Research › Search › Judgment

Calcutta High Court · body

2005 DIGILAW 113 (CAL)

JITENDRA NATH ROY v. STATE

2005-02-18

GIRISH CHANDRA GUPTA

body2005
GIRISH CHANDRA GUPTA, J. ( 1 ) THE subject-matter of this writ petition is a circular dated 14th April, 2003 issued by the Joint Secretary, West Bengal State Election Commission providing inter alia that the members of National Volunteer Force and Home guards are not eligible to contest in the Panchayat Elections. The petitioner has challenged the legality of the said circular and has also prayed for a writ in the nature of mandamus commanding the respondents to allow the petitioner to continue to function as an elected member of the Hemtabad panchayat Samity. The undisputed facts of the case are as follows :- the petitioner, enrolled as a Home Guard and posted at hemtabad Police Station, by a letter dated 8th April, 2003, applied to the Superintendent of Police concerned for grant of leave during the period between 9th April, 2003 and 14th April, 2003. On 9th April, 2003 the petitioner filed his nomination paper for election to the hemtabad Panchayat Samity. On 14th April, 2003 the aforesaid circular was issued by the Election Commission. On 26th April, 2003 the petitioner appears to have applied to the Superintendent of Police for leave during the period between 1st May, 2003 and 28th May, 2003. The petitioner was declared to have been elected to the hemtabad Panchayat Samity on 14th May, 2003. The respondent no. 5, a member of the said Hemtabad Panchayat Samity applied to the District Magistrate on 5th August, 2003 challenging the election of the petitioner on the basis of the aforesaid circular dated 14th April, 2003 and prayed for a declaration that the petitioner Was disqualified. The petitioner appears to have been directed by the District Magistrate to appear before him for a hearing on 18th August, 2003. The present writ petition was filed on 2nd September, 2003. An ad interim order directing the parties to maintain status quo was passed by this Court on 29th September, 2003. The matter thereafter was taken up for hearing on 8th October, 2004 when this Court, after hearing the parties, directed the prescribed authority to dispose of the matter, challenging the election of the petitioner subject however to the result of the writ petition. On 3rd November, 2004 the prescribed authority declared the petitionerto have been disqualified to contest the election since he was ineligible under the circular dated 14th April, 2003 to contest the same. On 3rd November, 2004 the prescribed authority declared the petitionerto have been disqualified to contest the election since he was ineligible under the circular dated 14th April, 2003 to contest the same. By the same order he was also removed from office with immediate effect. The writ petition was thereafter taken up for hearing on 11th January, 2005. ( 2 ) MR. Milan Bhattacharya, learned Counsel appearing for the petitioner submitted :- (A) The bar contemplated under Section 97 of the West Bengal panchayat Act, 1973 cannot apply to the case of the petitioner because the petitioner is not nor ever was in the service of the State government or a Gram Panchayat or a Panchayat Samity or a Zila parishad or a Mahakuma Parishad or the Council. (b) The petitioner is a volunteer within the meaning of provisions of Section 3 of the West Bengal Home Guards Act, 1962. (c) In any event the petitioner was appointed under Section 4 of the West Bengal Home Guards Act, 1962 by the Superintendent of Police who is a statutory authority and not the State. (d) The bar contained in Section 97 of the West Bengal panchayat Act, 1973 has to be strictly construed. By a prolix process of reasoning a volunteer cannot be equated with a servant of the state Government. In support of his submission he relied on a full bench judgment in the case of Darbari Lai v. Shrimati Dharam Wati reported in AIR 1957 All 541 . He also relied on a judgment of the apex Court in the case of the Messers Fraser and Ross reported in air 1960 SC 971 . (e) Relying on another judgment of the Apex Court in the case of State of West Bengal and Others v. H. N. Bhowal reported in 1994 (4) SCC 78 , he submitted that it has conclusively been held by the apex Court that a volunteer engaged under the West Bengal National volunteer Force Act cannot be treated as a constable under the West bengal Police Force. (f) Lastly he submitted that the notification dated 14th April, 2003 has in any event no manner of application because it was issued on 14th April, 2003 and the nomination was filed on 11th April, 2003. There was therefore no prohibition operating against the petitioner on the date of filing of the nomination. (f) Lastly he submitted that the notification dated 14th April, 2003 has in any event no manner of application because it was issued on 14th April, 2003 and the nomination was filed on 11th April, 2003. There was therefore no prohibition operating against the petitioner on the date of filing of the nomination. He accordingly submitted that the writ petition should be allowed and an order