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2004 DIGILAW 266 (MP)

Prem Narain Dubey v. State of M. P.

2004-03-17

DIPAK MISRA

body2004
Judgment ( 1. ) THE seminal issue that arises for consideration in this petition is whether a Government employee while in service being governed by M. P. Civil Services (Conduct) Rules, 1965 (hereinafter referred to as the Rules) can be allowed to contest an election and be permitted to advance a plea that a man who is a political animal is entitled to do so, the right being basically natural and fundamental in a way, and hence, not liable to be proceeded against in a disciplinary proceeding. ( 2. ) THE facts which are essential to be stated for adjudication are that the petitioner who was working as Headmaster in Government Middle School, Ramasthan, Block Development, Sohawal, District Satna, filed his nomination papers for Satna Legislative Constituent Assembly No. 33 on 25-10-1993 and after acceptance of his nomination papers he commenced election campaign which was scheduled to be held on 24-11-1993. During the period of campaign he received an order of suspension from the competent authority on 13-11-1993 vide Annexure A-l whereby his Headquarters was fixed in the office of the Block Education Officer, Nagod. Thereafter a departmental enquiry was initiated against him by the respondent No. 4, the Deputy Director, Education, who issued the charge-sheet to him. The petitioner was afforded two days time to submit his explanation in respect of the charge levelled against him. The petitioner made prayer for grant of 15 days time to submit his show cause. He also preferred an appeal on 19-11-1993 to the Joint Director of Public Instructions seeking quashment of the order of suspension and annulling the departmental enquiry initiated against him and eventually an enquiry officer was appointed to cause an enquiry in respect of the charges levelled against the petitioner. It is contended in the petition that the suspension order against the petitioner is not in consonance with the Rules and further the authority who passed the order could not have passed the same, as he did not have competence or jurisdiction to do so, as he was holding the authority of Deputy Director. It is put forth that the directions of the disciplinary authority taking action and passing orders against the petitioner affecting him, have to pave the path of extinction. It is put forth that the directions of the disciplinary authority taking action and passing orders against the petitioner affecting him, have to pave the path of extinction. It is urged when nomination papers were accepted by the competent authority and the petitioner was allowed to contest the election because of such acceptance a disciplinary proceeding could not have been initiated against him. It is also highlighted that a maladroit attempt has been made to put the petitioner in a tremendous difficulty to frustrate his right to express himself in a democratic set up. ( 3. ) A counter affidavit has been filed by the answering respondents contending, inter alia, that the petitioner had not availed the statutory remedy of appeal which is provided under Rule 23 of the M. P. Civil Services (CCA) Rules, 1966 (hereinafter referred to as 1966 Rules ). It is putforth that the order of suspension was issued under Rule 9 of the 1966 Rules, as contesting an election without tendering resignation amounts to misconduct. An order of suspension was issued, as there was a contemplation to initiate a departmental proceeding. The stand taken that the petitioner has an individual right to contest in the election is seriously refuted. ( 4. ) A rejoinder affidavit has been filed putting forth the plea that action taken under the Rules, 1966 is absolutely vulnerable and further contesting an election as an independent candidate can not be treated as a misconduct. ( 5. ) I have heard Mr. K. K. Pandey, learned Counsel for the petitioner and Mr. S. M. Lal, learned Counsel for the State. ( 6. ) IT is submitted by Mr. Pandey, learned Counsel for the petitioner that participating in an election can not be a misconduct. In this context he has commended me to the decision of a Division Bench of the Orissa High Court rendered in the case of Pravati Bastia v. Management of Choudwar College and Ors. , 1992 (7) SLR 401. It is further contended by him that if the fundamental right to contest in the election is regarded as misconduct that will destroy the basic fabric of democracy and, therefore, the order of suspension of the initiation of the departmental proceeding should be quashed. ( 7. ) MR. , 1992 (7) SLR 401. It is further contended by him that if the fundamental right to contest in the election is regarded as misconduct that will destroy the basic fabric of democracy and, therefore, the order of suspension of the initiation of the departmental proceeding should be quashed. ( 7. ) MR. S. M. Lal, learned Counsel for the State submitted that if the Rules are read in proper perspective it would be absolutely clear that the petitioners act comes within the ambit and sweep of misconduct and, therefore, the department was justified in keeping him under suspension and taking appropriate disciplinary action. Learned Counsel submitted that there has been flagrant violation of the Rules and the authority who passed the order of suspension had the authority and jurisdiction to do so. ( 8. ) TO appreciate the rivalised submissions raised at the Bar, it is appropriate to refer to Rule 5 of the Rules of the Rules. It reads as under:-"5, Taking part in politics and elections.