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2008 DIGILAW 1625 (PAT)

Priyaambada Roy v. State Of Bihar

2008-11-16

RAMESH KUMAR DATTA

body2008
Judgment 1. Heard learned counsel for the petitioner and learned counsel for the State Election Commission and for the State. 2. The petitioner seeks quashing of the order dated 29.9.2008 passed by the State Election Commissioner, Bihar (Respondent No.2) in Case No. 33/2008 declaring the petitioner to be disqualified to hold the office of the Ward Commissioner of Munger Municipality in terms of Section 18(1)(d) of the Bihar Municipal Act, 2007 . 3. The facts of this case are not in dispute and lie within a narrow compass. The petitioner was elected as a Ward Commissioner in Munger Municipal Council from Ward No. 40. Subsequent to that she joined as a Panchayat Rojgar Sevika in the District Rural Development Authority, Munger on the basis of a letter of appointment dated 31.7.2007, thereafter she resigned from the said post on 2.5.2008. The petitioner claims to have even refunded the entire honorarium with interest and the resignation and the said amount was also accepted by the D.R.D.A. However, on the basis of a complaint filed on 26.8.2008 the matter was taken up by the State Election Commission and after giving due notice and considering her stand, she has been disqualified as a Ward Commissioner in terms of Section 18(1)(d) of the Bihar Municipal Act, 2007 by the impugned order dated 29.9.2008. 4. Learned counsel for the petitioner submits that the petitioner was fully qualified to contest the election and was accordingly duly elected. Thereafter, even if it is assumed that she had incurred any disqualification by joining the post of Panchayat Rojgar Sevika, she had upon realizing the said fact immediately not only resigned from the said post but also refunded the entire honorarium amount alongwith interest, which was also accepted by the authorities of the D.R.D.A. and in the said circumstances whatever disqualification she may have incurred would stand wiped out, particularly considering the fact that at that time no complaint regarding her disqualification were pending before the State Election Commission. 5. Learned counsel further contends that the whole purpose of such provisions incurring disqualification upon holders of such offices is to enable the Ward Commissioner to discharge her duties fearlessly and independently and therefore on a consideration of the circumstances of the case a strict view should not be taken as upon her resignation, there was no question of the petitioner being compromised in performing her duties fearlessly and independently. 6. It is also submitted that the law laid down by the Supreme Court in this regard is that the purpose of such provisions is to avoid conflict between the performances of the duties of the offices and the personal interest of the holder of such office and the said conflict having come to an end on the petitioners resignation as Panchayat Rojgar Sevika, there would be no occasion for disqualifying her on the basis of a subsequent complaint. 7. in support of the aforesaid proposition learned counsel for the petitioner relies upon two decisions of the Supreme Court. The first is the case of Madhukar G.E. Pankakar Vs. Jaswant Chobbildas Rajani & Ors.: A.I.R. 1976 SC 2283, in para 22 of which it has been laid down as follows: Back to the issue of office of profit.If the position of an Insurance Medical Officer is an office, it actually yields profit or at least probably may. In this very case the appellant was making sizeable income by way of capitation fee from the medical services, rendered to insured employees. The crucial question then is whether this species of medical officers are holding office and that under Government. There is a haphazard heap of case law about these expressions but they strike different notes and our job is to orchestrate them in the setting of the statute. After all, all law is a means to an end. What is the legislative and herein disqualifying holders of offices of profit under Government? Obviously, to avoid a conflict between duty and interest, to cut out the misuse of official position to advance private benefit and to avert the likelihood of influencing Government to promote personal advantage. So this is the mischief to be suppressed. At the same time we have to bear in mind that our Constitution mandates the State to undertake multiform public welfare and socio-economic activities involving technical persons, welfare workers, and lay people on a massive scale so that participatory Government may prove a progressive reality. In such an expanding situation, can we keep out from elective posts at various levels many doctors, lawyers, engineers and scientists, not to speak of an army of other non-officials who are wanted in various fields, not as full-time Government servants but as part-time participants in peoples projects sponsored by Government? In such an expanding situation, can we keep out from elective posts at various levels many doctors, lawyers, engineers and scientists, not to speak of an army of other non-officials who are wanted in various fields, not as full-time Government servants but as part-time participants in peoples projects sponsored by Government? For instance, if a national Legal Services Authority funded largely by the State comes into being, a large segment of the legal profession may be employed part-time in the