should be passed as prayed for. ( 3 ) MR. L. C. Bihani, learned Senior Advocate appearing forthe Election commission submitted that:- (A) The circular dated 14th April, 2003 was issued by the commission pursuant to Rule 99 of the West Bengal Panchayat (Election) Rules, 1972. He submitted that the Election Commission is duly authorised by the aforesaid rule to issue the circular for the purpose of giving effect to the provisions of the West Bengal panchayat Act, 1973. (b) The circular dated 14th April, 2003 was issued to clarify the earlier circular dated 17th March, 1983 which provided that the Home guards were not eligible to become member of a Panchayat Samity while they were on active duty. He submitted that the prescribed authority in its order has on the basis of evidence arrived at a finding that the petitioner was on active duty at the time when he filed his nomination. He accordingly submitted that even without taking into consideration the circular dated 14th April, 2003 the petitioner was declared disqualified to contest the election. (c) Relying on a Single Bench judgment of this Court in the case of Kinkar Karmakar v. Government of West Bengal reported in 1999 (2) Calcutta Law Times 320, he submitted that the Home Guards occupy the same position as that of the police personnel of Class 4 category and therefore, they are to be treated to be in the service of the State Government and are therefore squarely covered by the prohibition contained in Section 97 of the West Bengal Panchayat act, 1973. (d) Lastly he submitted relying on a judgment of the Apex Court in the case of State of West Bengal and Others v. Jivan Krishna Das and Others reported in 2002 (4) SCC 721 that the Home Guards constitute a stand by post and therefore cannot be treated differently from the Police Officers. ( 4 ) HE accordingly submitted that the petition should be dismissed with costs. ( 5 ) MR. ( 4 ) HE accordingly submitted that the petition should be dismissed with costs. ( 5 ) MR. Bikas Bhattacharyay, learned Senior Advocate appearing for the respondent No. 5 submitted that :- (a) Section 9 of the West Bengal Home Guards Act, 1962 provides that the State Government may make rules relating to the terms and conditions of the service of the Home Guards and pertaining to various other matters. Under Clause (b) of Section 97 of the West bengal Panchayat Act, 1973 a person in the service of the rule making authority of the State Government is debarred from contesting election to the Panchayat Samity. He submitted that the prohibition is total and there is no scope for any relief being granted to the petitioner. (b) The Home Guards according to him are deployed to assist police and they have been endowed with the powers of the police and therefore the Home Guards should not be allowed to contest the election. He relied on the following observations of Their Lordships in the case of Shibu Soren v. Dayanand Sahay and Others reported in 2001 (7) SCC 425 :-"while interpreting statutory provisions, Courts have to be mindful of the consequences of disqualifying a candidate for being chosen as, and for being, a Member of the legislature on the ground of his holding an office of profit under the State or the central Government, at the relevant time. The Court has to bear in mind that what is at stake is the right to contest an election and to be a Member of the legislature, indeed a very important right in any democratic set-up. "a practical view, not pedantic basket of tests" must, therefore, guide the Courts to arrive at an appropriate conclusion. A ban on candidature must have a substantial and reasonable nexus with the object sought to be achieved, namely, elimination of or in any event reduction of possibility of misuse of the position which the legislator concerned holds or had held at the relevant time. The principle for debarring a holder of office of profit under the Government from being a Member of Parliament is that such person cannot exercise his functions independently of the executive of which he becomes a part by receiving "pecuniary gain". The principle for debarring a holder of office of profit under the Government from being a Member of Parliament is that such person cannot exercise his functions independently of the executive of which he becomes a part by receiving "pecuniary gain". Under Article 102 (1) (a), of course, Parliament has the jurisdiction to declare an "officer" as not to disqualify its holder to be a Member of Parliament and likewise under Article 191 (1) (a) the State Legislature has the jurisdiction to declare an "office" as not to disqualify its holder to be a Member of the State legislatures. Moreover, apart from the office being an "office of profit", it must also be an office under the State of Central government". ( 6 ) MRS. Bharati Mutsuddhi, learned Advocate appearing for the State respondents adopted the submission made by Mr. Bihani and Mr. Bikas bhattacharyay on behalf of the Election Commission and Respondent No. 5 respectively. ( 7 ) MR. Milan Bhattacharyay in reply submitted that at the time of filing his nomination paper