aside. 9. The order, dated 17.10.2000 passed by the Dist. Magistrate cum Dist. Electoral Officer, Lakhisarai is accordingly set aside. It will be, however, open to the Dist. Magistrate to report the matter to the Education Department for doing the needful. 10. In the result, this writ petition is allowed with the aforesaid observations and directions.