enabling occupation of legal aid to the poor. Doctors, lawyers, engineers, scientists and other experts may have to be invited into local bodies, legislatures and like political and administrative organs based on election if these vital limbs of representative Government are not to be the monopoly of populist politicians or lay members but sprinkled with technicians in an age which belongs to technology. So, an interpretation of office of profit to cast the net so wide that all our citizens with specialities and know-how are inhibited from entering elected organs of public administration and offering semi-voluntary services in para-official, statutory or like projects run or directed by Government or Corporations controlled by the State may be detrimental to democracy itself. Even athletes may hesitate to come into Sports Councils if some fee for services is paid and that proves their funeral if elected to a panchayat! A balanced view, even if it involves judicious irreverence to vintage precedents,is the wiser desideratum. 8. The other case cited by learned counsel for the petitioner is of Ashok Kumar Bhattacharyya Vs. Ajoy Biswas & Ors.: A.I.R. 1985 SC 211, para 16 of which is quoted below: "The true principle behind this provision in Article 102(1)(a) is that there should not be any conflict between the duties and the interest of an elected member. Government controls various activities in various spheres and in various measures. But to judge whether employees of any authority or local authorities under the control of Government become Government employees or not or holders of office of profit under the Government, the measure and nature of control exercised by the Government over the employee must be judged in the light of the facts and circumstances in each case so as to avoid any possible conflict between his personal interests and duties and of the Government. This position was further examined in the case of Surya Kant Roy Vs. This position was further examined in the case of Surya Kant Roy Vs. Imamul Hai Khan, (1975)3 SCR 909 : ( AIR 1975 SC 1053 ). There under Bihar and Orissa Mining Settlement Act, 1920, a Board called the Mines Board of Health may be established to provide for the control and sanitation of any area within which the persons employed in a mine reside and for the prevention therein of the outbreak and spread of epidemic diseases. After analyzing the facts of that case, this Court held that the mere fact that the candidate was appointed Chairman of the Board by State Government would not make him a person holding an office of profit under the State Government. There the Supreme Court referred to the decision in the case of Shivamurthy Swami Vs. Agadi Sanganna Andanappa, (1971)3 SCC 870 . This Court in Surya Kant Roy Vs. Imamul Hai Khan (supra) observed at page 911 [of (1975) 3 SCR] : (at P. 1054 of AIR 1975 SC) as follows: "Here again it is to be pointed out that the Government does not pay the remuneration nor does the holder perform his functions for the Government. To hold otherwise would be to hold that local bodies like Municipal Councils perform their functions for the Government though in one sense the functions they perform are governmental functions." 9. Learned counsel also argues that the words used in the Clause (d) of Section 18(1) are "is in the service of any such institution receiving aids from the Central or State Government or any local authority". According to the learned counsel the same means that the disqualification is incurred only during the period while a person is continuing in the service of such an institution and not beyond that. It is the further contention of learned counsel that the District Rural Development Agency is an agency and not an institution and therefore service under such an institution will not come within the mischief of the said provisions. 10. Learned counsel lastly submits that the State Election Commission had misguided himself by referring to the fact of holding an office of profit whereas the provision on which it relied upon is not concerning an office of profit but being in the service of an institution. 11. 10. Learned counsel lastly submits that the State Election Commission had misguided himself by referring to the fact of holding an office of profit whereas the provision on which it relied upon is not concerning an office of profit but being in the service of an institution. 11. Learned counsel for the State Election Commission on the other hand argues that the question of disqualification is both prior to election as also subsequent to the same and the Commission has all the powers under Section 18(2) to consider such a disqualification whether existing before the election or incurred after election. It is submitted that proper notice and opportunity was given to the petitioner of being heard in the matter as required by the provisions of the Act and the only ground taken by the petitioner before the State Election Commission was that she was ignorant of the provisions of the law and factually everything had been admitted. Learned counsel contends that ignorance of the law cannot excuse anyone and thus the Commission has rightly come to the conclusion that the petitioner had incurred disqualification while entering into the service of the District Rural Development Agency as a Panchayat Rojgar Sevika. 