the petitioner was not in active duty and in support of his submission he relied on a certificate dated 25th August, 2003 issued by the Superintendent of Police stating that the petitioner was demobilised with effect from 9th April, 2003. He accordingly submitted that based on the circular of 1983 the petitioner is not disqualified to contest the election. ( 8 ) WITH regard to the submission made by Mr. Bikas Bhattacharyay appearing for the respondent No. 5, he submitted that the judgment in the case of Shibu Soren v. Dayanand Sahay has no manner of application because in the case before. Their Lordships the matter was required to be dealt with under Article 102 of the Constitution whereas the matter in hand is required to be dealt under Section 97 of the West Bengal Panchayat Act, 1973. Their Lordships the matter was required to be dealt with under Article 102 of the Constitution whereas the matter in hand is required to be dealt under Section 97 of the West Bengal Panchayat Act, 1973. ( 9 ) HE finally submitted that there can be no doubt or dispute with regard to the fact that the petitioner is a volunteer ; the petitioner does not nor did ever draw any salary ; he got some allowance for the day he worked and ever since 8th April, 2003 the petitioner has not drawn even one paisa from the state coffer and, therefore, one cannot say, by any stretch of imagination, that there was any jural relationship between the petitioner and the Superintendent of Police who appointed him. He concluded by saying that when the legislature has not included a volunteer within the prohibited degree of persons debarred from contesting an election, the Court should be slow in giving the provision a meaning which the legislature in its wisdom avoided to give. ( 10 ) AFTER hearing the learned Advocates appearing for the parties this Court is of the view that what is at stake is the political right of a citizen to contest election to the Panchayat Samity and before he can be held to be disqualified the Court has to satisfy itself that the prohibition is total. The judgments cited by the learned Advocates do not answer the issue one way or the other because in neither of the cases the issue, before this court, had come up for consideration. Therefore, those cases are of no assistance in deciding the issue. ( 11 ) THE submission of Mr. Milan Bhattacharyay that the petitioner was not on active duty on 11th April, 2003 when he filed his nomination paper is belied by his own document namely the application dated 26th april, 2003 by which the petitioner prayed for further leave during the period between 1st May, 2003 and 20th May, 2003. I am, therefore, not impressed by the submission that the petitioner was not on active duty on the day he filed his nomination paper. The certificate produced by the petitioner is equally of no assistance to him. If the petitioner had been demobilised with effect from 8th April, 2003, there would have been no justifiable reason for him to apply for leave on 26th April, 2003. The certificate produced by the petitioner is equally of no assistance to him. If the petitioner had been demobilised with effect from 8th April, 2003, there would have been no justifiable reason for him to apply for leave on 26th April, 2003. The prescribed authority after taking evidence has come to a finding that the petitioner was on active duty on or after 11th April, 2003 correctness whereof was not assailed before me. The only question which survives is "is there any bar under Section 97 of the West Bengal Panchayat Act, 1973 for a Home Guard to contest an election for the Panchayat Samity ?" ( 12 ) IT would be apposite to notice the relevant portion of Section 97 of the West Bengal Panchayat Act, 1973 which provides as follows :-"97. Disqualifications of members of Panchayat Samity- subject to the provisions contained in Sections 140 and 142, a person shall not be qualified to be a member of a Panchayat Samity, if- (a) The is member of any municipal authority constituted under any of the Acts referred to in sub-section (2) of Section 1 ; or (b) The is in the service of the Central or the State Government or a Gram Panchayat or a Panchayat Samity or (a Zilla Parishad or mahakuma Parishad or the Council) and for the purposes of this clause, it is hereby declared that a person in the service of any undertaking of the Central or State Government or any statutory body or Corporation or any public or Government company or any local authority or any co-operative society or any banking company or any university or any Government sponsored institution or any educational or other institution or undertaking or body receiving any aid from the government by way of grant or otherwise or a person not under the rule making authority of the Central or the State Government or a person receiving any remuneration from any undertaking or body or organisation or association of persons as the employee or being in the service of such undertaking or body or organisation or association of persons out of funds provided or grants made or aids given by the central or the State