-- (1) No Government servant shall be a member of, or be otherwise associated with, any political party or any organisation which takes part in politics nor shall he take part in, subscribe in aid of, or assist in any other manner, any political movement or activity. , (2) It shall be duty of every Government servant to endeavour to prevent any member of his family from taking part in, subscribing in aid of or assisting in any other manner any movement or activity which is, or tends directly or indirectly to be subversive of the Government as by law established and where a Government servant is unable to prevent a member of his family from taking part in, or subscribing in aid of or assisting in any other manner, any such movement or activity, he shall make a report to that effect to the Government. (3) If any question arises whether a party is a political party or whether any organization takes part in politics or whether any movement or activity falls within the scope of Sub-rule (2), the decision of the Government thereon shall be final, (4) No Government servant shall canvas or otherwise interfere with, or use his influence in connection with or take part in, an election to any legislature or local authority : Provided that- (i) a Government servant qualified to vote at such election may exercise his right to vote, but where he docs so, he shall give no indication of the manner in which he proposes to vote or has voted; (ii) a Government servant shall not be deemed to have contravened the provisions of this sub-rule by reason only that he assists in the conduct of an election in the due performance of a duty imposed on him by or under any law for the time being in force. Explanation :-- The display by a Government servant on his person, vehicle or residence of any electoral symbol shall amount to using his influence in connection with an election within the meaning of this sub-rule. " ( 9. ) SUBMISSION of Mr. Pandey is that man being a political animal has a right to participate in the process of election and such participation is inherently implicit in a democratic body polity and hence, the action taken by the authority is unwarranted. True it is, participation in politics is imperative necessity in a democratic set up, as no responsible citizen would like to remain as an alien to the conceptual philosophy of participation in a democracy. In every man there is an ambition to become a statesman. In every person there is a desire to become a leader. No one likes to stand outside the fence as it is basic wish of a man in a free society to come to the centre stage. One can not brush aside the fact that a good citizen would like to build up a national character and collective conscience for the progress of the State. Preaching of virtue and sensibility is embedded in a thinking man who wants the Government to be administered by the best. He would like to fight for freedom and liberty. One can not brush aside the fact that a good citizen would like to build up a national character and collective conscience for the progress of the State. Preaching of virtue and sensibility is embedded in a thinking man who wants the Government to be administered by the best. He would like to fight for freedom and liberty. He understands the value of liberty as has been said by Patrick Henry: "what light is to the eyes-- what air is to the lungs-- what love is to the heart, liberty is to the soul of man. " ( 10. ) THE individual has the deepest desire to usher in a sense of high civility and motivate and inspire the people so that society atleast can march on the Utopian path. Occasions are not rare when an employee conceives the idea of perfection and swims with utmost enthusiasm to achieve the pink of perfection, to borrow a phrase from Oliver Goldsmith. Some may feel that politics does not require any preparation but there are people who have the real desire to dedicate themselves for the next generation and that is how a democracy remains in a sustained state and the discipline gets into the narrows of society. But while the social thought and the inborn desire so permit yet when a person serves the State has to be guided by the Rules as long as rules arc in force and not lanccted by any Court of law. On a studied scrutiny of the anatomy of Rule it is quite clear that Government servant has been debarred to take part in politics. Mr. Pandey has impressed upon this Court to follow the ratio laid down in the case of Pravati Bastia (supra ). But on a careful perusal of the aforesaid judgment of the Division Bench rendered by the High Court of Orissa it is discernible that the Bench was dealing with a different set of rules altogether. The rule which was under consideration postulated that an employee should not be a member of a political party or communal party and the petitioner therein contested in the election as an independent candidate. Hence, the facts of the case being different the decision is distinguishable, but it is worth noting in the said case in Para 10 the Division Bench speaking through A. Pasayat, J. (as His Lordship then was) stated thus:- "10. Hence, the facts of the case being different the decision is distinguishable, but it is worth noting in the said case in Para 10 the Division Bench speaking through A. Pasayat, J. (as His Lordship then was) stated thus:- "10. The rule in question intends to regulate conduct of employees. It deals with disciplinary control. It is a form of service discipline. Before entering into Government service, character and antecedents of a candidate are considered. At that stage a candidate may not be disqualified because he subscribes to any political belief or thought, unless such believe or thought is prohibited in any Law. The situation is different when a person enters into service. The employer has a right to regulate the conduct of its employees, and, therefore, the prohibition on membership of a political or communal party does not appear to be unreasonable. Communal harmony leads to integration of the country. Communalism is antithesis of secularism. If an employee is a member of a communal party so declared by the State or the Central Government, his thoughts, ideas may be non-secular, which will be against interest of the State or the nation. " ( 11. ) RULE 5 of the Rules is categorical and unequivocal and does not permit any room wherein the case of the petitioner can be kept out of its ambit and sweep. In my considered opinion, the Rule 5 squarely covers the case of the petitioner and, therefore, the order passed by the competent authority initiating a disciplinary proceeding against him can not be found fault with. ( 12. ) EX consequenti, the writ petition being sans merit stands dismissed without any order as to costs.