12. It is also argued by learned counsel for the State Election Commission that a disqualification incurred at any time after the election would have the effect of rendering a person as disqualified for holding the post as a member of the municipality and the said situation is brought about the moment such a member of the municipality joins any of the posts or services as are mentioned in Section 18(1)(d). It is urged that the moment a disqualification is incurred the person becomes liable to be disqualified by the Commission for holding the post as a member of the municipality and such disqualification does not cease on the person resigning subsequently or refunding the remuneration received by her. 13. On a consideration of the facts and circumstances of the case and the submissions of the parties, this Court does not find any force in the submission of the learned counsel for the petitioner. 14. 13. On a consideration of the facts and circumstances of the case and the submissions of the parties, this Court does not find any force in the submission of the learned counsel for the petitioner. 14. It is evident from the provisions of the Act that the moment it is found that after election to a post as a member of the municipality a person has joined the service of any institution receiving aid from the Central or State Government or any local authority then he or she incurs a disqualification for holding the post as such a member. It is nowhere provided in the Act that such disqualification shall stand removed if the person resigns the post at any subsequent stage or refunds the remuneration received by him or her. Considering the clear provisions of the statute, the only conclusion that can be drawn is that the moment a person joins the service of any such institution as described in Section 18(1)(d), the disqualification is incurred and upon a complaint to the Commission or even suo-motu it can take cognizance of such a matter and decide the same after giving due opportunity to the affected person. Since there is no provision for removal of disqualification, it is to be presumed that the disqualification will continue and can be brought to the notice of the Commission even after the person has subsequently resigned which does not wipe out the disqualification which has been incurred. In matters such as this the question of strict or liberal interpretation does not arise since the provisions of the statute are themselves crystal clear and are not open to any other interpretation than what is provided therein. If the intention of the legislature can be gathered from the provisions themselves then no question arises for entering into any further interpretation for arriving at their meaning. 15. Thus the issue in such a case cannot be looked at from the angle as to whether the holder of the office can discharge the duties fearlessly or independently or whether there is any conflict between the official duties and personal interests of the person in question. 15. Thus the issue in such a case cannot be looked at from the angle as to whether the holder of the office can discharge the duties fearlessly or independently or whether there is any conflict between the official duties and personal interests of the person in question. Such matter arose in the Supreme Court in the cases cited in the context of Articles 102(1) and 191(1) concerning the members of Parliament and State Legislatures which are couched in much wider terms and thus their ambit had to be decided on the basis of the interpretative process. In fact, in the aforesaid two cases referred to above clear observation is to be found that those Articles themselves have left it open to the Parliament to provide further ground for disqualification by legislation and where such clear ground are provided by the Parliament, then the same would not need further interpretation. 16. As a matter of fact, the two decisions relied upon by learned counsel for the petitioner do not support his case and are contrary to the stand taken herein. 17. So far as the stand taken that the District Rural Development Agency is an agency and not an institution, the same has to be rejected because an institution is a term of wider import being a genus within which terms such as "agency" etc. would also be included as mere species. Hence such bare assertion cannot lead to any conclusion that an agency of the nature of District Rural Development Agency is not an institution. It is not denied that the D.R.D.A. functions on the basis of funds received from the Central and State Government. 18. Lastly the submission of learned counsel that the State Election Commission has misguided himself by referring to the term office of profit, also does not appear to have much force. It is evident from the impugned order that the provisions of Section 18(1)(d) have been quoted in the order and conclusions have been drawn on the basis of the said provisions regarding the disqualification of the petitioner. The use of the term office of profit thereafter can have no significance nor does it show any lack of proper application of mind by the State Election Commission. 19. The use of the term office of profit thereafter can have no significance nor does it show any lack of proper application of mind by the State Election Commission. 19. Thus on a consideration of the entire issues, this Court does not find any ground for interference with the order dated 29.9.2008 of the State Election Commissioner. 20. The writ application is accordingly devoid of merit and is dismissed.