Government, shall not be deemed to be in the service of the Central orthe State Government, or. . . . . . . . . . . . . . . . . . . . . . . . . " ( 13 ) THERE can be no dispute that the bar contemplated under the aforesaid section can only apply provided the petitioner is in service of the state or Central Government or at any rate is in the service of a rule making authority of the State Government or Central Government. ( 14 ) THE submission that the petitioner was appointed by the statutory authority and not by State has not impressed me. In this regard I need not re-examine various provisions of law governing the field and can advantageously refer to the finding given in the case of Kinkar Karmakar and ors. v. Government of West Bengal and Ors. reported in 1999 (2) CAL LT 334 the relevant portion whereof appears in Paragraph 27 of the report which is as follows :-"it is not at all correct that all the policemen are appointed by the State Government. Appointing Authorities of the State Government servants are as provided in Part-Ill Rule 6 of W. B. Services (Classification, Control and Appeal) Rules, 1971 (hereinafter referred to as the Rules of 1971) and Schedule-l as framed thereunder. As per Item No. (7) of Part-ll of the Schedule-l that,is, relating to departments or Offices outside the Secretariate, in the District Police offices Class-Ill Policemen are appointed by the D. I. G. and Class IV men by the Superintendent of Police. None of them is appointed by the State Government. On the same basis the petitioners who claim parity with Class IV members of Police force are engaged by the superintendent of Police. It is true that the policemen are recruited against cadre strength sanctioned by the Government as provided in section 2 of the Police Act, 1861. Similarly under Section 4 of the Act of 1962 the Superintendent of Police appoints as many persons as home Guards "as he may be authorities by the State Government". It means nothing but the fact that the Home Guards appointed under sections 3 and 4 of the Home Guards Act, 1962, as distinguished from Rule 8 also are appointed against their cadre strength sanctioned by the State Government, and not at the pleasure of decision of the district Officer. It means nothing but the fact that the Home Guards appointed under sections 3 and 4 of the Home Guards Act, 1962, as distinguished from Rule 8 also are appointed against their cadre strength sanctioned by the State Government, and not at the pleasure of decision of the district Officer. As discussed above, they work in aiding and assisting the police forces and while working as such they do have same powers, privileges and protections similar and equal with police officers Section 6 (i), Section 7 and Rule 7 (i ). " ( 15 ) THE expression used in Clause (b) of Section 97 is "service". The expression service may have acquired any connotation in the legal parlance but the plain vocabularical meaning of the expression "service" according to the concise Oxford Dictionary is "the act of helping or doing work for another or for a community etc. "can it seriously be contended that a volunteer like a Home Guard does not help the State in maintaining law and order? If the answer is in the affirmative then the fact that he is in the service of the State cannot even be doubted. There may or may not be any jural relationship between the helper and helped but that does not take away the substance of the matter that the helper is rendering service to the helped. Once it is realised that a Home Guard helps the State in maintaining law and order, further enquiry becomes essential as to his status in law. The West Bengal Home Guards Act has answered this question which is to be found in Sections 6, 7, 8 and 8a of the aforesaid act which are as follows :-6. Powers, protection and control- (1) A volunteer of the Home guard when called out under Section 5 shall have the same powers, privileges and protection as an officer of police appointed under any act for the time being in force. (2) No prosecution shall be instituted against a volunteer of the Home Guard in respect of anything done or purporting to be done by him in the discharge of his functions as such volunteer, except with the previous sanction in a district of the District Magistrate, or in calcutta of the Commissioner of Police (cind ex-officio Additional commandant General, Home Guards ). 7. 7. Control by officers of police force-The volunteers of the home Guard when called out under Section 5 directly in aid of the police force shall be under the control of the officers of such force, in such manner and to such extent as may be prescribed by rules made under Section 9. 8. Penalty.-If any volunteer of a Home Guard, on being called out under Section 5, without sufficient excuse neglects or refuses to obey such order or to discharge his functions as such volunteer or to obey any lawful order or direction given to him for the performance of his duties, he shall, on conviction by a competent Court, be punishable with fine which may extend to fifty rupees. 8a. Act to have overriding effect,-The provisions of this Act shall have effect notwithstanding anything to the contrary contained in the Police Act, 1861 or the Calcutta Police Act, 1866 or in any other law for the time being in force. ( 16 ) IT would thus appear that his status is the same as an officer of police appointed under any Act for the time being in force. Section 7 of the police Act, 1861 provides that a police officer may be dismissed from service for negligence subject however to the provision of Article 311 of the constitution whereas Section 8 of the West Bengal Home Guards Act, 1962 provides that negligence of a Home Guard is a criminal offence and shall render him punishable. Section 8a provides that the provision of the Home guards Act shall have effect notwithstanding anything to the contrary contained in the Police Act of 1861. One can therefore say with some justification that the control over the Home Guards is more rigorous than what it is in respect of a member of the Police Force enrolled under the police Act, 1861. ( 17 ) THE rules framed by the State Government in exercise of power under Section 9 of the West Bengal Home Guards Act, 1962 in so far as the same is material for the purpose provides as follows. ( 18 ) HE is required to take oath ; "during such ceremony each recruit shall take the oath of allegiance to India an to the Constitution of India as by law established in the form set out in Schedule B to those rules. ( 18 ) HE is required to take oath ; "during such ceremony each recruit shall take the oath of allegiance to India an to the Constitution of India as by law established in the form set out in Schedule B to those rules. " ( 19 ) HIS duties are as follows : "duties-Members of the Home Guards may be called out on duty :- (I) to assist the police force in the protection of civil population against the forces of crime and disorder; (ii) to work in close touch with Civil Defence Organisation ; (iii) to perform such duties in connection with the protection of persons, the security of property or the public safety as the State govt. may, from time to time, by rule assign to them. " ( 20 ) HE is supposed to return his badge etc. at the time of cessation of relationship : "home Guard Badge-All ranks when on duty and only when on duty shall wear on the left upper fore arm a red brassard on which the prescribed Home Guard badge shall be imposed. The brassard and badge shall be supplied by the State Government and shall remain the property of the State. Every member of the Home Guard must keep the brassard and badge carefully in his personal custody and prevent it from being used by any unauthorised person. Any person who for any reason ceases to be a member of the Home Guard must return without delay to the group Commander under whom he previously served his brassard and badge togetherwith such portion of his uniform as may have been supplied to him by Government. " ( 21 ) THE West Bengal Home Guards Act, 1962 makes provision for those who volunteer to act in aid of the police. The police Act of 1861 particularly Sections 17, 18,19 thereof provide for a situation when Special police Officers can be appointed. Such appointment can even be involuntary. Even unwilling persons can be made to serve the poliec force and they are more or less at par with the volunteers enrolled under the West Bengal home Guards Act, 1962 as would be evident from Sections 17, 18, 19 of the Police Act, 1861 which provides as follows :-"sec. Such appointment can even be involuntary. Even unwilling persons can be made to serve the poliec force and they are more or less at par with the volunteers enrolled under the West Bengal home Guards Act, 1962 as would be evident from Sections 17, 18, 19 of the Police Act, 1861 which provides as follows :-"sec. 17.-Special Police Officers-When it shall appear that any unlawful assembly, or riot or disturbance of the peace has taken place, or may be reasonably apprehended, and that the police-force ordinarily employed for preserving the peace is not sufficient for its preservation and for the protection of the inhabitants, and the security of property in the place where such unlawful assembly or riot or disturbance of the peace, has occurred or is apprehended, it shall be lawful for any police officer, not below the rank of inspectors to apply to the nearest Magistrate to appoint so many of the residents of the neighbourhoods as such police officers may require to act as special police officers for such time and within such limits as he shall deem necessary ; and the Magistrate to whom such application is made shall, unless he sees cause to the contrary, comply with the application. Sec. 18- Powers of Special Police Officers-Every special police officer so appointed shall have the same powers, privileges and protection and shall be liable to perform the same duties and shall be amenable to the same penalties and be subordinate to the same authorities, as the ordinary officer of police. Sec. 19. Refusal to serve as special police officers.-If any person, being appointed a special police officer as aforesaid shall without sufficient excuse neglect or refuse to serve as such, or to obey such lawful order or direction as may be given to him for the performance of his duties, he shall be liable, upon conviction before a Magistrate, to a fine not exceeding fifty rupees for every such neglect, refussal or disobedience. " ( 22 ) THE fact that a volunteer enrolled under the West Bengal Home Guards act, 1962 enjoys the same powers, privileges and protection as an officer of police is evident from Section 6 of the aforesaid Act which has been quoted hereinabove, Why was the protection thought necessary ? " ( 22 ) THE fact that a volunteer enrolled under the West Bengal Home Guards act, 1962 enjoys the same powers, privileges and protection as an officer of police is evident from Section 6 of the aforesaid Act which has been quoted hereinabove, Why was the protection thought necessary ? It is because a person, called upon to help the State Government to maintain the law and order situation, cannot discharge his function effectively if he is perpetually in a threat of being sued in a Court of Law. I however should not be understood to have meant that even a mala fide exercise of power is protected. ( 23 ) POLITICAL activity of a member of the Police Force has been totally prohibited under Section 3 of the Police Forces (Restriction of Rights) Act, 1966. The preamble of the said Act provides as follows :- "an Act to provide for the restriction of certain rights conferred by part-Ill of the Constitution in their application to the members of the Forces charged with the maintenance of public order so as to ensure the proper discharge of their duties and the maintenance of discipline among them. " sec. 3- Restrictions respecting right to form association, freedom of speech etc- (1) No member of a police force shall, without the express sanction of the central Government or of the prescribed authority : a) be a member of, or be associated in any way with, any trade union, labour union, political association, orwith any class of trade unions, labour unions or political associations ; or b) be a member of, or be associated in any way with, any other society, institution, association or organisation that is not recognised as part of the force of which he is a member or is not of a purely social, recreational or religious nature ; or c) communicate with the press or publish or cause to be published any book, letter or othe. r document except where such communication or publication is in the bona fide discharge of this duties or is of a purely literary, artistic or scientific character or is of a prescribed nature. Explanation-If any question arises as to whether any society, institution, association or organisation is of a purely social, recreational or religious nature under clause (b) of this sub-section, the decision of the Central Governfnent thereon shall be final. Explanation-If any question arises as to whether any society, institution, association or organisation is of a purely social, recreational or religious nature under clause (b) of this sub-section, the decision of the Central Governfnent thereon shall be final. ( 24 ) SUB-SECTION 2 of the aforesaid Poliec Forces Restriction of Rights act, 1966 provides as follows :- "no member of a police-force shall participate in, or address, any meeting or take part in any demonstration organised by any body of persons for any political purposes or for such other purposes as may be prescribed. " ( 25 ) PART-ILL of the Constitution has conferred fundamental rights on the citizens but at the same time the authority to impose reasonable restriction has been reserved to the State. Under Article 102 the Constitution has imposed restriction in the case of persons seeking election to the parliament. Less rigorous provision is to be found in Section 97 of the West Bengal Panchayat Act, 1973. The Police Force Restriction of Rights Act, 1966 is an instance of such a reasonable restriction. It is here that the judgment cited by Mr. Bikas bhattachary ay becomes relevant and we shall reiterate the proposition laid by their Lordships in the case of Shibu Soren v. Dayanand Sahay and Others reported in 2001 (7) SCC 425 :- "the principle for debarring a holder of office of profit under the Government from being a Member of Parliament is that such person cannot exercise his functions independently of the executive of which he becomes a part by receiving "pecuniary gain". ( 26 ) FOR the reasons indicated above I am of the view that there is no escape from the conclusion that the prohibition operating against the petitioner is total and he has rightly been held to be disqualified to contest the election. There is nothing wrong either in the circular of the year 1983 or the circular dated 14th April, 2003. ( 27 ) AFTER further hearing the learned Advocates, pursuant to order dated 19. 1. 2005, appearing for the parties, this petition is dismissed. After dismissal of the writ petition, the application for modification becomes infructuous and the same is also dismissed as such. Needless to mention any other connected CAN is also dismissed. There shall be no order as to costs.